THE FRONT DORE: Got a problem? It’s definitely Elon Musk’s fault

Headshot of Christopher Dore
Christopher Dore
The Nightly
10 Min Read
Anthony Albanese and Elon Musk.
Anthony Albanese and Elon Musk. Credit: The Nightly

Bruce Lehrmann has long been portrayed and widely considered so loathsome and unlikeable, a repulsive caricature of indecency, that by the time Justice Michael Lee delivered the ultimate character assessment — fantasist, cad, cheat, liar and rapist — there was never going to be any reputation to salvage.

But as legal brains, including those with criminal expertise, have closely examined the epic judgment, Justice Lee’s golden flakes of wisdom sprinkled from the bench have settled on the ruins of this sad affair as plain old dust.

While there is no sympathy for Lehrmann, or his lawyers, there is more than a little head scratching, raised eyebrows and some white-hot anger over Justice Lee’s heroic reconstruction of events.

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Most notably Justice Lee’s cursory interest in a missing, mysterious, 30 minutes, his conclusions about Lehrmann’s state of mind at the time and the subsequent definitive finding of mindful non-consensual sex.

Astonished legal minds, not connected to Lehrmann, having poured over the judgment now say there is “definitely a respectable appeal … there are so many problems with it”.

What has perplexed lawyers is how Justice Lee could reject not only Lehrmann’s account of what happened when they were alone in the office but almost in its entirety Brittany Higgins’ version of events as well, in favour of a third scenario. His own.

Curiously, while Justice Lee says Higgins’ account under oath could not be trusted, what she told others, as remembered by others, could be. He doesn’t believe her now, for a bunch of reasons, but believes what others say she said, back then.

Justice Lee could only judge Lehrmann on the evidence presented to him, including his performance, loaded with lies, in the witness box. The rest of us had already made up our minds about the bloke, sex offender or not. Which begs the question for his lawyers: what on earth were you thinking putting him before a judge?

Australians, even if they didn’t actively want to, were long ago also forced into an opinion on Higgins, and unlike the universal view of her assailant, it’s on a spectrum, not always flattering. Justice Lee agreed.

Unfortunately for Higgins, many Australians, with nothing else to go on, either judge you on your politics or more often on who you choose as friends. With Higgins, on the former, the reviews are naturally mixed; on the latter, well, you’ve made up your mind.

So the initial reaction to Justice Lee’s apparently unflappable verdict on Lehrmann, aside from relief that this was finally over, was predictable. Lehrmann. Grub. Knew it. Confirmed. Good.

SYDNEY, AUSTRALIA - APRIL 15: Bruce Lehrmann arrives at court on April 15, 2024 in Sydney, Australia. Justice Michael Lee is scheduled to hand down his verdict today in Bruce Lehrmann's defamation case against Network Ten and journalist Lisa Wilkinson. The case stems from allegations made by Brittany Higgins on 'The Project' news program that she was raped by a colleague in Parliament House. Lehrmann denied having any sexual contact with Ms Higgins and alleged he was defamed and identified by the broadcast, despite not being named. (Photo by Don Arnold/Getty Images)
Bruce Lehrmann outside court. Credit: Don Arnold/Getty Images

When it comes to Higgins, well politics and her performative pals muted the response, dragging attention away from the victim onto themselves, as always.

There was, however, a general sense of justice finally done.

With the graphic nature of the sexual assault on a young woman, struck numb by alcohol, read and accepted as fact, it is astonishing how the focus immediately turned to everything other than the rape itself.

This was the first time, remember, that anyone with authority had found that Higgins was raped while passed out drunk at work.

It also followed that the criminal justice system, unable to find a way to convict a man deemed by a Federal Court judge to have committed rape, had failed Higgins.

Nevertheless, praise be to Justice Lee, for finally determining once and for all, to everyone’s satisfaction, the specific diabolical question: what happened, was she raped? Resolved. Right?

Not quite.

In legal circles, Justice Lee’s heavy judgment has landed like a thud. There is considerable unease about the boldness of Justice Lee’s reasoning, and subsequent conclusions.

At the heart of the finding of truth, a rape most likely did occur, lawyers say, is how Justice Lee re-created the 40 minutes Lehrmann and Higgins spent in the ministerial office that morning in March 2019.

To establish his version of events between 1.48am and 2.30am, Justice Lee, unsurprisingly, completely dismissed the testimony of Lehrmann, who claimed nothing happened other than he did some work, and she apparently disappeared into the bowels of the office and slept.

