Brittany Higgins spent days having her credibility blasted to smithereens when she gave evidence in October 2022 in the ACT Supreme Court rape trial of Bruce Lehrmann.
She was grilled over the details of her assault, the dress she was wearing that night, the number of alcoholic drinks she consumed and her relationship with her ex-partner. Higgins frequently spoke aggressively to the barrister questioning her, was combative when undermined and, on one occasion, left the courthouse with her face smeared in tears.
Meanwhile, the man who raped her sat silently in the gallery – as, of course, was his right. Lehrmann watched the trial play out as he wrote quietly in a black leather-bound notebook. He waited patiently, gave no comment to journalists lingering outside court, and eventually the case was thrown out because of juror misconduct.
Flash forward to Monday this week, and much has changed. Lehrmann is no longer the silent observer watching a trial unfold. Rather, he has become an unmeritorious plaintiff in the country’s most high-profile defamation matter.
During the trial for his case against Network Ten and Lisa Wilkinson he was cross-examined for the first time about his story from the night the rape occurred. To say his evidence was sub-par would be generous.
In delivering his judgment on Monday, Justice Michael Lee said Lehrmann “told deliberate lies” to advance his version of events.
He said Lehrmann lied when claiming he never had sex with Higgins, in denying any intimacy occurred between them at the club that night, and in refusing to concede he bought her drinks – despite there being clear CCTV footage showing otherwise.
Lee branded Lehrmann a rapist, saying, on the balance of probabilities, the former Liberal staff member “did not care” whether Higgins consented to having intercourse with him and instead was “hellbent on having sex with a woman he found sexually attractive”.
Higgins’s evidence also was far from spotless. Lee found she was a “complex” witness who told organised “untruths” when convenient. But, crucially, he found her account of the night she was raped was more believable than Lehrmann’s version of events, which was tested only because of the requirements of the civil case.
It is for this reason former West Australian Supreme Court judge Kenneth Martin is calling for the “right to silence” to be re-evaluated in sexual assault cases.
Martin, who sat on the bench in Western Australia for 14 years, tells Inquirer the Lehrmann defamation matter should catalyse reform for how silence is treated in rape trials. He says because “only two people know what happened” in a sexual assault case, both parties should be required to give evidence, and have that evidence be tested.
“In a civil case, Bruce Lehrmann had to give evidence. He had to be the first witness and be cross-examined on his story and on his inconsistencies with what he had said to police, by two of the best cross-examiners in the country – Sue Chrysanthou and Matthew Collins,” Martin says.
“When we’re dealing with one-to-one, highly private, very difficult to prove scenarios, there is room for a sensible debate about whether the right to stay out of the witness box and avoid cross-examination in such circumstances is legitimate or not. I think it’s something to be looked at.”
The right to silence is a common-law principle preventing an accused person from incriminating themselves with evidence that comes from their own mouth.
It is in keeping with the burden of proof in a criminal trial and the concept of innocent until proven guilty. That is, it is up to the state to prove a crime occurred, and not a defendant’s job to prove they did not commit that crime.
But Martin argues society may have progressed past a place where the right to silence is necessary.
“Historically, the right to silence is understandable in circumstances where you had the power of the state marshalled against some impoverished, illiterate person. It would be a very one-sided, crushing situation,” he says, acknowledging his opinion may position him as “a bit of an outsider”.
“But I think with education and a rebalancing of that over time, you now have someone like Bruce Lehrmann who is highly educated, university-qualified, obviously intelligent and articulate, who knows what happened because he’s the active participant – or non-participant – on his case. Yet he can choose to stay silent, and … have his version of no contact put vigorously to the complainant.
“If you want to get a fair perspective of what happened … a limited cross-examination in terms of testing what he said doesn’t strike me as particularly unfair when he’s represented.”
Martin says he is aware “many criminal lawyers will just absolutely have a heart attack” at his suggestion, but sexual assault is an area “many feel is out of whack” for victims who do not get a “fair deal”.
Criminal defence lawyer Karen Espiner says it’s not just lawyers who should be concerned if the right to silence is “tinkered with” or, worse, removed entirely.
“Any one of us could at some point be the subject of an accusation made by the state,” she says. “It is therefore not an exaggeration to say that the right to silence is a fundamental safeguard that exists for every single one of us, and that we should fight to protect it at all cost.”
Espiner says the suggestion the right could be removed “is not only ill-informed but also fails entirely to recognise the most basic difference between civil and criminal trials”.
“In a criminal trial, an accused person bears no onus. It is not for him or her to persuade the jury that they are innocent of the crime with which they have been charged. It is for the state, with its infinitely more expansive resources, to convince a jury – beyond reasonable doubt – that the accused is guilty,” she says.
“If an accused person was required to give and/or adduce evidence in his or her defence, or could be criticised for failing to do so and have their silence used against them, then the onus would shift from the prosecution to the accused. It is impossible to adequately describe how fundamentally flawed such an approach would be.
“Any suggestion that the right to silence should not apply to a particular category of alleged offending would be to entirely change the system in which some – but not all – criminal allegations are made and tested.
“Would the community think it fair that a person accused of murder has the right to remain silent but someone charged with rape does not?”
It is also important to realise Lehrmann started proceedings against Ten and Wilkinson, Espiner says. “He therefore needed to overcome the defence of substantial truth and, in light of the nature of the circumstances of the allegation, had no option but to choose to expose himself to cross-examination,” she says.
“But this does not mean the same approach should be adopted in criminal proceedings and it simply cannot be used as a test case to say that the right to silence needs to be re-evaluated.”
She says politicians should remember that, for an accused person, the “consequence of losing criminal proceedings is not merely financial or reputational but it is potentially losing your liberty and spending years of your life in jail”.
The Australian Law Reform Commission on Wednesday released an issues paper for its inquiry into justice responses to sexual violence, after the Albanese government announced the body would review procedures, evidence, court processes, jury directions and consent laws in a bid for better outcomes for rape victims. The terms of reference for the review were informed by a national roundtable on justice responses to sexual violence held last year, which was attended by former Australian of the Year Grace Tame, consent education advocate Chanel Contos and founder of the #LetUsSpeak campaign Nina Funnell.
One proposal discussed at the roundtable was for the ALRC to investigate and develop a new civil model as an alternative option for complainants to what currently exists in the criminal system.
The approach, proposed by the Queensland Sexual Assault Network and supported by the National Women’s Safety Alliance, Rape and Sexual Assault Research and Advocacy, and the National Association of Services Against Sexual Violence, would hear and test evidence using the civil standard of proof – on the balance of probabilities.
The defendant also would be required to give evidence and be subject to cross-examination. Unlike a criminal matter, adverse inferences could be drawn if the defendant did not give evidence.
“We would hope that what the new approach would do is hear and test evidence from both parties,” NWSA director Katherine Berney tells Inquirer. “Currently one person gives evidence and that person isn’t even a party to the process.”
She says she receives constant feedback from victim survivors about “the traumatisation of a criminal trial, when a perpetrator can be silent”.
Berney is unable to say whether civil penalties would be applied as part of the new approach, but says it should be “part of the ALRC’s discussion”.
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