A sense of exhausted déjà vu hung over Court 22A last week as it settled in for the latest round of hearings in the Lehrmann defamation case. Justice Lee had put the final touches on his judgment during Lent, “entirely appropriate”, he said ruefully, as he resignedly agreed to let Channel 10 and Lisa Wilkinson reopen their case to present new evidence of the appallingness of Bruce Lehrmann.
The Seven network may not be party to this or any of the myriad legal cases swirling around Lehrmann and the aftermath of the early hours of March 23, 2019, but last week they joined Lehrmann in the dock of public opinion and were found drastically wanting. We now know Channel 7 doesn’t just stand loyally by their most sordid of men but seems willing to pick up their tabs, whether for alcohol, sex, cocaine or $25m in legal fees.
Lehrmann tested Seven’s generosity. The latest tranche of evidence reinforces a picture of a debauched individual intent on satisfying his appetites at any cost, preferably other people’s. We’d learned previously of his alleged propensity for satisfying his carnal urges by plying young women with double shot vodkas before inserting himself into their often unconscious bodies, and that he felt sufficiently entitled to press his politely rejected sexual case such that his former housemate felt It necessary to barricade the door to prevent him invading her bedroom and, after entry, her. Now we learned he was flown around the country and put up in expensive hotels and AirBnbs to meet with his Seven benefactors at an array of restaurants, bars, golf and racecourses, eating and drinking lavishly, buying sex and cocaine, arranging meetings with Janet Albrechtsen, all sponsored by Spotlight, as he dangled before them an exclusive interview, buttressed by material to be provided illegally, with a man whose only claim to fame was being credibly accused of rape.
I wonder what they would have promised Jimmy Saville?
During their extended duchessing of Lehrmann, the Spotlight producers were thrown into something of a panic when they learned their man had been charged with yet another rape, this time in Queensland. Presumably dismissing it as another “chick” coming forward seeking “National Heroine” status as they had dismissed the “5 other chicks”, the new charges did not ultimately slow their indulging of Lehrmann’s excesses despite acknowledging amongst themselves that the constant carousing was “bizarre” and “very unusual”. They thought they were on to “the most amazing thing on Australian TV ever” and that the tens of thousands they had to outlay to procure it was worth it, even as Lehrmann’s behaviour was described as “fucked” by a Spotlight producer of all people, and his infamous post-dinner massages after a drunken meal at Cipri were revealed to be “no anomaly”. Once finally aired, the Spotlight story was underwhelming and, when Lehrmann later had to face a serious interlocutor in the form of Dr Matthew Collins, was starkly shown to be full of falsehoods and inconsistencies.
We knew tabloid media was trashy, but not this trashy. Last week’s tawdry show even spawned spin-off episodes featuring the hapless Tziporah Malkah and NSW Police Commissioner Karen Webb, showing just how wildly kak can splatter.
Lee J has signalled there will be no judicial determination on the most sordid elements of this tale, including who ultimately bore the costs of the various late-night goods and services indulged in by Lerhrmann and Seven staff, legal or otherwise. He will determine only if the additional lies told by Lehrmann excavated last week – including the fact that he provided material from his criminal trial to Seven in breach of his Harman obligations – further undermine his credibility to a material degree. Lee seems likely to have already made up his mind about Lehrmann. Whilst repeatedly stating that nothing he said across the recent hearing should be interpreted to mean he had found one thing or another in that judgment awaiting delivery, he made mention of witnesses who are so inherently unreliable that their testimony can only be accepted if supported by documentary evidence or corroborated by a neutral third party. He spoke too of applicants who may win defamation cases, but by the end of them have no reputation left to speak of, and are awarded damages, if any, of the “the lowest coin of the realm”. When one’s own lawyer is reduced to arguing evidence of your profound dishonesty is not worth allowing as there has already been copious evidence adduced of your ‘dozens of lies”, as Lehrmann’s barrister Matthew Richardson was this week, your remaining reputation surely ain’t worth much.
