OPINION | LEHRMANN the biggest loser (on a sliding scale of losers)

Justice Michael Lee hands down his judgment on the circus that became the Lehrmann/Channel 10 defamation case and lines up each key player for criticism.

After a couple of false starts (the late application two weeks ago by Channel 10 of evidence from former 7 News Spotlight producer Taylor Auerbach, and then this morning someone in Court 1 accidentally muted the livestream just as they were kicking off), today Justice Michael Lee delivered his full judgement in the Bruce Lehrmann vs Channel 10/Lisa Wilkinson defamation trial.

Lehrmann asserted that the original story on The Project by Wilkinson, along with her 2022 Logies acceptance speech for that piece, defamed him regarding claims he sexually assaulted Brittany Higgins. Channel 10 (and Wilkinson) asserted a “substantive truth” defence, which means they didn’t defame him because the allegations were true (even though they didn’t name him, and subsequent to both the story and speech airing the second criminal trial was abandoned – after a mistrial was declared for the first due to jury issues – to protect Higgins’ mental health).

Lee’s judgement made it exceedingly clear: Bruce Lehrmann raped Brittany Higgins.

Justice Lee’s judgement highlights AGAIN the importance of enthusiastic consent, especially in sexual activities. It’s not enough that both parties say yes at the start; they have to ensure it’s an enthusiastic YES all the way through right to and including the end. A person can’t give consent if they are drunk or high, and especially not if they are passed out.

So, to all the men reading this, and especially teens/young adult men: consent is everything. It’s not woke. It’s not limiting your ability to enjoy the sexual activity you want to/are participating in. It’s not something designed to be a prick tease and give you blue balls. Consent is vital in all your relationships, especially sexually… and this case reinforces something the women in your life have been saying (or trying to say) forever: consent is non-negotiable.

Most important is that defamation and its judgments are civil; not criminal (Lehrmann can’t go to jail for the Justice finding he committed rape). There are lesser burdens on the Justice presiding with regard to the finding, and as was stated in his summary this is a finding on probabilities. Justice Lee goes into great detail as to how he determined those probabilities, including analysing the CCTV footage from the two bars Lehrmann, Higgins, and others attended that night and in doing so he counted her drinks.

The entire judgement is 394 pages long and includes significant appendices of messages, e-mails, CCTV stills, and more. Lee considered evidence given by a number of parties. Submissions by both sides were made asserting specific witnesses could not be believed for myriad and complex reasons.

Channel 10’s legal counsel were singled out for their less-than-stellar performance, with Lee offering specific criticism for Senior Counsel Tasha Smithies. Lee served some specific views on her evidence and work, including her looking over and approving Wilkinson’s Logies speech and then claiming she hadn’t seen it before Wilkinson gave the speech live on TV. Ouch.

Former Channel 10 golden girl Wilkinson also got a rap across the knuckles and was essentially told she should have known better/could have done better in researching the Higgins story better in the first instance (with The Project producer Angus Llewellyn – no relation to 7News Spotlight EP Mark Llewellyn who became a significant scalp in this already sordid tale). Wilkinson was, however, exonerated regarding her claims the Logies speech had been approved by 10 when they had insisted she’d gone rogue.

The late application by 10 to have evidence offered by former Seven producer Auerbach added some sting (and collateral damage) to the mix by sharing details of his role in ‘courting and babysitting’ Lehrmann for the now infamous 7News Spotlight interview in 2023, including sordid allegations of the Network reimbursing him/using his corporate credit card to procure drugs and sex workers and being promoted for this work (Seven have denied this, countering they never reimbursed him/it never happened, and he was terminated and not promoted).

The sideline circus tarnished Seven’s marquee public affairs program and, snuck out during the broadcast of Lee’s summarised reading of his judgement, Seven confirmed that program creator and executive producer Mark Llewellyn had left the employ of the network (claims were made late last week that he had engaged an employment lawyer to negotiate his exit package). Additionally, former supervising producer Steve Jackson had his contract torn up as chief media advisor to the NSW Police Commissioner before Seven were formally implicated after Auerbach’s backgrounding on him attached to and around this case started to gain traction with a scandal-hungry media pack.

The three (Llewellyn, Jackson, and Auerbach) had been thick as thieves previously, holding court over the primetime program, with internal claims Llewellyn had created his own ‘untouchable fiefdom’. A parting shot from long-time Seven Commercial Director Bruce McWilliam laid full blame at Llewellyn’s feet when the Justice asked why it took a year to produce the documents requested by him a year ago, saying they (Seven) relied on the “untested assurance” from Llewellyn there was nothing to produce.

