R v Lehrmann (No 2)
[2022] ACTSC 92
•29 April 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lehrmann (No 2) |
Citation: | [2022] ACTSC 92 |
Hearing Date: | 1 April 2022 |
DecisionDate: | 29 April 2022 |
Before: | McCallum CJ |
Decision: | 1) The accused’s application for a permanent or temporary stay of the criminal proceedings against him is dismissed. 2) The accused’s application directed to the media for a take-down order and injunction to restrain the publication of the matter specified in the evidence is dismissed. 3) Pursuant to s 111(2) of the Evidence (Miscellaneous Provisions) Act, the publication of the following material is prohibited until further order: a) this judgment apart from paragraphs [1] to [6], [35] to [44], and these orders; b) the evidence and submissions relied upon in support of the applications. 4) Note that the term “publish” in order 3 is that defined in s 81J of the Evidence (Miscellaneous Provisions) Act. 5) Note that copies of the entire judgment may be provided to journalists in physical attendance in the courtroom on their undertaking to only take a paper copy and not share it with anyone subject to the non-publication orders. 6) Extend order 3 to the publication of the evidence and submissions relied upon in support of the application made today. |
Catchwords: | CRIMINAL PROCEDURE – Stay of proceedings – Application by accused person for permanent or temporary stay of criminal proceedings – Inherent power of the Court to ensure that its processes are not abused – Significant pre-trial publicity – Whether of such a nature as to prevent a fair trial – Whether steps able to be taken by the trial judge in the conduct of the trial to relieve against its unfair consequences CRIME – Accused facing trial for sexual intercourse without consent – Significant pre-trial publicity and commentary including repeated discussion by the complainant of her allegation against the accused and public endorsement of her credibility and claimed status as a victim – Whether possible to empanel an impartial jury – Whether prejudice able to be addressed by directions by the trial judge PRACTICE AND PROCEDURE – Application for take-down order and injunction to restrain “any media outlet” from publishing specified matter – Whether necessary in the interests of ensuring a fair trial |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Court Suppression and Non-publication Orders Act 2010 (NSW) Supreme Court Act 1933 (ACT) |
Cases Cited: | Dawson v R [2021] NSWCCA 117 Dupas v The Queen [2010] HCA 20; 241 CLR 237 Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; 266 CLR 325 |
Parties: | The Queen (Crown) Bruce Lehrmann (Accused) |
Representation: | Counsel S Drumgold SC, S Jerome (Crown) D Campbell SC, E Anderson, J Korn (Accused) D Sibtain (Intervener) |
| Solicitors Director of Public Prosecutions (Crown) Korn Tlais Defence Lawyers Pty Ltd (Accused) Thomson Geer (Intervener) | |
File Number: | SCC 164 of 2021 |
McCallum CJ:
Bruce Lehrmann stands charged with an offence of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT). His trial for that offence is listed to commence in this Court on 6 June 2022.
The offence must be tried by jury: s 68A of the Supreme Court Act 1933 (ACT). For certain offences in the Australian Capital Territory, an accused person has the right to elect to be tried by judge alone and any such election binds the Court: s 68B of the Supreme Court Act. However, that right does not extend to the offence of sexual intercourse without consent: Sch 2 item 9 of the Supreme Court Act.
For a variety of reasons, the matter has attracted a considerable amount of public attention. The accused contends that the nature of the publicity is such that, absent the possibility of proceeding by judge alone, a fair trial is now impossible. There are two discrete but related aspects to that concern. First, the accused contends that the scope of the publicity is such that it will be impossible for the Court to find 12 impartial jurors (in fact it may be prudent to empanel up to 16, as allowed under s 31A(1) of the Juries Act). Secondly, he contends that the damaging publicity is of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against the unfair consequences of that publicity.
In those circumstances, by application dated 18 March 2022, the accused seeks a permanent stay of the prosecution and, in the alternative, an order postponing or delaying the trial (orders one and two sought in the application).
The accused also seeks orders implicitly directed to various media entities as publishers of certain articles identified in the evidence requiring those entities (un-named and not joined as respondents to the application) to “take down any such material they have published or caused to be published” (order 3 sought in the application). More problematically, he seeks an order restraining “any media outlet from publishing any material of and concerning the accused and/or the complainant that relates to or refers to directly or indirectly the present criminal proceedings or any part of the subject matter to which those proceedings relate” (order 4 sought in the application).
I have concluded that all of the relief sought in the application must be refused for the following reasons.
