Lehrmann v Network Ten Pty Limited (Trial Judgment)
[2024] FCA 369
•15 April 2024
FEDERAL COURT OF AUSTRALIA
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
File number: NSD 103 of 2023 Judgment of: LEE J Date of judgment: 15 April 2024 Catchwords: DEFAMATION – the Lehrmann imbroglio – underlying controversy a cause célèbre – where applicant sues in defamation over a special edition of The Project programme broadcast by Network Ten – where publications televised and published online – where imputations the applicant raped Ms Higgins in Parliament House in 2019 – where substance of each matter relevantly identical – imputations conveyed
DEFAMATION – identification – where respondents contend the programme did not identify the applicant – where applicant is unnamed in programme – observations as to relevant principles – whether persons with special knowledge of the applicant reasonably understood the publication to concern him – extent of identification – where identification witnesses called – gossip and rumour – identification established
DEFAMATION – defences – substantial truth – s 25 of the Defamation Act 2005 (NSW) – where evidence of two key witnesses unsatisfactory – consideration of relevant principles – requirement to prove rape as that concept is understood by the ordinary viewer of publication – elements of rape considered – non-consent and knowledge elements – recklessness – where applicant indifferent to the rights of Ms Higgins as to ignore the requirement of consent – where applicant raped Ms Higgins – defence established
DEFAMATION – defences – statutory qualified privilege – s 30 of the Defamation Act – proper construction – consideration of relevant principles – separate assessment of conduct of the respondents – distinguishing features of Ms Wilkinson’s conduct – conduct of respondents not reasonable in publication of defamatory matter
DEFAMATION – observations as to other defences – common law justification – Lange defence – common law qualified privilege
EVIDENCE – observations as to fact-finding, onus and standard of proof – difference between civil and criminal standards – credit findings concerning complainant of sexual assault – contemporaneous representations – whether Court bound to accept account of either of the principal witnesses – discussion of need for nuance in credit findings and the flaw in falsus in uno, falsus in omnibus approach – implied admissions and “consciousness of guilt” – Edwards lies
DAMAGES – consideration of counterfactual where substantial truth defence not established – principled approach to assessment including consideration of whether it is licit to award no damages – approach to assessment where lack of apparent connexion between the respondents’ wrong and real cause of distress and hurt – where actual damage to reputation only slight because applicant only entitled to be compensated for the reputation he deserves – improper conduct established – where augmentation of damages occasioned by aggravating conduct comes from a low base – modest award of compensatory damages notwithstanding objective gravity of imputations
Legislation: Constitution s 109
Australian Human Rights Commission Act 1986 (Cth)
Disability Discrimination Act 1992 (Cth)
Evidence Act 1995 (Cth) ss 11, 46, 66(2), 91(2), 108C(1), 136, 140, 140(1), 140(2), 140(2)(a), 140(2)(b), 140(2)(c), 141(1), 144, 191, 192A
Federal Court of Australia Act 1976 (Cth) s 40
Judiciary Act 1903 (Cth) s 79
Parliamentary Precincts Act 1988 (Cth)
Sex Discrimination Act 1984 (Cth)
Crimes Act 1900 (ACT) s 54(1)
Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)
Defamation Act 2005 (NSW) Pt 4, Div 3, ss 3(c), 4, 8, 22, 22(1), 25, 28, 29, 29A, 30, 30(1), 30(1)(a), 30(1)(b), 30(1)(c), 30(3), 30(3)(a), 30(3)(j), 31, 34, 35(1), 35(2B), 35(3), 37, 38, 38(2)
Defamation Amendment Act 2020 (NSW)
Interpretation Act 1987 (NSW) s 6
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 3.1
Defamation Act 1974 (NSW) (repealed) ss 22, 22(1)(c)
Cases cited: Allen v Lloyd-Jones (No 6) [2014] NSWDC 40
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322
Attorney General v John Fairfax & Sons Ltd [1980] 1 NSWLR 362
Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Axon v Axon (1937) 59 CLR 395
Aziz (apseudonym) v R [2022] NSWCCA 76; (2022) 297 A Crim R 345
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Berezovsky v Forbes [2001] EWCA Civ 1251
Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474
Blatch v Archer (1774) 1 Cowp 63
Borealis AB v Geogas Trading SA [2010] EWHC 2789 (Comm)
Briginshaw v Briginshaw (1938) 60 CLR 336
Broome v Cassell & Co Ltd [1972] AC 1027
Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
CCL Secure Pty Ltd v Berry [2019] FCAFC 81
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232
Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202
Charan v Nationwide News Pty Ltd [2018] VSC 3
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195
Dank v Nationwide News Pty Ltd [2016] NSWSC 295
David Syme & Co v Canavan (1918) 25 CLR 234
Dering v Uris [1964] 2 QB 669
Director of Public Prosecutions v Wran (1987) 7 NSWLR 616
Drumgold v Board of Inquiry (No. 3) [2024] ACTSC 58
Echo Publications Pty Limited v Tucker (No 3) [2007] NSWCA 320
Ellison v Vukicevic (1986) 7 NSWLR 104
Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; (2015) 91 NSWLR 485
FlyMeNow Ltd v Quick Air Jet Charter GmbH [2016] EWHC 3197 (QB)
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gardener v Nationwide News Pty Ltd [2007] NSWCA 10
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
Graham v Hall [2006] NSWCA 208; (2006) 67 NSWLR 135
Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98
Griffith v Australian Broadcasting Corporation [2010] NSWCA 257
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Herron v HarperCollins Publishers Australia Pty Ltd (No 2) [2022] FCAFC 119; (2022) 292 FCR 490
Hinch v Attorney General (Vic) (1987) 164 CLR 15
Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572
Hoyle v R [2018] ACTCA 42; (2018) 339 FLR 11
John Fairfax & Sons Pty Ltd and Reynolds v McRae (1955) 93 CLR 351
Jones v Dunkel (1959) 101 CLR 298
Joseph v Spiller [2012] EWHC 2958 (QB)
Kazal v Thunder Studios Inc (California) [2023] FCAFC 174
Kelly v Sherlock (1866) LR 1 QB 686
Kim v Wang [2023] FCAFC 115; (2023) 411 ALR 402
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2010) 243 CLR 361
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Kumova v Davison (No 2) [2023] FCA 1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lehrmann v Network Ten Pty Limited (Confidentiality) (No 2) [2023] FCA 1561
Lehrmann v Network Ten Pty Limited (Cross-claims) [2024] FCA 102
Lehrmann v Network Ten Pty Limited (Expert Evidence) [2023] FCA 1577
Lehrmann v Network Ten Pty Limited (Expert Evidence) (No 2) [2023] FCA 1647
Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385
Lehrmann v Network Ten Pty Limited (Tribunal of Fact) [2023] FCA 612
Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192
Liberato v R (1985) 159 CLR 507
Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; (2018) 396 ALR 193
Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 377 ALR 234
MA v R [2013] VSCA 20; (2013) 226 A Crim R 575
MacDougal v Mitchell [2015] NSWCA 389
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150; (2022) 109 NSWLR 468
McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485
McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227
Motel Holdings Ltd v Bulletin Newspaper Co Pty Ltd [1963] 63 SR (NSW) 208
Nguyen v The Queen [2020] HCA 23; (2020) 269 CLR 299
NOM v DPP [2012] VSCA 198; (2012) 38 VR 618
Oliver v Nine Network Australia Pty Ltd [2019] FCA 583
Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391
Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621
Pamplin v Express Newspapers [1988] WLR 116
Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd [2018] NSWCA 95; (2018) 97 NSWLR 739
Pollard v R [2011] VSCA 95; (2011) 31 VR 416
Precision Plastics Pty Limited v Demir (1975) 132 CLR 362
Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785
R v Edwards (1993) 178 CLR 193
R v Kirkham [2020] NSWDC 658
R v Lehrmann (No 3) [2022] ACTSC 145; (2022) 299 A Crim R 276
R v Renzella [1997] 2 VR 88
R v Stevens (No 2) [2017] ACTSC 296
Rejfek v McElroy (1965) 112 CLR 517
Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948
Roberts v Camden (1807) 103 ER 508
Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 41) [2023] FCA 555
Rochfort v John Fairfax & Sons Limited [1972] 1 NSWLR 16
Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564
Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223
Scott v Bodley (No 3) [2023] NSWDC 47
Sotiros Shipping Inc and Aeco Maritime SA v Sameiet Solholt, The Solholt [1983] 1 Lloyd’s Rep 605
Speidel v Plato Films Ltd [1961] AC 1090
State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Tawhidi v Awad [2022] VSC 669
Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244
Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95
Triggell v Pheeny (1951) 82 CLR 497
Webb v GetSwift Limited (No 5) [2019] FCA 1533
Woolmington v DPP [1935] AC 462
Wright v McCormack [2023] EWCA Civ 892
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
Allsop J L B, ‘The Judicialisation of Values’ (Speech, Law Council of Australia and Federal Court of Australia FCA Joint Competition Law Conference Dinner, 30 August 2018)
Australian Law Reform Commission, Report 114 Family Violence – A National Legal Response (2010)
Covers M L et al, ‘The Tonic Immobility Scale in adolescent and young adult rape victims: Support for three-factor model’ (2022) 14(5) Psychological Trauma: Theory, Research, Practice, and Policy 780
Coxell A W and King M B, ‘Adult male rape and sexual assault: Prevalence, re-victimisation and the tonic immobility response’ (2010) 25(4) Sexual and relationship Therapy 372
Fusé T et al, ‘Factor structure of the Tonic Immobility Scale in female sexual assault survivors: An exploratory and Confirmatory Factor Analysis’ (2007) 21(3) Journal of Anxiety Disorders 265
Gatley C, Parkes R, and Busuttil G, Gatley on Libel and Slander (Thomson Reuters, 13th ed, 2022)
Hagenaars M A, ‘Tonic immobility and PTSD in a large community sample’ (2016) 7(2) Journal of Experimental Psychopathology 246
Hodgson D H, ‘The Scales of Justice: Probability and Proof in Legal Fact-finding’ (1995) 69 Australian Law Journal 731
Horan J and Goodman-Delahunty J, ‘Expert Evidence to Counteract Jury Misconceptions about Consent in Sexual Assault Cases: Failures and Lessons Learned’ (2020) 43(2) UNSW Law Journal 707
Hynard E and Lerch A, ‘The Tort of Collateral Abuse of Process’ (2021) 44(2) UNSW Law Journal 714
Judicial College of Victoria, Victorian Criminal Charge Book, Pt 4.6
Law Commission of England and Wales, Aggravated, Exemplary and Restitutionary Damages, Law Com No 247 (1997)
Maimonides, The Commandments, Commandment No 290 (Chavel C B, trans. 1967)
Quilter J, McNamara L, and Porter M, ‘The Nature and Purpose of Complainant Intoxication Evidence in Rape Trials: A Study of Australian Appellate Court Decisions’ (2022) 43(2) Adelaide Law Review 606
Sir William Blackstone, Commentaries on the Laws of England (1765), vol IV, ch 27 (Oxford University Press, 2016)
Smith C J ‘History of Rape and Rape Laws’ (1974) 60(4) Women Lawyers Journal 188
Smith D A, ‘Reckless Rape in Victoria’ (2008) 32(3) Melbourne University Law Review 1007
Stone J, Legal System and Lawyers’ Reasonings (Stanford University Press, 1964)
The Hon Justice Beech-Jones, ‘Seven Random Points About Judging’ (Speech, National Judicial Orientation Program, 17 March 2024)
Tidmarsh P and Hamilton G, ‘Misconceptions of Sexual Crimes against Adult Victims: Barriers to Justice’ Trends & Issues in Crime and Criminal Justice Report No 611, Australian Institute of Criminology (November 2020)
Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences: Report (September 2021)
Voltaire, Zadig; or, The Book of Fate: An Oriental History (1749)
Williams C R, ‘Burdens and Standards in Civil Litigation’ (2003) 25(2) Sydney Law Review 165
Woolf H, Access to Justice Report, Final Report (London,
HMSO), 1996
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 1098 Date of hearing: 23–24, 27–30 November 2023, 1, 5–8, 11–15, 18–22 December 2023, 13–14 February 2024, 2, 4–5 April 2024 Date of last submissions: 9 April 2024 (Ms Brittany Higgins, Mr Taylor Auerbach) Counsel for the applicant: Mr S Whybrow SC with Mr M Richardson SC and Mr D Helvadjian and Mr N Olson Solicitor for the applicant: Mark O’Brien Legal Counsel for the first respondent: Dr M Collins KC with Mr T Senior and Ms Z Graus Solicitor for the first respondent: Thomson Geer Lawyers Counsel for the second respondent: Ms S Chrysanthou SC with Mr B Dean Solicitor for the second respondent: Gillis Delaney Lawyers
ORDERS
NSD 103 of 2023 BETWEEN: BRUCE LEHRMANN
Applicant
AND: NETWORK TEN PTY LIMITED
First Respondent
LISA WILKINSON
Second Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
15 APRIL 2024
THE COURT ORDERS THAT:
1.Judgment for the respondents on the statement of claim.
