Justice Michael Lee of the Federal Court is threatening that fire and brimstone will rain down on social media users who have made legally contemptuous comments on the defamation litigation between Bruce Lehrmann and Channel 10, and its journalist Lisa Wilkinson.
This would include a good many comments made about the character or veracity of many of the principal witnesses, or their counsel, or about the judge himself. It would also, he has made it clear, embrace threats made to witnesses, or comments inviting retribution on witnesses for giving evidence that the person making comments does not believe.
Justice Lee is a robust character and is acting both as judge of law and jury of fact in the proceedings. If he were working with a jury, I expect he also would pursue any social (or even "old" media) writers urging a particular verdict or view of the evidence on jurors - a perennial worry of judges conducting ordinary criminal trials in the supreme courts.
One, if only one of the purposes of the law of contempt is to protect people such as jurors, and perhaps baying mobs of would-be lynchers, from being swayed by demagogues or the media into forming opinions about cases without the inconvenience of hearing the evidence. We want jurors to make findings on the evidence presented in court, not on what they have read on Facebook or Twitter, or in the mainstream press. Nor are they supposed to be incited by other than their own prejudices, or those urged upon them by advocates or judges.
This concern for mob opinions is a good thing. But judges think themselves personally unable to be swayed by outside comment. After all, they are trained and professional factfinders, well able to sort out probative evidence from inadmissible evidence. Likewise, they think themselves well able to put aside their personal preferences, opinions or biases, and to apply the law to the facts in a detached and fair-minded way. If it were otherwise, some jurists have commented, they would not be fit to be judges.
I for one agree generally with the law of contempt, and I would rather that it be strictly applied than that we have trial by media, trial by the press conferences of the parties, or even worse, the modern feature by which rich corporations and powerful clients hire public relations folk to "spin", put in context or "explain" what has been said in court.
Likewise, I am not very much in favour of police media conferences at which they outline in detail, often with flow-charts and diagrams, all the sins of people not yet charged before the courts. The purpose or effect is not to satisfy legitimate public curiosity about the broad facts (a function that can be satisfied once the party has been brought before the courts) but to do a maximum of reputational damage to the accused while they can.
From the moment of a charge being laid, they can't do this. It is known for police hierarchies, and police media and marketing folk to tick tack with the press to ensure that no charges are formally laid until the well has been well and truly poisoned.
I am not much worried about the susceptibilities of Michael Lee to the honeyed bile of some anonymous Twitterer. The law of contempt evolved before the internet, or social media. Much of the evil it was designed to prevent once occurred in mainstream newspapers, television and radio, nearly always owned by established publishers, likely to be deterred by heavy fines.
Such media, moreover, had an ascertainable reach. Sometimes editors ignored court orders from a faraway jurisdiction, arguing they had no relevant circulation there, and that the writ of say, the WA Supreme Court, did not operate in the ACT. I have done it myself with some name suppressions in places such as Western Australia or Queensland, first believing that there was no proper legal justification for the order, as far as it purported to bind me, nor any actual danger of influencing a fair trial.
One of the reasons for such journalistic cynicism was the strong belief that insiders (in law, politics, the professions and public affairs) would quickly learn the identity of those rich and influential enough to get their names suppressed. Many people for example knew that the "high profile man" whom we could not name who had been charged with rape in Toowoomba was Bruce Lehrmann, long before the suppression order was lifted. Only the public was in the dark.
I cannot remember ever a poor man, or an Aboriginal, getting a suppression order if it depended on the discretion of a judge or magistrate, but I have seen any number of lawyers, doctors, senior cops, and air vice marshals and others get them quite easily. This regular and obviously unequal treatment is one of the many practical matters that brings administrators of the law into another form of public contempt altogether.
The Lehrmann defamation case was already significant before ordinary members of the public began giving regular spiteful commentaries. This was because it was televised - by itself a fascinating process often attracting up to 25,000 viewers - and rarely below 16,000. The professional way Justice Lee and court staff managed the broadcast - including suspending it during some sensitive testimony - was almost a complete answer to conservative judges hesitant to allow such developments.
The problem of the modern trial, when not broadcast, or when only a judgement is broadcast, is that it attracts very few ordinary members of the public: the people for whom we have a system of "open justice". The odd sensational case might attract a few score before a court's capacity is exhausted. Most cases, including criminal trials, have fewer than 20 spectators, half of whom are interested parties such as cops or family of the accused. In the exceptional case where courtroom space cannot satisfy demand for seats, a judge may allow broadcast into a second larger room.
The public's knowledge of what happens in court usually depends on the reporting of professional journalists, who can only cover a small proportion of cases. As judges complain, media coverage is often sparing of a judge's reasons for a sentence, meaning that outside criticism, usually by interested parties, cannot be balanced against the relevant facts or law.
The Lehrmann case suggests that there is an enormous public appetite for interesting cases.