Circumstances in which the application was brought
Even leaving aside later events (to which I will return), the complainant’s central allegation is such as to be of inherent interest to the press. The offence is alleged to have been committed late at night on a couch in the office of a Minister of the Australian Parliament in Parliament House in Canberra. The accused and the complainant were both employed in Parliament House as advisors to the then Defence Minister, Linda Reynolds. They had attended a social event on the evening of 22 March 2019. The complainant alleges that, at the end of the night, the accused took her back to Parliament House and sexually assaulted her in the early hours of the following morning, 23 March 2019. As at that date, it was known that a federal election had been called for 18 May 2019.[1] Police were informed of the allegation of sexual assault but the complainant did not seek to have any charge brought at that time. The investigation was discontinued in April 2019.
[1] Note: the evidence in the trial established that the election had been foreshadowed but not yet called as at that date.
In early 2021, the complainant gave interviews about the alleged assault to a number of journalists. So far as the evidence reveals, the first appears to have been a meeting on 2 January 2021 with Samantha Maiden, described in the evidence as “a well-known journalist at news.com.au”. On 2 February 2021, the complainant gave an interview to Lisa Wilkinson, a well-known television journalist. At around the same time, on 4 February 2021, the complainant approached police seeking to have the criminal investigation reinstated.
The interviews with Ms Maiden and Ms Wilkinson resulted in the publication of two newspaper articles and a broadcast of the interview with Ms Wilkinson on Channel 10 on “the Project”, all on 15 February 2021. The uncontested evidence is that those publications sparked enormous media and public interest in the complainant’s allegation. Throughout February and March 2021, it was widely published that she alleged she had been raped in Parliament House. Much of the focus of the press at that time was on the manner in which her complaint had been handled (or mis-handled) when first made and the treatment of sexual assault cases more broadly. The discussion generally proceeded on the premise that the complaint was true. For example, the complainant was publicly commended for her courage and recognised as a “survivor” of sexual abuse by the eloquent Grace Tame, then and still a popular activist for victims of sexual assault. At around the same time, an unrelated allegation of historical sexual assault alleged to have been committed by the former Attorney General, Christian Porter, also became public. The reporting of both allegations produced a groundswell of outrage which precipitated a series of planned events on 15 March 2021 under the banner “Women’s March 4 Justice” protesting against the perceived lack of response by the Commonwealth government to the two allegations.
The complainant spoke at a protest rally in Canberra that day. No footage of that speech was tendered but its full text was reproduced by the ABC in an article included in Mr Korn’s affidavit. The speech included strident criticism of the treatment of “sexual violence experienced by women in Australia”, unashamedly invoking her own complaint as the truth and indeed criticising those who treated it as a mere allegation:
“I watched as people hid behind throwaway phrases like ‘due process’ and ‘presumption of innocence’, while failing to acknowledge how the justice system is notoriously stacked against victims of sexual crimes.”
The uncontested evidence is that, at the conclusion of the speech, members of the crowd yelled “we believe you” and “we believe Brittany”. Fortunately, however, so far as the evidence before me reveals, the accused had not been publicly identified in connection with the complainant’s allegation at that time.
Within that same initial period, allegations were published to the effect that the man who had sexually assaulted the complainant was also accused of having sexually assaulted or harassed a number of other women.
On 22 March 2021, an episode of Four Corners featured a panel discussion of the complainant’s allegations. Only a transcript of the broadcast was included in the evidence before me. It records that the programme opened with remarks attributed to the complainant (possibly in the form of footage of an earlier statement) saying “I was raped inside parliament house by a colleague. And for so long, it felt like the people around me only cared because of where it happened and what it might mean for them”.
The accused was charged some six months later, on 5 August 2021, and from that point was commonly named as the man alleged to have raped the complainant. The affidavit of the accused’s solicitor asserts, and it is not contested by the Crown, that the fact of the charge and the accused’s first appearance in the ACT Magistrates Court received wide media coverage.
The complainant continued to speak publicly about the matter after August 2021, notwithstanding the fact that the accused had by then been charged and appeared in Court. In an article published in the Australian Women's Weekly magazine on 2 December 2021, she is quoted as having discussed the circumstances that led to her decision to go public with her complaint. She spoke of “the power of disclosure” and described her story as “a story of the power of connection” and “a story of triumph and women coming together”. While that article was more careful to refer to the complaint as an allegation, the article plainly insinuates that the allegation is true.
