Bruce Lehrmann’s legal team, headed by solicitor Zali Burrows, has filed an application for Special Leave to Appeal to the High Court arguing it is a “matter of public importance” after an unsuccessful appeal to the Full Bench of the Federal Court late last year challenging the outcome of the defamation trial against Channel 10 and Lisa Wilkinson, which resulted in Judge Michael Lee’s finding that on the balance of probabilities he had raped Brittany Higgins.
In its exclusive report, The Nightly says “The application argues trial Judge Michael Lee’s initial judgment about the rape was compromised because he did his own research during the case and relied on a string of academic papers about human behaviour in sex assault and rape cases which were not entered into evidence.
“The reference to the research in Judge Lee’s judgment took Mr Lehrmann and his legal team by surprise and they had not been given an opportunity to address them.
“It also argues the Full Court erred in relying on defences in Mr Lehrmann’s appeal which in turn depended on those findings by Judge Lee “that were compromised by his having conducted his own research and having obtained extraneous non-legal material, such that there was not an impartial exercise of judicial power by the primary judge (Lee) in some aspects of the case.”
“Mr Lehrmann has always maintained his innocence.
“The Special Leave application argues the issues of importance to be considered are that proper judicial process was not followed, the impartiality of that process, public confidence in that judicial process, whether research by a judge of non-legal matters complies with proper judicial process, and the scope of a judge’s investigative role, if any, particularly where the research is not raised by the judge with the parties.
“The Special Leave application asks for the appeal to be allowed with costs, that judgment of the Full Court of The Federal Court be set aside; the original defamation judgment be set aside; that there be judgment for Mr Lehrmann on the question of liability; and the matter be referred to a single judge of the Federal Court for assessment of damages.”
The application was prepared by barristers Gabriella Rubagotti and Bryanna Workman.
Lehrmann appealed Justice Lee’s decision to the Full Court of the Federal Court but judges Michael Wigney, Craig Colvin and Wendy Abraham dismissed the appeal.
One of the academic papers referred to in Justice Lee’s judgement is by Associate Professor Jacqueline Horan and Professor Jane Goodman-Delahunty ‘Expert Evidence to Counteract Jury Misconceptions about Consent in Sexual Assault Cases: Failures and Lessons Learned’ (2020) 43(2) UNSW Law Journal 707. The judgment includes: “In that article (dealing with how so-called “rape myths” play a role in jury decision-making), the authors observed (at 710–11):
Legal authorities in Australia, Canada, New Zealand, the United Kingdom and the United States of America accept that sexual assault myths and misconceptions have a potential to exert an undue influence on triers of fact when deliberating about a sexual assault case. To avoid this undesirable influence, courts rely on traditional processes to educate juries so that they can better assess the evidence in a sexual assault trial on a sound factual basis. The two primary mechanisms to counteract the undue influence of sexual assault myths are expert evidence and judicial directions.
Over the last decade, counterintuitive expert evidence has been permitted to educate the jury as to how complainants vary in their behaviour both during and following a sexual assault. Legal practitioners and academics have noted that this provision remains underused, despite the widely acknowledged need for this type of educative intervention.”
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Goodman-Delahunty was also commissioned to write a report for the Royal Commission into Institutional Responses to Child Sexual Abuse. A 2017 story details the concerns from a number of leading academics about some of the research commissioned:
Extract of story by Richard Guilliatt, The Australian September 30, 2017
Child institutional abuse probe’s approach under fire
“The $500 million royal commission into institutional child abuse is promoting “ethically dubious” and potentially harmful ideas about the counselling of sexual abuse victims and the reliability of their testimony, senior experts in the field have warned.
Several leading national and international researchers say the long-running inquiry has adopted a misguided victim-advocacy role and published misleading, inaccurate research that could potentially undermine the $4 billion redress scheme for abuse victims.
Richard Bryant, director of the Westmead Trauma Stress Clinic, said the royal commission appeared to be advocating counselling practices that were potentially dangerous and contradicted guidelines endorsed by the National Health and Medical Research Council.
His concerns were echoed by several experts in psychology, including emeritus professor Don Thomson, chairman of the ethical guidelines committee of the Australian Psychological Society, and Elizabeth Loftus of the University of California Irvine, an internationally renowned memory researcher who described some of the ideas endorsed by the commission as “brain babble”.
Harlene Hayne, vice-chancellor of the University of Otago in New Zealand, said one of the commission’s recent reports contained “a level of error that would probably cause you to fail an undergraduate memory course”.
