By Karl Hoerr -
Former Liberal staffer Bruce Lehrmann has lost his defamation case against Network 10 and journalist Lisa Wilkinson.
Lehrmann sued Network Ten and journalist Lisa Wilkinson for defamation, over a story on The Project in February 2021. The broadcast featured an interview with Liberal staffer Brittany Higgins, in which she alleged a senior colleague had raped her in the office of then Defence Minister Linda Reynolds in March 2019. The program did not name Lehrmann but his lawyers argued it invited people to speculate about the identity of the person being accused.
Justice Michael Lee found that on the balance of probabilities, Lehrmann did rape Higgins.
“In his pursuit of gratification, he did not care one way or another whether Ms Higgins understood or agreed to what was going on,” he said in a two-and-a-half hour oral delivery of extracts of his judgment.
Speaking outside court after the judgment was complete, Wilkinson welcomed the decision.
“I sincerely hope that this judgment gives hope to women around the country,” she said.
Justice Michael Lee was just minutes into the judgment this morning, when the sound suddenly dropped out on the Federal Court’s live stream of the proceedings on YouTube. The court was adjourned so IT staff could attend to the technical mishap.
In the brief period he had been able to speak, the judge had already said of the case, “…given its unexpected detours and the collateral damage it has occasioned, it might be more fitting to describe it as an omnishambles.”
Later, after resuming, the stream attracted more than 47,000 viewers.
Justice Lee was scheduled to deliver his judgment on 4 April, but on Easter Sunday, Ten lodged an interlocutory application, seeking to adduce fresh evidence. The network filed an affidavit from former Channel 7 producer Taylor Auerbach, who had worked on episodes of the Spotlight program featuring interviews with Lehrmann.
The judge was persuaded to allow Ten to re-open its case. The network wanted to call Auerbach to give evidence it believed went to Lehrmann’s credibility. Auerbach proceeded to make sensational claims that Seven had reimbursed Lehrmann for cocaine and sex workers, while the network was attempting to secure an exclusive interview with him. In a statement, Seven was reported to have denied the allegations. Ten alleged there had been a raft of benefits Lehrmann received from Seven, which he failed to mention when he was being cross-examined.
Auerbach also claimed that Lehrmann had provided Seven with confidential material subpoenaed during the criminal proceedings against him. The material included more than 2,300 pages of text messages between Higgins and her ex-boyfriend Ben Dillaway. In submissions to the Federal Court, Ten argued it was “an egregious contempt of court,” because the material was subject to an implied (or Harman) undertaking that it not be used for any purpose other than the criminal proceedings.
Bruce Lehrmann was charged over Brittany Higgins’ allegations but his trial in the ACT Supreme Court ended in October 2022, due to juror misconduct. The prosecution was discontinued due to concerns for Higgins’ welfare. Lehrmann has always maintained his innocence and he has not been convicted of a criminal offence.
Although the ruling was in favour of Ten and Wilkinson, the judge was critical of the inclusion of claims of a cover-up in the original broadcast.
“[W]hen the accusation is examined properly, it was supposition without reasonable foundation in verifiable fact; its dissemination caused a brume of confusion, and did much collateral damage – including to the fair and orderly progress of the underlying allegation of sexual assault through the criminal justice system,” said Justice Lee.
In reference to the defamation action, Justice Lee said, “Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.”
“As a result of the inconclusive criminal trial, Mr Lehrmann remains a man who has not been convicted of any offence, but he has now been found, by the civil standard of proof, to have engaged in a great wrong. It follows Ms Higgins has been proven to be a victim of sexual assault,” he said.
“At first glance this might be thought to be an odd outcome. But if one leaves aside superficial reactions and appreciates the high value the common law has always placed upon the importance of securing against the conviction of the innocent, it is not at all peculiar.”
Outside court following the decision, Wilkinson thanked her legal team and other supporters.
“Throughout every step of this process I’ve been surrounded of the love of my wonderful family as well as incredibly supportive friends and colleagues. I can never thank them enough,” she said.
“I also want to say how grateful I am to all the generous members of the public who have approached me almost every single day to express, often through tears, their unwavering support.”
The case prompted a Board of Inquiry into the ACT criminal justice system by former Supreme Court of Queensland Judge, Walter Sofronoff KC. Its scathing findings prompted the resignation of Director of Public Prosecutions Shane Drumgold last August.
Given the extraordinary twists and turns of this case, it is impossible to know if today’s judgment will bring a definitive conclusion to the matter.
Additional reporting: Francisco Silva
Header images from left: Taylor Auerbach, Bruce Lehrmann and Lisa Wilkinson
Image credits from left: Sky News, Channel 7, Channel 10
