FEDERAL COURT OF AUSTRALIA

Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369

File number:

NSD 103 of 2023

Judgment of:

LEE J

Date of judgment:

15 April 2024

Catchwords:

DEFAMATION – the Lehrmann imbroglio – underlying controversy a cause célèbre where applicant sues in defamation over a special edition of The Project programme broadcast by Network Ten where publications televised and published online where imputations the applicant raped Ms Higgins in Parliament House in 2019 – where substance of each matter relevantly identical – imputations conveyed

DEFAMATION – identification where respondents contend the programme did not identify the applicant – where applicant is unnamed in programme – observations as to relevant principles whether persons with special knowledge of the applicant reasonably understood the publication to concern him extent of identification where identification witnesses called gossip and rumour – identification established

DEFAMATIONdefences substantial truth s 25 of the Defamation Act 2005 (NSW) where evidence of two key witnesses unsatisfactory consideration of relevant principles – requirement to prove rape as that concept is understood by the ordinary viewer of publication elements of rape considered non-consent and knowledge elements recklessness – where applicant indifferent to the rights of Ms Higgins as to ignore the requirement of consent – where applicant raped Ms Higgins – defence established

DEFAMATION defences – statutory qualified privilege s 30 of the Defamation Actproper construction – consideration of relevant principles – separate assessment of conduct of the respondentsdistinguishing features of Ms Wilkinson’s conductconduct of respondents not reasonable in publication of defamatory matter

DEFAMATION observations as to other defences – common law justification – Lange defence – common law qualified privilege

EVIDENCE  observations as to fact-finding, onus and standard of proof – difference between civil and criminal standards – credit findings concerning complainant of sexual assault – contemporaneous representations – whether Court bound to accept account of either of the principal witnesses discussion of need for nuance in credit findings and the flaw in falsus in uno, falsus in omnibus approach implied admissions and consciousness of guilt” – Edwards lies

DAMAGES consideration of counterfactual where substantial truth defence not establishedprincipled approach to assessment including consideration of whether it is licit to award no damages – approach to assessment where lack of apparent connexion between the respondents’ wrong and real cause of distress and hurt – where actual damage to reputation only slight because applicant only entitled to be compensated for the reputation he deserves improper conduct established – where augmentation of damages occasioned by aggravating conduct comes from a low base modest award of compensatory damages notwithstanding objective gravity of imputations

Legislation:

Constitution s 109

Australian Human Rights Commission Act 1986 (Cth)

Disability Discrimination Act 1992 (Cth)

Evidence Act 1995 (Cth) ss 11, 46, 66(2), 91(2), 108C(1), 136, 140, 140(1), 140(2), 140(2)(a), 140(2)(b), 140(2)(c), 141(1), 144, 191, 192A

Federal Court of Australia Act 1976 (Cth) s 40

Judiciary Act 1903 (Cth) s 79

Parliamentary Precincts Act 1988 (Cth)

Sex Discrimination Act 1984 (Cth)

Crimes Act 1900 (ACT) s 54(1)

Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)

Defamation Act 2005 (NSW) Pt 4, Div 3, ss 3(c), 4, 8, 22, 22(1), 25, 28, 29, 29A, 30, 30(1), 30(1)(a), 30(1)(b), 30(1)(c), 30(3), 30(3)(a), 30(3)(j), 31, 34, 35(1), 35(2B), 35(3), 37, 38, 38(2)

Defamation Amendment Act 2020 (NSW)

Interpretation Act 1987 (NSW) s 6

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 3.1

Defamation Act 1974 (NSW) (repealed) ss 22, 22(1)(c)

Cases cited:

Allen v Lloyd-Jones (No 6) [2014] NSWDC 40

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322

Attorney General v John Fairfax & Sons Ltd [1980] 1 NSWLR 362

Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345

Axon v Axon (1937) 59 CLR 395

Aziz (a pseudonym) v R [2022] NSWCCA 76; (2022) 297 A Crim R 345

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Berezovsky v Forbes [2001] EWCA Civ 1251

Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474

Blatch v Archer (1774) 1 Cowp 63

Borealis AB v Geogas Trading SA [2010] EWHC 2789 (Comm)

Briginshaw v Briginshaw (1938) 60 CLR 336

Broome v Cassell & Co Ltd [1972] AC 1027

Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164

Burstein v Times Newspapers Ltd [2001] 1 WLR 579

CCL Secure Pty Ltd v Berry [2019] FCAFC 81

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232

Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202

Charan v Nationwide News Pty Ltd [2018] VSC 3

Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185

Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227

Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195

Dank v Nationwide News Pty Ltd [2016] NSWSC 295

David Syme & Co v Canavan (1918) 25 CLR 234

Dering v Uris [1964] 2 QB 669

Director of Public Prosecutions v Wran (1987) 7 NSWLR 616

Drumgold v Board of Inquiry (No. 3) [2024] ACTSC 58

Echo Publications Pty Limited v Tucker (No 3) [2007] NSWCA 320

Ellison v Vukicevic (1986) 7 NSWLR 104

Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; (2015) 91 NSWLR 485

FlyMeNow Ltd v Quick Air Jet Charter GmbH [2016] EWHC 3197 (QB)

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gardener v Nationwide News Pty Ltd [2007] NSWCA 10

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857

Graham v Hall [2006] NSWCA 208; (2006) 67 NSWLR 135

Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98

Griffith v Australian Broadcasting Corporation [2010] NSWCA 257

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Herron v HarperCollins Publishers Australia Pty Ltd (No 2) [2022] FCAFC 119; (2022) 292 FCR 490

Hinch v Attorney General (Vic) (1987) 164 CLR 15

Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572

Hoyle v R [2018] ACTCA 42; (2018) 339 FLR 11

John Fairfax & Sons Pty Ltd and Reynolds v McRae (1955) 93 CLR 351

Jones v Dunkel (1959) 101 CLR 298

Joseph v Spiller [2012] EWHC 2958 (QB)

Kazal v Thunder Studios Inc (California) [2023] FCAFC 174

Kelly v Sherlock (1866) LR 1 QB 686

Kim v Wang [2023] FCAFC 115; (2023) 411 ALR 402

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2010) 243 CLR 361

Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363

Kumova v Davison (No 2) [2023] FCA 1

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Lehrmann v Network Ten Pty Limited (Confidentiality) (No 2) [2023] FCA 1561

Lehrmann v Network Ten Pty Limited (Cross-claims) [2024] FCA 102

Lehrmann v Network Ten Pty Limited (Expert Evidence) [2023] FCA 1577

Lehrmann v Network Ten Pty Limited (Expert Evidence) (No 2) [2023] FCA 1647

Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385

Lehrmann v Network Ten Pty Limited (Tribunal of Fact) [2023] FCA 612

Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192

Liberato v R (1985) 159 CLR 507

Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; (2018) 396 ALR 193

Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 377 ALR 234

MA v R [2013] VSCA 20; (2013) 226 A Crim R 575

MacDougal v Mitchell [2015] NSWCA 389

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150; (2022) 109 NSWLR 468

McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485

McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227

Motel Holdings Ltd v Bulletin Newspaper Co Pty Ltd [1963] 63 SR (NSW) 208

Nguyen v The Queen [2020] HCA 23; (2020) 269 CLR 299

NOM v DPP [2012] VSCA 198; (2012) 38 VR 618

Oliver v Nine Network Australia Pty Ltd [2019] FCA 583

Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391

Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621

Pamplin v Express Newspapers [1988] WLR 116

Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd [2018] NSWCA 95; (2018) 97 NSWLR 739

Pollard v R [2011] VSCA 95; (2011) 31 VR 416

Precision Plastics Pty Limited v Demir (1975) 132 CLR 362

Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785

R v Edwards (1993) 178 CLR 193

R v Kirkham [2020] NSWDC 658

R v Lehrmann (No 3) [2022] ACTSC 145; (2022) 299 A Crim R 276

R v Renzella [1997] 2 VR 88

R v Stevens (No 2) [2017] ACTSC 296

Rejfek v McElroy (1965) 112 CLR 517

Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948

Roberts v Camden (1807) 103 ER 508

Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 41) [2023] FCA 555

Rochfort v John Fairfax & Sons Limited [1972] 1 NSWLR 16

Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564

Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223

Scott v Bodley (No 3) [2023] NSWDC 47

Sotiros Shipping Inc and Aeco Maritime SA v Sameiet Solholt, The Solholt [1983] 1 Lloyd’s Rep 605

Speidel v Plato Films Ltd [1961] AC 1090

State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348

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Webb v GetSwift Limited (No 5) [2019] FCA 1533

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Covers M L et al, The Tonic Immobility Scale in adolescent and young adult rape victims: Support for three-factor model (2022) 14(5) Psychological Trauma: Theory, Research, Practice, and Policy 780

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Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

1098

Date of hearing:

2324, 27–30 November 2023, 1, 5–8, 11–15, 18–22 December 2023, 13–14 February 2024, 2, 45 April 2024

Date of last submissions:

9 April 2024 (Ms Brittany Higgins, Mr Taylor Auerbach)

Counsel for the applicant:

Mr S Whybrow SC with Mr M Richardson SC and Mr D Helvadjian and Mr N Olson

Solicitor for the applicant:

Mark O’Brien Legal

Counsel for the first respondent:

Dr M Collins KC with Mr T Senior and Ms Z Graus

Solicitor for the first respondent:

Thomson Geer Lawyers

Counsel for the second respondent:

Ms S Chrysanthou SC with Mr B Dean

Solicitor for the second respondent:

Gillis Delaney Lawyers

ORDERS

NSD 103 of 2023

BETWEEN:

BRUCE LEHRMANN

Applicant

AND:

NETWORK TEN PTY LIMITED

First Respondent

LISA WILKINSON

Second Respondent

order made by:

LEE J

DATE OF ORDER:

15 April 2024

THE COURT ORDERS THAT:

1.    Judgment for the respondents on the statement of claim.

2.    The parties file submissions as to the costs order for which they contend, and any evidence they rely upon in relation to costs, on or by 22 April 2024.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

A    OPENING REMARKS

[1]

B    THE PARTICIPANTS AND SOME BACKGROUND FACTS

[14]

B.1    The Dramatis Personae

[15]

I    Mr Lehrmann

[15]

II    Ms Higgins

[20]

III    Ms Wilkinson

[24]

IV    Mr Angus Llewellyn

[27]

B.2    Publication of the Impugned Matters

[30]

B.3    The Criminal Proceeding

[35]

B.4    Procedural History

[38]

C    THE PUBLICATIONS

[41]

D    IDENTIFICATION

[47]

D.1    Introduction

[47]

D.2    Relevant Principles

[52]

D.3    The Witnesses

[58]

I    Ms Abbott

[59]

II    Ms Quinn

[63]

III    Mr McDonald

[67]

IV    Other witnesses

[70]

D.4    Identification Established

[76]

E    APPROACH TO FACT-FINDING, ONUS, AND THE STANDARD OF PROOF

[90]

E.1    General

[90]

E.2    Relevant Observations as to Standard of Proof

[96]

E.3    The Practical Difference Between the Civil and Criminal Standard

[105]

E.4    Assessing the Credit of a Complainant of Sexual Assault

[112]

E.5    The Importance of Contemporaneous Representations

[122]

E.6    The Court is Not Bound to Accept Either of the Parties’ Accounts

[126]

E.7    Multiple Available Hypotheses and Onus

[133]

E.8    False in One Thing does not mean False in Everything

[136]

E.9    Implied Admissions and “Consciousness of Guilt”

[139]

F    OBSERVATIONS AS TO THE CENTRAL WITNESSES

[146]

F.1    Mr Lehrmann

[149]

I    General Remarks

[149]

II    Miscellaneous Examples of False Statements during the Hearing

[154]

III    The Spotlight Detour

[164]

Collateral Rewards

[170]

Hearne v Street

[172]

F.2    Ms Higgins

[180]

I    General Remarks

[180]

II    Contrast with Mr Lehrmann

[185]

III    The Points Made by Mr Lehrmann in Submissions

[190]

IV    2019 Conduct Issues

[201]

V    Subsequent Conduct Issues

[206]

The Development of the Cover-up Narrative

[207]

The Victimisation Allegation and the Commonwealth Deed

[212]

Suggested Procedural Difficulties

[222]

Suggested Evidentiary Difficulties

[232]

Conclusion on the Commonwealth Deed and Credit

[236]

The Bruise Photograph

[242]

Selective Retention and Curation of Data

[248]

2021 False Accusations

[255]

VI    Conclusion on General Credit

[258]

F.3    Ms Brown

[260]

F.4    Ms Gain

[280]

F.5    Major Irvine

[286]

F.6    Mr Payne

[296]

F.7    Mr Dillaway

[302]

F.8    Ms Wilkinson

[304]

F.9    Mr Llewellyn

[324]

F.10    Mr Meakin

[328]

F.11    Dr Robertson

[330]

F.12    Mr Reedy

[331]

G    FACTUAL FINDINGS OF RELEVANCE TO THE SECTION 25 DEFENCE

[336]

G.1    Pre-Incident Events

[338]

I    The Reynolds’ Office

[338]

II    Mr Lehrmann’s Knowledge of Ms Higgins

[343]

III    2-3 March 2019: Drinks at the Kingston Hotel and Related Events

[345]

IV    15 March 2019: Team Reynolds Dinner

[365]

V    20 March 2019: Mr Lehrmann’s First Security Breach

[371]

VI    22 March 2019: Before the Dock

[375]

VII    The Dock

[379]

Mr Lehrmann’s Payments

[387]

Drinks Consumed by Ms Higgins

[394]

Interactions between Mr Lehrmann and Ms Higgins

[403]

VIII    88mph

[406]

IX    Leaving 88mph and the Journey to Parliament House

[416]

G.2    A Snapshot in Time: Things We Know as to the Position as at 1:40am

[428]

G.3    Security and Entry to the Ministerial Suite

[443]

G.4    Whisky, and the Accounts of What Happened Inside the Ministerial Suite

[458]

I    The Whisky at the Office

[459]

II    Mr Lehrmann’s Account

[464]

III    Consideration of the Account of Mr Lehrmann

[465]

IV    Ms Higgins Account

[473]

V    Consideration of the Account of Ms Higgins

[489]

G.5    Findings as to What Occurred in the Ministerial Suite

[501]

I    Five Incontrovertible Facts

[502]

II    The Condition of Ms Higgins in the Suite

[511]

III    Post-incident Conduct

[525]

IV    Complaint Evidence or Prior Consistent Statements

[548]

V    What Happened?

[551]

H    THE SECTION 25 DEFENCE

[561]

H.1    Introduction

[561]

H.2    Substantial Truth: Was there a Rape?

[562]

I    What Needs to be Proven

[562]

II    Non-Consent Element

[575]

III    Knowledge Element

[588]

IV    Further Observations as to Mr Lehrmann’s “Critical” Submission

[603]

V    The Role of Implied Admissions and Consciousness of Guilt

[613]

VI    Conclusion on Rape

[620]

VII    Differences between Imputations

[622]

I    FINDINGS AS TO RELEVANT POST-INCIDENT CONDUCT

[630]

I.1    Introduction

[630]

I.2    The Immediate Aftermath: Miscellaneous Matters Referred to in Submissions

[632]

I.3    The Role of the AFP and the 2019 Decision of Ms Higgins not to Proceed

[656]

I.4     Why and When the PMO was told and Support Services

[708]

I.5     The Move to Western Australia

[719]

I.6     CCTV Footage

[733]

I.7     Later Events

[740]

I    The Canberra Times Enquiry

[742]

II    The Broadcast of the Four Corners Programmes

[754]

J    FACTUAL FINDINGS OF RELEVANCE TO THE SECTION 30 DEFENCE

[760]

J.1    Introduction

[760]

J.2    The Genesis of the Story and the “Timeline” Document

[767]

J.3    The Investigation and Preparation

[782]

I    The First Interview, Weaponisation, Incomplete Data, and the Bruise Photograph

[789]

II    The Next Steps

[832]

III    The Second Interview – 2 February 2021

[843]

IV    Further Steps Before Broadcast

[849]

V    Seeking Comment

[862]

VI    The Treatment of the Government Response

[875]

VII    Statutory Declaration

[886]

VIII    The Broadcast

[889]

J.4    The Position of Ms Wilkinson

[899]

K    THE SECTION 30 DEFENCE

[901]

K.1    Introduction

[901]

K.2    The Proper Construction of Section 30

[909]

I    The Respondents’ Submissions

[909]

II    Conclusion on Construction Issue

[919]

K.3    Introduction and the General Approach of the Respondents

[922]

K.4    Why the Network Ten Conduct was not Reasonable

[936]

K.5    Ms Wilkinson: Distinguishing Matters and an Evaluation

[938]

L    OTHER DEFENCES

[964]

L.1    General Observations

[964]

L.2    Common Law Justification

[965]

L.3    Lange Qualified Privilege

[967]

L.4    Common Law Qualified Privilege

[968]

M    DAMAGES AND OTHER RELIEF

[971]

M.1    Introduction

[971]

M.2    General Observations

[976]

M.3    Three Particular Issues as to Ordinary Compensatory Damages

[980]

I    No Damages or Nominal Damages

[981]

II    The English Cases on Abuse of Process by a Claimant

[989]

III    How to Use Evidence of Misconduct

[998]

M.3    Mr Lehrmann’s Submissions on Ordinary Damages

[1009]

M.4    Matters Relevant to Aggravated Damages

[1023]

I    The Bases Pressed

[1023]

II    Reckless Indifference to Truth of the Imputations

[1026]

III    Failure to Seek Comment Adequately

[1029]

IV    The Logies Speech and Ms Smithies’ Advice

[1032]

M.5    Conclusions on Ordinary Compensatory Damages

[1055]

I    Severity

[1056]

II    Hurt to Feelings

[1057]

III    Damage to Reputation

[1063]

Causation

[1065]

Conduct of Mr Lehrmann

[1069]

IV    Extent of Publication

[1075]

M.6    Conclusions on Aggravated Damages

[1077]

M.7    Quantum

[1089]

N    CONCLUSION AND ORDERS

[1091]

ANNEXURE A – TRANSCRIPT OF PROJECT PROGRAMME (EX 1)

ANNEXURE B – NOTES OF MS FIONA BROWN (EX R87)

ANNEXURE CMINISTERIAL SUITE FLOORPLAN (EX R1)

ANNEXURE DCCTV IMAGES FROM THE DOCK (EX R17–R30)

ANNEXURE E – EMAIL FROM ASSOCIATE DATED 9 APRIL 2024

LEE J:

A    OPENING REMARKS

1    Mr Bruce Lehrmann sues Network Ten Pty Limited (Network Ten) and Ms Lisa Wilkinson (together, the respondents) in defamation in relation to an episode of Network Ten’s The Project programme (Project programme).

2    It is a singular case: the underlying controversy has become a cause célèbre. Indeed, given its unexpected detours and the collateral damage it has occasioned, it might be more fitting to describe it as an omnishambles.

3    For some people, any unwelcome findings will be peremptorily dismissed. The reasoning process, including the drawing of fine distinctions based upon the subtleties of the evidence, will be of no interest. This reaction is inevitable given that several observers have a Rorschach test-like response to this controversy and fasten doggedly upon the truth” as they perceive it. Their response is visceral because the “truth” is revealed and declaimed, rather than proven and explained. Some jump to predetermined conclusions because they are disposed to be sceptical about complaints of sexual assault and hold stereotyped beliefs about the expected behaviour of rape victims, described by social scientists as “rape myths”; others say they “believe all women”, surrendering their critical faculties by embracing and acting upon a slogan arising out of the #MeToo movement. Some have predetermined views as to the existence or otherwise of a conspiracy to suppress a rape for political purposes. For more than a few, this dispute has become a proxy for broader cultural and political conflicts.

4    This judgment is not written for people who have made up their mind before any evidence was adduced or are content to rest upon preconceived opinions. It is written to set out my factual findings comprehensively and explain my decision to the parties and to the open and fair-minded.

5    To achieve this end, from the start of this case, I have attempted to ensure as transparent a process as possible, conscious that a trial conducted in public, accessible to the public, and only upon evidence and submissions made fully available to the public, was the best security for confidence of the fair-minded in the impartiality and efficiency of the justice system.

6    An astute observer would have gleaned from the trial that this case is not as straightforward as some commentary might suggest. In part, this is because the primary defence hinges on the truth of an allegation of sexual assault behind closed doors. Only one man and one woman know the truth with certitude.

7    For an impartial outsider seeking to divine the truth (or, more accurately, ascertaining what most likely happened), two connected obstacles emerged.

8    The first is, at bottom, this is a credit case involving two people who are both, in different ways, unreliable historians.

9    Countless scholarly articles have been written seeking to explain the frailties of human memory and why it is that different people may remember the same event in different ways. People give unreliable evidence for various reasons and distinguishing between a false memory and a lie can often be difficult. Aspects of so-called “witness demeanour” or physiological signs of deceit are of little use unless the witness is cognitively aware of their deception. Recognising these realities, judges are reluctant to characterise a false representation as a lie unless another explanation is unavailable and it is necessary to do so to resolve a controversy. But as we will see, this is a case where credit findings are central and sometimes an explanation other than mendacity is not rationally available.

