“I fought the law and … Bruce won”: may not be one of the biggest hits of 2023, but it’s currently rating off the charts in the “can’t be unseen” and “stupidest own goal” categories. Picture incel-pinup-Bruce Lehrmann in celebration mode; singing and chug-a-lugging along on Bundy and Coke to a Sonny Curtis and the Crickets’ (post Buddy Holly’s own tragic exit) song about a criminal loser which was a big hit for The Clash.
Whoever leaked it has a sense of humour. Couldn’t possibly be a stitch-up. Kompromat? It’s more than compromising. But will it win him any more fans?
Lerhmann gets over a million views on TikTok. It’s all over corporate media around day five of Bruce Lehrmann v Channel Ten, a brace of concomitant civil defamation cases brought by the self-styled former Liberal “senior adviser” against Ten and tarnished star, Lisa Wilkinson.
Logie and Walkley Award winner, Wilkinson, still has many loyal fans. Yet Ten’s exciting 2024 schedule fails to mention the veteran journalist – despite her being contracted to them until the end of 2024. Suing your boss to meet your legal costs may not be the best career move. Yet it might be your only option. Especially if you are an outspoken woman who espouses progressive causes.
Should your commentary align with iconic establishment folk heroes, Christian Porter, Ben Roberts Smith or even Bruce Lehrmann, however, you’re spoilt for choice between blind trusts, a Kerry Stokes’ company or Advance with its deep pockets and close links to LNP amongst a rash of new sponsors of our good old (white) men-on-top-status quo.
Wilkinson demands her $700,000 costs now, rather than after Federal Court Judge, The Honourable Justice Michael Bryan Joshua Lee’s judgement. Lee is currently writing that up based on his 15,000 pages of transcript and 1000 separate exhibits, including hours of CCTV footage as well as audio and video recordings. It may take some time.
“Justice must be seen to be done” Lee, an open justice fan, intones, opening twenty-two days’ proceedings, after dismissing four lame arguments from Ten to have Bruce Lehrmann’s civil defamation case taken off-line.
Yet some matters are strictly off-limits in an open society which can arrest anyone it chooses, provided it can invoke national security or detain those who have already served their sentences if they happen to be asylum-seekers; a nation where a government official can be secretly imprisoned in a Canberra gaol.
Similarly, despite its election vows, Labor has rejected a bipartisan Senate report mid- December that finds FOI is not “functioning as intended”; crippled by under-resourcing and resulting in years of delays. More than broken, our FOI system works to obstruct the timely access to information that is the lifeblood of an open, just and democratic society.
On the other hand, the law protects a person’s right to a fair hearing by preventing others from publishing information that may improperly influence a jury or witness.
Lee worries away at the speech Wilkinson gives in June 2022 on accepting a Logie for the Ten interview, a spray which causes the Lehrmann rape trial a three month delay. Lee can’t believe she’s taken prior legal advice. Crown Prosecutor Shane Drumgold says he does warn Wilkinson (who can’t recall his warning) that any publicity she might give to the case could cause Lehrmann’s defence team to apply for a stay. But he declines to vet the speech, “we are not speech-editors.”
Lehrmann Trial Judge, Chief Justice Lucy McAllum, thinks Wilkinson goes way too far.
“What concerns me most about this recent round is that the distinction between an allegation and a finding of guilt has been completely obliterated… The implicit premise of [the speech] is to celebrate the truthfulness of the story she exposed.”
Steve Whybrow SC is more upbeat in an interview with The Australian’s Janet Albrechtsen.
“Frankly, if it wasn’t for Lisa Wilkinson’s speech at the Logies, Bruce would probably be in jail. Thank God for that speech.”
But he would say that wouldn’t he? Steven Whybrow SC says that without the extra material from the interview, together with evidence from the subsequent ACT Sofronoff inquiry, Lehrmann’s defence team would have had eighty percent less on which to build a case.