But, what has not been widely understood is that Justice Lee also rejected the account given by Higgins as well, choosing instead to construct his own hypothesis, based mostly on recollections of others who were obviously not in the room but in whom she later confided.

Higgins, they reported, in varying degrees of vagueness, had alluded to having sex but that it couldn’t possibly have been consensual because she was so out of it. Or so she speculated to them at the time. She was unsure.

Justice Lee accepted those indirect accounts. But said Higgins’ own memory in large part was unreliable and that specific aspects of her account were completely false, including that she begged Lehrmann, repeatedly, “on a loop”, to stop during the assault and that the rape was so forceful it left a bruise on her leg. Justice Lee says that did not happen. She did not say a word, and there was no bruise.

Justice Lee even found that Higgins gave a “false characterisation” of how they even came to be back at Parliament in the first place, and told police “a number of untruths” soon after about what happened, including that they had exchanged words during sexual intercourse.

Despite neither Higgins nor Lehrmann agreeing with this proposition, the judge “strongly suspects” the pair, having already kissed and touched at a nightclub, which they both reject as well, went back to the office to continue drinking, and had glasses of whisky together. Neither of them said they drank one drop in that office.

While they were in the office alone for 40 minutes, Justice Lee says the rape occurred, not in their heightened, frisky state when they first got there but in the last 10 minutes. Other than suggesting they may have had a couple of glasses of whisky, Justice Lee does not say what they were doing for the first 30 minutes. That’s half an hour unaccounted for, during which time, according to Justice Lee, no sex, non-consensual or otherwise, was taking place. Maybe they were having a drink, he says. Maybe they weren’t. Who knows. He couldn’t possibly know. There was no firm evidence presented one way or another that they were drinking.

Justice Lee acknowledged his dilemma in having to construct his own version of events when both Lehrmann and Higgins were unreliable, leaving him to opine over “the difficulties with fact-finding when the only two witnesses to an event do not tell the whole truth”. He could have chosen not to speculate one way or the other.

Fiction, fact, close enough.

But in the end, despite her many false accounts and mistaken memories, Higgins — while giving evidence in the witness box — “struck me forcefully as being credible and as having a ring of truth”. For the most part. Where she wasn’t truthful, or confused, her memory was tainted by alcohol, and trauma.

No such credit, understandably, for Lehrmann whose entire story was littered with lies, not just parts of it. Justice Lee hinted that Lehrmann was trapped in his own lies, believing from the beginning of the ordeal that the best strategy to avoid criminal prosecution was to say nothing happened at all, rather than get into an argument about consent.

But even so, lawyers are stunned that Justice Lee could so confidently establish that Lehrmann’s state of mind was such that he was fully aware Higgins had not consented. They had been drinking and kissing shortly before, and went back to the office to continue drinking, according to Justice Lee. Half an hour later they were having sex, she was not protesting in any way, she said nothing, according to Justice Lee. And yet he found Lehrmann should have been aware, and was aware, that she had not agreed to have sex.

Whether Lehrmann will appeal is uncertain. What is clear is the now apparently friendless Lehrmann will need a new barrister, possibly appeal expert Guy Reynolds, SC, having been publicly dropped by Steve Whybrow, SC, and Matthew Richardson, SC.

Richardson, having missed his payday, scurried away after the verdict; Whybrow, who represented Lehrmann in the criminal trial for free, ran the media gauntlet but told an audience in Perth days later that he hadn’t read the Lee judgment and was done, “thank God”.

Justice Lee was unforgiving of Ten’s in-house lawyer Tasha Smithies for signing off on Lisa Wilkinson’s notorious Logies speech.

He, properly perhaps, made no reflections on Lehrmann’s legal team for failing to discourage a man short on reputation and weighed down by lies to not go back into the lion’s den for his hat.

WHO LOVES THE SMELL OF ELON MUSK IN THE MORNING

It’s the classic Wag the Dog manoeuvre.

In times of great trouble, deploy a distraction. Start a faux fight, launch a war of words. Get angry at something, someone, anything. Anthony Albanese has been doing it a bit lately.

Thankfully, a lacklustre Hollywood on the Gold Coast is not capable of replicating the 1990s satirical classic by concocting a war in Albania. But no need, Albanese can go one better, an H.G Wells-style war on the internet. Mental health? What? No! It’s the knives! Social cohesion, religious hate speech? Have you met Toto? What about my Rabbitohs! Terrorists? What terrorists? Elon Musk is the effing terrorist!

