Bruce Lehrmann Lost, What Happens Now?
The Bruce Lehrmann and Brittany Higgins case is perhaps one of the biggest, most sprawling cases in recent Australian memory. With two criminal trials (one was “aborted” and the other was dismissed over concerns for Brittany’s safety) and several defamation cases, the country has had to bare witness to Bruce Lehrmann attempt, poorly, to defend his innocence and reputation as Brittany Higgins’ character was torn apart.
That is until Justice Michael Lee found on Monday that Bruce Lehrmann, on the balance of probabilities, raped Brittany Higgins in Parliament House in 2019 — and lost his defamation case against Network Ten and Lisa Wilkinson. But how did we get to this point? And what happens now that Lehrmann’s lost the defamation case? Junkee spoke to Michael Bradley, Managing Partner of Marque law firm, to better understand the case and its fallout.
Ky Stewart, Junkee: What does the outcome of this case mean on a broad level? What is its societal impact?
Michael Bradley: Obviously, it most immediately vindicates what Brittany Higgins has said all along. This is a judicial declaration that she was telling the truth that she was raped. That’s obviously very significant, no doubt to her and very significant for Bruce Lehrmann, who now has been declared a rapist. The judge was at pains to try to educate everyone that this is a defamation case. This was not a criminal trial and this is not really the best forum for determining a rape allegation. However, it does have massive ramifications because so much public focus has been brought to bear on this whole story. And so quite naturally, it reverberates and I know that a lot of survivors will take a lot of significance from this.
Why did Bruce Lehrmann launch the defamation case in the first place?
Good question. I mean, any lawyer looking at it objectively would have advised him not to do it. The judge’s throwaway line about escaping the lion’s den, only to go back for his hat is pretty apt. He had got out of the criminal justice system clean, although he obviously hadn’t been found not guilty, but he was sort of free. To then launch defamation proceedings and subject himself to what was effectively a trial of the rape allegation on the lower civil standard of proof where, unlike the criminal trial, he had to give evidence himself and expose himself to cross examination. He knew how ridiculous his story was and that’s what the judge found. It was an act of insanity. Presumably driven by ego. I have no idea what his motivation was, but it was a completely crazy thing to do and he’s paid the price.
Can you explain what started all of this? Why was Lisa Wilkinson involved?
Defamation is a little difficult conceptually because it’s kind of the wrong way round from what you would intuitively think. Because Lehrmann is the applicant, he’s the moving party. He says, ‘I’ve been defamed’ and he’s right, he was defamed. Ten didn’t contest that because calling someone a rapist is defamatory. The question then is, was it defensively defamatory? The way defamation law works is if you’ve defamed someone, that’s okay if you have a defence and there are a number of different defences you can raise which effectively allow you to publish something defamatory. The defence Ten relied on was truth because if what you have published is true or substantially true, that is a complete defence. That’s where they won. Although Lehrmann was the moving party, it was his case, Ten had the onus of proof.
The reason Lisa Wilkinson was dragged into it was because Lehrmann made the choice to sue her personally as well. She was the journalist who ran the interview with Brittany Higgins. As a defamation plaintiff, you can choose your defendants. He could have sued the producer, the editor, probably people higher up the chain at Ten. For whatever reason he chose to sue Wilkinson, I assume, because of the Logies speech. As the judge said, if I’d found in favour of Lehrmann, then the Logies speech was a pretty serious aggravating factor and that would have, all other things being equal, added to the damages. So I assume that’s sort of why that choice was made to sue Wilkinson but I think also Lehrmann was trying to send a message. There has been a bit of a trend in recent years, where plaintiff’s defamation cases are actually suing individual journalists. And sometimes the individuals who’ve made the allegations. Craig McLachlan was an example — he actually sued the media and one of his own [accusers].
What do you think the chances are of Lehrmann appealing the outcome and the case successfully going back to court?
He has a right to appeal. It would be a very difficult appeal to run because the judge’s findings are factual findings, and they’re essentially based on findings about the witnesses. Appeal courts will strongly resist any temptation to interfere with a trial judge’s findings of fact and particularly of witnesses for the simple reason that the trial judge saw the witnesses and the appeal court doesn’t get to see them. A very important part of the process of assessing whether someone is telling the truth is seeing them in person — the tone, the manner, the body language, the impression you get from how they go about answering questions. It’d be very difficult to convince an appeal court to overturn the judge’s finding where he’s gone to incredible depths of forensic analysis of all the evidence and the witness’s testimonies. It’s been as close to a bulletproof judgement as I’ve seen.
Why do people make comparisons to the Ben Roberts-Smith case?
I think we’re at the tail end of what has been a trend for these high profile defamation cases over the last few years. There were some big successes. Some years ago, Geoffrey Rush was probably the most prominent example of a high profile man who took on a defamation claim and won big. I think it has become trendy to sue for defamation. There is a reputation that it’s an easy win in Australia, particularly because it’s such a plaintiff friendly jurisdiction for defamation, especially against the media. So there was a fair bit of ego and pride, maybe some mercenary thinking: ‘I can make some money out of this’. We’ve seen this succession of very high profile cases where they’ve come a cropper. I mean, Ben Roberts-Smith is a spectacular example. Lehrmann has gone even bigger. There was also Christian Porter, who settled for nothing. Lachlan Murdoch who dropped his case. Clive Palmer who got nominal damages. Peter Dutton lost on appeal. There is something all these men have in common. They’re men, they’re white, they’re all in positions of privilege and power. It’s often been said that defamation law is a tool for protecting privilege. It’s one of the tools powerful people use to protect themselves from scrutiny.