10    To remark that Mr Lehrmann was a poor witness is an exercise in understatement. As I will explain, his attachment to the truth was a tenuous one, informed not by faithfulness to his affirmation but by fashioning his responses in what he perceived to be his forensic interests. Ms Brittany Higgins, Mr Lehrmann’s accuser, was also an unsatisfactory witness who made some allegations that made her a heroine to one group of partisans, but when examined forensically, have undermined her general credibility to a disinterested fact-finder.

11    The second and related obstacle was the assertion that what went on between these two young and relatively immature staffers led to much more. By early 2021, allegations of wrongdoing had burgeoned far beyond sexual assault. It was said a sexual assault victim had been forced by malefactors to choose between her career and justice. The perceived need to expose misconduct (and the institutional factors that allowed it) meant the rape allegation was not pursued in the orthodox way through the criminal justice system, which provides for complainant anonymity.

12    As we will also see, when examined properly and without partiality, the cover-up allegation was objectively short on facts, but long on speculation and internal inconsistencies – trying to particularise it during the evidence was like trying to grab a column of smoke. But despite its logical and evidentiary flaws, Ms Higgins boyfriend selected and contacted two journalists and then Ms Higgins advanced her account to them, and through them, to others. From the first moment, the cover-up component was promoted and recognised as the most important part of the narrative. The various controversies traceable to its publication resulted in the legal challenge of determining what happened late one night in 2019 becoming much more difficult than would otherwise have been the case.

13    I will come to the legal issues, the principles that have guided fact-finding, some observations concerning the credit of various witnesses, and then my findings as to what relevantly went on. But before doing so, I will explain some uncontroversial matters and the issues in the case.

B    THE PARTICIPANTS AND SOME BACKGROUND FACTS

14    Most of the important facts are contested. This section records some uncontroversial details as to the principal participants, the publications, and this and related proceedings.

B.1    The Dramatis Personae

I    Mr Lehrmann

15    Mr Lehrmann was born in 1995 in Texas. His father died in Mr Lehrmann’s infancy.

16    His mother, who was born in Australia, relocated to northern New South Wales with Mr Lehrmann and his younger sister. The family then moved to Toowoomba in Mr Lehrmann’s final years of primary school.

17    From a young age, Mr Lehrmann had a preternatural interest in politics. Upon leaving school, in 2014, he moved to Canberra to undertake study at the Australian National University. His first foray into politics came at the time he started university, as an electorate officer.

18    In March 2016, Mr Lehrmann commenced employment as an office manager with the then Commonwealth Attorney-General, before assuming a role as a health policy advisor to the then Assistant Minister for Health, in August 2017.

19    At the end of 2017, Mr Lehrmann commenced employment as a health policy advisor with the then Minister for Rural Health and Sport, a position he held until October 2018, when he became a policy advisor to the Hon Senator Linda Reynolds CSC, then Assistant Minister for Home Affairs.

II    Ms Higgins

20    Ms Higgins was born in Queensland in 1994. She grew up on the Gold Coast, completing her schooling there and later graduated from Griffith University. In 2017, she was employed as a staffer for Mr Samuel O’Connor MP, a member of the Queensland Parliament.

21    Ms Higgins moved to Canberra around September 2018 to commence work as an administrative assistant in the Ministerial office of the Hon Steven Ciobo MP. Around this time, she began a relationship with Mr Benjamin Dillaway, the media advisor to Mr Ciobo, which lasted until February or early March 2019. The pair remained close (and at times intimate) friends.

22    In early March 2019, Mr Ciobo announced his pending resignation and, shortly thereafter, Senator Reynolds received a commission to become the Minister for Defence Industry.

23    Ms Higgins was then successful in her application for a role as an administrative officer and junior media advisor in Senator Reynolds’ office.

III    Ms Wilkinson

24    Ms Wilkinson has been a journalist for over forty years. She has held a wide range of prominent roles. Her beginnings were in print journalism. Her first job was as an editorial assistant and cadet journalist at Dolly magazine. She held various roles at Dolly and Cleo magazines from 1978 to 1995, including rising to become editor-in-chief of both magazines from 1988 to 1995, and was editor-at-large of the Australian Women’s Weekly from 1999 to 2007.

25    Ms Wilkinson first turned to television in 1996. She rose to lounge-room prominence in the early 2000s, as co-host of The Morning Shift. Between 2004 and 2007, she was a news contributor and regular fill-in co-host of the Seven Network’s Sunrise and Weekend Sunrise programmes and, from 2007 to 2017, co-host of Today on the Nine Network.

26    In 2017, Ms Wilkinson became co-host of The Project and The Sunday Project, a role she held at the time of publication.

IV    Mr Angus Llewellyn

27    Mr Angus Llewellyn has been a producer for The Project since 2019. He is employed by 7PM Company Pty Ltd, which provides Network Ten with production services for The Project.

28    Mr Llewellyn is highly experienced and has held various producer roles in radio, including at the ABC, Radio 2UE, and television programmes, including the Seven Network’s Sunday Night; SBS’s Dateline and Insight; and the ABC’s Lateline.

29    Ms Wilkinson and Mr Llewellyn are both based in Sydney and have frequently worked together since about October 2019. They first met in about 2006 when Mr Llewellyn worked with Ms Wilkinson’s husband.

B.2    Publication of the Impugned Matters

30    On the morning of 15 February 2021, an article entitled “Young staffer Brittany Higgins says she was raped at Parliament House”, authored by Ms Samantha Maiden (Maiden article), was published on the news.com.au website.

31    Mr Lehrmann became aware of the Maiden article around the time it was published. I have set out the relevant chronology in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 (limitation judgment) and do not propose to repeat it here.

32    It suffices to note that by 2pm that day, Mr Lehrmann had been informed that “government sources” were identifying him as the man accused of sexually assaulting Ms Higgins. His work supervisor, Mr Joshua Fett, informed Mr Lehrmann that Ms Rosie Lewis, a journalist at The Australian, had emailed Mr Fett to this effect.

33    That evening, Network Ten broadcast the Project programme, and republished it on the 10 Play website and The Project’s YouTube channel shortly thereafter. Mr Lehrmann watched the broadcast live from his then solicitor’s office.

34    It is common ground that the television broadcast attracted a national audience of over 725,000 people, from every state and territory. The publication on the 10 Play website had over 17,000 views, and the publication on YouTube had nearly 190,000 views.

B.3    The Criminal Proceeding

35    On 17 August 2021, Mr Lehrmann was charged with one count of engaging in sexual intercourse with Ms Higgins without her consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act). On the same day, Mr Lehrmann was identified by mainstream media outlets as the person accused of the offence by Ms Higgins.

36    The trial was originally fixed to commence in the Supreme Court of the Australian Capital Territory on 27 June 2022, but was vacated by McCallum CJ six days earlier for reasons explained in R v Lehrmann (No 3) [2022] ACTSC 145; (2022) 299 A Crim R 276. The trial ultimately commenced before McCallum CJ and a jury of sixteen on 4 October 2022. A jury of twelve retired on 19 October 2022 and was discharged eight days later by reason of juror misconduct.

37    On 2 December 2022, the Director of Public Prosecutions, Mr Shane Drumgold SC, announced that he did not intend to proceed with the prosecution. The reason was said to be the ill-health of the complainant, Ms Higgins.

B.4    Procedural History

38    Mr Lehrmann brought this proceeding and a (now discontinued) proceeding against News Life Media and Ms Maiden (News Life proceeding) out of time, requiring him to seek an extension of the limitation period, which was granted for the reasons given in the limitation judgment.

39    He later commenced a proceeding within time against the ABC (ABC proceeding) in relation to the broadcast of an address given by Ms Higgins, alongside Ms Grace Tame, at the National Press Club in February 2022. The ABC proceeding travelled with this proceeding until the first day of the trial, when a settlement was formalised.

40    In December 2023, competing cross-claims were filed in this Court as between Ms Wilkinson and Network Ten in relation to an indemnity for legal costs (cross-claims). I directed that the cross-claims be heard separately, and they have been the subject of a judgment (Lehrmann v Network Ten Pty Limited (Cross-claims) [2024] FCA 102 (cross-claims judgment)). The only present relevance of the cross-claims is that each party agreed that evidence on the cross-claims be evidence in this proceeding.

C    THE PUBLICATIONS

41    Mr Lehrmann sues on three matters published on 15 February 2021, being the Project programme:

(1)    broadcast on Network Ten;

(2)    published on the 10 Play website; and

(3)    published on The Project’s YouTube channel.

42    The substance of each matter is relevantly identical, and the transcript of the programme, being an aide memoire to Ex 1, is annexed to these reasons as Annexure A. I will refer to the impugned matters collectively as the Project programme.

43    Mr Lehrmann in the statement of claim (SOC) says the Project programme, in its natural and ordinary meaning, was defamatory of him and carried the following imputations:

SOC Reference

Imputation

[4(a)]; [6(a)]; [8(a)]

[Mr Lehrmann] raped Brittany Higgins in Defence Minister Linda Reynolds’ office in 2019.

[4(b)]; [6(b)]; [8(b)]

[Mr Lehrmann] continued to rape Brittany Higgins after she woke up mid-rape and was crying and telling him to stop at least half a dozen times.

[4(c)]; [6(c)]; [8(c)]

[Mr Lehrmann], whilst raping Brittany Higgins, crushed his leg against her leg so forcefully as to cause a large bruise.

[4(d)]; [6(d)]; [8(d)]

After [Mr Lehrmann] finished raping Brittany Higgins, he left her on a couch in a state of undress with her dress up around her waist.

44    Network Ten and Ms Wilkinson deny the matters concerned Mr Lehrmann but, if they did, they admit the pleaded imputations were conveyed, and are defamatory of Mr Lehrmann: Network Ten’s defence (at [4(b)], [6(b)], [8(b)]); Ms Wilkinson’s defence (at [4.3], [4.4], [6.3], [6.4], [8.3], [8.4]).

45    Both respondents also say the pleaded imputations do not differ in substance from one another: Network Ten’s defence (at [4(c)], [6(c)], [8(c)]); Ms Wilkinson’s defence (at [4.5], [6.5], [8.5]). As Ms Wilkinson puts it, the pleaded imputations “contain gratuitous and irrelevant rhetorical flourish that adds nothing to the defamatory sting of rape”.

46    What was conveyed by the Project programme was not in issue, and I do not propose to rehearse the uncontroversial principles as to defamatory meaning. In short, the question of what was conveyed and whether it is defamatory depends upon what the ordinary reasonable viewer would understand, and it is common ground that if the Project programme identified Mr Lehrmann, the hypothetical referee would understand it conveyed the pleaded meanings, with the sting being an accusation of rape.

D    IDENTIFICATION

D.1    Introduction

47    Identification is an essential element of defamation and Mr Lehrmann must establish the Project programme is about or “of and concerning him: s 8 of the Defamation Act 2005 (NSW) (Defamation Act). That is, Mr Lehrmann must show that at least one person who viewed the Project programme reasonably understood the allegations concerned him: David Syme & Co v Canavan (1918) 25 CLR 234 (at 238 per Isaacs J).

48    Despite the pleadings, the contest in this case is not, however, whether at least one person identified Mr Lehrmann, so as to perfect the cause of action. Instead, what is really in dispute is the extent of identification: that is, the persons (or classes of persons) who reasonably identified Mr Lehrmann, which is relevant to damages and the defence of common law qualified privilege.

49    Mr Lehrmann contends he was reasonably identified by three classes of persons, being those:

(1)    who either worked in Senator Reynolds’ office or had regular dealings with that office and, consequently, knew Mr Lehrmann: (a) was a “senior male advisor” to Senator Reynolds; (b) had previously worked for Senator Reynolds in the Home Affairs portfolio; (c) had attended a drinks event with Ms Higgins and other contacts and colleagues in Defence on the night of the alleged rape; (d) was called into a meeting with Ms Fiona Brown, Chief of Staff to Senator Reynolds, on the following Tuesday, after which he started packing up his belongings; and (e) by February 2021, had obtained a job in Sydney;

(2)    who worked in Parliament, being federal politicians, assistants and staffers, journalists, and other persons, including family, friends and acquaintances of Mr Lehrmann; such that Mr Lehrmann’s identity must have been known generally to such persons through discussions and, provided they were not already aware, they would have soon discovered that he was the subject of the Project programme; and

(3)    who were invited to speculate as to the identity of the person accused; such that a large, indeterminate number of viewers would have reasonably concluded, having read (or subsequently read) a series of social media posts and/or articles published online, that the programme identified Mr Lehrmann.

50    In establishing identification, Mr Lehrmann called Ms Kathleen Quinn, Ms Karly Abbott, and Mr David McDonald (identification witnesses). Additionally, Mr Lehrmann relies upon other witnesses who gave evidence that they identified Mr Lehrmann (either prior to airing or shortly thereafter).

51    I will return to this evidence below, but I will first expand upon the relevant principles.

D.2    Relevant Principles

52    The inquiry as to identification has two stages, which reflect the traditional and differing roles of judge and jury in a defamation case.

53    The first concerns whether, as a matter of law, the impugned publication is capable of identifying the applicant: that is, whether an ordinary sensible person could draw an inference that the publication referred to the applicant, with the Court’s function to determine the outer limits of the possible range of meanings: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 (at [133] per McColl JA, with whom Bathurst CJ and Gleeson JA agreed). Indeed, “great caution” is mandated at this stage because the conclusion which necessarily underpins a finding that the matter is incapable of conveying the pleaded imputations is that no viewer could reasonably understand the publication to bear any meaning outside the range delimited by the judge: Corby (at [136] per McColl JA). It is an “exercise in generosity not parsimony”: Berezovsky v Forbes [2001] EWCA Civ 1251 (at [16] per Sedley LJ).

54    The second stage is for the trier of fact to decide whether the publication actually identified the applicant. As noted above, the fact-finder must determine whether, upon the evidence, persons with special knowledge of the applicant reasonably understood the publication to concern him: David Syme (at 238 per Isaacs J). However, identification does not require that readers or viewers already have the requisite knowledge at the time of the publication: Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; (2015) 91 NSWLR 485 (at 503 [81] per Simpson JA, McColl JA agreeing).

55    Identification may be established by direct or indirect evidence. As Mason P observed in Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (at [57]), an indirect way is where the applicant gives evidence of being contacted by people in circumstances showing that such contact was obviously a response to what they read in the publication (it was said of one member of the New South Wales Bar now deceased that it was remarkable how often his clients seemed to be importuned by strangers in the street commenting upon defamatory publications).

56    A variant of such evidence is talk or “tittle tattle” among readers or viewers indicative of identification. The Court must be satisfied that such evidence is capable of supporting the inference that the responses to the defamatory matter showed that the persons concerned reasonably understood it to refer to the applicant.

57    Whether the identification was correct is relevant to the question of reasonableness. As Bryson JA (with whom Mason P and Tobias JA agreed) observed in Gardener v Nationwide News Pty Ltd [2007] NSWCA 10 (at [47]), any purpose for establishing that identification was reasonable is well satisfied if it can be shown the identification was correct: see also Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (at 371–374 per Samuels JA).

D.3    The Witnesses

58    As noted earlier, Mr Lehrmann adduced direct evidence from the identification witnesses, whose evidence I accept.

I    Ms Abbott

59    Ms Abbott met Mr Lehrmann around 2016 when he was employed in the Office of the Attorney-General. Since that time, she has “got to know [Mr Lehrmann] reasonably well” and considers him a friend (Abbott (at [6])).

60    Ms Abbott viewed the Project programme when broadcast and identified Mr Lehrmann because she knew he: (a) was an advisor to Senator Reynolds and, although he was not a “senior advisor”, he was senior to Ms Higgins; (b) had previously worked for Senator Reynolds in the Home Affairs portfolio; (c) was involved in “an incident involving Brittany” in the office which resulted in him being fired” (information received from a conversation in July 2019 with a colleague, Mr Drew Burland); and (d) worked in Sydney.

61    Ms Abbott was aware of these matters, at least in part, because she had read the Maiden article and connected the allegations to Mr Lehrmann from the conversation with Mr Burland in July 2019 (T48.40–45; T45.20–21). She had a conversation with Mr Dillaway in which he said, concerning the Maiden article, “This is Bruce” (Abbott (at [12])).

62    Ms Abbott explained that following the broadcast, there were conversations and exchanges of text messages among political staffers and other participants in the Canberra rumour mill about identity (Abbott (at [11]); T47.19–48.1; T49.7). In the context of these conversations, Ms Abbott’s evidence is that she “[did not] believe that there was any other specific names mentioned to me, but just a ‘Do you know who this is?’ Or …” (T47.42–44).

II    Ms Quinn    

63    Ms Quinn is Ms Abbott’s business partner.

64    Ms Quinn met Mr Lehrmann around 2016 and they interacted in work and social settings. She viewed the Project programme and identified Mr Lehrmann because he: (a) was an advisor to Senator Reynolds who was senior to Ms Higgins; (b) had previously worked with Senator Reynolds in the Home Affairs portfolio; and (c) ceased working for Senator Reynolds in about March 2019 and was working in Sydney for British American Tobacco (BAT) (Quinn (at [6])).

65    In cross-examination, Ms Quinn explained that prior to airing, she was aware of “a rumour that there had been a security incident in the office, and that was why Bruce had left” (T113.24–42). She discussed the Maiden article, and the fact that it was about Mr Lehrmann, with Ms Abbott prior to the broadcast (T114.34–116.5).

66    In the days following the broadcast, Ms Quinn noted the allegations were a “hot topic” of discussion among staffers (Abbott (at [8])). She recalled conversations with close to a dozen such people over a couple of days and recalled them saying that (T112.13–15):

Bruce was the person that had been identified in The Project broadcast and asking my opinion of his character and whether or not I had ever experienced anything untoward from him.

III    Mr McDonald    

67    Mr McDonald is a close friend of Mr Lehrmann and his family. He watched the Project programme with his wife when it was aired, to whom he said:this has to be about Bruce” (McDonald (at [7])).

68    Mr McDonald identified Mr Lehrmann from the programme because: (a) it stated that the former colleague was a male advisor to Senator Reynolds; (b) the person had previously worked for Senator Reynolds in the Home Affairs portfolio; and (c) the person had ceased working for Senator Reynolds in March 2019 and had moved to Sydney (McDonald (at [6]); T56.45–57.20). Mr McDonald promptly discussed the broadcast with his neighbour and said: “it looks like Bruce is in a bit of strife (McDonald (at [9])).

69    Notwithstanding those identifying facts, in cross-examination, Mr McDonald conceded that he could not exclude the possibility that there were other men working for Senator Reynolds who fell within the description above (T57.40–44).

IV    Other witnesses

70    Mr Lehrmann also relies upon other testimony adduced from witnesses of broader significance and to whose evidence I will return, in detail, below. Insofar as they gave evidence relevant to identification, it was as follows.

71    Ms Nicole Hamer explained she watched the broadcast and knew, at that time, that the alleged perpetrator was Mr Lehrmann (T1064.5–1066.4). Prior to publication, she recalled unspecific discussions among people working in Parliament about the upcoming programme, during which Mr Lehrmann was named (T1065.41–45). Ms Hamer did not understand at the time that there was any other person to whom the allegations could relate, but accepted in re-examination that different names were mentioned (T1069.32–41).

72    Mr Austin Wenke gave evidence he read the Maiden article on the morning of the broadcast and watched some (but not all) of the Project programme (T1126.7–8). Following the publication of the Maiden article, Mr Wenke agreed there was “a bit of chatter within Parliament House [about the story]” (T1125.11–22). He concluded the allegations in the Maiden article concerned Mr Lehrmann and he did not recall thinking the allegations could have referred to anyone else (T1125.24–41). He agreed it was fair to characterise the identity of the alleged perpetrator referred to in the Maiden article as an “open secret” within Parliament House (T1126.14–22).

73    Major Nikita Irvine watched the Project programme. She gave evidence she received questions about it from colleagues in the military but did not want to discuss it (T1207.1–36). Major Irvine identified Mr Lehrmann because (as we will see) Ms Higgins had disclosed details of the incident to her in March 2019 (T1207.35–36) (Irvine (at [60]–[61])).

74    Mr Dillaway gave evidence he read the Maiden article. He knew the allegations concerned Mr Lehrmann because Ms Higgins had told him in March 2019 that Mr Lehrmann had sexually assaulted her (Dillaway (at [42]–[50])). He gave evidence “what was in that story was consistent with what she had told me previously” (T1276.11–25) and that he had a vague recollection of watching the Project programme (T1277.13).

75    Mr Lehrmann himself gave evidence of the actions of various acquaintances (with whom he had not remained in contact) following the broadcast (see, for example, Ex 8). In particular, he referred to a screenshot of a Facebook Messenger group chat (which had included Mr Lehrmann) which showed an image of an “EJECT” button, followed by several members leaving the group chat (Ex 11).

D.4    Identification Established

76    While there is necessarily some degree of overlap, given it is in issue, it is best not to elide the two stages of the relevant inquiry.

