Law Analysis

Court drama and flair on show in Lehrmann defamation case

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Bruce Lehrmann leaving the Federal Court with his legal representatives (image via YouTube)

To the uninitiated, the world of court rules and decorum, on show in the Lehrmann versus Network Ten matter, is foreign and confounding, writes Rosemary Sorensen.

ONE OF THE BEST lines in the exuberant 1982 television adaptation of Anthony Trollope’s Barchester Chronicles is when queens counsel Sir Abraham Haphazard, appalled by Septimus Harding’s struggle with his conscience, cries out, “Morality! What has the law to do with morality!”

What too, Trollope’s 19th-century story about power, ambition and wealth suggests, does religion have to do with morality? There are also some cracker lines delivered by gently decadent clergy expressing their displeasure about how ruthless newspaper journalists out-manoeuvre them with well-expressed arguments.

Watching a live stream from the Federal Court of Australia surely cannot compare with the pleasurable viewing of a television series or film set in a courtroom; and yet, for those who have tuned in to Lehrmann versus Network Ten, there has been drama and entertainment aplenty.

Earlier this year, the live stream of the 'Royal Commission into the Robodebt Scheme' was absorbing, not least for the incisive questioning of Kings Counsel Justin Greggery and the impressive control of the proceedings by Commissioner Catherine Holmes.

But that Inquiry played out under very different rules to those regulating Lehrmann versus Network Ten. And Twitter was abuzz with comment, much of it in awe of Greggery’s and Holmes’s sharp intelligence which is not on display near enough in televised interviews or question-and-answer settings.

Books about trials – from Helen Garner’s This House of Grief to the recent Crossing the Line by Nick McKenzie about the Ben Roberts-Smith defamation case – can be riveting reading in the hands of excellent writers. But actually to be able to watch, in real-time, court proceedings is jaw-dropping and revelatory for anyone who is used to the tropes and cliches of fictional courtroom dramas.

As the courtroom livestream continues each day, the dramatis personae become both familiar and predictable, to the point that, when Justice Michael Lee interrupts his comments to insert a joke or a quote, you’re not surprised. The steady voices of the lawyers can be indistinguishable if you join the livestream mid-interrogation, although there are reliable signs when it’s the plaintiff’s senior counsel (whose name is the very Dickensian Whybrow) asking the questions.

The final week, which built to the crescendo of the defendant's cross-examination in this defamation case, Network Ten’s Lisa Wilkinson, had a very different atmosphere to some of the preceding days. And things turned very sour indeed when viewers became aware of outside shenanigans, with secret recordings and sensational splashes aired on media networks with, apparently, skin in the game.

That’s for the law to deal with. So, without contravening the courtroom rules (about which I now know so much more, thanks to the decision to livestream this case), here’s a less murky example of how the proceedings reveal so much, not just about the case itself, but about the theatre of the court.

On Friday 9 December, towards the end of the day, a supporting role actor stands to deliver. Junior counsel for Lehrmann begins a submission to have evidence submitted by the defence ruled inadmissible. Apparently, because the CCTV (how crucial is CCTV in all the hugely popular television crime shows!) does not have sound, the defence has employed an “expert” lip-reader to do a transcript.

The submission for inadmissibility is not being made by Mr Whybrow (who, the day before, delivered a scene of farcical tedium as he showed a witness page after page after page of text messages, eventually to suggest in that “I suggest to you…” accusatory tone which seems to be his forte that these messages disproved by accumulation something the witness had said in an affidavit: the witness disagreed, the questioning moved on.) Instead, junior counsel takes on the task: a taller man than Mr Whybrow, it appears, because he has to lean forward over the lectern behind which barristers stand when they are questioning witnesses.

The livestream setup is basic, but does do sort-of close-ups of both the judge (elevated on his bench, and prone to stroking down the thinning hair on the top of his head with gestures that vary from absent-minded to slightly desperate) and the witnesses (who are seen in profile and from above rather than front-on). Both judge and witnesses are surrounded by voluminous folders holding all the accumulated documents attached to this trial: Dickens again, whose Circumlocution Office featured in both Little Dorrit and Bleak House.