The public airing of the complainant’s allegation in early 2021 resulted in the commission of an independent review into the workplace culture within parliamentary offices. According to the media reports in evidence on the present application, the first recommendation in the report presented to the government as a result of that review was that political leaders should apologise to all those who have experienced sexual harassment, sexual assault or bullying while working in federal parliament. Presumably in response to that recommendation, on 8 February 2022, the Prime Minister Scott Morrison apologised in open parliament to victims of such conduct in general and the complainant (who was present in the public gallery) in particular. The whole of the relevant extract from Hansard was included in the evidence relied upon in support of the present application. The Prime Minister's apology included the following:
“We've understood in this place the power of an apology to bring healing and to bring change, and I am proud that this is a chamber in which we have done this on so many occasions. I believe Australia is somewhat unique in this regard. We don't shy, nor have we sought to silence the valid and just complaints of people, because there is fear about electoral consequences. I am sorry. We are sorry. I say sorry to Ms Higgins for the terrible things that took place here. The place that should have been a place of safety and contribution turned out to be a nightmare. But I am sorry for far more than that. I'm sorry for all those who came before Ms Higgins and endured the same. But she had the courage to stand, and so here we are.
So we are sorry for all these things, and, in saying so, each of us take (sic) responsibility for changing these things. To those who have perpetrated such bullying, abuse and violence: the light will come to those behaviours, as it must. But it will follow and respect the rule of law in this country. It will proceed on the basis of fairness and justice, in accordance with the rules that are in place in our country, and it will be done in the proper way, which I'm sure all in this place would agree with. Justice should come, and it should always be delivered under the rule of law.”
Unsurprisingly, the apology was widely reported.
Finally, following the Prime Minister's apology, on 7 March 2022, the complainant joined a number of other prominent Australian women in launching a women's rights campaign called “Safety. Respect. Equity.” Grace Tame and the complainant addressed the National Press Club in what were described in an article included in the evidence as “incredibly powerful speeches”. The complainant's speech (as reported in the media) began “I was raped on a couch in what I thought was the safest and most secure building in Australia.”
Senior Counsel for the accused emphasised that the material summarised above was brought forward by way of example only. He submitted that the sheer volume of publicity concerning the complainant’s allegations in the present matter makes it impossible to provide a complete catalogue of potentially prejudicial material.
Principles to be applied
The principles to be applied are uncontentious and may be stated concisely. The Court undoubtedly has power to stay criminal proceedings, permanently or otherwise, on the basis that pre-trial publicity has irreparably or temporarily prejudiced an accused person’s right to a fair trial: R v Glennon [1992] HCA 16; 173 CLR 592. That is an aspect of the inherent power of a superior court to protect its processes against abuse. In this jurisdiction, s 20 of the Supreme Court Act is an additional source of that power, which also finds articulation in rules 4750 and 4752 of the Court Procedures Rules2006 (ACT).
The exercise of the power to stay criminal proceedings on indictment should begin with the recognition that there is a strong public interest in prosecuting allegations of serious criminal offending. That includes recognition of the capacity of the court to take measures to ameliorate any prejudice arising from pretrial publicity. It also includes recognition of the legal presumption that jurors attend to the directions given to them by the trial judge.
It is only in rare or exceptional cases that a permanent stay of criminal proceedings will be granted. It has been described by the High Court as “an extraordinary step which will very rarely be justified”, principally because of the “powerful social imperative for those who are charged with criminal offences to be brought to trial”: Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; 266 CLR 325 at [106] (Kiefel CJ, Bell and Nettle JJ).
The decision of the High Court in Glennon at 605-606 remains authoritative on the issue of prejudice alleged to have arisen from pretrial publicity: Dupas v The Queen [2010] HCA 20; 241 CLR 237 at [18]; Eastman v Director of Public Prosecutions(No 13) [2016] ACTCA 65 at [35]. In Glennon, the Court said:
“[A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences". And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.”
Three relevant considerations in determining whether a permanent stay is the required means of addressing prejudice caused by pretrial publicity are the intensity of the publicity, its proximity to the date of trial and its nature: R v MacDonald (No 8) [2019] NSWSC 1915 at [5].
