Lehrmann raped Higgins, judge finds
A Federal Court judge has found that Bruce Lehrmann committed a legal own-goal by bringing defamation proceedings, saying he went “back for his hat” after escaping the lion’s den of a criminal trial.
In a landmark judgment on Monday afternoon, Justice Michael Lee found that Lehrmann raped his former colleague Brittany Higgins as he dismissed the former political staffer’s multimillion-dollar lawsuit against Network Ten and journalist Lisa Wilkinson.
In a massive victory for the broadcasters, Justice Lee found that on the balance of probabilities, Lehrmann had sexual intercourse with Ms Higgins inside Parliament House on the morning of March 23, 2019.
Lehrmann has persistently denied the allegation and claimed that he did not have sex with Ms Higgins that morning.
He faced trial in the ACT Supreme Court but the proceedings were abandoned due to juror misconduct.
“Having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat,” Justice Lee said in his judgment on Monday.
Justice Lee found that on the balance of probabilities – which is less than the criminal standard of beyond a reasonable doubt – that Lehrmann raped Ms Higgins.
“Mr Lehrmann raped Ms Higgins,” Justice Lee said in his conclusions.
“I hasten to stress, this is a finding on the balance of probabilities.”
The court was told that Ms Higgins and Lehrmann had been drinking at two Canberra bars with colleagues that evening.
In his evidence, Lehrmann denied that he and Ms Higgins had kissed at ’80s-themed bar 88MPH.
However, Justice Lee described Lehrmann’s testimony as “false” and contradicted by the evidence of fellow political staffer Lauren Gain.
“I consider it more likely than not in those early hours after a long night of conviviality and drinking and having successfully brought Ms Higgins back to a secluded place, Mr Lehrmann was hellbent on having sex with a woman he a) found sexually attractive, b) had been passionately kissing and touching, c) had encouraged to drink and d) knew had reduced inhibitions because she was very drunk,” Justice Lee said.
Justice Lee also rejected Lehrmann’s explanation that he spent 40 minutes in senator Linda Reynolds’ office making notes on ministerial briefs concerning the French submarine issue.
“There was one dominant thought running through the mind of Mr Lehrmann as he was approaching Parliament House, and it was nothing to do with French submarine contracts,” Justice Lee said.
STATEMENT FROM 10
Thomson Geer partner Justin Quill, from the law firm representing Network Ten, said the judgment was a “triumph for truth” that “vindicated” the broadcaster’s decision to publish.
“At its core this case was first and foremost about truth and Justice Lee has found that Network Ten prevailed in proving that Brittany Higgins’ allegations of rape were true,” he said.
“Justice Lee’s judgment is vindication for the courageous Brittany Higgins who gave a voice to women across the nation.
“Network Ten is considering Justice Lee’s 324-page judgment. It is clear however that Australia’s defamation laws remain highly restrictive.
“Network Ten remains firmly committed to honest, fair and independent journalism; to holding those in power to account; to giving people a voice who wouldn’t otherwise have one; and to always pursuing without fear or favour journalism that is firmly in the public interest.”
‘TRUE STORY’
Wearing a pristine white pants suit and serious expression, Wilkinson welcomed Justice Lee’s findings when she spoke to fellow journalists outside the courthouse.
“Today the Federal Court has found that I published a true story about a rape in a federal minister’s office in March 2019,” she said.
“I sincerely hope this judgment gives strength to all women around the country.”
The former Network Ten presenter made special mention she was “so grateful to have had the benefit of an independent legal team”, referencing top silk Sue Chrysanthou.
She thanked her family and “incredibly supportive” friends and colleagues for standing by her during the defamation trial.
“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,” she said.
LEHRMANN SWARMED OUTSIDE COURT
Lehrmann was swarmed by cameras and waiting journalists as he left the Federal Court on Monday but declined to comment.
He was hit with questions as he made the at-least 200m walk into a nearby building.
LEHRMANN RAPE PROVEN ‘ON BALANCE OF PROBABILITIES’
Justice Lee has found that Lehrmann raped Ms Higgins.
However, he noted that this finding was made on the balance of probabilities, which is lower than the criminal standard of beyond a reasonable doubt.
