Bruce Lehrmann raped Brittany Higgins, judge finds on balance of probabilities

Justice Michael Lee this morning handed down his judgment in what many hope will be the final chapter of one of the longest-running and most divisive defamation trials in Australia’s recent memory, dismissing Bruce Lehrmann’s multimillion-dollar defamation case against Network Ten and Lisa Wilkinson after finding the media parties had established on the balance of probabilities that Lehrmann raped Brittany Higgins in Parliament House in March 2019.

Crikey was in court alongside Bruce Lehrmann and the Network Ten team — as well as approximately 23,000 viewers on a livestream and what seemed like half of Sydney — as they listened to the trial’s outcome.

The verdict, which ran for over three hours and in its written form is 324 pages long (you can read the full judgment here), ended with Justice Lee ruling that Lehrmann was “indifferent” to the matter of consent when it came to Brittany Higgins.

“He did not care one way or the other whether Ms Higgins understood or agreed to what was going on.”

“Ms Higgins was raped. Mr Lehrmann raped Ms Higgins.”

There was a mild commotion in the public gallery as journalists and the public reacted to the finding, which would see Ten vindicated. Lehrmann did not react.

Lehrmann’s defamation case came after his former colleague, ex-Liberal staffer Brittany Higgins, gave an interview to Lisa Wilkinson on Ten’s The Project in 2021, alleging she had been raped in Parliament House in 2019. Lehrmann, who has always denied raping Higgins, was not named, but claimed he was identifiable from the story.

Lehrmann had originally also filed defamation lawsuits against the ABC and News Corp. He settled ahead of the trial with News Corp, which published an interview on news.com.au between Higgins and political editor Samantha Maiden the day of the Project broadcast, as well as with the ABC, which aired a later address to the National Press Club by Higgins in which she repeated the claims.

Lawyers, journalists and network executives from all over Sydney took the morning off to observe from the gallery, itself larger than normal courtesy of a last-minute shift of venue to the largest available venue, the Federal Court’s Courtroom 1.

Present in the courtroom was Wilkinson, Lehrmann and a smattering of media personalities. Joe Hildebrand was in attendance beside Sky’s Caroline Marcus and The Daily Telegraph’s Matthew Benns. The Sydney Morning Herald’s Jacqueline Maley, Guardian Australia’s Kate Lyons and Daily Mail Australia’s Charlotte Karp were also present.

Lehrmann entered the court and sat down in near silence next to a lawyer, both so tense they barely interacted, the lawyer scrolling through their phone instead. Wilkinson and her barrister, Sue Chrysanthou SC, were in contrast bright and chirpy, with Chrysanthou happily socialising with several legal colleagues ahead of proceedings.

Justice Michael Lee referred in his opening remarks to the “omnishambles” of the case, “given its unexpected detours and collateral damage”, noting that it had become a “Rorschach-type” test for observers who had preconceived notions of sexual assault complaints and the typical behaviour of alleged rape victims.

Justice Lee went in-depth as to the credibility of both Lehrmann and Higgins, as well as former Seven staffer Taylor Auerbach.

“This is a case where credit findings are central, and sometimes an explanation other than mendacity is not readily available,” Justice Lee said.

“For my manifold sins I have listened to all of the audio and video records in evidence.”

To that end, Justice Lee found that while Lehrmann was not a “compulsive liar”, as put by Higgins’ counsel, so much of what he had said in evidence was deliberately false such that he would not accept any of Lehrmann’s evidence provided to the court.

Remarking on his first issue of credit with Lehrmann — his denial of having been historically attracted to Higgins and the factors he claimed would have mitigated it — Lee said Lehrmann’s “attempt to describe [the] attraction to that comparable to ‘anyone in this courtroom irrespective of gender’ was as disconcerting as it was unconvincing”.

While he stressed the point that he was not a “roving law enforcement official”, Lee said he was also satisfied that Lehrmann had made false statements regarding providing Seven’s Spotlight program with documents from his initial criminal trial in the ACT.

Lehrmann in court refused to look up from the bench, where he was seated alongside his lawyer. He flushed red as Lee spoke of his dishonesty in respect to the case.

In reference to Auerbach, Lee found his “resentment … palpable” towards his former employers at Seven, highlighted by a “vaguely disturbing destruction of what appeared to be a perfectly serviceable set of golf clubs”.

Lee made several findings in reference to Higgins’ credibility, noting that while a number of explanations can exist for inconsistent memory in the context of sexual trauma, these explanations did not account for a significant portion of Higgins’ evidence.

While Higgins was not a party to the case, Lee found both Higgins and Lehrmann were “unreliable historians”, but while Lehrmann’s untruths were “all over the shop”, Higgins’ were “quite organised”.

