Was Lehrmann’s presumption of innocence left in ‘lions’ den’?

Andrew L. Urban.

It was over dinner that a former senior Australian Federal Police investigator brought it up. A question no-one appears to have considered.

A small restaurant on Sydney’s north shore. A black wagyu steak. A bottle of Grand Merlot. A conversation that turned to Bruce Lehrmann and Justice Michael Lee’s judgement. In particular, his frequently and approvingly quoted remark, the first line in his Conclusions: “Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.”

What a great quote, went the media, colourful, illustrative … yea, BUT …

… it puts us in mind of the less frequently quoted (but more criticised) remark by former ACT DPP Shane Drumgold immediately after the abandoned criminal trial, to the effect that he was confident he could get a rape conviction against Lehrmann. Indeed, that seems to be the “lions’ den” from which Justice Lee thinks Lehrmann escaped. Presumption of innocence be damned.

During the 2023 Sofronoff inquiry, counsel assisting, Erin Longbottom KC, asked Drumgold about his December press statement where he lauded Higgins’ bravery and dignity after announcing he would not retry Lehrmann.

Longbottom: “Did you turn your mind to the impact that statement might have on Mr Lehrmann, who was entitled to the presumption of innocence?” Drumgold admitted coyly, “Possibly not as much as I should have.”

The Sofronoff report found Drumgold’s speech after the trial collapsed implied he “personally believed Ms Higgins’ complaint of rape was true and that, as a consequence, Mr Lehrmann was guilty”.

“The comments were improper and should not have been made,” the report states.

“It was not necessary for Mr Drumgold to express his views on the prospects of conviction at the time of discontinuance.

“Nor was it his function to identify himself with the complainant to a degree that he made a public statement of support.”

Perhaps it wasn’t his hat that was left in the lions’ den, but the presumption of innocence. We are entitled to infer from Lee’s ‘lions’ den’ quip that he, too, regarded Lehrmann guilty to the criminal standard – without the required evidence beyond reasonable doubt.

Here is some context: Chief of Staff Fiona Brown asked Lehrmann what they did after entering the ministerial office and having a drink. Lehrmann answered: “I don’t wish to get into that.” There are a number of different explanations for his answer, which is no doubt 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. He chose one possibility. That Lehrmann had sexual intercourse with a drunken, unconscious or semi-conscious Higgins. Other possibilities are also in play …

For instance, Lehrmann and Higgins may both have privately, unstated, intended or hoped to have (consensual) sex but Higgins fell asleep too quickly. Or he may have found her having vomited on his return from his own office area. Either way, he abandoned the idea and left with Higgins asleep, naked on the couch. (There is no evidence nor a claim that Lehrmann took her dress off.) “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”) According to the evidence, they had been drinking all evening, eventually became amorous, “pashing” at the 88mph bar, as Lauren Gain put it in her testimony, with Higgins agreeing to share an Uber with Lehrmann, skipping happily to join him in the privacy of Minister Reynolds’ suite … That’s the context.

There is much ambiguity in the answer, “I don’t wish to get into that.”

But then, unlike Network Ten, Lehrmann is dead broke, unlikely to be able to mount an appeal to overturn the Lee judgement. It would not have surprised anyone had Lee found he could not confidently assess whether rape had occurred or not.

We’d finished our steaks by the time another element of the Lee judgement came up for us to chew over: let’s call this the ‘cad’ remarks.

At Par 573 of his judgement, Justice Lee presents the scenario on the assumption sex was consensual.

Before setting out my reasons in relation to each element, which ought be considered separately, it is convenient to first consider (and then reject) the notion that if consensual sex took place, then it is likely that Ms Higgins and Mr Lehrmann would have left together. I do not consider this logic to be at all compelling. This is because, on the assumption the sex was consensual, Mr Lehrmann was still behaving dishonourably by having sexual intercourse with Ms Higgins while in a relationship, and his girlfriend was trying to contact him – presumably trying to work out where he was and why he was there at 2:15am. Given he had satisfied himself, and that he knew his girlfriend was awake and was attempting to contact him, calling an Uber and getting out of the Ministerial private office with celerity (and leaving Ms Higgins undressed) is the action of a cad, but is nonetheless explicable.

The assumption is filled with speculation and rejected by Lee himself, but nevertheless contains the observation that Lehrmann is a cad. And a rapist.

Is there a female equivalent of a ‘cad’? Would that be applicable to Higgins for her behaviour in respect of how she treated her instant date, the man who was largely ignored and discarded earlier that evening?