It would all have been sorted, Whybrow claims, in his summation, if Ms Higgins had gone to the cop shop before the knocking shop of corporate media. It’s in an aside that defies all evidence. Women report bad experiences when they try to report rape to the police. It’s intimidating, degrading, humiliating, embarrassing and mostly futile.
Only one in ten cases of reported sexual assault results in a conviction, although ABS figures show 22% of women and 6.1% of men have experienced sexual violence since the age of 15. 92% of women who experience sexual assault do not go to the police.
Seen to be done? So far we’ve seen justice undone in a trial aborted because a juror left his “internet research” into women rape victims who lay false allegations lying in the courtroom.
The pernicious but persistent myth that women lie about rape flies in the face of all evidence but it is behind a rash of tacky tabloid stories. Brittany Higgins is said to have hit the jackpot and now lives high on the hog at taxpayers’ expense. Our corporate media loves to stunt the brain cells of the nation, with cheap populism, fear and sensation while usurping the role of an Opposition in symbiotic thrall to its LNP partners and enablers.
But make no mistake about the Higgins pile-on being exemplary punishment. It’s an effective deterrent to any other woman laying claims of rape. Or in any other way challenging vested interests in our patriarchal corporate state where Murdoch’s powerful media oligarchy effectively tells us all what to think, while others such as Seven, Ten and increasingly our ABC, tag along.
Such is the power of the media that some of our power elite don’t know they’ve been boned until they read about it in one of Uncle Rupert’s tissues. Justice Sofronoff’s probe into the fiasco of Rex v Lehrmann’s rape trial is as toxic as a Menindee fish kill, especially when he emails his report to Janet Albrechtsen; blindsiding the ACT government, which commissioned the inquiry before it has time to process any of it. And pity its DPP.
Former ACT Director of Public Prosecutions, Shane Drumgold, is even more surprised to first read in The Oz, that he’s been soundly chastised by “Cossack” Sofranoff for his “lack of objectivity” and failing to act with fairness and detachment. He applies for a judicial review on the grounds that the Sofronoff inquiry failed to give him a fair hearing, denied him natural justice, breached the law and “gave rise to a reasonable apprehension of bias”.
The report, on the other hand just gushes praise over the virtues of an embattled AFP which does not put a foot wrong ever. Meanwhile a lot of personal data is leaked from Ms Higgin’s phone, surrendered to AFP, because rape is a criminal offence. Yet well after the abortive trial, her texts are being leaked to The Australian’s “planet” Janet Albrechtsen.
You don’t have to confiscate a mobile to access its data, however. When Brittany Higgins says she believes her phone was remotely wiped, Llewellyn says it’s probably a stuff up. Yet seven years ago, government contracts show that ASIC, ATO, AFP and Defence, were paying to use the services of Cellebrite and other phone-hacking programmes. We happily gave them the right to hack our devices two years ago.
However they were obtained, strategic leaks to media fuel a relentless persecution of Ms Higgins. The young woman cannot even seek sanctuary in another country without the kangaroo court vigilantes of a misogynistic media publishing images of her “French Chateau” bought with her “multi-million taxpayer funded compensation payout”.
The “chateau” is a modest house in the sticks and it’s been enabled by a CommInsure compensation payment as a result of the Morrison government’s abdication of duty of care as an employer. But why publish the truth? What readers crave is fiction. Morrison’s office was quick to tell all its friends about a Labor plot to cruel the Coalition’s election chances. It’s now the dominant narrative.
Brittany Higgins’ fiance, David Sharaz is painted as the eminence grise in this myth, a type of malignant puppeteer who uses an impressionable Ms Higgins to embarrass Brigadier Linda Reynolds and destabilise a government. It’s malicious nonsense which above all deprives the young woman of any agency but it’s now so firmly embedded that it has acquired a type of orthodoxy. Allusions to it appear in The Australian’s (paywalled) “Sharaz the Where’s Wally in Higgins’ saga” reporting of Justice Lee’s courtroom drama.
