Lawyers for Channel 10 and Lisa Wilkinson have indicated the network and journalist will promise not to publicly discuss Brittany Higgins’ rape allegation, a court has heard.
The ACT supreme court has delayed the trial of Bruce Lehrmann for the alleged sexual assault of Higgins due to public commentary about the case.
The trial will now be heard from 4 October, for a four to six-week trial. Lehrmann denies any form of sexual activity took place in early 2019 and is pleading not guilty.
At a mention on Thursday, Lehrmann’s counsel, Steve Whybrow, asked for a delay until the new year, arguing that the “bushfire” of controversy around the case “is still burning”.
The ACT supreme court chief justice, Lucy McCallum, said a three-month delay is a “significant period” to allow potential prejudice to Lehrmann to dissipate.
She noted much of the coverage since Tuesday’s hearing, when she vacated the Monday trial date, had been “ameliorative”, focusing on the fact “a man is facing a trial for serious offence and is entitled to the presumption of innocence”.
The director of public prosecutions, Shane Drumgold, revealed he had asked lawyers for Channel 10 and Lisa Wilkinson to provide written undertakings, and McCallum said their response indicated they “will be forthcoming”.
Drumgold said undertakings would include a promise to refrain from commentary around the allegation, the complainant and the accused, and acknowledging the need to avoid contempt of court.
Drumgold said there would be no grounds for an injunction if the undertakings are given. He noted he is also in talks with lawyers for the Australian Radio Network, the owners of WSFM, which the court has heard featured comments about the allegation on the Jonesy and Amanda show.
Drumgold said he had “unsubstantiated” information that five books are “on foot” that could touch on the allegation, including by journalists Sam Maiden, Nikki Savva and Peter van Onselen.
He said he would seek undertakings the books don’t include material about the allegation, or that publication won’t come before the trial.
McCallum said that “any commentary about the maker of the allegation, the circumstances in which she made it, her credibility, the number of times she’s said it and terms she’s said it” would be off limits as they are matters before the court.
Even discussions of the workplace culture in parliament would require a “delicate dance”, she said, because it was “very difficult to have that debate” without commentary on the “assumed premise that the allegation is true”.
“It would be a pretty thin book if you took out everything sub judice [amounting to contempt of court], about the untested allegation. It would be a masterpiece of rhetoric and subtlety.”
Whybrow warned a recently published book dedicated an “entire chapter” to the Higgins allegation.
McCallum suggested that Drumgold and Whybrow may wish to make a joint application about that publication.
She gave Drumgold until close of business on Friday to make any application, such as seeking injunctions.