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Why is it so hard to cancel subscriptions or end ‘free’ trials? Report shows how companies trap you into paying

<div class="theconversation-article-body"><a href="https://theconversation.com/profiles/katharine-kemp-402096">Katharine Kemp</a>, <a href="https://theconversation.com/institutions/unsw-sydney-1414">UNSW Sydney</a> Many businesses are trapping Australian consumers in paid subscriptions by making them hard to cancel, hiding important details and offering “free” trials that auto-renew with hefty charges. We need law reform to tackle this continuing problem. <a href="https://cprc.org.au/report/let-me-out">A new report</a> shows 75% of Australian consumers have had negative experiences when trying to cancel a subscription, according to the Consumer Policy Research Centre (CPRC). It shows businesses use “<a href="https://www.wired.com/story/how-to-spot-avoid-dark-patterns/">dark patterns</a>”, which are designs that hinder consumers who try to act in their own best interests. Subscription traps are often called “<a href="https://www.ftc.gov/business-guidance/blog/2022/11/checking-out-ftcs-100-million-settlement-vonage">Hotel California</a>” techniques, referring to The Eagles’ famous lyric: “you can check out any time you want, but you can never leave”. In some of these cases, consumers may have remedies under our existing consumer law, including for misleading conduct. But we need law reform to capture other <a href="https://treasury.gov.au/consultation/c2023-430458">unfair practices</a>. In the meantime, the CPRC’s research also gives examples of businesses with fair, consumer-friendly subscription practices. These also benefit the business. <h2>Examples of unfair subscription traps</h2> <a href="https://www.forbes.com/councils/forbesbusinessdevelopmentcouncil/2022/09/12/the-evolution-of-the-subscription-model-and-whats-on-the-horizon/">Subscription business models</a> have become common – many products are now provided in the form of software, an app or access to a website. Some of these would once have been a physical book, newspaper, CD or exercise class. Most people who use online services have experienced the frustration of finding a credit card charge for an unwanted, unused subscription or spending excessive time trying to cancel a subscription. <figure class="align-center zoomable"><a href="https://images.theconversation.com/files/615486/original/file-20240826-16-fp57es.png?ixlib=rb-4.1.0&q=45&auto=format&w=1000&fit=clip"><img src="https://images.theconversation.com/files/615486/original/file-20240826-16-fp57es.png?ixlib=rb-4.1.0&q=45&auto=format&w=754&fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/615486/original/file-20240826-16-fp57es.png?ixlib=rb-4.1.0&q=45&auto=format&w=600&h=643&fit=crop&dpr=1 600w, https://images.theconversation.com/files/615486/original/file-20240826-16-fp57es.png?ixlib=rb-4.1.0&q=30&auto=format&w=600&h=643&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/615486/original/file-20240826-16-fp57es.png?ixlib=rb-4.1.0&q=15&auto=format&w=600&h=643&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/615486/original/file-20240826-16-fp57es.png?ixlib=rb-4.1.0&q=45&auto=format&w=754&h=808&fit=crop&dpr=1 754w, https://images.theconversation.com/files/615486/original/file-20240826-16-fp57es.png?ixlib=rb-4.1.0&q=30&auto=format&w=754&h=808&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/615486/original/file-20240826-16-fp57es.png?ixlib=rb-4.1.0&q=15&auto=format&w=754&h=808&fit=crop&dpr=3 2262w" alt="Infographic with a few statistics from the report." /></a><figcaption><a class="source" href="https://cprc.org.au/wp-content/uploads/2024/08/CPRC_LetMeOut_SubsTraps_Report_FINAL.pdf">CPRC, Let me out – Subscription trap practices in Australia, August 2024</a></figcaption></figure> Businesses can make it difficult for consumers to stop paying for unwanted subscriptions. Some do this by allowing consumers to start a subscription with a single click, but creating multiple obstacles if you want to end the subscription. This can include obscuring cancellation options in the app, requiring consumers to phone during business hours or making them navigate through multiple steps and offers before terminating. The report points out many of the last-ditch discounts offered in this process are only short term. One survey respondent said: <blockquote> I wasn’t able to cancel without having to call up and speak to someone. Their business hours meant I had to call up during my work day and it took some time to action. </blockquote> Other businesses badger consumers with frequent emails or messages after they cancel. One respondent said a business made “the cancellation process impossible by making you call and then judging your reason for cancellation”. <h2>What does consumer law say?</h2> Some subscription traps already fall foul of the Australian Consumer Law and warrant investigation by the <a href="https://www.accc.gov.au/media-release/accc-warns-consumers-to-beware-of-subscription-traps">Australian Competition & Consumer Commission</a> (ACCC). Consumers may have remedies where the business has engaged in misleading conduct or imposes an unfair contract term. For example, the ACCC is <a href="https://www.accc.gov.au/media-release/accc-court-action-against-eharmony-for-alleged-misleading-online-dating-membership-statements#:%7E:text=The%20ACCC%20has%20today%20commenced%20proceedings%20in%20the,the%20pricing%2C%20renewal%20and%20duration%20of%20its%20memberships.">suing dating site eHarmony</a> for its allegedly misleading subscription practices. In the United States, the Federal Trade Commission <a href="https://www.ftc.gov/news-events/news/press-releases/2024/06/ftc-takes-action-against-adobe-executives-hiding-fees-preventing-consumers-easily-cancelling">has filed a complaint against software company Adobe</a> for allegedly using dark patterns in its subscription practices. The Federal Trade Commission has alleged that “Adobe pushed consumers toward the ‘annual paid monthly’ subscription without adequately disclosing that cancelling the plan in the first year could cost hundreds of dollars”. Adobe <a href="https://news.adobe.com/news/news-details/2024/Adobes-Recent-Statement-Regarding-Updated-Federal-Trade-Commission-Complaint-/default.aspx">issued a statement</a> arguing the commission’s complaint “mischaracterises” its business. The litigation is ongoing. <h2>We need an unfair practices prohibition</h2> Some subscription traps would fall outside the existing consumer law. This is because they don’t meet the test for misleading conduct or unfair contract terms, but make it practically very difficult to cancel. The <a href="https://www.accc.gov.au/media-release/accc-welcomes-consultation-on-possible-unfair-trading-practices-regulatory-reforms">ACCC has advocated</a> for Australia to follow other countries such as the United Kingdom and the United States to enact an unfair practices prohibition to capture conduct like this. <figure class="align-center zoomable"><a href="https://images.theconversation.com/files/615487/original/file-20240826-16-2j23h7.png?ixlib=rb-4.1.0&q=45&auto=format&w=1000&fit=clip"><img src="https://images.theconversation.com/files/615487/original/file-20240826-16-2j23h7.png?ixlib=rb-4.1.0&q=45&auto=format&w=754&fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/615487/original/file-20240826-16-2j23h7.png?ixlib=rb-4.1.0&q=45&auto=format&w=600&h=769&fit=crop&dpr=1 600w, https://images.theconversation.com/files/615487/original/file-20240826-16-2j23h7.png?ixlib=rb-4.1.0&q=30&auto=format&w=600&h=769&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/615487/original/file-20240826-16-2j23h7.png?ixlib=rb-4.1.0&q=15&auto=format&w=600&h=769&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/615487/original/file-20240826-16-2j23h7.png?ixlib=rb-4.1.0&q=45&auto=format&w=754&h=966&fit=crop&dpr=1 754w, https://images.theconversation.com/files/615487/original/file-20240826-16-2j23h7.png?ixlib=rb-4.1.0&q=30&auto=format&w=754&h=966&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/615487/original/file-20240826-16-2j23h7.png?ixlib=rb-4.1.0&q=15&auto=format&w=754&h=966&fit=crop&dpr=3 2262w" alt="" /></a><figcaption>The shift businesses can make today. <a class="source" href="https://cprc.org.au/wp-content/uploads/2024/08/CPRC_LetMeOut_SubsTraps_Report_FINAL.pdf">CPRC, Let me out – Subscription trap practices in Australia, August 2024</a></figcaption></figure> <h2>Better practices benefit businesses too</h2> The CPRC report also revealed that 90% of Australians would likely purchase from the same organisation if cancelling a subscription process was quick and simple. Businesses focused on a short-sighted cash grab fail to realise that consumers might cancel but later return if treated well. The CPRC highlights businesses that are doing a good job. For instance, the habit change app Atoms (based on James Clear’s book Atomic Habits) has a genuinely free trial. It doesn’t require credit card details, doesn’t auto-renew, and lets consumers know how many trial days remain. The CPRC says the charity World Vision doesn’t auto-renew annual sponsorships, but reminds supporters about when the sponsorship will lapse. Importantly, some businesses – such as Netflix – use their data for good in this context. They notice when users are paying for the service without using it and help them unsubscribe. These practices should be applauded. But we need an unfair practices prohibition for businesses who don’t follow suit and recognise the long-term benefits of treating customers fairly.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/237236/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> <a href="https://theconversation.com/profiles/katharine-kemp-402096">Katharine Kemp</a>, Associate Professor, Faculty of Law & Justice; Lead, UNSW Public Interest Law & Tech Initiative, <a href="https://theconversation.com/institutions/unsw-sydney-1414">UNSW Sydney</a> Image credits: Shutterstock This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/why-is-it-so-hard-to-cancel-subscriptions-or-end-free-trials-report-shows-how-companies-trap-you-into-paying-237236">original article</a>. </div>

Money & Banking

With more lawsuits potentially looming, should politicians be allowed to sue for defamation?

