[Theme Music Starts]

RUBY:

From Schwartz Media I’m Ruby Jones, this is 7am.

The trial of Bruce Lehrmann for the alleged rape of Brittany Higgins – a charge he strenuously denies – will not see a court room again, and a verdict will never be reached.

It leaves both parties in limbo, and already there is rampant speculation that civil lawsuits could be filed.

But the end of the prosecution raises concerning questions about our justice system, the media and who is put at risk when an allegation of sexual assault reaches the inside of a courtroom.

Today, contributor to The Monthly, Rachel Withers on an unacceptable risk to those seeking justice.

It’s Thursday, December 8.

[Theme Music Ends]

RUBY:

Rachel, it seems like this case, the trial of Bruce Lehrmann, which is no longer going ahead, has become about so much more than whatever it was that happened on that particular night. It's become this kind of flashpoint for conversations around politics, around the treatment of women, around the way that our legal system works. And it seems like there is an infinite number of opinions on what this case is really about and what it all means. Do you get that sense?

RACHEL:

Yeah, this case long ago became about more than just the two people involved in it. Ever since Brittany Higgins came forward with her allegations, her name has sort of become synonymous with all of the issues that came up in that national reckoning we had about sexual assault and the treatment of women in parliament and the treatment of women everywhere. So the case sort of became something of a lightning rod for anyone furious about sexual assault or about the way victims are treated in our legal system. But also for people who were obsessed with defending those accused of sexual assault and upholding the presumption of innocence. So I think as a result, a lot of people have projected a lot of things onto this trial, and it's attracted an unprecedented amount of media attention. But at the end of the day, I think it's important to remember that this case is also about two people and one particular night in 2019.

RUBY:

Yeah and that particular night - former Liberal staffer Brittany Higgins she first spoke publicly about what she said happened on that night to the media in 2021. And then last year, Bruce Lehrmann was charged - charges which he denies, and the case went to trial a few months ago. So could you talk to me a bit about the way that this case was covered right from the very outset up until the moment that it went to trial?

RACHEL:

Yeah. So Brittany Higgins' allegations immediately caused a huge outcry and a huge amount of media attention but it continued to garner attention for many months after that because of the movement that grew out of it. You know, this was really the genesis of that. Enough is enough moment that we had.

Archival tape -- Channel 9 News:

“In the morning newspapers a third allegation of sexual assault by afternoon a fourth…”

RACHEL:

It caused many more women to come forward with stories, and it really lifted the veil on the appalling culture within Parliament House.

Archival tape -- Kate Jenkins:

“In the three months from June to August, we received over 1700 individual contributions from current and former staff and parliamentarians across all parliamentary workplaces.”

RACHEL:

So that led to the March for Justice rally.

Which saw women protesting around the country and of course, many, many enquiries into the safety of women.

Archival tape -- Brittany Higgins:

“I speak to you today out of necessity. We are all here today not because we want to be here, but because we have to be here. We fundamentally recognise the system is broken, the glass ceiling is still in place and there are significant failings in the power structures within our institutions.”

RACHEL:

And Higgins really became the face of that movement and a household name.

Archival tape -- Brittany Higgins:

“We are here because it's unfathomable. But we are still having to fight this same stale, tired fight.”

RACHEL:

So then in August of last year, the former Liberal Party staffer Bruce Lehrmann, was charged with one count of rape in relation to the incident and he pleaded not guilty. And he's always maintained his innocence throughout.

The trial was meant to start in June of this year, but it had to be delayed after Lisa Wilkinson won a Logie for her interview with Higgins and gave an acceptance speech that could have prejudiced the trial. But then the trial actually began in October of this year, which feels like it's been going on a lot longer than that because the media focus on the trial itself was so intense. The judge in the case said the journalists were practically hanging from the rafters to be in the courtroom.