77    As to the first, it is plain as a pikestaff the Project programme was capable of identifying Mr Lehrmann. As noted earlier, there were several tell-tales, being (Ex 1, Annexure A):

(1)    he was a “senior male advisor to Senator Reynolds who had a “special bond with her (lines 7–8), and was “a bit of a favourite [of the Senator]” (line 9);

(2)    he “had been advising her in the home affairs portfolio prior to [working in the Defence Industry portfolio]” (line 10);

(3)    he attended drinks with colleagues in Defence on 22 March 2019 (line 11);

(4)    the following Tuesday morning, Ms Brown called the alleged perpetrator in for a meeting, following which he “immediately walked out of the office and started packing up his things” (lines 53–55); and

(5)    the alleged perpetrator was, as at the date of broadcast, “working in Sydney … he’s got a good job” (line 157).

78    Even accounting for a certain degree of factual inaccuracy (for example, whether Mr Lehrmann was a “senior advisor), the references above correspond to the particularised knowledge of the applicant possessed by the identification witnesses and other witnesses: see Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd [2018] NSWCA 95; (2018) 97 NSWLR 739 (at 756 [77] per McColl JA). In the light of that special knowledge, the ordinary reasonable viewer possessing that knowledge could understand that Mr Lehrmann was the subject of the allegations.

79    As to the second stage, I am amply satisfied that Mr Lehrmann was in fact identified.

80    First, Mr Lehrmann was reasonably identified by persons with special knowledge. Each of the identification witnesses identified Mr Lehrmann with knowledge they had acquired by working in Parliament, or by reason of being a friend or family acquaintance. It is immaterial whether they identified Mr Lehrmann from the Maiden article: what matters is the identification witnesses reasonably identified Mr Lehrmann from information contained in the programme. With the exception of Mr McDonald, who could not exclude the possibility he thought the programme may have referred to another person, it is significant for the purposes of assessing reasonableness that Ms Abbott and Ms Quinn were correct in their identification.

81    Secondly, it is important that several witnesses gave evidence of gossip and rumour both before and after the Project programme was broadcast. The fact that such “chitter chatter” took place is indicative of the kind of evidence referred to in Pedavoli whereby recipients of such information tend to make efforts to discover identity, thereby expanding the circle of people with the requisite knowledge.

82    This is sufficient to establish identification and perfect the cause of action, but given the need to focus on the extent of identification, it is necessary to say something more.

83    Reliance by Mr Lehrmann upon the third category, being other persons who may have identified Mr Lehrmann by reason of the Twitter/X “firehose” or “grapevine effect” presents difficulties: see Kumova v Davison (No 2) [2023] FCA 1 (at [319]). Unlike other cases where the “Twittersphere” trends with a name following a publication, as Mr Lehrmann conceded in cross-examination, his solicitors, despite their best efforts, could not locate any Tweets around the time of the broadcast which named Mr Lehrmann as the subject of the Project programme, save for a Tweet published by True Crime Weekly (Ex 7; T484.33–485.33) together with some articles on a website Kangaroo Court of Australia (Ex 4, 5 and 6).

84    All of this, including Mr Lehrmann’s evidence as to being contacted on social media following the broadcast, reflects very modest social media dissemination compared to other defamations provoking speculation as to identity.

85    It was less a firehose and more the splutter of an insecurely fastened sprinkler.

86    Before leaving the topic of identification, for completeness, it is worth dealing with a discrete point made by Ms Wilkinson.

87    In her written and oral closing submissions, Ms Wilkinson referred to a number of authorities concerning “small group identification” and, in particular, the decision of Hunt J in McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 as authority for the proposition that in circumstances where there is a small group of persons referred to in an impugned publication, the matter is incapable of conveying an imputation of guilt unless it impugns every member of the class (at 488D–491D). In short, Ms Wilkinson submits this is relevant because Mr Lehrmann has not excluded the possibility that viewers reasonably identified him as one of a small group of persons who could have met the description of the alleged perpetrator, namely Mr Jesse Wotton, who worked for Senator Reynolds in March 2019.

88    I do not accept this submission, for the following reasons.

89    First, there were identifying facts which, for those armed with special knowledge, would have ruled Mr Wotton out as the alleged culprit; namely: (1) Mr Wotton did not leave Senator Reynolds’ office in March 2019; and (2) Mr Wotton was not working in Sydney in February 2021. Secondly, although not determinative of the question of identification by others, it is telling that when asked whether he was concerned that people might think he was the subject of Ms Higgins’ allegations, Mr Wotton gave evidence that he was not concerned because he was “quite confident in the fact that people [knew me well] … or were in a position to find out should they make their own inquiries” (T1092.32–37). Thirdly, prior to broadcast, Network Ten successfully took steps to guard against confusion with any other male who worked in Senator Reynolds’ office at the time. As Mr Llewellyn explained (Llewellyn (at [167(a)])):

We were very conscious that we did not want to inadvertently identify the wrong person as being the alleged perpetrator. We had to give sufficient detail to exclude other males who worked in Linda Reynolds’ office at the relevant time.

E    APPROACH TO FACT-FINDING, ONUS, AND THE STANDARD OF PROOF

E.1    General

90    It is next appropriate to set out how I have directed myself as to fact-finding, the burden of proof, the standard of proof, and other more particular matters given the nature of the principal allegation.

91    Without introducing complications arising from the differing ways in which the phrase burden of proof has been usedand the differences between legal and evidential burdens (as to which see C R Williams, Burdens and Standards in Civil Litigation (2003) 25(2) Sydney Law Review 165), I will use the expression burden or onus of proof as simply being the identification of which party has to demonstrate the case or an aspect of the case propounded, whereas the standard of proof is the applicable benchmark that the evidence adduced must meet to discharge that onus.

92    The question of who bears the onus in aspects of this case is straightforward. Mr Lehrmann had (and has successfully discharged) his onus in proving he has been defamed as alleged; the respondents now bear the onus of proof with respect to their defences. If those defences fail and Mr Lehrmann is entitled to damages, he will then be required to prove the compensatory damages he seeks.

93    What this means is that in order to make out the defence of substantial truth, the respondents need to discharge their onus of proving that Mr Lehrmann raped Ms Higgins. The nature of this aspect of the forensic contest brings with it considerations that are necessary to canvass in further detail.

94    I have discussed the relevant principles at length a number of times (see, for example, Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (at 324–325 [284]–[288])). Notwithstanding this, it is worth referring to Besanko J’s recent survey of matters relevant to onus and proof in Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 41) [2023] FCA 555. In Roberts-Smith, his Honour dealt with a number of matters relevant to: (a) the onus of proof in a justification or substantial truth case (at [93][94]); and (b) the standard of proof in a case where there is a serious allegation (at [95][110]). With respect, his Honour’s exposition in relation to these matters is comprehensive. I gratefully adopt the above-mentioned paragraphs.

95    At the risk of supererogation, I will, however, say something in my own words. I will also deal with the agreed facts relevant to Ms Higgins’ credit and some miscellaneous matters, which have informed my approach to the evidence.

E.2    Relevant Observations as to Standard of Proof

96    As to the standard of proof, the starting (and end) point is s 140 of the Evidence Act 1995 (Cth) (EA), which relevantly provides:

Civil proceedings: standard of proof

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject-matter of the proceeding; and

(c)    the gravity of the matters alleged.

97    The matters set out in subsection (2)(a), (b) and (c) are mandatory but not exhaustive considerations; other considerations may also be relevant, including the inherent likelihood of the occurrence of the fact alleged and the notion that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 (at 65 per Lord Mansfield).

98    The concept used in subsection (1), being the “balance of probabilities”, is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per Dixon J). The “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”: Jones v Dunkel (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found.

99    Justice Hodgson put it differently, but to the same effect, by observing that when deciding facts, a civil tribunal of fact is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”: see D H Hodgson, The Scales of Justice: Probability and Proof in Legal Fact-finding (1995) 69 Australian Law Journal 731; Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (at 576 [14]–[16] per Hodgson JA, Beazley JA agreeing)

100    Whatever way it is put, a “[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact”: NOM v DPP [2012] VSCA 198; (2012) 38 VR 618 (at 655 [124] per Redlich and Harper JJA and Curtain AJA); Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164 (at 176 [51] per Campbell JA, Bergin CJ in Eq and Sackville AJA agreeing).

101    Although s 140 EA is now the starting point, the concepts it incorporates are neither new nor novel. Any fact-finding inquiry depends upon context. As Kiefel CJ, Gageler and Jagot JJ recently observed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (at 874–875 [57]), the statutory provision:

reflects the position of the common law that the gravity of the fact sought to be proved is relevant to the degree of persuasion of the mind according to the balance of probabilities. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved.

(Citations omitted)

102    As those acting for Mr Lehrmann correctly state, in Briginshaw, Dixon J (at 362) emphasised that reasonable satisfaction is not attained independently of the nature and the consequence of the fact to be proved, and his Honour referred to the seriousness of the allegation, the inherent unlikelihood of the alleged occurrence, or the gravity of the consequences flowing from the finding in question as matters which could all properly bear upon whether the court is reasonably satisfied or feels actual persuasion. The other members of the Court in Briginshaw also referred to the seriousness of the allegation sought to be proved as a matter relevant to whether or not the tribunal of fact could be satisfied of the fact alleged (at 347 per Latham CJ; 350 per Rich J; 353 per Starke J; and 372 per McTiernan J).

103    None of this is inconsistent with what I said in Kumova v Davison (No 2) (at [262]), where I notedthe focus on the gravity of the finding is linked to the notion that the Court takes into account the inherent unlikelihood of alleged misconduct”. They are linked in that both the inherent unlikelihood of the alleged occurrence and the gravity of the consequences each require consideration.

104    An allegation of rape ranks high in the calendar of criminal conduct, and, at the risk of repetition, the allegation needs to be approached with “much care and cautionand with weight being given to the presumption of innocence and exactness of proof expected: Briginshaw (at 347 per Latham CJ; 363 per Dixon J). Further, a finding of rape would, needless to say, be seriously damaging to Mr Lehrmann’s reputation and this consequence properly gives one pause before making it: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 (at 345–346 [68]–[69] per Mansfield and Gilmour JJ).

E.3    The Practical Difference Between the Civil and Criminal Standard

105    Although I will explain below why the allegations to be proved in making out the truth defence and the allegations to be made out by the Crown in the criminal proceeding are not identical, this is an example where the same essential wrongdoing is to be assessed by reference to both the criminal and the civil standard. Such cases are not common, and they bring into sharp focus cardinal aspects of our legal system.

106    Most first-year law students are introduced to the possibility of error of wrongful convictions and erroneous acquittals. They are (or at least were) made aware of what is often referred to as Blackstone’s ratio, being the fourth of five discussions of policy by Sir William Blackstone in his 1765 treatise Commentaries on the Laws of England, vol IV, ch 27 (Oxford University Press, 2016) (at 352) that “all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer”. I digress to note that this notion is ancient: the idea it is better to allow some guilty to escape rather than punish an innocent has Biblical origins (Genesis, 18:2332) and later was the subject of discussion by Talmudic scholars (see Maimonides, The Commandments, Commandment No 290 (Charles B. Chavel, trans. 1967) (at 270)). Indeed, sixteen years before Blackstone, the concept had been expressed by Voltaire – albeit in a different ratio: tis much more prudence to acquit two persons, tho actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent: Voltaire, Zadig; or, The Book of Fate: An Oriental History (1749) (at 53).

107    In any event, this moral choice accommodating the possibility of error has been reflected in fundamental aspects of our criminal justice system, including the presumption of innocence and the logically connected requirement the burden of proof rests with the prosecution. It also finds reflection in the rigour of the criminal law standard of proof.

108    Hence, although it may be trite, it is worth stressing that in contrast to the present forensic contest, if this allegation of rape was to be determined at a criminal trial, it would not be open for the tribunal of fact to find the case proven unless it is satisfied that it has been proved beyond reasonable doubt: s 141(1) EA.

109    So even though it is necessary to bear in mind the mandatory s 140(2) EA factors and the cogency of the evidence necessary to establish rape on the balance of probabilities, and that the rape will not be proven unless I feel an actual persuasion of its occurrence, the difference between the criminal and civil standard of proof is substantive and can be decisive in dealing with the same underlying allegation.

110    Apart from anything else, this difference is evident from the necessity that in a criminal trial, the facts as established must be such as to exclude all reasonable hypotheses consistent with innocence.

111    By way of useful summary, as was emphasised by the High Court in Rejfek v McElroy (1965) 112 CLR 517 (at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ):

[t]he difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance.  No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.

E.4    Assessing the Credit of a Complainant of Sexual Assault

112    Another aspect of the context of this fact-finding exercise is that the determination of the justification defence involves, among other things, consideration of the credibility of evidence given by Ms Higgins, a person who alleges she is a victim of a sexual assault.

113    Prior to trial, Network Ten served purported expert evidence seeking to establish that aspects of Ms Higgins’ behaviour were not demonstrative of untruthfulness by reference to common or usual patterns of behaviour (as was anticipated would be asserted by Mr Lehrmann in cross-examination). This evidence was not proposed to be adduced by Network Ten in support of a submission that it was probable Ms Higgins was telling the truth, nor that her behaviour following the alleged rape rendered it more or less likely that the assault had occurred as alleged. Rather, the opinion evidence was said to support the proposition that any counterintuitive behaviour relied upon by Mr Lehrmann was of neutral significance.

114    It was a type of evidence discussed by Associate Professor Jacqueline Horan and Professor Jane Goodman-Delahunty in their article Expert Evidence to Counteract Jury Misconceptions about Consent in Sexual Assault Cases: Failures and Lessons Learned (2020) 43(2) UNSW Law Journal 707. In that article (dealing with how so-called “rape myths” play a role in jury decision-making), the authors observed (at 710–11):

Legal authorities in Australia, Canada, New Zealand, the United Kingdom and the United States of America accept that sexual assault myths and misconceptions have a potential to exert an undue influence on triers of fact when deliberating about a sexual assault case. To avoid this undesirable influence, courts rely on traditional processes to educate juries so that they can better assess the evidence in a sexual assault trial on a sound factual basis. The two primary mechanisms to counteract the undue influence of sexual assault myths are expert evidence and judicial directions.

Over the last decade, counterintuitive expert evidence has been permitted to educate the jury as to how complainants vary in their behaviour both during and following a sexual assault. Legal practitioners and academics have noted that this provision remains underused, despite the widely acknowledged need for this type of educative intervention.

115    Such opinions as to counterintuitive evidence have been admitted under s 108C(1) EA in criminal sexual assault trials in a number of cases, including: Hoyle v R [2018] ACTCA 42; (2018) 339 FLR 11 (at 46–48 [223]–[244] per Murrell CJ, Burns and North JJ); MA v R [2013] VSCA 20; (2013) 226 A Crim R 575 (at 586–587 [45]–[52] per Osborn JA; at 595 [95] per Redlich and Whelan JJA); R v Kirkham [2020] NSWDC 658 (at [41][42] per McLennan DCJ); Aziz (a pseudonym) v R [2022] NSWCCA 76; (2022) 297 A Crim R 345 (at 355–363 [49][92] per Simpson AJA, Lonergan J agreeing).

116    The evidence was objected to by Mr Lehrmann on a number of grounds, which are now unnecessary to detail. Prior to ruling on the objections, I raised with the parties my preliminary view that even if the evidence was admissible, it would be, at best, of marginal utility in circumstances where: (a) this was a judge-alone trial; and (b) that subject to submissions to the contrary, I considered it would be appropriate to direct myself as to the impact of alleged counterintuitive conduct in a manner consistent with some foundational propositions referred to in the proposed evidence which, it seemed to me, simply reflected the accumulated experience of the common law (seen in standard directions) or in ordinary human experience.

117    Sensibly, both parties agreed, and it became unnecessary to deal with admissibility or discretionary exclusion issues, as the following became common ground as agreed facts pursuant to s 191 EA (Agreed Facts dated 18 December 2023 (agreed facts)):

(1)    trauma has a severe impact on memory by splintering and fragmenting memories; such that semantic or meaning elements become separated from emotion; and interfering with the timespan memories require to consolidate and become permanent;

(2)    due to the potential for cuing of emotional responses to fragmented memories, memory can change, be subject to reconsolidation effects, and even when these effects are not marked initially, memories may remain labile for some time (thus changes in what the person reports as their memory of an event can be expected);

(3)    lack of clarity and confused accounts can be expected until such time as the memory has consolidated;

(4)    inconsistencies in reporting following a traumatic event are often observed and explicable through underlying theories of trauma and memory function;

(5)    omissions can be understood as alterations in awareness due to high arousal at the time of the event that consolidate over time;

(6)    inconsistency is often observed in reliable reports of sexual assault and is not ipso facto a measure of deception;

(7)    in understanding the account of an alleged survivor, a person must consider how that account was elicited; this includes the skill and attitudes towards the person by the investigating officers; the time elapsed between the traumatic event and the formal interview; and the psychological/emotional state of the person being interviewed at the time of interview;

(8)    the first forensic interview is potentially a trigger for intrusive thoughts that can lead to fragmentation of memory and dissociation; patterns of behaviour such as high confidence and clarity in the account are not helpful in determining whether the account is accurate;

(9)    despite the belief that the emergence of inconsistencies across interviews is a sign of lying (people cant keep their story straight), the literature on memory, impacts of trauma and the dynamic between interviewee and the interviewer must be considered; and

(10)    multiple interviews are typically necessary to construct a clear narrative of events; however, the consequence of these multiple interviews may be patterns of inconsistency or omissions especially early in the interview process (which need to be carefully evaluated but are not in and of themselves necessarily indicative of deception or accuracy).

118    Consistently with the agreement of the parties, to the extent these propositions are relevant, I will bear them in mind in assessing the impact of any counterintuitive behaviour pointed to by Mr Lehrmann, after the alleged assault, on Ms Higgins’ credit.

119    In a similarly helpful and constructive way, the parties also agreed facts as to the impact of acute alcohol intoxication, in that it has:

(1)    a significant and negative effect on memory as it can impair the memory for behaviour and motivation of all parties involved in a sexual act, including a sexually aggressive act; and

(2)    been shown to impair judgment; impact negatively on executive function; and impair attention to environmental cues; it can lead to fragmentary memories that slowly recover and consolidate and from a forensic perspective, this process of fragmentation of memory with at times slow recovery may lead to apparent inconsistency and omissions between interviews.

120    Although not an agreed fact, there is a further matter worth mentioning about alcohol consumption that is uncontroversial. As was pointed out by Professor Julia Quilter, Professor Luke McNamara and Ms Melissa Porter in their article The Nature and Purpose of Complainant Intoxication Evidence in Rape Trials: A Study of Australian Appellate Court Decisions (2022) 43(2) Adelaide Law Review 606, alcohol consumption is “strongly associated with sexual violence crimes, including rape” (at 607). A review of cases, however, suggests that complainant intoxication evidence has historically been more likely to impede, rather than support, the prosecution’s ability to prove non-consent, because it can be used to: suggest consent based on a loss of inhibition narrative; and/or challenge the credibility of the complainant as a witness and the reliability of their account.

121    But here, of course, the evidence adduced by Mr Lehrmann and the forensic choices he has made means he does not directly advance a “loss of inhibition” narrative and, significantly, any submission made as to the reliability of Ms Higgins as someone affected by alcohol is also relevant (if the evidence otherwise establishes sex took place) to the question of whether she was so affected by alcohol as to be incapable of consenting to sex.

E.5    The Importance of Contemporaneous Representations

122    In a complex commercial case, Webb v GetSwift Limited (No 5) [2019] FCA 1533, I noted the following about the process of fact-finding (at [17]–[18]):

[17]    what matters most in the determination of the issues in cases such as this is the analysis of such contemporaneous notes and documents as may exist and the probabilities that can be derived from these documents and any other objective facts. ...

[18]    As Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]–[23], there are a number of difficulties with oral evidence based on recollection of events given the unreliability of human memory. Moreover, considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial [T]he surest guide for deciding the case will be as identified by Leggatt J at [22]:

… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on the witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.

123    As the Full Court later observed in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; (2018) 396 ALR 193 (at 254 [239] per Allsop CJ, Besanko and Middleton JJ), this approach might be best seen as a helpful working hypothesis, rather than something to be enshrined in any rule. Although these observations were made in the context of fact-finding in commercial cases, this does not mean they are anything but apposite to the fact-finding task to be undertaken in this defamation proceeding.

124    Moreover, in this case, in addition to file notes, texts, social media messages and emails, hours of audio, video and closed-circuit television (CCTV) footage has been adduced into evidence. I have reviewed this contemporaneous material and, for my manifold sins, have listened or watched all the audio-visual records in evidence. I have trudged unyieldingly through this material because insofar as it casts light on the relevant issues, these contemporaneous records are a far surer guide as to what happened than ex post facto accounts or rationalisations, or unverifiable assertions as to what people felt.

125    The helpful working hypothesis of paying close regard to the contemporaneous documents and representations to disinterested third parties is of signal importance, especially where, as I will explain, I have misgivings as to the reliability of aspects of the accounts given by a number of important witnesses.

