‘Bruce Lehrmann made the mistake of coming back for his hat’
Justice Michael Lee’s defamation judgement was a masterclass in cutting through the noise. Here are some of his sharpest observations.
Justice Michael Lee’s defamation judgement was a masterstroke. Here are some of his sharpest observations.
Main findings
Lehrmann and Higgins had sex
‘I’m convinced … that sexual intercourse did take place, and that took place with Mr Lehrmann on top of Ms Higgins on the couch in the minister’s office’
The sex constituted rape
‘Mr Lehrmann raped Ms Higgins. I hasten to stress this is a finding on the balance of probabilities’
The reliability of Lehrmann and Higgins
‘Despite my concerns about the truthfulness of both Mr Lehrmann and Mr Higgins, it will be simplistic to proceed on the basis that means I must reject everything they say’
Network Ten’s conduct
‘(It) was grossly improper and unjustifiable’
The Project’s accusation of a political cover-up
‘(It did much) collateral damage, including to the fair and orderly progress of the underlying allegation of sexual assault through the criminal justice system’
The defamation case
‘(It) has become a proxy for broader cultural and political conflicts’
Bruce Lehrmann
His credibility
‘I do not think Mr Lehrmann is a compulsive liar and some of the untruths may have been due to careless and confusion. But in important respects he told deliberate lies’
‘All these falsehoods together with his Walter Mitty-like imaginings … demonstrate that Mr Lehrmann has no compunction about departing from the truth if he thought it was expedient’
Lehrmann pursuing damages after his aborted criminal trial
‘Having escaped the lion’s den Mr Lehrmann made the mistake of coming back for his hat’
Brittany Higgins
Her credibility
‘(Ms Higgins) made some allegations that made her a heroine to one group of partisans. When examined forensically (those allegations) have undermined her general credibility to a disinterested factfinder’
Higgins’ trauma at the time the rape allegations were made
‘Given the potential effects of trauma, I do not consider (her) 2019 conduct (in the immediate aftermath of the alleged rape) … as inconsistent with a victim of sexual assault working her way through feelings of confusion’
Higgins’ trauma explaining confusion and inconsistencies in her evidence
‘I’m comfortably satisfied that a number of the credit issues … cannot be minimised in this way’
Higgins’ evidence about the bruise on her leg
‘Despite her evidence before me I consider it unlikely there would be genuine confusion in Ms Higgins’ evidence as to how she got the bruise, given the way she and Mr Sharaz deployed it in 2021 (by giving it to The Project)’
Lehrmann and Higgins at The Dock
Lehrmann buying Higgins drinks at The Dock
‘He did spend most of the evening with Ms Higgins and as the night wore on he was aware of her drinking and encouraging her to drink well beyond the bounds of sobriety’
‘The purchase of drinks on behalf of Ms Higgins by Mr Lehrmann was, and must be known by Mr Lehrmann to be an important aspect of their interactions later that night’
Lehrmann’s awareness of Higgins inebriated state
‘CCTV suggests Mr Lehrmann must have been aware of at least one incident at The Dock demonstrating a lack of balance. He knew she was drinking excessively’
Lehrmann’s claims of ‘minimal’ interactions with Higgins at The Dock
‘(This was) a very serious distortion of the dealings’
Higgins’ evidence about what happened at The Dock
‘Since 2021 Ms Higgins made false representations as to what occurred following the incident to (journalists). She selectively curated materials on her phone prior giving it to the AFP … It would be fair to describe her as a complex and in several respects unsatisfactory witness’
Lehrmann and Higgins at 88MPH
Lehrmann’s and Higgins’ interactions at 88MPH
‘One thing did emerge with clarity from the evidence, certainly … that at 88MPH, Brittany hooked up with Bruce’
‘Mr Lehrmann was acting upon his attraction to Ms Higgins, and the less than sober Ms Higgins was sufficiently uninhibited to be a not unwilling participant’
Lehrmann’s rejection of intimacy with Higgins at 88MPH
‘Mr Lehrmann emphatically denied any intimacy with Ms Higgins at 88MPH. This evidence was not only false … but was intentioned with representations he made to the Australian Federal Police’