<div class="theconversation-article-body"><a href="https://theconversation.com/profiles/brendan-clift-715691">Brendan Clift</a>, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a> Western Australia Senator Linda Reynolds is already <a href="https://www.theguardian.com/law/article/2024/aug/19/linda-reynolds-brittany-higgins-defamation-trial-fiona-brown-ntwnfb">embroiled</a> in a bruising defamation fight against her former staffer Brittany Higgins. Now, Opposition Leader Peter Dutton is reportedly <a href="https://www.skynews.com.au/australia-news/politics/peter-dutton-to-seek-legal-advice-after-zali-steggall-called-him-racist/video/9ce7c850f30fb1bd324831f2ec2f21b5">considering suing</a> independent MP Zali Steggall after <a href="https://www.smh.com.au/politics/federal/steggall-brands-dutton-a-bully-amid-spectre-of-legal-action-20240819-p5k3ez.html">she told him</a> to “stop being racist”. It has become impossible to miss the fact that our political class – including some who invoke freedom of speech while disparaging others – is remarkably keen on defamation litigation in response to actual or perceived slights. It’s rarely a good look when the powerful sue the less powerful. It is an especially bad look for a democracy when politicians, who enjoy not just power but privileged access to communication platforms, pursue legal avenues likely to bankrupt all but the best-resourced defendants. <h2>The freedom to speak one’s mind</h2> <a href="https://pages.eiu.com/rs/753-RIQ-438/images/Democracy-Index-2023-Final-report.pdf">Flawed democracies</a> such as Singapore are rightly <a href="https://link.springer.com/chapter/10.1007/978-981-99-5467-4_4">condemned</a> for leveraging defamation law and compliant courts against political dissent. While Australia’s situation is less problematic, our defamation laws historically favour reputation over freedom of speech. An oft-cited case in contrast is the United States, where politicians and other public figures can succeed in defamation only if they prove the publisher knew they were communicating a falsehood, or were reckless (careless to a very high degree) as to the truth. Statements of opinion – for instance, that Donald Trump is racist – are practically never in violation of the law. In the words of the <a href="https://supreme.justia.com/cases/federal/us/314/252/">US Supreme Court</a>: <blockquote> it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. </blockquote> The US approach is based on the <a href="https://supreme.justia.com/cases/federal/us/274/357/">classical liberal idea</a> that “the fitting remedy for evil counsels is good ones”: speech should generally be free, and public debate in the marketplace of ideas will sort out right and wrong. <h2>Putting conditions on free speech</h2> The argument for free speech without guardrails may be losing traction in a post-truth world. Many modern audiences, willingly or not, occupy echo chambers and filter bubbles in which biases are reinforced rather than challenged. It is almost as if the High Court of Australia foresaw this in <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1997/25.html">a 1997 defamation case</a> where it held that Australia’s Constitution did not require total freedom of political communication. Reasonable limits were appropriate because widespread irresponsible political communication could damage the political fabric of the nation. Although the High Court reached its conclusion via <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/journals/SydLawRw/2005/2.html">textual interpretation</a> of the Constitution rather than deeper philosophical musings, the court’s position reflects modern preoccupations with how speech should be regulated in a democracy. But the political appetite for defamation litigation in this country suggests the law has not yet struck the right balance. <h2>The point of defamation law</h2> <a href="https://www.smh.com.au/politics/nsw/business-owner-can-t-sue-over-one-star-google-review-judge-rules-20230124-p5cf05.html">Recent reforms</a> to defamation law have tried to eliminate frivolous lawsuits by introducing a threshold requirement of serious harm to reputation. A better approach may have been to presume that all defamation is trivial. Unlike other civil wrongs, which often result in physical injury or property damage, defamation’s effect on a person’s reputation is intangible. Unfairly tarnished reputations can usually be repaired by a public apology and correction, perhaps aided by nominal compensation for hurt feelings and to deter further defamation. It is therefore a mystery why courts and legislatures have allowed defamation proceedings to become some of the most complex and expensive civil claims around, and why damages are <a href="https://www.bbc.com/news/world-australia-48379980">so large</a>. A high-profile case can easily generate <a href="https://www.theguardian.com/australia-news/2024/apr/24/bruce-lehrmann-defamation-trial-legal-costs-channel-10-brittany-higgins-rape-allegation-ntwnfb">millions of dollars</a> in legal costs on both sides, dwarfing the final award which might itself run to hundreds of thousands of dollars. Taiwan offers a useful contrast. There, although politicians can sue for defamation, proceedings are relatively simple and damages are <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2668444">much smaller</a> – one might say proportionate to the harm done. Under both approaches, the successful litigant, whether it be the publisher or the person whose reputation has suffered, is vindicated. Surely that is the point. Where only the wealthy can afford to assert their rights, and where vindication of reputation takes a back seat to airing grievances, punishing opponents and enriching lawyers, defamation law is in a state of dysfunction. <h2>Should pollies sue?</h2> It’s sometimes said that politicians should not be able to sue for defamation at all because they themselves can say what they like under the protection of <a href="https://www.aph.gov.au/about_parliament/house_of_representatives/powers_practice_and_procedure/00_-_infosheets/infosheet_5_-_parliamentary_privilege#:%7E:text=What%20is%20parliamentary%20privilege%3F,the%20law%20of%20the%20Commonwealth.">parliamentary privilege</a>, immune from defamation and other speech laws. Parliamentarians do enjoy that protection, but its personal benefit is secondary. Parliamentary privilege, like courtroom privilege, exists because the nature of democratic (and judicial) deliberation requires that anything can be said. If a politician steps outside parliament and repeats a defamatory statement first made within its walls, they are vulnerable to being sued. <a href="https://www.abc.net.au/news/2021-03-03/sarah-hanson-young-david-leyonhjelm-defamation-appeal/13210042">David Leyonhjelm</a> learned this the hard way, and <a href="https://www.smh.com.au/politics/federal/steggall-brands-dutton-a-bully-amid-spectre-of-legal-action-20240819-p5k3ez.html">Steggall</a> may, too. It’s reasonable that politicians should also have rights of action in defamation. But those rights must be constrained according to what is appropriate in a democratic society. A way to better align defamation law with democratic expectations may be to return cases to the state courts and reinstate juries to a prominent role. Currently, the <a href="https://www.smh.com.au/national/the-death-of-juries-and-the-rise-of-blockbuster-federal-court-defamation-trials-20240125-p5ezyv.html">overwhelming majority</a> of cases are brought in the Federal Court, where they are decided by a judge sitting alone. If a public figure claims their reputation has been tarnished in the eyes of the community, we should test that factual claim with members of that community under the legal guidance of a judge. That might make for a welcome injection of common sense.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/237026/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> <a href="https://theconversation.com/profiles/brendan-clift-715691">Brendan Clift</a>, Lecturer in Law, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a> Image credits: Instagram This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/with-more-lawsuits-potentially-looming-should-politicians-be-allowed-to-sue-for-defamation-237026">original article</a>. </div>