E.6    The Court is Not Bound to Accept Either of the Parties’ Accounts

126    As I will explain further below, the particularised allegation made by the respondents brings with it the requirement to prove:

(1)    that, at the time and place alleged (that is, at Parliament House on 23 March 2019), Mr Lehrmann had sexual intercourse with Ms Higgins;

(2)    without Ms Higgins’ consent; and

(3)    knowing Ms Higgins did not consent.

127    It is notorious that in many rape trials, the forensic battleground is whether the Crown can prove beyond reasonable doubt the second element (non-consent element) and the third element (knowledge element). In recent times, law reformers have focused attention on whether it is appropriate that consent to sexual activity must be communicated by words or actions, such that there is a responsibility to take steps to find out whether the other person is consenting. This has spurred some recent legislative change: see, for example, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW).

128    It is beyond the scope of this judgment to discuss these changes, but as the Victorian Law Reform Commission recently put it in its report Improving the Justice System Response to Sexual Offences: Report (September 2021) (at [19.13]), some of the features of the criminal justice system:

make sexual offences more difficult to prove in court. By their nature, sexual offending often happens in private, without other witnesses. The accused does not have to give evidence because they have a right to silence. For rape, the need to prove there was no consent means that many cases will end up focusing on the complainant.

129    What is notable about this civil case, and the criminal case that preceded it, is that by reason of Mr Lehrmann’s forensic position to contest the establishment of the first element (that sexual intercourse occurred), he has not engaged directly (through challenging the Crown case at the criminal trial or by way of evidence before me) with the reality and appreciation of consent.

130    Specifically, Mr Lehrmann has advanced an account that he came back to the Ministerial Suite accompanied by Ms Higgins for them to then go their separate ways: not only was there no sex, but no intimacy of any kind.

131    Below I explain why this aspect of Mr Lehrmann’s evidence is stuff and nonsense, but for present purposes, this conclusion makes it necessary to point out that in general, disbelief of one witness’s account does not establish the contrary, or that a witness giving a contrary account must be believed: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 (at 385–386 [60] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

132    Of course, if I am ultimately unable to make a finding one way or another as to what actually happened, it is open to decide the issue on the basis that the party who bears the burden of proof on this issue (that is, the respondents) have failed to discharge their burden: Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 (at 955956 per Lord Brandon, Lords Fraser, Diplock, Roskill and Templeman agreeing). Relatedly, and importantly, given my rejection of Mr Lehrmann’s account of what went on, it must be borne in mind that a civil onus of proof is not discharged by mere disbelief in opposing evidence (see, for example, in the context of a criminal onus, Liberato v R (1985) 159 CLR 507 (at 515 per Brennan J)).

E.7    Multiple Available Hypotheses and Onus

133    Related to the last point, it is also necessary to consider the existence and cogency of other hypotheses open on the evidence.

134    Recently, in Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391, Perram J, in an unusual circumstantial case (and with apologies to those, like me, who thought that algebra would not be involved in this case) observed (at [21]):

Where there are only two competing hypotheses that between them account for the universe of possibilities open on the evidence, a court’s satisfaction that one is more likely than the other will entail that the occurrence of the fact supported by the more likely hypothesis is proved on the civil standard. Whilst it is important not to approach the civil standard in an excessively arithmetical way in terms of numeric probabilities it can be useful to do so to illustrate some consequences in a circumstantial case where multiple hypotheses are in competition with each other. For example, where there are only two competing hypotheses and one is more probable than the other then it must follow that the more likely one is more likely than not. (More formally: if P(A)>P(B) then since P(A)+P(B)=1 then one may validly infer that P(A)>1/2.) But the logic of this breaks down where there are three or more competing hypotheses. If P(A)>P(B)>P(C) then the fact that P(A)+P(B)+P(C)=1 does not warrant the conclusion that P(A)>1/2 as will be seen if P(A)=45%, P(B)=30% and P(C)=25%. Thus the court will only be satisfied that a fact is established if the hypothesis supporting it is more likely than all of the others considered together (i.e. P(A)>(P(B)+P(C))). In particular, the mere fact that one of the hypotheses emerges as more likely than each of the others will not suffice, it must be more likely than all of them.

135    Of course, as his Honour recognised, nothing said in Palmanova is intended to depart from the realities that: (a) mechanical or arithmetic comparison of probabilities independent of belief will not justify a finding of fact; or (b) each competing hypothesis open on the evidence might range, possibly very significantly, in likelihood of occurrence. The important points made, however, are the need for care when there are a range of possibilities open, and the only way one reaches a state of reasonable satisfaction as to one being proven is to conclude its existence is more likely than all the other hypotheses available on the evidence.

E.8    False in One Thing does not mean False in Everything        

136    Moreover, in assessing whether one has reached a state of reasonable satisfaction in making a finding of fact, it is jejune to proceed on the basis that rejecting part of an account of a witness of an event must mean one must reject all aspects of the account of the witness.

137    Consistently with ordinary human experience, some witnesses may misremember or lie about some things but tell the truth about others. Despite my concerns about the truthfulness of both Mr Lehrmann and Ms Higgins, it would be simplistic to proceed on the basis this means I must reject everything they say. As the Full Court (McKerracher, Robertson and Lee JJ) explained in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 (at [94]):

It has been a long time since the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) was part of the common law, its broad applicability having been rejected long ago (including by no less a judge than Lord Ellenborough CJ in R v Teal (1809) 11 East 307; 103 ER 1022). It is trite that the tribunal of fact (be it a judge or jury), having seen and heard the witness, is to decide whether the evidence of the witness is worthy of acceptance and this may involve accepting or rejecting the whole of the evidence, or accepting some of the evidence and rejecting the rest: Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 at 45-47 [118]-[123]; Flint v Lowe (1995) 22 MVR 1; and S v M (1984) 36 SASR 316. It is for this reason a jury is directed that they may accept some parts of a witness’s evidence, but not other parts: Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155. This reflects the accumulated wisdom and experience of the common law that witnesses may lie about some things and yet tell the truth about others, and the tribunal hearing the evidence is best placed to fix upon the truth. …

138    Another Full Court (Wigney, Wheelahan and Abraham JJ) in Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 recently made the same point (at [272]) as follows:

People sometimes tell lies when giving evidence. What is significant is not the mere fact of the untruthfulness, but its relevance to the issues in dispute. A finding that a witness has lied about a matter need not lead to the rejection of all of the evidence of that witness, but may affect the degree of satisfaction of the existence or otherwise of a fact in issue to which the witness’s evidence was directed. ...

E.9    Implied Admissions and “Consciousness of Guilt

139    Given, as I will explain, the two principal witnesses in the justification case told lies during their evidence and in the making of out-of-court representations, the final matter to which I wish to draw attention is how these lies can be used in the fact-finding process.

140    Ms Higgins is not a party, and although any lies told by her will be central to my assessment of her creditworthiness (and hence reliability), the position of Mr Lehrmann, as a party and as someone who gave evidence contrary to the evidence adduced by the onus-bearing party, needs separate examination.

141    Recently, as part of the Full Court in Kim v Wang [2023] FCAFC 115; (2023) 411 ALR 402, I referred (at 428 [150]) to the decision of the High Court in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2010) 243 CLR 361 (at 384–385 [63]), where Heydon, Crennan and Bell JJ relevantly explained that when a party calls testimony known to be false, this conduct can amount to an implied admission or circumstantial evidence permitting an adverse inference, and I then (at 428–429 [151]) observed as follows:

Recently, in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555, Besanko J addressed the circumstances in which lies can give rise to a finding of a consciousness of guilt or the making of an implied admission and described them as “complex and highly contentious” (at [197]). In summarising the authorities, his Honour observed (at [205]) that a court must “be cautious before treating a lie as an implied admission or evidence of a consciousness of guilt” and, among other things, should bear in mind there may be reasons for the telling of a lie apart from a realisation of guilt: Edwards v The Queen (1993) 178 CLR 193 (at 211 per Deane, Dawson and Gaudron JJ).

142    The concept derives from the criminal law and forms part of the more general principle that the Crown can rely upon an accused’s post-offence conduct as evidence of a consciousness of guilt: this could be a lie told in or out-of-court or by other conduct, including suborning witnesses or absconding to avoid arrest: McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227 (at 233 [26] per Latham J, Hislop J and Whealy JA agreeing). A good example is seen in Pollard v R [2011] VSCA 95; (2011) 31 VR 416, where the evidence of the accused hiding a mobile phone was properly admitted as part of the Crown’s circumstantial case.

143    When it comes to Edwards lies as post-offence conduct, as is usefully explained by the Judicial College of Victoria in Pt 4.6 of its Victorian Criminal Charge Book (which deals with “Incriminating Conduct (Post Offence Lies and Conduct)”) (at [25]), at common law, untrue assertions and false denials are only capable of being used as an implied admission if the accused perceives that the truth is inconsistent with innocence and the jury was required to consider the following matters before using such lies as evidence of an implied admission:

(1)    the lie was deliberate;

(2)    the lie related to a material issue;

(3)    the telling of the lie showed knowledge of the offence and was told because the truth would implicate the accused; and

(4)    there was no other explanation for the telling of the lie consistent with innocence (see R v Edwards (1993) 178 CLR 193; R v Renzella [1997] 2 VR 88).

144    But there is a need for adaption of the principles explained in these criminal law authorities in a civil case. In the appeal in Australia’s longest running defamation case, Beazley, Giles and Santow JJA in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 comprehensively dealt with admissions by conduct (at [78][88]). In doing so, the Court of Appeal referred to the fourth of the matters noted above and observed the concept that no other rational inference may be drawn is a concept of the criminal law, necessitated by the standard of proof of beyond reasonable doubt. The Court of Appeal went on to explain that in a civil case, it is sufficient for a lie to be accepted as an admission of guilt, if that is the more probable inference to be drawn” (at [88])I respectfully agree that such an approach is not only appropriate, but necessary to accommodate the differing standard of proof.

145    How a lie can be used in assessing the reliability of the accounts given by Mr Lehrmann or Ms Higgins is straightforward. What I am presently concerned with is how an identified lie of Mr Lehrmann can and should be used to lend weight to the other evidence said to support the satisfaction of the onus of proof by the respondents. I will return below in Section H.2 to implied admissions and simply note for present purposes that the identification and use of “Edwards lies” should be approached with caution, including in the light of the warning in Briginshaw (reflected in s 140 EA) that reasonable satisfaction should not be produced by, among other things, indirect inferences.

F    OBSERVATIONS AS TO THE CENTRAL WITNESSES

146    This section sets out my general assessment of the creditworthiness of the evidence given by a dozen (of a total of 33) witnesses who gave oral evidence. I will then turn to make specific factual findings. In the course of doing so, I will address the evidence of these and other witnesses in greater specificity where relevant.

147    In another defamation case (Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223), I said (at [438]) that many experienced judges have expressed the caution that any criticisms of a witness, which go beyond the legitimate necessities of the occasion, should be avoided. Unnecessary credit findings should be eschewed. Part of this reticence reflects a body of research casting doubt on the ability of judges to make accurate credibility findings based on demeanour: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 129 [31] per Gleeson CJ, Gummow and Kirby JJ).

148    But like Russell, this is a case where several of the deficiencies were both patent and telling. Moreover, this is a case where credit, given the way it impacts upon the resolution of the determinative issues in the case, requires close and especially nuanced examination.

F.1    Mr Lehrmann

I    General Remarks

149    I will deal below in Section G.4 with the account given by Mr Lehrmann as to why he went back to the Ministerial Suite on the fateful night. I can make general observations as to his creditworthiness by reference to other aspects of his evidence.

150    Network Ten described Mr Lehrmann asa fundamentally dishonest man, prepared to say or do anything he perceived to advance his interests” (T2215.5). Senior counsel for Ms Wilkinson described him as “an active and deliberate liar” and wondered aloud whether “Mr Lehrmann is just a compulsive liar (T2316.43).

151    Hyperbolic submissions made about the lack of credit of a party witness are not uncommon. In a recent speech (“Seven Random Points About Judging”, National Judicial Orientation Program, 17 March 2024), Justice Beech-Jones made a similar point to that made in my introductory remarks: that is, a judge should be reticent about accepting such submissions “unless you really have to”.

152    But even taking this wisdom into account, this is one of those cases where expressing criticism is warranted. But one must not be simplistic. A falsehood told by a witness will be especially serious if the maker is under a legal obligation to tell the truth. But irrespective of legal obligation, there are gradations of the seriousness of untruths: an untruthful person may just be all mouth and trousers; or be recklessly indifferent to the truth or, by way of compulsion, finds it difficult to discern between what is true and untrue; or finally, and most culpably, may be someone who tells calculated, deliberate lies.

153    I do not think Mr Lehrmann is a compulsive liar, and some of the untruths he told during his evidence may sometimes have been due to carelessness and confusion, but I am satisfied that in important respects he told deliberate lies. I would not accept anything he said except where it amounted to an admission, accorded with the inherent probabilities, or was corroborated by a contemporaneous document or a witness whose evidence I accept.

II    Miscellaneous Examples of False Statements during the Hearing

154    Instances of Mr Lehrmann’s false out-of-court statements or unsatisfactory evidence are legion, but the following important examples illustrate the point sufficiently.

155    First, there was the evidence denying that he found Ms Higgins alluring as at March 2019. As I will explain, from the start, Mr Lehrmann thought that Ms Higgins was attractive. This attraction informed a number of his later actions. Moreover, his denial of this fact was unwary as it contradicted what he had said on the Spotlight programme. When confronted by this inconsistency, his attempt to explain it away by suggesting the attraction he felt for Ms Higgins was “just like [the attraction] I can find [in] anybody else in this [court]room, irrespective of gender(T351.8–11) was as disconcerting as it was unconvincing.

156    Secondly, and relatedly, Mr Lehrmann initially gave evidence that he had not met Ms Higgins prior to attending the Kingston Hotel on 2 March 2019 and downplayed his awareness of her (T175.9–11). This was supplemented by saying Ms Hamer initiated Ms Higgins being invited to the Kingston Hotel, a contention I reject below. All of this was directed to avoiding admitting that he thought Ms Higgins was comely and wanted to get to know her (as was his evidence denying he entreated her to stay after she wished to move on from the hotel that day (T1049)).

157    Thirdly, there was false evidence about what occurred at The Dock on 22 March 2019. Mr Lehrmann, in chief and initially in cross-examination, gave evidence to the effect: (a) he purchased one drink for Mr Wenke and one for himself, and that Mr Wenke then returned the shout (T244.14–19); (b) he did not purchase drinks for anyone else (T95.1–2); (c) the only money he spent was $16 (Ex 15; T244.40–41); and (d) he had minimal contact with Ms Higgins (T94.38). Going back to the hierarchy of untruths referred to at the beginning of this subsection, this was an aspect of Mr Lehrmann’s evidence where I am unsure whether he was being recklessly indifferent to the truth; or was finding it difficult to remember what was true; or was confused (or a combination of these things).

158    Mr Lehrmann must have known that the relevant CCTV footage (Ex R42 / Ex 17A) would be examined by some with the intensity that others analyse the Zapruder film. Hence, even if one was willing to give false evidence, it was odd to dissemble as to these matters. There was an inevitability the CCTV footage would demonstrate that: (a) he had purchased drinks for Ms Higgins and had seen her consume significant quantities of alcohol; (b) his prior explanation for how he had paid for the drinks would not pass muster; and (c) he spent most of the evening with Ms Higgins. Even if one puts the best complexion on what occurred, it confirms that Mr Lehrmann’s evidence is unreliable.

159    Fourthly, there was the evidence as to what occurred at the Canberra bar, 88mph. Mr Lehrmann emphatically denied any intimacy with Ms Higgins at 88mph (T298.19–20). This evidence was not only false (as I will later explain) but was in tension with representations to the Australian Federal Police (AFP) (Ex 31) that he could not recall any intimacy but accepted that he and Ms Higgins “were close” (T298.36; T299.29–43). In trying to reconcile these positions, Mr Lehrmann was then forced to draw a distinction between intimacy and flirtatious behaviour, which resulted in the following nonsensical exchange (T300.5–7):

DR COLLINS: Well, explain what you mean by you engaged in minimal flirtatious behaviour with Ms Higgins. What did you do?---Well, nothing – nothing – nothing beyond that would indicate an attraction or anything more than, you know.

160    Mr Lehrmann later said he had been truthful in posing and answering a rhetorical question to AFP officers in these terms (T301.28–36):

DR COLLINS: You were asked the question:

Is it possible [you engaged in intimate behaviour with Ms Higgins at 88mph]?

Your answer is:

Yeah, yeah, it’s possible, but um, would I have – would I have acted beyond anything that was a bit flirtatious? Absolutely not, because I was in a relationship, so.

?---Yes.

Remember giving that answer?---Yes, I remember that answer.

161    As I will come to, Ms Lauren Gain’s account that she observed Mr Lehrmann and Ms Higgins “being quite touchy with one another and her memory of both engaging in a passionate kiss and of Ms Higgins taking selfies of the two of them” (T1106.19) was compelling. It also reveals the hollowness of Mr Lehrmann’s suggestion that his relationship with a girlfriend morally inhibited him from engaging in intimacy with Ms Higgins. This was an example of Mr Lehrmann being mendacious about a centrally important part of the case.

162    Fifthly, as detailed below, Mr Lehrmann gave false evidence about a litany of other matters, such as: being reprimanded by Senator Reynolds; the classified document security breach; as to securing entry into Parliament House; the circumstances in which he came to be accompanied by Ms Higgins when securing entry; about whisky; and about his representations made to Ms Brown. All these falsehoods, together with his Walter Mitty-like imaginings in skiting to Ms Gain about the Australian Secret Intelligence Service (ASIS), demonstrate that Mr Lehrmann had no compunction about departing from the truth if he thought it expedient.

163    Finally, was his assertion (which received intense attention from Network Ten) that Ms Gain colluded with Ms Higgins to invent an account of what happened. Mr Lehrmann alleged that Ms Gain presented a false account under oath in his criminal trial to attempt to pervert the course of justice. Mr Lehrmann’s counsel in written submissions accepted he gave “strident evidence about Ms Gain but then explained that this was prompted by the fact that “Ms Gain had been contacted by Ms Higgins in a deceptive and calculated manner ahead of the Project broadcast in a manner suggestive of an attempt to pollute Ms Gain’s evidence and ‘recruit’ her. As I will explain when I discuss Ex 47, I am satisfied that Ms Higgins did seek to prompt Ms Gain’s recollection in a calculated fashion – but it does not follow that Ms Gain was prepared to do anything but recount her truthful recollection when she was called upon to give evidence. Although I understand Mr Lehrmann’s concern over Ms Higgins’ conduct reflected in the creation and deletion of Ex 47, it was wrong for Mr Lehrmann to make a serious allegation against Ms Gain to dissimulate the true nature of his then attraction to Ms Higgins.

III    The Spotlight Detour

164    The conclusions expressed in the preceding section had been drafted prior to Easter Sunday when, less than four days prior to the notified date of delivery of this judgment, my Associate was contacted by the solicitors for Network Ten concerning an application to reopen, which I then listed and resolved as soon as practicable, after hours, the next business day.

165    Although the application was an unusual one and there is a need for caution in allowing a re-opening of the evidence after reservation except on well-founded grounds, I gave leave because: doing so was consistent with the authorities in relation to fresh evidence; the material was said to have some relevance to matters that went beyond the question of Mr Lehrmann’s credit; and, moreover, its receipt would assist in ensuring this controversy was quelled, and be seen to have been quelled, on the basis of all admissible evidence the parties wished to adduce. Further, doing so would not cause any real delay (and hence be inimical to resolving justly this dispute quickly and efficiently).

166    Following the reopening, Mr Taylor Auerbach, a former Senior Producer on the Spotlight programme, was called to establish the propositions that:

(1)    the extent of what might be described as collateral rewards given to Mr Lehrmann for his co-operation with the Seven Network was more extensive than had been previously stated; and

(2)    contrary to: (a) assurances given by the solicitors for Mr Lehrmann to the solicitors for Network Ten; (b) assurances given to the Court by senior counsel for Mr Lehrmann acting on instructions; and (c) Mr Lehrmann’s evidence before me, Mr Lehrmann provided materials to the makers of the Spotlight programme contrary to his subsisting legal obligations.

167    I deal with each topic below, but it is worth initially making two points.

168    First, Mr Auerbach accepted in cross-examination that he “hated” his former colleague and friend, Spotlight producer Mr Steve Jackson (blaming him, “in part”, for the fact his contract at the Seven Network was not renewed) (T2786.35; T2788.45). Given his cast of mind, and his more general resentment as to how he was treated over the Spotlight programme, it is unsurprising he has an animus towards the Seven Network, and this was manifest in his evidence and in his manner of giving it. His resentment was palpable upon viewing the wanton and vaguely disturbing destruction of what appeared to be a perfectly serviceable set of golf clubs. It is unnecessary to make factual findings in relation to many aspects of his evidence, but one would generally be cautious in making findings based upon incomplete evidence and resting solely upon the word of a man motivated by such rancour.