2.The parties file submissions as to the costs order for which they contend, and any evidence they rely upon in relation to costs, on or by 22 April 2024.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
A OPENING REMARKS
[1]
B THE PARTICIPANTS AND SOME BACKGROUND FACTS
[14]
B.1 The Dramatis Personae
[15]
I Mr Lehrmann
[15]
II Ms Higgins
[20]
III Ms Wilkinson
[24]
IV Mr Angus Llewellyn
[27]
B.2 Publication of the Impugned Matters
[30]
B.3 The Criminal Proceeding
[35]
B.4 Procedural History
[38]
C THE PUBLICATIONS
[41]
D IDENTIFICATION
[47]
D.1 Introduction
[47]
D.2 Relevant Principles
[52]
D.3 The Witnesses
[58]
I Ms Abbott
[59]
II Ms Quinn
[63]
III Mr McDonald
[67]
IV Other witnesses
[70]
D.4 Identification Established
[76]
E APPROACH TO FACT-FINDING, ONUS, AND THE STANDARD OF PROOF
[90]
E.1 General
[90]
E.2 Relevant Observations as to Standard of Proof
[96]
E.3 The Practical Difference Between the Civil and Criminal Standard
[105]
E.4 Assessing the Credit of a Complainant of Sexual Assault
[112]
E.5 The Importance of Contemporaneous Representations
[122]
E.6 The Court is Not Bound to Accept Either of the Parties’ Accounts
[126]
E.7 Multiple Available Hypotheses and Onus
[133]
E.8 False in One Thing does not mean False in Everything
[136]
E.9 Implied Admissions and “Consciousness of Guilt”
[139]
F OBSERVATIONS AS TO THE CENTRAL WITNESSES
[146]
F.1 Mr Lehrmann
[149]
I General Remarks
[149]
II Miscellaneous Examples of False Statements during the Hearing
[154]
III The Spotlight Detour
[164]
Collateral Rewards
[170]
Hearne v Street
[172]
F.2 Ms Higgins
[180]
I General Remarks
[180]
II Contrast with Mr Lehrmann
[185]
III The Points Made by Mr Lehrmann in Submissions
[190]
IV 2019 Conduct Issues
[201]
V Subsequent Conduct Issues
[206]
The Development of the Cover-up Narrative
[207]
The Victimisation Allegation and the Commonwealth Deed
[212]
Suggested Procedural Difficulties
[222]
Suggested Evidentiary Difficulties
[232]
Conclusion on the Commonwealth Deed and Credit
[236]
The Bruise Photograph
[242]
Selective Retention and Curation of Data
[248]
2021 False Accusations
[255]
VI Conclusion on General Credit
[258]
F.3 Ms Brown
[260]
F.4 Ms Gain
[280]
F.5 Major Irvine
[286]
F.6 Mr Payne
[296]
F.7 Mr Dillaway
[302]
F.8 Ms Wilkinson
[304]
F.9 Mr Llewellyn
[324]
F.10 Mr Meakin
[328]
F.11 Dr Robertson
[330]
F.12 Mr Reedy
[331]
G FACTUAL FINDINGS OF RELEVANCE TO THE SECTION 25 DEFENCE
[336]
G.1 Pre-Incident Events
[338]
I The Reynolds’ Office
[338]
II Mr Lehrmann’s Knowledge of Ms Higgins
[343]
III 2-3 March 2019: Drinks at the Kingston Hotel and Related Events
[345]
IV 15 March 2019: “Team Reynolds” Dinner
[365]
V 20 March 2019: Mr Lehrmann’s First Security Breach
[371]
VI 22 March 2019: Before the Dock
[375]
VII The Dock
[379]
Mr Lehrmann’s Payments
[387]
Drinks Consumed by Ms Higgins
[394]
Interactions between Mr Lehrmann and Ms Higgins
[403]
VIII 88mph
[406]
IX Leaving 88mph and the Journey to Parliament House
[416]
G.2 A Snapshot in Time: Things We Know as to the Position as at 1:40am
[428]
G.3 Security and Entry to the Ministerial Suite
[443]
G.4 Whisky, and the Accounts of What Happened Inside the Ministerial Suite
[458]
I The Whisky at the Office
[459]
II Mr Lehrmann’s Account
[464]
III Consideration of the Account of Mr Lehrmann
[465]
IV Ms Higgins’ Account
[473]
V Consideration of the Account of Ms Higgins
[489]
G.5 Findings as to What Occurred in the Ministerial Suite
[501]
I Five Incontrovertible Facts
[502]
II The Condition of Ms Higgins in the Suite
[511]
III Post-incident Conduct
[525]
IV Complaint Evidence or Prior Consistent Statements
[548]
V What Happened?
[551]
H THE SECTION 25 DEFENCE
[561]
H.1 Introduction
[561]
H.2 Substantial Truth: Was there a Rape?
[562]
I What Needs to be Proven
[562]
II Non-Consent Element
[575]
III Knowledge Element
[588]
IV Further Observations as to Mr Lehrmann’s “Critical” Submission
[603]
V The Role of Implied Admissions and Consciousness of Guilt
[613]
VI Conclusion on Rape
[620]
VII Differences between Imputations
[622]
I FINDINGS AS TO RELEVANT POST-INCIDENT CONDUCT
[630]
I.1 Introduction
[630]
I.2 The Immediate Aftermath: Miscellaneous Matters Referred to in Submissions
[632]
I.3 The Role of the AFP and the 2019 Decision of Ms Higgins not to Proceed
[656]
I.4 Why and When the PMO was told and Support Services
[708]
I.5 The Move to Western Australia
[719]
I.6 CCTV Footage
[733]
I.7 Later Events
[740]
I The Canberra Times Enquiry
[742]
II The Broadcast of the Four Corners Programmes
[754]
J FACTUAL FINDINGS OF RELEVANCE TO THE SECTION 30 DEFENCE
[760]
J.1 Introduction
[760]
J.2 The Genesis of the Story and the “Timeline” Document
[767]
J.3 The Investigation and Preparation
[782]
I The First Interview, Weaponisation, Incomplete Data, and the Bruise Photograph
[789]
II The Next Steps
[832]
III The Second Interview – 2 February 2021
[843]
IV Further Steps Before Broadcast
[849]
V Seeking Comment
[862]
VI The Treatment of the Government Response
[875]
VII Statutory Declaration
[886]
VIII The Broadcast
[889]
J.4 The Position of Ms Wilkinson
[899]
K THE SECTION 30 DEFENCE
[901]
K.1 Introduction
[901]
K.2 The Proper Construction of Section 30
[909]
I The Respondents’ Submissions
[909]
II Conclusion on Construction Issue
[919]
K.3 Introduction and the General Approach of the Respondents
[922]
K.4 Why the Network Ten Conduct was not Reasonable
[936]
K.5 Ms Wilkinson: Distinguishing Matters and an Evaluation
[938]
L OTHER DEFENCES
[964]
L.1 General Observations
[964]
L.2 Common Law Justification
[965]
L.3 Lange Qualified Privilege
[967]
L.4 Common Law Qualified Privilege
[968]
M DAMAGES AND OTHER RELIEF
[971]
M.1 Introduction
[971]
M.2 General Observations
[976]
M.3 Three Particular Issues as to Ordinary Compensatory Damages
[980]
I No Damages or Nominal Damages
[981]
II The English Cases on Abuse of Process by a Claimant
[989]
III How to Use Evidence of Misconduct
[998]
M.3 Mr Lehrmann’s Submissions on Ordinary Damages
[1009]
M.4 Matters Relevant to Aggravated Damages
[1023]
I The Bases Pressed
[1023]
II Reckless Indifference to Truth of the Imputations
[1026]
III Failure to Seek Comment Adequately
[1029]
IV The Logies Speech and Ms Smithies’ Advice
[1032]
M.5 Conclusions on Ordinary Compensatory Damages
[1055]
I Severity
[1056]
II Hurt to Feelings
[1057]
III Damage to Reputation
[1063]
Causation
[1065]
Conduct of Mr Lehrmann
[1069]
IV Extent of Publication
[1075]
M.6 Conclusions on Aggravated Damages
[1077]
M.7 Quantum
[1089]
N CONCLUSION AND ORDERS
[1091]
ANNEXURE A – TRANSCRIPT OF PROJECT PROGRAMME (EX 1)
ANNEXURE B – NOTES OF MS FIONA BROWN (EX R87)
ANNEXURE C – MINISTERIAL SUITE FLOORPLAN (EX R1)
ANNEXURE D – CCTV IMAGES FROM THE DOCK (EX R17–R30)
ANNEXURE E – EMAIL FROM ASSOCIATE DATED 9 APRIL 2024
LEE J:
A OPENING REMARKS
Mr Bruce Lehrmann sues Network Ten Pty Limited (Network Ten) and Ms Lisa Wilkinson (together, the respondents) in defamation in relation to an episode of Network Ten’s The Project programme (Project programme).
It is a singular case: the underlying controversy has become a cause célèbre. Indeed, given its unexpected detours and the collateral damage it has occasioned, it might be more fitting to describe it as an omnishambles.
For some people, any unwelcome findings will be peremptorily dismissed. The reasoning process, including the drawing of fine distinctions based upon the subtleties of the evidence, will be of no interest. This reaction is inevitable given that several observers have a Rorschach test-like response to this controversy and fasten doggedly upon the “truth” as they perceive it. Their response is visceral because the “truth” is revealed and declaimed, rather than proven and explained. Some jump to predetermined conclusions because they are disposed to be sceptical about complaints of sexual assault and hold stereotyped beliefs about the expected behaviour of rape victims, described by social scientists as “rape myths”; others say they “believe all women”, surrendering their critical faculties by embracing and acting upon a slogan arising out of the #MeToo movement. Some have predetermined views as to the existence or otherwise of a conspiracy to suppress a rape for political purposes. For more than a few, this dispute has become a proxy for broader cultural and political conflicts.
This judgment is not written for people who have made up their mind before any evidence was adduced or are content to rest upon preconceived opinions. It is written to set out my factual findings comprehensively and explain my decision to the parties and to the open and fair-minded.
To achieve this end, from the start of this case, I have attempted to ensure as transparent a process as possible, conscious that a trial conducted in public, accessible to the public, and only upon evidence and submissions made fully available to the public, was the best security for confidence of the fair-minded in the impartiality and efficiency of the justice system.
An astute observer would have gleaned from the trial that this case is not as straightforward as some commentary might suggest. In part, this is because the primary defence hinges on the truth of an allegation of sexual assault behind closed doors. Only one man and one woman know the truth with certitude.
For an impartial outsider seeking to divine the truth (or, more accurately, ascertaining what most likely happened), two connected obstacles emerged.
The first is, at bottom, this is a credit case involving two people who are both, in different ways, unreliable historians.
