All your lingering Bruce Lehrmann verdict questions answered
Who pays what? What now for the Toowoomba case? And what about Sharaz? Your Lehrmann questions answered.
When Justice Michael Lee handed down his judgment in the huge defamation court case between Bruce Lehrmann and Network Ten and Lisa Wilkinson — Australia lit up with people asking questions.
Justice Lee found Bruce Lehrmann raped his former Liberal Party colleague Brittany Higgins.
Today, we’re answering some of those questions.
Will Bruce Lehrmann be criminally charged for raping Brittany Higgins?
Bruce Lehrmann was charged and tried for the rape of Brittany Higgins in 2022, but he was never criminally convicted because that trial was aborted due to juror misconduct — then the charges were dropped because prosecutors said Brittany Higgins mental health was too fragile for another trial.
But now that he’s been found to be a rapist by a judge, can criminal charges be re-filed? And are they likely to be?
The short answer is technically, possibly yes - but it’s highly unlikely.
There’s a principle called double jeopardy that means once you’ve been tried for an offence, you can’t be tried again – irrespective of what the verdict was - unless prosecutors come up with ”fresh and compelling evidence”.
Lehrmann’s trial never concluded, which means an energetic prosecutor could decide to go again - but it’s likely he would argue it’s impossible to get a fair trial because of the defamation case, where he was subjected to cross-examination and has now been publicly declared a rapist by the court.
All that means Bruce Lehrmann’s unlikely to face any criminal consequences for raping Brittany Higgins.
What does ‘on the balance of probabilities mean’?
Justice Lee was quick to stress that his finding of rape was “on the balance of probabilities”.
What he’s talking about there is the burden of proof required for him to make findings one way or another. That burden of proof is naturally lower in civil proceedings – like defamation trials – than it is in criminal trials for serious crimes like rape or murder, where a case has to be proven beyond a reasonable doubt.
In those cases, the defendant’s guilt has to be clearly and irrefutably established through the evidence presented by the prosecution – that means a judge or a jury can’t be left with any lingering questions after both sides have closed their case.
In a civil case, the test is “on the balance of probabilities”. That means the judge’s job is to find the most likely scenario. And, in this case, he’s found that on the balance of probabilities, Bruce Lehrmann raped Brittany Higgins.
READ MORE: Bruce Lehrmann ‘raped Brittany Higgins’, Ten wins defamation case | What really happened the night Brittany Higgins was raped | Justice Michael Lee puts all parties in their place | Main players savaged in Bruce Lehrmann-Network Ten, Lisa Wilkinson judgment … except for one
What did Bruce Lehrmann and Brittany Higgins lie about?
Justice Lee found that both Brittany Higgins and Bruce Lehrmann told lies both before and during the trial.
But he said while Bruce Lehrmann seemed to lie about everything — he called it “disorganised lying” — Brittany Higgins had lied for quite clear reasons.
He said that the lies she told in 2019 where understandable lies in the immediate aftermath of a traumatic incident. She was embarrassed about how much she’d had to drink, and about why she’d come back into Parliament after hours.
You can see in her messages at the time that she’s very slow to use the word “rape” and, in fact, doesn’t tell anyone for several days that there’d been sexual intercourse.
The judge found that, by 2021, when she was sitting down with The Project, Brittany Higgins was telling lies designed to convince the journalists that she had been the victim of a big political cover-up. She said she’d been victimised and excluded in the office, that she’d been told she’d have no job if she kept pursuing the rape complaint, and that she just got no sympathy from anyone.
In fact, her own messages — once the police retrieved them from her phone — showed that wasn’t true — she was thanking people like her former boss Fiona Brown for all her support at the time.
About the night in question, the judge found Brittany Higgins told a number of lies in The Project interview and in the witness box. She lied about her Bumble date, Nick, when she said he was basically bullied out of the pub by the group she and Lehrmann were drinking with. The judge said that just wasn’t true — that actually she abandoned Nick to chat with Bruce Lehrmann.
