Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/297

(1) "the judgment [of the Chief Justice] was irregular by reason of the Chief Justice accepting (what was incorrect evidence) from the DPP and by denying Ms Wilkinson natural justice" and that to rely upon factual findings of McCallum CJ, contrary to s 91(2) EA, "based on the evidence before her not currently before this Court … would lead this Court into error";

(2) a "support or belief from a public figure in the guilt of an accused more than one week before trial" would not have the necessary tendency to affect the juror pool who would be "given strict directions in light of existing extreme publicity and notoriety and the numerous articles still online";

(3) Ms Wilkinson's "unchallenged evidence" is that she was asked by Network Ten through Ms Thornton to give the speech in early June and she "was placed in an invidious position of balancing her concerns (raised first in her email on 3 June 2022) with her obligations to comply as an employee with directions from her employer" and she relied "on the advice given to her by her employer's lawyers and the judgment of those to whom she reported".

1047 I do not regard these submissions as helpful.

1048 The notion the Chief Justice denied Ms Wilkinson natural justice is wholly misconceived. Although her Honour made adjectival factual findings based on the evidence before her (and I am required to make any findings on the basis of the evidence adduced in this proceeding), as is evident from even a cursory reading, the determinative reasoning of her Honour in vacating the hearing date was that (pinpoint references below are to Lehrmann (No 3)):

(1) "the combination of the speech and the posts amounted to Ms Wilkinson endorsing the credibility of the complainant who, in turn, celebrated Ms Wilkinson's endorsement of the complainant's credibility" (at 280 [25]);

(2) "the distinction between an untested allegation and the fact of guilt has been lost" and "Ms Wilkinson's status as a respected journalist is such as to lend credence to the representation of the complainant as a woman of courage whose story must be believed" (at 280 [29]);

(3) "the prejudice of such representations so widely reported so close to the date of empanelment of the jury cannot be overstated. The trial of the allegation against the

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