“Mr Lehrmann raped Ms Higgins. I hasten to stress this is a finding on the balance of probabilities,” Justice Lee said.
THE LOGIES SPEECH
Justice Lee has criticised Channel 10 after they gave permission to Wilkinson to make her Logies speech.
The speech caused Lehrmann’s criminal trial in the ACT Supreme Court to be delayed for several months.
“The conduct of Network Ten through its employees in procuring Ms Wilkinson to give the speech … was grossly improper and unjustifiable.”
“It was conduct likely to cause disruption to the criminal justice system and without the Chief Justice making the orders she did, could have imperilled Mr Lehrmann’s right to a fair trial.”
HIGGINS DID NOT CONSENT TO SEX WITH LEHRMANN
Justice Lee has found that Ms Higgins “did not consent” to intercourse with Lehrmann.
“I’ve reached a state of actual persuasion on the balance of probabilities that Ms Higgins was not fully aware of her surroundings when sexual intercourse commenced and did not consent to intercourse when she became aware Mr Lehrmann was on top of her,” Justice Lee said.
Justice Lee said Lehrmann had sex with Ms Higgins “without caring whether she consented to this”.
“I am satisfied that it is more likely than not that Mr Lehrmann’s state of mind was so intent upon gratification (that he was) indifferent to Ms Higgins’s consent and hence went ahead with sexual intercourse without caring whether she consented to this,” Justice Lee said.
“I consider it more likely than not in those early hours, after a long night of conviviality and drinking and having successfully brought Ms Higgins back to a secluded place, Mr Lehrmann was hellbent on having sex with a woman he a) found sexually attractive, b) had been passionately kissing and touching, c) had encouraged to drink and d) knew had reduced inhibitions because she was very drunk.”
“In his pursuit of gratification, he did not care one way or the other whether Ms Higgins understood or agreed to what was going on.
“Mr Lehrmann raped Ms Higgins. I hasten to stress this is a finding on the balance of probabilities.”
HIGGINS, LEHRMANN HAD SEX
Justice Lee has found that Ms Higgins and Lehrmann had sex.
“Whatever the true narrative is to additional drinking, I’m convinced however that sexual intercourse did take place and took place with Mr Lehrmann on top of Ms Higgins on the couch in the minister’s office,” Justice Lee said.
Justice Lee added: “It’s far more likely than not that sexual intercourse occurred towards the end of the period when Mr Lehrmann and Ms Higgins were in the minister’s office at or shortly after the time Mr Lehrmann’s girlfriend was trying to telephone him.”
Justice Lee said that he was not satisfied that Ms Higgins repeatedly said “no” as she alleged during her evidence.
“I have not reached the level of satisfaction that during the sexual act Ms Higgins said no in a loop and I think it’s more likely than not that she did not or was not able to articulate anything,” Justice Lee said.
Justice Lee said he found aspects of Ms Higgins’ evidence about the alleged rape to be “credible”.
“Her evidence that she was not fully aware of her surroundings but then suddenly became aware of Mr Lehrmann on top of her, at which time he was performing the sexual act, in the evidence given orally before me struck me forcibly as being credible and having a ring of truth,” he told the court.
THE DEPARTURES FROM PARLIAMENT
Justice Lee says he “rejects” the idea that had Lehrmann and Ms Higgins had consensual sex they would have left Parliament House together.
CCTV shows Lehrmann leaving just after 2.30am and Ms Higgins left later that morning.
“Given he had satisfied himself and knew his girlfriend was awake and attempting to contact him, calling a taxi and leaving Ms Higgins undressed is the action of a cad but is nonetheless explicable,” Justice Lee said.
HIGGINS DRIVEN BY “SELF DOUBT”
Justice Lee says that if Ms Higgins was sexually assaulted, she likely would have been driven by “conflicting emotions” and “self doubt” in the days and weeks following.
“I have little doubt that if she had been raped, by the time of these interactions it’s quite conceivable that Ms Higgins would be driven by conflicting emotions, self-doubt, and would be humiliated by word leaking out to her colleagues and the questioning the prudence of her behaviour,” Justice Lee said.
