Lehrmann defamation case against Network Ten fails after judge finds 'substantial truth' to story — as it happened (2024)

Thank you very much for joining us as we brought you live coverage of the judgment in Bruce Lehrmann's defamation case against Network Ten and journalist Lisa Wilkinson.

The case spanned 22 days last year before being unexpectedly reopened two weeks ago to hear an additional two days of evidence.

Here's a summary of the key events that unfolded today:

• Justice Michael Lee found, on the balance of probabilities, that Bruce Lehrmann raped Brittany Higgins at Parliament House in 2019.
• Justice Lee said he was satisfied that it was "more likely than not" that Mr Lehrmann was "so intent upon gratification to be indifferent to Ms Higgins's consent and hence went ahead with sexual intercourse without caring whether she consented".
• This means Mr Lehrmann's defamation claim against Network Ten and Ms Wilkinson has failed, and the evidence had proven the network's substantial truth defence.
• Justice Lee said he would determine the question of damages and costs at a later stage.
• After the judge delivered his decision, Ms Wilkinson made a brief statement outside court saying she hoped that "this judgment gives strength to women around the country".
• Network Ten's lawyer, Justin Quill, said outside court it was "vindication" for the network.
• Mr Lehrmann was met by a significant media scrum outside court but he did not comment on the judgment.
• Barrister Richard Potter said he thought Mr Lehrmann was likely to appeal the civil judgment, but it was unlikely a fresh criminal case would be opened.
• Mr Potter said the additional evidence from former Channel Seven producer Taylor Auerbach, which had led to the reopening of the case, ultimately did not have "any effect" on the outcome.

Barrister Richard Potter has also commented on the "huge risk" that comes with high-profile defamation cases.

"As the judge said, [Bruce Lehrmann] got out of the lion's den when [he] managed to escape criminal liability but he went back for his hat to sue for defamation," Mr Potter says.

"It's always a huge risk, I think, because the civil onus is quite different, the evidence and the discovery ... and material comes out that you never thought would.

"It's always tricky to commence defamation proceedings on the back of something that is a criminal allegation."

Richard Potter, who is a defamation and media law expert, says he doesn't think Taylor Auerbach's testimony had any significant effect on the case.

The former Channel Seven producer's evidence about the Spotlight program's dealings with Bruce Lehrmann had reopened his defamation case against Network Ten and journalist Lisa Wilkinson.

"I think the judge basically let it in just to make sure that everything was heard," Mr Potter says.

"And Mr Auerbach was so driven by his hatred for people at Channel 7 that nothing he could say was accepted.

"And, of course, Mr Lehrmann didn't have a chance to refute it anyway.

"So it was dealt with very quickly in the summary and didn't have really any effect on the case generally."

Barrister Richard Potter has been asked whether there is any likelihood a fresh criminal case will be opened as a result of the civil judgment.

"I really don't know. I would imagine not because it has been abandoned," he says.

Mr Potter is referencing the fact that Mr Lehrmann has already been through a criminal trial in the ACT Supreme Court in 2022.

The criminal trial collapsed due to juror misconduct, leaving no criminal findings against Mr Lehrmann.

"Also, this was on a civil basis, and the judge emphasised over and over again, this is not a criminal case, it's not on a criminal onus," Mr Potter says.

"Therefore, nothing really has changed substantially to warrant some sort of reconsideration [of the criminal trial]."

Barrister Richard Potter says Bruce Lehrmann has the option to appeal Justice Michael Lee's decision.

"I'm sure [Mr Lehrmann] will appeal given that it was an interesting decision to say that [the judge] didn't need to find that Mr Lehrmann had knowledge that [Brittany Higgins] was not consenting. It was that he was recklessly indifferent to whether she was or she wasn't. And that's a different step in a civil proceeding than to a criminal one where you would have to have that knowledge," he says.

"So [the judge] has kind of departed from that properly, I think, in a civil case, but that will be a matter for argument before three appeal judges I think down the line."

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Justice Lee has said he would determine the question of damages and costs at a later stage.

Barrister Richard Potter, who specialises in defamation and media law, explains the difference between this trial and a criminal trial.

He says criminal convictions must be proven "beyond a reasonable doubt", while civil matters like this one are decided on "the balance of probabilities".

