Zeitgeist litigation

Matt Collins KC on live-streaming of high-profile trials ... Social media nightmare ... Abuse of barristers ... Chilling emails ... Trials as a form of public entertainment ... Courts sleepwalking into a dangerous zone ... Framework needed to balance competing interests ... Paper delivered to Australian Lawyers Alliance Conference  

Matthew Collins KCThank you very much for inviting me to address the conference. It is a pleasure to be here.

I acknowledge the Whadjuk people as the traditional owners of the land on which we meet and pay my respects to elders past and present, and I extend those respects to other first nations peoples.

When I was approached about speaking at the conference, I was told I could speak on any topic I liked, so long as it was basically about the Bruce Lehrmann case, in which I represented Network Ten.

It was the most viewed trial in Australian history. Almost all of it was live streamed. At times, it had about 120,000 unique viewers in the course of a day, often up to 50,000 at a time. It was a ratings blockbuster. Can I ask for a show of hands – who watched parts of it?

I understand why people want to talk about the Lehrmann trial. As a controversy to capture the attention of the nation, what happened in those 40 minutes or so in the Minister for Defence’s Parliament House suite, in the early hours of 23 March 2019, is matched in my lifetime probably only by what occurred in an even shorter period on the night of 17 August 1980, when Azaria Chamberlain, aged nine weeks old, disappeared from a tent at Uluru.

And in a sense it is a relief to talk about the Lehrmann case, because until last year, the only case I had been involved in that anyone wanted to talk to me about was this one ...

Bauer Media, the publisher of Woman’s Day, published an article, ‘Just who is the Real Rebel’, which accused Rebel of fabricating almost everything about her life, from her name, to her age, to her upbringing in order to construct a personality so as to make it in Hollywood. Famously she sued. A jury heard the case over about three weeks in Melbourne in May 2017.

At the time, I had not seen anything like it. A media scrum outside the court every day. Cameras following us as we walked from chambers to court. Commercial radio stations arranged rent-a-crowds and ran quizzes on what might happen in Court.

The case even attracted international media attention. The jury found in Rebel’s favour, and the trial judge awarded $4.7m in damages, the all-time Australian record. Unfortunately, the damages were reduced to $600,000 on appeal, which still puts it in the top 10 all time damages awards in defamation cases.

This was my first real encounter with a piece of litigation that dominated national debate, and in which the lawyers became a part of the story. 

To this day, if you google my name, auto-complete suggests adding the word “wife”, and if you click on “matt collins qc wife”, this is what you see ... 

Leonard Vary, by the way, whose name appears above the picture of Rebel and me, is my partner of 27 years, and my husband.

A couple of years before Rebel’s case, I had seen the potential advantages of members of the public following high profile litigation.

In 2015, I represented the defendants in a case brought by then then Treasurer, Joe Hockey, over articles in the Fairfax papers with the headline, ‘Treasurer for Sale’. The substance of the articles was that it was possible to buy access to the Treasurer, by joining a body called the North Sydney Forum. The articles were found not to be defamatory, but Hockey was awarded $200,000 in damages for an advertising poster and a tweet. He was awarded 15% of his costs. The definition of a trial in which no-one won.

Quite early in the trial, I was cross-examining the Treasurer. I had asked him about his role in setting up the North Sydney Forum. This is what he told me ... 

A journalist with the Sydney Morning Herald, Michaela Whitbourn, was in the public gallery, live tweeting the proceedings, including my question and the Treasurer’s answer. That night, I saw a response to one of her tweets

My interest was piqued, and I watched the video ...

The following morning, right at the start of the day, I pounced ... 

My experience from the Hockey case, and Rebel’s case, was thus largely positive.

Both cases were of legitimate public interest, as well as being interesting to the public. They were not live streamed, and so coverage of the cases was curated through the commentary of professional journalists and mainstream media organisations.

The emergence of social media, which was nowhere near as toxic then as it is today, meant that the public was able to get involved in a way that would not have been possible a decade earlier and, as the Hockey example shows, the public could even assist in holding litigants to account.

In 2020, everything changed. Along came covid and, particularly for those of us in Melbourne, long lockdowns.

I did two high profile cases during covid. One was for the ABC, in a proceeding brought by Mick Gatto, who said that an article on the ABC’s website imputed that he had, among other matters, threatened to kill Nicola Gobbo, who was then known as Lawyer X or Informer 3838. 

