A company owned by Rupert Murdoch’s News Corp, News Life Media, has agreed to pay some of the legal costs of the man formerly accused of sexually assaulting Brittany Higgins in parliament, after the Bruce Lehrmann agreed to discontinue his claim for defamation.
According to News Life Media, which in turn owns news.com.au, no damages will be paid, there will be no formal apology and the material will remain published, with an editor’s note.
Mr Lehrmann’s defamation proceedings against Network Ten and The ABC remain on foot.
The story so far
Bruce Lehrmann brought the claim against News Life Media after one of its journalists, Samantha Maiden, published highly prejudicial information which essentially urged the complainant to be believed, painting Mr Lehrmann as guilty of the offence of sexual assault before a trial had even taken place.
The criminal case eventually proceeded to a jury trial and, despite an enormous amount of information that was prejudicial to Mr Lehrmann being published by journalists online and in print, and broadcast on television – with even then Prime Minister Scott Morrison apologising to Ms Higgins in parliament over what she supposedly went through – the jury was unable to reach a verdict, before being discharged after a juror engaged in misconduct by bringing a report about sexual assault offences into the jury deliberation room, despite being repeatedly directed by the trial judge not to consider material other than the evidence adduced at trial.
The ACT’s chief prosecutor, Shane Drumgold, then decided not to pursue a second trial, ostensibly to protect Ms Higgins.
Some in the legal profession are of the view the decision not to pursue a second trial was not to protect the complainant at all, but because she was crucified during a cross-examination which revealed her version of the events to be inconsistent with the evidence, and her conduct after the events to be highly questionable.
Presumption of innocence
The law makes clear a person is presumed to be innocent until and unless proven to be guilty in a court of law, which means Mr Lehrmann is an innocent man in the eyes of the law.
Despite this, the defendant has had his life turned upside down, demonised by opportunistic media organisations and sanctimonious reporters who felt entitled to assume his guilt and campaign for his conviction, with nothing more than the word of an intoxicated complainant with little recollection of the events of the night, and in the face of material which suggested the complainant had previously engaged in unprofessional and, indeed, prohibited acts of accompanying other men to parliament house for sexual activity.
Defamation case settled
While many were looking forward to the issues relating to the defamation claim being ventilated in court, Mr Lehrmann and News Life Media have reached an agreement whereby the latter is required to pay part of the plaintiff’s legal costs – costs which can quickly accumulate into the hundreds of thousands of dollars and financially crush those who take on media giants.
Publications owned by News Life Media, including news.com.au, have been quick to use their enormous reach and power to create a narrative of the settlement as a win, emphasising that the allegedly offending material remain published, with editor’s notes.
However, there are many reasons a party will agree to a settlement – especially if they have already gone through years of stress and anxiety associated with criminal proceedings, and are in an inferior financial position to the opposing party.
Often, media organisation will publish false material and, upon receiving a concerns notice (also known as a letter to cease and desist) challenge the defamed person to file a civil claim (for defamation) – proceedings which can provide additional fodder for their tabloids, with no personal accountability for journalists or other employees.
Indeed, defamation lawyers will frequently advise against commencing defamation proceedings against media companies as this can result in the highlighting of the original content (compounding its reputational damage), and cause a great deal of additional stress, uncertainty and financial expense – the last of which many people just cannot afford.
Settlements are common
It is common to settle defamation cases out of court.
In fact, many parties prefer to settle and reach a fast resolution, rather than enter what can be a long and protracted legal battle.
Defamation cases can be settled in a number of ways, including:
- An offer to make amends, although this needs to be done very soon after an aggrieved person has made their grievance known to the party which published or broadcast information about them. Section 14(1) of the Defamation Act 2005 provides that an Offer to Make Amends cannot be made if 28 days has passed since the Defendant received a Concerns Notice or, a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter considered defamatory,.
- An apology – in a defamation case an apology is not an admission of liability, and can often mitigate damages.
- A private settlement, which is usually done through a conference, or through mediation whereby the parties negotiate an agreement they believe is fair, and which they are satisfied with. In doing so, they avoid taking the matter to court.
The problems associated with high profile trials
The Lehrmann case has brought a lot of issues central to the justice process and media coverage thereof into the spotlight, and many would argue that when the allegations were first made public by Ms Higgins, there was a strong bias in many stories, long before any of the evidence was tested in court.
The high profile nature of the case, including a public apology to Brittany Higgins from then Prime Minister Scott Morrison, and the potential inability to find an independent, impartial jury so concerned Mr Lehrmann’s defence team that they attempted to have the trial stayed, without success. In the ACT, sexual assault cases must be tried by a jury, there is no option to have a ‘judge only’ trial.
Then, only days before the trial was due to begin in 2022, Network 10 journalist Lisa Wilkinson made comments in her Logies acceptance speech which were highly prejudicial against Mr Lehrmann and could have – and many believe should have – resulted in contempt of court charges being brought against the journalist.
Mr Lehrmann’s trial was delayed by four months as a result of Wilkinson’s speech.
The journalist has been joined in Mr Lehrmann’s defamation proceedings against Network Ten, which is scheduled for a hearing later this year.