IT TOOK A WELL-EQUIPPED, FORENSIC JUDGE TO UNSTITCH LEHRMANN – AND HAND THE MEDIA A RARE WIN

“Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.”

Or another way of putting it, why on earth would Bruce Lehrmann go to court with a defamation claim over a rape allegation knowing there was evidence that could demolish his case and wreck his reputation?

The risible quality of his lies ensured that he was doomed.

It took a well-equipped, forensic judge to unstitch Lehrmann. Despite the credit issues that affected much of Brittany Higgins’ testimony, Justice Michael Lee believed that on the crucial issue Bruce Lehrmann had had sex with Higgins in Senator Reynolds’ office, that it was without consent, and he knew it was without consent.

This is the generally accepted definition of rape.

The judge was able to arrive at this conclusion with the contemporaneous evidence of independent observers, CCTV footage, and logical inferences.

Lehrmann had plied her with drinks at bars in Canberra; had been seen “pashing” her at a nightclub (“one does not pash passively”); had said he found Higgins attractive; had implausible excuses for going back to Parliament House in the small hours; had opportunistically had sex with her while she was heavily intoxicated; did not return phone calls from his girlfriend who was waiting at home; had left Parliament House without Higgins (“the action of a cad”); and a security guard had found her semi-naked and comatose on the ministerial couch.

The judge outlaid it so methodically that you could be excused for thinking that this was a criminal trial.

Lehrmann insisted nothing happened, but as the judge wrote he was not going back to Parliament House to show her “Qing Dynasty ceramics”.

The judge found Higgins’ evidence on the central allegation was “honest and accurate” and that her attacker was indifferent to whether she consented or not.

He went ahead “willy-nilly”.

If Lehmann had said at the outset that sexual activity took place with Higgins at Parliament House and it was consensual, that might have been the end of the story.

Higgins herself, for a time, was confused and concerned about consent. She had been conspicuously drunk, so she lacked a proper awareness of what happened. She recognised that sexual activity had occurred, but it was only when she heard that Lehrmann insisted “nothing” had happened, that she knew she had not consented.

The conduct of the journalists was found wanting, but the truth was there

Defamation defence lawyers have an old saying, “it’s truth or nothing”. In other words, the other defences rarely if ever work. In this case the truth succeeded, while the journalism failed.

There was extensive criticism of the way Channel Ten’s team at The Project handled the story, concentrating on an alleged political cover-up of the rape for which there was no solid verification. There were other elements of the story, such as the bruise on Higgins’ leg, that apparently were too important to check thoroughly.

Higgins obligingly went along with this thesis because by then there was a concerted angle by those around her to make a political point.

Lee found that Lisa Wilkinson did not lack self-assurance. She had become an advocate for the survivor, and this drew her into misjudgment about celebrating Higgins in her Logies speech shortly before Lehrmann’s criminal trial began in Canberra.

Even though she had in-house Channel Ten legal advice to go ahead with her public remarks, as an experienced TV presenter she should have known this was prejudicial.

The conduct of the journalists was found wanting, but the truth was there. In fact, journalism rarely, if ever, survives judicial scrutiny. Does that mean it can be unreasonable to publish something that is ultimately found to be the truth?

This is a remarkable judgment because it is only one of very few where the media has successfully defended a defamation action in the federal court.

Since 2015, when then treasurer Joe Hockey kicked off the trend to sue in the federal court, there have been 20 defamation trials defended by the media.

The journalists have lost 15 of them with awards of damages totalling more than $6m, and costs beyond the dreams of Croesus: Mina Greiss; Heston Russell; William Duma; Erin Molan; John Barilaro; Nisserine Nassif; Chris Murphy; Chau Chak Wing (ABC); Elaine Stead; Pauline Hanson; Geoffrey Rush; Sam Oliver; Chau Chak Wing (Fairfax); Hockey; and the Chelmsford case, which was substantially lost on appeal.

The media has now succeeded in five substantially defended cases: Ben Roberts-Smith v Fairfax (war crimes); Peter V’Landys v ABC (animal cruelty); Daniel Taylor v Nationwide News (over the “wise guy” label in an Ibrahim special liftout); Tony Bellino v Courier-Mail (for a Moonlight State recap) and now Lehrmann v Network Ten.

Of the defamation cases journalists and their publishers have defended in the judge-alone zone they have been unsuccessful 75% of the time. The media are right only 25% of the time.

Little wonder that this is the case, as the federal court has systematically read down the reforms of 2020. Successive judgments have weakened the function of concerns notices; the serious harm threshold; the limitation period; and uncapped damages – all for the benefit of applicants.

In his conclusion on rape, Lee in a separate paragraph simply said: “Mr Lehrmann raped Ms Higgins.” Perhaps, that was all Brittany Higgins wanted and needed to hear. All the rest, for months and years, was noise and distraction.

Now to the costs of this massive, fabricated case. For all we know, Lehrmann is without significant means. Someone may have been staking his costs, but are they likely to stake the costs of the other side? All up, a figure of $10m has been placed on this truth-seeking exercise.

Now that he has been found to be morally bankrupt, Lehrmann may have to join the list of defamation litigants who file for financial bankruptcy.

• Richard Ackland writes at 500Words.com.au

2024-04-15T09:03:02Z dg43tfdfdgfd