A case the judge described as an “omnishambles” has concluded in Sydney on April 15.
Justice Michael Lee delivered a verbal summary of his 324-page judgement because, calling the case a “Rorschach test” for many, with witnesses clinging to what they perceived as the truth of what happened.
Former political staffer Bruce Lehrmann sued Network Ten and journalist Lisa Wilkinson for defamation, claiming their story about the alleged rape of Brittany Higgins in a Parliament House office had identified him as the offender, even though it did not include his name.
The allegation came to light when Ms. Higgins was interviewed on Ten’s program The Project in early 2021.
She alleged her former colleague had raped her in March 2019 in the nation’s Parliament. Six months later, in August 2021, Mr. Lehrmann was publicly named as the man accused of raping Ms. Higgins.
An earlier criminal trial against Mr. Lehrmann was abandoned by prosecutors due to serious concerns about Ms. Higgins’ mental health. Mr. Lehrmann has always denied the rape allegation.
In February 2023, he launched Federal Court defamation proceedings against Network Ten and Ms. Wilkinson, a former Project co-host who interviewed Ms. Higgins on the program.
Only 2 People Know the Truth
Justice Lee said the case is not as straightforward as some observers might at first think.“Only one man and one woman know the truth, with certitude, of what happened” and while there are differing accounts of what happened, there can be various reasons for these differences and “distinguishing between false memory and deceit is difficult.”
He prefaced his judgement with some observations on the credibility of key witnesses.
The judge found that Mr. Lehrmann had “in important respects ... told deliberate lies.
The judge said CCTV footage showed Mr. Lehrmann was not telling the truth about some of the things that happened at the Dock Bar, that he gave false evidence about being intimate with Ms. Higgins at the 88mph nightclub, and that was less than “candid” about what benefits he received from Channel Seven, who paid him for his story.
He said that CCTV established that Mr. Lehrmann made false statements to both the Australian Federal Police (AFP) and the Federal Court about how he paid for drinks that night.
Serious Distortion
The judge described Mr. Lehrmann’s claim—that he had little to do with Ms. Higgins at The Dock—as a “very serious distortion.”
The judge found that by the time they left The Dock, Ms. Higgins had consumed 11 drinks, including six drinks Mr. Lehrmann observed her drinking.
He also said he was certain that—despite the evidence given by Mr. Lehrmann—“Brittany hooked up with Bruce” at the nightclub 88mph, and he rejected Mr. Lehrmann’s account about why he went back to Senator Reynold’s office.
The judge said Ms. Higgins was inebriated, and Mr. Lehrmann must have known that her judgement was impaired. He had already been unfaithful to his girlfriend (by kissing Ms. Higgins at the bar) and was using the office as a place to go to continue the intimacy.He called Mr. Lehrmann’s account of what happened at the office “an elaborate” fantasy.
Mr. Lehrmann had claimed that he had to go back to the office to make notes on a question time brief. Rather, he had returned to the office with “a woman he found attractive who had just been pashing in a nightclub,” Justice Lee said.
‘Deliberate Lies’
He also described as “less than candid” Mr. Lehrmann’s evidence about the benefits he received from participating in Channel Seven’s Spotlight programme, and that the former Liberal staffer had caused his lawyers to give assurances to the court that he did not leak documents to Spotlight that appeared to be false.“I don’t think that Mr. Lehrmann is a compulsive liar and some of the untruths [he] told during his evidence may sometimes have been due to carelessness and confusion.
“But I am satisfied that important respects [he] told deliberate lies.”
Higgins Evidence Also Inconsistent
While Ms. Higgins’ behaviour in 2019 was “not inconsistent with the conduct of a genuine victim of sexual assault”, the judge said he was not satisfied with the truth of her accounts in 2021.Her later untruths were “quite organised,” he noted.
In 2021—when she and her partner David Sharaz spoke to Lisa Wilkinson—her statements were “troubling” and relied on her feelings rather than facts.
He also raised concerns about a photograph showing a bruise on Ms. Higgins’ leg, which she allegedly sustained on the night of the rape when her leg was pressed against the couch by Mr. Lehrmann.
Justice Lee said her evidence on the bruise was “vexing” and “odd,” including that she did not show the photo to the AFP at the first meeting.
There is no metadata to show when the photo was taken, and the photo showed something different to her evidence, he said.
He was also concerned about the deletion of photos and data on Ms. Higgins’ phone. He has found that Ms. Higgins “selectively curated” the contents of her phone and “sometimes told untruths when it suited her.”
He was not satisfied that the bruise photograph was genuine.
He also cast doubt on the evidence Ms. Higgins gave about her Bumble date on the night of the alleged rape.
He said she claimed the man was bullied, but the CCTV footage showed that did not happen, and she had “made false representations.”
Judge Finds Rape Did Occur
Despite that, he found Ms. Higgins’ account more believable than Mr. Lehrmann’s, but observed there was a “subtle tension” between her varying accounts of the alleged rape.
“I’m convinced ... that sexual intercourse did take place and it took place with Mr. Lehrmann on top of her on the couch in the minister’s office,” he said, and that Ms. Higgins did not consent to sex with Mr. Lehrmann, who knew she was drunk, [and] saw her falling over and drinking.“My conclusion on rape: Mr. Lehrmann raped Ms. Higgins,” he said. However, the judge emphasised that this was to a civil standard of proof and not a criminal one.
