All smiles .. A good Thai rubdown for $3,000 on Uncle Kerry’s credit card sounds like a treat – reminiscent of the time Ron Medich arranged for “Tiffanie” to provide a treatment for NSW energy minister Ian Macdonald at the Four Seasons Hotel in Sydney.
That one only cost $400.
And why wouldn’t a slick Channel Seven TV producer arrange for masseuses to lure an accused rapist for a studio interview. It’s sheer tabloid creativity.
Of course, Lehrmann denies any rotten behaviour, just as he denies raping anyone, in Canberra or Toowoomba.
One step back and there’s news that the leak of Brittany Higgins’ private communications to the media has been referred to the National Anti-Corruption Commission.
Personal information from her diary, text messages and photographs was provided to the police and Bruce Lehrmann’s defence as part of discovery for the Canberra rape case.
Network Ten supplied material used in The Project interview of Brittany Higgins to the AFP under subpoena. These communications were not used at the trial yet they were seen on the interview Bruce Lehrmann did with Channel 7’s Spotlight program.
The NACC is also examining how Higgins’ personal communications were leaked to Janet Albrechtsen and Stephen The Rice Man at The Australian – and again this information had been produced coercively but not used as evidence at the rape trial.
This follows a complaint to the NACC by Brittany Higgins’ lawyer Leon Zwier, with the commission looking into who is responsible for an alleged contempt of court.
There were at least 38 instances where Higgins’ personal communications, exchanges and images appeared in the newspaper and online. Of course, it would be upsetting if the barrow-pushers at The Australian were found to have actively participated in furthering a contempt of court.
Serendipitously, Albrechtsen and Rice produced a long and disjointed article for The Weekend Australian about Leon Zwier and his involvement as Higgins’ lawyer.
For this report the egg beater was on top speed, producing plenty of flummery: “astounding … astonishing … extraordinary … gobsmacked … appalling”.
“Sources” were anonymous, and none were directly quoted: “one” person said … “some sources suggested” … “some” in the legal community … “lawyers who have spoken to The Australian” … etc.
You’d have to take it all at face value.
It was a hit job that failed to land a knockout. Zwier’s complaint about barrister Sue Chrysanthou appearing for Lisa Wilkinson in the Lehrmann defamation case had been ventilated in hearings before Justice Michael Lee, and here it got another treatment.
Zwier’s animus towards the in-demand defamation brief goes back to the Geoffrey Rush case, where the Arnold Bloch Leibler partner saddled up to represent the key witness Eryn Jean Norvill – who claimed to have been subject to Rush’s groping, lewd gestures and comments, smacking of lips, bulging of eyes, and provocative text messages.
Norvill was subjected to a pummelling cross-examination from Bruce McClintock and Chrysanthou – repeatedly accused of lying about the great actor, whom acquaintances well knew to be sleazy when it came to young women.
Zwier also introduced Yael Stone into the plot, another actor who had been sexually intimidated by Rush, and who gave devastating interviews to the ABC and The New York Times.
Rush explained that Stone much have been upset by the “spirited enthusiasm I generally bring to my work“.
Justice Michael Wigney excluded Stone’s evidence, preferring timely case management to establishing the truth. He awarded Rush an eye-popping $2.9 million in damages.
Higgins’ support party
In the big anti-Zwier diatribe, Albrechtsen and the Rice Man tell us that the case was “patently devastating for Norvill” – yet Norvill went on to a brilliant career at The Sydney Theatre Company while Rush has not exactly been bowled over with work.
“Winning” a defamation case isn’t always a reputational restoring tonic.
It seems very likely that Zwier is the subject of a payback vendetta by shadowy players, yet it is also true that anyone who stands shoulder-to-shoulder with Brittany Higgins would be a target for scorpions at The Australian.
Readers were doubtless amused by Albrechtsen’s complaint that Higgins’ had made a “highly prejudicial” speech after the rape trial in Canberra collapsed because of misconduct by a juror.
