Some comments about the case involving Bruce Lehrmann and Channel 10
On its importance as a public event
It has been interesting over the last few days to see how people have responded to the ruling in the case involving Bruce Lehrmann and Channel Ten. It is one of those moments where it is worth reflecting on what went right.
The relief felt that Lehrmann had been found guilty of rape was no doubt heightened by the fact that such verdicts are rare. As well, Justice Michael Lee’s summation was exhaustive and gave voice to arguments generally ignored. Nonetheless, the verdict needs to be contextualised against the backdrop of a system that routinely traumatises women after the trauma of the initial crime.
As Saxon Mullins, Director of Advocacy at Rape and Sexual Assault Research and Advocacy (RASARA), explained in this excellent piece, relief at the verdict is tempered “[because] while some people had countdowns and shared public excitement about watching the proceedings, there are those of us that know better. Those who remember there is a real person who was put on trial, whose whole life was laid out for us to dissect and judge.”1
With this enormous caveat in mind, then—that any good that has come from Monday’s verdict has been won at huge personal cost to a given individual and to women in general—I think there is some value in recognising the importance of the open manner in which the trial was conducted.
Readers here know about my near obsession with the idea that policy should be subject not just to the views of the political class—the politicians, the media, and various experts and vested interests—but to the whole of the public mind, in forums designed to include ordinary voters in the deliberative process. Citizens assemblies and the like.2
If we really want to counter mis/disinformation in the public sphere, the way we do that is by involving—institutionally and formally—as many of us as possible in the ratiocination needed to fully understand what is at stake in a given policy debate.
It isn’t enough to try and enforce standards of honesty, objectivity, balance and impartiality on legacy media and social media platforms. Such regulation may have a role, no matter how fraught those concepts are, but such enforcement is an endless game of trying to rein in the algorithmic pursuit of commercial advantage that dominates the media sphere, and regulation is unlikely to ever contain, let alone eliminate, the problems.
Relying on the media, then, isn’t enough. The educative process that denies misinformation purchase must be participative.3
The livestreaming of Lehrmann v Network Ten Pty Limited [2024] FCA 369 doesn’t precisely fulfil these criteria but in allowing proceedings, including the verdict, to be livestreamed, the judge provided all of us an insight into a process normally invisible. In so doing, he furnished many with a strong sense of justice being seen to be served. As writer and critic Kerryn Goldsworthy said on social media:
I was startled yesterday afternoon, after watching the whole thing, to register that I was feeling quite emotional in the wake of Justice Lee’s verdict. That was the first time I have ever heard a man articulate, in such a searching and accurate way, his understanding of what it’s like to be a very young woman in an escalating situation…
The livestreaming enabled us to see the strengths and weaknesses of the legal system under which we all live, but it also provided us with an alternative and comprehensive view of the case, one that isn’t normally available. In other words, we were able to watch the case ourselves, have access to the primary material, and not just rely on what the media told us had happened.
Because, God help us, the reporting of this case has been yet another instance of the mainstream media being a less-than-reliable intermediatory.
As journalist Julia Baird argued, “now might be a good time to reflect on how devotedly and brutally mastheads and prominent commentators seek to undermine, discredit and destroy women who allege sexual assault, or report on it.”
We have watched them monster Higgins with an almost maniacal obsession, day after day, for years, despite public knowledge of her fragile mental health — and her then untested claims. It's not just individual commentators: entire media networks exploited and failed her, entire newspaper groups seemed devoted to derailing her, and we were too often complicit, clicking on stories, taking sides, digging in.4
Judge Lee’s decision to make the case public hasn’t stopped the media running partial and inflected versions of the story, but his carefully argued judgement was even more compelling because we were able to see, in real time, the information on which he was relying for his verdict and not just be stuck with a mediated version of events.
Sure, not everyone has the time and resources to spend hours watching a trial like this, but we shouldn’t let the perfect be the enemy of the good. Many thousands did watch—around 40K alone watched the verdict livestream—and the social IQ on the matter can be said to have been raised substantially.5
My contention here, remember, is that making such processes public—and ideally, including the public in those processes—is a standard democracies should pursue at every turn. But that doesn’t mean I am blind to what can go wrong. Going public with formal proceedings isn’t always a clear-cut positive.
Seeing the sausage being made can be a horrifying experience, as Dan Andrews’ daily press conferences during Covid made clear. But even then, it was enlightening to see the way in which journalists went about their job and how the incentives they work under are not always conducive to properly informing the public. We got to see how they are sometimes swayed by unexamined biases and unadmitted enmities. Seeing the sausage made, seeing this stage of the journalistic process, bears out Justice Lee’s comments in the Lehrmann/Channel Ten case, quoting Leggat J that
…the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on the witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
The best approach for a consumer of news might be to take seriously what is revealed on those rare occasions when we see the sausage being made. The finished sausage can hide as much as it reveals; in fact, it is often designed to do just that.