Legal

Woolies trial bold new "scan as you go" trolleys

Woolworths shoppers will be able to scan their groceries when they go into their trolleys in an Australian-first trial of the tech carts. The Scan and Go carts are being trialled at a Woolworths in Windsor in western Sydney, with customers now able to scan items as they add them to their cart, eliminating time at busy checkouts. The technology, which has long been used in supermarkets overseas, utilises the already existing EverydayRewards cards, which allows access to a touchscreen that clips onto the trolley. As you peruse the aisles, shoppers then scan their items on the touchscreen as they go into the trolley, with the screen adding up the total of your groceries. Customers still have to pay at the checkout, but the supermarket says as the smart carts roll out, customers could eventually swipe their cards and pay directly at their trolley, cutting out the need for any time in line for tills. "The technology is co-created with one of our international partners [and is] home-grown in Australia, [we've] really been able to make sure it meets the Australian consumers needs," Woolies Managing Director Faye Ihan said. The high-tech system is meant to save shoppers time and money while doing their weekly grocery shop. "I actually have only been in here for half an hour I'd normally be here for over an hour," one customer who tried the smart cart told <a href="https://www.9news.com.au/national/woolies-trials-new-scan-as-you-go-trolleys/4e7e5c2d-04e9-4997-8a0e-0bb4bba8948d" target="_blank" rel="noopener">9News</a>. The company says the rollout won't impact employment, as Woolworths employees will conduct random checks of people shopping to make sure people don't exploit the system to steal. If the trial is successful, Woolworths says it will one day expand the smart carts to all Australian stories. Image credits: 9News

Food & Wine

Shocking verdict in trial of murdered campers

The jury have been split during Greg Lynn's trial, where he was accused of murdering campers Carol Clay and Russell Hill in March 2020. The 57-year-old faced a five-week trial in the Supreme Court, in which he pleaded not guilty to both counts of murder. During the trial, Lynn said the deaths were accidental, and admitted to destroying their bodies and the crime scene. However, both prosecutors said he killed both of the campers intentionally and then tried to cover up his crimes. The 12 jurors began their deliberation on June 17th and emerged seven days later with a shocking verdict. Lynn was found guilty of the murder of Carol Clay but found innocent of killing Russell Hill in a startling decision. When asked for a verdict on Hill's murder, the jury's foreperson told the court today "not guilty", and when asked about the murder of Clay, the foreperson replied "guilty". Lynn was physically shocked by the verdict, raising his eyebrows and remaining silent after the two verdicts were read aloud. Justice Michael Croucher dismissed the jury before Lynn was taken back to prison, where he will await his sentence. Image credits: Nine

Legal

Pauline Hanson responds to Robert Irwin's defamation claims

Pauline Hanson's lawyers have slammed Robert Irwin's “nonsensical”, after he <a href="https://www.oversixty.com.au/finance/legal/robert-irwin-threatens-to-sue-pauline-hanson-over-defamatory-cartoon" target="_blank" rel="noopener">threatened to take legal action</a> against the politician over the latest controversial episode of her Youtube series Please Explain. The satirical cartoon, features Irwin's misadventures with Bluey as they attempt to promote a new tourism campaign for Queensland. In the video, their car was stolen by "juvenile delinquents" before Bluey falls into a giant pothole, and then they had to wait six months for healthcare. Irwin's lawyers alleged that the cartoon was defamatory and involved the “unauthorised and deceptive use of our client’s image”, and demanded them to remove it from social media by 5pm Monday. However, the politician has ignored their threats of taking legal action, with her lawyers responding that the video was a “satirical assessment of the various failings of the Queensland State Government” and that it was not defamatory in any way. They said that the video, which referenced a recent tourism campaign Irwin was in, was “a humorous critique of that advertisement published primarily for a political purpose”. “Your clients’ claims of passing off and defamation are so plainly inconsistent as to be nonsensical," they wrote in a letter addressed to Irwin's lawyers. “It is difficult to comprehend how a viewer could understand that the video represents an affiliation with your client if he is also being defamed in the same publication.” Hanson also insisted that she would not take down the video. “I will not be removing the latest episode of Pauline Hanson’s Please Explain,” she wrote on X, formerly Twitter. “I look forward to the day when Robert and I can have a good laugh over this and turn our focus to making Queensland a better state.” Image: Instagram/ X/ Getty

Legal

Robert Irwin threatens to sue Pauline Hanson over "defamatory" cartoon

Robert Irwin has threatened to sue One Nation leader Pauline Hanson for defamation. In the latest episode of Pauline Hanson's cartoon series Please Explain, Irwin claimed that he was mocked after it depicted him and Bluey promoting a new tourism campaign for Queensland. The episode satirically depicted Irwin attempting to show Bluey the best of Queensland, but mocked the state's housing crisis, youth crime, and health care. At one point in the cartoon, the pair mistake a long queue for a rental property for a line at Movie World. FC Lawyers, who are acting on behalf of the wildlife conservationist, have sent a cease and desist letter to StepMates Studios, the production team behind Pauline Hanson’s cartoon series. In the letter obtained by NewsWire, Irwin's lawyer claimed that the cartoon is defamatory and involves the “unauthorised and deceptive use of our client’s image”. “You are potentially liable to our client in respect of defamation, deceptive use of a person’s image, passing off and misleading and deceptive conduct,” the letter sates. “We will commence legal action against you if you do not take down the video immediately.” The letter also claims that the cartoon tarnished Irwin's reputation and misled the public, causing “significant harm to our client’s brand and image”. “We are concerned that the unlawful use of our client’s image may be an attempt to pass off yourself or party as currently being affiliated or otherwise authorised by us, which you are not,” it continues. “This unlawful use has the potential to mislead or deceive consumers into believing that you have. “The use of our client’s image and name on the video is capable of leading not an insignificant number of reasonable and/or ordinary people into erroneously believing that the Pauline Hanson is associated with Robert.” Some people have defended Irwin's move, saying: "It is Pauline Hanson who is the politician and she has a record of trying to sue others when offended." "She likes to dish it out but can’t take it which will cost her at the ballot box!" "What about when Pauline Hanson threatened legal action over Pauline Pantsdown," another added. However, a few others have called him a "snowflake" and told him to "grow up". "Your dad would [have] had a good laugh at Pauline's cartoon. Grow up, stop being a snowflake!" one person wrote on X. "Robert Irwin is very thin skinned he needs a laugh," another added. Images: news.com.au/ Instagram/ Getty

Legal

Charlise Mutten's mother flees court in tears

Charlise Mutten's mother has broken down and fled the courtroom in tears after being accused of murdering her nine-year-old daughter. Kallista Mutten was grilled by her ex-fiancé Justin Stein's lawyer on Tuesday about her excessive methamphetamine use, including while pregnant with his child. The grilling began when Carolyn Davenport SC accused her by saying, "You shot and killed your daughter", to which Ms Mutten replied, "Are you serious?" She then burst into tears, crying out "I didn't even know where she was shot" before Ms Davenport added that Mr Stein "had seen you deliver the second shot". After being excused from the witness box, Ms Mutten ran out of the courtroom in tears, while the jury were temporarily sent out. The dramatic moment came after Ms Mutten admitted taking methamphetamine even when her daughter came to visit. Ms Mutten was being cross-examined on day 12 of Stein's trial, who has been charged with Charlise's murder in January 2022. The 40-year-old admitted to having psychotic episodes while on using ice and had continued to take the drug despite her Charlise's visit during the summer school holidays in 2022. She denied she and Charlise were not getting along in the days before her death, or that she had been told to leave the Stein's Mount Wilson property, and instead left of her own accord. "I chose to leave because I didn't want to be there any more. Yeah, I was very hormonal, I was pregnant. Yeah, I was using, yeah. My emotions were very strong at the time," she said. Stein, 33, has pleaded not guilty to murdering Charlise, but has admitted to disposing the schoolgirl's body. Image credits: Daily Mail / Facebook / Nine News