Nature of the prejudice in the present case
It may be accepted, as submitted by the accused, that the present case is unique or at least unusual. Prejudice arising from pre-trial publicity is ordinarily the result of the publication of information adverse to the accused, such as prior criminal convictions or a history of discreditable conduct. For example, in Glennon the High Court of Australia overturned the decision of the Victorian Court of Criminal Appeal to quash a conviction following an unsuccessful permanent stay application being made to the trial judge, holding that despite the extensive media coverage of the applicant’s prior sexual offence conviction and other allegations of serious misconduct a permanent stay of proceedings would only be granted in extreme cases. Similarly, in Dupas, a permanent stay was refused where the significant publicity pertaining to the accused’s prior convictions of similar offences was unavoidable in the trial because several witnesses had identified the applicant by reference to knowledge obtained through media reports. In Hughes v The Queen [2015] NSWCCA 330, the New South Wales Court of Criminal Appeal upheld a decision to refuse a permanent stay despite significant pre-trial media coverage and the public airing of the complainant’s allegations in that specific case. In R v Mokbel [2009] VSC 342, a permanent stay was refused in circumstances where the applicant, being charged with murder of a high-profile Melbourne underworld figure, was subject of intense pre-trial media reporting, including allegations of uncharged acts. In Dawson v R [2021] NSWCCA 117, a permanent stay was refused where the applicant’s charges were the subject of a long-form, 16-episode investigative podcast series concerning the events subject of the trial and making commentary on the accused’s guilt.
The prejudice in the present case is of a different kind. The accused submitted that the vice of the pretrial publicity here is its “enhancement” of the complainant. He submitted that this is a case of “accuser v accused” in which the accuser (the complainant) has set out to discuss her accusation with the support and assistance of the media and the backing of famous people including the Prime Minister. It was submitted that the Prime Minister’s apology was particularly egregious as it imputed the accused with guilt of the offence or at least implicitly assumed the truthfulness of the complaint. The accused submitted that the effect has been to elevate the complainant to a status she should not have for the purpose of the accused’s trial. He submitted that the case is unique because the complainant “walks into Court with an aura about her” and that the problem this creates is incurable.
As noted at the outset of this judgment, the accused identified two aspects of the prejudice alleged to arise as a result of that phenomenon: the impossibility of empanelling an impartial jury and the impossibility of ameliorating against the prejudice by any directions to the jury.
The first concern may be disposed of briefly. The submission was based on assumption that, in order to address any prejudice occasioned by the pretrial publicity, the Court must necessarily inquire of the members of the panel prior to empanelment whether any of them was aware of that publicity with a view to excusing those persons, as occurred in Glennon.
Upon analysis, it may be seen that the submission proceeds on an incorrect assumption as to the basis on which potential jurors might properly be excused and the process by which that occurs according to the common law of Australia. The mere fact that a member of the panel is aware of the pre-trial publicity is not of itself problematic. The critical concern is for the trial judge to take steps to ensure that each potential juror feels capable of giving impartial consideration to the case. That is a requirement as to which, of necessity, the Court relies on the members of the panel to come forward in response to remarks made by the judge to the whole panel before empanelment. Examples may be brought to mind of trials in which most if not all members of the panel summoned for the purpose of selecting a jury were likely to have had some awareness of the notoriety of the case, such as the trial of Cardinal Pell and the trial of Robert Hughes of “Hey, Dad!” fame. I do not accept that it would be necessary in the trial of the accused to exclude from the jury panel every person who has read material of the kind relied upon in support of the present application, or to call upon members of the panel to come forward on that basis.
The critical question is whether any prejudice flowing from the pretrial publicity can adequately be addressed by directions by the trial judge. More accurately, applying the test in the terms approved in Dupas, which remains authoritative, a permanent stay should not be granted unless it can be concluded that nothing the trial judge can do can ameliorate the prejudice.
I am not satisfied that this is such a case. As submitted by the Director of Public Prosecutions, it is important to analyse the timing of the impugned publications. Much of the publicity surrounding the complainant’s allegation came at a time before the accused had been charged or even named. There was a further spate of discussion at the time the accused was charged and again at the time of the Prime Minister’s apology. The most damaging material, in my view, is the material disclosing that other women had come forward with similar complaints after hearing the complainant’s allegations. Those articles were published at an early point, well before the accused was charged and named. There were not many articles reporting that information. To the extent that such material has been identified in the evidence, it has been voluntarily removed by the relevant media entities. Since the time the accused was charged, by far the most intense aspect of the publicity has been the discussion and criticism of the way in which the complaint was treated within Parliament House. The most damaging aspect of that discussion is the implicit acceptance of the complainant’s truthfulness. Allied with that is criticism, implicit at least, of any person who questions her account.
It is unfortunate that the complainant’s credibility has been the subject of public comment. As noted by the Director, the commentary has not been all one way. Outside the supportive forum of the Women’s March 4 Justice movement, she has been branded as a “liar” and “a silly little girl who got drunk”. But in any event, accepting that by far the most part of the publicity assumes the complainant’s truthfulness, I am not persuaded that the matter is beyond rescue, certainly not to the extent required to be established in order to obtain a stay.
