Justice Michael Lee has found on the balance of probabilities that Bruce Lehrmann raped Brittany Higgins on 22 March 2019.
The Federal Court of Australia heard Justice Lee’s judgement on Monday at the conclusion of civil proceedings launched by former Liberal staffer Bruce Lehrmann against Network Ten. Justice Lee upheld Network Ten and Lisa Wilkinson’s truth defence to Lehrmann’s defamation claim.
After more than two hours of delivering his judgement, Justice Lee said he found on the balance of probabilities, the standard of proof in civil proceedings in Australia, that sexual intercourse took place in Senator Linda Reynold’s ministerial suite on 22 March 2019. He concluded that Higgins was “passive” and therefore could not actively consent to sex because of her high level of intoxication.
“Mr Lehrmann raped Ms Higgins,” Justice Lee said. “I hasten to stress this is a finding on the balance of probabilities.”
Trailing through a summary of his 324-page long judgement, which will be posted on the Federal Court of Australia’s website later today, Justice Lee discussed the credibility of Lehrmann and Higgins as witnesses, who he described both as “unreliable historians”.
“Only one man and one woman know the truth with certitude of what happened,” Justice Lee told the court.
In his deliberation, Justice Lee said he “trudged unyieldingly” through hours of audio, video and CCTV footage that was submitted as evidence, as well as 33 witness accounts, during the Lehrmann v Network Ten trial.
Justice Lee told the Federal Court that while he did not believe Lehrmann was a compulsive liar, he found that Lehrmann told “deliberate lies” in his evidence and beyond the courtroom.
Justice Lee found Lehrmann’s recollection of what happened inside the minsiterial suite was “elaborate fancy”.
The Federal Court judge also unpacked Higgins’ evidence, noting hers also included various “untruths”. However, he noted that Higgins’ untruths and inability to recollect certain details of the night in question were consistent to that of a trauma-affected sexual assault victim. Justice Lee said “nuance is required” when considering her evidence.
On his summary of the night in question, 22 March 2019, Justice Lee found Lehrmann “hooked up” with Higgins, someone he found “attractive” at the Canberra club, 88mph, based on evidence from witnesses. According to Lee’s findings, Lehrmann was “hellbent” on having sex with Higgins and was “indifferent” to whether she consented to sex or not.
“What he then wanted to happen is not exactly shrouded in mystery,” Justice Lee said.
On The Project interview, the reason this case was brought to the Federal Court of Australia, Justice Lee said journalist Lisa Wilkinson and producer Angus Llewellyn started their production of the 45-minute episode with “the premise that her allegations were true”. The judge said they did the “minimum required” in terms of contacting Lehrmann to “avoid litigation”.
However, Justice Lee’s ultimate decision was, on the balance of probabilities, what Higgins alleged in her interview on The Project was likely to be true.
“Having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat,” Justice Lee said.
Speaking to the press on her way out of the court room, journalist Lisa Wilkinson thanked her family, her legal team and the public for “unwavering support”.
“I sincerely hope that this judgement gives strength to women around the country,” Wilkinson said.
What’s the story?
The Lehrmann v Network Ten defamation trial began in mid November last year. Lehrmann launched defamation proceedings against the TV news network over an interview aired on The Project involving Brittany Higgins in 2021.
In her interview with journalist Lisa Wilkinson, Higgins alleged she was raped inside a ministerial suite in Parliament House in March 2019. Neither Network Ten nor Higgins named her alleged perpetrator at the time, however Lehrmann argues that certain details in the interview made it clear that Higgins was accusing Lehrmann of rape.
In 2022, Lehrmann faced a criminal trial, with police charging him for allegedly raping Higgins. The trial was ultimately abandoned because of juror misconduct, and there was no retrial.
Lehrmann has always denied the rape allegations.
The trial
The trial was not a straight-forward one: it involved an extraordinary four-day cross examination of Higgins, controversy over a secret recording of a phone conversation between Higgins and Senator Michaelia Cash and several witnesses who were with Lehrmann and Higgins on the night he allegedly raped her in 2019.
Final evidence was given before Christmas last year, but a spectacular last minute application from Network Ten over the Easter long weekend this year reopened the case – on the day the original judgement was meant to be handed down.
Network Ten had a sworn affidavit from a former Seven producer alleging the Seven Network reimbursed tens of thousands of dollars to Lehrmann during the filming of the Spotlight interview in 2022-2023. This evidence was accepted by the court, and the producer, Taylor Auerbach, gave evidence in the witness box.
Auerbach provided the court with several receipts in his affidavit, claiming tens of thousands of dollars were allegedly charged to the Seven network from November 2022 to January 2023.
One of the largest invoices came from 26 November 2022. According to Auerbach, eight separate charges to Sensai Thai Massage amounted to $10,315.
Expensive dinners – ranging from $300 to over $500 – were also allegedly charged to Seven, including a 1.9kg tomahawk steak that cost $361. Lehrmann allegedly invoiced Seven for a round of golf, plus golfing equipment, at Barnbougle in Tasmania, costing $401. Lehrmann also allegedly footed the bill for a three-week stint at an accommodation in Randwick to Seven, amounting to $11,738.