Legal

Former pilot accused of murder shares his version of events

Former Jetstar pilot Greg Lynn has shared his version of events from the day Russell Hill and Carol Clay were allegedly murdered. Mr Lynn, who is on trial for the murders of the elderly campers, claimed Mr Hill, 74, knifed himself in a struggle after he accidentally shot his childhood sweetheart Ms Clay, 73, in the head. Police allege Mr Hill and Ms Clay were murdered while camping in the remote Wonnangatta Valley in Victoria's Alpine region more than four years ago, with Crown prosecutor Daniel Porceddu telling the jury at the opening of the trial exactly how and why Lynn allegedly killed the couple. "The precise circumstances of the killing are unknown, nor is the motivation," he said. The jury heard it was most likely a dispute over the use Mr Hill's drone, as Mr Porceddu said, "There might have been an argument or confrontation between the men. It is not known how Mr Hill was killed." But in providing a brief defence, Lynn's barrister Dermot Dann KC, claimed Mr Hill and Ms Clay's death was the result of a tragic accident, telling the jury, "We say not a case of murder, this is a case of two accidental, tragic deaths." "Tragic accidental deaths in circumstances that were not of Mr Lynn's making and not of his choosing." Mr Dann told the jury that Mr Hill allegedly stole Lynn's shotgun after he became enraged about Lynn playing loud music on the night he was killed. The barrister then detailed how a fight over the gun ensued, which resulted in Mr Hill accidentally shooting Ms Clay in the head, as Mr Lynn tried to disarm him. Mr Dann said Lynn picked up the gun and fired its remaining ammunition into the air before being set upon by an enraged Mr Hill. "The next thing is Mr Hill's advancing towards him with a knife screaming at him 'she's dead'," Mr Dann said. "A struggle developed over the knife. Mr Lynn trying to defend himself - they're locked in this struggle - and as part of that struggle the two men fall to the ground and the knife goes through the chest of Mr Hill." Upon his arrest, Mr Dann claimed Lynn co-operated with detectives, telling them where to find the bodies of the campers, and once again telling the jury that Mr Lynn is not guilty of murder or manslaughter. Image credits: Supplied / Facebook

Legal

Bombshell allegations in murder case of young school girl

The man accused of murdering nine-year-old Charlise Mutten has claimed her mother was the one to pull the trigger. Justin Stein, 33, is facing trial for allegedly murdering Charlise in January 2022 at Mount Wilson, in the Blue Mountains west of Sydney. Nine-year-old Charlise was shot once in the head and once in the back, with her body recovered from a barrel dumped near the Colo River, four days after she was reported missing by her mother. On Monday, Stein formally pleaded not guilty to the charges, and has now alleged it was actually Charlise's mother who killed her and helped stuff her body in a barrel before lying to police. The court heard that Stein was in a relationship with Charlise's mother Kallista Mutten, as the pair met while both serving jail sentences. Both parties struggled with substance abuse, as Kallista had been using ice since she was in her early 20s, while Justin had been undergoing treatment for heroin addiction. Before the alleged murder, Stein and Kallista broke into a neighbour’s home near the Mount Wilson property, taking two firearms, crown prosecutor Ken McKay SC told the jury. Stein initially told police the girl may have been taken by unknown persons, but later told a corrections officer Kallista had shot and killed her daughter and that he had helped dispose of the body. According to Stein’s lawyer, Carolyn Davenport SC, Stein had been inside a shed on the Blue Mountains property when he heard a gunshot, and had gone outside to see Kallista shooting her daughter a second time. At the time of her death, Charlise was living with her grandparents at Tweed Heads, and had flown to Sydney on December 21st with plans to spend Christmas and New Year’s Eve with her mother and Stein. Image credits: ABC / NSW Police

Legal

Brutal cost of Bruce Lehrmann’s failed defamation case

Bruce Lehrmann has been ordered to pay the majority of Network Ten's multi-million dollar legal fees after his failed defamation case. In April, Lehrmann faced a huge loss after the Federal Court found an allegation that he raped Brittany Higgins in a Parliament House office in March 2019 was most likely true, therefore is unable to be defamed for the allegations. The 28-year-old had sued Network Ten for defamation over a February 2021 report on The Project, in which journalist Lisa Wilkinson interviewed Higgins over the rape allegation. Since the defamation case drew to a close, the parties have been in dispute over the legal costs and who should foot what is expected to amount to a sizeable legal bill for the long-running and high-profile case. On Friday afternoon, Justice Michael Lee found in favour of Ten's application for indemnity costs for most of the trial, as Lehrmann is now ordered to pay for the network's and Wilkinson's costs on an ordinary and indemnity basis, but he will not have to pay costs for some affidavits. "In the end, it comes down to the order for costs that best does overall justice in the circumstances," Lee told the court. "On balance, the appropriate exercise of discretion is to make an award that Network Ten recover its costs against Mr Lehrmann on an indemnity basis, except for costs incurred in relation to the statutory qualified privilege defence." In explaining his decision, the judge said he found Lehrmann had defended the criminal charge "on a false basis, lied to police, and then allowed that lie to go uncorrected before the jury". "He wrongly instructed his senior counsel to cross-examine a complainant of sexual assault, in two legal proceedings, including, relevantly for present purposes, this case, on a knowingly false premise," he said. Earlier in the week, the court heard Lehrmann had no financial backers and that his lawyers had agreed they did not need to be paid if he lost the case. The total amount he will have to pay will be determined at a hearing later in May. Image credits: Getty Images <p style="box-sizing: border-box; font-size: 18px; line-height: 24px; color: #333333; caret-color: #333333; font-family: 'Proxima Nova', system-ui, -apple-system, BlinkMacSystemFont, 'Segoe UI', Roboto, Oxygen, Ubuntu, Cantarell, 'Helvetica Neue', sans-serif, 'Apple Color Emoji', 'Segoe UI Emoji', 'Segoe UI Symbol';">

Legal

Judge finds Bruce Lehrmann raped Brittany Higgins and dismisses Network 10 defamation case. How did it play out?