Unrelated, though in a case of incredibly poor timing, outgoing CEO James Warburton announced his departure would be earlier than initially announced — the AFR reporting his exit was timed for this Thursday 18 April as he had planned though not communicated externally. Given it is now taking place in the middle of this faecal furore, it simply looks bad, independent of the best laid plans of CEOs and their successors.

Higgins wasn’t removed from criticism by the Justice, acknowledging she wasn’t an entirely credible witness. Justice Lee did note that her evidence and the lack of clarity/inconsistency was very much reflective of a victim of sexual assault and that it would absolutely have affected her memory of events. Additionally he noted the quantity of alcohol she had drunk that night would have contributed to both her (patchy) memory, demeanour, and behaviour. In short, Higgins’s recounting of events wasn’t great, though she had the most contributing factors as to why that might be.

It was Lehrmann that Justice Lee saved the most brutal assessment for.

“Having escaped the lion’s den, Mr Lehrmann made the mistake of coming back for his hat.”

Lehrmann had, until today, gotten away more than scot-free. He’d received settlements from two media companies, and, as has now been disclosed, his rent paid for a swanky apartment in Sydney’s Eastern Suburbs for a year (suggested total rent over $100,000)…before any of the other inducements outlined in Auerbach’s claims. His criminal trial had been aborted also, saving him the embarrassment of giving evidence and not having to defend himself in a criminal trial with implications of jail time if found guilty.

While mud had been thrown in the press about Lehrmann and his chosen proclivities, he appeared to be weathering the storm. His payday was coming. Nothing a sizeable defamation judgement in his favour wouldn’t wash away while covering all his costs. It was to be Lehrmann’s moment in the sun. Yet it was Justice Lee’s consideration of the fateful night at Parliament House that shifted Lehrmann from beset-and-alleged defendant to someone whose account was considered an “elaborate fancy”. The sun was gone; the long, dark night of the soul had set in.

Justice Lee didn’t believe a word Lehrmann said about the night in question… the night at the centre of Wilkinson’s story for Channel 10’s The Project… the night he claimed he didn’t touch Brittany Higgins. He had gotten away with it, and by coming back for another go at his detractors he managed to reveal his sizeable vulnerability: he lied and in this case he had been caught out.

It was a roll of the dice for Lehrmann to draw this defamation case against 10 and Wilkinson, and now not only does he have the Justice’s summation that he raped the woman he claimed he did not, he now has to pay what will likely be the sizeable costs of both respondent parties. Lehrmann has used all his lifelines and avenues for mega-bucks interviews so he better have saved some of that settlement money for a rainy day… because a financial monsoon is heading his way. His bank balance is about to become significantly lighter.

In this case, however, everybody loses (though some on a much larger scale than others)…

• Bruce Lehrmann is declared a rapist and has a sizeable costs claim headed his way. His reputation is in tatters after the Justice’s evisceration of his capacity to be truthful, and Auerbach’s revelatory claims about his questionable extracurricular choices and demanding pecuniary interests.
• Channel 10, especially its legal counsel and executive, are left looking incompetent.
• Lisa Wilkinson comes away mostly vindicated, though having burned through the three commercial networks now – who hires her?
• Brittany Higgins is labelled a less than credible witness, though surely finds strength in the Justice’s finding regarding her claim of rape. Some peace must be found her, though a pending suit from her former boss Linda Reynolds is the next hurdle she faces.
• Channel 7 have suffered significant brand damage due to their apparent courting of and association with Lehrmann, all seemingly to tear down its commercial rivals The Project and Channel 10. The effect on 7News Spotlight could be terminal, and their wider News branding will take significant time and effort to rebuild as goodwill and audience faith in the news game is not won easily.
• Mark Llewellyn is gone from Seven, having once been heralded as the man who would do anything to get a story – perhaps one of the last of the old guard of journalists to be able to do so with impunity… until now.
• Bit player and seeming fame-whore Taylor Auerbach has his credibility all but eviscerated by Justice Lee, and, in a similar vein to Wilkinson (though with far less dignity)… who hires him now?

The outcome of today’s judgement is that Bruce Lehrmann has somehow managed to outdo even Ben Roberts-Smith recent failed defamation suit attempt (costs judgment pending). The irony of Lehrmann’s failure to beat 10 and Wilkinson in what he would have thought would make him an Australian Survivor instead squarely puts him in the running to be The Biggest Loser.

The complete judgement from Justice Michael Lee can be found here on the Federal Court website.