Bruce Lehrmann has lost his defamation case against Network Ten and Lisa Wilkinson, bringing to an end a sprawling legal saga which has gripped the nation.
In a live oral summary that took two and a half hours, Justice Michael Lee said the former Liberal staffer was not defamed by Wilkinson and Ten when The Project broadcast an interview with Brittany Higgins on Monday 15 February 2021 in which she alleged she was raped in Parliament House.
He found that on the balance of probabilities Lehrmann raped Higgins on the minister’s couch in Parliament House in 2019.
“In summary, 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 found attractive” and knew was inebriated, Lee said.
“He did not care one way or the other whether Ms Higgins understood or agreed to what was going on.”
Lee said of Lehrmann’s decision to bring the civil case against Channel Ten and Wilkinson, after his criminal trial was aborted due to juror misconduct: “Having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat.”
Lehrmann denied the rape allegations and pleaded not guilty at his trial in the Australian Capital Territory supreme court which was aborted. Prosecutors did not seek a retrial due to concerns about Higgins’s mental health.
Lehrmann and Wilkinson were both in court for the decision. Lehrmann sat with his head bowed for most of the proceedings, rarely looking up to where Lee sat issuing a judgment that was at times scathing of Lehrmann and his truthfulness.
“To remark that Mr Lehrmann was a poor witness is an exercise in understatement,” Lee said in his first few minutes of the judgment.
Both Lehrmann and Wilkinson were in court for most of the five-week trial, sitting at opposite ends of the courtroom.
The full judgment has been published online.
Lee was, however, critical of the conduct of Channel Ten’s The Project team, saying “the rape allegations were intertwined with the cover-up and the Project team had strong indications of the unreliability of their main source, particularly as to how she lost material on her phone and selected material survived”.
He also criticised their approach to seeking comment from Lehrmann: “If Network Ten wanted to get in contact with Mr Lehrmann, there were ways of ensuring that contact could be achieved. He was not living the life of a hermit.”
Lee said the case functioned as a “Rorschach test” for some observers.
“For more than a few, this dispute has become a proxy for broader cultural and political conflicts.”
In The Project interview, Higgins told Wilkinson she was sexually assaulted on a couch in the office of her then boss, former defence industry minister Linda Reynolds, in the early hours of Saturday 23 March 2019.
The Project did not name Lehrmann as the Liberal staffer at the heart of the allegation but Lee found he was identifiable in the broadcast.
In February 2023, after his criminal trial was abandoned, Lehrmann began legal action against Network Ten in the federal court.
In the judgment Lee said Ten and Wilkinson had proved the imputation he raped Higgins was true on the balance of probabilities.
The applicant has always denied raping Higgins or having any sexual relations with her at all.
“Did you sexually assault Brittany Higgins in that office on that evening?” his barrister, Steven Whybrow SC, asked during the trial in December last year.
“Absolutely not,” Lehrmann replied.
In the witness box over five days Lehrmann admitted telling three different stories – including two that were lies – about the reason for his after-hours visit to Parliament House with Higgins after a night out in Canberra.
Lee was scathing of Lehrmann’s explanations that he returned to the minister’s office to retrieve his keys, detailing the complicated process involved in getting through Parliament House security: “I think it is safe to conclude that the process of getting into a flat he shared with his girlfriend would have been a significantly less elaborate exercise,” he said scornfully.
He also dismissed as “fanciful” the idea that Lehrmann, having been out drinking and “accompanied by a woman he found attractive” went to the office at nearly 2am “to note up briefs for a Question Time that was not to occur for one and a half weeks” especially when Lehrmann “hitherto had demonstrated no outward signs of being a workaholic”.
He told Lee he must have been “mistaken” when he told the Australian federal police he did not have any alcohol in his office. Under cross-examination he conceded he had multiple bottles of whisky and gin at the time.
When the defence presented its case, the court heard Higgins weighed 60kg at the time of the alleged rape and an expert testified that a woman of her size would have likely had a blood alcohol concentration of 0.23% at the time of the alleged rape.
Higgins was in the witness box for four days during which she became emotional as she recounted in graphic detail her alleged rape, as well as the deterioration of her relationship with her employer after she reported the alleged incident.
“As I was being raped, it wasn’t my primary concern where my dress was … I was deeply more concerned about the penis in my vagina that I didn’t want than I was about my dress,” Higgins said through tears.
Lehrmann maintains his innocence. In the criminal trial in 2022 he pleaded not guilty to one charge of sexual intercourse without consent, denying that any sexual activity occurred.
In December of that year prosecutors dropped charges against him for the alleged rape of Higgins, saying a retrial would pose an “unacceptable risk” to her health.
Lee noted that if Lehrmann had won he would have been entitled to damages of $20,000.
The parties have until 22 April to file submissions for costs.