<a href="https://theconversation.com/profiles/brendan-clift-715691">Brendan Clift</a>, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a> Bruce Lehrmann has lost his defamation suit against Channel Ten and journalist Lisa Wilkinson after the media defendants proved, on the balance of probabilities, that Lehrmann raped his colleague Brittany Higgins in Parliament House in 2019. After a trial lasting around a month, Federal Court Justice Michael Lee – an experienced defamation judge – concluded that both Lehrmann and Higgins had credibility issues, but ultimately <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca0369">he was persuaded</a> that Lehrmann raped Higgins, as she’d alleged and he’d denied. <h2>Criminal trials by proxy</h2> Ordinarily, charges like rape would be resolved through the criminal courts, but Lehrmann’s criminal trial was <a href="https://www.abc.net.au/news/2022-10-27/jury-discharged-in-trial-of-bruce-lehrmann-brittany-higgins/101583486">aborted</a> in October 2022 after juror misconduct. The charges against him were soon <a href="https://www.news.com.au/national/nsw-act/courts-law/bruce-lehrmann-sexual-assault-charge-dropped-dpp-confirms/news-story/3f82dd388d2cfa38680f7d4f4ceb1c5e">dropped</a>, nominally over concerns for Higgins’ mental health. Higgins, however, foresaw civil proceedings and <a href="https://www.theguardian.com/australia-news/2023/dec/05/brittany-higgins-volunteered-to-be-defamation-trial-witness-as-she-would-not-let-rapist-become-a-millionaire-ntwnfb">offered to testify</a> should they arise. That they did, as Lehrmann, free from the burden of any proven crime, sued several media outlets for defamation over their reporting into the allegations (<a href="https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/lehrmann">the ABC</a> and <a href="https://www.theguardian.com/australia-news/2023/dec/06/abc-agrees-to-pay-bruce-lehrmann-150000-to-settle-defamation-claim-court-documents-reveal">News Corp</a> both settled out of court). <iframe class="flourish-embed-iframe" style="width: 100%; height: 550px;" title="Interactive or visual content" src="https://flo.uri.sh/visualisation/17195035/embed" width="100%" height="400" frameborder="0" scrolling="no" sandbox="allow-same-origin allow-forms allow-scripts allow-downloads allow-popups allow-popups-to-escape-sandbox allow-top-navigation-by-user-activation"></iframe> <div style="width: 100%!; margin-top: 4px!important; text-align: right!important;"><a class="flourish-credit" href="https://public.flourish.studio/visualisation/17195035/?utm_source=embed&utm_campaign=visualisation/17195035" target="_top"><img src="https://public.flourish.studio/resources/made_with_flourish.svg" alt="Made with Flourish" /></a></div> Like Ben Roberts-Smith’s <a href="https://theconversation.com/dismissed-legal-experts-explain-the-judgment-in-the-ben-roberts-smith-defamation-case-191503">recent defamation suit</a> against the former Fairfax papers, this became another case of civil proceedings testing grave allegations in the absence of a criminal law outcome. The form of proceedings made for some key differences with the aborted criminal trial. In criminal cases, prosecutors are ethically bound to act with moderation in pursuing a conviction, which requires proof beyond a reasonable doubt, while defendants have the right to silence. By contrast, this trial featured detailed accounts from both sides as each sought to convince, in essence, that their contentions were likely to be correct. Also like the Roberts-Smith case, live streaming of the trial generated very high levels of public engagement. Today’s stream reached audiences of more than 45,000 people. It gave us the chance to assess who and what we believe, and to scrutinise the parties’ claims and the media’s reporting. The Federal Court doesn’t have juries, but we, the public, acted as a de facto panel of peers. We saw accusations and denials, revealing <a href="https://www.abc.net.au/news/2023-12-23/bruce-lehrmann-defamation-trial-network-ten-lisa-wilkinson-ends/103260752">cross-examination</a> of the protagonists, witness testimony from colleagues, CCTV footage from nightclubs to Parliament House complete with lip-reading, expert testimony on alcohol consumption and consent, and lawyers constructing timelines which supported or poked holes in competing versions of events. The complexity of high-stakes legal proceedings was on display, with Justice Lee issuing many interim decisions on questions of procedure and evidence. Whenever transparency was at stake, it won. The preference for full disclosure led to the <a href="https://www.theguardian.com/law/2024/apr/02/bruce-lehrmann-defamation-trial-network-10-fresh-evidence-bid-lisa-wilkinson-brittany-higgins-delay-ntwnfb">case being re-opened</a> at the eleventh hour to call former Channel 7 producer Taylor Auerbach as a witness, providing a denouement that the judge called “sordid”, but which had little relevance to the final result. <h2>An argument over the truth</h2> Lehrmann had the burden of proving that the defendants published matter harmful to his reputation. That matter was Wilkinson’s interview with Higgins on Channel Ten’s The Project in which the allegations were made. A statement is only defamatory if it’s untrue, but in Australian law, the publisher bears the burden of proving truth, should they opt for that defence. And more serious allegations usually require more compelling proof, as the law views them as inherently more unlikely. This can be onerous for a defamation defendant, but it also involves risk for the plaintiff, should the defendant embark on an odyssey of truth-telling yet more damaging to the plaintiff’s image. That happened to <a href="https://www.bbc.com/news/world-australia-65717684">Ben Roberts-Smith</a> and it happened to Lehrmann here. On the other hand, if the media hasn’t done their homework, as in <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1223">Heston Russell’s case</a> against the ABC (also presided over by Justice Lee), the complainant can be vindicated. This case was a manifestation of Lehrmann’s professed desire to “<a href="https://www.theguardian.com/australia-news/2023/oct/26/how-bruce-lehrmanns-media-interviews-cost-him-his-anonymity-in-toowoomba-case">light some fires</a>”. Few players in this extended saga have emerged without scars, and here he burned his own fingers, badly. As Justice Lee put it, Lehrmann, “having escaped the lion’s den [of criminal prosecution], made the mistake of coming back to get his hat”. <h2>How was the case decided?</h2> Lehrmann denied having sex with Higgins, whereas Higgins alleged there had been non-consensual sex. The defamatory nature of the publication centred on the claim of rape, so that was what the media defendants sought to prove. This left open the curious possibility that consensual sex might have taken place: if so, Lehrmann would have brought his case on a false premise (there had been no sex), but the media would have failed to defend it (by not proving a lack of consent), resulting in a Lehrmann win. That awkward scenario did not arise. The court found sex did in fact take place, Higgins in her heavily-inebriated and barely-conscious state did not give consent, and Lehrmann was so intent on his gratification that he ignored the requirement of consent. Justice Lee found Lehrmann to be a persistent, self-interested liar, whereas Higgin’s credibility issues were of lesser degree, some symptomatic of a person piecing together a part-remembered trauma. The judge drew strongly on the evidence of certain neutral parties who could testify to incidents or words spoken in close proximity to the events. <h2>Defamation laws favour the aggrieved</h2> Australian defamation law has historically favoured plaintiffs and, despite recent <a href="https://www.ruleoflaw.org.au/civil/defamation/2021-law-reform/">rebalancing attempts</a>, it remains a favoured legal weapon for those with the resources to use it. This includes our political class, who sue their critics for defamation with unhealthy frequency for a democracy. In the United States, public figures don’t have it so easy: to win they must prove their critics were lying. In Australia, the media sometimes succeeds in proving truth, but contesting defamation proceedings comes at great financial cost and takes an emotional toll on the journalists involved. Nor can a true claim always be proven to a court’s satisfaction, given the rules of evidence and the fact that sources may be reluctant to testify or protected by a reporter’s guarantee of confidentiality. But this case demonstrates that publishers with an appetite for the legal fight can come out on top.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/225891/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> <a href="https://theconversation.com/profiles/brendan-clift-715691">Brendan Clift</a>, Lecturer of law, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a> Image credits: Getty Images This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/judge-finds-bruce-lehrmann-raped-brittany-higgins-and-dismisses-network-10-defamation-case-how-did-it-play-out-225891">original article</a>.

Legal

Sam Kerr's alleged racial comments revealed by UK paper

The legal controversy surrounding Matildas star Sam Kerr following allegations of racially charged remarks directed towards a police officer in London continues to unfold, after a UK newspaper published those alleged remarks. According to <a href="https://www.thesun.co.uk/sport/26401266/sam-kerr-football-charge-crime-police-fifa/" target="_blank" rel="noopener">The Sun</a>, Kerr allegedly called a police officer a "stupid white bastard" during a dispute over a taxi fare. The details emerged as Kerr faced charges for using insulting, threatening or abusive words towards the officer, causing alarm or distress. The seriousness of the allegations is underscored by the potential consequences, with Kerr facing a maximum sentence of two years' imprisonment if convicted. The incident is said to have taken place in January 2023 shortly after Kerr's remarkable performance in a Chelsea FA Cup victory, and Kerr has maintained her innocence, pleading not guilty to the charges brought against her. The delayed prosecution in Kerr's case has sparked speculation, with reports suggesting that determining the appropriate charge was a complex process for the Crown Prosecution Service. However, as the trial approaches, the focus shifts towards the legal proceedings and the evidence that will be presented in court. Throughout her career, Kerr has been a prominent figure in the fight against racism in sport. Her past actions, including posing with an Aboriginal flag alongside her Matildas teammates, reflect a commitment to promoting inclusivity and unity. Kerr's accolades both on and off the field have solidified her iconic status, making the allegations against her all the more surprising. In response to the controversy, Matildas coach Tony Gustavsson and Football Australia CEO James Johnson expressed their lack of prior knowledge regarding the incident. Prime Minister Anthony Albanese declined to comment directly on the matter, but said that Kerr's actions during her tenure as the national flag bearer exemplified pride and dignity. “I don’t comment on legal matters before Australian courts, let alone other ones,” Albanese said. “I will say this about my contact with Sam Kerr, she was our flag bearer at the coronation. My contact with her was exemplary. She did Australia proud at that time and I think that my contact with her has been nothing but delightful.” Images: Getty

Legal

Matildas captain Sam Kerr to face criminal trial

Matildas superstar Sam Kerr has found herself at the centre of legal proceedings in London, as she pled not guilty to charges stemming from an alleged incident involving a police officer earlier this year. Kerr, aged 30, appeared before Kingston Crown Court via videolink to contest accusations of using insulting, threatening or abusive language towards a police officer in Twickenham on January 30. During the hearing, Kerr confirmed her identity and entered a "not guilty" plea to the charge, which was later confirmed by the Metropolitan Police. The specifics of the charge were outlined in a police charge sheet, citing Kerr for a racially aggravated offence under Section 4A of the Public Order Act 1986. The incident allegedly occurred during police intervention related to a complaint involving a taxi fare. The trial, slated to commence in February 2025, is expected to span four days, during which two police officers will provide evidence. Meanwhile, Football Australia (FA) has issued a statement acknowledging the legal proceedings involving Kerr, asserting their commitment to support all players both on and off the field. However, due to the ongoing legal nature of the situation, further comments were withheld. “Football Australia is aware of the legal proceedings involving Sam Kerr in the United Kingdom,” the statement read. “As this is an ongoing legal matter, we are unable to provide further comment at this time. Our focus remains on supporting all our players, both on and off the field. We will continue to monitor the situation and provide support as appropriate.” The announcement comes after Kerr's unfortunate sidelining from both club and international duties. Suffering an anterior cruciate ligament (ACL) injury during Chelsea's warm-weather training camp in Morocco, Kerr faces a prolonged period of rehabilitation, ruling her out of action for the foreseeable future. Her absence from the Matildas' lineup is particularly sorely felt, with preparations for the Paris Olympics underway. Despite the setback, Football Australia has not officially ruled Kerr out of contention for the Olympics. However, the typical recovery timeline for ACL injuries suggests a lengthy rehabilitation process, casting doubts on Kerr's participation in the upcoming tournament scheduled to begin on July 26. Images: Getty Images

