Reflections on the Lehrmann trial: Part 1 - Open justice in the modern (Australian) courtroom

Australia’s Federal Court has an established practice of livestreaming proceedings of sufficient public interest to the world at large on the Court’s YouTube channel. This practice is consistent with the need to facilitate and encourage public access to justice and recognises that persons interested in a proceeding may be unable to attend Court physically, and that facilities for large numbers to observe hearings in person are limited.

Two interlocutory rulings in the defamation proceeding brought by Mr Lehrmann against Network Ten and journalist, Lisa Wilkson, have considered the appropriateness of livestreaming in circumstances where the subject matter of the proceeding has received significant prior public attention (including intrusive, offensive, and distressing social media content directed at trial participants) and where there are concerns for a particular witness’s mental health.

The Federal Court’s rulings that livestreaming was appropriate in both contexts (albeit with some additional protections in the case of the witness) emphasises the primacy of the open justice principle when questions of procedural management, such as confidentiality and witness support, arise. The rulings are also consistent with a line of recent judgments in which Australia’s Federal Court has deprecated an apparent persistence by some parties to seek swingeing suppression and non-publication orders and make clear that mere embarrassment and stress are not enough to warrant the making of such an order.

Livestreaming of the Lehrmann defamation trial generally

Notwithstanding that all prior interlocutory hearings in Mr Lehrmann’s defamation proceeding against Network Ten and Ms Wilkinson had been livestreamed, Network Ten raised an objection to the livestreaming of the trial and sought alternative orders that would impose a regime whereby journalists, instructing solicitors and other interested persons may be granted access to the livestream upon making an application to the Court, and providing an undertaking not to disseminate or record the proceeding.

Network Ten’s submissions applauded the Court for its practice of livestreaming appropriate trials of matters of public interest and acknowledged that such livestreams serve to enhance open justice and public scrutiny of the administration of justice. However, Network Ten submitted that livestreaming is not appropriate in every case of public interest and livestreaming of this trial would not serve the administration of justice for the following four reasons:

• First, the circumstances to be examined during the trial had received an inordinate amount of public attention over several years, including on social media, which was ‘deeply intrusive, offensive and …distressing’ to its targets, and it was foreseeable, if not inevitable, that the public would breach the Court’s prohibition on making recordings or screenshots of the proceeding. The mere concern that this prohibition might be breached was apt to have a distorting effect on participants in the trial, including the applicant, witnesses, and counsel.
• Secondly, the subject matter of the proceeding was an alleged sexual assault. In a criminal context, vulnerable persons would be afforded special procedures, such as taking the evidence of a complainant in camera (e.g. s 291(1) of the Criminal Procedure Act 1986 (NSW)), but such protections were not available in the civil context.
• Thirdly, there was an ‘inherent risk’ that an uncontrolled livestream of the trial could prejudice Mr Lehrmann’s right to a fair trial in any future criminal proceedings, with Network Ten relying on charges that were currently before the Queensland criminal courts.
• Fourthly, the trial was not a case in which, in the absence of a livestream, the public would not be properly informed of developments, as the trial was likely to be extensively reported and scrutinised by the media.

Network Ten’s application that the Court not adopt its usual course of livestreaming all hearings in the defamation proceeding brought into sharp relief two competing considerations: the principle of open justice; and the interests of justice demanding that witnesses feel comfortable to give full, frank, candid and unvarnished evidence.

Despite the arguments advanced by Network Ten, Lee J decided to allow the livestreaming of the trial to proceed. His Honour’s reasons, outlined below, emphasise the primacy to be given to the open justice principle and how it can be facilitated in the modern courtroom:

• First, His Honour considered that Network Ten’s submission that the public would inevitably breach prohibitions on recording and screenshotting the livestream assumed the worst. The Court, at the very least initially, was entitled to operate upon the assumption that members of the public will obey the law. If, however, that expectation was dashed, his Honour observed that ‘the law is amply equipped to respond’ via the law of contempt which ‘provides protection for those who have duties or functions to…