169    Secondly, and connected to my first point, the evidence of Mr Auerbach travelled beyond seeking to impeach the credit of Mr Lehrmann. He laid the allegations on thick against a variety of persons somewhat like the paint in an early work of his namesake, Frank. One of these allegations was that he was instructed (apparently implicitly) by a solicitor, Mr Richard Keegan, to “delete any materials that could be damaging for Seven” (Auerbach 30 March 2024 (at [20])). I reject this assertion it is unbelievable on its face. As to his allegations of improper conduct against his erstwhile work colleagues, they are irrelevant to the facts in issue, except in one limited respect.

Collateral Rewards

170    I can deal with Mr Auerbach’s evidence of profligate behaviour very briefly. He gave evidence, consistent with contemporaneous documents and uncontradicted by any evidence in reply by Mr Lehrmann, that he became Mr Lehrmann’s “babysitter” or “minder” as the Seven Network worked to secure an exclusive interview with Mr Lehrmann (T2776.15–20). At some stage, it appears Mr Auerbach was discomforted in being placed in this role (Ex R899), but he nonetheless performed it, sometimes, it appears, ardently. I assume that Mr Lehrmann thought any joint activities with Mr Auerbach would be kept private.

171    The specifics are unedifying, and it is unnecessary to make granular findings. In the end, it is fair to conclude that Mr Lehrmann was less than candid in his account of the extent of the benefits he received prior to, and exchange for, his bargain to participate in giving exclusive interviews to the Seven Network. It is fair to remark that the evidence reveals that some of the pre-compact inducements and consideration flowing in the direction of one contractual counterparty was of an unorthodox and undocumented kind. But given the other matters going to credit in this case, it is an inconsequential point.

Hearne v Street

172    The second point has more significance.

173    As is well known, and as was explained by the High Court in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose than that for which it was given unless it is received into evidence. The obligation extends to anyone who receives the documents or information knowing the documents or information have been disclosed by compulsion. The circumstances in which this substantive legal obligation, which I will call the Hearne v Street obligation, no longer subsist are broader than receipt into evidence, but this detail need not detain us: see Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95.

174    After the first Spotlight programme, the broadcast of material apparently subject to the Hearne v Street obligation caused much perturbation on the part of the respondents. Following demands for an explanation, upon instructions, Mr Lehrmann’s solicitors repeatedly denied he breached the Hearne v Street obligation (on 5, 8 and 9 June 2023 (Ex R895; R898; and R896); and 10 August 2023 (Ex R897)). His senior counsel, again no doubt acting on express instructions, did the same before me on 9 June 2023. Consistently with the instructions provided to his lawyers, Mr Lehrmann gave evidence during the trial to the effect that he did not give documents to the Seven Network, he just gave an interview (T523.327).

175    As I explained at the trial, I am not some sort of roving law enforcement official, and if any issue concerning an alleged breach of the Hearne v Street obligation is to be pursued in relation to anyone, it will not be by me, and it will not be by this Court. My role is more limited: it is to ascertain whether Mr Lehrmann made (or caused to be made) false representations as to this topic. I am comfortably satisfied he did.

176    Three documents or categories of documents were relied upon by Network Ten, namely those the parties agree were either contained in the “AFP eBrief” served on Mr Lehrmann in the criminal proceeding (or make reference to such material), being: (a) 2,312 pages of text messages between Ms Higgins and Mr Dillaway, of which only 17 pages were tendered at the criminal trial (Dillaway Messages); (b) a “Master Chronology(obviously prepared by Mr Lehrmanns counsel for the purpose of the trial) which contains references to material and documents contained in the eBrief (this is defined elsewhere in these reasons as MC, being an annexure to the affidavit of Mr Auerbach sworn 2 April 2024); and (c) PDF files of messages passing between Ms Higgins and Mr Peter FitzSimons (Ms Wilkinson’s husband), which were not adduced into evidence (FitzSimons Messages).

177    As to (a), although the file names for the versions of the Dillaway Messages from the eBrief and those produced by Mr Auerbach match and bear the same date (Ex R892; R889; and R890), and Mr Auerbach says he located them in his iCloud storage, there is no independent proof as to them being provided electronically by Mr Lehrmann to Mr Auerbach during their joint golfing trip to Tasmania as he alleges. As to (b), although the MC does contain some material sourced from materials subject to the Hearne v Street obligation, it was a document prepared by counsel and the evidence is somewhat opaque as to how it came to be in the hands of the Seven Network. Although it is fair to remark the evidence tends to support the contentions as to misuse made by Network Ten, and it is also true Mr Lehrmann elected not to lead evidence to refute Mr Auerbach’s evidence despite having the opportunity to do so, I do not consider it necessary to reach any conclusion as to the Dillaway Messages or the MC, given the state of satisfaction I have reached as to the matter to which I will now turn.

178    It is sufficient for present purposes to find:

(1)    photographs of a computer screen displaying the FitzSimons Messages were taken, being the photographs annexed to Auerbach 30 March 2024 (Relevant Photographs);

(2)    the Relevant Photographs also show that on the computer screen, tabs were open which record web pages which are not inconsistent with the computer being one operated by Mr Lehrmann (one of the tabs is for “Current students” and another is for the “University of N: Mr Lehrmann has deposed that, in 2023, he was a law student (Lehrmann (at [38]));

(3)    the Relevant Photographs were taken at a house on Barker St, Randwick on Saturday, 4 March 2023;

(4)    the Randwick house was then being licensed by the Seven Network for Mr Lehrmann;

(5)    at 8:13am on Monday, 6 March 2023, there is a text message between Mr Jackson and Mr Auerbach by which Mr Jackson informs Mr Auerbach he has “mail” being that “Mark went to Bruce’s on Saturday” (and forwarding a screenshot of an exchange of messages between Mr Jackson and Mr Mark Llewellyn, the Executive Producer of the Spotlight programme, who had, it appears, been at the Royal Randwick that Saturday (at, I would think, around the time of commencement of the Autumn Carnival) as he is asked by Mr Jackson “Did you pick a winner at Randwick on Saturday?” (Ex R905 (at 89)); those messages are consistent with Mr Lehrmann meeting Mr Llewellyn at the Randwick house on the day the Relevant Photographs were taken; and

(6)    some of the Relevant Photographs show the reflection of a man identified as Mr Llewellyn who, from the location indicated by the images, must have taken the Relevant Photographs.

179    In the absence of any other explanation, the inescapable conclusion is that Mr Lehrmann provided access to Mr Llewellyn to take the Relevant Photographs, and thus wrongly provided him with access to the information contained in the FitzSimons Messages. His representations and evidence to the contrary were false to his knowledge on a serious matter, and this conclusion fortifies my assessment as to his general credit.

F.2    Ms Higgins

I    General Remarks

180    It is necessary to assess the credit of Ms Higgins circumspectly. She is someone who has the intense, uncritical support of some but has also been the subject of widespread social media abuse. As with Mr Lehrmann, I am conscious that giving evidence would have been a daunting and stressful experience.

181    I am in the unusual position of receiving submissions from a witness as to her credit directly. This came about because I was anxious to ensure procedural fairness was provided concerning submissions made as to the falsity of certain out-of-court representations (in circumstances I explain in detail below).

182    Ms Higgins submissions extended beyond these out-of-court representations. Notwithstanding this, I have considered them, although they largely repeat points made by the respondents. But Ms Higgins does make the bespoke and valid point that it is the parties who identify and frame the issues (including issues concerning credit) and the evidence adduced as to those issues. It ought not to be assumed that if Ms Higgins had been a party she would not have adduced further and different evidence, both from herself and others. Consequently, she may have been able to place the credit attacks made upon her in a different light and, in making credit findings, it is necessary to be cognisant of potentially missing context.

183    The other general point emphasised, although also made by the respondents, is that to the extent that so-called peripheral details of her reconstructed memory were wrong, they do not reflect dishonesty even though they may raise an issue as to reliability. As to reliability, one must not only take account of the well-known general features of human memory, but also the mental state of Ms Higgins and the well-known specific effect of trauma, and in particular sexual assault, on her memory.

184    This submission has merit up to a point, and it has informed my consideration of important, indeed critical, aspects of Ms Higgins’ evidence, but, as I will explain, I am comfortably satisfied that a number of credit issues arising from a fair assessment of the evidence of Ms Higgins cannot be minimised in this way.

II    Contrast with Mr Lehrmann

185    Those studying political science in the late twentieth century were inevitably introduced to the work of Hannah Arendt who discussed the importance of public truth while coining and explaining the notion of “organised lying”.

186    There is a significant difference between the distortions of Mr Lehrmann and Ms Higgins. In the case of Mr Lehrmann, the untruths were all over the shop (being a form of what might be called disorganised lying); whereas the untruths of Ms Higgins: (a) can be placed in two temporal categories; (b) were, in the latter category, quite organised; and (c) within both categories, generally had a common thread. In 2019, this was to paint aspects of her conduct in a better light at a time when she did not wish to pursue a complaint; but by 2021 and afterwards, most were part of a broader narrative or theme she and her boyfriend wished others to believe (and, it appears, others wanted to believe).

187    Unsurprisingly, counsel for Mr Lehrmann made several detailed attacks on the credit of Ms Higgins in final submissions. But no distinction was recognised between the two periods and the different contexts I have described.

188    Ms Higgins was describedas a fundamentally dishonest witness such that the Court could not act on anything she says without independent corroborative evidence”. The submission was developed by asserting that her evidence “has been so discredited, and she has been shown to be so manipulative that the Court cannot safely rely on anything she has said”. It was further said that whenever Ms Higgins was challenged in cross-examination, she felt she had a safe harbour in repeatedly giving “unresponsive and self-serving speeches and exhibiting frustration at the process of being challenged (Network Ten itself described some of these incidents as “emotional outbursts”).

189    Like with Mr Lehrmann, I will not evaluate her evidence as to what occurred in the Ministerial Suite in this section, but it is convenient to specify ten points going to credit made by Mr Lehrmann and then evaluate the merits of them and other matters.

III    The Points Made by Mr Lehrmann in Submissions

190    First, reliance was placed on allegedly dishonest conduct or false statements shortly after the incident being: (a) asking Ms Brown for a day off to go to a doctor’s appointment on 28 March 2019 when, in reality, she was apparently spending time with Mr Dillaway who was staying in Canberra (Ex R4; T7823); and (b) telling the AFP on 1 April 2019 that she had gone to Phillip Medical Centre and had tests done, and was awaiting results (Ex R77 (at 6); T1406).

191    Secondly, Mr Lehrmann pointed to a series of representations made to Mr Dillaway before and shortly after the alleged rape that are inconsistent, or at least apparently inconsistent, with Ms Higgins’ later account, for example:

(1)    despite giving evidence that Mr Lehrmann was treating her poorly when she commenced work in Senator Reynolds’ office, on 6 March 2019, Ms Higgins asserted to Mr Dillaway (in response to a question as to how her day had been) that it was “actually, pretty good. I really like the Reynolds team. They are super relaxed. The remaining defence industry people are being such a pain though” (indicating that people were becoming annoying and territorial), but that she was super happy just to go hang with Bruce on the Senate side and work” (T935.35) before leaving this message, Ms Higgins’ evidence to me that she was “not really” being truthful in making this entirely benign representation to Mr Dillaway (T936.24) is a good example of her willingness to rewrite history in aspects of her evidence when she later thought it was in her interests;

(2)    asserting that she had already spoken to her father about the incident and her father was flying down when Ms Higgins had not, in truth, discussed any incident with her father and there was a pre-existing arrangement for her father to come to Canberra (T979.2534);

(3)    telling Mr Dillaway that she went to the doctor and had a sexually transmitted infection test, when she did not said to be a far from benign lie in the circumstances (T782.1324); and

(4)    despite giving evidence she was suicidal and lonely in Western Australia (T682.2633) sending text messages that are inconsistent with such claims (see Ex R99 (at 1077, 1086, 1089, 1109, 1145, 1146, 1171, 1185, 1198, 1216)).

192    Thirdly, Mr Lehrmann relies upon false statements in Ms Higgins’ 2021 records of interview with the AFP, such as: (a) while trying to gain entry to Parliament House she was “falling all over the place, I fell over at Parliament, I couldn’t sign my own name (Ex R884, Q334) when the CCTV footage does not support these assertions (Ex 17); and (b) telling the AFP she did not receive any emails from Mr Lehrmann before work on the Monday after the weekend of the incident, when she clearly had (Ex R885).

193    Fourthly, reliance was placed on her conduct in telling the AFP in 2021 (T813.1721) and the criminal trial in 2022 (Ex 71 (at T130)) that she did not wear the dress she wore on the night of the alleged rape again for months, notwithstanding she was photographed wearing it only weeks later.

194    Fifthly, Mr Lehrmann relied upon what is said to be the suspicious evidence as to the “bruise photograph and, more generally, the selective deletion of data from her phone other than data that might be perceived as being either supportive (or at least non-contradictory) to her allegations.

195    Sixthly, there was the belated accusation during her second interview with the AFP in May 2021 that Mr Lehrmann attempted to kiss her on the evening of Friday, 15 March (T607.3338) notwithstanding Ms Higgins failure to mention this striking incident at an earlier time, including to Mr Dillaway (T1277.3334) and in response to direct questions as to whether Mr Lehrmann had given any inkling of his attraction towards her, prior to the fateful night.

196    Seventhly, her inconsistent and contradictory evidence at trial about having a panic attack and missing the start of Mr Ciobo’s valedictory speech (T676.1628; T715.2832; T717.14; T723.4325.7).

197    Eighthly, her evidence the Commonwealth “came to an agreement that a failure of a duty of care was made” (T1025.2829) when the Commonwealth made no such admission of liability (Ex 59).

198    Ninthly, Mr Lehrmann submitted that Ms Higgins’ draft manuscript (Ex 49),was full of inaccuracies and inconsistencies with her evidence” and her unsatisfactory excuse that “the book is crap” (T743.44), notwithstanding she was under a contractual obligation to tell the truth in the manuscript (T735.29–34).

199    Tenthly, Mr Lehrmann relies upon what he describes as Ms Higgins “misleading and dishonest claims about lack of forensic analysis of Mr Lehrmann’s phone in her speech to the media after the mistrial”, when she well knew Mr Lehrmann’s phone had been analysed by the AFP.

200    Before moving on, it is convenient to deal with the last two points shortly. They are not of real significance. As to the book, as the saying goes, an autobiography usually reveals nothing bad about its writer except his memory. I propose to focus on representations made on more solemn occasions than those appearing in a draft of what, by its very nature, is a self-serving account. As to the final point, senior counsel for Mr Lehrmann suggested (not unfairly) that these factually inaccurate comments reflect a broader aim of Ms Higgins to engage in commentary to shape the public relations narrative from 2021 to draw attention to what she and her supporters consider to be the unfairness of her account being scrutinised or questioned in any way, but the speech was given at a highly emotional time, and it does not seem to me to have much present relevance.

IV    2019 Conduct Issues

201    Consistently with what I have identified as temporal differences, I will initially deal with these matters raised by Mr Lehrmann to the extent they involve Ms Higgins’ conduct immediately after the incident in 2019.

202    The notion Ms Higgins’ evidence has been so discredited by post-incident representations to Mr Dillaway or the AFP (or Ms Brown as discussed below), such that the Court cannot safely rely on anything she has said, not only puts the point much too highly but is simplistic.

203    There are inconsistencies and untruths in 2019, but, as the respondents and Ms Higgins point out, they must be contextualised. Additionally, there is the lack of nuance and superficiality of dismissing a witness as always untruthful or unreliable just because aspects, even important aspects of their evidence, fall into that description.

204    Moreover, given the potential agreed effects of trauma, I do not consider any of this 2019 conduct (or any other of the alleged counterintuitive conduct I examine below, such as her email contact with Mr Lehrmann) is necessarily inconsistent with a victim of sexual assault seeking to process what had occurred; working her way through feelings of confusion; questioning her conduct; considering what she should do; and reflecting upon how people would perceive her if she made a complaint.

205    In making these comments, I am not discounting the important untruths Ms Higgins told the AFP in her 2019 interactions with them. These require some extended consideration but, in the end, I consider they are examples of Ms Higgins, then under stress but decidedly uninterested in pursuing a formal complaint, trying to develop an account she could rationalise and perceived made her look better in the eyes of others. For convenience, I will deal with them in Section I.2 below.

V    Subsequent Conduct Issues

206    Numerous aspects of the conduct of Ms Higgins in the years following 2019 were far more troubling.

The Development of the Cover-up Narrative

207    The most important aspect of this later conduct, commencing in early 2021, was the way in which Ms Higgins crafted a narrative accusing others of putting up roadblocks and forcing her two years earlier of having to choose between her career and seeking justice by making and pursuing a complaint.

208    As I have already noted, this cover-up or victimisation allegation was perceived by the Project team as being the most important aspect of the Project programme and its deployment meant her account achieved much notoriety and public interest.

209    As we will see, the articulation of the core aspects of this claim commenced shortly before Ms Higgins’ boyfriend, Mr David Sharaz, made the necessary arrangements for Ms Higgins to tell her account. She then did so to Ms Maiden (Ex 50), leading to the Maiden article and to Ms Wilkinson (and then to Mr Llewellyn and, through them, to those that worked on the Project programme (Project team)).

210    As I will explain below, what is notable about this aspect of the account of Ms Higgins is not only its inconsistency with the contemporaneous records and its falsities, particularly as to Ms Higgins’ dealings with Ms Brown, but also its imprecisions and its reliance upon speculation and conjecture. Eschewing specifics, and primarily concentrating upon her alleged feelings rather than the actions or words of others, the initial account given to the Project team on 27 January 2021 had Ms Higgins use the highly ambiguous word “weird” (or variations, such as people were “acting weirdly”) no less than 82 times (Ex 36). The same nebulous word, in some grammatical form, was also used 34 times during the much shorter interview with Ms Maiden (Ex 50).

211    Although there are differences, what Ms Higgins said to Ms Maiden is broadly the same as that conveyed to the Project team and save for the odd exchanges (at [300] and [751] below), the credit point is sufficient to be made by reference to the latter representations. Although, of course, I am conscious that the underlying truth of what was conveyed to the Project team is not directly relevant to the statutory qualified privilege defence (for reasons I will explain), these representations are conveniently dealt with in Section I.2 below.

The Victimisation Allegation and the Commonwealth Deed

212    In the febrile atmosphere of 2021, many instinctively believed what Ms Higgins asserted about the rape and the subsequent cover-up of the crime. In advance of any trial where the rape allegation would be examined, the broader allegations of Ms Higgins resulted in her being feted by many; becoming a celebrated speaker at a mass demonstration, being nominated for awards, receiving invitations to make a nationally televised speech at the National Press Club and a book deal with Penguin Random House (apparently worth $325,000 (T735.1–5)).

213    Further, the allegations were relied upon (together with other things), in support of several claims for compensation asserted to be “variously available against the Commonwealth of Australia as Ms Higgins’ employer and in addition other employees of the Commonwealth, the Hon Senator Reynolds, the Hon Senator Cash, the Commonwealth and the Liberal Party”. More particularly, these claims involved the allegation that following her reporting a sexual assault she suffered “victimisation, including ostracism and being pressured not to discuss the assault or the [Commonwealth’s, the then Prime Minister’s and Senators Cash and Reynolds’] handling of it” and “workplace bullying and harassment” (Ex 59, Draft Statement of Particulars (cl 1.3)).

214    Ms Higgins’ claims were compromised, after the criminal trial, on the terms set out in a Deed of Settlement and Release between her and the Commonwealth of Australia (as represented by the Department of Finance) dated 13 December 2022 (Commonwealth Deed) (Ex 59)).

215    Despite the submissions of Mr Lehrmann, I do not consider I should place any significant weight on the fact that Ms Higgins asserted in evidence before me (and before the Commonwealth Deed was produced) that the Commonwealth came “to an agreement that a failure of a duty of care was made” (T1025.2829). Given the quantum paid by the Commonwealth, as a layperson, she might have come to believe that the Commonwealth must have accepted the underlying merit of her factual and legal claims. Similarly, although Ms Higgins understated the amount the Commonwealth paid to her benefit, this is again perhaps understandable, as like many litigants she was no doubt focused on the net sum she was able to pocket following the payment of disbursements.

216    What is of more importance is that the Commonwealth Deed provided: (a) an express warranty was given by Ms Higgins (cl 7.1(a)) that the matters referred to in the Commonwealth Deed “are true and correct” (including the particulars provided by her to the Commonwealth in support of her claims: see Recital H); (b) that the warranty as to truthfulness was given “with the intention of inducing the Commonwealthto enter into the Commonwealth Deed (cl 7.1(i)); (c) for an acknowledgment that the Commonwealth was relying upon this and other warranties given by Ms Higgins (cl 7.1(j)); and (d) the Commonwealth was to pay to Ms Higgins (or for her benefit) the total sum of $2,445,000 as “compensation in respect of claims “potentially available to Ms Higgins” under the Australian Human Rights Commission Act 1986 (Cth), the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) (cl 2.1.1, cl 1.1).

217    That is, in broad terms, the payment was made for any potential claim under defined “Statutory Causes of Action and was given in exchange for releases (cl 4) except that those releases did not extend to releasing Senator Reynolds and Senator Cash from any actions that do not relate to the performance or non-performance of their ministerial duties; or fines or penalties (cl 4.2).