Legal

Lip reader provides evidence against Bruce Lehrmann

A lip-reading expert has provided key evidence in Bruce Lehrmann's defamation trial against Network Ten, revealing what he believes was said between Lehrmann and Brittany Higgins on the night of the alleged rape. British lip reader Tim Reedy, a forensic lip reader who has previously worked for The Sunday Times to translate video of Royals speaking at funerals and weddings, has been grilled after deciphering what was said between the pair at a pub in Canberra. Reedy, who became profoundly deaf as a child, claimed that Bruce Lehrmann told Brittany Higgins that several drinks on a table on the night of her alleged rape were “all hers, all hers”. He explained he was “very certain that this is what was said” and the phrases were “more than 50 per cent” accurate. Mr Lehrmann’s barrister Steve Whybrow posed a series of questions over his claim that his client had said “Drink that all now”, and that Ms Higgins had said “I don’t want to”. “What I wanted to ask you, consistent with what you say in your appendix about how you go about lip reading, you took into account the context, which included your assessment that the man was plying her with drinks, is that correct?” Mr Whybrow asked. Reedy stood by his assessment, sharing that he he had watched the video intently over a three-day period, saying he was able to use Apple technology to “fine tune” the images and had “the luxury” of going back and watching the footage repeatedly. At the conclusion of Mr Reedy’s evidence, Mr Lehrmann’s barrister Steve Whybrow argued it should not be admitted as evidence. Justice Lee disagreed with Mr Whybrow, saying: “I accept that lip reading is not perfect, but the guide for the admissibility of expert evidence is not a council of perfection. One has to take areas of specialised knowledge as one finds them.” “I do not think I should exclude the evidence. But the matters raised by Mr Whybrow are best seen through the prism of the ultimate weight to be given to the material. Accordingly I accept the tender of the material.” In the opening days of the trial, Network Ten barrister Matt Collins KC flagged flagged the lip reader's evidence, as he put to Mr Lehrmann some of the lip-reader's claims during cross examination. “You said to her ‘Drink that all now’, Dr Collins suggested. “I would just completely disagree with that,’’ Mr Lehrmann replied. “She responded, ‘I don’t want to’?” Collins asked. “I don’t recall that ever taking place, no,’’ Mr Lehrmann said. “You were encouraging Ms Higgins to get drunk,” Ten’s barrister Matthew Collins KC said during cross-examination. “No,” Lehrmann replied. Image credits: 7 Spotlight / Getty Images <div class="media image side-by-side" style="caret-color: #000000; color: #000000; font-style: normal; font-variant-caps: normal; font-weight: 400; letter-spacing: normal; orphans: auto; text-align: start; text-indent: 0px; text-transform: none; white-space: normal; widows: auto; word-spacing: 0px; -webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; text-decoration: none; box-sizing: inherit; margin-bottom: 24px; display: flex; flex-direction: column; align-items: center; width: 705.202209px; max-width: 100%;"> </div>

Legal

"Very poor journalism": Lisa Wilkinson called out in defamation case

Lisa Wilkinson has been forced to defend the journalistic decisions of The Project, as she took to the stand as part of Bruce Lehrmann's defamation case against Wilkinson and Channel Ten. During court proceedings on Friday, Wilkinson admitted that during her bombshell report on Brittany Higgins' rape allegations, the program left out key information. The Project allegedly edited out important details about what happened in Parliament House the morning after Brittany Higgins was allegedly raped. <div data-body-element-id="zjCMXjhzxa"> In an uncut version of the episode which aired in February 2021, Wilkinson asked Ms Higgins if any security guards had asked if she was "okay" after the alleged incident. </div> <div data-body-element-id="R0B2D1Ni6K"> Ms Higgins replied, "No, no. I mean, besides one who called into the office in the morning, and said ‘Is everyone okay?’ and that was it." </div> <div data-body-element-id="2D5V5jCZaQ"> In the final cut, the words "...besides the one who called into the office in the morning" were not included. </div> <div data-body-element-id="9FH5ZgE5Ew"> Bruce Lehrmann's barrister Matthew Richardson SC quizzed Wilkinson about the edit, saying, "That's very poor journalism, isn't it?" </div> <div data-body-element-id="q0X6OvsQtG"> Wilkinson replied, "I'm disappointed to see that. It is a detail which escaped my attention." Elsewhere during the court proceedings, Wilkinson bit back at Lehrmann's lawyer for challenging her journalistic abilities. On Thursday, Wilkinson was asked why she didn't ask to see the metadata on a photo of a bruise on Brittany Higgins' thigh, which she claimed was from the alleged rape. Wilkinson told the Federal Court that she was not "tech-savvy" and did not know what metadata was, saying, "I didn't know photos had metadata." <div data-body-element-id="A9GzCf-Iqm"> Lehrmann's lawyer Mr Richardson was quick to ask in response: "You describe yourself as a serious investigative journalist?" </div> <div data-body-element-id="3eDMnH9cY0"> She bit back, stating she only refers to herself as a "journalist". </div> <div data-body-element-id="tMBlnKPjTn"> Mr Richardson said, "You were emphatic yesterday when you said you were not a tabloid journalist.' </div> <div data-body-element-id="9WzAcuceor"> She repeated: "I describe myself as a journalist, Mr Richardson." </div> <div data-body-element-id="bUfGxqx44_"> He said given she had been a journalist for 40 years, "it was most improbable that you did not know what metadata was." </div> <div data-body-element-id="QIHT-BVE1b"> She replied, "I disagree." Image credits: Getty Images </div> </div>

Legal

“That’s insulting”: Brittany Higgins grilled over "fabricated" allegations

Brittany Higgins has denied she lied when she accused Bruce Lehrmann of sexually assaulting her in Parliament House. Higgins was called to give evidence on Thursday, as part of Lehrmann's defamation suit against Lisa Wilkinson and Channel Ten, when she was grilled during cross-examination by Lehrmann’s barrister Steven Whybrow SC. “That is a fabrication that you were sexually assaulted,” Whybrow said. “I understand that is your assertion. It’s insulting but I understand it,” Higgins replied. Whybrow’s questioning revolved around how Higgins’ recollection of events changed between statements she gave to the police, in court, to journalists from Ten and a news website, and in the first draft of a book she sent to publisher Penguin Random House. One example was that the location of a box of chocolates eaten after the alleged rape had changed between versions. “I want to suggest to you that is an example of your evidence evolving as you find out new information,” Whybrow said. “No, I don’t accept that,” Higgins answered. She admitted giving incorrect statements to Wilkinson and Ten producer Angus Llewellyn during a five-hour interview conducted in January 2021, before she was filmed for bombshell The Project broadcast that first aired Brittany's story. These claims, which included what security did and what she was wearing after the alleged rape, were based on her beliefs at the time, the court was told. Lehrmann has also already given evidence in which he admitted to a number of lies and false statements he gave to police, Parliament House security, his employer and supervisor, and the media. Lehrmann is suing Lisa Wilkinson and Channel Ten for defamation, specifically citing a February 2021 report on The Project in which Higgins was interviewed and her sexual assault story made national headlines. Image credits: Getty Images

Legal

Bruce Lehrmann condemns damning inquiry and labels trial conduct as a "dark chapter"

