R v Lehrmann

and what happens if you disregard the Rule of Law

It is not widely understood that the investigations and lawsuits brought about as a result of the R v Lehrmann (‘Britney Higgins case’) have directly resulted from a disregard of the rule of law in connection with that case.

I have previously commented that the presiding judge, Chief Justice McCallum, was an ideal judge to maintain the rule of law in the ACT Supreme Court throughout the trial. No suggestion could or has been made to the contrary. Others involved in the matter have not fared so well.

On 21 December 2022 the ACT Government announced the establishment of a Board of Enquiry into the Criminal Justice System in the ACT, specifically to examine the conduct of the criminal justice agencies involved in the case. The ACT Government made a very sensible appointment of Mr Walter Sofronoff KC to head the enquiry. The enquiry will start public hearings on 1 May 2023 and report by 30 June 2023.

As well as having been the Solicitor-General of Queensland, and the President of the Queensland Court of Appeal, Mr Sofronoff KC is a very strong supporter of the rule of law. His father was a Cossack from Siberia who fled Russia in the 1930s. When he was sworn in as a President in 2017, he said in reference to his father

“He had experienced order under tyranny – the kind you achieve by obedience. But what he wanted as a refugee, and what he found here, was order of a different kind. Of course, by order, he really meant the rule of law.”

The Inquiry will consider whether the ACT Police (part of the Australian Federal Police) failed to act in accordance with, or in breach of their duties. It will also consider the conduct of the Director of Public Prosecutions, Mr Shane Drumgold SC, (a senior counsel) in determining to prosecute Mr Lehrmann, and during the trial. Counsel Assisting the Inquiry Erin Longbottom KC in her opening address mentioned that the Inquiry will hear evidence that from the outset of the engagement between the DPP and the ACT Police, it was beset by tension.

Mr Sofronoff KC has said the following about the rule of law and the independence of the legal profession, in his paper entitled “The Province of an Independent Legal Profession”:

“We speak of the barrister’s duty to the court; however, I think we really mean the barrister’s duty to the rule of law. This can be seen from the occasions when it will be the barrister’s duty to challenge the court itself…”

“The rule of law has many facets. The right to a fair trial is cardinal among them. Without that right, there can be no equal application of the law to all. There can probably be no application of the law at all. As I have sought to show, the development of procedures which result in a fair trial has been very much the consequence of the work of barristers. The development of our constitution has also been the result partly of the work of barristers at crucial moments of history. I believe that the maintenance of the hard won right to a fair trial is also part of the work of barristers. The right to a fair trial can be corroded in a number of ways.”

It is worthwhile reading Mr Sofronoff’s KC paper which can be found at here.

We await his report with considerable interest.

This Inquiry is not the only ramification that resulted from rule of law failures in connection with R v Lehrmann. The Australian Commission for Law Enforcement Integrity is investigating the Australian Federal Police for attempting to pervert the course of justice while investigating the alleged sexual assault of Ms Higgins. In particular they are investigating how private diaries, photos and text messages of Ms Higgins were leaked to the media despite not being tendered in evidence during the trial. The Commission is also investigating whether AFP members attempted to pervert the course of justice by pressuring Ms Higgins not to proceed with the matter. The Commission will on 1 July 2023 be absorbed into the National Anti-Corruption Commission (NACC). The Rule of Law Institute has long opposed the creation of a national anticorruption body, based on the very many rule of law issues that have arisen with respect to New South Wales ICAC. Click here to read more. The appointment to head the NACC, Mr Paul Brereton JA a judge of the NSW Court of Appeal, is to be commended. It is hoped that under his leadership few if any rule of law issues will arise. He will only know too well the issues that have arisen in New South Wales.

Further, Mr Lehrmann has commenced defamation proceedings against Network 10, News Life Media, Ms Lisa Wilkinson and Ms Samantha Maiden. Those proceedings are concerned with a failure to appreciate that Mr Lehrmann should be treated as innocent prior to conviction, which has not and cannot now occur. Those proceedings were commenced outside the 12 month limitation period for bringing such actions. However there is a judicial discretion to extend the time in appropriate circumstances. The Federal Court is currently considering the matter and a judgement on this preliminary point will be delivered on 28 April 2023. I would expect Mr Lehrmann to have argued the great difficulty of commencing defamation, or any other proceedings, while on trial for his freedom.

In addition Mr Lehrman has commenced defamation proceedings against the ABC. Those proceedings have been brought within time and are not subject to a judicial discretion to permit the proceedings to continue.

As you will appreciate from the above, a failure to understand, and adhere, to the principles of the rule of law can have serious and long lasting repercussions.

– Malcolm Stewart, Senior Vice President, Rule of Law Education Centre