Justice Lee then said that Ten “fell short of the standard for substantial truth”.

Ten “resolved to publish the exclusive story from the start and were committed to doing the minimum requisite to avoid litigation”.

Relevant in Lee’s view were several “implausibilities”. Higgins was “vague” as to “concrete detail”, while the “motivations of [Higgins’ partner David] Sharaz in selecting the journalist [for what would become The Project interview], rather than it being a source of introspection” for Ten was also of concern.

“Contacts provided by Mr Sharaz were obviously inadequate. If Network Ten wanted to contact Mr Lehrmann, there were a number of options available. He was not living the life of a hermit.”

Regarding Fiona Brown, chief of staff to Higgins and Lehrmann’s former boss Liberal Senator Linda Reynolds, Lee said she struck him as “the archetype of a successful professional administrator”.

“She was not one to speculate or jump to conclusions,” he said, noting he “unhesitatingly” preferred Brown’s evidence to that of Lehrmann or Higgins.

On the conduct of Network Ten and Lisa Wilkinson, Lee was more critical, saying that as an experienced member of the media who had been awarded the Order of Australia for services to broadcast journalism, Wilkinson “refused to make the obvious concession” that her infamous Logies speech was inappropriate in the context of Lehrmann’s then upcoming criminal trial.

Wilkinson “ought to have recognised the speech was fraught with danger” and had the potential to interfere with the administration of justice, Lee said.

Lee then recounted the story of the night in Canberra when Higgins would be found to have been raped by Lehrmann.

Lee rejected Lehrmann’s “elaborate fantasy” of events. 

“Put bluntly, this was a 23-year-old male cheating on his girlfriend, having now hooked up with a woman he found sexually attractive,” Lee said, saying that on entering Parliament House, there was “one dominant thought running through the mind of Mr Lehrmann”.

After considering the various witnesses and evidence in respect of Lehrmann gaining entry to Parliament House in the small hours of the night in question, Lee said he was not necessarily satisfied that Higgins had explicitly told Lehrmann “no”, but believes, as she had told former partner Ben Dillaway in texts at the time, that she was passive in the encounter in the ministerial suite. Lee noted the “subtle tension” between the evidence given under cross-examination by Higgins in this respect, where she claimed she had repeatedly said “no”, and the evidence of the texts themselves.

Noting the legal and historical definitions of rape, Lee noted that, as a civil case, the standard needing to be proved is different to that of a criminal trial, notwithstanding the Briginshaw principle about particularly grave allegations being dealt with in civil matters.

Satisfied that Higgins was “seriously inebriated” and that Lehrmann was manifestly aware of that on at least one occasion when he helped her after a stumble, Lee said he was satisfied Higgins did not consent to sex.

Lee said Lehrmann was “indifferent” to the matter of consent when it came to Higgins.

“He did not care one way or the other whether Ms Higgins understood or agreed to what was going on.”

Lee found that on the balance of probabilities Higgins was raped.

“Ms Higgins was raped. Mr Lehrmann raped Ms Higgins.”

While Lehrmann did not react — indeed, he stared at the bench for the entirety of the marathon judgment, wails and cries were heard outside the courtroom.

On the matter of damages, Lee said that even if he had found in Lehrmann’s favour, the quantum of damages would have been “very modest”, noting his criticisms of Lisa Wilkinson’s conduct throughout the matter.

In concluding, Lee uttered what will almost certainly become famous words following one of the most tumultuous periods in the history of Australian defamation law.

“Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat,” he said, in reference to Lehrmann’s aborted criminal trial in the ACT.

“Mr Lehrmann is not entitled to the vindication of his reputation.”

As soon as Lehrmann left the building in the press pack, someone yelled out “rapist bastard”.

Shortly after, Wilkinson made a short statement outside court.

“I sincerely hope that this judgment gives strength to women around the country,” she said.

Meanwhile, Network Ten released a statement calling the judgment a “triumph for truth”. Lawyer for the network, Justin Quill, fronted the media to call the case an “unmitigated disaster for Bruce Lehrmann”.

Asked whether the case would see a review of Ten’s journalistic practices, Quill said there had been a comprehensive review in the Federal Court that vindicated Ten’s conduct over the course of the case.

Taylor Auerbach, the former Seven staffer who gave evidence in a bombshell reopening of the case last week, took to social media and tweeted cryptically: “On this day, exactly 112 years ago to the hour, RMS Titanic sunk, felled by an iceberg on her maiden journey in the dark of night.”

Justice Lee set down April 22 as the due date for submissions as to costs.