To the best of my knowledge, it was the first fully live-streamed trial in Australian history. But almost no-one watched it. Mr Gatto lost his case, lost again on appeal, and was denied special leave in the High Court.

A few months later, I represented Fairfax Media and the ABC in a case brought by Chau Chak Wing, who had been accused in an episode of Four Corners of being a Chinese agent of influence in Australia. He won his case and was awarded $590,000 (interestingly, just less than Rebel had won about three years earlier).

The trial began on 6 October 2020. Everyone was in Sydney – the judge, my junior, my opponents, everyone but me. I had to appear remotely, because Melbourne had gone into lockdown on 9 July 2020, almost exactly three months earlier. We were not allowed to go to chambers, we were only allowed out within 5 km of our homes, it was not an easy time.

The case was live streamed, but again it was watched mainly by professional journalists and a handful of others – so far as I could tell, mostly lawyers.

On day 3 of the trial, Michaela Whitbourn from the Sydney Morning Herald tweeted this [slide 9]:

There was no doubt who she was talking about. 

Post-covid, we no longer have the necessity of appearing remotely, but a practice has developed, particularly in the Federal Court, of live-streaming cases that are thought to be in the public interest on the Court’s YouTube channel.

Which leads us to the past two years, and the conversation that I believe we as a profession have not yet had, and which we need to have.

The criminal law was hit worse than other areas of practice by the pandemic, because of the significant disruption to jury trials. The backlog was substantial and is still being cleared in some jurisdictions; Western Australia of course being an honourable exception because of its border management during the pandemic.

In the rest of the profession, we adapted remarkably well, all things considered, to remote litigation in common law, commercial law, family law, administrative law, construction law, public law matters.

The administration of justice continued. Witnesses were able to give evidence and be cross-examined remotely. There were even some advantages to remote appearances. There are real productivity benefits for solicitors who can be simultaneously monitoring what is happening in court, and doing other work from their offices. Even for barristers, there are savings in terms of the time it takes to commute to and from court and clear security, or wait for matters to come on. It is easier to build a truly national practice.

But we all recognise that, all things being equal, justice is better administered in person and in open court.

Remote hearings lose some of the formality and solemnity of the courtroom.

It is easier to cross-examine in person than over a video link. Many judges have said that they find it easier to assess credit when a witness is there in person.

Too often the technology glitches, leading to disruption.

Document management is harder when the court and the parties are in different places.

And the critical incidental communications that we have in the courtroom – agreeing to allow an opponent to lead uncontroversial evidence, dropping an objection, correcting something quickly by a sotto voce exchange at the bar table, right through to settling litigation, is all much harder (and sometimes impossible) with remote appearances.

Since covid, I have appeared in four large, live-streamed cases: Al Muderis v Nine Network (about a 60 Minutes story and various newspaper articles concerning a surgeon who performs osseointegration procedures); Lehrmann v Network Ten (in which the central issue was whether Bruce Lehrmann raped Brittany Higgins in Parliament House in March 2019); Greenwich v Latham (in which the issue was whether my client, the independent member for Sydney in the NSW Parliament had been defamed by Mark Latham, then the leader of Pauline Hanson’s One Nation in NSW, in a sexually explicit tweet); and most recently Deeming v Pesutto (about the leader of the Victorian Opposition’s decision to expel a member of Parliament from the Parliamentary Liberal Party following a rally on the steps of Parliament House that was gate-crashed by neo-Nazis).

Collins for John Pesutto in the Deeming case 

All four cases were live-streamed. All four attracted significant audiences, and significant social and legacy media commentary. In two of the cases I was opposed to the same silk, Sue Chrystanthou SC from Sydney; in one she and I were effectively on the same side; and in the fourth case, my opponent was her husband Kieran Smark SC. Three of the cases were in Sydney; the fourth in Melbourne.

In all of the cases, the court’s presumption was that the case would be live-streamed. The opinions of the parties were not sought, rather it was for a party, if it wished, to apply to oppose the stream. Witnesses were not heard in relation to their concerns about giving evidence on a live stream – although in Lehrmann, the live stream was delayed (but not  stopped) for one witness on the basis of evidence from a mental health professional about the impact that the stream might have upon her.

