R v Lehrmann
[2022] ACTSC 67
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lehrmann |
Citation: | [2022] ACTSC 67 |
Hearing Date(s): | 16 March 2022 |
DecisionDate: | 16 March 2022 |
Before: | McCallum CJ |
Decision: | See [8] |
Catchwords: | EVIDENCE – Prohibition of Publication of Evidence – Whether publication of evidence is likely to prejudice the administration of justice – Where proceedings relate to the foreshadowing of an application for a stay of the criminal proceedings against the accused – Where press previously warned of the risk of prejudice to a fair trial |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
Parties: | The Queen (Crown) Bruce Lehrmann ( Accused) |
Representation: | Counsel S Drumgold SC ( Crown) D Campbell SC, E Anderson, J Korn ( Accused) |
| Solicitors Director of Public Prosecutions ( Crown) Korn Tlais Defence Lawyers Pty Ltd ( Accused) | |
File Number(s): | SCC 264 of 2021 |
McCALLUM CJ:
The accused in these proceedings has foreshadowed an application under r 4750 of the Court Procedures Rules2006 (ACT) for a permanent stay of the prosecution of the charge against him and, in the alternative, for postponement or delay of the trial, presently fixed to commence on 6 June 2022, under r 4752.
It has further been foreshadowed that he may, depending upon the responses by media to requests for certain material to be taken down in advance of the trial, seek an order to that effect if cooperation is not forthcoming, and further, an order preventing any further publications between now and the trial date concerning the subject matter of the trial.
I have fixed those foreshadowed applications for hearing on 1 April 2022. In response to the foreshadowing of the applications, the Crown has made an application pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). That section provides that the Court may make certain orders forbidding the publication of evidence, reports of the evidence or the names of parties or witnesses, if the Court considers that the publication of that material in a proceeding is likely to prejudice the administration of justice.
The Crown contends that the publication of the material ventilated today (that is, the foreshadowing of the applications and a broad outline of the basis for them) is likely to prejudice the administration of justice because, whether it is perceived to be negative to the accused or positive to the complainant, any further reporting about these proceedings can only add to the weight of whatever has already been published about the trial.
I am not persuaded that publication of the foreshadowing of the applications for a stay and related take down orders or injunctions falls within the test in s 111. Indeed, as submitted by Mr Campbell SC, appearing today for the accused, it may be that publication of the prospect of a stay application by an accused in a trial of this nature will reinforce the remarks I made last week, perhaps somewhat sternly, warning of the potential threat to the prosecution if the question of the guilt of the accused or the plausibility of the complainant is ventilated in the media or otherwise in public forums.
For that reason, I am not persuaded that I should make an order under s 111 today. I may, however, consider the need to make such an order at the hearing of the substantive applications on 1 April 2022.
In refusing the Crown’s application, I would not wish to be understood to give free licence to the press in this matter to say whatever may interest the public about the guilt of the accused, the credibility of the complainant, the alleged circumstances of the offence or any other matter relating to the trial. I reiterate my remarks made last week, that the more this case is ventilated in public forums, the more likely it is that the accused will not be able to have a fair trial. The consequence that must inevitably follow, if that is established, is a stay, permanent or temporary, of the prosecution.
I make the following orders:
(1) The matter is listed for hearing of the application in proceedings foreshadowed this morning on 1 April 2022 at 10am before McCallum CJ;
(2) Direct the accused to file and serve any application of the kind foreshadowed this morning by close of business on 18 March 2022 together with the initial supporting affidavit. I note that any further affidavits may be filed up to 25 March 2022 concerning the response of media entities approached on behalf of the accused;
(3) Direct the Crown to file any evidence relating to the foreshadowed applications by 25 March 2022;
(4) Both parties provide an outline of any submissions and authorities relied upon by 30 March 2022;
(5) Dismiss the oral application for prohibition of publication of the complainant’s name under s 111 of the Evidence Miscellaneous Provisions Act 1991 in relation to the foreshadowed application.
| I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 2 May 2022 |
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