This from a journalist whose collusion with Walter Sofronoff ended up with a judicial review finding that the ACT Board of Inquiry’s “prejudicial” findings against former DPP Shane Drumgold were the product of bias.
Much of what motivates Zwier can be found in his session On The Couch with Justinian in July last year.
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Happily, as a result of acting for Lehrmann in criminal and civil proceedings, Steve Whybrow is in hot demand as his fame spreads across the continent.
According to the Worst Australian, a man accused in Perth of murdering lawyer Alice McShera at Crown Towers wants Whybrow to defend him. The Canberra brief also has Swanside digs at Albert Wolff Chambers.
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The mystery remains – who is funding Lehrmann’s extensive courtroom escapades?
And whoever it is, will they stump up costs for the respondents in the event that his defamation claim is unsuccessful?
The spitting case
Geoffrey Watson SC was cheered by reptiles of the media for his evisceration in the Nine fishwraps of a Federal Court defamation decision in a case brought against the Seven Network by a fan of the convicted rapist and former rugby league player Jarryd Hayne.
The applicant was an angry dude called Mina Greiss, a forklift driver, who claimed he was defamed by one of Uncle Kerry’s court reporters, Leonie Ryan, who in an online news report, a Tweet, and a Facebook post said that he “stared down” and spat “at” Hayne’s rape complainant outside the court.
Seven said the imputations were conveyed and were defamatory, pleading defences of truth, contextual truth, and honest opinion.
Justice Anna Katzmann in her judgment found that Griess “angrily stared at” the rape survivor, but did not “stare her down”; and that he spat “towards” her, not “at” her.
Katzmann (photo Mark Tedeschi)
The defences failed for the Facebook post, so she gave the fellow $39,000 and another $3,000 in interest for his hurt feelings. This was despite a finding that Greiss held the rape victim in contempt and had deliberately given false evidence.
As Watson SC put it in The Sydney Morning Herald:
“If defamation law requires compensation to be paid to the spitter in those circumstances then defamation law is an ass … So you might ask, for whose benefit do we have defamation cases? …
“Our defamation laws need a radical overhaul and not some inquiry where a retired defamation lawyer receives evidence and submissions from current defamation lawyers. We have had those. They have led to ineffective tweaks and left the lawyers’ gravy train firmly on its tracks.”
Justice Katzmann is also one of the judges deciding the Ben Roberts-Smith appeal – so it’s fervently hoped she doesn’t toss him anything for hurt feelings.
The Federal Court has proved to be a disaster for media respondents as it hands out whopping damages to applicants, while undoing piece-by-piece the defamation reforms.
The mission seems to be to attract as much business as possible from libel claimants. In the process FCA judges have weakened the function of concerns notices; the serious harm threshold; the limitation period; abolished “reasonableness” and uncapped damages – all for the benefit of applicants.
Greiss: spitter
Since 2015 when Sloppy Joe Hockey kicked off the trend to sue in the Federales, there have been 19 defamation trials defended by the media.
The journalists have lost 15 of them with awards of damages totalling over $6 million plus, and costs beyond the dreams of Croesus: Mina Greiss; Heston Russell; William Duma; Erin Molan; John Barilaro; Nasserine Nassif; Chris Murphy; Chau Chak Wing (ABC); Stead; Hanson; Rush; Oliver; Chau Chak Wing (Fairfax); Hockey; and the Chelmsford case substantially lost on appeal.
The media has succeeded in only four substantially defended cases: Ben Roberts-Smith v Fairfax (war crimes); Peter V’Landys v ABC (animal cruelty); Daniel Taylor v Nationwide News (over the “wiseguy” label in an Ibrahim special liftout); and Tony Bellino v Courier-Mail (for a Moonlight State recap).
Of the defamation cases journalists and their publishers have defended in the judge-alone zone they have been unsuccessful 80% of the time. The media is right only 20% of the time.
Now there are academic reports appearing in august journals arguing that the Federal Court came up with flawed thinking when it decided it had jurisdiction to manage the defamation racket.