218    I stress that Ms Higgins is not a party: no findings in this proceeding bind her and, of course, no relief is sought in this proceeding in relation to the Commonwealth Deed. It is not my role to comment upon the merits or otherwise of the Statutory Causes of Action made against the Commonwealth or others; the nature or quantum of the compensation sought; the process by which the settlement occurred; nor the quantum of the resolution sum or the scope of releases. My focus is solely upon Ms Higgins’ present creditworthiness.

219    As Annexure E reveals, submissions were made on this topic of credit as it related to the Commonwealth Deed consistently with the express agreement between the parties. I initially thought that in its written submissions, Network Ten was backsliding and flirting with a contention it would be procedurally unfair to make findings as to the falsity of representations made by Ms Higgins in the Commonwealth Deed, but I was disabused of my misapprehension in supplementary submissions and Network Ten further acknowledged that any false representations made in the Commonwealth Deed could be relevant to the credit of Ms Higgins.

220    One would have thought this was an obvious and proper concession given the nature of the occasion upon which the representations were made, but it is now necessary to deal also with separate submissions made by Ms Higgins.

221    Ms Higgins makes points which can be dealt with in two broad categories:

(1)    there are procedural difficulties in that it would be grossly unfair for any allegations concerning the Commonwealth Deed to be used against Ms Higgins given the lack of cross-examination by Mr Lehrmann’s counsel on the topic;

(2)    there are evidentiary difficulties in that: (a) the circumstances in which the Commonwealth Deed came to be prepared, agreed and executed have not been explored; (b) Ms Higgins should not be presumed to comprehend or be familiar with a complex formal document in the same way as a lawyer; and (c) the mediation occurred shortly after she was hospitalised, and there is “an enormous lacuna in the evidence as to Ms Higgins’ subjective state of mind upon which any finding of dishonesty could be made in relation to the contents of the Commonwealth Deed.

Suggested Procedural Difficulties

222    There is no unfairness in Mr Lehrmann making this aspect of his submissions as to credit. Regrettably, to explain why takes some time and requires close examination of the record.

223    The issue as to the Commonwealth Deed arose initially from an exchange on 5 December 2023, at the end of a lengthy period of Ms Higgins giving evidence. To provide context, by this stage, the cross-examination had been going on since 30 November 2023 (T706.16). I had taken frequent breaks when I considered it appropriate and had counselled Ms Higgins to request breaks if she thought she needed them to give a proper account of her evidence. Senior counsel for Network Ten, had also referred to his concerns as to the welfare of the witness and later made a submission about the cross-examination becoming “oppressive” (T899.14). In the end, without imposing time limits, I did ask senior counsel of Mr Lehrmann to attempt to conclude the cross-examination on 5 December 2023 (T906.39). This request was informed by my close observation of the witness and my assessment of the stress the length of the cross-examination was occasioning.

224    In any event, the issue of the Commonwealth Deed arose right at the end of the cross-examination after Ms Higgins had, shortly before, given evidence as to the Commonwealth coming to “an agreement that a failure of a duty of care was made, and they did pay me and that she thought the settlement “was around [$]2.3[m]” (T1026.2). The relevant exchange was as follows (T10289):

MR WHYBROW: And as you sit there today, there has never been any finding as to whether or not your allegations are true or not?---The Commonwealth admitted that they breached their duty of care and that they didn’t go through proper processes, so that’s actually why they settled with me.

HIS HONOUR: Did the Commonwealth make an admission of liability, did they?---I believe so, but you might have to double-check with them.

MR WHYBROW: Was Mr Zwier your solicitor in relation to those proceedings or was he involved in them?---He was present, but it – it wasn’t his. It was – I had Noor Blumer. Blumers were my lawyers for the – the civil case. For the civil – the potential civil case, and we also almost filed a civil case against Bruce, but they didn’t want me to do a double action or something for some reason.

I call for production of the deed – was there a deed or was it just a settlement?---I – I – I don’t know.

Okay?---I’m not sure.

I make that call.

***

HIS HONOUR: Who are you making the call to?

MR WHYBROW: Mr Zwier. I understand he’s in court.

HIS HONOUR: That’s not a call [to a party]. So you’re seeking an order - - -

MR WHYBROW: Sorry.

HIS HONOUR: - - - under section 36 - - -

MR WHYBROW: I apologise. Yes.

HIS HONOUR: Section 36 of the Evidence Act - - -

MR WHYBROW: Yes.

HIS HONOUR: - - - directed to someone who’s within the confines of the court, being Mr Zwier, for production of the deed.

MR WHYBROW: Yes, your Honour.

MS CHRYSANTHOU: I object to that order being made, your Honour, on the basis of relevance.

HIS HONOUR: Well, it’s apparently relevant. I mean, the witness has given evidence about what the settlement was and what it involved, including an admission of liability by the Commonwealth, and there may or may not be permissible questions based on it, but it’s a much lower standard, being apparent relevance.

MS CHRYSANTHOU: Yes, your Honour.

HIS HONOUR: Yes. Mr Zwier, is there anything to produce?

MR L. ZWIER: Your Honour, I can’t say I was really prepared for this moment.

HIS HONOUR: Well, here you are. You’re in the spotlight.

MR ZWIER: I know. I know. I can’t see that it’s relevant, but I’ve heard your Honour’s observations about that. I’m not sure, even if your Honour is inclined to make an order to require to me to produce, that – I should have it, but I would have to check.

HIS HONOUR: All right. Thank you. Yes.

MR WHYBROW: Thank you. Just excuse me one moment, your Honour. Your Honour, Ms Higgins, they’re my questions in cross-examination.

225    Ms Higgins proceeded to complete her re-examination and was excused (T1033.15). I recall turning my mind at the time as to whether I should excuse the witness notwithstanding an outstanding order for production directed to her solicitor, but given my (admittedly impressionistic) perception of Ms Higgins’ condition following the long cross-examination and in the absence of knowing what was in the Commonwealth Deed (and hence knowing there would be any allegation of a prior inconsistent statement), and the absence of any application, I considered it prudent to excuse her, so to relieve any concerns she may have that any further cross-examination was likely to take place.

226    It sometimes seems in this case that no good deed goes unpunished.

227    When the Commonwealth Deed had still not been produced pursuant to the order by the following morning (6 December 2023), the following occurred:

HIS HONOUR: Can I deal with, then, a few matters before we deal with the witnesses that are outstanding. The first is the order that I made yesterday afternoon, page 1029 of the transcript, being the oral subpoena directed to Mr Zwier. Is there production pursuant to that oral subpoena?

DR COLLINS: He doesn’t appear to be in court. Your Honour, we will make some inquiries.

HIS HONOUR: Well, the order that I made has the same effect as the subpoena to produce documents, so that document the subject of the order under section 36 should be produced.

DR COLLINS: Yes.

HIS HONOUR: Can I direct your solicitors to get in contact - - -

DR COLLINS: Yes, of course.

HIS HONOUR: - - - with Mr Zwier and find out when production is going to occur of the document, please.

DR COLLINS: Yes. We will attend to that.

HIS HONOUR: It should have already occurred.

228    Later that morning, the following exchange occurred (T1078):

HIS HONOUR: I see Mr Zwier is here. Mr Zwier, have you got a document to produce?

MR ZWIER: I do, your Honour.

HIS HONOUR: Yes.

MR ZWIER: I have a deed of settlement.

HIS HONOUR: Thank you.

MR ZWIER: And I will produce it. I just want to apologise. I hadn’t appreciated that it was the making of a direction.

HIS HONOUR: No, that’s all right, Mr Zwier. Thank you very much for your attendance.

MR ZWIER: Your Honour, can I just make a couple of observations about it.

HIS HONOUR: Of course.

MR ZWIER: First, it contains obligations of confidence within the terms of the document, and it arises following a mediation which is governed by a mediation agreement, the details of which I am not presently across, and therefore there might be other parties with an interest in relation to it. Can I also say this. To the extent that a party might seek to tender the document, my client may wish to be heard in relation to that application, because it has, for example, certain particulars about her that .....

HIS HONOUR: I certainly give – I would be disposed, now that it has been produced, to give access to the parties, but I certainly, Mr Zwier, would give your client the opportunity of being heard in relation to any matter she wishes to be heard to before it would be tendered.

MR ZWIER: Thank you, your Honour.

HIS HONOUR: And also seek whatever confidentiality orders that it might be thought appropriate to seek, even if it was tendered. So, thank you very much.

229    An application was made for access and granted. The next day, the following relevantly took place (T1158):

HIS HONOUR: At page 1078 to 79 of the transcript, the document was produced by the solicitor for Ms Higgins. No objection was made to access to the legal practitioners. Although, an objection was made to access to other persons, and you will recall that I said, well, I’m not going to make it an access order simply to legal practitioners, so, therefore, access [was] exercised by each of the parties. I did, however, indicate that I would give Ms Higgins the opportunity to be heard in relation to any confidentiality order, so I think the appropriate course is for me, if you’re proposing to tender it, to tender it, mark it, but I will make – I won’t make an interim confidentiality order, but what I will say is I will not allow access to any non-party to the document at present until, say, 4 pm today. So if there’s an application that can be made, it can be made - -

MR WHYBROW: Your Honour, I can indicate that - - -

HIS HONOUR: - - - at the conclusion of the day.

MR WHYBROW: - - - yesterday evening, we advised Mr Zwier that, in accordance with what he said in the transcript of our intention to tender the deed of settlement, and in open correspondence, he replied and added:

Strictly and private confidential

to the header, so I’m not sure if - - -

HIS HONOUR: Well, do you want to show it to me? I don’t want to – first, and then – if you think it’s consistent with me seeing, I just - - -

MR WHYBROW: Yes, I do, your Honour. It’s consistent with what is expressed - - -

HIS HONOUR: Is everyone happy at the bar table for me to see this letter?

DR COLLINS: Yes, your Honour.

HIS HONOUR: Yes. Well, I’m sorry, but if someone wants to make application in respect of confidentiality of a document of which unopposed access has been given to the parties, then they should do it today.

MR WHYBROW: Yes.

HIS HONOUR: And I will allow them to do it today, and is your – do you propose to make an application to further re-examination [sic] Ms Higgins in relation to the document or not?

MR WHYBROW: Yes, your Honour. We engaged in some preliminary discussions as to whether or not it might be able to be tendered and then simply made submissions on some of the matters, including some new matters without a Browne v Dunn point being taken.

HIS HONOUR: Yes.

MR WHYBROW: But some of those matters are so significant that it’s our - - -

HIS HONOUR: Well, one of the – well, I think I will have to hear argument about that because one of the things I did – and you may recall this – I did offer, I think on more than one occasion, the applicant to seek third party discovery, and I was told that, notwithstanding I was open – and that would have meant that this document would have been discovered by the third party, and secondly, also what would have been discovered is matters relating in Part 2 of that list when certain things were deleted. Now, I was told expressly you did not want that order. So this – you would have had a list of documents well in advance.

You would have been able to inspect this deed well in advance of the hearing, but a forensic decision was made by the applicant, notwithstanding, I said I was prepared to make such an order not to seek it. So in a sense, you’re the author of your own misfortune in relation to that, it coming up during the hearing, so that’s one thing I would want assistance about when it came to any application to bring a witness back to cross-examination, but I’m not going to determine that application now or hear you further in relation to it, because, no doubt, not only will – there may be some evidence about that. There may be all sorts of argument about it, but I just raise that because that, in my mind, is quite relevant a consideration. In any event, there’s no reason why the document can’t be tendered, so a document – unless there’s any objection?

MS CHRYSANTHOU: Your Honour, so long as it doesn’t prejudice our ability to oppose any application under section 46, it’s tendered without objection, because we do oppose any application under section 46 to recall the witness, and we don’t want it to be said that not objecting to the document in any way prejudices our ability to oppose that application, if it’s persisted in.

HIS HONOUR: Well, I’ve provided you judicial advice, so - - -

MS CHRYSANTHOU: Well, I object if the tender of the document is in aid of recalling the witness under section 46.

HIS HONOUR: Well, no, it’s admissible and I’m going to receive it.

MS CHRYSANTHOU: Yes, your Honour.

DR COLLINS: We understood it to be implicit in the exchange between your Honour and Mr Whybrow that the argument about whether Ms Higgins ought be recalled, was an argument for an other day I didn’t mean literally another day.

HIS HONOUR: And the confidentiality issue will certainly be dealt with today. So that will become – the deed of settlement and release between the Commonwealth of Australia v Brittany Higgins will now become exhibit 59.

EXHIBIT #59 DEED OF SETTLEMENT AND RELEASE BETWEEN THE COMMONWEALTH OF AUSTRALIA AND BRITTANY HIGGINS

230    Later that day, I interrupted a witness to accommodate senior counsel for Ms Higgins appearing (T1248) and determined a confidentiality application, which was only pressed in limited respects, and then delivered ex tempore reasons: Lehrmann v Network Ten Pty Limited (Confidentiality) (No 2) [2023] FCA 1561. Immediately after the delivery of reasons on Ms Higgins’ application, the following then took place (T12523):

HIS HONOUR: And is there agreement between the parties that they say that they won’t take the point about procedural fairness? Are you not putting the prior inconsistent statements to the – to Ms Higgins, that is, concerning a true amount payable pursuant to the deed and the fact that, contrary to the evidence given to me, there was no admission of liability - - -

MR WHYBROW: As I understand it, it’s - - -

HIS HONOUR: - - - and other matters?

MR WHYBROW: Yes, it’s accepting those. There are some matters where they are strictly completely new. I have spoken to Ms Chrysanthou on those. I haven’t had a chance to speak to Dr Collins, but - - -

HIS HONOUR: All right.

MR WHYBROW: - - - in the circumstances where, effectively, the gist of all of those matters were put - - -

HIS HONOUR: Yes.

MR WHYBROW: - - - to Ms Higgins, we don’t - - -

HIS HONOUR: Well, I must say my preliminary view was that it wouldn’t have been appropriate to have Ms Higgins recalled if there was some sort of sensible resolution.

MR WHYBROW: Yes.

HIS HONOUR: So I congratulate the parties on sensible approach to that because I did wish to spare her the necessity to come back.

MR WHYBROW: Yes. Indeed.

HIS HONOUR: But it doesn’t inhibit you in making whatever submissions you wish to make between the inconsistencies about what’s contained in the deed and the evidence given by Ms Higgins.

MR WHYBROW: Yes, your Honour.

HIS HONOUR: All right. Thank you.

231    Following review of the evidence and the receipt of submissions, it became evident to me the possible importance of the representations made in the Commonwealth Deed by Ms Higgins, and Annexure E details the steps I have taken to guard against any residual issue as to procedural fairness including, in the circumstances set out above, allowing for Ms Higgins to make any submission she wished to make about the submissions advanced by Mr Lehrmann. Given what occurred at trial, there is no basis to contend inter partes that there is any fetter upon Mr Lehrmann making the submissions he now advances (and none is suggested to arise). But even so, to make doubly sure, as Annexure E indicates, given Ms Higgins herself has now raised a point about procedural unfairness, notwithstanding: (a) the background set out above; (b) the other matters in Annexure E; and (c) the appearance of her representatives on 7 December 2023 when the agreement between the parties was announced, I allowed Ms Higgins the opportunity of making an application to seek to defer judgment to allow her to be recalled to give evidence if she so wished. Such an application to address the supposed procedural unfairness to a witness, by a witness, would not, obviously enough, have been an application under s 46 EA, but there would have been ample power to make an order facilitating that course if I was convinced it was necessary to assure fairness: see s 11 EA. She did not do so.

Suggested Evidentiary Difficulties

232    To the extent Ms Higgins suggests the Court would not make an adverse finding as to the evidence she gave regarding her understanding of the Commonwealth Deed when she was cross-examined on its effect prior to production, as is evident from [215] above, that issue can be put to one side.

233    Although how the Commonwealth Deed came to be agreed and executed has not been the subject of detailed evidence, Ms Higgins accepts she was represented by “Blumers Lawyers, personal injury lawyers, to act for her in relation to her civil claims against the Commonwealth, which were settled following a mediation on 13 December 2022 (Ex 59). Moreover, if one has regard to Ms Higgins’ evidence (see [224] above), and the execution page of the Commonwealth Deed, she signed, sealed, and delivered the document on that day in front of her current solicitor, Mr Zwier.

234    There is no evidence before me as to the extent of Mr Zwier’s retainer at the mediation, and I am well aware the act of attestation of a deed only indicates the witness was present and witnessed the execution, and the obligation owed by an attesting witness is to perform this function properly (Ellison v Vukicevic (1986) 7 NSWLR 104 (at 112 per Young J); Graham v Hall [2006] NSWCA 208; (2006) 67 NSWLR 135). But even leaving aside the precise content of any duty of either of her two solicitors present, as a matter of commonsense, it is difficult to accept that I ought not infer it is more likely than not that a senior and highly experienced solicitor would only witness the execution of a document of such importance if satisfied the person executing under seal was mentally competent to do so and understood, at least in general terms, the nature of what was happening (a fortiori if that person, in one form or another, was a client).

235    However, for reasons I will now come to, by reason of the limited relevance of the Commonwealth Deed for present purposes, it is unnecessary to make any findings as to the mental state of Ms Higgins or her subjective understanding of particular contractual provisions when the representations were made.

Conclusion on the Commonwealth Deed and Credit

236    Having dealt with these unnecessary complications raised at the heel of the hunt, I now go back to the real point.

237    To repeat, I do not consider it necessary nor appropriate that I attempt to characterise or reach any legal conclusion as to Ms Higgins’ conduct in giving the warranties contained in the Commonwealth Deed. I am only dealing with issues as to credit.

238    It is sufficient to find that through her personal injury solicitors, and more likely than not on instructions, Ms Higgins was in 2022 advancing a claim for compensation based on allegations materially the same as those she had articulated to Ms Maiden and to the Project team, the core aspects of which she had consistently maintained since at least January 2021. More specifically, representations, materially identical to central representations made in the Commonwealth Deed, had been made for almost two years and were now being used to ground the Statutory Causes of Action articulated by her solicitors. The Commonwealth Deed is useful in going some way in collecting, formalising, and providing some belated degree of coherent particularisation to what might broadly be described as the coverup allegation.

239    In this regard, and contrary to the submissions of Network Ten, the relevant issue is not whether Ms Higgins made representations (repeated in the Commonwealth Deed) in a manner consistent with her evidence, but rather whether Ms Higgins made representations contrary to the facts.

240    It is evident several things being alleged were untrue. As my findings below will establish, and without seeking to be exhaustive, it is convenient to identify sufficient examples by reference to the Particulars of Liability (PL) and Attachment 2, “Event Complained About” (A2) as follows:

(1)    that on 26 May 2019: (a) Ms Higgins told Ms Brown that Mr Lehrmann had sexually assaulted her (PL cl 3.4; A2 cl 4.4); and (b) Ms Brown confirmed to Ms Higgins that CCTV footage demonstrated that Ms Higgins was visibly drunk when coming through the entrance to the Ministerial wing of Parliament House and that Mr Lehrmann had said that he had not been drinking that evening (PL cl 3.5);

(2)    that during the week following the sexual assault, Mr Yaron Finklestein, Principal Secretary to the Prime Minister, was a regular presence in Senator Reynolds office advising Ms Brown on how to deal with [Ms Higgins] in light of the sexual assault by Mr Lehrmann (PL cl 3.9);

(3)    that Ms Brown rebuffed [Ms Higgins’] request to view the CCTV footage from 22/23 March 2019 (PL cl 3.12; A2 4.12);

(4)    that on 27 March 2019, members of the AFP Parliament House unit informed Ms Higgins that they had been told to investigate a sexual assault” (PL cl 3.13);

(5)    at or around 11 April 2019, Ms Higgins raised with Ms Brown the issue of sick leave for her mental health and also needing time off work to assist the AFP in its investigation but Ms Brown demonstrated an unwillingness to discuss the issue and made it clear to [Ms Higgins] that it was her problem to deal with (PL cl 3.22; A2 cl 4.22);

(6)    that “Ms Brown informed Ms Higgins that she had two options. She could return home to the Gold Coast on paid leave for the duration of the election campaign, but this would negatively impact her prospects of having a job to reapply for after the election. Alternatively, [Ms Higgins] could stay onboard Senator Reynolds team and work on the election campaign in Western Australia (PL cl 3.23);

(7)    that “Ms Brown made it clear by her words and demeanour that the events of 22/23 March 2019 must be put to one side; that [Ms Higgins] ought remain silent about the sexual assault, in order to keep her job/career (PL cl 3.24; A2 cl 4.24);

(8)    that it was in the context of electing to go to Western Australia to assist with Senator Reynolds’ election campaign that Ms Higgins felt she had no choice but to abandon pursuit of the complaint of sexual assault with the AFP (PL cl 3.25);

(9)    that “Minister Reynolds did not engage with [Ms Higgins] at all during the election campaign. She avoided [Ms Higgins] and made clear that she did not want the claimant attending events with her” (PL cl 3.28).

