This was published 4 months ago
Opinion
Lehrmann case brings home the risks of suing for a court victory
Nick McKenzie
Investigative reporterWatching 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 in 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”.
If journalists couldn’t gather compelling evidence to expose the abuse of people, power and systems, and instead left all wrongdoing to the criminal justice system, with all its flaws, to one day sort out, we wouldn’t be living in much of a democracy.
Roberts-Smith was not facing any criminal charges when we carefully published our exhaustive investigation into him in 2018.
He launched his defamation action with the prospect of a criminal charge a distant and, given the track record of Australian authorities at prosecuting war crimes, arguably remote possibility. The federal police’s five-year war crimes inquiry into Roberts-Smith collapsed in March. We also discovered information not known to authorities, including Roberts-Smith’s brazen attempts to cover up his actions and subvert the justice system. He buried evidence in his backyard and used burner phones to avoid phone taps.
When Lehrmann lodged his suit, he had already been charged and his criminal trial aborted due to a jury issue.
In contrast, Roberts-Smith had far more to lose when suing. In bringing his action the ex-soldier faced the risk that the civil trial process could produce new leads for investigators who hope to one day charge him with war crimes. This risk was realised when the new war crimes agency, the Office of Special Investigator, recently requested material from Roberts-Smith’s unsuccessful case to progress its criminal investigations into his conduct.
Humming in the background of both defamation cases is the rivalry and culture wars that infect Australian journalism. I used to be staggered that anyone could seriously suggest The Age and The Sydney Morning Herald had investigated Roberts-Smith because he worked for a commercial television outlet that was a rival to Nine, the company that merged with my newspaper employer months after our key Roberts-Smith stories appeared.
But in time it became apparent to me that the media wars were, for some, a major factor. Seven West chairperson Kerry Stokes certainly thought so when he funded Roberts-Smith to sue us.
One journalist who covered the Roberts-Smith case spoke of the ex soldier as “our guy”. Different media outlets seem to have formed pro- or anti- Higgins and Lehrmann camps. And so the truth becomes even more elusive.
Still, both the Lehrmann saga and the Roberts-Smith affair remind us that the imperfect art of journalism matters in profound ways. The Higgins affair lifted the lid on toxic behaviour in federal politics, leading to cultural change. The sordid scandal also cast fresh light on how our systems of justice still fail to adequately deal with sexual abuse cases, variously hurting complainants or the accused and sometimes both.
Lehrmann’s criminal trial was followed by the Sofronoff inquiry, which excoriated the ACT chief prosecutor. Whatever your view of Higgins and Lehrmann, you could argue they have both been at times unjustly treated by a legal system meant to protect their rights and a media industry meant to be impartial.
Our reporting of Roberts-Smith and the defamation case led to at least some justice, although witnesses were left traumatised and SAS whistleblowers and grieving Afghans left wondering why no one has faced any criminal charges, despite the federal court findings of multiple war crimes.
A new Stan documentary, released on Sunday, December 10, Ben Roberts-Smith Truth On Trial, offers Australians a rare view inside the case. If you’ve ever questioned our decision to scrutinise Roberts-Smith in the first place, I’d urge you to take a look. In the documentary, SAS captain-turned-witness against Roberts-Smith, now shadow defence minister Andrew Hastie, argues powerfully that the scandal has ultimately enriched Australia’s ANZAC legend by adding a new chapter.
He describes this modern addendum as one that pays tribute to Australian soldiers not only with the physical courage to fight in Afghanistan but with the moral courage to stand against the executions of innocent civilians or handcuffed detainees, even if it meant taking on a national icon.
Even if no charges arise from the ongoing probes into Roberts-Smith, Hastie’s comments underscore why the fight for truth in a hyper-partisan world matters more than ever and what journalism can sometimes do to advance it.
Nick McKenzie is an Age investigative journalist who has twice been named the Graham Perkin Australian Journalist of the Year.
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