We should all be concerned about an underreported development in the Bruce Lehrmann rape trial fallout.
To get the context, it is important to remember that the complainant is not a party to the proceedings.
The term ‘complainant’ is pedantly the correct word with all the terrible connotations of those who complain as whingers – so I’ll just say ‘victim’.
The victim is just a witness, without legal representation for their interests in the proceedings.
The prosecutor represents the Crown, and there are times, as we have seen, where those interests can, do and should differ. Very often in the lead-up to a sexual assault trial, the victim is required to give their phone, computer and other digital data to the police, the prosecutor, the court or the defence.
Sometimes this is because there is a subpoena from the court – an order that this material be produced. More often, the police get it to follow-up the allegations, or to investigate counter-claims from the defence, and then the court orders the police to provide all that information to the defence.
Usually, the victim has very little say over any of this and with technology and clouds today, simply deleting stuff does not prevent recovery or production later on.
There are some limitations, for example, sexual assault counselling notes, which are protected, but the usual communications we all do every day, and many in response to a traumatic criminal event, are in the hands of lots of people including the police, the courts, the prosecutors and the defence team.
And yes, that generally includes the actual defendant, who can smugly read every tasty morsel.
My own records, if seized, would be such boring reading that a special app could be developed to assist with insomnia. I imagine my yawning ‘I’ll be home soon,’ or ‘what do you feel like for dinner’ would not end up on the front pages of the media.
Nevertheless, it would really sicken me to have more personal, financial, web-browsing, health or relationship communications spread all over the newspaper. An obsession with the weather can be embarrassing.
And back to the Lehrmann matter.
Somehow or other, all the victim’s records provided by her have ended up in the hands of several media outlets.
Feigning responsibility, they glibly comment that they are exercising discretion as to which ones they publish, but then print ones that cause real pain.
That includes communication with supportive friends, family background; records relating to employment and communications with her fiancé.
Saying that they have other private data smacks of signalling control.
There is a doctrine that should stop this, called the Harmon Principle.
Under that obligation, material produced via a court order, and not tendered in a trial, cannot be published by a party, and to do so is a contempt of court. And you can see the reason for this – it is to protect victims and other producers of information, but also to encourage compliance.
And yet here we have it – private information in this case has been reproduced in the Murdoch press, the Daily Mail and on Channel 7.
The material was never produced at trial, because it was utterly irrelevant to the sexual assault allegation. The source is shrouded in mystery with the journalists and editors hiding behind the desk-thumping statement that ‘we will never disclose our sources’.
Despite tut-tutting from some commentators there has been deafening silence from most quarters.
The courts have taken no action regarding contempt, the politicians have been silent and the representative bodies of the legal profession have been noticeably mute. Investigations seem to be thwarted by the absence of proof as to who is the leaker.
Why is this important? Because there are very few people as boring as me.
Some people have (or have had) evidence on their phones of previous crimes such as drug taking.
They may have photos that they would not want their parents or kids to see. Yikes! They may have said things via SMS that they now regret, or stated opinions that have now varied. Imagine if every reporting sexual assault victim was handed an information sheet that said – ‘by the way, if you proceed with this allegation, all your social media, texts, emails and web browsing history could be in the hands of the accused, and if reported by the media, nothing will be done’.
How many would continue with their complaint?
The last 20 years has seen real strides forward for victims in the criminal justice system – they can generally give evidence by AVL, they have the right to be consulted at each stage of the process, and where there is a conviction they can give an impact statement, read to the court in the presence of the offender. There are now serious limits on cross-examination, including the ability to ask questions about prior sexual history, or aggressively or offensively.
These are important reforms that have encouraged victims to come forward, and somewhat lessened the trauma of criminal trials. It is tragic to see these steps forward countered by a huge leap backwards on the rights of privacy for victims. To those not versed in the industry like me, sometimes the words ‘journalistic ethics’ seem like a contradiction in terms.
But in what world is it ethical to publish private messages in this way, especially when the victim has a well-publicised history of poor mental health including hospitalisation during the trial?
For what – political point scoring, titillation, embarrassment, to further your own scoop or career? Maybe I am missing something, but wasn’t that what the News of the World hacking scandal and Murdoch’s grovelling apology was all about?
♦ David Heilpern is Dean of Law at SCU, and a former magistrate.
For four decades The Echo has printed the stories some people loved, some people hated, and some pretended not to read. If you want us to keep telling the truth, the real truth, not the sugar-coated version. We’ll need your support to keep the presses rolling. 