241    I have not included in these examples matters where the (at least underlying) falsifying proposition was not put to Ms Higgins. Nor have I placed any significant weight on incorrect but relatively minor inaccuracies, such as the assertion Mr Lehrmann: (a) without invitation or agreement with Ms Higgins: (i) got into the taxi and directed it to stop at Parliament House (PL cll 2.4, 2.5; A2 cl 3.4, 3.5); (ii) paid the taxi fare and then directed Ms Higgins to get out of the taxi and go with him to Parliament House (PL cl 2.6; A2 cl 3.6); (b)led [Ms Higgins] to the Ministerial Suite” (A2 cl 3.9); or (c) had his staff pass which allowed him to enter the building and that Ms Higgins had to be signed in via a “guest sign in book” and she had “difficulty remaining upright and signing her name” (PL cl 2.8).

The Bruise Photograph

242    A third aspect of the post-2019 conduct causing concern relates to Ms Higgins’ so-called bruise photograph. The bruise photograph was said by Ms Higgins in her statutory declaration and on oath as being a record of an injury suffered during the rape and hence being contemporaneous documentary evidence supporting her accusation (Ex R532 (at [7])). Indeed, as we will see, at the beginning of her first meeting with the Project team, this photograph is raised specifically by Mr Sharaz and Ms Higgins as being the only evidence that elevated Ms Higgins’ account from simply being one person’s word against another. Its forensic importance is manifest and while she was under an obligation to tell the truth, it was put forward by her as corroborative material.

243    Despite this, Ms Higgins distanced herself from embracing it as evidence of the rape in evidence-in-chief before me (T672.11) and, indeed, she ended up saying in cross-examination (T712.1219) that:

At the time, I believed it was caused by the assault, but with hindsight and with, you know, like, yourself [Mr Whybrow SC] in the criminal trial, put to me, it was possible that it came from another source, so I’ve now had to accept that it may not have necessarily come from the assault itself. It may have come from falling up the stairs, but I accepted that during the criminal trial, but at the time, I was 100 per cent sold on the – sold – that I – I thought it was because I was in pain when he was raping me, but because of the criminal trial, I’ve had to accept that I don’t 100 per cent know it was from the assault. It could have been falling up the stairs, so that’s where I’m at.

244    In the witness box at this trial, she seemed irritated that the cross-examiner would challenge her on the photograph. But the evidence as to her inconsistencies on this topic are both important and vexing.

245    We know the original photograph, despite its obvious importance, was not mentioned or provided to the AFP in 2019. This is despite Ms Higgins meeting, a few days after the bruise photograph was supposedly taken, with highly experienced AFP sexual assault investigators sensitively asking her for any relevant information over a lengthy period in the presence of a sexual assault counsellor providing her with support (see [680] below). Further, the metadata of the original photograph has never been produced. The earliest record of a bruise or the photograph is in 2021 and, when this reproduction is examined, it shows a bruise on Ms Higgins’ right leg, in circumstances where she gave evidence that Mr Lehrmann had crushed her left leg during the alleged rape (Ex 71 (at T128129)).

246    What is equally odd are the singular circumstances by which Ms Higgins phone was “completely wiped” and her photos had disappeared from her iCloud records (Ex 36 (at 0:05:56; 0:07:53–0:08:00)), and yet the bruise photograph and some other limited material survived, allowing it to be deployed by Ms Higgins and Mr Sharaz to lend verisimilitude to the account she gave to Network Ten.

247    I will go into further detail as to this topic below, but it suffices for present purposes to note that despite her evidence before me, I consider it unlikely there could be genuine confusion in Ms Higgins’ recollection as to how she got the bruise recorded in the bruise photograph given the way she and Mr Sharaz deployed it in 2021 and their subjective understanding of its importance.

Selective Retention and Curation of Data

248    Nextly, and relatedly, was the missing messages, including one on the morning she left the Ministerial Suite with a security guard, Mr Alex Woods (with whom Ms Higgins had earlier matched on Bumble (T910.45)), and with Ms Hamer, Major Irvine, and Ms Gain – including, tellingly, Ex 47, being the deleted text message automatically saved separately in the “notes” section of the phone whereby Ms Higgins, on 27 January 2021 (and just after the five-hour conversation with Ms Wilkinson and Mr Llewellyn) sought to prompt Ms Gain as to the detail of Ms Higgins’ narrative of what occurred in 2019 (T91011; T9256). Also missing was the important and truthful message to Mr Dillaway on 9 April 2019 in which Ms Higgins tells Mr Dillaway that she was “not interested in pursuing [a police complaint]” (Ex 45).

249    Moreover, the missing data went beyond text messages, but included photos taken on the night in question, which may have shown interactions between Ms Higgins and Mr Lehrmann. This is in circumstances where: (a) the evidence establishes that Ms Higgins had been asked by Detective Senior Constable Sarah Harman of the AFP on 8 April 2019 not to delete photos taken on the evening, including photos Ms Higgins had said she had taken of her and Mr Lehrmann on 22 March 2019 (T1294.1730; T1324.3739); (b) it is evident from the CCTV video from The Dock (Ex R42 / Ex 17A) that Ms Higgins had taken photographs at The Dock (T2353.45); (c) Ms Gain gave evidence of Ms Higgins having taken “selfies” at 88mph at around the time Ms Higgins and Mr Lehrmann were being intimate (T1106.19–21); and (d) the AFP did belatedly access Ms Higgins phone on 26 May 2021, approximately 8,000 photographs were downloaded, but they did not include any photographs taken by her on the fateful night (T2354.24; Ex 67 (at T662.25–33)).

250    When confronted with this issue, the evidence of Ms Higgins was (T908.39909.41):

MR WHYBROW: in May of 2021, after you had made public allegations and spoken to the police, you handed your phone to the police, so that they could do [an] extraction of any data on it?---Yes. I – I don’t remember the exact date but I handed over my phones, the ones that I had at the time.

Sure. And you recall that that – you had been asked since about February if the police could access your phone to try and get the data off it?---Yes, I was worried about leaks I was seeking legal advice at the time.

do you agree that it was about three or four times you were asked by the police and it was not for a period of three months from when The Project went to air until approximately 23 May 2021, that you finally consented to the contents of your phone being downloaded?---Yes, they asked during the first DIC and I said seek legal advice and then during the second DIC I provided my phone

Before you handed over your phone to police, you would [delete] some things off it?---Yes, I deleted one particular photo that I was worried about.

What was that?---It was at a party and someone put a make America great hat on my head and I was ashamed that it was in existence, so I deleted it. I knew it wasn’t – it wasn’t relevant or anything, but I was just worried that it would leak, and it was something I was really ashamed off, so I deleted it.

Well, I want to suggest to you, you deleted a lot more than just one photograph off your phone before you gave it to the police?---That was the only one of note that I deleted.

Leaving aside “of note” you’re aware, aren’t you, that on 21 May there was a text recovered by the police where you had been sending various audio and photographs to Mr Sharaz and he asked you, “What’s this”, and you said:

I am cleaning out my phone ahead of the police.

?---But it didn’t actually take place, as I sought legal advice and they said that would be dumb and I handed over all the audio recordings which are the ones I was worried about, which was the Cash one and the Try one and I gave it to them upfront.

My question is do you recall that you sent a text to Mr Sharaz on 21 May saying:

I am cleaning out my phone ahead of the police?

?---I did send that text message.

Yes. And you were deleting things off your phone ahead go giving it to the police, were you not?---I deleted a photo of me that I was ashamed of; yes.

Well, can I suggest that you deleted any messages you had with a significant number of people who may have been in a position to contradict your narrative of events?---No, that’s not true.

251    The reference in this extract to the representation made to Mr Sharaz via WhatsApp on 21 May 2021 requires some context. At this time, Ms Higgins was sending Mr Sharaz “old audio”, and Ms Higgins said, “Im cleaning out my phone ahead of the police” (T909.30). It is plain she was sending media to Mr Sharaz; what is also clear is that she retained material not apparently inconsistent with the allegation of rape (T709.30). From Mr Sharaz’s response, it appears the specific audio sent to him on 21 May was a covertly recorded conversation, and he reassured her and there was some discussion as to whether she could trust the police.

252    But what matters is the existence of the various contradictory explanations given (or suggestions floated) by Ms Higgins as to why some material was preserved and some was missing. Some data might conceivably have gone missing when changing phones, but it was never made clear to me why such an event (or events) would cause her iCloud data to disappear like a will-o-the-wisp? Or, more strangely, to disappear from her backups selectively? Or, even stranger still, why, as detailed below, would she toy with a conspiracy theory that her data was wiped remotely? Moreover, why would she not be careful to save the data concerning the original version and metadata of a photograph she (and Mr Sharaz) later considered in 2021 the most important corroborative material supporting her account of what occurred?

253    I do not think it is a co-incidence that the material she did not provide to the AFP when her phone was belatedly handed over (but has since been obtained from other sources) often sits uncomfortably with aspects of her 2021 cover-up narrative.

254    Although some unspecified material may have been lost through a faulty transfer between devices, the weight of the evidence requires the conclusion that it is more likely than not that she curated data because she thought deleting some material assisted in her maintaining the cogency of her 2021 account. This went well beyond any concern about being seen in a photograph taken after someone had apparently placed a MAGA hat on her head.

2021 False Accusations

255    Finally, there is an example of an untruth about what, in the overall scheme of things, might be thought inconsequential, but which is revealing.

256    Ms Higgins asserted that Nick, her Bumble date, left The Dock because he “was bullied mercilessly by everyone at the event, um, they were all poking fun at him and laughing at him. And he pretty quickly was sort of driven out of the event” (T940.15–19). But what the CCTV footage irrefragably proves is that no-one did anything that could be remotely described as bullying Nick. Ms Higgins abandoned her date as she preferred to go and sit at the same table as Mr Lehrmann (Ex R42 / Ex 17A (at 20:51:38)). Ms Higgins, after being taken to the video, had to accept (albeit in what, at the time, struck me as a curiously light-hearted tone) that I did ignore my date, and I was really rude (T944.3).

257    Although on one level minor in itself, this untrue representation is one example of a willingness to make an accusation cut out of whole cloth because it suited Ms Higgins to make it. I will come to other examples below, including a substantively more important one relating to Mr Payne recounted to Ms Maiden.

VI    Conclusion on General Credit

258    When closely analysed, Ms Higgins’ out-of-court representations in 2019 are of a different character than those out-of-court representations from 2021 and in court thereafter. Any inconsistent or untrue representations in 2019 are not inconsistent with the conduct of a genuine victim of sexual assault struggling to process what happened, seeking to cope, and working through her options. But whatever the truth of the evidence she gave as to what occurred in the Ministerial Suite one night in 2019, the cogency of her evidence as to this central aspect of the case must be evaluated and closely scrutinised in the light of the fact that my findings establish that has since 2021, Ms Higgins:

(1)    made false representations as to what had occurred following the incident to Ms Maiden and the Project team and thereafter more generally;

(2)    asserted definitively that she retained contemporaneous evidence of the rape that she knew bolstered her credibility and rely upon it when (on the most generous view of it) it ought to have been apparent to her as she recognised at this trial there was an infirm basis for doing so;

(3)    selectively curated material on her phone prior to giving it to the AFP; and

(4)    sometimes told untruths when it suited her.

259    In summary, and after having had the opportunity of observing Ms Higgins’ demeanour closely over approximately four and a half days and comparing her testimony to other documentary and oral evidence I accept as being cogent, it would be fair to describe her as a complex and, in several respects, unsatisfactory witness. Nuance is required in evaluating her evidence and any contentious or uncorroborated aspect needs to be scrutinised warily.

F.3    Ms Brown

260    Both Mr Lehrmann and Network Ten subpoenaed Ms Brown to give evidence and foreshadowed calling her in their case. I have not, of course, seen any outline of anticipated evidence served, but assume Network Ten wished to lead evidence relevant to the termination of Mr Lehrmann and about the falsity of what he said about his reasons for going to Parliament House and what he did while he was there.

261    Prior to trial, my Associate received a communication from the solicitors from all parties asking me, in effect, to give them an advance ruling on the tender of various documents and, if I allowed them to be adduced, foreshadowed that the parties “would not call upon their subpoenas”.

262    As I explained through my Associate, this was misconceived on at least four bases. First, no application had been made for an advance ruling in accordance with s 192A EA and, in the circumstances, I was not disposed to give notice until a document of the type indicated was tendered; secondly, as I had already explained, I wanted all relevant matters to be dealt with in open court; thirdly, a subpoena ad testificandum is an order, in terms, requiring a third party to appear before the Court at a specified time and place, and the order remains in force until set aside by the Court; and fourthly, if an application to set aside the subpoena was to be made, it should be made on proper evidence, in an orthodox way and determined in Court.

263    An application was then made by Ms Brown to be relieved from compliance with the subpoenas. I set aside the Network Ten subpoena (as I was informed that Network Ten did not now propose to call Ms Brown in their case). Despite initially pressing the application to set aside the subpoena issued on the application of Mr Lehrmann, after I indicated I would make some accommodations to meet the problems identified in medical evidence put before the Court on behalf of Ms Brown, the application was not pressed.

264    The respondents contend it is important not to overstate the significance of Ms Brown’s evidence because her management of the allegations in March 2019 issimply not in issue, save to the extent that it has a bearing on the assessment of Ms Higgins’ credit in relation to the allegation of rape. They do, however, embrace Ms Brown’s evidence insofar as:

(1)    she gave evidence as to her interactions with Mr Lehrmann from 26 March to 5 April 2019, which evidence “proves that he lied about various significant matters at the time and to this court”;

(2)    she documented that Mr Lehrmann said: (a) when asked about what else he did in the office, that he “didn’t wish to get into that” (T2052.45); he “chatted” with Ms Higgins and they went into the “outer office” or the “general area” being the support staff area (T2051.3138); and (c) that Ms Higgins was “fine” when he left (T2054.2129); and

(3)    that there was never any risk to Ms Higgins’ job (T2157.1720).

265    The submission is also made that whether Ms Higgins told Ms Brown that she remembered Mr Lehrmann being “on top of me” (T2096.3031) at their first (as Ms Higgins asserts) or second meeting (as Ms Brown asserts) is “immaterial”, because Ms Brown’s account favours Network Ten as “Mr Lehrmann’s case theory that Ms Higgins said she had been sexually assaulted at the first meeting to save her job, falls apart”.

266    Despite all this, Network Ten says the evidence of Ms Brown “has to be treated with some caution” because: (a) she made “selective” and not literally contemporaneous notes; (b) Ms Brown professed recollection of matters not recorded in her notes (T2031.610); (c) she had a general tendency to understate the obvious significance of what she had learned about the incident” and it is difficult to accept her evidence that sexual intercourse or a sexual assault had been committed and it was something that could “not be ruled in, and could not be ruled out”, notwithstanding she was worried that something terrible had happened (T2041.45) and it had entered her mind that there had been non-consensual sex (T2055.547; T2058.4244).

267    Ms Wilkinson makes the submission it is open to the Court to form the view that Ms Brown is not being dishonest about her insight as to what she had learned about the incident, but “rather she completely lacks ordinary human insight into such matters” perhaps because she lacked training and what was peculiarly called “general human experience.

268    I had the opportunity of closely observing Ms Brown giving evidence over two days for approximately five hours. Without any intended disrespect or (I hope) stereotyping, Ms Brown struck me as an archetype of a successful professional administrator of a certain age and disposition. She had a conservative outlook and conducted herself in a careful and (generally) risk adverse way. Despite having her health seriously affected by allegations of shameful conduct and (like the other principal actors) experiencing a torrent of social media abuse, she gave evidence in a calm way, and was responsive to questions.

269    One aspect of her evidence was particularly striking. Despite Ms Brown facing sustained pressure from her Minister and one of the Minister’s colleagues to report the incident to the AFP even though she was unsure an allegation was then being made of rape and irrespective of the wishes of Ms Higgins she pushed back.

270    She explained her reasoning in this exchange where I sought to summarise and clarify the evidence given on this topic (T2129.1–27):

HIS HONOUR: Im just trying to get this in my mind. Im sorry if I'm being obtuse.

You had your third meeting with Ms Higgins. You knew the information that had previously been conveyed to you: young people, intoxicated, come back by themselves to an office, drinking whisky, someone wakes up naked. You also know by the end of the third meeting that, as I understand your evidence, that Ms Higgins had said to you, I remember him being on top of me. Just pausing there. At that stage, did you have a view one way or the other as to whether or not it’s likely - let’s leave aside the question of rape for the moment, at that stage, putting all those things together, did you believe that they had been engaged in some sort of sexual activity?---It was a possibility. Consensual, non-consensual, you couldn't rule it in, couldn't rule it out.

No. I'm not talking about consent. I'm just talking about whether or not - - -?---It was possible.

I presume it’s a very serious thing in your mind to push back against two Ministers about whether or not something be reported to the police?---Yes.

And, as I understand your evidence, your motivation in doing that is because you thought it would be disempowering of the person whose interests are most acutely affected; that is, the person who may have something to report?---Yes.

It’s really for her to make a decision about whether she wants to start a process about going to the police and that was the reason you were pushing back?---Yes.

271    We are not all the same. I have no doubt that if apprised of the information identified above, many in her place would have concluded that sex had taken place with a question mark hovering over consent. For all I know, the Senator (who was not called), may have done so by this time and I suspect that is the conclusion I would have drawn. But I accept Ms Brown’s evidence of her circumspection was given genuinely, and this reflected what the contemporaneous record demonstrates was her guarded personality and careful, even pedantic, approach.

272    She was not someone to speculate or jump to conclusions and I reject any suggestion Ms Higgins expressly said to Ms Brown at either their first or second meeting that she had been raped or sexually assaulted. As Ms Higgins later said to Ms Maiden (Ex 50 (at 12)):

I dont know, I think for like the longest time I was really weird about actually saying it was rape, I couldnt ... I dont know why but I was really delicate around that whole subject. So maybe I didn't say to her directly that he was raping me... he was on top of me and I just ... And from our exchange, I think she understood the inference of what was being made.

273    She did not draw a definitive conclusion in the light of the ambiguous words used by Ms Higgins she adopted the more cautious view that sex and something untoward may have happened.

274    But what does not reflect caution was standing up to her Minister and the Chief of Staff of another Minister when Ms Brown thought they were intent on protecting their own interests at the expense of allowing a young woman to make her own decision as to whether she would involve the police even at some risk to her professional career. This showed integrity in resisting pressure she subjectively considered inappropriate and evinced a concern for the autonomy and welfare of Ms Higgins. In these circumstances, to be later vilified as an unfeeling apparatchik willing to throw up roadblocks in covering up criminal conduct at the behest of one’s political overlords must be worse than galling.

275    The attempts in cross-examination to impeach the integrity of Ms Brown’s contemporaneous note taking went nowhere. The contemporaneous record supports the notes being prepared when and how Ms Brown said they were prepared. They do not purport to record everything, but only what was regarded then to be the key points. They are, like in so many cases where there is an honest and careful note taker, the best record of the dealings they document, rather than later recollections. They are of such importance that I reproduce them as Annexure B to these reasons, and I find that to the extent they record the dealings of Ms Brown, they are accurate and reliable. Further, to the extent there is a conflict between those notes and the evidence of Ms Brown with that of Mr Lehrmann, I unhesitatingly prefer the evidence of Ms Brown; the same goes for any conflict between the evidence of Ms Brown or the notes with that of Ms Higgins.

276    Indeed, in assessing the critical evidence of Mr Lehrmann, as I will later explain, aspects of Ms Brown’s contemporaneous notes, which did not receive particularly close attention at trial, are of signal importance, in that they record Mr Lehrmann’s initial responses to queries made of his actions by Ms Brown. Importantly, as to activities in the Ministerial Suite on the fateful night he represented: (a) he did not access any documents (26 March); (b) he came back to drink whisky and ended up drinking two glasses (26 March); (c) he “chatted” with Ms Higgins but didn’t wish to get into” anything else they did (26 March); (d) “they [that is, Ms Higgins and Mr Lehrmann] had a whisky” (5 April); and (e) Ms Higgins was “happy” when he left and he “said he had to go home and she said bye see you next week and he said ye [sic]. He said he had to get home” (5 April).

277    Returning to Ms Brown, she may not have been schooled by health and psychological professionals in dealing with sexual assaults, and may have not, by reason of her personality and age, been as empathetic as some others or have the acute sensitivity of many millennials. She no doubt could have done some things differently, for example, even though Ms Higgins did not raise it at the time, the unprompted failure to recognise the inappropriateness of holding the initial meeting with Senator Reynolds in the Minister’s office was maladroit. But whatever shortcomings can be identified (including with the benefit of hindsight), she ensured she took considered advice from those in whom she reposed confidence, recorded, and acted upon that advice and, subject to the above, showed commonsense and compassion by her own lights (demonstrated by all her contemporaneous records, including text messages).

278    Despite the express and implied criticisms of her, Ms Brown also went out of her way to reassure Ms Higgins and supported and assisted her in contacting the police. It is worth noting that the AFP officers Ms Brown assisted Ms Higgins in seeing promptly are (even now) described by Ms Higgins as having been “wonderful and were really lovely to me”, amazing” and “great” (T821).

