ACT's top judge on Lehrmann trial, media circus and 'that' defamation case

Rock climbing is how ACT Chief Justice Lucy McCallum stays sane.

"When you're worrying about what might happen if you fall off a rock, it's hard to think about anything else," she says.

Her idea of a "very, very good escape" is more extreme than the average person's.

If it wasn't for the logistical issue presented by tall doorways, the judge would have installed pull-up bars in her chambers in early 2022 when she became the territory's sixth Chief Justice.

"I did ask," she says.

The judicial officer is more comfortable sharing pictures of herself hanging off vertigo-inducing cliff sides than posing for a portrait shot.

But she does appear comfortable speaking candidly outside her courtroom, sitting down with The Canberra Times to talk media scrutiny, court leniency, AI, "moral duty", and even a certain defamation judgment.

"There are some topics where you just shouldn't go, it's not our business. But there are some topics where I think it's not inappropriate for judges to speak their mind," she says.

"The administration of justice in the ACT has been the subject of unprecedented attention in the past year," the Chief Justice said in a notice to practitioners last August.

The dramatically aborted criminal trial of Bruce Lehrmann, presided over by the judge, has left a trail of destruction through the ACT and its key institutions.

The case was relentlessly covered by journalists "practically hanging from the rafters", and has since kept a national focus on the territory. Appetite for wrongdoing at all levels has not waned.

"In theory, a court and a justice system should be able to keep doing what it's doing, unaffected by the attention of the media," Chief Justice McCallum says.

"Because after all, we are trying to conduct our system of justice openly."

But the problem, she explains, is when media interest in a particular cases reaches a level of intensity where it "starts to skew the assessment of what's happening by a number of different players".

"That just means the case loses the opportunity to run through the system as a normal sexual assault trial, or a normal whatever it is, and it takes on a life of its own," she says.

"It's very hard to contain that within the normal principles of what a trial should look like."

As for the attention and criticism she received during and following Mr Lehrmann's criminal trial, including over evidence suppression, Chief Justice McCallum accepts judges are "fair game".

"And at one level, I should kind of be able to turn a blind eye to that. But it certainly has an impact," she says.

"Some days, you feel like you're working as hard as you can, and on the weekends as well, and it sort of makes it start to feel a bit like what's the point?"

The judge is concerned by media reporting focused on personalities, which she says detracts from the institution's authority.

"The question should be how are the courts handling these cases, not how is Lucy McCallum handling this case," she says.

Last month, the Federal Court's Justice Michael Lee found, on the balance of probabilities, Mr Lehrmann raped former colleague Brittany Higgins inside Parliament House in 2019 after a drunken night out.

While Chief Justice McCallum doesn't comment on the case or those proceedings, she says it's notable Justice Lee embraced trauma-based evidence analysis and reasoning.

She says more "extraordinary and heartening" was the fact that was possible because parties agreed on things like "misconceptions about the way victims should behave".

The defamation judgment was widely praised for its trauma-informed and nuanced approach to consent, memory and sexual assault myths.

"Traditionally, we say if she didn't complain it can't be true. If she spoke to the alleged perpetrator the next day, if she didn't behave in a certain way, it can't be true," Chief Justice McCallum says.

"The judicial system has got into the habit of thinking it knows more than it really does about the way you should expect a person to behave if they've actually truly been sexually assaulted."

Justice Lee, the judge says, wove a lot of reasoning against those beliefs into his judgment.

"I found that heartening because that is exactly what we're up against with some juries. So, it's good if it's becoming part of the public discourse," she says.

Delivering a lecture in February, the territory judge described it as her "moral duty" to speak about issues relating to Indigenous Australians and the justice system.

"I feel it more acutely now than I ever have," she says.

"The more I've learned and read, the more statistics I've heard - and the statistics are getting worse - the more I've come to think we are not responding."

The ACT is funding a pilot circle sentencing list, set to offer an alternative proceeding for Indigenous offenders like the Galambany Court has for two decades in the Magistrates Court.

"We haven't given [Indigenous people] any reason to have confidence in the court system, historically," Chief Justice McCallum says.

"If we can have elders participating in the process, then Indigenous offenders will engage more with the process. And the courts can engage more with Indigenous offenders, so we get a mutual understanding of what the system is trying to achieve."

The Chief Justice is clear the incoming list is not a form of preferential treatment but aims to achieve the legal principle of equality.

"The differences that are presented to us, for Indigenous offenders, are the product of decades, if not centuries, of our differential treatment of them," she says.

"And we have treated them differentially in taking their land, removing their children, diverting their incomes, destroying their culture."