In Lehrmann, on behalf of Network Ten, I opposed the live stream. I identified four grounds of opposition, all of which the judge rejected. They were that:

•  the live stream would be likely lead to online abuse of parties and witnesses that would be intrusive, offensive and distressing, and may deter witnesses from giving evidence or future sexual assault complainants from coming forward at all;

•  it was essentially a sexual assault case, and no criminal court would ever countenance live streaming such a case, particularly the cross-examination of an alleged victim of sexual assault on an uncontrolled platform like YouTube;

•  the live-stream could prejudice Lehrmann’s entitlement to a fair trial in the other criminal proceedings he is facing, because potential jurors will have been exposed to the live stream; and

•  a live-stream was not necessary for the public to be properly informed, because the mainstream media could be relied upon to provide extensive coverage of the case.

The judgment, if anyone is interested, is Lehrmann v Network Ten [2023] FCA 1452.

I had a further concern, which I did not rely upon on in the application, and it is the personal concern that arises from appearing in live-streamed cases.

Increasingly, it seems to me, barristers in high profile cases have become a part of the story. That seems to me to be counter to the proper conception of the barrister, who is not a public figure, but rather a servant to the administration of justice, and bound by the cab rank rule. Historically, we wore the same robes, and wigs, for the very purpose of anonymising our identities, and not distracting juries from their focus on the evidence.

Al Muderis v Nine Network rang for some 64 hearing days, all of them live-streamed.

Greenwich v Latham was a short case, just under 3 days.

Deeming v Pesutto, which I will come back to, ran for three weeks and is returning [...] for closing submissions.

And Lehrmann v Network Ten rang for 5 weeks.

Alex Greenwich MP v Mark Latham MLC

All of them very extremely stressful cases to appear in, partly because of the presence of the live stream. 

You are conscious of it all the time. Sometimes, the stream is even live before the judge enters the room, and persons watching the stream can hear the barristers chatting among themselves at the bar table.

A live stream means that an order for witnesses out of court serves little practical purpose, because there is no way of knowing whether witnesses in a case might have been watching the live stream, and whether they might then tailor their evidence based on what they have heard.

In Al Muderis, Lehrmann, and Deeming, both Ms Chrystanthou and I got into the practice of asking witnesses, almost as a matter of course, whether they had been watching the live stream of the proceedings. Very often they said that they had seen parts of it. We would then ask follow-up questions about what evidence they had seen. But in a practical sense, the answers do not matter much; if the evidence given by the witness has been influenced by what they have seen, that will not often be detectable, and there is no obvious remedy for it.

In Al Muderis, some witneses gave evidence from overseas via video-link. Ms Chrystanthou asked one of the witnesses, appearing from America, whether he had been watching the live stream. His answer was, “I have caught a couple of episodes”.

Lehrmann was a uniquely complicated case. Everybody in Australia had an opinion about the key protagonists. The circumstances of the alleged sexual assault had been exhaustively analysed in the public square.

The viewership of the live stream grew quickly as the case got underway, rising to around 50,000 people watching the cross examination of Lehrmann and the evidence of Brittany Higgins.

As a showcase for the rigour of our judicial system, there is much to be said for the public having been able to follow the trial so closely. Much of the social media commentary was complimentary about the judge and the barristers. The case was said to show a degree of mutual respect among the participants that bore little relationship to televised court dramas. All of those matters were positives.

All of us in the case received unsolicited emails and phone calls from interested members of the public. After court one day, I got a message from an amateur sleuth, telling me they were sure that when Mr Lehrmann entered Parliament House with Brittany Higgins he was wearing black shoes, but when he left 40 minutes or so later his shoes were brown. Turns out that was wrong. Another person thought they saw a crease in the back of his shirt as he left Parliament House to catch an uber. Turns out that was wrong too. 

We all also received countless emails and messages asking us to do pro bono work from desperate people who felt they had been let down by the system and that we might be the answer to their problems.

Generally speaking, I was treated pretty well on social media, insofar as I followed it, during the trial, including because people enjoyed seeing Lehrmann being cross-examined: [two slides 10 and 11]. 

Notice, however, who is missing from the analysis: there is no mention of the superb work that was done by our opponents, the team for Mr Lehrmann, led by Steve Whybrow SC, who had a difficult brief, which was unpopular in the public square, and who discharged his duties in accordance with the finest traditions of the independent bar.

At one point, in the closing submissions, I peaked as the number three trending topic on Twitter, just below Christmas ...

