Lehrmann ‘probably’ recklessly disregarded absence of consent

Andrew L. Urban.

Justice Lee filled 332 pages detailing his judgement in the defamation case of Lehrmann v Network Ten and Wilkinson, with all but three of the multitude of individuals involved subject to criticism in the matter. But only one aspect will be worthy of headlines: he found that sex took place and Lehrmann, on the balance of probabilities, didn’t care whether the heavily intoxicated Brittany Higgins consented to sexual intercourse or not. That’s rape.

Justice Lee surmised that in all probability, Higgins was 13-drinks drunk and lay like a log (in her own words) on the ministerial couch when she awoke to find Lehrmann on top of her in the act of intercourse. Lee didn’t accept her evidence that she asked him to stop.

The one piece of evidence that Lee mentioned as a key factor was a response to a question from Chief of Staff Brown, asking Lehrmann what they did after entering the ministerial office and having a drink. His answer: “I don’t wish to get into that.”

But there are a number of possible different explanations for his answer, which is why Lee emphasised that this is a civil case and he doesn’t need to base his decision on the highest level of proof beyond reasonable doubt, which requires the exclusion of all other possibilities consistent with innocence. His decision is made on the balance of probabilities.

(For instance, Lehrmann may have made an attempt at intercourse but Higgins was too heavily asleep even to manipulate her into position. Or he may have found her having vomited. On Monday, 25 March, notably before Fiona Brown or anyone other than Lehrmann and Higgins working for the Minister knew of the incident, the Ministerial private office was cleaned. As is evident from the contemporaneous records, this occurred by reason of actions commenced as early as 12:40pm on 23 March, involving the Chief of Staff of DPS (who had initially been called while Ms Higgins was still in the Ministerial Suite), as “someone may have vomited in there”) After all, they had been drinking all evening, eventually became amorous, “pashing” as Lauren Gaines put it, with Higgins agreeing to share an Uber with Lehrmann, happy to join him in the privacy of Minister Reynolds’ suite …

This, in a nutshell, underscores why the quest for the truth in this case is so elusive. As Lee writes in his introductory remarks:

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.

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 [re Reynolds, Senator Cash and even chief of staff Fiona Brown] 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.

Lee praised Fiona Brown for her conscientious evidence, and he also praised the two security guards on duty that night, for their professionalism.

Everyone else gets an F for fail, notwithstanding his judgement that Ten have made out the truth defence. Wilkinson gets a mixed judgement, but Ten’s inhouse legal advisor, Tasha Smithers, who told Wilkinson her proposed speech at the Logies was good to go, was handed a judicial lesson she will no doubt cherish: “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 … 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 judgement in full

DISCLOSURE: Andrew L. Urban has been invited to work with Bruce Lehrmann on a book about his experience.

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20 Responses to Lehrmann ‘probably’ recklessly disregarded absence of consent

  1. Jerry says:

    Well, Moni, the paragons of wisdom found Bruce Lehrmann guilty of rape without bothering about any of that beyond reasonable doubt rubbish. Will this travesty of criminal justice placate the Supreme Wilkinson Court of Channel 10. An outfit that 25 million Australians avoid each night. Brig.Gen.Ripper made the claim. Women folk were stealing men’s precious bodily juices. Paranoid maybe, maybe not . Sometimes seems that way ! Now that Bruce has been found guilty by Channel 10. Maybe he should move somewhere else . The South of France is nice .

    • Roscoe says:

      Maybe the Journalists (Reporters) chided by Justice Lee could find a new home at the ABC. Their left leaning affiliations would not go astray there.
      I have also found that there has been no consideration as to the health of Bruce Lehrmann, post this agonising process, as it appears all media comments point to Higgins state of mind, despite the disparaging references given to her evidence by the Court. Anyone reading the summaries by Justice Lee must come to the conclusion that both Lehrmann and Higgins were less than reliable witnesses.

  2. Jerry Fitzsimmons says:

    Truth be told Andrew it would appear that Bruce Lehrmann, having missed out on a trial by jury, was handed down a verdict that a number of your readers have raised. How could the criminal aspect of “rape” be acceptable in a “defamation” case? Surely a rape is a criminal offence so does Justice Lee’s decision in this case make Bruce Lehrmann a “convicted criminal”? I am struggling to deal with the facts of this case and as so many comments have noted, two people are observed entering the Senators suite, with surely only one motive in mind but only one party is the real culprit in this torrid mess. Yes, Mr Lehrmann may have lied, under oath but didn’t both lie under oath? Why were both not stood down after this balancing of gender powers in the Parliament went lopsided. The actors and props in this saga would have left ‘Shakespeare’ with a dilemma. How best to make money! Is it a good book, even better a good stage play. Even better, have Geoffrey Robertson devise a “Hypothetical” for the tv screens instead of a tax funded trial if there is to be an ‘appeal’. The mind boggles with decisions of law!

