However, there are at least two other aspects that bear further consideration. The first is how there appears to be more “success” for the complainant, Brittany Higgins, in the various civil proceedings that have been issued, at least so far, than in what we call the criminal justice system. Higgins has reportedly been compensated to the tune of AU$2.4 million in her claim against the federal government, though this was a settlement rather than a judicial or even forensic finding.

It also preceded some serious credit findings against her by Justice Lee in the Lehrmann’s defamation action. Whether that sizeable payment gets close to actually compensating Higgins for her suffering and distress, no matter what version of their respective truths is accepted, will, of course, be the subject of further debate. It pales in comparison to the US$83 million awarded to a complainant in her case against former president Donald Trump for sexual assault. Also, Higgins faces her own defamation case in a Perth court for statements she and her partner made against former minister Linda Reynolds.

The fact that a complainant’s trauma and distress, and that of others indirectly associated with the alleged crime inflicted upon her, has been monetised might be seen as a paradox within our system of justice, something about which reasonable minds may well differ.

There is another aspect to the judgment and these other proceedings which may be a little more nuanced if not controversial. That is whether the system we have in place, under the umbrella of what lawyers like to call “the rule of law”, is in fact fit for purpose when dealing with these situations. It is a serious question and may not be completely answered by over-examining a single judgment; however, what has been called an omnishambles is perhaps not a bad premise.

It is a shame that Justice Lee used the phrase: “Mr Lehrmann raped Brittany Higgins” in the manner His Honour did, viz., in a standalone paragraph, which has been seized upon as a soundbite by so many. Despite adding, repeatedly and appropriately, in the immediately following paragraph, that His Honour did so on the civil standard of proof, etc., this important rider has, in fact, been apt to mislead the commentariat. Though His Honour should not be unduly criticised for the mischief of others, it may have been better if His Honour phrased the essential finding as the limited legal construct that all forensic findings are, and with more context around the word “rape”, viz.:

“Mr Lehrmann has not been found guilty of the crime of rape, and he is unlikely to ever be, because his accuser Ms Higgins has stated that she does not wish to endure another criminal trial because of her own health and medical reasons. An independent prosecutor has decided to prioritise her mental health interests over the community’s expectation that those accused of serious crimes be prosecuted, and that is understandable.

‘I have, however, spent many months examining evidence placed before me by the parties in a civil proceeding brought by Mr Lehrmann against a journalist and a media company in which he claims that he was defamed by them when they published statements that imputed that he had raped Ms Higgins.

‘I have not considered whether all of this evidence would have been admitted in a criminal trial because our system has different rules that determine what is admissible in a criminal trial than in a civil proceeding.

‘In any event, I find on assessing this evidence, in upholding a defence raised by the respondents to the defamation case brought by Mr Lehrmann, that it is more likely than not that he raped Ms Higgins.’

His Honour might also have added:

‘There will be some who read these findings and proceed on the basis that Mr Lehrmann is a rapist, as that concept is used where a person’s guilt has been determined in a criminal proceeding. However, that would amount to an egregious wrong, if we are to be consistent in our acceptance of the legal constructs our system of justice has devised.’

The duality in narratives that arises whenever different onuses and standards of proof are used in different forensic settings is a matter that arises elsewhere, for example, where there has been an acquittal in a criminal trial and subsequent damning coronial findings are made against the same person. However, in a case where someone, perhaps foolishly or ill-advisedly, seeks redress for defamation, the dismissal of such a claim should not be used to, in effect, criminalise a person who has never been convicted.

There need not be any sympathy for Lehrmann to find that this case highlights particular imperfections in our systems of justice when these sorts of conflicts arise, and it behoves us not to be so certain that they always work as they should.

Nor should we rush to hasty judgement as to radical reform to suit the agendas of those on the sidelines, who have, as we have seen, their own agendas, which are not always in line with bettering the public interest. The trial judge, having expertly explained his reasons in this case, at least on the face of it and subject to any appeal, has unintentionally inflicted an unnecessary further injury upon Lehrmann when he has not faced a fair trial.

Lehrmann’s mistake in “returning for his hat” should not be punished with certain death by lion.

Andrew Boe is a barrister and author.