Deliberate lies and a ‘vexing’ photograph: Justice Lee’s take on the key players of the Bruce Lehrmann defamation case
When Justice Michael Lee handed down his verdict in Bruce Lehrmann’s defamation case against Network Ten and Lisa Wilkinson, he spoke a lot about the credibility of the witnesses.
He said it was normal for human beings to misremember or lie about some things but tell the truth about others, and he noted that just because someone lied about one thing, didn’t mean everything they said must be rejected.
But he found there was a significant difference “between the distortions of Mr Lehrmann and Ms Higgins” – and ultimately, he dismissed Lehrmann’s case and found on the balance of probabilities that Lehrmann had raped Higgins in 2019.
Here’s what he had to say about the key players in the case.
Bruce Lehrmann
“I do not think Mr Lehrmann is a compulsive liar … but I am satisfied that in important respects he told deliberate lies,” Lee said.
“I 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.”
He listed a number of times Lehrmann made false statements, including about being reprimanded by his boss, Senator Linda Reynolds, about why he went to Parliament House with Higgins and about drinking whisky.
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“All these falsehoods, together with his Walter Mitty-like imaginings in skiting to [Liberal staffer Lauren Gain] about the Australian Secret Intelligence Service, demonstrate that Mr Lehrmann had no compunction about departing from the truth if he thought it expedient.”
Lee found that Lehrmann was “less than candid” about what he received from Seven for his exclusive interview in terms of benefits and that it was “inescapable” that Lehrmann “wrongly provided” material to Seven from his aborted criminal trial in breach of the Harman undertaking.
Brittany Higgins
Lee said Higgins was not always truthful but her untruths had a “general thread” and some of them were explained by her trauma.
Lee made a distinction between Higgins’ accounts of the rape in 2019 “when she did not wish to pursue a complaint” – and later in 2021 when it was “part of a broader narrative or theme she and her boyfriend [David Sharaz] wished others to believe”.
“Moreover, given the potential agreed effects of trauma, I do not consider any of this 2019 conduct … is necessarily inconsistent with a victim of sexual assault seeking to process what had occurred,” he said.
However, her untruths in 2021 were not due to trauma, he found. Lee said when it came to telling her story later Higgins “crafted a narrative accusing others of putting up roadblocks and forcing her two years earlier of having to choose between her career and seeking justice by making and pursuing a complaint”.
Lee said The Project team seized on this cover-up or victimisation allegation as key to their story but the evidence for it was sparse.
Higgins eschewed specifics and talked only about people “acting weirdly” when speaking to Wilkinson and news.com.au’s Samantha Maiden about a supposed Liberal cover-up of the rape.
Lee said the fact Higgins’ phone was wiped and the bruise photograph survived was “odd” and “vexing”: “Its forensic importance is manifest and while she was under an obligation to tell the truth, it was put forward by her as corroborative material”.
“In the witness box at this trial, she seemed irritated that the crossexaminer would challenge her on the photograph,” he said. “But the evidence as to her inconsistencies on this topic are both important and vexing.”
Lee said the bruise photograph was not provided to the AFP in 2019, and the earliest record of it was 2021.
But when it came to the central allegation that she was raped, he accepted her evidence.
“I think it is more likely than not that she did not, or was not, able to articulate anything,” he said. “On balance, I find it is more likely than not that she was passive … during the entirety of the sexual act.”
Lisa Wilkinson
Lee found it hard to reconcile Wilkinson’s acceptance of a Logie award and saying “this interview and this story is by far the most important work I have ever done” with her lack of professional scepticism or rigour in analysing the allegations.
He found Wilkinson tended to advocate for her views when she was in the witness box and refused to concede she made a mistake by giving the Logies speech before a criminal trial.
First, was her refusal to make the obvious concession in response to her cross-examiner’s questions that her speech at the 62nd Annual TV Week Logie Awards on 19 June 2022 conveyed the message that Higgins was credible and to be believed, and therefore, by necessary implication, that her allegation of rape was true.
She had a tendency “to make assertions that she thought supported her case but lacked a factual foundation”.
Lee said Wilkinson had a tendency to “double down” on the idea of a systemic cover up when the evidence was not there.