Watching the Bruce Lehrmann defamation case in recent days and weeks, it is impossible not to think of the Ben Roberts-Smith saga that came before it and which still rolls on.
It’s not only because Lehrmann’s lawyers also act for the war criminal or because both cases bring to mind that infamous Vietnam War phrase: “we had to destroy the village in order to save it”.
Bruce Lehrmann and Ben Roberts-SmithCredit: Jamie Brown
Lehrmann may yet win his defamation trial against Network Ten and Lisa Wilkinson and claim vindication, but like Roberts-Smith, risks significant reputation damage in the pursuit of a court victory.
Both cases are ostensibly about the ability of news outlets to prove to a civil court standard the truth or otherwise of serious imputations arising from reporting, and yet both have morphed into something else.
The Roberts-Smith defamation case played out as a proxy war crimes trial as well as a test of whether the worst Australian military scandal in recent history was, as its critics claimed, a beat up. Ultimately, it was a struggle about how an important chapter in defence history would be written.
The Lehrmann case is likely being viewed by many Australians as a proxy rape trial, without the jury and under the lesser civil standard that involves a test of the balance of probabilities. If Lehrmann wins, some will mistakenly claim that Brittany Higgins has lost, forgetting she is just a witness to this trial. It has also spurred intense debate about how our society deals with allegations of sexual assault.
Credit: Illustration: Matt Davidson
Both cases have seen lawyers arguing that the presumption of innocence was trashed due to public scrutiny of serious allegations. In the case of Roberts-Smith at least, this is a flawed argument. The law of contempt and the entwined notion of sub judice protects the right of a person to a fair trial once they are charged, limiting what the press can report while a jury trial is imminent or afoot.
No such limits apply in the absence of criminal charges. It’s worth noting that leading silk Brett Walker, SC, has warned of the tendency of people, including lawyers, to conflate the presumption of innocence with the notion that a person must be viewed as innocent until they are convicted in a criminal court. He calls this a form of “magic thinking”.
Lehrmann case brings home the risks of suing for a court victory
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09.12.2023
Watching the Bruce Lehrmann defamation case in recent days and weeks, it is impossible not to think of the Ben Roberts-Smith saga that came before it and which still rolls on.
It’s not only because Lehrmann’s lawyers also act for the war criminal or because both cases bring to mind that infamous Vietnam War phrase: “we had to destroy the village in order to save it”.
Bruce Lehrmann and Ben Roberts-SmithCredit: Jamie Brown
Lehrmann may yet win his defamation trial against Network Ten and Lisa Wilkinson and claim vindication, but like Roberts-Smith, risks significant........
© The Sydney Morning Herald
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