The judge also found Brittany Higgins was lying when she said she didn’t really engage romantically or sexually with Bruce Lehrmann at karaoke bar 88MPH.
A witness, Lauren Gain, gave evidence she saw them “pashing” and putting their hands all over each other. Both Higgins and Lehrmann denied this. The judge said they were both lying.
He said it was clear Lehrmann wanted to have sex with Higgins — and that Higgins was not telling the truth when she said she just passively accepted Lehrmann’s overtures without reciprocating.
“The submission made by Network Ten that Miss Gaines’ account is entirely consistent with Miss Higgins’ account is, with respect, silly,” Justice Lee said. “One does not ‘pash’ passively.”
The judge also didn’t believe either Bruce Lehrmann or Brittany Higgins’ story about why they got in the Uber together to go to Parliament. He said Bruce lied when he said Brittany told him she wanted to go back to Parliament to work, just like Bruce. And he said Brittany lied when she said she agreed to share a ride because she thought Bruce’s home was in the same direction as hers.
The judge said they both agreed to go back to Parliament for another purpose — most likely to drink whisky that Bruce Lehrmann had been talking about, even though Lehrmann’s motive all along was to have sex with Brittany Higgins.
Did Brittany Higgins consent to sex with Bruce Lehrmann?
The judge said he believed Brittany Higgins did wake up with Bruce Lehrmann on top of her, but that it was unlikely she kept saying “no”.
The reason he believed this is that, after the incident, Brittany Higgins was very tentative about saying this was rape, and didn’t mention saying “no” to anyone. She told an ex-boyfriend she didn’t think it was consensual, and told another colleague it would have been like “f...ing a log” because she was so drunk.
The claim of saying ”no” didn’t emerge until 2021, when she was talking to The Project.
What did Justice Michael Lee say about Brittany Higgins’ fiance David Sharaz?
The judge has been curious about David Sharaz all the way through the trial. At one point he likened Sharaz to the prophet Elijah, quipping there was a seat for him at the Passover table, but he never shows up.
Justice Lee asked both sides why they weren’t calling him to give evidence — and he had a lot to say about him in the judgment.
David Sharaz was the one who went to Lisa Wilkinson with a story he called a ‘Liberal Party Me Too Project Pitch”. In his messages and conversations with The Project team, he made it clear this was a story of a political cover-up and he wanted it to come out very soon, before Scott Morrison had a chance to call an election.
That’s because he wanted the Labor Party to ask questions about it in Question Time, during parliament — and if Morrison called the election, Parliament would rise and Labor wouldn’t get the opportunity to hammer the issue.
The judge said his motivations were clear — he wanted to cause political damage to the government — and he criticised Lisa Wilkinson and the producer Angus Llewellyn for not being more sceptical about the whole story for that reason.
Did the Morrison government cover up Brittany Higgins’ rape by Bruce Lehrmann?
No. The judge gave this very short shrift. He said there was no evidence of a cover-up and, in fact, there was evidence that at least two senior ministers — Linda Reynolds and Alex Hawke — wanted this to go to police as soon as they heard a young staffer was alleging there’d been sexual activity in Parliament House.
They ordered Fiona Brown, who was the Chief of Staff in Linda Reynolds’ office — that made her both Bruce Lehrmann and Brittany Higgins boss — to go to the police, even if Brittany Higgins didn’t want to.
Fiona Brown refused and the judge said that demonstrated she was showing sensitivity to Brittany Higgins and protecting her.
Does Lisa Wilkinson still work for Channel Ten?
Lisa Wilkinson is still a Ten employee but she’s not on air.
After she made a famous speech at the Logies – which the judge was very critical of, because it basically endorsed Brittany Higgins’ whole story before the matter had gone to court — Ten took her off The Project and they promised to give her another show.
That hasn’t happened and her contract runs till December this year, so we’ll see if they now find something for her to do.