Bruce Lehrmann has expressed his strong disapproval of a damning inquiry into his rape trial, referring to it as "a dark chapter" in the justice system. In response to the inquiry's findings, Bruce Lehrmann has criticised the Director of Public Prosecutions, Shane Drumgold, for his conduct during the trial, stating that it was a troubling episode for the justice system. The former Liberal staffer, who intends to pursue a multimillion-dollar compensation claim over the trial's handling, commended his legal team, led by Steve Whybrow SC and Kamy Saeedi lawyers. Mr. Lehrmann stated to <a href="https://www.news.com.au/national/nsw-act/courts-law/bruce-lehrmann-slams-damning-inquiry-describes-trial-conduct-as-dark-chapter/news-story/b5b6ec06d5b435f8870a1e7d5b9ae4b8" target="_blank" rel="noopener">news.com.au</a>, "Much of what we are reading, my brilliant criminal defense team led by Steve Whybrow SC suspected all along. I owe everything to the lawyers who have surrounded me. This is overwhelming and alarming reading." He also acknowledged Mr. Sofronoff and his team for revealing the truth and shedding light on what he perceives as a dark chapter for the ACT Justice system. Mr. Lehrmann promised to share more details once the Chief Minister releases the full report to the public. The landmark inquiry found that the prosecution's legal initiation was appropriate, but it severely criticised Mr. Drumgold's actions during the trial. Walter Sofronoff KC, a former Supreme Court judge in Queensland, affirmed the lawfulness of the police's charges against Mr. Lehrmann and agreed that the Office of the Director of Public Prosecutions was justified in prosecuting based on the available evidence. It is essential to note that this finding does not reflect Mr. Lehrmann's guilt or innocence but focuses on the conduct of the police and the Office of the Director of Public Prosecutions. Mr. Lehrmann remains innocent under the law since he was never convicted, as the trial collapsed following an allegation of juror misconduct. However, the inquiry revealed damning evidence against Mr. Drumgold, accusing him of "knowingly lying" to the ACT Supreme Court regarding his alleged warning to Lisa Wilkinson concerning her Logies speech. The report uncovered unethical conduct by Mr. Drumgold, including his use of a note related to a discussion he had with Ms. Wilkinson just days before her speech. The Australian newspaper <a href="https://www.theaustralian.com.au/nation/sofronoff-report-reveals-shane-drumgold-lied-during-bruce-lehrmann-rape-case/news-story/07d25b9c79364a10473806e3df48dfa7" target="_blank" rel="noopener">obtained a complete copy</a> of the extensive 600-page Sofronoff report, which confirmed the seriousness of the findings against Mr. Drumgold. This led Mr. Sofronoff to contemplate whether the DPP was suitable to continue holding the office. The inquiry was initiated after Mr. Drumgold wrote a letter to ACT Chief Police Officer Neil Gaughan in November 2022, demanding an inquiry and making "scandalous allegations" about political interference. However, the inquiry revealed that these allegations were baseless and untrue. The report further criticised Mr. Drumgold for not disclosing crucial material to the defence, which is a significant violation of the principle of disclosure in criminal litigation. Chief Justice Lucy McCallum's stern criticism of Ms. Wilkinson's Logies speech led to a four-month delay in the trial and sparked a firestorm of adverse publicity. The report favoured Ms. Wilkinson's account over Mr. Drumgold's, suggesting that he had knowingly lied to Chief Justice McCallum about his warning to the broadcaster. Mr. Sofronoff stated that while Ms. Wilkinson should have exercised caution in making the speech given the trial's proximity, Mr. Drumgold had a responsibility to the court and failed to act appropriately. In conclusion, the Sofronoff inquiry found significant misconduct on the part of Mr. Drumgold and raised concerns about the fairness of the trial conduct in Bruce Lehrmann's case. Images: Getty

Legal

No apologies: Ben Roberts-Smith breaks silence

Former SAS soldier Ben Roberts-Smith has returned to Australia for the first time since losing his defamation case against Nine newspapers. Roberts-Smith touched down in Perth on June 14 and said he was shattered by the outcome of his defamation case against The Age, The Sydney Morning Herald and The Canberra Times. This is the first time he has spoken out publicly since the landmark ruling. "It was a terrible result and obviously the incorrect result. We will look at it and consider whether or not we need to file an appeal," Roberts-Smith said after landing in Perth. "There is not much more I can say about it ... we just have to work through it and I'll take the advice as it comes.” He was spotted checking into business class with his girlfriend in Queenstown, New Zealand prior to touching down in Perth. Roberts-Smith rules out apologising to families of the victims impacted by his actions in Afghanistan. "We haven't done anything wrong, so we won't be making any apologies," he said. As he was collecting his luggage at Perth airport, he was approached by a man who voiced his support for the former soldier. Roberts-Smith's return comes on the same day as reports that an Australian Federal Police investigation into his alleged war crimes had collapsed. The decision by the Commonwealth Director of Public Prosecutions not to prosecute Roberts-Smith based on evidence collected by the AFP has led to a new joint task force being assembled to investigate alleged executions. The task force is comprised of detectives from the specialist war crimes agency, the Office of the Special Investigator and a new team of federal police investigators not related to the abandoned AFP probe. Roberts-Smith did not appear in the Federal Court when a judge found allegations he murdered or was complicit in the killing of four unarmed Afghans while deployed overseas were "substantially true” in a bombshell defamation ruling. The former soldier insists there was never any foul play. Image credit: A Current Affair

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Father of murdered Aussie soldier voices support for Ben Roberts-Smith

The father of an Australian soldier murdered in Afghanistan has spoken out in defence of former SAS member Ben Roberts-Smith. Hugh Poate’s son, Robert, was playing cards with two other Australians when they were tragically shot by a rogue Afghan soldier named Hekmatullah in 2012. According to Poate, Roberts-Smith was simply following orders in a bid to apprehend Hekmatullah, who had brutally taken the lives of their son. Acting on intelligence, they were taken to the village of Darwan, where Roberts-Smith had allegedly kicked a farmer named Ali Jan off a cliff and ordered his execution. “These citizens in the village could well have been a civilian one day and pulling the trigger the next, that‘s the way the Taliban operated. This perspective should have been included to provide some balance and context,” Poate told the Daily Telegraph. The federal court <a href="https://www.oversixty.com.au/finance/legal/a-win-for-the-press-a-big-loss-for-ben-roberts-smith-what-does-this-judgment-tell-us-about-defamation-law" target="_blank" rel="noopener">dismissed</a> Roberts-Smith’s defamation trial against the Sydney Morning Herald, The Age, and the Canberra Times, with Justice Besanko concluding the various titles had substantially proven the former soldier unlawfully killed four unarmed Afghan prisoners during his service in the SAS between 2009 and 2012. The judgement also acknowledged instances of Roberts-Smith’s alleged bullying of fellow soldiers. However, the court dismissed two other murder allegations and an accusation that he had assaulted his mistress. In his thorough 736-page judgement, the judge determined that Roberts-Smith and four key witnesses called to testify were both dishonest and unreliable in their evidence. Following the release of the completed judgement, Roberts-Smith’s legal team is now closely inspecting the document to identify potential grounds for an appeal. Poate emphasised the fact that Hekmatullah was captured and convicted of war crimes and subsequently released. In comparison, Roberts-Smith <a href="https://www.oversixty.com.au/news/news/australian-war-memorial-urged-to-remove-ben-roberts-smith-s-uniform-from-display" target="_blank" rel="noopener">has not been convicted</a> of any war crimes. Potae perceives the treatment of Roberts-Smith as a case of double standards. Additionally, Poate asserted that the responsibility for any wrongdoing committed by the SAS in Afghanistan lies with others in the Australian Defence Force (ADF). By acknowledging the collective accountability within the organisation, Poate has suggested a wider perspective on the matter. Image credit: Getty

Legal

What should the Australian War Memorial do with its heroic portraits of Ben Roberts-Smith?