“Albanese honestly believes if he’s not talking about an issue everyone else will lose interest and move on,” a Labor insider says of the PM. And evidence would suggest, he’s no amateur.

Deny, distort, dismiss. All in a day’s work.

But as with all cynical, hypocrisy-laden political tactics, they come undone when dopey and desperate proponents overreach.

Albanese and his thoughtless-control-freak ministers, so intent on talking about anything other than stuff they might actually be responsible for fixing, have instead been competing against each other in Julia Gillard’s Hyper Bowl. The hyperbole directed toward firstly Israel and now Musk is both ludicrous and outrageously disingenuous.

For a purely performative, political purpose, Government MPs — well mostly Albanese and Foreign Minister Penny Wong — started by expressing the most insensitive, insulting, insouciant stuff about Israel and have now moved on, chasing the prize for the most offensive, awful and outrageous stuff about Musk. In doing so, they are ironically either promulgating dangerous disinformation, in the case of Israel, or chasing down and curbing the community’s access to actual information.

Israel once our friend, critical to our national security and our actual war on actual Islamist terror, and Musk, once a hero of Labor’s other real religion, government-subsidised renewable energy. To be fair, Musk is impossible to understand, and hard to like but still, how about them Teslas!

What would Climate Change and Energy Minister Chris Bowen be boring us with for the past five years if not for Musk’s Henry Ford-like production of electric vehicles? Oh and minister, how is that Tesla Model 3 taxpayers bought for you going, time for an upgrade?

Elon Musk is Labor’s new Mark Latham: once a legend (Albanese even wanted him to be PM) now ostracised, a figure of scorn.

Musk is an “arrogant billionaire”, “above the law”, “above common decency”, “an egotist”, “totally out of touch” with Australian values.

Albanese went on to say Musk — yes Musk — was causing Australians “great distress”.

PARIS, FRANCE - JUNE 16: Chief Executive Officer of SpaceX and Tesla and owner of Twitter, Elon Musk attends the Viva Technology conference dedicated to innovation and startups at the Porte de Versailles exhibition centre on June 16, 2023 in Paris, France. Elon Musk is visiting Paris for the VivaTech show where he gives a conference in front of 4,000 technology enthusiasts. He also took the opportunity to meet Bernard Arnaud, CEO of LVMH and the French President. Emmanuel Macron, who has already met Elon Musk twice in recent months, hopes to convince him to set up a Tesla battery factory in France, his pioneer company in electric cars. (Photo by Chesnot/Getty Images)
Elon Musk may not be everyone’s cup of tea but he’s an easy target, writes Christopher Dore. Credit: Chesnot/Getty Images

Well in fact, no Prime Minister, the Muslim kid who launched at a Christian priest mid-sermon in defence of the Prophet Mohammed is causing Australians great distress.

The fact that five of the teenager’s WhatsApp habibis have subsequently also been charged with terrorism offences, allegedly caught with beheading videos and bomb-making instructions, are causing Australians great distress.

Albanese launches a jihad on Musk, but is silent on a bunch of Sydney kids, in the grip of religious extremism, allegedly plotting an actual jihad, here in the PM’s backyard, on behalf of Islamic Jihad. The same mob waging war on Israel. The war Albanese and Wong want Israel to stop fighting so they can strike a peace deal.

But just as Wong jumped the shark in her attacks on Israel by issuing a demand they lay down their arms, and effectively surrender to terror, so too did Clare O’Neil in her hilarious contribution to the Government’s sideshow takedown of Musk. The Home Affairs Minister, kind of a serious job, blamed Musk and his mates for basically everything.

“They are creating civil division, social unrest, just about every problem that we have as a country is either being exacerbated or caused by social media.” Every problem we have. As a country. Is someone else’s fault? Not just Scott Morrison and Peter Dutton?

So like, inflation, indigenous health, China’s Pacific aggression, NDIS rorts … the housing crisis, economic policy, health policy? Oh hang on, whose idea was the Mediscare campaign again? Elon Musk, surely?

But of course, the big tip for Albanese is not to muzzle ministers when they’re producing gems like that, but to realise when Jacqui “send Musk to jail” Lambie jumps on your Wag the Dog bandwagon, it’s time to jump off.

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