HIGGINS “SERIOUSLY INEBRIATED”
Justice Lee has found that Ms Higgins was “seriously inebriated” by the time she got back to Parliament House.
He pointed to her falling over at a bar and that she was seen swaying as she waited to enter Senator Reynolds’ office.
“CCTV suggests that Mr Lehrmann must have been aware of at least one incident that demonstrated a lack of balance, and things then progressed. He knew she was drinking excessively.”
“It must have been obvious to anyone that alcohol consumption had decreased Ms Higgins’s motor co-ordination. She was seriously inebriated.”
Justice Lee told the court that he was satisfied that Ms Higgins was drunk and drowsy at the time she was in Parliament House with Lehrmann.
“I’m comfortable so far that Ms Higgins was a very drunk 24-year-old and was significantly impacted. It is highly likely she was prone to drowsiness,” he said.
“In the light of my findings as to Mr Lehrmann’s conduct, I’m satisfied he was aware of her condition.”
LEHRMANN’S ‘ELABORATE FANCY’
Justice Lee has described Lehrmann’s version of events for why he came back to Parliament House as “elaborate fancy”.
He said Lehrmann was attracted to Ms Higgins and had just been “pashing” her at a nightclub despite having a girlfriend.
He said his version of events was “fanciful” that he came back late at night to work when he had already resigned from the senator’s office.
CHEATED
Justice Lee found that Lehrmann “cheated” on his girlfriend when he made out with Ms Higgins at the 88MPH before going back to Parliament House.
“It was a 23-year-old male cheating on his girlfriend, having just hooked up with a woman he found sexually attractive,” he said.
Justice Lee said what Lehrmann wanted at that point was not “shrouded” in mystery.”
Justice Lee said Lehrmann could not go to his unit for “obvious reasons”, being that he lived with his girlfriend, and decided to go back to Parliament House.
Mr Lehrmann had claimed in his evidence that he went back to Parliament House to make ministerial notes on the French submarine issues.
Justice Lee told the court that Lehrmann had “one dominant thought” and it had “nothing to do with French submarine contracts”.
THE DOCK
During his evidence, Lehrmann denied “plying” Ms Higgins with alcohol at The Dock bar.
He also denied spending most of the night with her.
Justice Lee said that after watching CCTV of their interactions, Lehrmann was encouraging Ms Higgins to drink “well beyond the grounds of sobriety” towards the end of their time at the Dock.
‘INEBRIATED’
Justice Lee said Ms Higgins was “inebriated” when she arrived at Parliament House.
He pointed to CCTV vision of her failing to put her shoes back on when she went through the metal detector at the security checkpoint.
THE KEYS
Justice Lee said he rejected Lehrmann’s claim that he went back to Parliament House to collect his keys.
He said it was “incomprehensible” that he came back through parliament security and then got another Uber home.
He said it would have been easier to text his girlfriend, whom he shared a flat with.
WILKINSON ‘INEXTRICABLY ENTWINED’ WITH HIGGINS
Wilkinson was “badly let down” by her employer before she gave a controversial speech at the Logies, Justice Lee said, though he said she should have known better.
Justice Lee noted she had been “sufficiently prudent” to seek legal advice before she gave the speech, which praised Ms Higgins and resulted in the delay of criminal trial in the ACT.
“That action of giving the speech was not, as many had suggested, a case of Ms Wilkinson going off on a frolic and irresponsibly saying something off the top of her head,” Justice Lee said.
“She only came to give the speech as a result of being badly let down by those to whom she turned to for advice and counsel.”
However, he determined Wilkinson’s extensive 40-year experience in journalism meant she “ought to have known” the speech was “fraught”.
“If she had thought matters through as an experienced journalist and less as a champion for Ms Higgins, she ought to have known the speech was fraught with danger and recognised that lauding a complainant on the evening of a rape trial in the terms she did would be apt to undermine the due administration of justice,” Justice Lee said.
He found she had given the speech because she was “inextricably entwined with Ms Higgins”.
Wilkinson had demonstrated a “lack of candour” in the witness box by refusing to admit the speech conveyed the imputation Lehrmann had raped Ms Higgins, the justice said.
