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What a judge-alone trial in Lehrmann’s defamation case may look like

With Bruce Lehrmann’s highly publicised defamation hearing against Network Ten proceeding without a jury, a legal expert has weighed in on what to now expect from the hearing.

user iconNaomi Neilson 12 June 2023 Big Law
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In light of intense publicity, a public inquiry, and an ongoing debate about the allegations of rape in a parliamentary office, the Federal Court of Australia ordered that Mr Lehrmann’s defamation matter against Network Ten and journalist Lisa Wilkinson will not call a jury.

In his reasons, Justice Michael Lee said he was not confident a jury trial “could be conducted without an appreciable risk of prejudice”.

He added it would be “difficult, if not impossible”, to assemble jurors who have not already been exposed to the publicity and who have “not already formed views about the evidence, the credibility of some witnesses and, ultimately, Mr Lehrmann’s guilt or innocence”.

 
 

“The law recognises that jurors ordinarily heed directions, but this recognition is tempered by realism: notwithstanding the risk of pre-judgment may be mitigated by directions to the jury, the notion it could be eliminated in the present circumstances is naive.”

While Justice Lee said there would not be a lot of cross-over in the defamation proceedings and a public inquiry into Mr Lehrmann’s abandoned criminal trial, it has attracted extensive publicity and will likely continue to do so until it comes to an end next month.

“Even in recent days, there has been further extensive television and newspaper publicity about events that are at the heart of the truth defence. Again, although in ordinary experience jurors follow directions, this is not always the case,” Justice Lee said.

Mr Lehrmann filed the Federal Court defamation proceedings in February based on Ms Wilkinson’s interview with Brittany Higgins, which aired on The Project more than two and a half years ago.

He alleged the interview conveyed defamatory meanings, including that he raped Ms Higgins in then-defence minister Linda Reynold’s office. He has continued to maintain his innocence.

Dentons Australia’s managing associate and litigation lawyer, Sylvia Alcarraz, said that whether a defamation trial will opt to be heard by a judge-alone can depend on what court it commences in.

“The Federal Court tends to attract applicants who prefer for their dispute to be heard by a judge-alone, rather than by a jury, which can often be a bit unpredictable,” Ms Alcarraz explained.

Ms Alcarraz said there has been “a bit of a mix” in recent years on whether or not high-profile parties request a judge-alone trial.

“Geoffrey Rush and Ben Roberts-Smith were judge-alone trials, but then you have trials like Craig McLachlan’s, who started his case with a jury until he dropped it, and Rebel Wilson was also a jury trial.

“The overarching concern is for the court to assure a fair trial.”

As to how the trials could look different, Ms Alcarraz explained that there are a number of benefits to hearing the matters without a jury.

The most important is that a single judge, who is an expert in the area, can arrive at a “far more objective and fair outcome”. It can also save the parties a lot of time and money as it “circumvents procedures” such as jury selection and deliberations.

On the other side of that, Ms Alcarraz said the decisions could take some time to be handed down as it did in Ben Roberts-Smith’s case.

“This is particularly where there’s a really long trial, or it’s dealing with really complex legal issues that require analysis of rafts and rafts of documentary evidence and consideration of all different versions of events given by multiple witnesses,” Ms Alcarraz said.

“We saw in the Roberts-Smith defamation trial, Justice Anthony Besanko delivered a super comprehensive reason that went over 730 pages, which I think itself just shows the level of legal complexity.”

When it does come to a jury trial, Ms Alcarraz said jurors “obviously don’t provide written reasons” and can come to decisions quicker.

“I think one clear advantage for parties when there’s a jury trial is that you get an immediate verdict. So for better or for worse, there is some sense of finality pretty much straight away for everyone involved,” Ms Alcarraz said.