"The balance of probabilities ... still has to be almost beyond reasonable doubt because of the seriousness of the allegations," Mr Potter says.

"You have to be reasonably sure that what happened, happened. So even though it's not a criminal standard. It's a high standard of civil standard."

Here are some of the key bits from the written judgment, which you can read in full over here.

Mr Lehrmann told the 2022 criminal trial that had to be abandoned after juror misconduct that he and Ms Higgins had never had sex in the parliamentary office. This is what Justice Lee said in his judgment about that and other possibilities:

All these scenarios have been considered and some rank higher on the likelihood range than others. For example, scenarios that consensual sex occurred, or Mr Lehrmann was not reckless while having non-consensual sex, are more likely than scenarios they just "pashed" and drank whisky and Ms Higgins later just decided to take off her clothes for a lark or because she was feeling close or had a fit of the vapours, or that Ms Higgins "prepared herself" to have sex by lying down naked but fell asleep and Mr Lehrmann departed because of scruples as to not taking advantage of the otherwise willing Ms Higgins. Whether they are fanciful or just unpersuasive, they are all individually far less likely eventualities than what I have found took place

On whether Mr Lehrmann raped Ms Higgins, Justice Lee says:

Mr Lehrmann raped Ms Higgins.

I hasten to stress; this is a finding on the balance of probabilities. This finding should not be misconstrued or mischaracterised as a finding that I can exclude all reasonable hypotheses consistent with innocence. As I have explained, there is a substantive difference between the criminal standard of proof and the civil standard of proof and, as the tribunal of fact, I have only to be reasonably satisfied that Mr Lehrmann has acted as I have found, and I am not obliged to reach that degree of certainty necessary to support conviction upon a criminal charge.

At the conclusion of his judgment, Justice Lee remarks:

Having escaped the lion's 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.

It's worth mentioning that Justice Lee is borrowing the lion's den proverb, it's not his invention.

For those interested in reading more of Justice Michael Lee's quips and full judgment, you can do so here.

He has asked both parties to file submissions as to costs by April 22.

And that's where I leave you, today. Thanks for following our live coverage.

And stay tuned, as other ABC staff take over to keep you updated with all the latest developments.

ABC court reporter Jamie McKinnell was stationed inside the Federal Court during Justice Michael Lee's judgment.

Here's what he had to say.

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In the statement, the network praised Brittany Higgins, saying she "gave a voice to women across the nation".

"Network 10 is considering Justice Lee's 324-page judgment. It is clear however that Australia's defamation laws remain highly restrictive," the statement says.

"When put to the test, it was always our obligation to inform the public of these important social and political matters notwithstanding the challenges presented by these laws and today's judgment vindicates the telling of Brittany's story.

"Network 10 remains firmly committed to honest, fair and independent journalism; to holding those in power to account; to giving people a voice who wouldn't otherwise have one; and to always pursuing without fear or favour, journalism that is firmly in the public interest."

With court reporter Patrick Bell.

Justice Lee's ruling is the first judicial finding on the truth or otherwise of Brittany Higgins's allegation.

As such, it is likely to be viewed as vindication for Ms Higgins.

Lisa Wilkinson has celebrated the judgment, but she and Network Ten did not escape criticism over the episode of The Project.

A reminder, this finding is to the civil standard of the balance of probabilities, and does not suggest Bruce Lehrmann is guilty of sexual assault to the criminal standard.

Justice Lee has invited the parties to make submissions on who should cover the costs, and the case will be back in court to consider that at some stage.

Lawyer Justin Quill, who acted on behalf of Network Ten, said this was a "dismal failure" for Bruce Lehrmann.

"He brought this claim to court for two reasons. One, to make money, and two, to reinvent history.

"For Channel Ten, it's vindication."

He also praised Brittany Higgins's bravery in coming to court and giving her evidence "in the glare of publicity and spotlight".

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Ms Wilkinson made a brief statement outside court.

"I sincerely hope that this judgment gives strength to women around the country," she said.

"I am also so grateful to have had the benefit of my independent legal team led by Sue Chrysanthou whose expertise and wise counsel have been a source of ongoing strength to me for the last 14 months. Thank you.

"Throughout every step of this process, I have been surrounded by the love of my wonderful family as well as incredibly supportive friends and colleagues. I can never thank them enough.