THE BRUISE PHOTO
Ms Higgins says that in an attempt to corroborate her allegation of what took place behind closed doors inside Senator Reynolds’ office, she took a photo of a bruise on her thigh.
The photo became a flashpoint during the trial.
During Mr Lehrmann’s criminal trial, she claimed the bruise was suffered during the alleged rape – a claim she also made to The Project during her sit-down interview with Wilkinson.
She accepted during her evidence to the Federal Court that the bruise may have been caused when she fell on the stairs at 88MPH earlier that night.
The photo was later provided to The Project when she and her partner David Sharaz met Wilkinson and producer Angus Llewellyn inside a Sydney hotel in late January 2021.
The court was told that she air-dropped the photo to Mr Llewellyn.
Ms Higgins later provided a statutory declaration to The Project stating that she suffered the bruise during the alleged sexual assault.
And while Ms Higgins claimed it was taken in April 2019, metadata from the picture stated it had been created on January 27, 2021 – the day she first met with Wilkinson and Mr Llewellyn.
Justice Lee said the photo was not provided to the AFP during a meeting in 2019, and despite Ms Higgins’ evidence during the defamation trial that she obtained the bruise on her left leg, the photo showed her right leg.
“Despite her evidence before me, I consider it unlikely there would be genuine confusion in Ms Higgins’ recollection as to how she got the bruise, recorded the bruise photograph, given the way she and Mr Sharaz deployed it in 2021 and their subjective understanding of its importance,” Justice Lee said.
Justice Lee found that Ms Higgins “selectively curated material on her phone prior to giving it to the AFP” and “sometimes told untruths when it suited her”.
THE FIONA BROWN MEETING
Justice Lee found that Ms Higgins did not make rape allegations to her then boss just two days after the alleged incident.
The court was told that Ms Higgins and Lehrmann both went to work on the following Monday.
The following day, Lehrmann was dismissed from Senator Reynolds’ office for entering Parliament House after hours following a meeting with Senator Reynolds’ chief of staff Fiona Brown.
Ms Higgins also had a meeting with Ms Brown that day.
Ms Higgins says that in that office she told Ms Brown: “I said I was drunk, I said he was on top of me.”
However, that claim was denied by Ms Brown in her evidence.
When she was asked whether Ms Higgins said “Bruce was on top of me” and she replied “Oh God”, Ms Brown replied “no” and “nope”.
Ms Brown said she was told by Ms Higgins: “I’m responsible for what I drink and my actions.”
Ms Brown told the court that Ms Higgins made no sexual assault allegation in their meeting on Tuesday, March 26.
However, she said that at a subsequent meeting two days later, Ms Higgins said she “remembered” him being “on top” of her.
“She pivoted, it was quite casual, she just said out of the blue ‘I remember him on top of me’,” Ms Brown said.
She said she was “shocked” by Ms Higgins’ statement.
On Thursday, Justice Lee said: “I reject any suggestion Ms Higgins said to Ms Brown at either their first or second meeting that she said she had been sexually assaulted.”
THE ‘SPOTLIGHT DETOUR’
The case was reopened earlier this month to hear the evidence of ex-Spotlight producer Taylor Auerbach, who was instrumental in wooing Lehrmann for two interviews.
Mr Auerbach claimed that Lehrmann provided several documents from his criminal court trial in breach of legal principles.
Those claims were denied by Lehrmann.
Justice Lee said Lehrmann made “false representations” on the topic.
“In the end it is fair to conclude that Bruce Lehrmann was less than candid in his account of the extent of the benefits he received prior to an exchange for his bargain to participate in giving exclusive interviews to the Seven Network,” he said.
“For reasons I set out in detail, and notwithstanding the fact that I am not some sort of
roving law enforcement official and that any alleged breach of the Harman obligation if it is to be pursued will not be by me and not by this court, I’m satisfied Bruce Lehrmann made, or forced to be made, false representations as to the topic of providing access to documents subject to the subsisting legal obligation to the Seven Network.”
DELIBERATE LIES
Justice Lee found that Lehrmann told “deliberate lies” during his evidence.