Will Lehrmann face any criminal repercussions?
There remains an open possibility of the criminal rape proceedings being revived. The Director of Public Prosecutions in the ACT could decide to reinstate that case and go to a third trial. There would be lots of considerations in that but there’s nothing stopping that happening from a legal perspective. The fact that there’s this finding in the civil court makes no difference. That’s not proof of anything in a criminal context and the evidence from the defamation case is not evidence in the criminal case. You’d be starting again. I would imagine the most important consideration would be the position of Brittany Higgins herself as to whether she is prepared to subject herself to that process again. I know everyone’s speculating about it at the moment, the reality is nobody knows and but yes, it is, hypothetically, a possibility.
What will happen with Channel 7? Should there be legal accountability for the disclosure of chequebook journalism?
Chequebook journalism itself is not illegal. Nor is it unethical. But the way that the Seven did it is because if they didn’t disclose [it], in fact, they lied or misrepresented the position until it came out in court. So they disgraced themselves. And Spotlight really should just be shut down. As the judge found, Lehrmann handed over evidence from the criminal trial to Seven. That was a very, very serious contempt of court. That’s a criminal offence in itself. He could be prosecuted for that as well as Seven, or at least the individuals in Seven who took that material knowing where it came from. That’s a very, very serious thing for them to have been involved in and they should face consequences for that because that undermines the integrity of the criminal justice system. It was also an incredibly gross invasion of Brittany Higgins’ privacy given the nature of the material. Everyone should be concerned about that. That is why those very strict rules exist. That blanket of confidentiality falls over material that is compulsory and used in any court proceedings. For it then to be handed to a television station, of all places, it’s outrageous and everyone involved should face consequences.
Are defamation laws too restrictive in Australia?
It’s better than it was before [the public interest] reform and a couple of other reforms in recent years have righted the balance to some extent, but it is still unbalanced and requires fundamental reform. Because defamation law is about reputation, which is a personal property right and defamation law was invented to protect the reputations of 19th century white men of power. That’s still pretty much how it operates. It prioritises that right to reputation over free speech and over a free press and it doesn’t get that balance right. The exposure of the things that happen under the surface of society, particularly in institutions of power is essential to a well functioning democracy and in a free society. Our defamation law has had a really powerful, chilling effect on that process of exposure to our cost. We’ve got to start with an understanding of what exactly is the social utility of this law? How important is personal reputation in the digital age? It was invented at a time when there were all print newspapers. Not the internet.
I hope [reforms] will encourage the media to continue going hard on public interest journalism. That’s not to say that Ten has been vindicated in the Lehrmann case. In fact, the judge was scathing about a lot of Ten’s conduct. And rightly so. It’s not about sensationalist reporting. The Lehrmann case is a case study in the exploitation and misuse of a survivor’s story. And that is a real shame. And there has been a high price for that, particularly for the survivor.
Consent was brought up in a very meaningful way by Justice Lee. Do you see this as a turning point in how sexual assault is discussed in courts?
One of the benefits of this case, incidentally, has been this public exposure of concepts that routinely play out in criminal courts, but of course, criminal trials aren’t televised. The judge’s discussion and analysis of these issues has been really helpful. He did it really well. It won’t directly influence what happens in courts, but from the perspective of public understanding, I think it’s been really beneficial. Most people don’t understand how consent operates, and how the law deals with it.
There are two parts to this. First, did she consent? And the answer was no. But then, did he know that she wasn’t consenting? The way criminal law works is if he didn’t know and he reasonably believed she did consent then he still has a defence. So explaining that if a man has sex with a woman in circumstances where she doesn’t consent, and he doesn’t care either way, which is what he found in this case, that’s rape. He has to know that she is consenting, he has to be aware of it. He can’t just take it for granted or be reckless about that, because if he is reckless about it, that is still rape. So I think that’s been really educational and beneficial. We should all be grateful to the judge for being so careful about it and the way he exploded a lot of rape myths which are very pervasive through society. We’ve seen it in the public commentary and a lot of media commentary and analysis of this case as this saga has played out. Myths about how the how a rape victim is supposed to behave, how they’re supposed to react, what they’re supposed to do afterwards. As the judge said, there is no rulebook for how people respond to trauma. They respond in infinitely varied ways and rape survivors respond in every way imaginable, not just in the moment, but also in the hours afterwards, days afterwards, the years afterwards, because they’re dealing with incredibly powerful trauma and nobody can predict how they would respond in those circumstances. That’s probably the biggest benefit of this case, but there’s been a real exposure in a very public way of some very important things that we will all benefit from understanding better.
I don’t hold much hope for the media. They will always be tempted to reduce everything to simple binary. ‘Rapist’ is the Herald headline for example. Okay, yeah, true. That’s the immediate takeaway from the judge’s verdict but there’s so much depth and nuance there. We could actually use this case as a platform for making ourselves a better society and certainly that came loud and clear from the judge. That’s his hope. I share that hope. It’d be nice to see the media playing more of a leadership role in how it addresses these types of situations and how it reports rather than that goodies / baddies binary that they enjoy so much because it’s the most digestible way to report anything.
The media reports calling him a rapist and a liar in huge font close to Brittany’s face did feel a little uncomfortable.
You know, there’s a young female victim of a rape. She’s going to be dealing with that for the rest of her life and there’s nothing entertaining or funny about that. The fact is it got turned into a circus and that’s still unfolding and none of us should take any joy from that.
[This interview has been edited for length and clarity.]
Ky is a proud Kamilaroi and Dharug person and Multimedia Reporter at Junkee. Follow them on Instagram or on X.
Image: Getty