Lessons in Lehrmann trials go beyond matters of rape

In the wake of the Bruce Lehrmann rape and defamation trials it is important to state that good reporting is never about picking sides or engaging in a popularity contest for likes among peers. The issues that flowed from the Brittany Higgins accusations of rape in Parliament House were about more than what happened between two young people in Canberra after a night of heavy drinking.

On trial has been the administration of justice in the ACT, the professionalism of the Australian Federal Police, the behaviour of politicians and political opportunists, and the responsibility of those in the media to properly investigate loaded allegations that are put before them. Without proper scrutiny, events can be easily misshaped by actors with nefarious intent.

When revealed in 2021, accusations of sexual assault in the offices of Liberal defence minister Linda Reynolds in 2019 were turbocharged by the contemporary concerns of the #MeToo movement and insider obsessions about workplace culture in the nation’s capital. Ms Higgins’ complaints were belatedly exploited by forces that appeared more focused on a looming, tightly fought federal election.

The Federal Court found that from the moment she received information and before even seeing Ms Higgins, and without any further detail or checking, Network Ten’s star reporter Lisa Wilkinson said she wanted to tell the “explosive political story” of “an extraordinary cover-up”. But the political cover-up has been shown to be false.

Instead of Morrison government cover-up, when put to the test, the administration of justice in the ACT was found wanting on the evidence of ACT director of public prosecutions Shane Drumgold SC. Mr Drumgold was disgraced by revelations in his own testimony to a judicial investigation led by Walter Sofronoff KC. In four days in the witness box, Mr Drumgold made admissions that amounted to gross misconduct while conducting the rape trial, breaching his responsibility to ensure the fair administration of justice and in the process betraying the public and his own staff.

It is reasonable to believe that had it not been for the forensic and tenacious reporting of journalists at this newspaper, including Janet Albrechtsen and Stephen Rice, the broader issues flowing from the Higgins accusations of rape would never have received the scrutiny they deserved. This week’s judgment by Federal Court judge Michael Lee that Mr Lehrmann, on the balance of probabilities, did rape Ms Higgins is a serious event but by no means the whole story. Justice Lee made it clear that he found Mr Lehrmann raped Ms Higgins despite the frenzy of political accusation that arose, not because of them. His findings cleared the actions of police and staff at Parliament House. They shame Mr Lehrmann and, while they may give some comfort to Ms Higgins, they raised important issues beyond the events that took place in the minister’s office early on March 23, 2019.

Justice Lee described Ms Higgins as “a complex and, in several respects, unsatisfactory witness”. He said her early recollections might have been impacted by trauma but later evidence had been more calculated to put her in the best possible light. Had she left the matter to police, Ms Higgins could have avoided the high-profile public airing of her predicament and had her identity concealed. The federal government is now likely to face further questions about the award of more than $2m compensation from the commonwealth.

On Mr Lehrmann, Justice Lee said he “would not accept anything he said except where it amounted to an admission, accorded with the inherent probabilities or was corroborated by a contemporaneous document or a witness whose evidence I accept”. Justice Lee said as a result of an inconclusive criminal trial, Mr Lehrmann remained a man who had not been convicted of any offence but he had now been found, by the civil standard of proof, to have engaged in a great wrong. The Federal Court judgment found Mr Lehrmann’s state of mind was such on the night in question that he was so intent on gratification to be indifferent to Ms Higgins consenting.

Justice Lee’s reasoning cleared the reputation of former Liberal staff member Fiona Brown, who he said had “showed integrity in resisting pressure she subjectively considered inappropriate and evinced a concern for the autonomy and welfare of Ms Higgins”. “In these circumstances, to be later vilified as an unfeeling apparatchik willing to throw up roadblocks in covering up criminal conduct at the behest of one’s political overlords must be worse than galling,” Justice Lee said.

The comprehensive rejection of any political cover-up of the rape allegations is an important finding that must hold special relevance for many in the media who showed themselves eager to embrace it. The court judgment undermines claims of victory by Network Ten in successfully defending the defamation case brought by Mr Lehrmann. A suggestion by Ten’s lawyers that the only fact that matters is that Mr Lehrmann was found to have raped Ms Higgins is absurd. Justice Lee said there were several pointers in the evidence demonstrating why the “conduct of Network Ten fell short of being reasonable”. He said even though Ten had legally justified its imputation of rape, this “does not mean their conduct was justified in any broader or colloquial sense”.

“The contemporaneous documents and the broadcast itself demonstrate the allegation of rape was the minor theme, and the allegation of cover-up was the major motif,” he said. The media campaign had been one of supposition without reasonable foundation in verifiable fact, Justice Lee said. Its dissemination 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.

In contrast, our reporting has been centred on protecting foundation principles of the justice system, something others in the media would do well to deeply consider. We have stood up for the natural justice protections afforded those who have been accused but not convicted. Our reporting has extended beyond the Higgins case and put a spotlight on how allegations of sexual assault are dealt with in other jurisdictions, often to the great disadvantage of those involved in proceedings. In short, our efforts have been prescient and crucial when most other media outlets were unquestioningly accepting the falsehoods of political cover-up. We were doing that while fighting to unmask Mr Lehrmann as a person who had been charged with other sexual offences in Queensland. Reporting without fear or favour is not always popular, but it is the right place to be.