Between those two camera angles is a view of the lawyer line-up. Behind them, what appears to be a phalanx of legal support staff, and behind them a gallery of observers, among whom can often be seen the plaintiff, Bruce Lehrmann, in a seat up against the big windows, sometimes appearing to take notes.

After a couple of weeks of this, an observer becomes accustomed to the arcane courtroom regulations, accepting that the use of the term “my learned friend” is necessary for procedural order, understanding that, in this judge-only case, the only audience that matters is the bloke front and centre (and elevated), so it’s important for both sides not to piss him off.

It would be really interesting to know whether the actors involved are aware of an online audience watching and listening in, and whether that awareness changes their behaviour at all: does Justice Michael Lee always deliver bonmots with such panache?

Returning to junior counsel, we see him leaning, almost slouching, over the lectern as he delivers a series of objections to the use as evidence of the lip-reader’s transcript.

Why is the lip-readers transcript of a drinks-gathering in a Canberra up-market hotel of interest to this defamation trial? It’s about witness credibility, apparently. As with that text-message questioning mentioned above, the aim is to show that a witness has not been consistent, perhaps saying different things to different people, in different contexts. Each side must also prove to the judge that what can sound like long-winded nit-picking of oral evidence is relevant.

Surprisingly (for a person for whom this is all novel and not always reasonable), one of the reasons relevance is important appears to be so that the judge doesn’t have too much stuff to read later on. And so that the expensive court proceedings don’t go on and on and on. (What has the law to do with clock-watching? Quite a lot, apparently.)

Tonally, the objections by the junior counsel begin somewhat snarkily. Justice Lee’s mouth tends to open a little as he listens to a speech which he appears not to be too pleased with and there may be a hint of eye-narrowing frown. The junior counsel seems to sense he’s galloping a bit too cavalierly and his speech to the judge shifts tone. He’s less bombastic and also simultaneously more efficient as he lists the objections.

According to that list of objections, Justice Lee is told the transcript prepared by the expert lip-reader is not reliable; the response from the unflappable Network Ten barrister, Dr Matthew Collins, is swift. What happens next is only remarkable if you haven’t been watching Justice Lee for a few days and come to deduce he has a pragmatic self-regard (which, one supposes, a judge needs). He dictates his long decision viva voce (to pinch one of the terms that are part of the courtroom lexicon) about whether the transcript is admissible, complete with punctuation and comments about why he was unimpressed by the objection that a profoundly deaf English lip-reader wouldn’t be any good at discerning Australian accents.

Stuff and nonsense, summarises Your Honour, an occasion for a bit of banter with counsel about accents, learned or otherwise.

If you’re still not convinced that there’s much to ponder – even putting aside the actual case under consideration – as one watches the live stream from the Federal Court of Australia’s YouTube channel, consider another Justice Lee moment, this one including the only woman in the line-up of learned friends. Sue Chrysanthou, counsel for Lisa Wilkinson. That did not prevent her from, in a move that may have risked antagonising Justice Lee, coming to the defence of the junior counsel on the other side on a small matter of pronunciation.

While listing the shortcomings of the lipreading expert, that learned friend had quoted the words ipse dixit, which google tells us is “an assertion without proof”, literally sort of “self-said”. With a kind of ipse dixit authority, Judge Lee corrected the pronunciation from dix-it to dik-it, and, blow-me-down, at the end of the day when papers were being shuffled into piles and the thought of the after-work sherry was crystallising in minds around the room, up pipes Ms Chrysanthou to say, she’s looked it up (on Google, maybe, where you’ll find it’s probably pronounced dix-it), and that she was pointing this out because she didn’t want Your Honour’s ruling to contain any errors.

Justice Lee is not a man to be gainsayed. Between what could be construed as clenched teeth, he references a discussion on this very topic that was had somewhere worthy (not Google, it’s to be supposed) and thus, the judge insisted with just a hint of uncertainty, dik-it it is.

Who says the law isn’t full of fun?

Rosemary Sorensen was a newspaper books and arts journalist, based in Melbourne, then Brisbane, before moving to regional Victoria where she founded Bendigo Writers Festival, which she directed for 13 years. 

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