In accepting the rape allegation as made out, Lee reminds us in his judgement, the respondents to the defamation claim are required to prove that Lehrmann had sexual intercourse without Higgins’ consent and knowing Higgins did not consent. It is difficult to accept Lee’s judgement that these were made out by Network Ten and Lisa Wilkinson.

Even Lee had trouble with it: The submissions of all parties were less than helpful in relation to this aspect of the case [Was there a rape?]. This is not a criticism of the barristers but reflects the reality that the respondents say sexual intercourse happened in such a way as to mean it follows axiomatically that there must have been a rape; whereas Mr Lehrmann’s case is that no sexual intercourse took place at all.

Something else happened….which may be why he said “I don’t wish to get into that.”

DISCLOSURE: Andrew L. Urban has been invited to work with Bruce Lehrmann on his book about his experience, in due course. So far, Lehrmann has not confided in Urban regarding these matters.


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4 Responses to Was Lehrmann’s presumption of innocence left in ‘lions’ den’?

  1. Jerry says:

    Any reader familiar with the manner in which a jury was bamboozled , tricked and manipulated into the guilty verdict dumped on Sue Neil-Fraser by the Police,Prosecutor,Judge combine would have to think that the desired guilty verdict would have been achieved for Bruce Lehrmann.

  2. Ann says:

    It is interesting that Justin Quill, the Ch10 Lawyer who gave a press interview outside the Court, made a recent comment about how Justice’s Lee’s statement was similar to a comment he had made to ABC MediaWatch in Dec 2022. See extracts below.

    Judgment 15 April 2024
    1091 Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat”.

    ABC MediaWatch 13 February 2023
    “So, would Bruce Lehrmann really be up for a full-scale trial? Defamation lawyer Justin Quill told us in December:

    Lehrmann suing would be a case of a man going back into the lion’s den to retrieve his hat!

    – Email, Justin Quill, Partner, Thomson Geer Lawyers, 9 December, 2022
    … he would have to give evidence and subject himself and his story to cross examination which he was able to avoid in the criminal matter …
    – Email, Justin Quill, Partner, Thomson Geer Lawyers, 9 December, 2022”

    Quill also stated outside the Court that the case was a warning to other potential applicants who might want to “reinvent history”, make a “quick buck” or try to “con the court” as to their version events. He then referred to how “coming up with a con” might get you through a TV interview, an interview with your bosses or down at the pub with your mates but when you come to the Court and are forensically cross examined, and you can’t “get away with it”. Hmm.. the issues with the Ch 10 “cover-up” narrative don’t seem to have been mentioned.

    And I thought the judgment seemed to rely on evidence such as from a woman described as “compelling” who could not remember leaving the Dock Hotel, arriving at the 88mph Nightclub, whether she had anything to drink at 88mph or how or whether she returned to her own home that evening but seemed to have a clear recollection of hands on thighs and a kiss later described at “passionate” at the nightclub, even though I don’t think BH ever spoke about a kiss at the nightclub. That woman’s good friend (who worked in the same office as BL and was also at The Dock) was one of the first people to speak to BH in the week after the incident. She told the Court BL gave her “bad vibes” which she put down to her “women’s intuition”. 3 x 18 min AFP video compilations of the Dock and Parliament House are up on the Fed Court website so people can make their own judgments on attendees’ level of intoxication that evening.

  3. Garry Stannus says:

    On the question of the requirement of a presumption of innocence, my own view is that such a requirement extends to the judge and to the jury. Whether – in my view – it also extends also to Counsel, is a moot point.

    I do not share the oft expressed view that we citizens, the people in the street, must in some way also afford an accused the presumption of innocence until a guilty verdict is reached.

    To me, the ‘presumption requirement’ is that the trial itself must be heard on the basis that an accused must be treated as if innocent and that a view as to guilt or innocence must be reached subsequently via evidence presented in court and according to principles of fairness … and so on.

    No, the prosecution must build its case and it is the judge’s job to ensure correct and fair procedures are followed. Too often – in my view – the judge takes the ‘Pontius Pilate’ approach … leaving it to Counsel to play by the rules or leaving it to Counsel to be responsible for pointing out errors and unfairness.

  4. Don Wakeling says:

    Just because the civil standard of proof only requires that a fact is shown to be more likely than not, evidence is still required and that evidence has to be more than a mere assertion . Justice Lee has, whether he accepts the criticism or not, stretched his mind to indulge in pure theories of what did or didn’t happen between these two people. He was presented with nothing more than Higgins’ uncorroborated assertion. The rest was his own, very unjustified, and less than professional , speculation.

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