Countless scholarly articles have been written seeking to explain the frailties of human memory and why it is that different people may remember the same event in different ways. People give unreliable evidence for various reasons and distinguishing between a false memory and a lie can often be difficult. Aspects of so-called “witness demeanour” or physiological signs of deceit are of little use unless the witness is cognitively aware of their deception. Recognising these realities, judges are reluctant to characterise a false representation as a lie unless another explanation is unavailable and it is necessary to do so to resolve a controversy. But as we will see, this is a case where credit findings are central and sometimes an explanation other than mendacity is not rationally available.
To remark that Mr Lehrmann was a poor witness is an exercise in understatement. As I will explain, his attachment to the truth was a tenuous one, informed not by faithfulness to his affirmation but by fashioning his responses in what he perceived to be his forensic interests. Ms Brittany Higgins, Mr Lehrmann’s accuser, was also an unsatisfactory witness who made some allegations that made her a heroine to one group of partisans, but when examined forensically, have undermined her general credibility to a disinterested fact-finder.
The second and related obstacle was the assertion that what went on between these two young and relatively immature staffers led to much more. By early 2021, allegations of wrongdoing had burgeoned far beyond sexual assault. It was said a sexual assault victim had been forced by malefactors to choose between her career and justice. The perceived need to expose misconduct (and the institutional factors that allowed it) meant the rape allegation was not pursued in the orthodox way through the criminal justice system, which provides for complainant anonymity.
As we will also see, when examined properly and without partiality, the cover-up allegation was objectively short on facts, but long on speculation and internal inconsistencies – trying to particularise it during the evidence was like trying to grab a column of smoke. But despite its logical and evidentiary flaws, Ms Higgins’ boyfriend selected and contacted two journalists and then Ms Higgins advanced her account to them, and through them, to others. From the first moment, the cover-up component was promoted and recognised as the most important part of the narrative. The various controversies traceable to its publication resulted in the legal challenge of determining what happened late one night in 2019 becoming much more difficult than would otherwise have been the case.
I will come to the legal issues, the principles that have guided fact-finding, some observations concerning the credit of various witnesses, and then my findings as to what relevantly went on. But before doing so, I will explain some uncontroversial matters and the issues in the case.
B THE PARTICIPANTS AND SOME BACKGROUND FACTS
Most of the important facts are contested. This section records some uncontroversial details as to the principal participants, the publications, and this and related proceedings.
B.1 The Dramatis Personae
I Mr Lehrmann
Mr Lehrmann was born in 1995 in Texas. His father died in Mr Lehrmann’s infancy.
His mother, who was born in Australia, relocated to northern New South Wales with Mr Lehrmann and his younger sister. The family then moved to Toowoomba in Mr Lehrmann’s final years of primary school.
From a young age, Mr Lehrmann had a preternatural interest in politics. Upon leaving school, in 2014, he moved to Canberra to undertake study at the Australian National University. His first foray into politics came at the time he started university, as an electorate officer.
In March 2016, Mr Lehrmann commenced employment as an office manager with the then Commonwealth Attorney-General, before assuming a role as a health policy advisor to the then Assistant Minister for Health, in August 2017.
At the end of 2017, Mr Lehrmann commenced employment as a health policy advisor with the then Minister for Rural Health and Sport, a position he held until October 2018, when he became a policy advisor to the Hon Senator Linda Reynolds CSC, then Assistant Minister for Home Affairs.
II Ms Higgins
Ms Higgins was born in Queensland in 1994. She grew up on the Gold Coast, completing her schooling there and later graduated from Griffith University. In 2017, she was employed as a staffer for Mr Samuel O’Connor MP, a member of the Queensland Parliament.
Ms Higgins moved to Canberra around September 2018 to commence work as an administrative assistant in the Ministerial office of the Hon Steven Ciobo MP. Around this time, she began a relationship with Mr Benjamin Dillaway, the media advisor to Mr Ciobo, which lasted until February or early March 2019. The pair remained close (and at times intimate) friends.
In early March 2019, Mr Ciobo announced his pending resignation and, shortly thereafter, Senator Reynolds received a commission to become the Minister for Defence Industry.
Ms Higgins was then successful in her application for a role as an administrative officer and junior media advisor in Senator Reynolds’ office.
III Ms Wilkinson
Ms Wilkinson has been a journalist for over forty years. She has held a wide range of prominent roles. Her beginnings were in print journalism. Her first job was as an editorial assistant and cadet journalist at Dolly magazine. She held various roles at Dolly and Cleo magazines from 1978 to 1995, including rising to become editor-in-chief of both magazines from 1988 to 1995, and was editor-at-large of the Australian Women’s Weekly from 1999 to 2007.
Ms Wilkinson first turned to television in 1996. She rose to lounge-room prominence in the early 2000s, as co-host of The Morning Shift. Between 2004 and 2007, she was a news contributor and regular fill-in co-host of the Seven Network’s Sunrise and Weekend Sunrise programmes and, from 2007 to 2017, co-host of Today on the Nine Network.
In 2017, Ms Wilkinson became co-host of The Project and The Sunday Project, a role she held at the time of publication.
IV Mr Angus Llewellyn
Mr Angus Llewellyn has been a producer for The Project since 2019. He is employed by 7PM Company Pty Ltd, which provides Network Ten with production services for The Project.
Mr Llewellyn is highly experienced and has held various producer roles in radio, including at the ABC, Radio 2UE, and television programmes, including the Seven Network’s Sunday Night; SBS’s Dateline and Insight; and the ABC’s Lateline.
Ms Wilkinson and Mr Llewellyn are both based in Sydney and have frequently worked together since about October 2019. They first met in about 2006 when Mr Llewellyn worked with Ms Wilkinson’s husband.
B.2 Publication of the Impugned Matters
On the morning of 15 February 2021, an article entitled “Young staffer Brittany Higgins says she was raped at Parliament House”, authored by Ms Samantha Maiden (Maiden article), was published on the news.com.au website.
Mr Lehrmann became aware of the Maiden article around the time it was published. I have set out the relevant chronology in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 (limitation judgment) and do not propose to repeat it here.
It suffices to note that by 2pm that day, Mr Lehrmann had been informed that “government sources” were identifying him as the man accused of sexually assaulting Ms Higgins. His work supervisor, Mr Joshua Fett, informed Mr Lehrmann that Ms Rosie Lewis, a journalist at The Australian, had emailed Mr Fett to this effect.
That evening, Network Ten broadcast the Project programme, and republished it on the 10 Play website and The Project’s YouTube channel shortly thereafter. Mr Lehrmann watched the broadcast live from his then solicitor’s office.
It is common ground that the television broadcast attracted a national audience of over 725,000 people, from every state and territory. The publication on the 10 Play website had over 17,000 views, and the publication on YouTube had nearly 190,000 views.
B.3 The Criminal Proceeding
On 17 August 2021, Mr Lehrmann was charged with one count of engaging in sexual intercourse with Ms Higgins without her consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act). On the same day, Mr Lehrmann was identified by “mainstream” media outlets as the person accused of the offence by Ms Higgins.
The trial was originally fixed to commence in the Supreme Court of the Australian Capital Territory on 27 June 2022, but was vacated by McCallum CJ six days earlier for reasons explained in R v Lehrmann (No 3) [2022] ACTSC 145; (2022) 299 A Crim R 276. The trial ultimately commenced before McCallum CJ and a jury of sixteen on 4 October 2022. A jury of twelve retired on 19 October 2022 and was discharged eight days later by reason of juror misconduct.
On 2 December 2022, the Director of Public Prosecutions, Mr Shane Drumgold SC, announced that he did not intend to proceed with the prosecution. The reason was said to be the ill-health of the complainant, Ms Higgins.
B.4 Procedural History
Mr Lehrmann brought this proceeding and a (now discontinued) proceeding against News Life Media and Ms Maiden (News Life proceeding) out of time, requiring him to seek an extension of the limitation period, which was granted for the reasons given in the limitation judgment.
He later commenced a proceeding within time against the ABC (ABC proceeding) in relation to the broadcast of an address given by Ms Higgins, alongside Ms Grace Tame, at the National Press Club in February 2022. The ABC proceeding travelled with this proceeding until the first day of the trial, when a settlement was formalised.
In December 2023, competing cross-claims were filed in this Court as between Ms Wilkinson and Network Ten in relation to an indemnity for legal costs (cross-claims). I directed that the cross-claims be heard separately, and they have been the subject of a judgment (Lehrmann v Network Ten Pty Limited (Cross-claims) [2024] FCA 102 (cross-claims judgment)). The only present relevance of the cross-claims is that each party agreed that evidence on the cross-claims be evidence in this proceeding.
C THE PUBLICATIONS
Mr Lehrmann sues on three matters published on 15 February 2021, being the Project programme:
(1)broadcast on Network Ten;
(2)published on the 10 Play website; and
(3)published on The Project’s YouTube channel.
The substance of each matter is relevantly identical, and the transcript of the programme, being an aide memoire to Ex 1, is annexed to these reasons as Annexure A. I will refer to the impugned matters collectively as the Project programme.
Mr Lehrmann in the statement of claim (SOC) says the Project programme, in its natural and ordinary meaning, was defamatory of him and carried the following imputations:
SOC Reference
Imputation
[4(a)]; [6(a)]; [8(a)]
[Mr Lehrmann] raped Brittany Higgins in Defence Minister Linda Reynolds’ office in 2019.
[4(b)]; [6(b)]; [8(b)]
[Mr Lehrmann] continued to rape Brittany Higgins after she woke up mid-rape and was crying and telling him to stop at least half a dozen times.
[4(c)]; [6(c)]; [8(c)]
[Mr Lehrmann], whilst raping Brittany Higgins, crushed his leg against her leg so forcefully as to cause a large bruise.
[4(d)]; [6(d)]; [8(d)]
After [Mr Lehrmann] finished raping Brittany Higgins, he left her on a couch in a state of undress with her dress up around her waist.
Network Ten and Ms Wilkinson deny the matters concerned Mr Lehrmann but, if they did, they admit the pleaded imputations were conveyed, and are defamatory of Mr Lehrmann: Network Ten’s defence (at [4(b)], [6(b)], [8(b)]); Ms Wilkinson’s defence (at [4.3], [4.4], [6.3], [6.4], [8.3], [8.4]).
Both respondents also say the pleaded imputations do not differ in substance from one another: Network Ten’s defence (at [4(c)], [6(c)], [8(c)]); Ms Wilkinson’s defence (at [4.5], [6.5], [8.5]). As Ms Wilkinson puts it, the pleaded imputations “contain gratuitous and irrelevant rhetorical flourish that adds nothing to the defamatory sting of rape”.
What was conveyed by the Project programme was not in issue, and I do not propose to rehearse the uncontroversial principles as to defamatory meaning. In short, the question of what was conveyed and whether it is defamatory depends upon what the ordinary reasonable viewer would understand, and it is common ground that if the Project programme identified Mr Lehrmann, the hypothetical referee would understand it conveyed the pleaded meanings, with the sting being an accusation of rape.
D IDENTIFICATION
D.1 Introduction
Identification is an essential element of defamation and Mr Lehrmann must establish the Project programme is “about” or “of and concerning” him: s 8 of the Defamation Act 2005 (NSW) (Defamation Act). That is, Mr Lehrmann must show that at least one person who viewed the Project programme reasonably understood the allegations concerned him: David Syme & Co v Canavan (1918) 25 CLR 234 (at 238 per Isaacs J).
Despite the pleadings, the contest in this case is not, however, whether at least one person identified Mr Lehrmann, so as to perfect the cause of action. Instead, what is really in dispute is the extent of identification: that is, the persons (or classes of persons) who reasonably identified Mr Lehrmann, which is relevant to damages and the defence of common law qualified privilege.