It is accepted that the distinction between an allegation and an imputation of guilt is able to be understood by the ordinary reasonable reader: Mirror Newspapers v Harrison [1982] HCA 50; (1982) 149 CLR 293 at [16]. In my assessment, the need to disregard prior awareness of a suggestion or imputation of truthfulness on the part of the complainant is something that could readily be explained to the jury by careful direction. Further, in my assessment, a juror would more readily be able to disregard an out-of-court assessment of a complainant’s credibility, or indeed her own assertions of truthfulness, than the kind of prejudicial information considered in Glennan, Dupas, Mokbel and Dawson.
For those reasons, I am not persuaded that the stringent test for a permanent stay is met in this case. The alternative application for a temporary stay was not the subject of any separate submission. The case for a temporary stay is not compelling. As explained by the Director in his submissions, the most damaging material was published at an early stage of the investigation and well before the accused had been named or charged. I am not persuaded that a temporary stay is necessary.
Take-down order and restraint of the media at large
The accused’s submissions did not address orders 3 and 4 other than in passing; the primary relief sought was a stay. This aspect of the application can be addressed with the same brevity.
As already noted, the application did not name any media entity as a respondent. The relief sought rested primarily on the fact that the accused’s solicitor sought certain undertakings from the relevant publishers (ten in all) and those undertakings were not forthcoming. The media entities in question nonetheless sought to be heard at the hearing of the application and were represented by Counsel, Mr Sibtain. As noted in Mr Sibtain’s written submissions, the standing of the media to be heard on such an application is well-established.
By reference to the affidavit of Mr Warwick Korn relied upon in support of the application, it is apparent that order 3 relates to 14 articles. Some are no longer available on the internet but the application can be determined without drawing that distinction.
As noted by Mr Sibtain, there is no express statutory power to make a take-down order. It is convenient to assume for present purposes that power to make such an order falls within the inherent power of this Court, as a superior court of record, to make such orders as are necessary to preserve the accused’s right to a fair trial. On that assumption, it must be accepted that the Court would not make a take-down order unless it were necessary for that purpose.
In Fairfax Digital Australia and New Zealand v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125, the New South Wales Court of Criminal Appeal held that an order will fail the test of necessity if it is futile or ineffective: at [76] and [78] per Basten JA, Bathurst CJ and Whealy JA agreeing at [1] and [106]. The orders sought in the present case would fail the test of necessity at both hurdles. Even if the relief sought were granted, it would not result in the cleansing of the internet of all material concerning the complainant’s allegations, as the accused himself accepts.
Contrary to a submission put by Senior Counsel for the accused, it does not follow that the Court is condoning a media “free for all”. The question is one of the appropriate method of regulation. This country has robust contempt laws of which the media may be taken to be aware. To seek instead to regulate media discussion of criminal proceedings by the inexact tool of suppression and non-publication orders is a pious hope, particularly since the advent of the internet and social media.
Further, for the reasons already stated, I am not persuaded that the material which the evidence establishes remains on the internet is of a kind that cannot be addressed by appropriate direction to the jury.
As to the application for an injunction at large, there are more significant hurdles. The order sought is in the nature of a quia timet injunction. But there is no evidence of a threat to publish material that should properly be restrained. The refusal of the media entities represented in Court to give an undertaking as sought does not of itself establish the existence of a threat.
Secondly, the order sought would be impossible to enforce. It is not clear even to me to whom it is directed.
Thirdly, for the reasons explained by Basten JA in Ibrahim at [72]-[74], the order sought is bad in form (being directed to unidentified parties and concerning unidentified material), too broad in reach (potentially binding innocent disseminators as well as original publishers) and too broad in scope (preventing publication of information to persons in other parts of Australia and indeed the world who are not potential jurors in the ACT).
Orders
I make the following orders:
(1) The accused’s application for a permanent or temporary stay of the criminal proceedings against him is dismissed.
(2) The accused’s application directed to the media for a take-down order and injunction to restrain the publication of the matter specified in the evidence is dismissed.
(3) Pursuant to s 111(2) of the Evidence (Miscellaneous Provisions) Act, the publication of the following material is prohibited until further order:
a. this judgment apart from paragraphs [1] to [6], [35] to [44], and these orders;
b. the evidence and submissions relied upon in support of the applications.
(4) Note that the term “publish” in order 3 is that defined in s 81J of the Evidence (Miscellaneous Provisions) Act.
(5) Note that copies of the entire judgment may be provided to journalists in physical attendance in the courtroom on their undertaking to only take a paper copy and not share it with anyone subject to the non-publication orders.
(6) Extend order 3 to the publication of the evidence and submissions relied upon in support of the application made today.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 26 October 2022 |
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