Question Time (QT) is another example that gives us pause about the efficacy of “going public”. Paul Keating resisted the televising of QT, partly because of fears about his own behaviour.6 But I think we can say that QT is less an example of the risks involved in seeing the sausage being made than it is of the sausage being shaped into balloon animals by a bunch of clowns trying to distract us and who have lost touch with what their role should actually be in such a setting.7
Senator Nick McKim’s grilling of the CEO of Woolworths this week in a Committee hearing has similarly been cast by some as an example of what can go wrong with such publicity, a politician haranguing a witness over an irrelevant point to play to the camera, but I think that’s nonsense. Sure, you can have an argument about the relevance of McKim’s line of questioning, but his basic demand that Brad Banducci answer the question was completely fair.8
This raises a key point, and it goes the heart of the success of Lee’s experiment with livestreaming. You can’t just open up such forums without putting guardrails in place, and Lee was very careful to do that, restricting comments on YouTube, blocking people from recording or copying and distributing proceedings, and regularly warning that people needed to be careful how they relayed information about the case on social media. If we are to institutionalise citizens’ assemblies, we need to remember the importance of creating workable frameworks for them. And, contrary to much discussion, this is less about guarding against incivility than about equalising the power imbalance that will inevitably exist when lay people9 deliberate with experts and other members of the political class.
Still, even with the guardrails in place, you necessarily rely on the basic decency and maturity of the key players, and in this Lee and his associates were exemplary. Mileage obviously varies in other instances.
Where does all this leave us?
Justice Lee’s decision to open the trial and the judgement to public scrutiny hasn’t solved the underlying problems with the ways in which our society deals with accusations of rape, though I think it has made clearer to many of us how flawed the system is. You can’t help but come away from the trial—to the extent that it dealt with the accusation of rape—without thinking that this sort of adversarial approach is inappropriate and dangerous.
Such recognition is a huge positive.
Justice Lee mentioned a few times the notion that it is better for a guilty person to go free than for an innocent person to be locked up, but rape brings this taken-for-granted truism into question. As Jane Gilmore asks in this discussion of how we prosecute rape cases, “What happens though when ten guilty rapists go free? What happens when communities see ten rape victims disempowered, disbelieved and demoralised, while the rapist is the only one with any power? What if there is no resolution to this question in the legal system?”
“Perhaps,” she says, “with all the protections necessarily given to the accused, the criminal justice system is simply not fit for purpose in this particular crime.”10
The livestreaming of this case will help inform such debates.
Justice Lee said in his opening remarks on Monday:
…I have attempted to ensure as transparent a process as possible, conscious that a trial conducted in public, accessible to the public, and only upon evidence and submissions made fully available to the public, was the best security for confidence of the fair-minded in the impartiality and efficiency of the justice system.
But the significance of his action goes much further than that. By making the Lehrmann/Channel Ten case available for livestreaming, Lee leant into a form of democratic practice that favours public involvement in such matters, giving people access to the primary material.11 Such a proof of concept is valuable thing.
Power has a tendency to hide in the shadows, and while it is glib to say sunlight is the best disinfectant—exposure doesn’t always equal remedy—making complex processes transparent strengthens our democracy and helps combat the bane of spin and disinformation that dominates the mediated spaces we otherwise inhabit.
We don’t know what we don’t know.
Also worth reading this piece by Saxon Mullins and Dr Rachael Burgin, Senior Lecturer in Criminal Justice at Swinburne University of Technology. It sets out the ways in which Justice Lee addressed various “rape myths” in coming to his conclusions.
In looking at the case in this way, I know I risk being the hammer that sees everything as a nail, but I will plough on.
As it happens, the legal sphere is the model for the sort of public participation I am talking about as court cases are the one place where we openly encourage the involvement of ordinary people in the deliberation process. Juries are an essential part of our legal system, speaking to a recognition of the need to subject findings to peer review, not just expert argument, and the idea of citizens assemblies—citizen juries as they are often called—are an offshoot of this well-established model.
Her comparison of the media’s treatment of Higgins as against that afforded Ben Roberts-Smith is telling.
I would argue that the range and quality of views of the case published since the livestreaming of the trail is much higher than it was before.
