THE FRONT DORE: Bruce Lehrmann’s vulgar defamation trial will soon be over. Spoiler alert: Everyone loses

Headshot of Christopher Dore
Christopher Dore
The Nightly
9 Min Read
Artwork of Bruce Lehrmann, Justice Lee and Lisa Wilkinson for The Front Dore
Artwork of Bruce Lehrmann, Justice Lee and Lisa Wilkinson for The Front Dore Credit: The Nightly

It’s easy to forget the sheer vulgarity of it all.

Swept up in the thrill of the theatre, the tension of unscripted drama, where alcoholic abandon is cleansed by the sterility of legal language and procedure; where reason wrestles with the reckless, and audacity clashes with tragedy, breaking the hearts of the hopeful and shattering the hopes of the heartbroken.

It’s easy to be confused, is it obscene or justified that an unfashionably distasteful fellow, reputation in disarray, either guilty of a heinous sexual crime or falsely accused, can exploit the quirks of our legal landscape to cast a courtroom serial of such magnificent horror.

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This chap we have come to know so well, a self-confessed dissembler of facts; a man burdened with the confidence of a card player, and riddled with the proclivities of a gambler; a heavy drinker, a lover of fine meats, a procurer of cocaine, a pleasure seeker with a penchant for prostitutes. Allegedly. So the court was told.

For a young man with such delicate tastes and unique traits, Bruce Lehrmann has fashioned a post-traumatic life destined for ill-repute into a carnival of tabloid intrigue. Along the way, Lehrmann, known only as he is for being accused of raping a drunk, unconscious workmate, has collected a primordial posse of legal lackeys and media mates, of agitators and apologists. Backers and bankrollers.

Each is driven by retaliation and retribution for a man they believe was wrongly accused, caught in a political movement that morphed into a Capital Hill conspiracy.

Lehrmann’s life, for whatever it was meant to be when he joined the Liberal Party and jollied his way to Canberra, has not so much been destroyed by notoriety as been defined by it. He is left to forever bask in infamy.

Former Liberal staffer Bruce Lehmann arrives at the Federal Court of Australia in Sydney, Friday, December 22, 2023. (AAP Image/Mick Tsikas) NO ARCHIVING
Former Liberal staffer Bruce Lehrmann. Credit: MICK TSIKAS/AAPIMAGE

Lehrmann is a man with little to gain and nothing to lose, retaining a legal status perennially in limbo: an accused rapist, who, thanks to an abandoned but not forgotten criminal trial, will never be convicted nor will ever be cleared of the crime.

So come Monday, it will matter little when Federal Court Justice Michael Lee affirms, as he surely will, the submissions of both Lehrmann’s accusers and in part his own barristers to declare him an unreliable witness, a liar, lacking in credibility.

Whether Justice Lee goes further to decide Lehrmann did in all likelihood drunkenly rape an unconsciously inebriated junior colleague in their boss’s Parliament House office early one Saturday morning in 2019 is unlikely.

Incredibly, it’s also sadly immaterial.

For many the breakout star of this tragicomedy is Justice Lee. It will come as little surprise to his newly acquired online auditorium of adoring acolytes that Justice Lee, just shy of 60, is a fanboy of Shakespeare, loves the drama, and is a devotee of political intrigue. A personally signed portrait of Richard Nixon a prized possession. Watergate his love language. The cover-up is worse than the crime.

Renowned among his colleagues for his “thespian flair” and “elastic mind”, Justice Lee has become a fascination, an infatuation, for followers of this trial. Scrupulous, charismatic, patient and playful.

This is a judge who will conspicuously cock up Latin, call on Leonard Cohen and catch a Boney M song while excoriating a recalcitrant witness or a rogue lawyer with legal precision, a menacing grin and tangential side-eye.

Committed to broadcasting on YouTube every minute of this trial and publishing every piece of evidence, Justice Lee has become a genuine superstar jurist. A cult figure. Where political parrots and corporate clams disappoint and depress, the nation has adopted a judicial father figure, a legal zaddy, to lead us through troubled times, to scold and comfort. To establish an unimpeachable standard of behaviour we can all agree on. Press play on the next episode of Michael Lee TV.