The criticisms centre on two royal commission reports, one on the proposed compensation scheme, the other examining the effects of childhood trauma on memory…..
…The compensation report draws extensively on the advice of Cathy Kezelman, president of the victim-advocacy organisation the Blue Knot Foundation and co-author of a 120-page counselling guide that advocates “trauma-informed care”, an approach the royal commission adopted. Its central idea is that counsellors focus on their clients’ underlying trauma rather than their presenting symptoms… Professor Bryant said the trauma-informed approach advocated by Dr Kezelman directly contradict best-practice guidelines endorsed by the NHMRC, which encourage counsellors to focus on treating symptoms.
He said her counselling guidelines advocate ethically dubious and potentially dangerous therapy techniques such as helping clients retrieve “implicit memories” that are hidden from consciousness, a technique that caused a rash of false and bizarre reports of child abuse in the 1980s and 90s.
“Does the royal commission really want to advocate policies that are contrary to the NHMRC?” he asked. “If funds are going to be made available for people who have been damaged, I think it would be ethically irresponsible, and would further compound the damage to the victims, if the system promoted or even -allowed psychological services that are not evidence-based.”
Professor Loftus described aspects of the guidelines as “brain babble”, saying if they were widely adopted, “I foresee a world of hurt in Australia’s future”.
Dr Kezelman defended the guidelines, saying they had been endorsed by the Royal Australian and New Zealand College of Psychiatrists and the Royal Australian College of General Practitioners. The chairman of the RANZCP’s faculty of psychotherapy, Michael Daubney, said current counselling methods often did not meet the complex needs of people who had suffered extensive interpersonal abuse in childhood, a gap that trauma-informed care could fill. The royal commission report stipulates it is not advocating any particular counselling model for the compensation scheme, but recommended Dr Kezelman’s organisation be involved in accrediting counsellors for the scheme: she now sits on the advisory panel devising it.”
and…
“The other royal commission report to have attracted strong criticism is a 185-page review of the effects of childhood abuse on memory, which states among its findings that young children are not highly suggestible and do not appear to be more susceptible to misinformation than adults.
Professor Thomson said these assertions are contradicted by decades of research, a view supported by Professor Hayne and Deirdre Brown, from Victoria University of Wellington, two leading child psychology researchers.
Professor Hayne described the report as sloppy, inaccurate and potentially harmful to the cause of abuse victims. She was concerned a government inquiry was promoting such an erroneous, falsely optimistic view of children’s reliability, potentially undermining years of study into their vulnerabilities as witnesses. “Maybe they misguidedly have the view that this is an advocacy exercise,” she said. “I can see how this report could be misused and would lead to greater harm to children, if it leads to the belief they don’t have special needs as witnesses.”
The lead author of the report, Jane Goodman-Delahunty of Charles Sturt University, said she was aware some researchers contested its findings but these reflected robust recent research showing children were not as suggestible as earlier studies had reported. She said one aim of the report was to highlight ways to address the high incidence of “potentially wrongful acquittals” in child sex abuse cases, although it acknowledges the importance of careful, non–suggestive questioning of children.
In a prepared statement, the royal commission said it had commissioned a large number of research reports, and the report co-authored by Professor Goodman-Delahunty reflected the views of the authors and not necessarily the views of the commission itself.”
In Cardinal Pell’s appeal, wasn’t it the case that the High Court said having regard to the “whole of the evidence”, the jury should have had a doubt about the applicant’s guilt?
Extract: “Criminal law – Sexual offences against children – Appeal against conviction by jury on ground that verdict unreasonable or cannot be supported having regard to
whole of evidence – Where prosecution case wholly dependent upon acceptance
of truthfulness and reliability of complainant’s account – Where jury assessed
complainant’s evidence as credible and reliable – Where witnesses gave
unchallenged evidence of specific recollections, practices and routines inconsistent
with acceptance of complainant’s account (“unchallenged inconsistent
evidence”) – …– Whether unchallenged inconsistent evidence required jury, acting
rationally, to have entertained doubt as to applicant’s guilt.”
Did the judge have regard to the whole of the evidence in Lehrmann’s case. Some comments/questions:
1. Conflicting Witness Accounts
The Incident at the Kingo where BL was supposed to have taken BH phone. NH said this happened and that BL said BH was good looking (which somehow got translated into sexually attractive and then Hell Bent of having sex with). But NH had had the argument with JW about the offer of the promotion to BH so she could do media in Canberra and the East Coast. BH and JW concerned no proper interview process. JW said at trial he could not recall the phone being taken and as he had reported the Kingo incident to the office manager that evening (NH had told both JW and BH to “shut the F* up” before resigning via text while she was walking home), he felt he would have reported the phone matter.