Higgins had waived her anonymity so it meant that the media could cover every single twist and turn and cross-examination. And it became known as the Higgins trial in the media, despite it actually being a trial of Bruce Lehrmann. And at the end of the trial, the jury deliberated for five days. I think a lot of people were waiting on the result. And on the sixth day, the case was actually aborted because a juror was found to have brought in documents into the courtroom that were they were told not to do. And the trial was initially rescheduled for February 2023, but it's actually now been abandoned altogether.

RUBY:

Yeah. So the DPP has said that the reason for that decision is because of the potential health impacts on Brittany Higgins.

Archival tape -- Shane Drumgold:

“In light of the compelling independent medical opinion and balancing all factors I've made the difficult decision that it is no longer in the public interest to pursue a prosecution at the risk of a complainant's life. This has left me no option but to file a notice declining to proceed with the retrial of this matter, which I've done this morning. This brings the prosecution to an end.”

RUBY:

Can you tell me what you thought as you saw that news that the trial would no longer be going ahead?

RACHEL:

So that DPP, Shane Drumgold he said he'd received medical evidence showing that:

Archival tape -- Shane Drumgold:

“That the ongoing trauma association associated with this prosecution presents a significant and unacceptable risk to the life of the complainant.”

RACHEL:

And we very quickly found out that Brittany Higgins was in hospital undergoing treatment for mental health. Now, the most important thing here is Higgins safety. And that's why the decision was made. And that's what Drumgold said. And Higgins, through a statement released by a friend, also said that Higgins safety was paramount. And Higgins had had it obviously particularly hard through this case. And Shane Drumgold said that:

Archival tape -- Shane Drumgold:

“During the investigation and trial as a sexual assault complainant, Ms. Higgins has faced a level of personal attack that I've not seen in over 20 years of doing this work. She's done so with bravery, grace and dignity, and it is my hope that this will now stop.”

RACHEL:

So setting aside the specific details of this case, there are lessons to be learned for these kinds of trials in the general sense.

It's a system that sort of puts the accuser on trial or it seems to at least it questions everything about them, about their account, their character, their motivation, what they were wearing. It really speaks to a system that is quite broken and one that seems to push alleged victims to breaking point. And it's one that's in urgent need of reform.

RUBY:

We'll be back after this.

[Advertisement]

RUBY:

Can we talk a little bit more about what this case says to us about the legal system? Because as you've kind of said it, you know, it obviously shows that someone can be pushed to the point where the health in their life could be considered in danger if they go ahead and try and engage with it again. It also means that the person who's been accused never has the potential outcome that their name is cleared. So it seems like from every way that you look at this, it's a bad outcome for everyone and perhaps should be cause for some reflection on the way that our legal system works, particularly when it comes to this type of case.

RACHEL:

Yeah. And I think it's really shone a light on some issues with the legal system that many people already knew about, but they just really played out so publicly with everybody watching. There was one word in what Drumgold said about why the case couldn't go on about it being an unacceptable risk to Higgins’ safety and life. And that to me, that word unacceptable really is what this system is. It is unacceptable that we have a justice system that is so brutal that to try to pursue a claim would prove an unacceptable risk to the life of an alleged victim. It's also unacceptable for Lehrmann and that his name will never be cleared because we don't have an outcome. The charges have been dropped, but he wasn't found not guilty either. It's unacceptable that our system actually dissuades victims from coming forward. And it's really, really unacceptable that so little has been done about this, despite society being so well aware of the impact this has on accusers.

RUBY:

Can we talk a little bit about what could be done when we talk about reform to the legal system? What kinds of things should we be speaking about?

RACHEL:

Yeah, so there's already been some discussion about a very specific change, which would be an act specific change to reform the Evidence Act so that a sexual assault complainant who appeared in court wouldn't have to appear in court again in a retrial so that their evidence that they gave the first time around could be replayed as video evidence to save them having to undergo cross-examination and that traumatising experience again. But more broadly, there is a conversation going on about how we can reform the entire system so that it isn't so traumatising to pursue a rape claim. There's a lot of conversation about how we can strengthen the trauma informed approaches. And, you know, our system as it stands is an adversarial system. It's about the defence versus the prosecution. It's about putting an allegation to the test and, you know, poking holes in it and basically getting all the different accounts that a victim has put forward and trying to find inconsistencies and then putting them on the stand and trying to, you know, question their motives, make certain implications. And people say that this is actually leaving victims in a worse state than when they started. You know, if somebody was already traumatised, they are more traumatised by the end of it and hopefully there are also some lessons to be learned for the media in this case and the way that it reports on issues like this and how it can actually fail to grapple with its responsibilities in a situation like this.