Mr Lehrmann contends he was reasonably identified by three classes of persons, being those:
(1)who either worked in Senator Reynolds’ office or had regular dealings with that office and, consequently, knew Mr Lehrmann: (a) was a “senior male advisor” to Senator Reynolds; (b) had previously worked for Senator Reynolds in the Home Affairs portfolio; (c) had attended a drinks event with Ms Higgins and other contacts and colleagues in Defence on the night of the alleged rape; (d) was called into a meeting with Ms Fiona Brown, Chief of Staff to Senator Reynolds, on the following Tuesday, after which he started packing up his belongings; and (e) by February 2021, had obtained a job in Sydney;
(2)who worked in Parliament, being federal politicians, assistants and staffers, journalists, and other persons, including family, friends and acquaintances of Mr Lehrmann; such that Mr Lehrmann’s identity must have been known generally to such persons through discussions and, provided they were not already aware, they would have soon discovered that he was the subject of the Project programme; and
(3)who were invited to speculate as to the identity of the person accused; such that a large, indeterminate number of viewers would have reasonably concluded, having read (or subsequently read) a series of social media posts and/or articles published online, that the programme identified Mr Lehrmann.
In establishing identification, Mr Lehrmann called Ms Kathleen Quinn, Ms Karly Abbott, and Mr David McDonald (identification witnesses). Additionally, Mr Lehrmann relies upon other witnesses who gave evidence that they identified Mr Lehrmann (either prior to airing or shortly thereafter).
I will return to this evidence below, but I will first expand upon the relevant principles.
D.2 Relevant Principles
The inquiry as to identification has two stages, which reflect the traditional and differing roles of judge and jury in a defamation case.
The first concerns whether, as a matter of law, the impugned publication is capable of identifying the applicant: that is, whether an ordinary sensible person could draw an inference that the publication referred to the applicant, with the Court’s function to determine the outer limits of the possible range of meanings: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 (at [133] per McColl JA, with whom Bathurst CJ and Gleeson JA agreed). Indeed, “great caution” is mandated at this stage because the conclusion which necessarily underpins a finding that the matter is incapable of conveying the pleaded imputations is that no viewer could reasonably understand the publication to bear any meaning outside the range delimited by the judge: Corby (at [136] per McColl JA). It is an “exercise in generosity not parsimony”: Berezovsky v Forbes [2001] EWCA Civ 1251 (at [16] per Sedley LJ).
The second stage is for the trier of fact to decide whether the publication actually identified the applicant. As noted above, the fact-finder must determine whether, upon the evidence, persons with special knowledge of the applicant reasonably understood the publication to concern him: David Syme (at 238 per Isaacs J). However, identification does not require that readers or viewers already have the requisite knowledge at the time of the publication: Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; (2015) 91 NSWLR 485 (at 503 [81] per Simpson JA, McColl JA agreeing).
Identification may be established by direct or indirect evidence. As Mason P observed in Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (at [57]), an indirect way is where the applicant gives evidence of being contacted by people in circumstances showing that such contact was obviously a response to what they read in the publication (it was said of one member of the New South Wales Bar – now deceased – that it was remarkable how often his clients seemed to be importuned by strangers in the street commenting upon defamatory publications).
A variant of such evidence is “talk” or “tittle tattle” among readers or viewers indicative of identification. The Court must be satisfied that such evidence is capable of supporting the inference that the responses to the defamatory matter showed that the persons concerned reasonably understood it to refer to the applicant.
Whether the identification was correct is relevant to the question of reasonableness. As Bryson JA (with whom Mason P and Tobias JA agreed) observed in Gardener v Nationwide News Pty Ltd [2007] NSWCA 10 (at [47]), any purpose for establishing that identification was reasonable is well satisfied if it can be shown the identification was correct: see also Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (at 371–374 per Samuels JA).
D.3 The Witnesses
As noted earlier, Mr Lehrmann adduced direct evidence from the identification witnesses, whose evidence I accept.
I Ms Abbott
Ms Abbott met Mr Lehrmann around 2016 when he was employed in the Office of the Attorney-General. Since that time, she has “got to know [Mr Lehrmann] reasonably well” and considers him a friend (Abbott (at [6])).
Ms Abbott viewed the Project programme when broadcast and identified Mr Lehrmann because she knew he: (a) was an advisor to Senator Reynolds and, although he was not a “senior advisor”, he was senior to Ms Higgins; (b) had previously worked for Senator Reynolds in the Home Affairs portfolio; (c) was involved in “an incident involving Brittany” in the office which resulted in him being “fired” (information received from a conversation in July 2019 with a colleague, Mr Drew Burland); and (d) worked in Sydney.
Ms Abbott was aware of these matters, at least in part, because she had read the Maiden article and connected the allegations to Mr Lehrmann from the conversation with Mr Burland in July 2019 (T48.40–45; T45.20–21). She had a conversation with Mr Dillaway in which he said, concerning the Maiden article, “This is Bruce” (Abbott (at [12])).
Ms Abbott explained that following the broadcast, there were conversations and exchanges of text messages among political staffers and other participants in the Canberra rumour mill about identity (Abbott (at [11]); T47.19–48.1; T49.7). In the context of these conversations, Ms Abbott’s evidence is that she “[did not] believe that there was any other specific names mentioned to me, but just a ‘Do you know who this is?’ Or …” (T47.42–44).
II Ms Quinn
Ms Quinn is Ms Abbott’s business partner.
Ms Quinn met Mr Lehrmann around 2016 and they interacted in work and social settings. She viewed the Project programme and identified Mr Lehrmann because he: (a) was an advisor to Senator Reynolds who was senior to Ms Higgins; (b) had previously worked with Senator Reynolds in the Home Affairs portfolio; and (c) ceased working for Senator Reynolds in about March 2019 and was working in Sydney for British American Tobacco (BAT) (Quinn (at [6])).
In cross-examination, Ms Quinn explained that prior to airing, she was aware of “a rumour that there had been a security incident in the office, and that was why Bruce had left” (T113.24–42). She discussed the Maiden article, and the fact that it was about Mr Lehrmann, with Ms Abbott prior to the broadcast (T114.34–116.5).
In the days following the broadcast, Ms Quinn noted the allegations were a “hot topic” of discussion among staffers (Abbott (at [8])). She recalled conversations with close to a dozen such people over a couple of days and recalled them saying that (T112.13–15):
Bruce was the person that had been identified in The Project broadcast and asking my opinion of his character and whether or not I had ever experienced anything untoward from him.
III Mr McDonald
Mr McDonald is a close friend of Mr Lehrmann and his family. He watched the Project programme with his wife when it was aired, to whom he said: “this has to be about Bruce” (McDonald (at [7])).
Mr McDonald identified Mr Lehrmann from the programme because: (a) it stated that the former colleague was a male advisor to Senator Reynolds; (b) the person had previously worked for Senator Reynolds in the Home Affairs portfolio; and (c) the person had ceased working for Senator Reynolds in March 2019 and had moved to Sydney (McDonald (at [6]); T56.45–57.20). Mr McDonald promptly discussed the broadcast with his neighbour and said: “it looks like Bruce is in a bit of strife” (McDonald (at [9])).
Notwithstanding those identifying facts, in cross-examination, Mr McDonald conceded that he could not exclude the possibility that there were other men working for Senator Reynolds who fell within the description above (T57.40–44).
IV Other witnesses
Mr Lehrmann also relies upon other testimony adduced from witnesses of broader significance and to whose evidence I will return, in detail, below. Insofar as they gave evidence relevant to identification, it was as follows.
Ms Nicole Hamer explained she watched the broadcast and knew, at that time, that the alleged perpetrator was Mr Lehrmann (T1064.5–1066.4). Prior to publication, she recalled unspecific discussions among people working in Parliament about the upcoming programme, during which Mr Lehrmann was named (T1065.41–45). Ms Hamer did not understand at the time that there was any other person to whom the allegations could relate, but accepted in re-examination that different names were mentioned (T1069.32–41).
Mr Austin Wenke gave evidence he read the Maiden article on the morning of the broadcast and watched some (but not all) of the Project programme (T1126.7–8). Following the publication of the Maiden article, Mr Wenke agreed there was “a bit of chatter within Parliament House [about the story]” (T1125.11–22). He concluded the allegations in the Maiden article concerned Mr Lehrmann and he did not recall thinking the allegations could have referred to anyone else (T1125.24–41). He agreed it was fair to characterise the identity of the alleged perpetrator referred to in the Maiden article as an “open secret” within Parliament House (T1126.14–22).
Major Nikita Irvine watched the Project programme. She gave evidence she received questions about it from colleagues in the military but did not want to discuss it (T1207.1–36). Major Irvine identified Mr Lehrmann because (as we will see) Ms Higgins had disclosed details of the incident to her in March 2019 (T1207.35–36) (Irvine (at [60]–[61])).
Mr Dillaway gave evidence he read the Maiden article. He knew the allegations concerned Mr Lehrmann because Ms Higgins had told him in March 2019 that Mr Lehrmann had sexually assaulted her (Dillaway (at [42]–[50])). He gave evidence “what was in that story was consistent with what she had told me previously” (T1276.11–25) and that he had a vague recollection of watching the Project programme (T1277.13).
Mr Lehrmann himself gave evidence of the actions of various acquaintances (with whom he had not remained in contact) following the broadcast (see, for example, Ex 8). In particular, he referred to a screenshot of a Facebook Messenger group chat (which had included Mr Lehrmann) which showed an image of an “EJECT” button, followed by several members leaving the group chat (Ex 11).
D.4 Identification Established
While there is necessarily some degree of overlap, given it is in issue, it is best not to elide the two stages of the relevant inquiry.
As to the first, it is plain as a pikestaff the Project programme was capable of identifying Mr Lehrmann. As noted earlier, there were several tell-tales, being (Ex 1, Annexure A):
(1)he was a “senior male advisor” to Senator Reynolds who had a “special bond” with her (lines 7–8), and was “a bit of a favourite [of the Senator]” (line 9);
(2)he “had been advising her in the home affairs portfolio prior to [working in the Defence Industry portfolio]” (line 10);
(3)he attended drinks with colleagues in Defence on 22 March 2019 (line 11);
(4)the following Tuesday morning, Ms Brown called the alleged perpetrator in for a meeting, following which he “immediately walked out of the office and started packing up his things” (lines 53–55); and
(5)the alleged perpetrator was, as at the date of broadcast, “working in Sydney … he’s got a good job” (line 157).
Even accounting for a certain degree of factual inaccuracy (for example, whether Mr Lehrmann was a “senior advisor”), the references above correspond to the particularised knowledge of the applicant possessed by the identification witnesses and other witnesses: see Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd [2018] NSWCA 95; (2018) 97 NSWLR 739 (at 756 [77] per McColl JA). In the light of that special knowledge, the ordinary reasonable viewer possessing that knowledge could understand that Mr Lehrmann was the subject of the allegations.
As to the second stage, I am amply satisfied that Mr Lehrmann was in fact identified.
First, Mr Lehrmann was reasonably identified by persons with special knowledge. Each of the identification witnesses identified Mr Lehrmann with knowledge they had acquired by working in Parliament, or by reason of being a friend or family acquaintance. It is immaterial whether they identified Mr Lehrmann from the Maiden article: what matters is the identification witnesses reasonably identified Mr Lehrmann from information contained in the programme. With the exception of Mr McDonald, who could not exclude the possibility he thought the programme may have referred to another person, it is significant for the purposes of assessing reasonableness that Ms Abbott and Ms Quinn were correct in their identification.
Secondly, it is important that several witnesses gave evidence of gossip and rumour both before and after the Project programme was broadcast. The fact that such “chitter chatter” took place is indicative of the kind of evidence referred to in Pedavoli whereby recipients of such information tend to make efforts to discover identity, thereby expanding the circle of people with the requisite knowledge.
This is sufficient to establish identification and perfect the cause of action, but given the need to focus on the extent of identification, it is necessary to say something more.
Reliance by Mr Lehrmann upon the third category, being other persons who may have identified Mr Lehrmann by reason of the Twitter/X “firehose” or “grapevine effect” presents difficulties: see Kumova v Davison (No 2) [2023] FCA 1 (at [319]). Unlike other cases where the “Twittersphere” trends with a name following a publication, as Mr Lehrmann conceded in cross-examination, his solicitors, despite their best efforts, could not locate any Tweets around the time of the broadcast which named Mr Lehrmann as the subject of the Project programme, save for a Tweet published by True Crime Weekly (Ex 7; T484.33–485.33) together with some articles on a website “Kangaroo Court of Australia” (Ex 4, 5 and 6).