But Lee has also described some of Brittany Higgins’s assertions as lies. He mentioned her statement on the steps of the Canberra courtroom when she said Lehrmann’s phone had not been scoured by police as hers was. “I was required to surrender my telephones, my passwords, messages, photos and my data to him. He was not required to produce his telephone, his passwords, messages, photos or his data”, she said. This was wrong. Lehrmann too had had to submit his phone to police. Lee also previously questioned Brittany’s version of her settlement with the Commonwealth Government, which was, it turned out, inaccurate, particularly in relation to admissions of liability. In both cases, he views Brittany as having been dishonest, seemingly rejecting a more innocent explanation that she genuinely but mistakenly held those beliefs at the time. He also always seemed sceptical of her claims that some of her data was lost during multiple transfers to new phones, including from professional to personal devices, whilst other data – such as the contested photo of a bruise on her leg – made it through.
Lee’s sardonic reference to the “French submarine thesis” suggests he is almost certain to reject Lehrmann’s farcical account of attending to urgent work business during those critical 45 minutes at Parliament House. Which of the other two options he has outlined he will plump for is less certain. Most straightforward will be if he is satisfied on the balance of probabilities that a rape took place. Can we glean from some of his statements that he is leaning towards a final more ambiguous option: that something sexual happened that night but he isn’t sufficiently satisfied it was rape? And what are the implications if he makes such a finding? The question of how intoxicated Brittany Higgins was that night seems to exercise His Honour. He posited on Friday he had spent so long examining that familiar footage from the Dock to calculate how many drinks Brittany had consumed and their provenance, he could sketch up architectural drawings. He briefly wondered if he needed to check if copies of newly-adduced drink receipts supported the number he’d settled on. During the earlier hearings, he referenced approvingly an Adelaide Law Review article that qualitatively analysed 102 Australian appellate court decisions involving conviction appeals from rape/sexual assault trials where there was evidence that the complainant was intoxicated at the time of the alleged offence. In making such a finding it is unclear what motive Lee might assign to Lehrmann for his vehement denial any sexual activity with Higgins took place at all if it was consensual, particularly given the third party evidence of them being handsy and even pashing that night in a booth at 88bpm. Why lie? And what motive does Brittany get ascribed to have invented such a dastardly story of a stomach-churning rape if it was all false? To save her job, it has been contended – at least initially. And then she had a financial motive – she was writing a book and leading a movement! And then she wanted to bring down the Government, as she had Lehrmann, and then screw the taxpayer. All with a bald-faced lie. The audacity. The ridiculous implausibility of it all. Even the Spotlight producers conceded that “false allegations are rare”.
It has always seemed more likely that Brittany’s account of the evening, whilst blurry in the detail, was generally true. She was at a bar. She consumed way too many drinks, many pressed upon her by one Bruce Lehrmann. By the end of the night she is sodden with booze and ends up in a cab with Lehrmann thinking they are going home. He says he needs to stop off at Parliament House, he won’t be long. She gets out with him. He has orchestrated the end of the night in this way to get her alone whilst she is stonking drunk and vulnerable. Things play out as he hopes, he rapes an almost comatose Brittany in Minister Reynolds’ office, and then leaves her lying naked on the couch. He is alleged to have engaged in similar predatory behaviours with other young women in the recent past – plying them with drinks, taking them somewhere on their own, sometimes under the guise of helping them through the extreme intoxication he has fostered, and then forcing himself upon them. He’s a slimeball. We saw further evidence of that last week.
Salacious as it all was, it’s hard to see how this new evidence will result in too many changes to Lee’s polished judgment. We may have had all our worst fears realised about the dark depths commercial TV is prepared to plumb to chase questionable stories from demonstrable dickheads, but their sordid contribution to the Lehrmann imbroglio – whilst illuminating – has little bearing on the key defences of truth and reasonableness being relied on by Channel 10 and Lisa Wilkinson. Having blown up the sacred notion of the confidentiality owed a source, it’s hard to see Taylor Auerbach getting another job in journalism, though, and Steve Jackson’s contract with the Police Commissioner has been torn up. Who is next to be enveloped in Lehrmann’s toxic mess?
Lee will deliver his judgment on Monday at 10.15am.