Higgins’ evidence about the intimacy with Lehrmann at 88MPH
‘Ms Higgins’ evidence that she was passive and discomfited is an example of Ms Higgins evolving her recollection’
Lehrmann and Higgins going to Parliament House
Lehrmann’s claim about going back to Parliament House for his keys
‘He could have just texted his girlfriend’
Lehrmann’s reason for going to Parliament House
‘(He was seeking a location where the pair could have) continued to enhanced intimacy’
‘Mr Lehrmann’s evidence about writing a question time folders was a transparent lie, and yet it remains the only explanation Mr Lehrmann has offered to the court for his presence in the ministerial suite for 40 minutes on 23 March 2019’
Lehrmann’s desire to have sex with Higgins
‘He likely wanted to continue to be intimate with Ms Higgins. Put bluntly, he was a 23-year-old male cheating on his girlfriend, having just hooked up with a woman he found sexually attractive. Human experience suggests that what he want then wanted to happen is not exactly shrouded in mystery’
‘Common sense suggests that it is obvious there was one dominant thought running through the mind of Mr Lehrmman as he was approaching Parliament House, and had nothing to do with French submarine contracts’
Higgins’ evidence about returning to Parliament House with Lehrmann
‘What possible reason was there for this heavily intoxicated young woman who didn’t have her pass, to go back to work after a night on the tiles?’
The possibility Higgins wanted to have sex with Lehrmann
‘(This could) be one explanation as to why she exited with Mr Lehrmann to Parliament House rather than staying in the Uber and going home by herself. She knew she was going to the ministerial suite and acquiesced in doing so’
Lehrmann and Higgins at Parliament House
Lehrmann’s evidence about what happened in the ministerial suite
‘I’m satisfied that being conscious of the importance of whisky, Mr Lehrmann has made several false statements about the importance of this topic. I consider Mr Lehrmann’s account to be an elaborate fancy’
‘I’ve already noted, put in stark terms, it’s fanciful (Mr Lehrmann), accompanied by a woman he found attractive, who he had just been kissing in a nightclub despite him having a girlfriend would then be interested, after coming back to a private place … just to say ‘cheerio’’
Higgins’ state during the Parliament House visit
‘I have no doubt that Miss Higgins’ inability to put on her shoes was caused by a state of inebriation. This is consistent with her walking barefoot through Parliament House and tossing her head back and looking towards the ceiling while she waited to be led into the ministerial suite’
I’m comfortably satisfied that Ms Higgins was a very drunk 24 year old woman, and her cognitive abilities were significantly impacted, given the state and … it is highly likely she was prone to drowsiness’
The contrasting accounts of Lehrmann and Higgins
‘The first thing to be said about Ms Higgins’ account is that it involves a grave allegation by a witness with credibility problems … (and) must be approached with great care. Taken as a whole it does not strike me as inherently implausible, unlike the account of Mr Lehrmann’
‘Her evidence that she was not fully aware of her surroundings but suddenly became aware of Mr Lehrmann on top of her … struck me forcefully as being credible and having the ring of truth’
Why Lehrmann left Parliament House alone
‘Why would he just bolt from the office? One would expect a man with any manners … would check whether she had gone, and if not, how she was getting home safely’
Whether the sex in the ministerial suite constituted rape
Whether Higgins expressed that she did not consent
‘I have not reached the level of satisfaction that during the sexual act Ms Higgins said no on a loop’
‘I have reached a state of actual persuasion on the balance of probabilities that Ms Higgins was not fully aware of her surroundings and did not consent to intercourse. The non-consent element is made out’
Whether Lehrmann was conscious of the fact Higgins did not consent
‘I’m satisfied that it is more likely than not that Mr Lehrmann’s state of mind was such that he was so intent upon gratification to be indifferent to Ms Higgins consenting’
‘(Mr Lehrmann 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’
The nature of rape