2. Information Missing from Justice Lee’s Drinks Table in the Judgment
Raw CCTV evidence that Steve Whybrow showed the court just before Christmas 2023 reveals that the female public servant NI bought 3 rounds of drinks in the last 1. 5 hours at the Dock and she and other men helped distribute the drinks to BH. For some reason, this section of CCTV is not in the AFP video. These 3 rounds of drinks also do not appear to be in the expert Toxicologist’s report on the Federal Court file. NI had made pouring drink and sculling motions, pointing to the small table where BL, BH, LG and AW were sitting – shown in SW video.
3. Discrepancies in Ms Higgins evidence to Police
There are pages of discrepancies identified by investigating police in the material on the Website of the Inquiry into the ACT Criminal Justice System (Sofronoff Inquiry). The police stated they found BH uncooperative, evasive and manipulative. “The victim was reluctant to fully support the investigation by delaying investigator’s requests, withholding info, reporting the progress to the media”.
BH father and partner gave evidence of them visiting BH the weekend after the alleged incident, (it had all been arranged previously) and BH took them on a tour of Parliament House that Saturday. Their witness statements are almost completed blacked out on the Federal Court file. Why?
4. Tensions between AFP and ACT Police. This became very clear in the Sofronoff Inquiry in relation to whether there was sufficient evidence to charge Lehrmann. The Master Chronology prepared for the Criminal Trial and posted on the 2023 Federal Court case online (in the Auerbach affidavit) also gives an insight into the involvement of many senior AFP including those who appear to have backgrounds in National Security and Counter Terrorism! One of the senior AFP officer said the Commissioner had told him “just get it done” in relation to the charging. Another senior AFP Officer LC had made notes which did not appear to align with the recollections of LR and FB. This was in the recent WA trial judgement. The now ex AFP officer LC was the only witness called by Higgins lawyers.
5. Lip Reader flown in from UK in Dec 2023. The qualifications do not seem to have been published in the media and the explanation as to why a UK lip reader had to be used instead of an Australian lip reader.
6. Was equal weight given to contemporaneous representations or only from some witnesses?
Much weight appears to have been given to some witness contemporaneous recollections (eg CP who reported the classified doc breach about BL – but no affidavit online, NI an ADC – but she told the court she did not keep a record of conversation with BH, LG regarding the alleged kiss etc at the nightclub – but she could not remember who she left with and whose home she went to, and certain texts between BH and her friend/ex partner BD). BH did not refer to any kissing at night club, BL denied any kiss, AW said he did not see any kissing — but the Judge accepts LG evidence. Judge did not seem to comment on the following contemporaneous text exchange the morning of the alleged incident:
Ex R99 on Fed Court online file 715am Sat 23/3/19 to ex bf: she needed to “slow down a bit, gotten a little out of hand recently haha… ha ha I just get myself into trouble, gotta keep that shit locked down”…explaining “just the standard shenanigans”.
7. The Security Guard AWs who came on duty at Parl House the morning of the alleged incident and BH texted him in the lead up to, the morning and the weekend of the alleged incident. Never called as a witness, judge did not enquire about his contemporaneous records.
8. The male public service Aide De Camps of Head of Navy, Gov General (according to BL police interview) and others at the Dock Hotel – about 5 of 6 of them. Never called as witnesses and no enquiries made about the conversations that evening. Lip reader not asked about their conversations. A couple of them did spend time at the small table where BH, BL, AW and LG were seated. And helped distribute drinks according to SW video shown towards end of 2023 trial.
8. Judge appeared to help LG out when she was giving evidence about BL and his alleged future job in ASIO/Intelligence. When she stumbled he said something like, you knew he was serious, that it was not a joke.
9. Who paid for all the drinks and food at The Dock and at the Nightclub 88MPH and the Uber to the nightclub?
BL credit card shows only limited amounts at the 2 venues from 830am – 130am (? from memory $16 and $40?). Who paid for all the drinks? Was there any check of credit cards held by the key people present? Receipt online shows a payment for $118 at The Dock Hotel. Does not appear to be much investigation into the payments.
10. NI and LG both knew the nightclub was 88MPH. NI and BH were talking the week of the alleged incident – walk to passport office etc. So why does BH tell AFP she does not know the name of the nightclub? No CCTV ever obtained.
I believe in the Law but now I know how corrupt Judges are, you wash my back & I will wash yours, guilt should be on evidence not what Judges think. Cheers