All of this, including Mr Lehrmann’s evidence as to being contacted on social media following the broadcast, reflects very modest social media dissemination compared to other defamations provoking speculation as to identity.
It was less a firehose and more the splutter of an insecurely fastened sprinkler.
Before leaving the topic of identification, for completeness, it is worth dealing with a discrete point made by Ms Wilkinson.
In her written and oral closing submissions, Ms Wilkinson referred to a number of authorities concerning “small group identification” and, in particular, the decision of Hunt J in McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 as authority for the proposition that in circumstances where there is a small group of persons referred to in an impugned publication, the matter is incapable of conveying an imputation of guilt unless it impugns every member of the class (at 488D–491D). In short, Ms Wilkinson submits this is relevant because Mr Lehrmann has not excluded the possibility that viewers reasonably identified him as one of a small group of persons who could have met the description of the alleged perpetrator, namely Mr Jesse Wotton, who worked for Senator Reynolds in March 2019.
I do not accept this submission, for the following reasons.
First, there were identifying facts which, for those armed with special knowledge, would have ruled Mr Wotton out as the alleged culprit; namely: (1) Mr Wotton did not leave Senator Reynolds’ office in March 2019; and (2) Mr Wotton was not working in Sydney in February 2021. Secondly, although not determinative of the question of identification by others, it is telling that when asked whether he was concerned that people might think he was the subject of Ms Higgins’ allegations, Mr Wotton gave evidence that he was not concerned because he was “quite confident in the fact that people [knew me well] … or were in a position to find out should they make their own inquiries” (T1092.32–37). Thirdly, prior to broadcast, Network Ten successfully took steps to guard against confusion with any other male who worked in Senator Reynolds’ office at the time. As Mr Llewellyn explained (Llewellyn (at [167(a)])):
We were very conscious that we did not want to inadvertently identify the wrong person as being the alleged perpetrator. We had to give sufficient detail to exclude other males who worked in Linda Reynolds’ office at the relevant time.
E APPROACH TO FACT-FINDING, ONUS, AND THE STANDARD OF PROOF
E.1 General
It is next appropriate to set out how I have directed myself as to fact-finding, the burden of proof, the standard of proof, and other more particular matters given the nature of the principal allegation.
Without introducing complications arising from the differing ways in which the phrase “burden of proof” has been used – and the differences between legal and evidential burdens (as to which see C R Williams, ‘Burdens and Standards in Civil Litigation’ (2003) 25(2) Sydney Law Review 165), I will use the expression burden or onus of proof as simply being the identification of which party has to demonstrate the case or an aspect of the case propounded, whereas the standard of proof is the applicable benchmark that the evidence adduced must meet to discharge that onus.
The question of who bears the onus in aspects of this case is straightforward. Mr Lehrmann had (and has successfully discharged) his onus in proving he has been defamed as alleged; the respondents now bear the onus of proof with respect to their defences. If those defences fail and Mr Lehrmann is entitled to damages, he will then be required to prove the compensatory damages he seeks.
What this means is that in order to make out the defence of substantial truth, the respondents need to discharge their onus of proving that Mr Lehrmann raped Ms Higgins. The nature of this aspect of the forensic contest brings with it considerations that are necessary to canvass in further detail.
I have discussed the relevant principles at length a number of times (see, for example, Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (at 324–325 [284]–[288])). Notwithstanding this, it is worth referring to Besanko J’s recent survey of matters relevant to onus and proof in Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 41) [2023] FCA 555. In Roberts-Smith, his Honour dealt with a number of matters relevant to: (a) the onus of proof in a justification or substantial truth case (at [93]–[94]); and (b) the standard of proof in a case where there is a serious allegation (at [95]–[110]). With respect, his Honour’s exposition in relation to these matters is comprehensive. I gratefully adopt the above-mentioned paragraphs.
At the risk of supererogation, I will, however, say something in my own words. I will also deal with the agreed facts relevant to Ms Higgins’ credit and some miscellaneous matters, which have informed my approach to the evidence.
E.2 Relevant Observations as to Standard of Proof
As to the standard of proof, the starting (and end) point is s 140 of the Evidence Act 1995 (Cth) (EA), which relevantly provides:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The matters set out in subsection (2)(a), (b) and (c) are mandatory but not exhaustive considerations; other considerations may also be relevant, including the inherent likelihood of the occurrence of the fact alleged and the notion that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 (at 65 per Lord Mansfield).
The concept used in subsection (1), being the “balance of probabilities”, is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per Dixon J). The “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”: Jones v Dunkel (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found.
Justice Hodgson put it differently, but to the same effect, by observing that when deciding facts, a civil tribunal of fact is dealing with two questions: “not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”: see D H Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-finding’ (1995) 69 Australian Law Journal 731; Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (at 576 [14]–[16] per Hodgson JA, Beazley JA agreeing).
Whatever way it is put, a “[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact”: NOM v DPP [2012] VSCA 198; (2012) 38 VR 618 (at 655 [124] per Redlich and Harper JJA and Curtain AJA); Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164 (at 176 [51] per Campbell JA, Bergin CJ in Eq and Sackville AJA agreeing).
Although s 140 EA is now the starting point, the concepts it incorporates are neither new nor novel. Any fact-finding inquiry depends upon context. As Kiefel CJ, Gageler and Jagot JJ recently observed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (at 874–875 [57]), the statutory provision:
… reflects the position of the common law that the gravity of the fact sought to be proved is relevant to “the degree of persuasion of the mind according to the balance of probabilities”. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.
(Citations omitted)
As those acting for Mr Lehrmann correctly state, in Briginshaw, Dixon J (at 362) emphasised that reasonable satisfaction is not attained independently of the nature and the consequence of the fact to be proved, and his Honour referred to the seriousness of the allegation, the inherent unlikelihood of the alleged occurrence, or the gravity of the consequences flowing from the finding in question as matters which could all properly bear upon whether the court is reasonably satisfied or feels actual persuasion. The other members of the Court in Briginshaw also referred to the seriousness of the allegation sought to be proved as a matter relevant to whether or not the tribunal of fact could be satisfied of the fact alleged (at 347 per Latham CJ; 350 per Rich J; 353 per Starke J; and 372 per McTiernan J).
None of this is inconsistent with what I said in Kumova v Davison (No 2) (at [262]), where I noted “the focus on the gravity of the finding is linked to the notion that the Court takes into account the inherent unlikelihood of alleged misconduct”. They are linked in that both the inherent unlikelihood of the alleged occurrence and the gravity of the consequences each require consideration.
An allegation of rape ranks high in the calendar of criminal conduct, and, at the risk of repetition, the allegation needs to be approached with “much care and caution” and with “weight being given to the presumption of innocence and exactness of proof expected”: Briginshaw (at 347 per Latham CJ; 363 per Dixon J). Further, a finding of rape would, needless to say, be seriously damaging to Mr Lehrmann’s reputation and this consequence properly gives one pause before making it: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 (at 345–346 [68]–[69] per Mansfield and Gilmour JJ).
E.3 The Practical Difference Between the Civil and Criminal Standard
Although I will explain below why the allegations to be proved in making out the truth defence and the allegations to be made out by the Crown in the criminal proceeding are not identical, this is an example where the same essential wrongdoing is to be assessed by reference to both the criminal and the civil standard. Such cases are not common, and they bring into sharp focus cardinal aspects of our legal system.
Most first-year law students are introduced to the possibility of error of wrongful convictions and erroneous acquittals. They are (or at least were) made aware of what is often referred to as “Blackstone’s ratio”, being the fourth of five discussions of policy by Sir William Blackstone in his 1765 treatise Commentaries on the Laws of England, vol IV, ch 27 (Oxford University Press, 2016) (at 352) that “all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer”. I digress to note that this notion is ancient: the idea it is better to allow some guilty to escape rather than punish an innocent has Biblical origins (Genesis, 18:23–32) and later was the subject of discussion by Talmudic scholars (see Maimonides, The Commandments, Commandment No 290 (Charles B. Chavel, trans. 1967) (at 270)). Indeed, sixteen years before Blackstone, the concept had been expressed by Voltaire – albeit in a different ratio: “’tis much more prudence to acquit two persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent”: Voltaire, Zadig; or, The Book of Fate: An Oriental History (1749) (at 53).
In any event, this moral choice accommodating the possibility of error has been reflected in fundamental aspects of our criminal justice system, including the presumption of innocence and the logically connected requirement the burden of proof rests with the prosecution. It also finds reflection in the rigour of the criminal law standard of proof.
Hence, although it may be trite, it is worth stressing that in contrast to the present forensic contest, if this allegation of rape was to be determined at a criminal trial, it would not be open for the tribunal of fact to find the case proven unless it is satisfied that it has been proved beyond reasonable doubt: s 141(1) EA.
So even though it is necessary to bear in mind the mandatory s 140(2) EA factors and the cogency of the evidence necessary to establish rape on the balance of probabilities, and that the rape will not be proven unless I feel an actual persuasion of its occurrence, the difference between the criminal and civil standard of proof is substantive and can be decisive in dealing with the same underlying allegation.
Apart from anything else, this difference is evident from the necessity that in a criminal trial, the facts as established must be such as to exclude all reasonable hypotheses consistent with innocence.
By way of useful summary, as was emphasised by the High Court in Rejfek v McElroy (1965) 112 CLR 517 (at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ):
[t]he difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.
E.4 Assessing the Credit of a Complainant of Sexual Assault
Another aspect of the context of this fact-finding exercise is that the determination of the justification defence involves, among other things, consideration of the credibility of evidence given by Ms Higgins, a person who alleges she is a victim of a sexual assault.
Prior to trial, Network Ten served purported expert evidence seeking to establish that aspects of Ms Higgins’ behaviour were not demonstrative of untruthfulness by reference to common or usual patterns of behaviour (as was anticipated would be asserted by Mr Lehrmann in cross-examination). This evidence was not proposed to be adduced by Network Ten in support of a submission that it was probable Ms Higgins was telling the truth, nor that her behaviour following the alleged rape rendered it more or less likely that the assault had occurred as alleged. Rather, the opinion evidence was said to support the proposition that any counterintuitive behaviour relied upon by Mr Lehrmann was of neutral significance.
It was a type of evidence discussed by Associate Professor Jacqueline Horan and Professor Jane Goodman-Delahunty in their article ‘Expert Evidence to Counteract Jury Misconceptions about Consent in Sexual Assault Cases: Failures and Lessons Learned’ (2020) 43(2) UNSW Law Journal 707. In that article (dealing with how so-called “rape myths” play a role in jury decision-making), the authors observed (at 710–11):
Legal authorities in Australia, Canada, New Zealand, the United Kingdom and the United States of America accept that sexual assault myths and misconceptions have a potential to exert an undue influence on triers of fact when deliberating about a sexual assault case. To avoid this undesirable influence, courts rely on traditional processes to educate juries so that they can better assess the evidence in a sexual assault trial on a sound factual basis. The two primary mechanisms to counteract the undue influence of sexual assault myths are expert evidence and judicial directions.
Over the last decade, counterintuitive expert evidence has been permitted to educate the jury as to how complainants vary in their behaviour both during and following a sexual assault. Legal practitioners and academics have noted that this provision remains underused, despite the widely acknowledged need for this type of educative intervention.
Such opinions as to “counterintuitive evidence” have been admitted under s 108C(1) EA in criminal sexual assault trials in a number of cases, including: Hoyle v R [2018] ACTCA 42; (2018) 339 FLR 11 (at 46–48 [223]–[244] per Murrell CJ, Burns and North JJ); MA v R [2013] VSCA 20; (2013) 226 A Crim R 575 (at 586–587 [45]–[52] per Osborn JA; at 595 [95] per Redlich and Whelan JJA); R v Kirkham [2020] NSWDC 658 (at [41]–[42] per McLennan DCJ); Aziz (apseudonym) v R [2022] NSWCCA 76; (2022) 297 A Crim R 345 (at 355–363 [49]–[92] per Simpson AJA, Lonergan J agreeing).