"I also want to say how grateful I am to all the generous members of the public who have approached me almost every single day to express, often through tears, their unwavering support. Thanks very much."

From senior court reporter Elizabeth Byrne in court:

Lisa Wilkinson hugged her barrister Sue Chrysanthou after the court adjourned.

They remained inside the court for a while discussing the judgment.

Wilkinson and her lawyer Ms Chrysanthou left with arms around each other pursued by a media pack.

That's a wrap on the defamation judgment.

Justice Michael Lee said he would determine the question of damages and costs at a later stage.

We've been told Mr Lerhmann has, unsurprisingly, been met by a significant media scrum outside the Federal Court.

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Bruce Lehrmann's defamation case against Network Ten and journalist Lisa Wilkinsonhas officially failed.

Federal Court Justice Michael Lee has found the evidence has proven Network Ten's substantial truth defence.

"[Mr Lehrmann] has now been found, at the civil standard of proof, to engage in a great wrong. It follows Ms Higgins has been proven to be a victim of sexual assault."

Mr Lehrmann had faced a separate criminal trial in the ACT Supreme Court in 2022, which collapsed without a verdict due to juror misconduct.

But now, Justice Lee has found in the civil defamation trial - launched by Mr Lehrmann - where the burden of proof is less that Mr Lehrmann raped Ms Higgins.

Justice Lee mused that:

"Having escaped the lion's den, Mr Lehrmann made the mistake of coming back for his hat."

The Federal Court has found, on the balance of probabilities, Bruce Lehrmann did rape Brittany Higgins at Parliament House in 2019.

Justice Michael Lee has found the pair did have sex in the office of senator Linda Reynolds, that Ms Higgins did not consent, and that Mr Lehrmann was indifferent to whether she had consented.

"Mr Lehrmann raped Ms Higgins," Justice Lee said.

"I hasten to stress this is a finding on the balance of probabilities."

Mr Lehrmann faced a criminal trial in the ACT Supreme Court in 2022, which collapsed without a verdict due to juror misconduct.

This trial is a civil defamation trial where the burden of proof is less and does not lead to any criminal punishment.

Justice Michael Lee said he was not positively satisfied Mr Lehrmann turned his mind to consent.

But, "this is not the end of the matter," he said, before a lengthy explanation of this central issue.

But to summarise, Justice Lee found Mr Lehrmann was reckless in his indifference to Ms Higgins giving consent or not.

"So intent upon gratification ... [Mr Lehrmann] went ahead with sexual intercourse without caring whether or not she consented."

Justice Lee said he found it "more likely than not in those early hours after a long night of conviviality and drinking [Mr Lehrmann] was hell-bent on having sex with a woman he found sexually attractive," and one he knew had reduced inhibitions.

"In his pursuit of gratification he did not care one way or another whether Ms Higgins understood or agreed."

Justice Michael Lee must examine several elements in determining whether Mr Lehrmann did rape Ms Higgins.

He pointed out that Mr Lehrmann observed Ms Higgins very inebriated, after watching her drinking heavily throughout the night, fall over, and struggle to put her shoes on, at Parliament House.

"Although I am not satisfied there was clear verbal protest [from Ms Higgins] ... any suggestion that some form of active resistance is determinative for the question of consent will be discarded."

"Ordinary human experience suggests that sexual assault victims vary in their behaviour."

Justice Lee said Ms Higgins's evidence that she was not fully aware of her surroundings, but then suddenly became aware of Mr Lehrmann on top of her, struck him "forcibly as being credible".

Justice Michael Lee is satisfied that Bruce Lehrmann and Brittany Higgins did have sexual intercourse on the couch.

However, he is not satisfied that during the sexual act, she said "no" on a loop.

"I think it's more likely than not that ... she was passive, as she later said, like a 'log' during the entirety of the sexual act."

It's worth mentioning that with all the upsetting details of this case, if you or anyone you know needs to find support, here are some places to start:

• 1800 RESPECT national helplineon1800 737 732
• Sexual Assault Counselling Australiaon1800 211 028
• Bravehearts (support for child sexual abuse survivors)on1800 272 831
• Blue Knot Foundationon1300 657 380
• Lifeline (24 hour crisis line)on 131 114