Many Australians, like even many more Americans, have watched matters tried in the United States, where selected trials have been broadcast for years. Think the OJ Simpson case. But American trial practice, including the partiality and improper appeals to emotion and prejudice of prosecutors, as well as the daily press conferences at which people try to spin the evidence, make comparisons difficult. American criminal law is well behind the Australian system and often produces manifestly unjust results.
The advent of the internet and Google has also made some old rules virtually unenforceable. It was only by chance that a sheriff's officer discovered that a juror in the Lehrmann rape trial had googled and printed off material about the supposed frequency of false complaints of rape - something the trial judge had explicitly and repeatedly forbidden. But such orders cannot be policed except by total seclusion of juries, virtually impossible when many have children or parents to manage.
Jurors are also discovered visiting crime scenes or checking the internet for old media reports. Sometimes, the "offending" and perhaps "defiant" jurors may be the most conscientious ones, those most determined to be "fair" in the sense of wanting what they think to be the right result.
They are flattered by counsel urging them to use their common sense and knowledge of the world to assess a witness's veracity. Even if they are told not to consult Google they are entitled to know, as many in a well-educated jurisdiction such as Canberra would know (if mostly from watching TV) that identification evidence is notoriously unreliable, that it is not uncommon for police witnesses to confabulate and "settle" a common account of what occurred, and that a good many expert witnesses will say whatever is in the interests of the party paying them. These matters, always true but taken for granted these days, run against the prevailing judicial and magisterial opinion of 50 years ago. In Canberra almost as much as in Rumpole's Old Bailey, a judge would call for smelling salts if it were suggested that a policeman could or would lie. Or gild the lily. Or cut a corner.
Will the determination of Michael Lee to pull up the drawbridge slow the rate of deliberate contempt of court? I fear not. He can't punish them because they are not contempts in the face of the court. He can only pass on the names to the proper authority, usually the DPP.
But most contempts of court go unpunished. DPPs do not have investigative powers, and their right to command investigations, whether by the police or others is limited. Maybe cops aren't much interested in taking on any such referrals. Occasionally, in a civil case, there is a party with an interest in pushing forward with a prosecution, but that is generally for disobedience of a court order, rather than the slandering of witnesses or promoting a particular view of the case.
No doubt there are people on both sides of the Lehrmann defamation case who have been defamed, slurred or accused by people on social media. But the worst offenders will be anonymous, or not conspicuously rich. Generally, anyway, damages go to the court, not the injured party. That's because the true injured party is the system of administration of justice.
Given the general bruising the office of the ACT DPP received (in my view wrongly and unfairly) during the inquiry into the aborted criminal trial of Lehrmann, there might be an additional reluctance to proceed.
There's another reason - one that cries out for new procedures and new people in charge of cases. However bad any contempts noticed by Justice Lee were, they pale in significance or damage to the fabric of justice compared with a flagrant and blatant contempt in the aftermath of the criminal proceedings. It would be a travesty of the judicial system if relatively minor contempts were prosecuted and punished amid indifference and inaction on far more serious ones.
MORE WATERFORD:
During the Lehrmann case, police handed to Lehrmann's solicitors thousands of pages of texts and emails between the alleged victim and others, from nearly a year before the alleged rape to after it. Some of this material was used during the trial in efforts to discredit, or find inconsistencies in the evidence, of the alleged victim. Putting phone records under subpoena, often for extensive periods has become a new weapon in the armoury of rape defendants, and yet another way of discouraging victims from coming forward.
Any party to litigation can subpoena records of the other side. But the material produced only becomes "evidence" if it is tendered in court. Unused material must not be used for any other purpose. It is a contempt of court to publish it, or to use it for some secondary purpose.
Somebody passed on the unused phone records to Janet Albrechtsen, of the Australian. She has regularly published material designed to discredit the character of Lehrmann's accuser. It is impossible that she could have obtained the material properly.
The person from whom she obtained it was committing a criminal contempt of court in passing it over. Arguably, she was committing a contempt by accepting and using it, because she is a solicitor who knows well the rules about discovery in litigation. Her obtaining and using them was no more a great scoop than her obtaining and publishing an advance copy of the inquiry report.
These were spoon-fed to her by people who wanted her to use them just as she did. True, she used them, but they used her.
I do not know if the inquiry team ever obtained copies of the telephone records. It is highly unlikely that the source of the information was the same as the source of the leaked report. Walter Sofronoff, the inquiry chair, seemed to repose great confidence in Albrechtsen's advocacy, and not in many other media covering the matter.
Will there ever be an inquiry into these contempts? Whoever performed it could be expected to ask some searching question of lawyers who were, at one time or another, in the Lehrmann team, and of Lehrmann himself. No doubt anyone asked will fervently deny such a leak, possibly under oath, so the matter might well remain a mystery. But until someone pursues the answer, there is a slur on the integrity of the defence, one that perfectly innocent members of the defence team might resent.
The ACT is a small and incestuous jurisdiction, never greatly given to protecting public interest of its own motion. That's one of the many reasons victims of crime and the ordinary public can have little confidence that the administration of justice here will protect them.
Jack Waterford is a former editor of The Canberra Times.
Jack Waterford is a former editor of The Canberra Times.
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