The evidence was objected to by Mr Lehrmann on a number of grounds, which are now unnecessary to detail. Prior to ruling on the objections, I raised with the parties my preliminary view that even if the evidence was admissible, it would be, at best, of marginal utility in circumstances where: (a) this was a judge-alone trial; and (b) that subject to submissions to the contrary, I considered it would be appropriate to direct myself as to the impact of alleged counterintuitive conduct in a manner consistent with some foundational propositions referred to in the proposed evidence which, it seemed to me, simply reflected the accumulated experience of the common law (seen in standard directions) or in ordinary human experience.
Sensibly, both parties agreed, and it became unnecessary to deal with admissibility or discretionary exclusion issues, as the following became common ground as agreed facts pursuant to s 191 EA (Agreed Facts dated 18 December 2023 (agreed facts)):
(1)trauma has a severe impact on memory by splintering and fragmenting memories; such that semantic or meaning elements become separated from emotion; and interfering with the timespan memories require to consolidate and become permanent;
(2)due to the potential for cuing of emotional responses to fragmented memories, memory can change, be subject to reconsolidation effects, and even when these effects are not marked initially, memories may remain labile for some time (thus changes in what the person reports as their memory of an event can be expected);
(3)lack of clarity and confused accounts can be expected until such time as the memory has consolidated;
(4)inconsistencies in reporting following a traumatic event are often observed and explicable through underlying theories of trauma and memory function;
(5)omissions can be understood as alterations in awareness due to high arousal at the time of the event that consolidate over time;
(6)inconsistency is often observed in reliable reports of sexual assault and is not ipso facto a measure of deception;
(7)in understanding the account of an alleged “survivor”, a person must consider how that account was elicited; this includes the skill and attitudes towards the person by the investigating officers; the time elapsed between the traumatic event and the formal interview; and the psychological/emotional state of the person being interviewed at the time of interview;
(8)the first forensic interview is potentially a trigger for intrusive thoughts that can lead to fragmentation of memory and dissociation; patterns of behaviour such as high confidence and clarity in the account are not helpful in determining whether the account is accurate;
(9)despite the belief that the emergence of inconsistencies across interviews is a sign of lying (people “can’t keep their story straight”), the literature on memory, impacts of trauma and the dynamic between interviewee and the interviewer must be considered; and
(10)multiple interviews are typically necessary to construct a clear narrative of events; however, the consequence of these multiple interviews may be patterns of inconsistency or omissions especially early in the interview process (which need to be carefully evaluated but are not in and of themselves necessarily indicative of deception or accuracy).
Consistently with the agreement of the parties, to the extent these propositions are relevant, I will bear them in mind in assessing the impact of any counterintuitive behaviour pointed to by Mr Lehrmann, after the alleged assault, on Ms Higgins’ credit.
In a similarly helpful and constructive way, the parties also agreed facts as to the impact of acute alcohol intoxication, in that it has:
(1)a significant and negative effect on memory as it can impair the memory for behaviour and motivation of all parties involved in a sexual act, including a sexually aggressive act; and
(2)been shown to impair judgment; impact negatively on executive function; and impair attention to environmental cues; it can lead to fragmentary memories that slowly recover and consolidate and from a forensic perspective, this process of fragmentation of memory with at times slow recovery may lead to apparent inconsistency and omissions between interviews.
Although not an agreed fact, there is a further matter worth mentioning about alcohol consumption that is uncontroversial. As was pointed out by Professor Julia Quilter, Professor Luke McNamara and Ms Melissa Porter in their article ‘The Nature and Purpose of Complainant Intoxication Evidence in Rape Trials: A Study of Australian Appellate Court Decisions’ (2022) 43(2) Adelaide Law Review 606, alcohol consumption is “strongly associated with sexual violence crimes, including rape” (at 607). A review of cases, however, suggests that complainant intoxication evidence has historically been more likely to impede, rather than support, the prosecution’s ability to prove non-consent, because it can be used to: suggest consent based on a “loss of inhibition” narrative; and/or challenge the credibility of the complainant as a witness and the reliability of their account.
But here, of course, the evidence adduced by Mr Lehrmann and the forensic choices he has made means he does not directly advance a “loss of inhibition” narrative and, significantly, any submission made as to the reliability of Ms Higgins as someone affected by alcohol is also relevant (if the evidence otherwise establishes sex took place) to the question of whether she was so affected by alcohol as to be incapable of consenting to sex.
E.5 The Importance of Contemporaneous Representations
In a complex commercial case, Webb v GetSwift Limited (No 5) [2019] FCA 1533, I noted the following about the process of fact-finding (at [17]–[18]):
[17]…what matters most in the determination of the issues in cases such as this is the analysis of such contemporaneous notes and documents as may exist and the probabilities that can be derived from these documents and any other objective facts. ...
[18]As Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]–[23], there are a number of difficulties with oral evidence based on recollection of events given the unreliability of human memory. Moreover, considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial… [T]he surest guide for deciding the case will be as identified by Leggatt J at [22]:
… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on the witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
As the Full Court later observed in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; (2018) 396 ALR 193 (at 254 [239] per Allsop CJ, Besanko and Middleton JJ), this approach might be best seen as a helpful working hypothesis, rather than something to be enshrined in any rule. Although these observations were made in the context of fact-finding in commercial cases, this does not mean they are anything but apposite to the fact-finding task to be undertaken in this defamation proceeding.
Moreover, in this case, in addition to file notes, texts, social media messages and emails, hours of audio, video and closed-circuit television (CCTV) footage has been adduced into evidence. I have reviewed this contemporaneous material and, for my manifold sins, have listened or watched all the audio-visual records in evidence. I have trudged unyieldingly through this material because insofar as it casts light on the relevant issues, these contemporaneous records are a far surer guide as to what happened than ex post facto accounts or rationalisations, or unverifiable assertions as to what people “felt”.
The helpful working hypothesis of paying close regard to the contemporaneous documents and representations to disinterested third parties is of signal importance, especially where, as I will explain, I have misgivings as to the reliability of aspects of the accounts given by a number of important witnesses.
E.6 The Court is Not Bound to Accept Either of the Parties’ Accounts
As I will explain further below, the particularised allegation made by the respondents brings with it the requirement to prove:
(1)that, at the time and place alleged (that is, at Parliament House on 23 March 2019), Mr Lehrmann had sexual intercourse with Ms Higgins;
(2)without Ms Higgins’ consent; and
(3)knowing Ms Higgins did not consent.
It is notorious that in many rape trials, the forensic battleground is whether the Crown can prove beyond reasonable doubt the second element (non-consent element) and the third element (knowledge element). In recent times, law reformers have focused attention on whether it is appropriate that consent to sexual activity must be communicated by words or actions, such that there is a responsibility to take steps to find out whether the other person is consenting. This has spurred some recent legislative change: see, for example, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW).
It is beyond the scope of this judgment to discuss these changes, but as the Victorian Law Reform Commission recently put it in its report Improving the Justice System Response to Sexual Offences: Report (September 2021) (at [19.13]), some of the features of the criminal justice system:
make sexual offences more difficult to prove in court. By their nature, sexual offending often happens in private, without other witnesses. The accused does not have to give evidence because they have a right to silence. For rape, the need to prove there was no consent means that many cases will end up focusing on the complainant.
What is notable about this civil case, and the criminal case that preceded it, is that by reason of Mr Lehrmann’s forensic position to contest the establishment of the first element (that sexual intercourse occurred), he has not engaged directly (through challenging the Crown case at the criminal trial or by way of evidence before me) with the reality and appreciation of consent.
Specifically, Mr Lehrmann has advanced an account that he came back to the Ministerial Suite accompanied by Ms Higgins for them to then go their separate ways: not only was there no sex, but no intimacy of any kind.
Below I explain why this aspect of Mr Lehrmann’s evidence is stuff and nonsense, but for present purposes, this conclusion makes it necessary to point out that in general, disbelief of one witness’s account does not establish the contrary, or that a witness giving a contrary account must be believed: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 (at 385–386 [60] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
Of course, if I am ultimately unable to make a finding one way or another as to what actually happened, it is open to decide the issue on the basis that the party who bears the burden of proof on this issue (that is, the respondents) have failed to discharge their burden: Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 (at 955–956 per Lord Brandon, Lords Fraser, Diplock, Roskill and Templeman agreeing). Relatedly, and importantly, given my rejection of Mr Lehrmann’s account of what went on, it must be borne in mind that a civil onus of proof is not discharged by mere disbelief in opposing evidence (see, for example, in the context of a criminal onus, Liberato v R (1985) 159 CLR 507 (at 515 per Brennan J)).
E.7 Multiple Available Hypotheses and Onus
Related to the last point, it is also necessary to consider the existence and cogency of other hypotheses open on the evidence.
Recently, in Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391, Perram J, in an unusual circumstantial case (and with apologies to those, like me, who thought that algebra would not be involved in this case) observed (at [21]):
Where there are only two competing hypotheses that between them account for the universe of possibilities open on the evidence, a court’s satisfaction that one is more likely than the other will entail that the occurrence of the fact supported by the more likely hypothesis is proved on the civil standard. Whilst it is important not to approach the civil standard in an excessively arithmetical way in terms of numeric probabilities it can be useful to do so to illustrate some consequences in a circumstantial case where multiple hypotheses are in competition with each other. For example, where there are only two competing hypotheses and one is more probable than the other then it must follow that the more likely one is more likely than not. (More formally: if P(A)>P(B) then since P(A)+P(B)=1 then one may validly infer that P(A)>1/2.) But the logic of this breaks down where there are three or more competing hypotheses. If P(A)>P(B)>P(C) then the fact that P(A)+P(B)+P(C)=1 does not warrant the conclusion that P(A)>1/2 as will be seen if P(A)=45%, P(B)=30% and P(C)=25%. Thus the court will only be satisfied that a fact is established if the hypothesis supporting it is more likely than all of the others considered together (i.e. P(A)>(P(B)+P(C))). In particular, the mere fact that one of the hypotheses emerges as more likely than each of the others will not suffice, it must be more likely than all of them.
I conclude from this and her other evidence that Ms Smithies not only turned her mind to the issue as to whether Ms Wilkinson should give the speech in the terms it was given, but it is also apparent she: (1) actively considered how the content of representations made by Ms Wilkinson may or may not be “prejudicial” to the assessment of the credit of Ms Higgins in the pending criminal trial; and (2) gave the advice in order to ensure Ms Higgins’ credibility was not undermined by speculation Ms Wilkinson was wavering in her belief as to the truth of the accusation of rape.
At the very least, she must have known the speech, when broadcast in the ACT, would involve a prominent figure (just endorsed and acclaimed by her professional peers), making comments relevant to the guilt of an accused when he was facing an imminent jury trial for a serious offence exposing him to the prospect of a significant gaol sentence, being a trial in which the prominent figure was proposed to be called in the Crown case. She also knew that the speech amounted to “endorsing the credibility of the complainant” and was “lending credence to the representation of the complainant as a woman… whose story must be believed” (T2616.41–44).
For reasons which defy commonsense, Ms Smithies thought Ms Wilkinson faced a binary choice: to continue to endorse the credibility of the complainant in a pending sexual assault trial; or to act in a way that would be perceived as “wavering” in supporting her credibility. It appears it did not occur to her that there was another obvious and far more responsible option: merely saying thank you, or making an anodyne speech which did not say things such as “the truth is, that this honour belongs to Brittany” and having a Network star and witness endorse the complainant’s “unwavering courage” in accusing Mr Lehrmann of rape.
As an experienced media lawyer, Ms Smithies should have been alive to the concept of sub judice contempt of court and that it can occur when a publication, as a matter of practical reality, tends to interfere with the course of justice in a particular case: John Fairfax & Sons Pty Ltd and Reynolds v McRae (1955) 93 CLR 351. The tendency to prejudice proceedings is assessed objectively having regard to the nature of the material and all the circumstances. The tendency must be clear, and there should be a substantial risk of serious interference: Hinch v Attorney General (Vic) (1987) 164 CLR 15; Attorney General v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 (at 368–369 per Street CJ, Hope and Reynolds JJA); Director of Public Prosecutions v Wran (1987) 7 NSWLR 616 (at 626 per Street CJ, Hope, Glass, Samuels and Priestley JJA).
