Editorial: Few escape the lion’s den of Higgins affair unscathed

Federal Court Justice Michael Lee has delivered a devastating blow to the reputation and fortunes of Bruce Lehrmann as well as the credibility of a partisan media willing to indulge a #MeToo movement imbued with political motivations. By an unnecessarily circuitous route, former political staff member Brittany Higgins has had her day in court, which found the facts supported her claims of rape. Court is where the matter always should have been decided. The way in which it has transpired has produced an outcome that must be respected but one that is necessarily diminished by circumstance.

Mr Lehrmann joins a long list of high-profile litigants who have had their reputations ruined as a result of court proceedings they initiated. As Justice Lee succinctly put it: “Having escaped the lion’s den, Mr Lehrmann made the mistake of coming back for his hat.” Mr Lehrmann had left the criminal courts with his reputation intact after the case against him was aborted without a retrial. But in a defamation case launched by Mr Lehrmann against Network Ten, Justice Lee found on Monday that Mr Lehrmann did rape Ms Higgins in a ministerial office in federal parliament. The verdict does not rise to the standard of a criminal trial but Justice Lee forensically unpacked the contemporaneous and subsequent evidence and said he was satisfied on the balance of probabilities that Mr Lehrmann’s state of mind was such on the night in question that he was so intent upon gratification to be indifferent to Ms Higgins consenting. He was “hellbent on having sex with a woman he found sexually attractive, had been mutually passionately kissing and touching … and knew had reduced inhibition. He did not care one way or the other whether Ms Higgins understood or consented to what was going on,” Justice Lee said. The finding further cements a contemporary community definition of what constitutes rape and leaves no doubt that informed consent is paramount in matters of sexual congress, especially in cases where alcohol is involved.

There are many lessons to be drawn from the defamation trial. The most important, and obvious, is that courts of law are by design the best place to weigh evidence and pass judgment. Had this been allowed to happen from the outset in the Higgins case it would have saved a great deal of personal anguish and prevented a high toll of collateral damage. Not seeking a police investigation at the outset, while a decision properly for Ms Higgins, allowed others to manipulate proceedings at a later date in ways that did not necessarily have her best interests at heart. By not taking action immediately, rather than being a case about what happened on one night in Canberra between two young political staff members, the issue was inflated to suggest a bigger political conspiracy. But in his 324-page judgment Justice Lee rejected suggestions aired by Ten’s The Project in its interview with Ms Higgins that there was a political conspiracy to cover up her rape allegations. Justice Lee said the accusations caused a “brume of confusion” and did much “collateral damage, including to the fair and orderly progress of the underlying allegation of sexual assault through the criminal justice system”. One irony is that it was the diligent actions of Fiona Brown, a former chief of staff to Liberal senator Linda Reynolds, that provided the contemporaneous evidence that allowed Justice Lee to come to the conclusion that he did.

Ms Brown was demonised and portrayed by forces with a political axe to grind as having been indifferent to Ms Higgins’ situation. However, Justice Lee found Ms Brown had presented as an “archetype of a successful woman” who, despite facing sustained pressure from her minister, was “not one to speculate or jump to conclusions” and believed it was Ms Higgins’ decision on whether she should go to police. Ms Brown’s contemporaneous notes from Mr Lehrmann that he had returned to parliament to drink whisky were relied on by Justice Lee as more compelling than Mr Lehrmann’s later explanation of wanting to annotate question time briefs with information about French submarine contracts. When examined properly and without partiality, Justice Lee said, the cover-up allegation was “objectively short on facts but long on speculation and internal inconsistencies – trying to particularise it during the evidence was like trying to grab a column of smoke”.

Ten has accepted the Federal Court judgment as a victory but the network has been exposed for its sloppy research and the willingness of some in the organisation to use the rape accusation to prosecute a broader political agenda against the Morrison government. Ms Higgins has been a victim on many levels but she did not escape Justice Lee unscathed. He said it would be fair to describe her as a complex and, in several respects, unsatisfactory witness. Justice Lee rejected the allegations of a cover-up but was persuaded by the evidence of Ms Higgins’ father, who said he had noticed a change in his daughter’s demeanour. Ms Higgins still faces legal challenges of her own, including defamation proceedings under way against her in Western Australia. There are also questions surrounding the award of a $2.4m compensation settlement payout from the federal government, of which Justice Lee said it was “evident that several things being alleged were untrue”. The bigger lesson is that criminal behaviour is properly a matter for the courts first.