‘(The suggestion) a woman is expected to either fight or flight to be accepted as having been a victim of sexual assault is not only not reasonably open but wrongheaded’
The legal bar for Justice Lee’s finding of rape
‘These findings should not be misconstrued or mischaracterised as a finding that I can exclude all reasonable hypotheses consistent with innocence. As I’ve explained this a substantive difference between the criminal standard of proof and the single standard of proof and as a tribunal effect, I have only to be satisfied that Mr Lehrmann has acted as I have found, and I am not obliged to reach that degree of certainty necessary to support conviction on a criminal charge’
After the alleged assault
Higgins having a coffee with Lehrmann and exchanging friendly emails after the alleged assault
‘I have little doubt that if she had been raped that, by the time of these interactions, Ms Higgins would be driven by conflicting emotions, self-doubt … and questioning the prudence of her behaviour’
‘On the assumption she was a victim, (these actions) can be readily characterised as the actions of a woman who had not yet come to terms with what had happened to her, but needed to confront the reality that she had to work out a way of being in the same professional office as a male colleague who had assaulted her’
Higgins not going to a doctor in the days after the alleged assault
‘There may be many reasons on the assumption … for her not wanting to subject (herself) to such a process, particularly when the surrounding contemporaneous materials suggest she had no intention of pursuing a complaint with the police at this time’
The political ‘cover up’
The political element of the Higgins rape allegations
‘From the first moment the cover-up component was promoted as the most important part of the narrative’
Higgins’ claims leading to her $2.4m settlement payout from the commonwealth
‘It is evident that several things being alleged were untrue’
Fiona Brown
Linda Reynolds’ chief of staff Fiona Brown
‘In these circumstances, to be vilified as an unfeeling apparatchik … must be worse than galling … I unhesitatingly prefer the evidence of Ms Brown’
Higgins’ claim she told Brown about her allegations in their early meetings
‘I reject any suggestion Ms Higgins expressly said to Miss Brown at either the first or second meeting that she had been raped or sexually assaulted
Ten and Lisa Wilkinson
Ten identifying Lehrmann as the alleged rapist, despite not naming him
‘I have no doubt Mr Lehrmann was identified’
Wilkinson’s Logies speech
‘The action and giving the speech was not, as many have suggested, a case of Ms Wilkinson going off on a frolic and irresponsibly saying something off the top of her head’
‘I accept Miss Wilkinson did not fully appreciate the extent of the problem, given the advice and encouragement of Network 10 and perhaps because of the approbation of the speech received by way of applause from her professional peers’
Ten’s advice to Wilkinson before giving her Logies speech
‘She only came to give us a result of being badly let down by those to whom she turned for advice and counsel’
Wilkinson’s evidence in court about the Logies speech
‘In the end, what matters for present purposes is less the lack of judgement in giving the speech, but rather a lack of candour in the witness box by refusing initially to admit it conveys a representation that Miss Higgins rape allegation was credible and to be believed’
Wilkinson’s evidence about presenting Brown as ‘caring’ during their interview
‘The notion that The Project program was not very critical of Ms Brown as well as Senator Reynolds is utterly unsustainable’
Ten relying on Higgins’ allegations
‘The Project team had strong indications of the unreliability of their main source particularly as to how she’d lost material on her phone and selected material survived’
Ten’s failure to make proper efforts to contact Lehrmann
‘(Mr Lehrmann) was not living the life of a hermit. He was working for a public relations company in Sydney’
Ten’s treatment of Lehrmann in airing the rape allegations
‘(It) fell short of the standard of reasonableness’
Ten’s failure to acknowledge the impact of Wilkinson’s speech
‘There has been ample time for material reflection and yet there is no recognition even now that the speech could have undermined the administration of justice and caused it to be disrupted’
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