When the balloon went up following the speech, leading to the Chief Justice in R v Lehrmann (No 3) making findings as to the significant prejudice occasioned by representations going to the credibility of the complainant being “so widely reported so close to the date of empanelment of the jury”, it is little wonder that Ms Smithies and Network Ten became very concerned about contempt. It is also unsurprising that thought was given to limiting the perceived damage, including by consideration being given to not appearing in Court to proffer an apology and advice being taken from experienced senior counsel (who had publicly remarked the speech was ill-advised) as to how to best mollify the evident concern of the Chief Justice.
The approach taken by Network Ten was then carefully considered and resulted in a letter being sent to her Honour’s Associate, which although using words such as “profound regret” and “apology”, when closely parsed, is directed at regret for the consequences that ensued, and not for the fact the speech was given. According to Ms Smithies, it amounted to an apology for things for which Network Ten bore no responsibility. It was not disclosed to the Chief Justice that Ms Wilkinson gave the speech based on considered advice, nor that it was given for the specific purpose now explained by Ms Smithies and that Network Ten’s Chief Litigation Counsel continued to stand by the appropriateness of the giving and content of the speech.
The conduct of Network Ten through its employees in procuring Ms Wilkinson to give the speech in the form it was given, for the reason it was given, was grossly improper and unjustifiable. It was conduct apt to cause disruption to the criminal justice system and, without the Chief Justice making the orders she did, could have imperilled Mr Lehrmann’s right to a fair trial.
During his cross-examination, the following evidence was given by Mr Lehrmann (T514.13–34):
You heard the Prime Minister refer to Ms Higgins as having the “courage to stand”. Do you remember that?---In his stupid Parliament speech, yes.
…And “the terrible things that took place”; he apologised to her for that?---Yes.
And the leader of the opposition also:
…pay tribute to the courage of Brittany Higgins, who is with us today.
?---Yes, and a number of party leaders and other Labor party front benchers, yes.
And the next day was the Press Club speech over which you sued the ABC in early this year. Did you hear that speech?---Yes.
And is it correct that you heard that, during that speech, Ms Higgins broadcast – sorry, Ms Higgins recounted her allegations against you?---Yes.
And that was a few months before your trial was set to be heard?---Yes.
Senior counsel for Ms Wilkinson, relying on these events, said in closing submissions that I ought not assume people watch the Logies, and that there was no evidence that anyone in Canberra who would have been in the jury pool did watch them (T2283.23–26) and then, presumably more seriously, submitted (T2284.25):
We say, your Honour, in light of the history of the matter, and the fact that my client had said such things about Ms Higgins in the past, it is – it was a drop in the ocean, having regard to everything else that was online about Mr Lehrmann, the Press Club speech, the Prime Minister’s speech in Parliament, Mr Albanese - - -
I accept that senior politicians used the protection of absolute privilege to make representations which had the effect of endorsing the credibility of a complainant and prejudging that a “terrible” thing had taken place, despite an upcoming jury trial of an Australian citizen entitled to the presumption of innocence. To similar effect, senior counsel for Ms Wilkinson also cross-examined on a report of the Australian Human Rights Commission, Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Ex R54), of 30 November 2021, which notwithstanding Mr Lehrmann had been charged three and half months earlier and was scheduled to stand trial in 2022, stated in the Commissioner’s Foreword:
The global #MeToo movement and associated momentum for reform has seen numerous brave women publicly sharing their experiences of workplace violence and harassment. In February 2021, Brittany Higgins courageously shared her experience.
(Emphasis added)
It is beyond the scope of these reasons to characterise these public comments while a criminal trial in relation to the complainant’s allegations was pending, but however one describes them, they did not later give members of the media, including Network Ten, open slather to pay no regard to an accused’s fundamental common law rights to a fair trial. The fact that others in positions of power made (much earlier) pre-trial comments endorsing Ms Higgins’ courage and thus necessarily endorsing her credibility in making the rape allegation may, however, be relevant to the extent of aggravation caused by the Logies speech, in that Ms Wilkinson says she merely repeated what had been said by others in public positions and so any incremental aggravation to Mr Lehrmann was minor, a matter to which I will return.
Ms Wilkinson then makes the following submissions:
(1)“the judgment [of the Chief Justice] was irregular by reason of the Chief Justice accepting (what was incorrect evidence) from the DPP and by denying Ms Wilkinson natural justice” and that to rely upon factual findings of McCallum CJ, contrary to s 91(2) EA, “based on the evidence before her not currently before this Court … would lead this Court into error”;
(2)a “support or belief from a public figure in the guilt of an accused more than one week before trial” would not have the necessary tendency to affect the juror pool who would be “given strict directions in light of existing extreme publicity and notoriety and the numerous articles still online”;
(3)Ms Wilkinson’s “unchallenged evidence” is that she was asked by Network Ten through Ms Thornton to give the speech in early June and she “was placed in an invidious position of balancing her concerns (raised first in her email on 3 June 2022) with her obligations to comply as an employee with directions from her employer” and she relied “on the advice given to her by her employer’s lawyers and the judgment of those to whom she reported”.
I do not regard these submissions as helpful.
The notion the Chief Justice denied Ms Wilkinson natural justice is wholly misconceived. Although her Honour made adjectival factual findings based on the evidence before her (and I am required to make any findings on the basis of the evidence adduced in this proceeding), as is evident from even a cursory reading, the determinative reasoning of her Honour in vacating the hearing date was that (pinpoint references below are to Lehrmann (No 3)):
(1)“the combination of the speech and the posts amounted to Ms Wilkinson endorsing the credibility of the complainant who, in turn, celebrated Ms Wilkinson’s endorsement of the complainant’s credibility” (at 280 [25]);
(2)“the distinction between an untested allegation and the fact of guilt has been lost” and “Ms Wilkinson’s status as a respected journalist is such as to lend credence to the representation of the complainant as a woman of courage whose story must be believed” (at 280 [29]);
(3)“the prejudice of such representations so widely reported so close to the date of empanelment of the jury cannot be overstated. The trial of the allegation against the accused has occurred, not in the constitutionally established forum in which it must, as a matter of law, but in the media” (at 280 [30]); and
(4)the “public at large has been given to believe that guilt is established” (at 280 [30]).
This reasoning meant the order to be made and the result was not dependent upon what advice had been received as to the making of the speech and from whom (although the inaccurate impression given to her Honour the speech had been made in the teeth of advice from the DPP, no doubt made the action in giving the speech more inexplicable). Ms Wilkinson was not a party and had no right to appear, but if Ms Wilkinson was aggrieved by a finding of the Court, it was open for her to approach the Court to seek leave to appear as a person affected by a finding to correct the record and seek the specific finding as to her ignoring advice be withdrawn. For her own reasons, she did not do so after having been talked out of it by Network Ten. On no view of it, does this amount to a denial of natural justice, or, more specifically, a denial of procedural fairness.
The submission that support or belief from a public figure in the guilt of an accused more than one week before trial televised nationally would not tend to affect the juror pool is unsustainable and reflects a worrying continued insistence by Ms Wilkinson to understate the seriousness of what occurred notwithstanding the vacation of the hearing date which was, for the reasons explained by her Honour, inevitable in the circumstances.
I do not accept the implicit premise in the submission now advanced by Ms Wilkinson (on the basis of “unchallenged” evidence) that she was somehow vexed and reticent in making the speech upon receiving the award at the Logies and she “was placed in an invidious position of balancing her concerns … with her obligations to comply” with lawful directions by her employer. The notion of reluctant Ms Wilkinson being forced by her employer to make the speech does not ring true at all.
Although I regard Ms Wilkinson’s conduct in giving the speech to be improper and unjustifiable, she has less culpability than those encouraging her to make the speech. Ms Wilkinson at least had the insight to seek advice and might not be expected to have the objectivity of others within Network Ten given the fact that she had, as Ms Smithies noted, become part of the story.
Although these findings are sufficient for the purposes of identifying the actual and attributed conduct of both respondents as an aggravating circumstance, I cannot responsibly leave this topic without remarking that the most disturbing aspect of this part of the case is the insouciance of Ms Smithies as to the real criticisms made by the Chief Justice and the repeated fastening upon Mr Drumgold’s separate failure as some form of excuse.
There has been ample time for mature reflection and yet there is no recognition, even now, that the speech could have undermined the administration of justice and caused it to be disrupted. It is one thing to make a mistake, even a serious mistake – after all, to err is to be human. But I regret to say that the continuing lack of insight by Ms Smithies as to the inappropriateness of her conduct related to the speech reflects, in my view, a lack of proper appreciation of her professional obligations as a solicitor and her paramount duty to the Court and the administration of justice: see r 3.1, Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW).
M.5 Conclusions on Ordinary Compensatory Damages
Without losing sight of the fact that an assessment of damages is an intuitive, evaluative process conducted at large, but within the parameters of Pt 4, Div 3, I will now proceed to deal with various matters of particular relevance to the assessment of damages being: (1) the severity of the defamatory sting; (2) the purposes of an award of damages in defamation, being consolation for hurt to feelings, recompense for damage to reputation and vindication; and (3) the extent of publication. In doing so, I will deal with Mr Lehrmann’s submissions summarised at Section M.3 above.
I Severity
The nature of the imputations speak for themselves and there is no need to elaborate on them, save to note that the defamatory publications convey an allegation of grave criminal misconduct.
II Hurt to Feelings
Although Mr Lehrmann contends that any young man accused of rape on national television would be upset, frightened, and angry, after having the opportunity of observing him closely in the witness box, it seemed to me that where his real hurt emerged was when he gave evidence as to how the conduct of others had prejudiced his ability to have a fair trial. Certainly, this included the improper conduct of the respondents relating to the Logies speech, but extended to those who made statements which were implicitly but necessarily premised on his guilt, and the headlong rush to judgment by those who unthinkingly obliterated “the distinction between an untested allegation and the fact of guilt” (to use the words of McCallum CJ).
He also was visibly angered and upset about aspects of the conduct of the Director of Public Prosecutions during his criminal trial and, after trial, when Mr Drumgold implied, while making a public declaration praising Ms Higgins, that he personally believed her complaint was true and therefore Mr Lehrmann was guilty, even though the law continued to presume his innocence. Wholly unjustifiably, he also seemed to harbour resentment at the way in which the Chief Justice summed up the case to the jury.
To a disinterested observer conscious of the importance of the rule of law, his white-hot anger as to his right to a fair trial and the presumption of innocence being undermined by persons presuming his criminal guilt and then expressing their conjecture publicly before the allegation was tested (and later when it was to be no longer tested in the criminal justice system), is perfectly understandable. But from my observation, this reaction seemed to be qualitatively different to the evidence he gave as to his subjective reaction to the publication of the imputations as to the underlying allegation of rape. This is likely to do with the fact that on the premise I am calculating damages, he well knew he had sex with Ms Higgins, which gave rise to at least some questions as to consent (remembering that we are presently dealing with a counterfactual).
Mr Lehrmann was curiously phlegmatic when giving evidence as to the publication of the rape allegation itself, although I recognise it is important not to make too much of such demeanour assessments. As I have noted elsewhere (Kumova v Davison (No 2) (at [296])), ordinary human experience reveals there are people who express themselves in an understated way, and others who emote freely and are otherwise less restrained. This does not mean that the subjective hurt of the former person is any less than that of the latter. What matters is the genuineness of the evidence as to hurt to feelings, which is best assessed by the evidence-in-chief on this topic being given viva voce and in person. What was notable here, from close observation of the oral evidence, was the difference in demeanour between Mr Lehrmann’s evidence as to his reaction to the publication of the imputations, and his manifest distress when speaking of the actions of those who acted without regard for his right to a fair trial.