<a href="https://theconversation.com/profiles/kit-messham-muir-129956">Kit Messham-Muir</a>, <a href="https://theconversation.com/institutions/curtin-university-873">Curtin University</a> On Friday, the <a href="https://theconversation.com/dismissed-legal-experts-explain-the-judgment-in-the-ben-roberts-smith-defamation-case-191503">Federal Court dismissed</a> Ben Roberts-Smith’s defamation case against The Age, The Sydney Morning Herald and The Canberra Times. Justice Anthony Besanko ruled the newspapers had established, by the “balance of probabilities” (the standard of evidence in a civil lawsuit), that Roberts-Smith had committed war crimes. Following the ruling, much public debate has focused on what the Australian War Memorial should do with Robert-Smith’s uniform, helmet and other artefacts of his on display. Greens senator David Shoebridge <a href="https://twitter.com/DavidShoebridge/status/1664140665666826240">called for</a> the removal of these objects from public display to correct the official record and “to begin telling the entire truth of Australia’s involvement in that brutal war.” The topic of what to do with Roberts-Smith’s uniform and helmet was debated on <a href="https://www.youtube.com/watch?v=sH1oVNVJP1k">ABC’s Insiders yesterday</a>: should the display be removed, effectively cancelled, or changed to tell the full story? <h2>The case of the oil paintings</h2> It is not just these artefacts on display. The memorial also has two heroic oil painting portraits of Roberts-Smith by one of Australia’s leading artists, <a href="http://www.michaelzavros.com/">Michael Zavros</a>. These paintings were commissioned by the memorial in 2014. <figure class="align-center zoomable"><a href="https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img src="https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=448&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=448&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=448&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=563&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=563&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=563&fit=crop&dpr=3 2262w" alt="" /></a><figcaption>Michael Zavros, Pistol grip (Ben Roberts-Smith VC), 2014, oil on canvas, 162 cm x 222 cm. <a class="source" href="https://www.awm.gov.au/collection/C2092390">© Australian War Memorial</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></figcaption></figure> <a href="https://www.awm.gov.au/collection/C2092390">Pistol Grip (Ben Roberts-Smith VC)</a> is a larger-than-life-sized depiction of Roberts-Smith, camouflage arms outstretched, mimicking the action of holding a pistol. The smaller <a href="https://www.awm.gov.au/collection/C2092391">Ben Roberts-Smith VC</a> depicts him in ceremonial military uniform. <figure class="align-center zoomable"><a href="https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img src="https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=442&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=442&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=442&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=555&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=555&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=555&fit=crop&dpr=3 2262w" alt="" /></a><figcaption>Michael Zavros, Ben Roberts-Smith VC, 2014, oil on canvas, 30 x 42 cm. <a class="source" href="https://www.awm.gov.au/collection/C2092391">© Australian War Memorial</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></figcaption></figure> In an <a href="https://memoreview.net/reviews/the-anti-art-of-war-by-rex-butler-and-paris-lettau">article in arts criticism website Memo</a> yesterday, respected Monash University art historian Rex Butler and arts journalist Paris Lettau weighed into the debate. Butler and Lettau say Pistol Grip is: <blockquote> threatening, over-bearing, macho, hyper-masculine, celebratory, and enormous, like the man himself – some 220 centimetres wide and 160 centimetres high. </blockquote> When Zavros created his large portrait it was a depiction of a soldier doing what he was trained – and venerated – for doing. It is an aggressive pose that, given current developments, can be read in a much more sinister way. It touches on a far bigger question of how national institutions for the public memory of war address difficult and morally ambiguous moments in a national story. <h2>Moral and ethical ambiguity</h2> When the Canadian War Museum opened at its new site in Ottawa in 2005, its new displays included two paintings in their collection by Canadian artist <a href="https://www.theglobeandmail.com/opinion/article-in-her-powerful-portraiture-military-artist-gertrude-kearns-pays/">Gertrude Kearns</a>. The paintings, Somalia without Conscience, 1996, and The Dilemma of Kyle Brown: Paradox in the Beyond, 1995, dealt with one of the most shameful episodes in Canada’s military history, known as the <a href="https://en.wikipedia.org/wiki/Somalia_affair">Somalia Affair</a>. In 1992, the Canadian Airborne Regiment was deployed as peacekeepers to Somalia. In 1993, 16-year-old Shidane Arone was found hiding in the Canadian base, believed to have been stealing supplies. He was tortured, and soldiers photographed themselves with the semi-conscious boy. Master Corporal Clayton Matchee and his subordinate Private Kyle Brown <a href="https://www.vice.com/en/article/7x75xg/remembering-the-somalia-affair-canadas-forgotten-abu-ghraib-moment">were charged</a> with his murder and torture. Somalia without Conscience depicts Matchee posing with the beaten Arone, while The Dilemma of Kyle Brown depicts Brown symbolically holding two potential fates in his hands: a lightly coloured cube in his right hand, and a darkened cube in his left. It addresses an ethical grey area many soldiers face during active service when the hierarchy of command comes into direct conflict with conscience. Following the opening of the new Canadian War Museum, the presence of Kearns’s paintings sparked <a href="https://books.google.com.au/books?id=nltxDwAAQBAJ&pg=PT519&lpg=PT519&dq=%E2%80%9Cwas+not+only+telling+the+stories+of+heroism+and+courage+that+most+of+them+expected+to+be+told+but+also+stories+about+failures,+disappointments,+and+human+frailty%E2%80%9D&source=bl&ots=sfQZw_2qXL&sig=ACfU3U18i4X0ERdbg0wfOKXbnOIe1-5-pA&hl=en&sa=X&ved=2ahUKEwjXw6Sdk6v_AhXGVmwGHbRwDh0Q6AF6BAgJEAM#v=onepage&q=%E2%80%9Cwas%20not%20only%20telling%20the%20stories%20of%20heroism%20and%20courage%20that%20most%20of%20them%20expected%20to%20be%20told%20but%20also%20stories%20about%20failures%2C%20disappointments%2C%20and%20human%20frailty%E2%80%9D&f=false">intense debate</a>. Curator Laura Brandon received abusive emails from members of the public. <figure class="align-center zoomable"><a href="https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img src="https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" alt="" /></a><figcaption>The Canadian War Museum in Ottawa. Shutterstock</figcaption></figure> The museum copped criticism from figures such as the head of the National Council of Veterans Associations, who <a href="https://www.cbc.ca/news/canada/ottawa/war-museum-s-paintings-anger-veterans-group-1.546113">called</a> the paintings a “trashy, insulting tribute” and urged a boycott of the opening of the new museum. Discussing this controversy in 2007, <a href="https://journals.sagepub.com/doi/abs/10.1177/1354856507072860?journalCode=cona">Brandon said</a> what upset veteran communities was that “their” museum: <blockquote> was not only telling the stories of heroism and courage that most of them expected to be told but also stories about failures, disappointments, and human frailty. </blockquote> Brandon remained steadfast the museum needed to address the messy ambiguities of war and, despite pressure, kept Kearns’s paintings on display for the duration of the exhibition. <h2>The complexity of contemporary art</h2> Brandon’s curatorial decision to display Kearns’s Somalia paintings strike at the heart of what is special and important about contemporary war art in a national museum. Contemporary art presents ethical and moral complexity, grey zones and a range of perspectives. This is vital in a healthy liberal democracy. While Brandon’s choice to show Kearns’s Somalia paintings attracted criticism, the museum remained committed to telling a story that is difficult, ethically and morally complex, and uncomfortable for Canadians. To remove Zavros’ portraits from display would remove the now-untenable hero narrative that once surrounded Roberts-Smith. But doing so would also rewrite public memory by effectively erasing an important part of why and how Roberts-Smith was revered. These portraits now represent a morally complex story that needs to be addressed by our national war museum. To remove the portraits would miss a valuable opportunity to debate important questions about how we construct hero stories. So, how could these portraits still be shown in future? Zavros’ portraits were already complex works. Following Friday’s announcement, it is more important they are seen in all their additional multi-layered and problematic complexity. The portraits show us how we create the nation through the stories we tell ourselves, and how dynamic that narrative can be. The portraits present a valuable opportunity to show narratives of war – like the stories of our own lives – are never simple, consistent and coherent. The portraits should be displayed in ways that address this complexity, capturing the evolving story of Roberts-Smith in explanatory wall text. There is an opportunity here to not simply “correct” the official record, as Shoebridge suggests, but to have a deeper conversation about the role of hero narratives in diverting attention away from more important public debates about Australia’s involvements in conflicts. Maybe this could be addressed in the art the memorial commissions in future. The most compelling contemporary art works – and the most valuable museum displays in our national institutions – are those that consider our complex stories, raise important and self-reflective questions, and challenge simplistic narratives. <img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/206934/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> Image credit: Getty <a href="https://theconversation.com/profiles/kit-messham-muir-129956">Kit Messham-Muir</a>, Professor in Art, <a href="https://theconversation.com/institutions/curtin-university-873">Curtin University</a> This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/what-should-the-australian-war-memorial-do-with-its-heroic-portraits-of-ben-roberts-smith-206934">original article</a>.

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