“As former Senator Bruce Childs has said, Labor was very concerned about Paul Keating's verbal pyrotechnics being broadcast into people's lounge rooms….As an example of the kind of damage that was avoided, we could take the incident when Wilson Tuckey provoked Keating into outrageous pyrotechnics in February 1986, when, during a heated debate in the old house, he accused Keating of breaking a promise. It was a breach of promise case, and Keating's jilted fiancé was a woman called Christine. Keating became so incensed that he said, among other things, `You stupid foul-mouthed grub. You piece of criminal garbage.' The uproar that followed received considerable coverage in the media. In those days, television could only show a still picture of Keating and play the audio of what he was saying. Even this was enough for questions to be raised about Keating's ability to hold high office in a robust democracy. Consequently Keating was desperate, and based on personal conversations with him at the time, I would say anxious, to keep television away when parliament moved up the hill.”
From, “Reporting the Senate: Three Perspectives”, Paul Bongiorno, Michelle Grattan, Melissa Langerman
Writer Patrick Allington suggested in The Griffith Review that the negative aspects of QT far outweigh the benefits, which I’m not sure I agree with:
I don’t suggest that that the abolition of Question Time would flush away all incivility…But I do argue that Question Time is one key cause – not merely a symptom – of our fractured national conversation, including our heightened inability or unwillingness to demand, from ourselves and others, productive, meaningful, respectful disagreement. Question Time gives us all the comfort of false rigour. And I argue that this false rigour echoes through the parliament and through the nation.
I had to laugh at Jim Chalmers’ comment about this: ‘Jim Chalmers blasted Senator McKim for putting on a show for the cameras, adding that the Senate “hasn’t jailed anyone before, and I don’t think they’re about to. The difference between the way the Greens go about this and the way that the Labor government goes about this is (Senator McKim) does what he does for the cameras, and we do what we do for the consumers,” he told ABC Radio.
Yes, thank heavens Labor would never play to the camera.
Equalise power relationships and civility will tend to take care of itself, a discussion for another day.
Gilmore continues: “Restorative justice alternatives are an obvious solution. We might learn something from the wisdom and leadership First Nations peoples have taken in this space.
“This form of justice is not enacted with adversarial hearings and state punishments. It is a managed forum for healing, where someone who has been wronged can face the wrongdoer, explain the impact of the wrong that was done, and ask for recognition, acknowledgement and apology. Done properly, restorative justice is victim-centred and trauma-informed, and the outcome is meant to be educative for the perpetrator rather than punitive. There are no grave consequences he must face, other than understanding and taking ownership of what his action and choices did to another person.
“There are risks involved in this approach—pressure on victims to take this route rather than a legal one, punitive or victim-blaming attitudes creeping in and causing more harm, mishandling leading to escalation of injuries rather than change. All these things are significant risks. But these things are happening now, too often and too much.”
(And yes, I am aware that the case under discussion was a civil matter not a criminal trial. Gilmore’s discussion holds given that this civil case turned on a finding of rape.)
I would add that for all the praise being heaped on Lee’s ruling, it is a complex document and interpretation is unlikely to remain stable. Already people are loading up on the parts that fit nicely into the barrows they want to push, but as their focus shifts, some of the smiles we are seeing might invert. The sections delineating Higgins’s initial allegations and the evidence that she gave from what the Judge characterises as her shift to a narrative in which the “cover-up component was promoted and recognised as the most important part” is likely to cause increasing angst. I suspect some of what he says about this will ultimately be read as a failure to fully apprehend the choices someone in Higgins’ position faced.
Tim: I've just subscribed after reading your posts for about a year. You write with intelligence, with compassion and given my time back in Australia (after years abroad - and in Japan) - and having lived through Rudd Gillard Rudd - then Abbott, Turnbull and Morrison - on into the current ALP government - I think I have developed a pretty fair idea of what is going on in the politics of Australia - and I am not at all happy. Your analysis of Justice Michael Lee's judgement on the Lehrmann case accords with how I wish our system of justice worked. Not hidden, with heart - and with a clear understanding of human nature and how it works. I have over many years been an admirer of the Code Napoléon system of justice - the desire to arrive at the truth (shown in the recent award-winning film The Fall - which I saw last year in Salt Lake City) not the ugly adversarial system we have inherited via our British establishment. I see it being demonstrated in a recent series on ABC TV - Murder in Provence (set in and around Aix-en-Provence). No demeaning of witnesses - no Answer - Yes or No - when we all understand shades of grey. These are asides. At last a judge who seems to understand human nature! Thank-you Tim.
Your note # 11 is spot on I reckon. My initial reaction was that Reynolds would withdraw her case after Justice Lee's judgement, but those subtle points he raises and you note actually energise Reynolds' claims. Or perhaps there is a legal staffer who can show otherwise. I do sincerely hope so.
On point Kerryn Goldsworthy, a total agree - never in my life have I heard a man articulate so incredibly well - more than once - the fluid & dynamic state of a woman who has been assaulted - or even just felt assault was imminent. And actually giving those states validity. To me, this was the most astonishing - and encouraging thing I heard from Justice Lee.