Last year, The Australian journalist Janet Albrechtsen took umbrage with Chief Justice McCallum's acknowledgment of country during a ceremonial court sitting.

Ms Albrechtsen said the judge had chosen "the wrong pulpit to spout political views" when she made "extrajudicial comments" about First Nations people having never ceded Australian land.

Chief Justice McCallum notes those words were used more than once last week during the NSW Supreme Court's 200th bicentenary ceremonial sitting.

"I don't think that the expression is particularly controversial. It also happens to be a historical fact," she says.

"I think that was a question of a particular journalist just wanting to focus on anything I said, and taking me to task about it. And I don't care."

Courts and legal bodies around Australia are being forced to reckon with the rapidly encroaching technology of artificial intelligence by releasing guidelines about its use.

Last week, NSW Supreme Court Chief Justice Andrew Bell told the ABC the increasing sophistication of generative AI was "high on the agenda", citing concerns about hallucinations, deep fakes and forgery.

Chief Justice McCallum says official guidelines on using AI can be expected from the territory court, following suit from Queensland and Victoria.

"We should embrace the fact that there is going to be platforms that actually assist the court once the early wrinkles are ironed out," the judge says.

"I think there might come a time when we will embrace AI as a boon for research."

Earlier this year, the territory's Justice David Mossop raised concerns about a character reference using language "consistent with an AI-generated document".

That, Chief Justice McCallum says, is where potential problems arise.

"We can get lawyers to certify that they wrote their submissions but you can't always check that every person who signed a letter was the author of the letter," she says.

"I guess that's just a question of the courts being vigilant."

More than a year ago, the Chief Justice said public perception about leniency was one of the court's biggest challenges. That remains unchanged.

"The judicial arm of government - we don't hold the purse strings, we don't have legislative power," she says.

"Our only authority comes from earning the respect of the community that we serve, and you're not going to be earning the respect of the community if you're out of whack with their expectations."

But the judge also says courts can't be hamstrung by public opinion and sentencing decisions are never going to please everyone. Especially those who don't comb through detailed reasonings.

"The thing that I find frustrating is people are quick to criticise the court without reading the full judgment," she says.

"There's a reason we publish decisions - because we have a commitment to open justice and transparency."

When the public criticises the court, it's often over how much time an offender is ordered to spend behind bars. Understandably, that's the information that stands out most.

"Some offending deserves to be punished and sometimes the proper punishment is a custodial sentence. But the sentencing exercise is more nuanced than that," the judge says.

"There's a lot of other considerations at play. For some people, the best thing for them and for the community is that they go to jail.

"For others, the best thing is the exposure to the criminal justice system and the opportunity for rehabilitation that they might have avoiding going to jail."

Canberra's only adult prison, the Alexander Maconochie Centre, is overcrowded, under-resourced and expensive. As a result, it has failed its initial goal of championing rehabilitation and education.

The Chief Justice has not hidden how she feels about jails and the way they, as she once said, "harden, brutalise, isolate, institutionalise".

While she says she's allowed to hold a view on prisons, it cannot and does not factor into whether she sends people there or through alternate opportunities.

"That's where it comes back to impartiality being such an important characteristic of a judge," she says.

A young Lucy McCallum might never have considered becoming a lawyer if not for down the street's Mrs Van Hemert pointing out how her "gift of the gab" could be properly harnessed.

She has since practised in criminal, civil, administrative and defamation law, taken silk, and been appointed to the NSW Supreme Court and Court of Appeal, before ending up in the ACT.

"I can't claim to have had the kind of moral imperative that a lot of people had. I just thought, 'Oh yeah, law sounds like fun'," she says.

But on her way to the territory, where she had previously worked as a prosecutor, the judge encountered behaviour from the bench she has aimed not to repeat.

"I don't like to use the word bullied lightly. But it regularly felt that I was on the wrong end of fairly harsh treatment from older male judges," she says.

"And I've made it my personal commitment to always make sure people feel respected in my court."

Despite initially promising herself she would "control that side of my personality" by ridding her courtrooms of humour, time spent in Supreme Court 3 proves that idea was abandoned.

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"I've come to see that, particularly when it is a very heavy topic, sometimes you can break the tension and make people feel more relaxed with a bit of a lighter comment or a joke," she says.

"If people feel more relaxed in their workspace, that's when you get the best out of them."

It's no surprise then the judge hopes to eventually leave behind a culture of co-operation, professionalism and thoughtful application of the law fostered by respectful courtrooms not caught up in formality.

"I think in a way my legacy might be to make the courtroom space a little bit less stuffy and less formal, and more a place of nerdy intellectual excellence," she says.