The trial of Brittany Higgins' accused rapist has been delayed after a "crowing" journalist ignored a prosecutor's warning and gave a televised speech, which generated publicity with the power to "obliterate" the distinction between an allegation and proof of guilt.
That is what Chief Justice Lucy McCallum said on Tuesday as, "regrettably and with gritted teeth", she vacated the impending ACT Supreme Court trial of Bruce Lehrmann.
Lehrmann was due to stand trial next week after pleading not guilty to a charge of sexual intercourse without consent, denying he raped Ms Higgins at Parliament House in 2019.
He and the alleged victim were working as Liberal Party staffers at the time in question.
The Queensland resident attempted earlier this year to have his case permanently or temporarily halted by arguing "damaging publicity" had rendered a fair trial impossible.
While Chief Justice McCallum was not persuaded of that at the time, she said on Tuesday that her trust in the media and the laws of contempt seemed to have been misplaced.
She made that comment as defence barrister Steven Whybrow made a new application for a temporary stay in the wake of a speech made by Lisa Wilkinson on Sunday, when the journalist won a Logie award for an interview with Ms Higgins about the alleged rape.
Chief Justice McCallum said Ms Wilkinson's remarks, to a live television audience of some 885,000 viewers, had the effect of endorsing the credibility of Ms Higgins in circumstances where the alleged victim's believability would be the central issue at Lehrmann's trial.
She noted the speech had been given despite ACT Director of Public Prosecutions Shane Drumgold SC last week giving Ms Wilkinson, a witness in the trial, a "clear and appropriate" warning about the potential for public statements to derail the case.
That warning followed Mr Drumgold interrupting Ms Wilkinson, who had begun reading remarks she had prepared in the event she won a Logie award for an interview with Ms Higgins, to tell her he and his staff were "not speech editors".
Chief Justice McCallum said Ms Wilkinson's eventual speech, which she described as "crowing" about the power of journalism, was "unsurprisingly" followed by problematic public commentary.
The judge said Ms Wilkinson's remarks, which she described as "crowing" about the power of journalism, were "unsurprisingly" followed by problematic public commentary.
One example was a segment on WSFM's Jonesy and Amanda radio program, on which the hosts stated as fact that Ms Higgins had been raped in a "dreadful" incident.
"Each radio presenter presumed the guilt of the accused in those remarks," Chief Justice McCallum said.
She added that those reproducing parts of Ms Wilkinson's speech online included Ms Higgins, who took to Instagram to effectively celebrate the journalist's endorsement of her.
The judge went on to say posts by other social media users "almost universally" assumed Lehrmann's guilt, and speculated about his reasons for renewing his application for a stay.
It could be inferred from all of this that the impact of publicity stemming from Ms Wilkinson's speech was large, she said, and that it may not yet be fully understood.
"But what is known is that the distinction between an untested allegation and the fact of guilt has been lost," Chief Justice McCallum said.
"The public at large has been given to believe that guilt has been established.
"The importance of the rule of law has been set at nil."
Chief Justice McCallum ultimately found the intensity of the recent publicity and its proximity to the scheduled trial, combined with its "capacity to obliterate" potential jurors' understanding of the presumption of innocence, meant the trial must be delayed.
She said this would not, contrary to popular opinion, serve the interests of Lehrmann, upon whom the prospect of conviction and imprisonment would continue to weigh heavily.
It also created the potential for the passage of time to "erode" the quality of evidence, and wasted the publicly funded resources of the court and Director of Public Prosecutions.
After granting the temporary stay, Chief Justice McCallum asked Mr Drumgold if he wanted to seek an injunction restraining the likes of Ms Higgins, Ms Wilkinson and the radio presenters from making further public comments connected with the case.
Mr Drumgold indicated he was "strongly minded" to do so.
It is not yet clear when the trial will go ahead, but the case will be mentioned in court again on Thursday.
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