Did Network Ten win the defamation trial brought by Bruce Lehrmann?
Not at all. Ten lost on the major argument about their journalism, which is a defence of qualified privilege.
It’s complicated, but the qualified privilege defence requires a media outlet to show they have been ‘reasonable’ — that is, they made reasonable efforts to investigate the claims and gave the subject of the story a fair right of reply.
The judge absolutely slated their journalism: he said they didn’t properly investigate the flaws in Brittany Higgins’ story, they destroyed Fiona Brown’s reputation by claiming she was part of a non-existent cover-up, and they were far too willing to jump in on a political smash-up of the Morrison government.
It’s very lucky for Ten that Higgins was telling the truth, because if the judge had found that he couldn’t accept that she was actually raped, Ten would have been left saying, “Well, we did everything we could to check out her claims and we really scrutinised her story and tried to be fair to Bruce Lehrmann”.
The judge said he just didn’t think they were fair or reasonable at all.
Will this finding affect Bruce Lehrmann’s Toowoomba trial?
Bruce Lehrmann is facing another allegation of sexual assault, this time in Queensland.
Justice Lee’s judgement won’t have any bearing on the outcome of that case, because that would be prejudicial to Bruce Lehrmann – just because he’s been found to have raped one person, it’s not fair to suggest he’s automatically guilty of the crime he’s accused of in the other matter.
And Bruce Lehrmann, like everyone else, is entitled to a fair trial.
What Bruce Lehrmann could do is apply for the case to be heard by a judge alone — without a jury. That’s what happened to Chris Dawson from The Teacher’s Pet story in his murder trial — he asked for a judge alone because he believed jurors would have already made their minds up about him.
Bruce Lehrmann could also apply for a stay of the proceedings in Toowoomba based on the publicity about this verdict. So that is, because he’s being called a rapist on every front page and all over social media, he could try to convince the Queensland judge he can’t possibly get a fair trial.
How much did Bruce Lehrmann’s defamation trial cost?
In handing down his judgement yesterday, Justice Michael Lee said that – had he found in Bruce Lehrmann’s favour – the most he would have awarded in damages was $20,000. In other words, not a lot.
The combined bill of Ten and Lisa Wilkinson would be well into the millions of dollars. Their most senior barrister, Matt Collins KC, charges in the vicinity of $12,000 a day. Other silks charge between $6000 and $8000 a day — and that’s not just court time; it includes all the time they spend writing submissions and talking to witnesses.
Who is paying Bruce Lehrmann’s legal fees?
Bruce Lehrmann’s own lawyers are believed to be acting on a no-win, no-fee basis: so he won’t have to pay what would have been several millions to them. It is possible that someone pays those barristers some amount of money on his behalf, if he has a wealthy benefactor somewhere out there — but it would be unlikely to cover all their bills.
But Ten and Wilkinson’s lawyers want to be paid, and they will make an application that he has to pay their bills.
Bruce Lehrmann comes from modest circumstances in Queensland and he hasn’t worked for several years now thanks to the publicity around The Project’s story.
He won a couple of payouts from other media organisations, which would have tided him over, but we know he has pretty expensive tastes — he likes a party — and in fact Seven paid his rent for a year to secure an exclusive interview, which was broadcast on their Spotlight program.
So even if the judge orders Lehrmann to pay Ten and Wilkinson’s legal costs, they may not actually get any money out of him.
Will Bruce Lehrmann appeal Justice Michael Lee’s verdict?
Bruce Lehrmann pursued this case in an attempt to salvage his own reputation, which he said was trashed by Network Ten’s reporting, but it’s hard to say at this stage if he’ll appeal.
Neither Bruce Lehrmann nor his lawyers have commented publicly following Monday’s verdict, but given the looming costs in this case, we can only speculate that it’s a decision he won’t be taking lightly.
This is an edited transcript of our daily news podcast, The Front. Find it on Apple Podcasts, Spotify or The Australian’s app.
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