A feature of the social media commentary was an inability on the part of some viewers to distinguish between the role of the lawyers and the conduct of their clients. All of us copped it, although no one as much as Lehrmann’s senior counsel.

I’ll start with some charming commentary on my cross-examination of Bruce Lehrmann, which of course required me to put to him the particulars of the sexual assault as alleged by Brittany Higgins. Here is how one viewer saw it ... 

But, as I say, all of us copped it ... 

The outcome of the trial captivated the nation, and led to startlingly blunt front pages such as these two, from the two main Melbourne dailies ... 

Justice Lee delivered his judgement via YouTube, even stopping and adjourning at one point when the live stream went down. The judgment summary took about 3 hours to deliver, and attracted about 40,000 viewers.

I think that there is a general consensus that the live stream of the Lehrmann trial was a success, because it enabled the public to see our justice system in action, and working well. My observation was that all sides acted in an exemplary manner, showcasing collegiality and cooperation despite the very difficult circumstances.

Justice Lee managed the trial in an efficient and impressive manner, always with an eye to ensuring that justice was done, and was seen to be done, openly.

One outcome of the trial is that Justice Lee was named, a couple of weeks ago, one of the ten most culturally powerful people in Australia in the past year by the Australian Financial Review, not that I’m sure that justifies this extraordinary photo that appeared in the Fin ... 

 

The judgment in the case, which of course is freely available on Austlii, Jade and from the Federal Court’s website, turned into a book, available to pre-order for $36.99 ... 

Nevertheless, the trial took a toll on all of us involved in appearing in it.

Towards the end, we all just wanted it over, and we worked ridiculously hard to get submissions done before the Christmas break.

We all suffered online attacks, only a few of which I have highlighted. We were each stopped in the street and at airports from time to time, sometimes to be engaged in conversation or asked for an autograph, other times to be abused.

Some of the emails we each received, and that we shared with each other in the course of the trial, were chilling in their tone and content. The scrutiny to which we were subjected exceeded that which I have seen in any other case in my 25 years at the bar. Interactions with the bench, that are just part and parcel of day-to-day advocacy, and which we all understand involves the usual testing of propositions, were amplified and misrepresented as criticisms of our conduct online.

At one point, the judge drew counsel’s attention to a particularly vicious online attack about one of the barristers. This exchange occurred ... 

And we were just the barristers.

I cannot fathom what it must have been like to be Bruce Lehrmann or Brittany Higgins subjected to a live streamed trial in such a maelstrom. I also know that it was very stressful for a number of the witnesses, who came to court to give honest evidence as to what they had observed, only to find themselves the subject of online attacks and scrutiny.

I worry that survivors of sexual assault, watching what happened in the Lehrmann case, might think long and hard before making a complaint, lest their trial play out in public as this one did. And I equally worry that someone like Bruce Lehrmann, who has been publicly vilified to an extent we have rarely seen in our nation, may not be able to get a fair trial in respect of the other charges he faces, or ever move on with his life.

And it concerns me that we do not have a framework for properly balancing the competing interests at stake in cases of this kind.

Courts, in my view, should have protocols outlining the guiding principles for determining which cases will be live streamed. Submissions should be invited from the parties as a matter of course. Witnesses should have a realistic entitlement to be heard in respect of concerns they have about giving evidence on a live stream. Some account should be taken of the fact that the courtroom is the workplace of barristers, and that we too are affected by participation in trials of this kind. In determining what trials are live-streamed, we must be careful not to confuse what is in the public interest, with what is interesting to the public.

I do not intend any of that to be a criticism of Justice Lee. There had never been a case of this kind before, and his judgment is sure to be just the beginning of what will grow to be a body of jurisprudence about how best to balance the competing interests in cases going forwards. Rather, my intention is to make a plea for there to be a more nuanced conversation.

After final submissions were delivered in the Lehrmann case on the eve of Christmas (literally, it was Friday 22 December), we all broke for the summer. I returned from the break wondering whether my misgivings about what had occurred in the course of the case were exaggerated, or simply the result of a unique set of circumstances that were unlikely to be repeated.

Which leads me to Deeming v Pesutto.

Moira Deeming is a first term member of Parliament in the Victorian upper house, elected in November 2022. In March 2023, she helped to organise, and then attended, a Let Women Speak rally on the steps of Parliament House.

