Federal Court Justice Michael Lee described the case as an "omnishambles" due to the "unexpected detours and the collateral damage it has occasioned."
I am referring, of course, to the defamation proceedings brought by Bruce Lehrmann against Lisa Wilkinson and Network Ten.
In His Honour's 324-page decision, which was handed down last week, he found that, on the balance of probabilities, Brittany Higgins was raped by Bruce Lehrmann in Parliament House in 2019.
This means that based on the evidence presented, Justice Lee concluded it was more likely than not that the alleged rape occurred, despite Lehrmann's denial.
The balance of probabilities is the standard of proof used in civil cases, such as defamation suits. It differs significantly from the criminal standard of proof, which is beyond reasonable doubt. In a civil case, the balance of probabilities requires the court to determine whether an allegation is more likely to be true based on the evidence presented. In contrast, beyond a reasonable doubt, the criminal standard of proof sets a much higher threshold. It requires the prosecution to prove their case to such a degree that there can be no reasonable doubt in the mind of a reasonable person that the accused is guilty. This higher standard reflects the gravity of criminal convictions and the potential consequences for the accused.
In the Lehrmann defamation case, the defendants, Lisa Wilkinson and Network Ten, successfully relied on the defence of substantial truth. This defence requires the defendants to prove their imputations about the plaintiff, Bruce Lehrmann, were substantially true.
To succeed in this defence, Wilkinson and Network Ten had to demonstrate that the key elements of their statements about Lehrmann were factually accurate. The primary imputation in this case was that Lehrmann had raped Brittany Higgins in Parliament House in 2019.
During the trial, Justice Michael Lee assessed the evidence presented by both parties. He found that, on the balance of probabilities, Higgins' account of the rape was credible and had the "ring of truth."
In contrast, Justice Lee found Lehrmann a poor witness, stating that his attachment to the truth was “tenuous” and informed by his “perceived forensic interests”.
By determining that Higgins' account of the rape was more likely to be true than not, Justice Lee essentially accepted that the defendants' imputation about Lehrmann was substantially true. As a result, Wilkinson and Network Ten successfully established their defence of substantial truth, defeating Lehrmann's defamation claim.
The nature of this high-profile case has provided an opportunity for a broader conversation about the assessments made in these situations, the need for a deeper understanding of trauma and the application of consent in sexual assault cases.
Justice Lee's ruling challenges long-held misconceptions about how victims of sexual assault are expected to behave and how trauma can impact memory and the reliability of evidence.
Sex Discrimination Commissioner Dr Anna Cody welcomed the ruling, stating that it "dispels harmful myths about consent and victim behaviour and recognises the impact of trauma on memory and evidence". The decision certainly contributes to a more nuanced understanding of sexual assault and a fairer justice system.
Ultimately however, the case will be best remembered by His Honour's poignant remark that "having escaped the lion's den, Mr Lehrmann made the mistake of coming back for his hat." In other words, despite facing no criminal findings on Higgins's rape allegation, Lehrmann chose to pursue a defamation case, effectively re-entering the public arena and risking the kind of civil ruling that has now been delivered. A choice that ultimately proved to be a big mistake.