Bruce Lehrmann judgment: Vindication on the balance of probabilities as Ten and Lisa Wilkinson make out truth defence

Ten and Lisa Wilkinson proved Bruce Lehrmann raped Brittany Higgins on a couch in Parliament House, meaning the media organisation made out its truth defence in its defamation battle with the former Liberal staffer.

Brittany Higgins in Parliament House on the night she was raped by Bruce Lehrmann.

Network 10 and Lisa Wilkinson proved Bruce Lehrmann raped Brittany Higgins on a couch in Parliament House, judge Michael Lee has ruled, finding the media organisation made out its truth defence in its defamation battle with the former Liberal staffer.

Justice Lee on Monday ruled, on the balance of probabilities, that Mr Lehrmann had raped Ms Higgins and, as such, Ten and Wilkinson had established their truth defence as part of a two-pronged rebuttal to defamation claims brought by Mr Lehrmann.

“Mr Lehrmann raped Ms Higgins,” Justice Lee wrote in his judgment. “I hasten to stress; this is a finding on the balance of probabilities. This finding should not be misconstrued or mischaracterised as a finding that I can exclude all reasonable hypotheses consistent with innocence.”

Mr Lehrmann last year sued Ten and Wilkinson over her interview with Ms Higgins on The Project in 2021, detailing accu­sations that Mr Lehrmann had raped Ms Higgins but not naming him as the alleged attacker. Mr Lehrmann has always maintained his innocence, and claimed no sexual ­activity occurred between the pair.

In order to make out the truth defence, Ten was required to prove sexual activity occurred, that it was non-consensual, and that Mr Lehrmann knew Ms Higgins was not consenting.

On Monday, Justice Lee found Ten had made out all three parts, ruling Mr Lehrmann a liar, and saying, on the balance of probabilities, a rape took place on the couch of then-defence industries minister Linda Reynolds in March 2019.

He said sex occurred with Mr Lehrmann on top of Ms Higgins on the couch, and concluded shortly after he ejaculated.

While Justice Lee did not accept Ms Higgins’s evidence that she “said ‘no’ on a loop” when she woke up to Mr Lehrmann on top of her, he found she was heavily intoxicated and did not consent to the sex taking place.

“Although I am not satisfied there was a clear verbal protest being made by Ms Higgins, and find it is more likely that Ms Higgins was ‘passive’ during the sexual act, any suggestion that some form of ‘active resistance’ is determinative of the question of consent would be misguided,” he said.

“I have reached a state of actual persuasion on the balance of probabilities that Ms Higgins: (a) was not fully aware of her surroundings when sexual intercourse commenced; and (b) did not consent to intercourse when she became aware Mr Lehrmann was ‘on top of her’.”

He also found Mr Lehrmann “did not care” whether Ms Higgins consented or not, and “he just went ahead willy-nilly”.

“Mr Lehrmann was hell-bent on having sex with a woman he found sexually attractive, had been mutually kissing and touching, had encouraged to drink and knew had reduced inhibitions because she was very drunk,” he said.

“In his pursuit of gratification, he did not care one way or another whether Ms Higgins understood or agreed to what was going on.”

A Ten spokesperson on Monday afternoon said the judgment was “a triumph for truth”.

“Justice Lee’s judgment is vindication for the courageous Brittany Higgins who gave a voice to women across the nation,” they said. “Network 10 is considering Justice Lee’s 324-page judgment. It is clear, however, that Australia’s defamation laws remain highly restrictive.

“When put to the test, it was always our obligation to inform the public of these important social and political matters notwithstanding the challenges presented by these laws; today’s judgment vindicates the telling of Brittany’s story.

“Network 10 remains firmly committed to honest, fair and independent journalism; to holding those in power to account; to giving people a voice who wouldn’t otherwise have one; and to always pursuing without fear or favour, journalism that is firmly in the public interest.”