My task is to decide all disputed questions of fact, including the extent to hurt to feelings, according to the evidence adduced, not according to some speculation about what other evidence might possibly have been led: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (at 412 [165]–[166]). It would be wrong to draw any adverse inference from the absence of any witness on this topic, but ultimately this is a matter where Mr Lehrmann was required to prove the extent to hurt to feelings to my reasonable satisfaction, and his evidence was less than compelling and, unusually, there was no evidence from family members, friends or others about his contemporaneous or ongoing hurt to feelings or as to aggravation (cf Russell (No 3) (at [484]–[488])).
A solatium for injured feelings should form a component of the damages, but it should not be significant, given the lack of connexion between the respondents’ wrong and what I have found to be the real cause of most of Mr Lehrmann’s distress and hurt. In making this finding, I am not ignoring the Logies’ speech, which will be dealt with below.
III Damage to Reputation
The real issue in the present case is the overriding need to ensure an appropriate and rational relationship between the actual harm sustained and the damages awarded.
It is in this context that one comes to two issues that assumed importance in this case: (1) how one isolates any damage to reputation caused by the publication of the Project programme from the Maiden article and subsequent events by which Mr Lehrmann received a tsunami of adverse publicity damaging his reputation (which might be termed an issue of causation); and (2) the conduct of Mr Lehrmann directly relevant to his reputation in the part of his life the subject of the defamatory publications.
Causation
A complication in this case is that before broadcast on 15 February 2021, the accusation had been conveyed to those who, without Mr Lehrmann being named, could identify him. As Mr Sharaz had planned, Opposition members of Parliament had referred to Ms Higgins and were pressing members of the Government on her serious allegations just after lunch – at around the same time Mr Sharaz’s efforts in disclosing Mr Lehrmann’s name to members of the media were bearing fruit, with Ms Lewis from The Australian contacting Mr Lehrmann’s employer and precipitating his suspension from his position.
A further complication is that the reputational damage caused by the publication of the Maiden article, or the Project programme, came to be swamped by the avalanche of reputational damage after Mr Lehrmann was charged and named publicly. I accept the submission of the respondents that this was when the real damage to Mr Lehrmann’s reputation was caused.
It follows from these complications, that the task of identifying causally related reputational damage caused by the Project programme is not straightforward.
That said, as Mr Lehrmann correctly notes, the Project programme drove the allegations home on 15 February and contained the emotional account of Ms Higgins. There is some compensable damage caused by the broadcast (in the sense the broadcast materially contributed to the first wave of reputational damage) and for which the respondents are responsible, including some shunning of Mr Lehrmann manifested in his exclusion from chat groups (including Ex 11).
Conduct of Mr Lehrmann
But before we leave reputational damage, as explained above, it is necessary to have regard to the evidence of the Relevant Misconduct of Mr Lehrmann, being conduct directly relevant to reputational damage. This conduct does rationally bear upon Mr Lehrmann’s true reputation in the relevant sector and thus is of some significance in fixing upon a rational assessment of damages.
At this point it is worth referring to the “concession” of senior counsel for Mr Lehrmann (T2444.37–38), relied upon by the respondents, that if the Court were satisfied sexual activity occurred, then Mr Lehrmann’s conduct of this proceeding would amount to an abuse of process. In isolation, this exchange may indicate that a “Joseph v Spiller” type approach was conceded to be open depending on my findings of fact, but when Mr Lehrmann’s submissions are considered as a whole, it reflects an agreement that the principled way of dealing with the Relevant Misconduct is the approach explained by Wigney J in Rush (No 2) (at 573 [32]–[33]).
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.
Any other instances of conduct relevant to his true reputation relied upon by the respondents (such as behaving like a blackguard to his girlfriend and leaving Ms Higgins as he did) are also unworthy, but pale by comparison.
As to the final aspect of the Relevant Misconduct, being the provision of information protected by the Hearne v Street undertaking to a third party, it is necessary to deal with an aspect of the submissions of Network Ten that is said to bring that aspect of the conduct into a different, and serious category. Dr Collins submits a raft of information was provided to the Spotlight programme for publication with the intention of intimidating proposed witnesses in this proceeding. Although Mr Lehrmann’s provision of some information to the Spotlight programme was seriously wrong, I am far from convinced it was done for the purpose of intimidating witnesses. Ms Higgins had been held up by numerous public figures as a woman of courage; she had been hailed widely for her criticism of what she asserted was an unjust legal system; and, with the assistance of her supporters, had shaped the public relations narrative. It is likely that Mr Lehrmann’s motivation to “light some fires” (Ex R43) was to tell his (factually wrong even on the counterfactual) side of the story and try to expose what he thought had gone wrong in the criminal justice system. It was his attempt to counter a narrative hostile to him and that was already extant. Part of his conduct in pursuit of this end reflects very poorly upon him, but the respondents’ characterisation is inaccurate.
The consequence of all this is that the actual damage proven to be occasioned to Mr Lehrmann’s reputation by the broadcast could only be slight in respect of the defamatory publications unsuccessfully defended, because he is only entitled to be compensated for the reputation he deserves.
IV Extent of Publication
This is also a matter of some significance in this assessment.
As would be evident as to my findings as to identification (see Section D.4 above), this is a case where the rumours causing relevant persons to identify Mr Lehrmann had commenced when the Maiden article was published, and the Project programme would likely have involved a further, albeit more graphic, publication to the relatively limited class of persons able to identify Mr Lehrmann reasonably.
M.6 Conclusions on Aggravated Damages
I have found one aspect of the respondents’ conduct to be improper and unjustifiable. Insofar as Network Ten is concerned, its conduct in relation to the Logies speech given by Ms Wilkinson was egregious.
But it does not follow axiomatically that this conclusion leads to an augmentation of the damages to be paid to Mr Lehrmann.
Justice Brennan in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 (at 471) explained that an award of exemplary damages “is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again”. I am, however, prevented from making an award of exemplary damages by dint of s 37 of the Defamation Act. Punishment for the wrongful conduct of Network Ten and notions of specific deterrence are inconsistent with a compensatory award and, as Hunt J explained in Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 (at 496):
The distinction between compensatory damages and punitive damages cannot be overemphasized. Compensatory damages are given to compensate the plaintiff for the harm done to him by the publication of the matter complained of; aggravated compensatory damages (which are also known as merely “aggravated damages”) are given to compensate him when that harm has been aggravated by the defendant’s conduct. Punitive damages, on the other hand, are given to punish the defendant and relate only to the defendant’s conduct; they do not depend upon any effect of that conduct on the harm of the plaintiff.
Mr Lehrmann is not automatically entitled to an award of aggravated damages even though a necessary condition for the making of such an award has been satisfied. He must still prove that his harm has been exacerbated by the respondents’ improper and unjustified conduct.
There has been some debate as to the precise justification for aggravated damages at common law. The Law Commission of England and Wales in its report, Aggravated, Exemplary and Restitutionary Damages, Law Com No 247 (1997) (at [1.9]) suggested the label “damages for mental distress” should be used instead of the misleading phrase “aggravated damages” and remarked that once it is appreciated that aggravated damages are concerned with circumstances in which the victim of a civil wrong may obtain compensation for mental distress, a more coherent perception, and so development of, the law on damages for mental distress should be possible.
But despite these debates as to the underlying justification of aggravated damages, insofar as the common law of Australia is concerned, the basis of aggravated damages was explained by Hodgson JA in State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 (later approved by Tobias AJA, with whom Meagher JA, Bergin CJ in Eq agreed in MacDougal v Mitchell [2015] NSWCA 389).
In Riley, Hodgson JA noted that having assessed the appropriate level of damages, the compensatory nature of aggravated damages leaves room for the award of further compensation without incurring the risk of double counting and noted (at [131]) that the principled explanation for this is that:
[it] is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.
His Honour added (at [133]) that there must be a justification for this approach, which he acknowledged was one of degree so that “the worse the defendant’s conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going”.
In the end, however, the fundamental point is that aggravated damages are compensatory damages.
As with other aspects of Mr Lehrmann’s case on compensatory damages, a complication arises: although he was initially extremely distressed and hurt by the conduct of the respondents in undermining his right to a fair trial, this only lasted for a short period and has had no ongoing effect. Mr Lehrmann gave evidence that it became evident soon after the speech that Ms Wilkinson, ironically, did him a favour by making the Logies speech.
Although denying that the Logies speech saved him from conviction (T526.38–42), Mr Lehrmann said in the Spotlight programme that the adjournment occasioned by the Logies speech fortuitously allowed his legal team sufficient opportunity to “dig deeper … go down the rabbit holes … find the golden nuggets” with the potential result that “if they had not done what they did [it] would have been catastrophic” (T526.16–36). It follows that in his opinion, the improper conduct quickly redounded to his considerable forensic advantage.
Although I am satisfied that Mr Lehrmann was justifiably angry and hurt at the giving of the Logies speech (as would any accused when the conduct of others may adversely influence the disposition of likely jurors), and the giving of the speech did serve to increase his subjective hurt, the evolution of his state of mind to the recognition that the Logies speech significantly reduced his chances of conviction, diminishes the practical and ongoing effect of the aggravating conduct.
M.7 Quantum
Despite both being compensatory in nature, where applicable, in relation to post-1 July 2021 publications, s 35(2B) of the Defamation Act requires an award of aggravated damages to be made separately from ordinary compensatory damages. That provision does not, however, apply in this proceeding and I will proceed to make a single award as has been the traditional common law approach.
Mr Lehrmann would have been entitled to more than a nominal award but as the above analysis demonstrates, his award of ordinary compensatory damages would be very modest. Hence any augmentation of damages occasioned by the aggravating conduct, comes from a very low base. If it had been necessary to assess damages in favour of Mr Lehrmann, the appropriate and rational relationship between the actual harm sustained and the damages awarded would lead to total damages of $20,000.
N CONCLUSION AND ORDERS
Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.
As I stressed at the commencement of these reasons, there is a substantive difference between the criminal and civil standards of proof. To make the grave finding Mr Lehrmann raped Ms Higgins, it is unnecessary for me to reach a level of certainty indispensable to criminal liability. The respondents have not won because I can exclude all other possibilities as to what happened, but because they have proven that such possibilities that are open on the evidence, both individually and collectively, are unlikely; and further because I am satisfied that the evidence provides an appropriate basis upon which to reach a conclusion. Put another way, they have proven that the whole of the evidence, properly analysed, establishes a reasonable satisfaction on the preponderance of probabilities of facts sufficient to make out the substantial truth defence.
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.
At first glance this might be thought to be an odd outcome. But if one leaves aside superficial reactions and appreciates the high value the common law has always placed upon the importance of securing against the conviction of the innocent, it is not at all peculiar. Ensuring an accused is deprived of their liberty only if the prosecution can exclude all reasonable hypotheses consistent with innocence, has been as elemental to our criminal justice system as the presumption of innocence and the related “golden thread” running through the criminal law that the prosecution bears the burden of proof: Woolmington v DPP [1935] AC 462 (at 481–482 per Viscount Sankey).
Mr Lehrmann is not entitled to the vindication of his reputation. The respondents, however, are entitled to vindication by the entry of judgment on the statement of claim.
But even though the respondents have legally justified their imputation of rape, this does not mean their conduct was justified in any broader or colloquial sense. The contemporaneous documents and the broadcast itself demonstrate the allegation of rape was the minor theme, and the allegation of cover-up was the major motif.
The publication of accusations of corrupt conduct in putting up roadblocks and forcing a rape victim to choose between her career and justice won the Project team, like Ms Maiden, a glittering prize; but when the accusation is examined properly, it was supposition without reasonable foundation in verifiable fact; its dissemination caused a brume of confusion, and did much collateral damage – including to the fair and orderly progress of the underlying allegation of sexual assault through the criminal justice system. To the extent there were perceived systemic issues as to avenues of complaint and support services in Parliament, this may have merited a form of fact-based critique, not the publication of insufficiently scrutinised and factually misconceived conjecture.
I will direct that an outline of submissions on costs be filed and then will list the matter to hear and determine all outstanding issues, including the residuum of the issues arising on the cross-claims.
I certify that the preceding one-thousand and ninety-eight (1098) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 15 April 2024
ANNEXURE A
ANNEXURE B
ANNEXURE C
ANNEXURE D
ANNEXURE E
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