While at the heart of all this is an accusation of an unconscionable act of vile criminality, this case, from its inception, the allegation first aired on Ten’s The Project, has always been about much more. Political power and all of its associated indiscretions: legal treachery, brazen incompetence, media hypocrisy. Corruption. Foul play. Cover up.

Familiar territory for Justice Lee. As a younger lawyer, he found himself in the middle of the almost impossible-to-believe political assassination, Australia’s first and only murder of a parliamentarian, prominent State Labor MP, John Newman. Justice Lee unsuccessfully defended Newman’s local rival, a businessman accused of ordering the 1994 hit, a south western Sydney councillor, Phuong Ngo.

An early defining foray into politics and crime.

For in this epic ordeal, regardless of the findings in this pseudo-rape trial being run under the guise of a defamation case, Lehrmann, because of a litany of lies, will neither be rewarded nor punished. There will be no legal winner and a sliding scale of losers.

The biggest loser will be Network Ten.

Whatever the result, Ten will be left paying all the bills, a not-insubstantial $10 million in legal fees.

Ten ran a high-priced trial, with 20 witnesses, the most expensive barrister in the room, Matt Collins, KC, who commands $12,000 a day, a table of four external solicitors from Thomson Geer and an in-house legal team. The bill: conservatively, at least $5 million. Ten and its legal team were also ordered, humiliated, into paying the fees for its once acclaimed now estranged presenter Lisa Wilkinson.

Her barrister Sue Chrysanthou, SC, is more famous and significantly more entertaining than Collins but charges less. It remains to be seen who will prove more persuasive.

Lisa Wilkinson arrives at the Federal Court of Australia in Sydney, Tuesday, February 13, 2024. (AAP Image/Bianca De Marchi) NO ARCHIVING
Lisa Wilkinson arrives at the Federal Court of Australia in Sydney, Tuesday, February 13, 2024. (AAP Image/Bianca De Marchi) NO ARCHIVING Credit: BIANCA DE MARCHI/AAPIMAGE

Nevertheless, the Wilkinson defence, run in conjunction with Ten’s, will cost $2 million. If Ten is forced to pay costs for Lehrmann, that’s another $2 million for two $8000-a-day silks, Steve Whybrow, SC, and Matthew Richardson, SC, as well as an assorted assembly of solicitors and possibly even his secret adviser, criminal law guru Margaret Cunneen, SC. It’s unclear who, if anyone, is paying Brittany Higgins’ omnipresent famed Melbourne solicitor Leon Zwier.

Most seem to suspect that Justice Lee will probably agree with Lehrmann that Network Ten failed to prove a rape occurred and did not act reasonably in broadcasting the accusations. In short, Ten defamed Lehrmann and has no defences to justify it.

Lehrmann wins. Ten loses.

Now the plot twist.

Justice Lee will declare that Lehrmann’s reputation is worthless.

Of no more value than the “lowest coin in the realm”. At present, that is 5c. He will decline to award any further financial damages. Justice Lee, canny and suspicious, will do this because Lehrmann did not tell the truth at all times while giving evidence. Justice Lee knows this and doesn’t like it.

Lehrmann’s lawyers are said to have signed on to represent him in a no win-no fee deal. This will not be a win. This result will leave Lehrmann only to pay about $300,000 in court charges, hearing and transcription fees. But those costs will be met, ironically, by rival media companies, ABC and News Corp, who separately settled earlier defamation cases brought and strategically resolved by Lehrmann before this trial for enough money to cover those fees.

In short, the national broadcaster and the media outlet that initially broke the Higgins rape allegation, news.com.au, wholly funded Lehrmann’s legal clap back at the original conspirators, Ten’s host of The Project, Wilkinson, and Higgins, his accuser. Both were captured on a five-hour audio recording, with Higgins’ fiancé David Sharaz and The Project producer Angus Llewellyn, plotting against the then Morrison government, its ministers and advisers; promising to destroy the regime she worked for and ruin the career and political prospects of Lehrmann.