“I do not think Mr Lehrmann is a compulsive liar and some of the untruths he told during his evidence may sometimes have been due to carelessness and confusion, but I am satisfied in important respects he told deliberate lies,” Justice Lee said.
He pointed to Lehrmann’s denial that he found Ms Higgins attractive in March 2019.
Justice Lee also said he found the evidence of Lauren Gain compelling.
Ms Gain was drinking with Lehrmann and Ms Higgins at the ’80s-themed bar before they went back to Parliament House.
Ms Gain gave evidence that she saw Lehrmann and Ms Higgins “kissing passionately”.
Lehrmann denied the claim but Justice Lee said he found Ms Gain’s evidence “compelling”.
UNRELIABLE HISTORIANS
Justice Lee described Lehrmann and Ms Higgins as both being unsatisfactory witnesses in delivering his judgment on Monday.
The matter relates to 42 minutes inside Senator Reynolds’ office on the morning of March 23, 2019.
Justice Lee said only Ms Higgins and Lehrmann “know the truth” about what happened inside the then defence minister’s office.
But he noted they are “two people who are both in different ways unreliable historians”.
“To remark that Mr Lehrmann is a poor witness is an exercise in understatement,” Justice Lee said.
Justice Lee said Lehrmann was “fashioning his responses in what he perceived to be his forensic interests.”
He also described Ms Higgins as “also an unsatisfactory witness.”
“Ms Brittany Higgins, Mr Lehrmann’s accuser, was also an unsatisfactory witness, who made some allegations who made her a heroine to one group of partisans but when examined forensically undermined her general credibility to a disinterested fact finder.”
OMNISHAMBLES
In his opening remarks on Monday, Justice Lee described the case as an “omnishambles”.
He said his judgment was 324 pages long and he would deliver a summary.
“It is a singular case. The underlying controversy has become a cause célèbre,” Justice Lee said.
“Indeed, given its unexpected detours and the collateral damage it has occasioned, it might be more fitting to describe it as an omnishambles.”
However due to technical difficulties Justice Lee has paused the delivery of his judgment.
Justice Lee returned more than 30 minutes later after the court staff ironed out technical issues and he has resumed his judgment.
KEY FIGURES ARRIVE
Lehrmann has arrived at the Federal Court to a huge scrum of waiting media.
Dressed in a dark suit with a light blue tie, Lehrmann made his way through shouting journalists and closely held cameras into the courtroom.
Wilkinson, wearing a white pants suit, also arrived on Monday morning alongside her barrister, Sue Chrysanthou SC.
Justice Lee was due to hand down his judgment earlier this month; however, in a 11th-hour twist, he reopened proceedings to hear evidence from Mr Auerbach.
Mr Auerbach, who was instrumental in wooing Lehrmann for two interviews broadcast last year, made a series of damaging allegations that Seven paid for or reimbursed Lehrmann for a raft of expenses including accommodation, meals, drugs and prostitutes.
In a statement, Seven said allegations Lehrmann had issued invoices to the network to cover costs for illegal drug use and prostitutes was “completely false”.
Mr Lehrmann has also denied the claims.
LEHRMANN’S CLAIMS
Lehrmann’s lawyers have maintained that no sexual intercourse took place between the two former political staffers.
“Mr Lehmann submits that there is an insufficient evidentiary basis for a positive finding to be made that any sexual intercourse, consensual or otherwise, took place,” Mr Lehrmann’s lawyers said in closing submissions.
The court has been told that Lehrmann maintains he did not rape Ms Higgins, and he went to Parliament House in the early morning to collect his keys and sat at his desk making notes on question time briefs before leaving.
According to his evidence, he turned left when he entered Senator Reynolds’ office and Ms Higgins turned right and did not see her again that night.
HIGGINS’ CLAIMS
Ms Higgins said after entering Senator Reynolds’ office, she sat on a windowsill before she passed out.
She said she woke feeling a pain in her leg and with Lehrmann on top of her.
“I told him no, on a loop,” Ms Higgins told the court during her evidence.
“I don’t know how many times I said it. I told him to stop. I couldn’t scream for some reason. It was trapped in my throat, I couldn’t do it.”
She told the court that she felt “waterlogged” and as if she couldn’t move.
