‘The Lehrmann imbroglio’: The wry observations of Justice Michael Lee

Federal Court Justice Michael Lee’s 324-page decision in Bruce Lehrmann’s high-stakes defamation case against Network Ten and Lisa Wilkinson led with a pithy three-word pronouncement.

“The Lehrmann imbroglio” read the catchwords, a short phrase used by judges to summarise a piece of litigation and aid readers in searching for judgments in databases.

An imbroglio it was. One might also, as Lee had it, consider the case an “omnishambles”, in light of the “unexpected detours and the collateral damage it has occasioned”.

Lee’s lengthy judgment, delivered just days after he heard fresh evidence from a surprise interloper in the form of former Seven Network producer Taylor Auerbach, was replete with sharp observations.

“Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat,” he remarked, in a reference to the former Liberal staffer’s willingness to expose himself to more scrutiny after his ACT Supreme Court criminal trial collapsed in 2022.

It was Lehrmann who opted in February last year to bring a costly and risky defamation case against Ten and Wilkinson after his criminal trial was aborted owing to juror misconduct. He did not face a second trial.

It was Lehrmann who had, in effect, forced the media parties to engage in a de facto criminal trial with a lower standard of proof. They did not blink: they came to court to prove, on the balance of probabilities, that Lehrmann raped Higgins in the Parliament House office of their then-boss Linda Reynolds in March 2019. And they did.

‘Tenuous’ attachment to truth

Lee found Lehrmann had been identified by Network Ten’s interview with Higgins, aired on The Project in February 2021, even though he wasn’t named. It followed that Ten and Wilkinson, then co-host of the flagship current affairs program, had defamed Lehrmann by suggesting he was guilty of raping Higgins. It is an accusation he has consistently denied.

Wilkinson and Ten opted to rely chiefly on a defence of truth, under which they were required to prove to the civil standard – meaning the balance of probabilities – that Lehrmann had raped Higgins. This is lower than the criminal standard of beyond reasonable doubt.

Lee’s findings about Lehrmann were singularly unflattering, though he also regarded parts of Higgins’ evidence as unsatisfactory and said that since 2021 Higgins had “sometimes told untruths when it suited her”.

“To remark that Mr Lehrmann was a poor witness is an exercise in understatement,” Lee said, adding that the now 28-year-old’s “attachment to the truth was a tenuous one”.

Higgins “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”, he said. Ultimately, however, he found her evidence about the sexual assault “had the ring of truth”.

‘Walter Mitty-like imaginings’

Lee referred in passing to evidence by former Defence Department media adviser Lauren Gain that Lehrmann had told her in March 2019 that he was waiting for security clearance for a role at the Australian Secret Intelligence Service (ASIS).

“I didn’t think he was telling me the truth,” Gain told the court, who added that people applying for those roles would know they shouldn’t discuss their applications. Gain gave evidence that she told a colleague she thought Lehrmann was an “idiot” for making the comment.

Lehrmann has denied the conversation occurred.

Lee said Lehrmann “gave false evidence about a litany of ... matters”, including about why he went back to Parliament House on the night of the sexual assault. Lehrmann had claimed it was to collect the keys to his apartment and to do some work on briefs for question time.

“All these falsehoods, together with his Walter Mitty-like imaginings in skiting to Ms Gain about [ASIS] … demonstrate that Mr Lehrmann had no compunction about departing from the truth if he thought it expedient,” Lee said in a reference to the fictional fabulist Mitty.

‘Convenient’ evidence

The judge also noted that Lehrmann’s evidence that he gained entry with Higgins to Parliament House in the early hours of Saturday, March 23, 2019, and made a beeline to his desk was very neat.

Lee said it was “not lost on me that doing manual marking up on paper with a pen, moving documents around or sticking tabs on paper is perhaps the only work that would not require Mr Lehrmann to log into a computer and leave some form of retrievable electronic record”.

“I do not believe I am being unduly cynical to remark that this strikes me as being convenient,” he said.

No mystery

Lee accepted evidence by Gain that Lehrmann and Higgins had shared a passionate kiss at Canberra nightclub 88mph in the hours before Higgins alleged she was raped. Lehrmann denied that account in court, while Higgins recalled Lehrmann “being handsy with me” at the club.

“Put bluntly, he was a 23-year-old male cheating on his girlfriend, having just ‘hooked up’ with a woman he found sexually attractive,” Lee said briskly.

“Human experience suggests what he then wanted to happen is not exactly shrouded in mystery.”

In a reference to Lehrmann’s claim that he worked on question time briefs relevant to the defence industry ministry, Lee said that “commonsense suggests that it is obvious there was one dominant thought running through the mind of Mr Lehrmann as he was approaching Parliament House, and it was nothing to do with French submarine contracts”.

‘Picayune’ point

Lee also said that he did not regard it as a “picayune” or trivial point that Lehrmann had given untruthful evidence about whether he had access to another source of funds on the night of the rape.

An oddity in the evidence was that Lehrmann’s bank records, produced to the court, showed he spent $16 at The Dock hotel in Kingston, a figure the court heard would not have covered the number of drinks he bought that night, including two for Higgins. He told the court he did not have cash with him.

Lee noted that at “about 9.35pm [on March 22, 2019], Mr Lehrmann handed over a card in payment of a $42.50 charge for a round of drinks”, one of which was for Higgins.

“Despite his persistent representations to both the [Australian Federal Police] and this court that he only had access to the cards in respect of which he provided statements, it is evident this was untrue,” he said.

“This is far from a picayune point. I do not accept that having access to another source of funds ... is a ‘minute detail’ or is something that would have been forgotten.

“Moreover, Mr Lehrmann did not say he may have had access to other funds but could not now recall – he repeatedly denied it.”

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