How Justice Michael Lee untangled the Higgins-Lehrmann ‘omnishambles’
In determining that Bruce Lehrmann raped Brittany Higgins, the federal court justice Michael Lee took a giant knot of allegations, with all its loops and loose ends, and meticulously and painstakingly unpicked it.
That he did it with such acerbic clarity makes an already unusual judgment only more so.
Lee emerges from the legal wreckage of the Higgins-Lehrmann allegations as the only one to dispassionately pull on every thread. Partly this is due to the specific task he was set, neither advocating towards an outcome nor restricted to a particular aspect of what he has dubbed this “omnishambles” of a case.
But partly it is the process he chose in seeking to fulfil it.
To decide if Higgins’ allegations were true – and whether respondents Network Ten and journalist Lisa Wilkinson did enough to check – the judge had to apply a lesser test than if they were criminal proceedings. He only had to be satisfied “on the balance of probabilities”, not find them proven “beyond reasonable doubt” – the higher bar that criminal prosecutors must clear.
But to reach his conclusion, the judge also broke the issues down into component parts and separated out the allegations in a manner that criminal prosecutors in the Australian Capital Territory’s supreme court did not, before Lehrmann’s criminal trial for rape collapsed due to juror misconduct and was discontinued out of concern for Higgins’s mental health.
The fact that Lehrmann has had no criminal findings against him on Higgins’s rape allegation yet chose to launch defamation proceedings that risked the kind of civil ruling now delivered is why Lee remarked that “having escaped the lion’s den, Mr Lehrmann made the mistake of coming back for his hat”.
Lee started his task by examining what was originally alleged on Network Ten’s The Project in 2021. He determined from the outset that the program contained not one allegation but two.
Those were that then ministerial staffer Brittany Higgins had been raped on a couch in her boss’s office in March 2019, by a colleague not named – but, he argued, easily identifiable – as Bruce Lehrmann, and that attempts had been made to cover it up for political reasons.
Lee adopted this process because Ten and Wilkinson relied primarily on a truth defence: that Higgins had been raped. Their secondary qualified privilege defence involved arguing that they had acted reasonably in putting Higgins’ allegations to air and that broadcasting them was in the public interest.
To determine the truth question, Lee assessed the rape and cover-up allegations separately. He found the first proven, the second not.
In separating the two allegations, he also focused on two distinct periods of time. The first covered the original event in March 2019 and its aftermath. The second covered The Project’s broadcast in February 2021 and what flowed from it.
Lee then assessed the credibility of witnesses, including Lehrmann and Higgins, Wilkinson and her producers and advisers, and those with whom these key people relevantly engaged during those two periods.
He found that both Lehrmann and Higgins were unsatisfactory witnesses.
But he said Higgins’ testimony was most unreliable in relation to the second time period and the coverup allegation. He found her evidence from the first time period and her later evidence surrounding the rape allegation was believable, likewise the corroborating evidence of witnesses who engaged with her at the time.
Potentially crucially for future sexual assault cases, Lee found that some of her subsequent recollections were wrong and behaviour contradictory but that the testimony had “a general thread” consistent with the actions and attempted memory corrections of a person traumatised by sexual assault.
In contrast, Lee branded Lehrmann a liar, not compulsive but persistent. Other than when Lehrmann was admitting to something, Lee found that most of what he said could not be believed. He examined all of Lehrmann’s contradictory explanations for his actions on the night in question through the lens of ordinary-person behaviour and pronounced them “fanciful” and defying logic.
So the judge decided the truth of the rape allegation had been established as per the civil-court test. He found differently on the “cover-up”.
He also found that the respondents’ secondary defence of qualified privilege had failed. Lee strongly criticised Higgins’s evidence on the alleged cover-up, along with the actions of Ten, and Wilkinson and her producers, both before The Project broadcast and since.
He found The Project team did not do as much as they could and should have to establish if Higgins’s allegations were true, including not trying hard enough to get Lehrmann’s side of the story.
Lee also examined Wilkinson’s acceptance speech at the 2022 Logies awards, which mentioned Higgins and caused a delay in Lehrmann’s criminal trial and which Lehrmann argued was highly prejudicial. Lee found the speech was “grossly improper and unjustifiable” because it implied Higgins’s allegations were true.
Lee said Ten had let Wilkinson down with its pre-Logies speech advice but that, as an experienced journalist, she should also have known better. Despite these significant criticisms and the failure of the back-up defence, the success of the first was enough. Given that defamation cases turn on whether an otherwise good reputation has been damaged, finding the applicant was a rapist rendered the respondents’ failings on other matters moot.
Lee’s judgment may yet be subject to appeal.
But his forensic breakdown of the tangle of original allegations, tweezering the strands apart with law and common sense, delivers valuable insights for future defamation and sexual assault prosecutions and for media practice.
It may also serve as a handy guide for judges in how to break down and assess a very complicated and controversial case with a cool eye, painstaking legal dissection and the application of everyday discernment. It’s also a fairly good example of how to communicate in a way that makes people listen and understand.
Faced with such a tangled web, that is quite a public service.