It’s a hoot when Ten, a media company, actually begs a judge to suppress stuff. Lee, who can be a crack-up with his acidulous wit, refuses noting, with unintended irony, above all, that the applicant, Bruce Emery Lehrmann’s, express preference is for live-streaming. He must have seen Lehrmann’s funniest home video.
Ten fails to convince HH that live-streaming is not in the best interests of “litigious” Linda Reynolds’ self-styled “senior adviser”. At one point, its silks dip into speculation. People could get hurt. Again, Lee gives them a serve.
“Open justice should not yield to hypothetical risks of abuse by bad actors.”
Indeed. The show must go on.
And on. Lee live-streams twenty-two days of defo-drama and petti-foggery in Lehrmann v Channel Ten Network Pty Ltd, a marathon of badgering, Whybrow-beating and endless twitting of witnesses who don’t have autobiographical recall of events four years ago. Hours are spent on helping them find the place in the court’s ring-binders.
Any moment now, a replica of the vinyl couch in Linda Reynolds’ office will pop up in court to allow team Lehrmann to demonstrate the improbability of any bruise being sustained while the alleged rapist is drinking whisky, perusing secret files and writing Dorothy Dixers for the incomparably well-briefed ADF Reservist Brigadier Reynolds, who totally dominates Senate QT with her oratory and mastery of detail.
The courtroom drama is a bit tricky because in order to establish its truth defence, Ten has to make a case on the balance of probabilities that Lehrmann did rape Brittany Higgins. This is a civil defamation case about an allegation of rape, a criminal offence. The Briginshaw Principle requires that more convincing evidence is required to establish an allegation on the balance of probabilities if the allegation is of a particularly serious nature.
At the bleeding heart of the case is Lisa Wilkinson’s chat with Brittany Higgins, aired in an episode of The Project, 21 February 2021. In that interview, Lehrmann alleges, he was accused of raping Ms Higgins. Anyone who knew him would have known that it was him.
That three other women have now accused Lehrmann of rape is immaterial. Equally irrelevant is that Lehrmann texted a pal asking ‘got any gear’ and saying ‘need bags’ on the night Brittany Higgins’ rape allegations became public, court documents reveal.
Lee reminds all parties of the supremacy of open access to justice and court proceedings. “The decision is a clear statement that Courts will not infringe upon the transparency of court proceedings without a very compelling reason to do so. Issues such as embarrassment, stress or reputational damage will generally not be sufficient” note McCullough Robertson’s Guy Humble and Alan Wrigley.
The applicant is former “staffer”, Bruce Lehrmann. Staffer? It’s a grand term for a briefcase-carrier. Office-boy. The only qualification is a show of allegiance to a party.
But where else can any talentless nonentity brown-nose and big-note so much? It’s a gift to any oleaginous grifter with an eye for the main chance. Bruce certainly dreams big and talks himself up to “senior adviser”, even if his CV is full of little gigs. A Walter Mitty who moonlights as an ASIO spook? Bruce is always bigging himself up. Especially on Twitter.
Time for a quick ad-free cross to the inner Lehrmann; a brief update on his latest testimony.
Lehrmann just has to nail what he’s picked up in a bar about a French sub deal. He dashes back to the office at 2:00am Saturday 23 March 2019. The Minister must be briefed for QT at all costs – even if parliament isn’t meeting for at least a week. (The Incredible Sulk, Scott Morrison was, at that stage, hell-bent on having as few sittings as possible.) On principle.
You can tell Lehrmann’s a man with principles. You don’t like his principles? He’s got others. He’s the caring boy-friend in tale 2.0. He dashes back to pick up his house keys. Avoid waking his girl-friend. Higgins says that she woke up to find him raping her.
Forget the keys. It’s a late scotch-on-the-job, despite admitting he tells the AFP that there’s no grog in his office. Of course, that necessitates another lie. In a fourth explanation he tells police he’s working on some of the industry programmes, particularly the Air Force.
Lehrmann is a bit of a party animal. Along with a quiet snort of Bolivian marching powder, he keeps his own mini-bar at work; a single malt or three, along with a bottle of gin.