RUBY:

So what lessons do you think might come from this, Rachel, for the media? Because I think from the very beginning, this story has posed some interesting questions about media ethics. And it's clear that on the one hand with the waiving of anonymity, there was going to be reporting of the trial of Brittany Higgins. But there has been intensity to that, and obviously some coverage has been better than others? So what have you made of the way that the media has approached this, and do you think that as a result of this trial and the way that it’s all landed in the end, that there will be some sort of reflection in the media about how these types of stories are reported?

RACHEL:

Not based on the last few days. It really doesn't seem like the media has actually reflected much at all on the lessons of this trial. Over the weekend, we saw lots of reporting of previously suppressed material because once the charges were dropped on Friday, the suppression orders on various pieces of information were also dropped. So there was story after story about information that hadn't been on the public record before. And we also saw, you know, less than 24 hours after the case was dropped out of concern for Higgins mental health, we saw more details of Higgins interactions with police during the investigations, commenting on how the police was handling this case. The media is legally free to report on this stuff now. It's not clear how some of it has entered the public domain, but there are definitely ethical questions about the value of reporting some of these details so soon after the trial was abandoned. And while Higgins mental health is so clearly a concern.

RUBY:

And Rachel, even though the criminal proceedings are now no longer going to go ahead, civil proceedings are being considered, reportedly by both parties. So it looks like these claims are still going to be somewhat in the public spotlight aren’t they – it's not over yet?

RACHEL:

Yeah, well, I mean, there's already been reports that Higgins intends to launch civil proceedings against Linda Reynolds and the government. And there's also the possibility that Lehrmann will sue media outlets or even Brittany Higgins for defamation, for reporting or making certain allegations that now haven't been proven. Neither of these civil proceedings will be able to prove one way or another whether these allegations are true or false. The burden of proof is much lower in civil proceedings, but it is going to bring more evidence into the public record. At the end of the day, you know, these details will all need to be handled with care for the sake of all the individuals involved, but also for every single person who has experienced sexual assault, most of whom have found this very public trial very traumatising. And that's sort of something that was missing, I think, in the sort of circus nature of the way the trial itself was covered.

None of these civil proceedings are going to produce the winner or the loser. Money will be changed hands, but they won't be a conviction or an acquittal of Bruce Lehrmann for the rape of Brittany Higgins. So it seems like it might be time for the media to move on, let these civil proceedings play out. But, you know, it's time for. Brittany Higgins to be allowed to heal. I think she's shone a spotlight on two major issues now. Firstly, on the culture within Parliament House and the treatment of women more broadly. But also now on issues with the legal system. And so I think it's time to just focus on those issues and to stop covering every single in and out of the, you know, case at hand between Brittany Higgins and Bruce Lehrmann.

RUBY:

Rachel, thank you so much for your time.

RACHEL:

Thanks Ruby.

[Advertisement]

[Theme Music Starts]

RUBY:

Also in the news today,

We can expect to see a greater US military presence in Australia following ministerial talks in Washington DC.

In a joint statement, the two countries promised greater military cooperation including more US troops spending time on Australian soil.

The US Secretary of Defence said Australia’s quote “mateship” with the US will be a bedrock for peace and stability in the region.

And former US President Donald Trump’s real estate company has been found guilty of tax fraud.

It comes after Trump launched his 2024 Presidential campaign, despite many of his personally endorsed candidates failing to win seats in the midterm elections. The latest of which, Herschel Walker, conceded defeat yesterday in the Georgia senate run-off.

I’m Ruby Jones, this is 7am. See you tomorrow.

[Theme Music Ends]