Let’s be thankful for Justice Lee, a judge who wasn’t buying anyone’s narrative

“Mr Lehrmann raped Ms Higgins.”

As Federal Court Justice Michael Lee sagely observed — among a deluge of sage observations in his 1,098-paragraph judgment — for some people those few words are the beginning and end point of interest. Despite his exhaustive attempts to bring focus to the collateral damage this court case has wreaked, he knows that few will really care.

Lehrmann has lost the case he commenced. Network Ten and Lisa Wilkinson win, because the only viable defence they had — substantial truth — succeeded.

The judge found, on the balance of probabilities but persuaded to the requisite degree of certainty for such a serious allegation, that:

• Lehrmann had sex with Higgins on the couch in Linda Reynolds’ office at Parliament House;
• Higgins did not consent;
• Lehrmann was indifferent to whether or not she was consenting and went ahead without caring either way.

These three findings parallel broadly the elements of the crime of rape in all Australian jurisdictions, accepting as the judge noted that the criminal law is constantly evolving in this area, especially around the meaning and significance of consent. However, he said, “the natural and ordinary meaning of rape is tolerably plain”. In a defamation trial, the issue is the meaning the audience would have taken from what was broadcast, not the strict legal definition.

The foundation for these conclusions is the findings Lee made about the credibility of the witnesses; critically, Lehrmann and Higgins, but others as well.

Nobody should be surprised to read that Lehrmann’s “attachment to the truth was a tenuous one”. It was his choice to tell a story that defied rationality, but more importantly, the judge found that he told deliberate lies and answered questions with an eye to advancing his case. He leaked evidence from his criminal trial to the Seven Network, a grave contempt of court.

By contrast with Lehrmann, whose “untruths were all over the shop”, Lee considered Higgins’ lies to be “organised” and with a common thread. He also distinguished between her conduct in 2019, after the rape, and that when she went public in 2021. Of the latter, he said she had made false representations, been selective in what material she gave the police, and “sometimes told untruths when it suited her”.

Of most significance was the narrative the judge said Higgins “crafted … accusing others of putting up roadblocks and … forcing her to choose between her career and seeking justice”. To put it bluntly, Lee wasn’t buying this one bit, and his commentary on this aspect of the case is destined to call into question the Commonwealth’s 2022 decision to settle Higgins’ compensation claim.

However, “unsatisfactory witness” as she was, the judge believed she was telling the truth about the one thing that really mattered: her rape. 

Among the things that don’t matter are the failure of Ten’s alternative defence of qualified privilege (because its behaviour was not reasonable); the fact that Ten’s broadcast identified Lehrmann despite not being named; or the judge’s just-in-case conclusion that, even if he had found in his favour, he would have awarded Lehrmann only a paltry $20,000 in damages.

There are other sidelights to the judgment that, although they didn’t alter the outcome, deserve the attention the judge was asking us to give them.

In particularly sharp focus is the controversy around Wilkinson’s notorious Logies acceptance speech, which occurred shortly before Lehrmann’s criminal trial for the alleged rape of Higgins was due to begin in 2022. It caused the trial to be delayed, as (the judge found) Wilkinson should have realised. It was, he said, “apt to undermine the due administration of justice”. He accepted that Wilkinson didn’t fully appreciate the danger, having sought advice from Ten’s in-house lawyers and given the go-ahead. Still, she should have.

Worse, the Ten lawyer who gave Wilkinson that advice, Tanya Smithies, definitely should have known better. Lee noted that she should have been alive to the risk of sub judice contempt. Ten’s conduct was grossly improper, but the “most disturbing aspect of this part of the case is the insouciance of Ms Smitihes” and “continuing lack of insight … as to the inappropriateness of her conduct”. That reflects, he concluded, “a lack of proper appreciation of her professional obligations as a solicitor”. Ouch.

More broadly, Wilkinson’s Logies speech exemplified a bigger problem, which to this judge was what made the entire Lehrmann-Higgins saga an “omnishambles”. That is “the assertion that what went on between these two young and relatively immature staffers led to much more. By early 2021, allegations of wrongdoing had burgeoned far beyond sexual assault”. The claim of a huge political cover-up “meant the rape allegation was not pursued in the orthodox way through the criminal justice system, which provides for complainant anonymity”.

The cover-up became the story, certainly for Wilkinson and The Project, however, it was “objectively short on facts, but long on speculation and internal inconsistencies”. The sensation “won the Project team, like [news.com.au reporter Samantha] Maiden, a glittering prize; but when 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 criminal justice system.

Lehrmann loses, comprehensively, and now everyone can safely drop the “alleged” when they call him a rapist. He also has his next rape trial, in Queensland, to look forward to.

Ten and Wilkinson, in Justice Lee’s view, “have legally justified their imputation of rape [but] this does not mean their conduct was justified in any broader or colloquial sense”. Winners, not victors.

It’s over. We can be thankful for that, and for a judge who wasn’t buying anyone’s narrative.

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