3 months ago
22
It is difficult to imagine a more excoriating judgment.
The circumstances before Bruce Lehrmann in the early hours of March 23, 2019, “screamed loudly to anyone with normal faculties” that his then-colleague Brittany Higgins was not consenting to sex.
Bruce Lehrmann and his lawyer Zali Burrows.Credit: Sam Mooy
They are the seven most damning words in the Full Court of the Federal Court’s devastating judgment on Wednesday.
The decision has dealt a likely fatal blow to Lehrmann’s costly attempts to rehabilitate his reputation, although his lawyer, Zali Burrows, has already raised the prospect of a High Court challenge.
The former federal Liberal staffer is also facing the threat of bankruptcy because he is unable to meet costs orders against him totalling more than $2 million.
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‘Drunk, passive and silent’
In reasons characterised by brevity and clarity, the appeal court found Lehrmann observed the “very drunk, passive and silent” Higgins and “proceeded nonetheless” to have sex with her.
The court rejected Lehrmann’s bid to overturn Justice Michael Lee’s decision last year dismissing his defamation suit against Network Ten and Lisa Wilkinson over an interview with Higgins, aired in 2021, that imputed he was a rapist. Lee found the media parties had established a defence of truth.
Crucially, the appeal judges – Justices Michael Wigney, Craig Colvin and Wendy Abraham – accepted an invitation by Ten and Wilkinson to go further than Lee and find Lehrmann was not merely reckless about whether Higgins was consenting to sex, but knew she did not consent.
It would be fair to assume that Abraham, a criminal law expert and former national counsel for the Commonwealth Director of Public Prosecutions, had a hand in the court’s approach to the core issues in the appeal.
The court concluded Lee should have found on the balance of probabilities that Lehrmann had “actual knowledge” Higgins did not consent to sex because he made a series of other findings, including that Higgins was passive “like a log” during the entirety of the sexual act.
The Streisand effect
As in many defamation cases, a striking feature of the Lehrmann litigation is the self-inflicted nature of many of the former federal Liberal staffer’s reputational wounds.
This has been referred to as “the Streisand effect” in litigation – a nod to a 2003 feud in which entertainer Barbra Streisand tried, and failed, to suppress photos of her Malibu mansion.
Brittany Higgins (right) outside the Federal Court in Sydney in December 2023.Credit: Steven Siewert
Lehrmann’s decision to sue Ten and Wilkinson for defamation over an interview that did not name him brought renewed focus to the rape allegation when he was no longer facing a criminal trial.
His ACT Supreme Court trial over Higgins’ alleged rape was aborted in 2022 due to juror misconduct. The charges were later dropped owing to concerns about Higgins’ mental health. He has always maintained his innocence.
He opted to launch a series of defamation cases after the criminal trial collapsed. While the ABC and News Corp chose to settle his lawsuits by paying him $295,000 and $150,000 respectively, Ten launched a strident defence.
It meant allegations in the criminal trial were reagitated, but Ten had a lower standard of proof than prosecutors – it had to prove it was more likely than not that Lehrmann sexually assaulted Higgins, rather than proving it beyond reasonable doubt.
Embarrassing evidence
Unedifying details of Lehrmann’s immediate response to the Ten broadcast came to light in the early stages of the defamation case, including his texts to friends about cocaine. (He would later tell the court he was “spiralling” at the time he sent the “need bags” and “let’s get lit” missives).
Sue Chrysanthou, SC, hugs Lisa Wilkinson after Justice Michael Lee ruled in her favour in 2024.Credit: Getty Images
This was not the last of the embarrassing evidence. A former Seven producer alleged he went on a “bender” with Lehrmann featuring cocaine and sex workers as the network sought to secure an exclusive interview with him.
High cost of litigation
The eye-watering cost of the litigation is another feature of defamation feuds: Ten has spent about $5 million on the proceedings, including picking up part of the tab for Wilkinson’s separate representation.
Lehrmann was ordered this year to pay Ten $2 million after losing the first round. On Wednesday, he was hit with another costs order for the appeal. That order is likely to total hundreds of thousands of dollars.
He went back for his hat
Of Lehrmann’s decision to bring defamation proceedings after the criminal trial collapsed, Lee famously said: “Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.”
Lehrmann may have felt he had little to lose after his comprehensive defeat.
But Ten and Wilkinson’s legal strategy in arguing that even more serious findings could be made against Lehrmann paid off. And three more federal judges have concluded on the balance of probabilities that he is a rapist.
Lehrmann went back for his hat once again, and he paid a heavy price.
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