And boy, can he network. Soon Kerry Stokes, the selfless benefactor of lost causes and savvy recruiter of clickbait, is his pal. The big-hearted, billionaire spots Lehrmann a year’s rent in a luxury pad in Maroubra NSW with bay views. A golden ankle bracelet. All Bruce has to do is to make himself available for the odd on air massage; tell his side of the story.
Bruce can be a goose, it’s true. He has lied, he admits, and he lies about lying but star witness Fiona Brown, does him down. Chief of staff despatched by Morrison to run Defence Industry because the job is just too big for Reynolds, Brown hounds Lehrmann when he forgets to put away a top secret document which he should not have had in the first place. Yet she’s a useless witness. Sex? Can’t rule it in. Can’t rule it out.
Or is the document a ruse? A way to dismiss Lehrmann without a whiff of being on the job in flagrante delicto? Lehrmann says Brittany Higgins was OK around 2:00 am in the early hours of Saturday morning, when he left her naked on a couch where no sexual intercourse took place in Defence Industry Minister Linda Karen Reynolds’ CC office.
Lee is all for open justice. At its heart, he explains “… the open justice principle finds reflection in the requirement to conduct hearings in public and to allow the public to have access to the evidence adduced.”
It’s not to be confused with the buzz-word, transparency, a popular panacea for politics, government, a fanciful alternative to regulation but which ignores the reality that anything that happens in court is accessed mainly via commercial media; mediated in a hostile environment where reporting is seldom objective and which is open to leaks from anyone with a dog in the fight. It also underestimates the nexus between Peter Dutton’s Coalition, and its corporate media supporters, ever-ready since Morrison to politicise or even weaponise reports of the case, as a way of attacking Labor.
Hence Sharri Markson on Sky, Janet Albrechtsen in The Australian and others are quick to publish secret tapes alleging that David Sharaz is helped in coaching Ms Higgins’ by her lawyer, Leon Zwier, on how to answer questions in December’s defamation case. It boosts the dominant popular narrative in which Higgins is defamed as a dishonest gold-digger who fabricated allegations, at first to save her job and then to seek damages. It also adds to the fantastical myth that Sharaz is some kind of Svengali who is cynically deploying his fiancee as a pawn in his politically-charged pro-Labor strategy.
This hypocritical conspiracy theory initially fostered by Scott Morrison’s office with its backgrounding of journalists is above all a cynical distraction from acknowledging the power of the tens of thousands of women attending March 4 Justices rallies across Australia. It seeks to undermine the legitimacy of the protests against a government indifferent to its responsibilities to provide safer, healthier, saner workplaces. Ignore their rights to equality, justice, respect and an end to gendered violence.
Bullying, sexual harassment, discrimination and violence are currently being normalised, as her boss Linda Reynolds says (paywalled) to Brittany Higgins as “things that women go through”.
Higgins’ allegations are diminished and explained away in an onslaught of media attacks fuelled by a steady stream of leaks from a fixer keen to protect vested interests.
Crikey’s Bernard Keane argues, the women’s movement “… could not have been an authentic reaction to a government profoundly out of touch with, if not actively hostile to, the idea of safer workplaces and better protections against sexual assault, bullying and harassment. Instead, it must have been the result of a left-wing conspiracy.”
Lehrmann’s defamation case isn’t up for speculation but it is instructive to note some of the processes by which the judge reaches his verdict. Identity is key.
A cardinal issue is whether it’s possible to identify Bruce Lehrmann from Lisa Wilkinson’s interview. Lawyer and writer Crikey’s Michael Bradley notes that if this is established, there is the matter of Ten’s defences. The truth defence turns on the credibility of both Lhermann and Higgins’ testimony. Ten must prove on the balance of probabilities that Higgins’ allegation of rape is substantially true – which goes to the judge’s assessment of their credit.
The strategically leaked video of Lehrmann, whilst unlikely to further his career, or win him any recording studio contract is ultimately irrelevant. His revised version of I Fought the Law can only win him more incel fans. Let’s just hope it’s not prophetic.
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