  3. Jerry says:

    Thank you Countess Antonia. Sorted that one out. Bruce took one look and said, “To hell with that.” Can the security guard also seek damages ? What a sight to behold ! Certainly not part of his job description. Many a person has choked on their drunken vomit. Countess Antonia has certainly painted a more likely scenario than the judges own fantasy. Those Russian “soirees” sure can get a bit wild ! (from my experience in St.Petersburg) You have helped with a more probable description of the shenanigans of the wee hours . That wedding reception must have been a doozy ! Not Proven, therefore not guilty. (Bruce – not the Count). Bruce should have fallen asleep in a vomitious embrace, after much successful coitus reservatus – leading to a long and happy marriage . A lyrical description of my wedding night !

  4. Moni says:

    I thought this was a Defamation Case? How did it turn into a rape trial? Did Channel 10, Ms Wilkinson etc commit defamation or not?
    The same thing happened with the BRS trial, the Defamation trial move to whether BRS committed war crimes.
    Can someone explain to me how the terms of the trial can just start to encompass anything the lawyers want to pile on in order not to defend the initial accusation, defamation.
    The tactics of “look over here”, “look over there”, this person said this, this person said that, BL lives in a mansion, BL snorts coke, it seems to me as an observer to the justice system, none of this matters as it is not related to the trial which was, did Channel 20etc defame BL. All the Spotlight noise was just that noise. It had nothing to do with the defamation case!

  5. Countess Antonia Maria Violetta Scrivanich says:

    “Daddy’s little girl ” was no vestal virgin . My theory is that both Brittany and Bruce were out on the prowl for sex that night. Neither of them could go home for consensual sex as both shared their homes with other people, so, apart from a hotel or a friend’s place or a car , the best place they thought was the Minister’s office–that’s my theory.
    Who knows what powerful friends Brittany’s father has ? Bruce was probably up against the influence of “the Canberra Mafia “,plus , he was probably still considered an Outsider because, although he had worked in Canberra for some time , he was never one of them as he came from Toowoomba, Qld and was half American .
    Without lots of money , it will probably be impossible for Bruce to appeal the judgement, and, how can he appeal as I believe he lied when he swore on oath that he ” did not have sex with Miss Higgins “. He has “cooked his own goose with his lie “. He should have told the truth , ie that he never ” raped ” her as “I had consensual sex with Miss Higgins “.

    • David Smith says:

      There was NO EVIDENCE of Rape – No Evidence of Sex – This whole matter goes back to the Labor Politicians who used Higgins to destroy the Coalition Government and the Coalition were too stupid to see what was happening – That was the whole reason for the allegations – They didn’t care how many people had their lives destroyed and then we had Higgins Pay Off for doing her bit approved by those now in Government. How much Taxpayer Money has been wasted in this Mess caused by some to get in to Power and then the aftermath. This money could have been better spent on Health Education Roads Etc – Once again there are our Taxes being wasted on Politicians wants instead of the people. The now Frightening part is that the Media now have an open ticket to destroy anyone they do not like or who Polticians don’t like, to destroy them as soon as they have been accused of anything – that could be made up. That is the Scary Part.

  6. Jerry Fitzsimmons says:

    I have said before that no one except the two people who were permitted by security to enter the office/s of Senator Linda Reynolds during the early hours of the 23rd of March, 2019 actually know what occurred.
    Speculation is and will be rife because of that and the timeline of events to report a rape allegation to the appropriately recognised authorities is unclear other than Brittany Higgins having made a complaint to the police and dropping it in April, 2019 “fearful the report would result in termination of her employment”. I am unaware of what was reported to police and dropped during April, 2019! Maybe someone does know! Surely the police know! This reported complaint in the short space of time could surely debunk any speculation that Ms Higgins’s ‘rape’ allegation was made or not made soon after the incident had occurred.
    I am more confused however that a civil case, brought about of course by Mr Lehrmann can deliver a ‘rape’ verdict when he called for this civil litigation in his pursuit to claim damages for defamation by various parties.
    What now becomes of a “rapist” named in a civil court case?

  7. Jerry says:

    Hell hath no fury like a woman scorned !
    Out of the mouths of babes ? Maybe Bruce doesn’t find fat sheilas attractive? Hell bent on having sex . Spanners and screwdrivers – skinny dipping in Lake Burley Griffin. Not Proven! But a ripping yarn for the children from the judge. Sounds like he was getting a bit excited, and wandering off into a fantasy.

