As the Bruce Lehrmann defamation trial closes out its evidence phase and the barristers move to their closing submissions, the entertainment quotient will take a nosedive. Submissions are inherently less interesting than cross-examination, compounded by the frequency with which counsel and judge will resort to their secret coded language, occasionally laughing heartily at jokes nobody else understands.
Still, the case has drawn a large and loyal audience, many of whom will stick it out to the end. A user’s guide may come in handy.
What are the key legal arguments?
For Lehrmann’s team, the big challenge is identification. It’s a given that what Network 10 broadcast was defamatory (the rape allegation), but Lehrmann wasn’t named. He has to prove that he was identifiable to the audience from a combination of clues that 10 gave and other information they probably already knew.
If he gets past that, it’s all about 10’s defences. The big one, which I expect will determine the case, is justification: truth. If 10 can satisfy the judge on the balance of probabilities that the rape allegation is substantially true, it wins. Fundamentally this turns on the testimonies of Lehrmann and Brittany Higgins, and the judge’s assessment of their credit will be crucial. He doesn’t have to find that anyone was lying, although that would be difficult in this case.
Network 10’s other main defence is qualified privilege, which media defendants always run for reasons that escape me. It’s why its witnesses, mainly Angus Llewellyn and Lisa Wilkinson, were cross-examined extensively on the reasonableness of their actions — for example, why they gave Lehrmann only 72 hours to respond to their questions. Irrelevant to truth, but very relevant to whether 10 can claim the privilege.
How does the ‘cover-up’ allegation play into it?
Well, it doesn’t really. The only factual issue needing to be resolved is whether or not the allegation of rape is true; the surrounding controversies may affect the credit of key witnesses or help clear up some of the timeline inconsistencies that have been floating around since 2021, but the judge doesn’t need to determine who knew what or when.
Who are Jones and Dunkel?
There will be plenty of references to Jones v Dunkel, old shorthand for this legal principle: if a party could have called a particular witness but didn’t, and there’s no good explanation for why not, the court can draw an inference that the witness’s evidence would not have assisted that party’s case.
The judge hasn’t hidden his interest in the non-appearance of Higgins’ fiancé, David Sharaz, and the absence of Lehrmann’s and Higgins’ former boss Linda Reynolds has also been noted. Whether any of this ends up mattering is an unknown.
And Briginshaw?
While the standard of proof in civil cases is “on the balance of probabilities”, where the factual allegation in question is a serious one — in this case the crime of rape — the courts put an extra gloss on the burden. The Briginshaw standard essentially requires a higher quality of evidence, so that the court can be comfortably persuaded that the allegation has been made out. It’s much more than one side of the coin being slightly more probable (or less improbable) than the other.
What that means practically is that even if the judge were to disbelieve Lehrmann’s evidence, he’d still need to be persuaded that Network 10 has proved the allegation on the balance of probabilities on its own evidence (principally, Higgins’ testimony).
How is public interest relevant?
It isn’t. Although I’ve seen reporting that 10 is running a public interest defence, that’s incorrect. That defence didn’t become part of the law until some months after its story went to air.
Public interest isn’t relevant to truth and only tangentially relevant to qualified privilege — in the sense that it’ll be easier for a media defendant to prove it acted reasonably in publishing its story if it was one of legitimate public interest. However, the defence always fails anyway. Maybe it’ll prove me wrong this time.
If Lehrmann wins, what does he get?
Mucho damages. As matters stand, Lehrmann has not been convicted of the alleged rape and is not facing a retrial (although nothing is preventing that from happening in the future, since his first trial was aborted before any verdict). He has always maintained his denial of the allegation.
10’s broadcast, which came the same day that News Corp’s Samantha Maiden broke Higgins’ story on news.com.au, burst the dam. If it’s found it identified Lehrmann, and its defences fail, his claim that it destroyed his reputation is powerful.
There will be arguments in mitigation, particularly relating to some of Lehrmann’s own actions subsequently (repeatedly breaking his silence on the Seven Network, for example), to suggest that not all the damage can be traced to 10’s actions. Still, he’d be looking at a significant payday.
Contempt!
The judge closed out Tuesday with this little nugget: his staff have been collecting social media posts that ignored his warnings to punters to not publish abusive things about witnesses (“disgraceful”, he called them), and he’s going to be coming for them. Could be a festival of contempt charges.
Will the loser appeal?
It seems everyone is plenty well-funded and content to scorch the earth, so there’s no reason to expect otherwise. Next stop: the Full Court of the Federal Court. But let’s see what Justice Michael Lee has to say first.
