Bruce Lehrmann defamation case: Federal Court Justice Michael Lee’s blistering remarks

Federal Court Justice Michael Lee on Monday delivered the judgment in one of the most high-profile defamation cases in the country’s history.

Justice Lee found in favour of Network Ten and star presenter Lisa Wilkinson after Bruce Lehrmann sued them over an interview with Brittany Higgins on The Project in 2021.

The judge found Mr Lehrmann did rape Ms Higgins inside Parliament House in 2019.

This is what he said:

THE KISS AT CANBERRA NIGHTCLUB 88MPH

“One does not ‘pash’ passively.

“Mr Lehrmann was acting upon his attraction to Ms Higgins, and the less than sober Ms Higgins was sufficiently uninhibited to be a not unwilling participant in the level of intimacy...”

BRITTANY HIGGINS’ STATE OF MIND

“I am comfortably satisfied that Ms Higgins was a very drunk 24-year-old woman, and her cognitive abilities were significantly impacted.

“I am also satisfied he (Mr Lehrmann) was aware of her condition.”

INSIDE THE PARLIAMENTARY SUITE

“I am convinced, however, that sexual intercourse did take place and that it took place with Mr Lehrmann on top of Ms Higgins on the couch in the Minister’s office.

“I have not reached a level of satisfaction that during the sexual act Ms Higgins said, ‘no on a loop’ and I think it is more likely than not that she did not, or was not, able to articulate anything.

“On balance, I find it is more likely than not that she was passive (as she later said, ‘like a log’) during the entirety of the sexual act.

“I have reached a state of actual persuasion on the balance of probabilities that Ms Higgins was not fully aware of her surroundings when sexual intercourse commenced, did not consent to intercourse when she became aware Mr Lehrmann was ‘on top of her’.”

LEHRMANN’S INTENTIONS

“I consider it more likely than not that 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 hell-bent on having sex with a woman he found sexually attractive, had been mutually passionately kissing and touching, had encouraged to drink, and knew had reduced inhibitions because she was very drunk.

“In his pursuit of gratification, he did not care one way or another whether Ms Higgins understood or agreed to what was going on.

“Put bluntly, he was a 23-year-old male cheating on his girlfriend, having just ‘hooked up’ with a woman he found sexually attractive. Human experience suggests what he then wanted to happen is not exactly shrouded in mystery.

“I am satisfied that it is more likely than not that Mr Lehrmann’s state of mind was such that he was so intent upon gratification to be indifferent to Ms Higgins’ consent, and hence went ahead with sexual intercourse without caring whether she consented.

“Mr Lehrmann raped Ms Higgins. I hasten to stress; this is a finding on the balance of probabilities.”

ON CONSENT

“Ordinary human experience suggests that sexual assault victims vary in their behaviour, including during a sexual assault — the notion a woman is expected to attempt either ‘fight or flight’ to then be accepted as having been a victim of sexual assault is not only not reasonably open but wrongheaded.

“It is redolent of historical conceptions of rape, which relied upon notions of force and resistance, rather than the contemporary focus on voluntary consent.”

LEHRMANN’S CONDUCT

“Mr Lehrmann behaved disgracefully.

“He defended the criminal charge on a false basis, lied to police, and then allowed that lie to go uncorrected before the jury.

“He instructed his unwitting and hence blameless senior counsel to cross-examine a complainant of sexual assault, in two legal proceedings, on a knowingly false premise.”

THE COVER-UP

“From the first moment, the cover-up component was promoted and recognised as the most important part of the narrative.”

ON NETWORK 10’S EFFORTS TO SEEK A RESPONSE FROM MR LEHRMANN

“He was not living the life of a hermit. He was working for a public relations firm in Sydney.”

DECISION TO PUBLISH ‘NOT REASONABLE’

“Taking all relevant considerations into account, including the desirability of not allowing any belief to undermine fairness or independence, the conduct of Network Ten and Ms Wilkinson in publishing the matter in its character of conveying the defamatory imputations of rape fell short of the standard of reasonableness.”

THE BRUISE PHOTOGRAPH

“The lack of curiosity about investigating the bruise photograph is especially unreasonable given its subjective and objective importance and given it was said to viewers to be physical evidence corroborating Ms Higgins’ rape allegation.”

LEHRMANN’S DECISION TO SUE

“Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.

“As a result of the inconclusive criminal trial, Mr Lehrmann remains a man who has not been convicted of any offence, but he has now been found, by the civil standard of proof, to have engaged in a great wrong.

“It follows Ms Higgins has been proven to be a victim of sexual assault.”

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