Bruce Lehrmann has lost his libel case against Channel Ten and journalist Lisa Wilkinson after the media defendants proved on the balance of probabilities that Lehrmann raped his colleague Brittany Higgins in Parliament House in 2019.
After a trial that lasted a few month, federal judge Michael Lee – an experienced libel judge – concluded that each Lehrmann and Higgins had credibility problems, but ultimately he was convinced that Lehrmann raped Higgins, as she had claimed and he had denied.
Criminal proceedings by proxy
Normally, charges similar to rape can be resolved through the criminal courts, but this was the case within the criminal trial against Lehrmann canceled in October 2022 following jury misconduct. The charges against him were soon brought droppednominally out of concern for Higgins' mental health.
However, Higgins foresaw a civil case and offered to testify they need to arise. That, like Lehrmann, free from the burden of a proven crime, they sued several media outlets for libel over their reporting of the allegations (the alphabet And News Corp each agreed out of court).
Like Ben Roberts-Smith's recent libel motion against the previous Fairfax Papers, this became one other case of civil litigation testing serious allegations without reaching a criminal conclusion.
The type of the procedure has significant differences from the terminated criminal proceedings. In criminal cases, prosecutors are ethically obligated to make use of moderation in pursuing a conviction, which requires evidence beyond an affordable doubt, while defendants have the correct to stay silent. By contrast, this trial featured detailed representations from either side, essentially looking for to steer that their claims were probably correct.
As with the Roberts-Smith case, the live broadcast of the trial generated a really high level of public engagement. Today's stream reached an audience of greater than 45,000 people. It gave us the chance to evaluate who and what we consider in and to query the parties' claims and media reporting. The federal court has no jury, but we, the general public, acted as a de facto group of like-minded people.
We saw revealing accusations and denials Cross-examination of the protagonists, testimony from colleagues, CCTV footage from nightclubs to Parliament House, including lip reading, expert testimony on alcohol consumption and consent, and lawyers constructing timelines that support or poke holes in competing versions of events.
The complexity of high-stakes litigation was highlighted, with Judge Lee issuing quite a few interim rulings on procedural and evidentiary issues. Whenever it got here to transparency, she won.
The preference for full disclosure led to this The case is being reopened to call former Channel 7 producer Taylor Auerbach as a witness on the last minute, producing a result that the judge described as “dirty” but which had little bearing on the ultimate consequence.
A dispute over the reality
Lehrmann had the burden of proving that the defendants had published content that was damaging to their fame. This was Wilkinson's interview with Higgins on Channel Ten's The Project during which the allegations were made.
An announcement is barely defamatory whether it is unfaithful, but under Australian law the burden of proving truth lies with the publisher in the event that they select to make use of this defence. And more serious allegations typically require more compelling evidence because they’re considered inherently less likely by the law.
Bianca De Marchi/AAP
This may be stressful for a defamation defendant, but it surely also poses a risk for the plaintiff should the defendant embark on an odyssey of truth-telling that further damages the plaintiff's image. That happened Ben Roberts Smith and it happened to Lehrmann here.
On the opposite hand, if the media hasn't done their homework, similar to: Heston Russell's case against the ABC (also presided over by Judge Lee), the applicant may be rehabilitated.
This case was an expression of Lehrmann's stated desire, “Light some fires“. Few players on this prolonged saga have escaped without scars, and here he badly burned his fingers.
As Judge Lee put it, Lehrmann said, “Escape the lion’s den.” [of criminal prosecution]“He made the mistake of coming back to get his hat.”
How was the case decided?
Lehrmann denied having sex with Higgins, while Higgins claimed there was non-consensual sex. The defamatory nature of the publication focused on the allegation of rape, which is what the media defendants desired to prove.
This left open the strange possibility that consensual sex may need occurred: in that case, Lehrmann would have made his case on a false premise (there would have been no sex), however the media would have didn’t defend it (by showing no defect). had). approval), which led to a Lehrmann victory.
This unpleasant scenario didn’t occur. The court found that sex had indeed taken place, Higgins didn’t give consent in her heavily intoxicated and barely conscious state, and Lehrmann was so anxious for his satisfaction that he ignored the consent requirement.
Judge Lee found Lehrmann to be a persistent, self-serving liar, while Higgins' credibility problems were of a lesser magnitude and were partly symptomatic of an individual piecing together a trauma that she or he partially remembered. The judge relied heavily on the testimony of certain neutral parties who could testify to incidents or words near the events.
Bianca De Marchi/AAP
Libel laws favor the injured parties
Australian defamation law has historically favored plaintiffs, and despite the recent Attempts at realignmentStill, it stays a preferred legal weapon for individuals who have the means to make use of it.
This includes our political class, which sues its critics for defamation with a frequency that’s unhealthy for a democracy. In the United States, public figures don't have it really easy: to win, they must prove that their critics were lying.
In Australia, the media sometimes succeeds in proving the reality, but difficult libel cases carries high financial costs and places emotional strain on the journalists involved.
Nor can a real claim all the time be proven to the satisfaction of a court, given the foundations of evidence and the incontrovertible fact that sources could also be reluctant to testify or protected by a reporter's confidentiality guarantee.
But this case shows that publishers who’re fascinated by litigation can emerge victorious.
image credit : theconversation.com