Brittany Higgins (centre) arrives at the Federal Court of Australia in Sydney, Tuesday, November 28, 2023. (AAP Image/Bianca De Marchi) NO ARCHIVING
Brittany Higgins (centre) arrives at the Federal Court of Australia in Sydney, Tuesday, November 28, 2023. Credit: BIANCA DE MARCHI/AAPIMAGE

Lehrmann used the Federal Court defamation process, at effectively no personal financial cost, to force all of those antagonists into the witness box, including the alleged victim, her mother, her father and her ex-boyfriends as well as Wilkinson and Llewellyn.

Each of them faced brutal, intrusive, at times tearful, excruciating, cross-examination. Their honesty, morals, ethics, opinions, predilections and peccadilloes were challenged and traumatised.

All of it is broadcast live and watched by thousands of sofa sleuths on YouTube Federal Court TV.

Wilkinson was exposed in the stand as being at the mercy of the faceless producers at Ten. One such producer, Llewellyn, was shown to be less than professional in the pursuit of the story, failing to even contact Lehrmann before effectively identifying him and publicly accusing him while not naming him of a serious sexual assault.

Lehrmann’s side of the story was never put to air by Ten.

That was left to Seven’s Spotlight years later, whose own journalists and producers have also been drawn into the scarifying orbit of this case, and paid the price.

Justice Lee, known for his fairness, compassion and judgment, will not miss Lehrmann. He will be scathing.

But he will also punish Wilkinson and Llewellyn.

And of course Higgins.

Brittany Higgins arrives at the David Malcolm Justice Centre in Perth, Tuesday, March 5, 2024. Brittany Higgins and her partner David Sharaz are meeting with Liberal senator Linda Reynolds for mediation talks as part of an ongoing defamation matter. (AAP Image/Richard Wainwright) NO ARCHIVING
Brittany Higgins arrives at the David Malcolm Justice Centre in Perth, Tuesday, March 5, 2024. Credit: RICHARD WAINWRIGHT/AAPIMAGE

For Justice Lee will contend that Higgins, like Lehrmann, is an unreliable witness, whose testimony cannot be trusted. This leaves the judge in the untenable position of not fully believing either the accused or the alleged victim. The only two people in the room.

Lehrmann insists Higgins is a “fundamentally dishonest” person who “lies repeatedly”. Network Ten, defending the defamation action brought by Lehrmann, agrees there were question marks about some of the testimony from its star witness. But “those inconsistencies are explicable by a combination of the effects of trauma and alcohol on memory and the passage of time”.

Her claims are absolutely true, your honour, even though she was too drunk to remember and subsequently too traumatised to get some of her story straight.

Higgins’ own lawyers, knowing her credibility would be traduced by several glaring inconsistencies in her evidence and recollections, pleaded with the judge for clemency, insisting the holes in her story are in fact a result of the rape, not evidence the rape didn’t occur.

“For the court to treat the credit attacks made against Ms Higgins as a reason to disbelieve her about her rape would be to use a consequence of that rape as a basis to deny its occurrence,” barrister Nicholas Owens said in the final submission of the trial presented to Justice Lee.

In the absence of any substantial forensic evidence to prove or disprove the allegation of rape, and with the character, motivations and manipulations of both Lehrmann and Higgins exposed and in question, unresolved, it will be heroic of Justice Lee to fashion a conclusive account, and a definitive finding, based on fact, of what actually happened that night.

Is it possible that neither of them really remembers what exactly occurred, leaving Justice Lee to contend that sexual intercourse was the only logical outcome of that drunken, unscheduled expedition to Parliament House after a night of flirtation and fermentation?

If so, will he be able to establish that the intercourse, under the influence of alcohol, was most likely consensual, or obviously not?

Was it a rape or a mistake?

It is possible, drawing on magical powers of logic to re-create a plausible storyline based on the facts he is happy to accept, that Justice Lee will deliver a definitive, defining narrative of that night, for the first time in this sorry saga. Cased closed. Or not.

Either way, while this legal chapter will end, the distressed and damaged lives of Higgins and Lehrmann, and the deranged circus that engulfs them both, will go on, unsettled and under siege, unresolved and shrouded in shame and uncertainty.

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