The rally attracted counter-protesters and became violent. It was also gatecrashed by neo-Nazis, who later said that they had attended to support the rally. This is part of what happened on the steps of Parliament House in Melbourne ...

 

The day after the rally, the leader of the Liberal Party, Mr Pesutto, decided with his leadership team to move a motion to expel Mrs Deeming from the parliamentary Liberal Party. He issued a media release announcing that decision, and the following day did a series of media interviews and released materials publicly which he said supported the decision that had been made.

The proceedings concern whether those public statements by Mr Pesutto were defamatory of Mrs Deeming. To oversimplify (quite) a bit, Mrs Deeming alleges that Mr Pesutto’s public statements smeared her with false allegations of associations with Nazism.

The trial was live streamed. Neither party opposed the stream, but nor was it the subject of any substantive consideration. Viewership of the trial hovered in the low thousands, nowhere near that of the Lehrmann trial.

It is easy to understand, of course, why a trial of this kind concerns matters of public interest, and is at the same time, interesting to the public. It involved an airing, in open court, of divisions within the alternative government of the State. It examined a notorious incident in the life of the city, when neo-Nazis invaded the heart of Victoria’s democracy. It explored one of the key fronts in Australia's ongoing culture wars – the tension between those advocating for rights for trans and gender diverse individuals on the one hand, and those demanding rights for women based upon their biology at birth.

However, like Lehrmann, it seemed to me that the streaming of the case at times converted a serious trial, with vital interests at stake on both sides, into a form of public entertainment in which members of the public were invited to barrack for one side or the other.

On this occasion, Sue Chrystanthou was the clear public relations winner ... 

 

I, on the other hand, was stereotyped based on my sexuality, something I have always been public about, without seeking to be defined by it.

Other slides said that, as a gay man, I am a beta male (I had to ask about that, apparently it means I’m not an alpha male), or highlighted the fact that I include my preferred pronouns on my online profile, something I do to show my support for the extension of basic respect to trans and gender diverse people.

Not everyone, however, worked out my sexuality.

There was also this charming post ... 

As if we are actors in a legal drama, or contestants on a reality dating show.

Most disturbingly of all, some 15 minutes into my opening address to the Court, live-streamed before an audience of some thousands, I received this email ... 

About 10 minutes later, my secretary received a call from a person asking whether her boss enjoys abusing women and whether he watches troon porn with his faggot boyfriend.

None of this, obviously, is OK. I had to lock down my chambers, and arrange a security escort to and from court.

A bit later in the trial, the 7.30 program on the ABC devoted its lead story to the trial. You might think that the national broadcaster would have focused on the public interest aspects of the case; on the fact that neo-Nazis had performed a Nazi salute on the steps of Parliament; on the fact that the Liberal Party was tearing itself in two; or on the fact that there is a culture war between trans-rights advocates and so called TERFs, trans exclusionary radical feminists.

You would have been wrong. Instead the focus was almost comical. The first 30 seconds or so was noticeable in particular for the music and the graphics: 

When I saw that, I felt sick to the stomach. I still do.

I would be lying if I said I did not, at some level, enjoy a bit of the notoriety that comes from appearing in high profile cases. I have good stories at dinner parties. Hard cases are professionally rewarding. As vital participants in the justice system, we must expect our professional conduct to be scrutinised, and some loss of privacy is inevitable.

But I do think we need to have a conversation as a profession, and with the judiciary, about having sleep walked into a situation where prominent court cases have become a form of public entertainment in which open justice – critical though it is – presumptively triumphs over all else.

Barristers appearing in court cases are not cowboys at the OK Corral.

Court cases are not gladiatorial contests in which an audience barracks for one side or the other, as if at the football.

A day in court is not an episode in a reality TV show.

And judges deciding cases, on the evidence and with the benefit of the submissions of the parties, are not cultural warriors.

I have spoken with colleagues, you’ll no doubt guess who, about our experiences in the recent high profile matters and I know from those discussions that I am not alone in my concerns.

We have been invited to take them up, and will be taking them up, with the appropriate people. My hope is that with the benefit of actual experiences, and data, and collations of materials such as those that I have shown you today, it will be possible to edge towards a better balance, that enables the undoubted benefits of the streaming technology in terms of enabling the public to understand what happens in their courts, with the interests of all of the participants in the administration of justice – from the judiciary, to the parties, the witnesses and, yes, even the lawyers.