  8. Countess Antonia Maria Violetta Scrivanich says:

    I agree a person is supposed to be “innocent until proven guilty “. As a mature woman of the world , this is my theory :–it looks to me that Miss Higgins was not wearing pants or they would show on a slinky , thin, white dress. I have NO sympathy for females who get drunk. What did she expect they would do at Parliament House in the early hours of the morning ? Play chess ? She was seen joyful bouncing around on CCTV going through security, my theory is she was very happy because she was looking forward to the thrill / excitement of more alcohol and consensual sex on the Minister’s couch. Very juvenile behaviour! My theory is that after consensual sex because Bruce could not get her to get up off the couch and leave the building with him because she had fallen into a deep sleep in her own vomit, his only option was to leave her . Perhaps she eventually only claimed “rape”because the security officer found her hours later ( in the words of Mr Justice Lee ) with her ” legs raised, open and , showing her vagina. “, so, she had to make some excuse to the security officer. I think they are both liars. The judge apparently made no mention that Brittany left next day taking the Minister’s designer jacket without her consent . The Minister was rightfully furious ! I deplore the fact that Miss Wilkinson and Channel 10 were in contempt of court , but, won this defamation case. The security officer who let Bruce and Brittany into Parliament should have been, at the very least, been suspended without pay and subject to an enquiry .That’s my point of view. I have personal experience of a drunken, abusive woman and of a top mining executive ( my ex-husband ) who after an orgy with the wives of the men who worked for him, put his feet in a toilet bowl ( “I am just paddling in the Pattawalunga “) and slept on the floor in his own vomit on our wedding -night while I kicked him which failed to wake him ! The judge criticised Bruce as a cad for going home and leaving Brittany in the Minister’s office, but, I believe there is no way Bruce could move her to leave Parliament House . What was he supposed to do ? Stay with her all night surrounded by the aroma of her vomit ? I think Bruce’s mistake was not to tell the truth in the beginning, ie that they had had consensual sex. I am sorry for him. I resent the big pay-out Miss Higgins got at the taxpayers’expense . This has been ‘justice “Canberra -style ! I think the judge is , in my opinion, naif !

  9. Don Wakeling says:

    The civil standard of the balance of probabilities requires the scales of justice to tip even marginally in favour of one of two contested sets of facts. The onus to tip the balance in favour of one party over the other rests upon the party asserting the allegation. That onus, in this case, rested upon the Defendant as truth of the alleged rape was the essence of the defence.
    In deciding whether one version is more probable rather the other, there are not only two possible results. There are, of course, cases where a third alternative exists,namely, the Judge is unable to find that the scales are tipped one way or the other. In that event the party making the assertion fails.
    There is no compulsion for the Judge to stretch or strain a particular view of the facts solely for purpose of making a positive finding.
    Where the facts alleged rest on the flimsiest of evidence, the Judge should constrain himself from guesswork or speculation. If he has to do that just to tip the scales, then that is a leap too far. I think it’s hard not to view Justice Lee’s conclusion as just such a leap.

  10. Jerry says:

    Justice Lee found that sex took place ! What we have here is a failure to communicate honestly without fear of them sheilas. Sex may have taken place. Sex may have not taken place
    This statement has to be based on the highest level of proof , and there isn’t any level of proof. So the verdict is —
    Not Proven !

  11. Jerry says:

    As Chief Justice Liza of the Channel 10
    Supreme Wilkinson Court of Justice has
    delivered her verdict,and there is no need to base her decision on the highest level of proof beyond reasonable doubt ! Does this Wilkinson verdict now make all other courts redundant ? The accused doesn’t have to attend and no more jails. A brave new world of justice delivery !

  12. Jerry says:

    As Chief Justice Liza of the Channel 10
    Supreme Wilkinson Court of Justice has
    delivered its verdict,and there is no need to base this decision on the highest level of proof beyond reasonable doubt ! Does this Wilkinson verdict now make all other courts redundant ? The accused doesn’t have to attend and no more jails. A brave new world of justice delivery !

  13. Owen Allen says:

    I stand corrected my comment Tasmania. They said a probability or worse a possibility, yet the fictional proposal put forward was impossible on the yacht. I always seem to get back to Tasmania; so corrupt it is beyond belief.

  14. Owen Allen says:

    I think the probability was Brittany Higgins wanted Lehrmann, and he declined her, she probably was attracted to him, he resembles her manfriend.
    Owen. I only say this because probabilities are acceptable even in murder cases; ie Tasmania, but I totally disagree with, Australia needs a Criminal Case Review Commission, now. Australian politicians need a cattle prod to rattle their dags, and maybe Nationals who are supposed to be people of commonsense will step up and do what needs to done.

  15. Poppa says:

    If Higgins was raped, her first avenue of securing evidence beyond allegations was to undergo a medical examination and the presence of semen.
    As a highly intelligent person, Higgins failed to do that.
    Which begs the question…WHY NOT IF YOU WERE INDEED A VICTIM OF RAPE?

    IMPO Higgins put herself on the losing side in the “weight of probabilty” argument that no Prosecutor, Judge or Juror could dispute.
    I rest my Case.
    This became a buck-passing, face-saving fiasco at all levels.
    The English Adversarial System is well past its use by date and the Legal fraternity & Judges should be defrocked, disbanded and replaced with a Justice System presenting a return to “Presumption of innocence until factual proof to the contrary is presented” instead of pissing about over “Imagined Possibilities”

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