While Justice Lee stressed his finding did not satisfy the criminal standard of proof – that it happened beyond reasonable doubt – he was satisfied on the civil standard that Lehrmann was “so indifferent to the rights of Higgins as to ignore the requirement of consent”.

Because of the civil finding, the Federal Court ultimately found Lehrmann was “not entitled to the vindication of his reputation”.

Speaking to Lawyers Weekly, Dentons managing associate Sylvia Alcarraz said whatever remains of Lehrmann’s reputation suggests there needs to be “real consideration” by potential plaintiffs as to whether or not “it’s best to let yourself become yesterday’s news”.

It could be argued this was almost the case for Lehrmann when the criminal trial was abandoned in February 2023. As Justice Lee remarked near the end of his judgment: “Having escaped the lions’ den, Lehrmann made the great mistake of going back for his hat”.

Reflecting on Justice Lee’s comment, Alcarraz said the danger of defamation cases, especially those with such a high level of public interest, is “it brings into question all actions of the parties where everything and everyone is so highly scrutinised”.

“If a defendant is successful, particularly on the truth defence, as was the case in Lehrmann and Ben Roberts-Smith, it might result in further significant reputational damage being suffered,” Alcarraz said.

The legal steps all parties may consider next

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Alcarraz predicted that if there is a tenable case to be found, Lehrmann could very likely file an appeal to Justice Lee’s findings.

However, its potential for success is up in the air.

“I think it will be a difficult appeal to run given the number of credit findings, and the Court of Appeal won’t have the benefit of having seen the witnesses give their evidence. They won’t want to tamper with anything to do with credit,” Alcarraz explained.

In terms of the evidence, Justice Lee said that for his “manifold sins”, he “trudged unyieldingly” through all the audiovisual records in evidence, which Alcarraz understands were “many hours’ worth, in addition to the contemporaneous material”.

Given the extent of the work Justice Lee put into the defamation case – and his highly detailed reasons – Alcarraz said the judgment “is very thorough and as watertight as it comes”.

As for Higgins, a potential book deal was floated during the hearing. It was put on hold pending the outcome of the legal action.

Alcarraz explained that while Higgins was under a contractual obligation to tell the truth in her manuscript, Justice Lee found her evidence to the court to be “unsatisfactory” and riddled with inconsistencies.

“The impact of his decision, and of his findings, is it has vindicated Brittany Higgins and given her the right to say Bruce Lehrmann raped her, but with one caveat – being that the finding was a finding in a civil case and on the balance of probabilities,” Alcaraz said.

Because of this, Higgins will need to undergo “a very thorough pre-publication process”, including defamation considerations.

“But also, if anything is said about the court process or any judge, I think advice will need to be given on those comments to ensure they are not seen to be potentially scandalising the court or undermining confidence in the administration of justice,” Alcarraz said.

Defamation reforms floated to protect victims

Alcarraz explained it is “very unusual” for a criminal act to be determined in a civil court on a civil standard, even with the highly publicised and recent exceptions of Lehrmann and Roberts-Smith.

It is even more difficult in sexual harassment matters when there is a delay in making a complaint and there are no witnesses to the crime.

“It’s usually decided on which of the protagonists are most believable, and we saw that exact scenario play out in the Lehrmann defamation trial,” Alcarraz explained.

“In criminal law, it’s difficult to prosecute, and it’s difficult for the complainant because the prosecution bears the high burden of proof.

“But it can also be difficult for the defendants who are innocent, as to case turns on the performance of cross-examinations.”

University of Wollongong’s School of Law senior lecturer Dr Sarah Ailwood argued the defamation law should be reformed for the sake of women “seeking to publicise their experiences of violence”.

She said this is because defamation law is weighted in favour of plaintiffs and places the onus on defendants to prove the truth.

“Australian defamation law can and should be reformed to create a more level playing field to reduce the silencing effect on women and give confidence to journalists and publishers,” Dr Ailwood said.

Live stream, judge’s comments window into law

Mary-Anne Romano, a communications lecturer and researcher at Murdoch University, said the live streaming allowed for “transparency and accountability” but exposed the “more unattractive parts of commercial journalism … which muddied the waters”.

Although the media emerged as the winners, Justice Lee said The Project fell short of reasonable standards by ignoring “flashing warning lights” in Higgins’ account and so-called evidence.

This included lost material on Higgins’ phone and a picture of a bruise she alleged she received during the assault.

“In the end, standing back and evaluating the conduct of Network Ten in publishing the matter … and notwithstanding the broadcast was on a topic of high public interest, Network Ten falls short of discharging its burden,” Justice Lee wrote in judgment.

Romano said the public interest in the case – which led to more than 45,000 people watching Justice Lee deliver his reasons live – suggested audiences may want to “hear the evidence for themselves without the traditional finessing of journalism, which keeps the traditional gatekeepers, the media, accountable”.

According to Alcarraz, the live stream allowed the public an opportunity to “see how our justice system plays out”.

“It’s a costly exercise to defend public interest journalism, but it’s incumbent on the media to do so where there are reasonable grounds – and not just on truth as there is the public interest defence available, so media should not shy away from testing this defence,” she said.

Just as the live stream allowed the layperson to see a case unfold, so too did Justice Lee’s overall comments in his summary.

Alcarraz said given the significance of this particular matter and its high public interest, it was important for the judgment to be written in a way that was accessible for the ordinary viewer.

“His Honour has displayed an admirable and ineffable ability to grapple with the various shades of grey in the case.

“He was particularly impressive in how he wrote about the actions of the two protagonists through the lens of evolving cultural standards around consent and the behaviours expected in 2024,” she said.