Network Ten, Lisa Wilkinson's conduct not 'justified' despite Lehrmann rape ruling

A Federal Court judge has upheld Network Ten and journalist Lisa Wilkinson’s “truth defence” in the defamation case brought against them by Bruce Lehrmann.

Justice Michael Lee found it was likely Mr Lehrmann raped Brittany Higgins in Parliament House on 23 March 2019. The ruling was handed down in the Federal Court on Monday (15 April).

Mr Lehrmann had sued Network Ten and Ms Wilkinson, stating he could clearly be identified in The Project episode airing Ms Higgins’ allegations, but Ten claimed a defence of truth.

Justice Lee’s findings are based on a reasonable balance of probabilities rather than the criminal standard of beyond reasonable doubt – an important difference, requiring Justice Lee only to be “reasonably satisfied” regarding Mr Lehrmann’s actions.

But he suggested Mr Lehrmann must regret having brought civil action at all.

“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,” Justice Lee said.

“Having escaped the lion’s den, Mr Lehrmann made the mistake of coming back for his hat.”

Justice Lee found Mr Lehrmann had told “deliberate lies” or had “Walter Mitty-like imaginings” about what happened that night, and had no problem “departing from the truth” when it suited.

“Calling Mr Lehrmann a poor witness is an exercise in understatement,” he said.

Ms Higgins was labelled an “unsatisfactory witness” with “general credibility problems”, but Justice Lee found her untruths had a “common thread”.

“By reference to my findings as to the circumstances in which Mr Lehrmann and Ms Higgins found themselves, taken as a whole, [her account] does not strike me as inherently implausible (unlike the account of Mr Lehrmann),” he said.

Justice Lee added her accounts were “consistent with her being a victim of sexual assault … struggling to process what happened, seeking to cope, and working through her options.”

Justice Lee declared while he was “reasonably satisfied” with Ten’s truth defence, that didn’t mean their conduct was “justified” in a broader sense.

“The alleged cover-up [in Parliament House] was the major motif [of the story] … and its deployment meant [Ms Higgins’] account achieved much notoriety and public interest,” he said.

“I have no doubt Mr Lehrmann was identified [by the program].”

Justice Lee said while Ten’s Lisa Wilkinson was “badly let down” by advice on her Logies speech, she conducted herself as a “champion” of Ms Higgins and ought to have known her speech was fraught with danger.

“[She and Network Ten producer Angus Llewellyn] resolved from the start to publish the exclusive story and were content to do the minimum required to reduce unacceptable litigation risk.”

Ultimately, Justice Lee considered Mr Lehrmann’s testimony of what happened inside Senator Reynolds’ ministerial suite an “elaborate fancy” that lacked “coherence”, including the claim he’d returned to the office to work on Question Time folders.

“It is [also] 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,” he said.

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

Justice Lee was “convinced that sexual intercourse did take place”. While not reasonably satisfied Ms Higgins told Mr Lehrmann “no ‘on a loop'”, Justice Lee said she did not consent, being so intoxicated she was unaware of her surroundings before realising Mr Lehrmann was on top of her, performing the sexual act.

“In summary, I consider it more likely than not that in those early hours, after a long night of conviviality and drinking, and having successfully brought Ms Higgins back to a secluded place, Mr Lehrmann was hell-bent on having sex with a woman he: (a) found sexually attractive; (b) had been mutually passionately kissing and touching; (c) had encouraged to drink; and (d) knew had reduced inhibitions because she was very drunk.

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

Justice Lee said that although the truth defence had worked for Ten and Ms Wilkinson, it didn’t justify their behaviour.

“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 [Samantha] Maiden, a glittering prize,” he said.

“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.”

Costs will be determined at a later date.

Upon leaving court, Ms Wilkinson said: “I feel glad for the women of Australia today”, while Network Ten described the finding as a “triumph for truth”.