279    As Ms Brown herself put it, she did her “professional best with what was given” to her (T2060.4; T2066.46). If one wants to get a real reflection of the contemporaneous 2019 views of Ms Higgins, well before the attitude of Ms Higgins towards Ms Brown evolved in 2021 consistently with the development of the broader narrative of a cover-up, they are reflected in her text message of 7 June 2019 (Ex R810):

I wanted to say this in person but– I cannot overstate how much Ive valued your support and advice throughout this period. Youve been absolutely incredible and I'm so appreciative.

F.4    Ms Gain

280    Ms Gain was a significant witness.

281    As at March 2019, Ms Gain was employed as a communications advisor in the Department of Defence, having previously worked as an advisor in the office of Mr Ciobo. She came to know Ms Higgins in this role and to have a good working relationship with her, involving socialising at work events and discussing their shared interests and experiences in media and communications (Gain (at [4]–[11])). The pair did not, however, consider each other to be friends. To her recollection, Ms Gain had not met Mr Lehrmann prior to 22 March 2019, but had heard his name in staffing circles (Gain (at [27])).

282    Ms Gain was impressive and credible. Unlike a number of other important witnesses, she was refreshingly responsive to questions asked of her and made appropriate concessions and she did not pretend a highly detailed recollection of everything that occurred on the critical night when she was drinking. Moreover, her evidence was consistent with contemporaneous material including, importantly, Ex R59, being a Telegram message in which Ms Gain gossiped to her friend, Major Irvine, that “Brittany hooked up with Bruce” the night before.

283    The submission made on behalf of Mr Lehrmann that Ms Gain should not be believed because she could not recall other, less significant details is one I reject. Rather, this is a pointer to the fact that she was being frank in the variability of her recollection, which is generally how memory works.

284    I should make specific reference to Ex 47 when it comes to the credit of Ms Gain. After Ms Higgins had decided to appear on the Project programme, it will be recalled she sent and then deleted a text message to Ms Gain after almost two years of no contact (T926.4). It is a message that does Ms Higgins no credit, worsened by her fortunately unsuccessful attempt to delete any record she had of it. The message was said by Ms Higgins to be a “cathartic thing for me to get off my chest” and “random” (T923.30–924.21) but it was no such thing. I am comfortably satisfied it amounted to an attempt to prompt Ms Gain of the details of the night in question and impress upon her the allegation of Ms Higgins that she had been sexually assaulted (and the effect of that assault) before anyone spoke to Ms Gain to get her independent account of what may have been said to her. Despite this, Ms Gain forcefully pushed back on assertions that her genuine independent recollection may have been polluted.

285    Ms Gain gave considered answers to all questions asked of her, was forthcoming as to the quality of her recollection, and was unflappable when tested under cross-examination. I have no reason to disbelieve any of her evidence and I accept it.

F.5    Major Irvine

286    Major Irvine was also an important and impressive witness who generally gave responsive, careful, and considered evidence.

287    I reject the suggestion made on behalf of Mr Lehrmann in submissions that Major Irvine’s evidence should be approached with caution because of a lack of contemporaneous notes and the possibility of subconscious infection of her recollection from other information. Although the suggestion was put that she might have difficulty delineating between recollection and reconstruction, she gave evidence, which seems to me to make intuitive sense, that she deliberately decided not to make any records so as to be protective of Ms Higgins information and disagreed that this meant her independent recollection of events (which, in her mind, were significant) were distorted by subsequent publicity.

288    Unlike Ms Gain, it is fair to say that she was, at times, a combative witness, but having observed her closely, I think this was more the result of her personality than seeking to be an advocate against Mr Lehrmann’s interests.

289    There were two aspects of Major Irvine’s evidence which initially gave me some pause, being: first, her assertion, when tested about her ability to recall what happened at The Dock, that she had an independent recollection of “who was sitting where or who drank whatbecause someone told me she was raped three days later” (T1190.1924). This seemed a somewhat forced and non-responsive riposte (although on one level understandable). I was reassured, however, when Major Irvine later fairly agreed with the proposition that her recollection of “general details as to whether you had bought drinks for people and they were all gin and tonics, or vodka, lime and soda or whether you asked for rounds, or things like that” was potentially affected by the alcohol that she had consumed on the night and the passage of time (T1193.1524).

290    Secondly, when asked in chief about declining Ms Gain’s invitation to kick on to 88mph, she responded by saying not only did she not want to mix work and pleasure by going to a club with people with whom she worked (which is entirely understandable), but also that she did not want to socialise or spend time with Mr Lehrmann because he had bad vibes, which she put down to women’s intuition (T1178.431179.3; T1196.415).

291    At first blush, this speculation might be thought to be a tell-tale of someone seeking to poison the well against a party whose interests they were seeking to damage, or be reflective of some hostility. But what is evident upon close examination of the contemporaneous documentary material is that her general wariness of Mr Lehrmann is supported by her Telegram exchange with Ms Gain the following day (at 2:07pm) in which she explained, albeit Delphically: “Bruce is in a bit of trouble in our office [at the moment] so I tried to keep distance (Ex R59).

292    Moreover, there was one aspect of her evidence that was of importance, and which struck me as being a truthful recounting by Major Irvine of a genuine recollection. After noting Ms Higgins was “very down” on the Wednesday or Thursday after the incident, Major Irvine walked with Ms Higgins and had the following conversation with her (T1180.4146):

I said, “Are you okay”. She said no. I – she said, “No, have you heard what has happened”? I said no. She said, “On the weekend, Bruce, Austin, Lauren and I went to 88. Bruce and I were in a[n] Uber to go home and he wanted to come back to Parliament House. He had some whisky to show me or something. When we came back to Parliament House, I fell asleep on the couch and I woke up and he was on top of me”.

293    Ms Higgins did not use the word rape or assault expressly, but Major Irvine went on (T1180.461181.22):

And I said, okay, was it – and I paused. And she said, “Yes, definitely”. And I took that to mean it was an assault. I asked if she had spoken to the Minister or Fiona Brown about it yet. At that stage, she had spoken to Fiona but had not yet spoken to the Minister. I am confident that police were mentioned in that interview – in that meeting – sorry, that conversation with her. I’m confident that she had either booked to see into the police or was going to book in to see the police.

I also told her that, you know, this is big news, and she said, “Yes, with the election so close”.

She did talk about CCTV footage. I’m unsure if – it was definitely in the topic of conversation, either it would show how drunk she was or she wanted to see it or someone had seen it and told her how drunk she was

(Emphasis added)

294    Senior counsel for Network Ten then asked her to do the best she could as to which of the reasons she gave for asking for mentioning the CCTV footage and the following exchange occurred (T1181.24–32):

I’m sorry. It was a long time ago. Yes?---It would show how drunk she was. She said the word “CCTV” in that conversation.

Thank you. And how did that conversation end?---I said, “I’m really sorry,” and, you know, “I really want you to press this. It’s really bad what’s happened,” and I gave her reassurances that I was here if she needed to talk to me.

295    Although Major Irvine rightly conceded the conversation was a long time ago, I accept these exchanges occurred as recounted.

F.6    Mr Payne    

296    Mr Christopher Payne was a departmental liaison officer. The impression I gleaned was that he was not at all fond of Mr Lehrmann. He gave extensive evidence, which I generally accept, about a security breach, but was quite fuzzy about the timing of some other events. At trial, Mr Payne augmented some details of a conversation with Ms Brown absent from earlier accounts which, together with his manner of giving this evidence, leads me to treat his account of his communications with Ms Brown with some hesitation.

297    However, one aspect of his evidence that was given clearly and firmly was in relation to a contemporaneous representation by Ms Higgins, which I consider to be of real importance.

298    It occurred during a conversation between Ms Higgins and Mr Payne, probably on 28 March 2019, which Mr Payne had initiated after Mr Payne had observed Ms Higgins was teary and upset. Parts of his evidence are worth setting out at length to see the context of the emphasised representation (T14223):

DR COLLINS: … can you take his Honour through, again, doing the best you can, what words did she use and what words did you use?---Certainly. So once Brittany was in the room, the door was closed, we were the only two in the room at the time. I asked her words to the effect of, “what’s wrong?” Brittany responded by outlining the events of Saturday after they had arrived back at Parliament House, or on the approach to Parliament House.

So just doing the best you can, what words did she use to you?---She said that she and Bruce had arrived in an Uber at Parliament House. And they had come through security and come back to the Minister’s suite. She told me that she had been sitting on a windowsill and didn’t remember anything after that until she woke up on the couch in the Minister’s office.

All right. And did she say what was happening when she woke up on the couch in the Minister’s office?---She did. She said to me that at that time, Mr Lehrmann was having sex with her on the couch.

All right. Did she say anything else?---She was very upset at that point. So I paused to let her collect herself. And I then asked her, “may I ask you a very direct question?” And she said “Sure. Go for it”. And I remember, those were the exact words, were “Sure. Go for it.” And I said, “did he rape you?” And her response was, “I could not have consented. It would have been like f***ing a log.”

And you’re very clear in those words, Mr Payne. Why is that?---They were quite confronting words, as you can imagine. I mean, I don’t know how to – a twenty- something year old female in tears saying those words to you is extremely confronting. So they stuck with me.

And did you say anything in response to that?---I let her collect herself because she was very upset. And I said to her, “if you want my advice, you must go and see a doctor and you should go to the police. And I can help you do those things. If you want to go now, I will take you”. And her response was that – she thanked me for my concern and said she didn’t want to proceed with that at that time.

299    I accept Mr Payne’s evidence that these confronting words were said by Ms Higgins and that they resonated with Mr Payne.

300    In making this finding, I am conscious Ms Higgins had the following enigmatic exchange with Ms Maiden (Ex 50 (at 24–25)), characteristic of so many of her allegations in 2021:

Ms Higgins:

Everyone was weirded out that [Mr Lehrmann] had suddenly left, no good-bye, he packed up a box and he was gone, and it was like weird because he was one of Linda Reynolds kind of more senior advisers in that space. Everyone was like, that’s weird. They knew obviously it was connected because Fiona called both of us in together. One of the advisers asked me one day, like oh, like something weird’s going on, like are you okay. And I was like, oh, not really and I was like, do you want to know what’s wrong? And he was like, no, no, I don't need to know that. And I said, okay, this is fun.

Ms Maiden:

How old was he?

Ms Higgins:

Forty-something. He’s another Defence guy.

Ms Maiden:

Yeah.

Ms Higgins:

Yeah.

Ms Maiden:

So he’s like anything weird going on but don't tell me.

Ms Higgins:

Yeah.

301    The parties accept these were comments about Mr Payne. It says something about Ms Higgins’ desire by 2021 to paint others as having behaved inappropriately (and also her suggestibility to leading propositions) that she represented these things about one of her former colleagues, who after seeing her in distress in shortly after the incident, was concerned to enquire about her wellbeing.

F.7    Mr Dillaway

302    I do not need to deal with Mr Dillaway at any length. He tried to assist the Court with his genuine recollection, but it is fair to say that unless aided by contemporaneous documents, his recollection was poor. I am not being critical of him, but save for one matter in respect of which I think he had a good recollection (contacting, with Ms Higgins’ permission, a friend to assist Ms Higgins) by far the surest guide as to any interactions of Ms Higgins or others with him in 2019 comes not from his affidavit or unprompted recollection, but from the text messages that have been placed into evidence.

303    As I will explain, one of these messages is of some significance. That is the exchange on 26 March 2019, where Mr Dillaway asked: “Was it just you and Bruce who went back there or a group of people? Did you hook up in there or did someone take advantage of you?” (Ex R99 (at 695)) to which Ms Higgins replied:

Yeah, it was just Bruce and I from what I recall. I was barely lucid. I really don't feel like it was consensual at all.

(Emphasis added)

F.8    Ms Wilkinson

304    Ms Wilkinson’s evidence did not lack self-assuredness. As one would expect from someone with her professional background, Ms Wilkinson was a polished and articulate witness. Regrettably, however, these not inconsiderable skills were often deployed by her in the witness box to advocate for her views.

305    Her counsel made the point, not unfairly, that Ms Wilkinson has “spent decades in a professional environment which involved conversational style interviews and debates” and in those circumstances it is unsurprising she had difficulty within the structure of giving evidence for the first time in a Court”. This submission may have some merit because when she gave evidence for a second time at the trial, she was a candid and far more responsive witness. Be that as it may, and notwithstanding allowances for her background as a presenter, some aspects of her initial spell in the witness box caused me concern: for present purposes, it is worth mentioning four.

306    First, was her refusal to make the obvious concession in response to her cross-examiner’s questions that her speech at the 62nd Annual TV Week Logie Awards on 19 June 2022 conveyed the message that Ms Higgins was credible and to be believed, and therefore, by necessary implication, that her allegation of rape was true.

307    This was a speech given by a proposed Crown witness eight days before the criminal trial was due to begin during a televised programme, broadcast in the ACT. In a judgment given two days later, the Chief Justice of the Australian Capital Territory in R v Lehrmann (No 3) (at 279–280 [22]–[25]; 280 [29]–[30]) said this:

[22]     upon receiving the award, Ms Wilkinson gave a speech in which she openly referred to and praised the complainant in the present trial.  Unsurprisingly, the award and the content of the speech have been the subject of extensive further commentary.

[23]    The recent commentary includes remarks made on the popular morning radio program, “Jonesy and Amanda”.  The relevant segment from that program in evidence on the present application opened as follows:

Amanda:  But there were some really lovely moments last night.  One of which was the award that Lisa Wilkinson and The Project picked up for the story they did on Brittany Higgins.  They just – it was a phone call that came to Lisa.  She answered Brittany Higgins’ phone call.  Brittany had – the back story here, I’m sure you remember, was raped in Parliament House.

[24]    The transcript attributes to “Jonesy” his assent to that recollection.  He later refers to the fact that, “…the whole story was dreadful.  Absolutely dreadful”, adding, “[j]ust the very fact that she had to have a meeting in the very room that she was raped with her superiors and then her career was virtually finished.”  And so on.

[25]    In case it is not clear, my purpose in quoting those remarks is the fact that each of the radio presenters assumed the guilt of the accused. The evidence before me on the present application also includes other social commentary including a copy of the complainant’s own post effectively repeating remarks made by Ms Wilkinson in her speech.  In other words, as was put in argument before me this morning, the combination of the speech and the posts amounted to Ms Wilkinson endorsing the credibility of the complainant who, in turn, celebrated Ms Wilkinson’s endorsement of the complainant’s credibility.

***

[29]    What can be known is that, somewhere in this debate, the distinction between an untested allegation and the fact of guilt has been lost.  The Crown accepted that the Logie awards acceptance speech was unfortunate for that reason.  He also accepted that Ms Wilkinson’s status as a respected journalist is such as to lend credence to the representation of the complainant as a woman of courage whose story must be believed.

[30]    The prejudice of such representations so widely reported so close to the date of empanelment of the jury cannot be overstated.  The trial of the allegation against the accused has occurred, not in the constitutionally established forum in which it must, as a matter of law, but in the media.  The law of contempt, which has as its object the protection of the integrity of the court but which, incidentally, operates to protect freedom of speech and freedom of the press, has proved ineffective in this case.  The public at large has been given to believe that guilt is established.  The importance of the rule of law has been set at nil.

(Emphasis added)

308    Despite, with respect, these measured but pointed criticisms, when the topic of this speech was canvassed in cross-examination, Ms Wilkinson took comfort in: (a) the fact that she did not say in express terms that Mr Lehrmann was a rapist and that she was only “celebrating her courage” (T1730.8); (b) the Chief Justice had acted on the basis of an incorrect representation that Ms Wilkinson had received a warning about the possible consequences of the proposed speech by the Director of Public Prosecutions; and (c) she had taken legal advice from Ms Tasha Smithies, the Senior Litigation Counsel for Network Ten, and the speech was made with the encouragement of Network Ten.

309    As to (a), as Ms Wilkinson eventually and inevitably conceded, by necessary implication she was celebrating Ms Higgins courage in making a true allegation of rape; and as to (b) it was common ground before me that no warning was given by Mr Drumgold (and this is consistent with the evidence of Ms Wilkinson and also Ms Smithies).

310    As to (c), it emerged belatedly during the hearing that Ms Wilkinson was correct in saying Network Ten, through Ms Smithies, did provide express advice as to the giving and the content of the speech (T2550.6) and Ms Cat Donovan, the Network Ten Head of PR (who had seen an advance copy) had led Ms Wilkinson to believe that “Network Ten had given full approval” (Wilkinson 5 December 2023 (at [27])). Consistently with this encouragement, that evening at 11:07pm, Ms Beverly McGarvey, the Chief Executive Officer of Network Ten, acclaimed Ms Wilkinson for having given what Ms McGarvey described as a “Beautiful speech” (Wilkinson 5 December 2023 (at [29])). It will be necessary to return to aspects of this conduct that can be attributed to Network Ten below.

311    What became apparent by the end of the evidence was the action in giving the speech was not, as many suggested at the time, a case of Ms Wilkinson going off on a frolic and irresponsibly saying something off the top of her head. She was sufficiently prudent to seek advice. She only came to give the speech as a result of being badly let down by those to whom she turned for advice and counsel. One can well understand Ms Wilkinson’s frustration at the true picture being obscured by Network Ten maintaining its joint claim for privilege until the eleventh hour.

312    But although the reality of this advice and encouragement provides important context, Ms Wilkinson was a fourth estate éminence grise with 40 years’ experience – she gave evidence she was appointed a Member of the Order of Australia in 2016 for, among other things, services to broadcast and print journalism. If she had of thought matters through as an experienced journalist, and less as a champion for Ms Higgins, she ought to have known the speech was fraught with danger and recognised that lauding a complainant on the eve of a rape trial in the terms she did would be apt to undermine the due administration of justice.

313    She was keen to give the speech not because of pressure from her employer (as seems to be suggested by her final submissions) but because, in the words of Ms Smithies, Ms Wilkinson had becomeinextricably intertwined with Ms Higgins and had provided her with clear and unequivocalsupport for the preceding 18 months (T2616.18–25). The speech was part of a continuum of conduct of Ms Wilkinson celebrating and lending credence to Ms Higgins as a woman of courage whose story must be believed.

314    I accept Ms Wilkinson did not fully appreciate the extent of the problem, given the advice and encouragement of Network Ten and perhaps because of the approbation the speech received by way of applause from her professional peers on the night (notwithstanding some of them, surely, must have been aware of the pending jury trial).

315    But in the end, what matters for present purposes is less any lack of judgment in giving the speech, but rather her lack of candour in the witness box by refusing initially to admit it conveyed the representation that Ms Higgins’ rape allegation was credible and to be believed. I disagree with the submissions made on behalf of Ms Wilkinson that the questions of the cross-examiner were imprecise. This evidence illustrated a tendency of Ms Wilkinson to try to avoid making concessions, even an obvious one.

316    Secondly, some of her evidence about the content of the Project programme displayed an allied tendency to make assertions that she thought supported her case but lacked a factual foundation. One notable example was the evidence that an aspect of the Project programme conveyed the notion that Ms Brown was caring; or that aspects could be construed as complimentary about Ms Brown and Senator Reynolds.

317    Counsel for Ms Wilkinson defended specific answers relating to Ms Brown at some length in written submissions, but the notion that the Project programme was not very critical of Ms Brown, as well as Senator Reynolds, is utterly unsustainable. Her evidence also embraced the concept that the Project programme conveyed to viewers that Ms Higgins was putting pressure on herself not to go to the AFP, rather than alleging she was experiencing such pressure from Ms Brown and Senator Reynolds. Self-created roadblocks were put up, the argument apparently goes. Not only is that wrong on any objective review of the broadcast, but is disingenuous as the contemporaneous observations of the participants demonstrate (and as I will explain below).

318    A further example of making such assertions was her evidence-in-chief that every new piece of information which came to her attention prior to broadcast corroborated Ms Higgins’ version of events (as relayed to her on 27 January and 2 February 2021) (Wilkinson 28 July 2023 (at [110])). She stood by this evidence in cross-examination (T1724.14–25), notwithstanding the fact she admitted she had read, prior to broadcast, a communication from what she described as “some nameless person from the Prime Minister’s Office” (T1868.9) stating (contrary to Ms Higgins representations) that (Ex R716; T1866.35–41):

The Minister reiterated to the staff member that whatever the staff member chose to do, they would be supported. The Minister stated to the staff member that her only concern was for the staff member’s welfare and stated there would be no impact on their career. The Minister encouraged the staff member to speak with police in order to assess the options available to them. At this meeting, the staff member indicated they would like to speak to the AFP, which the Minister supported and the office facilitated.

319    She dismissed this material as a “very official response to a very difficult political situation that the government was in” (T1866.45–6). In a similar way, according to Ms Wilkinson, she had been told by Mr Llewellyn at some point that the reason for the loss of data from Ms Higgins’ mobile phone related to transfers from multiple mobiles. There is no contemporaneous record of this communication (and given its obvious importance, the lack of record is intuitively surprising) but assuming it was said, this information was inconsistent with what Ms Higgins had earlier said about the cause of her alleged loss of data – how this corroborated Ms Higgins’ version of events (rather than undermined her credibility on a topic considered at the time by Ms Wilkinson to be important) was unexplained.

320    Thirdly, was her willingness on affirmation to double down on an allegation that Ms Brown and Senator Reynolds were active participants in a systemic cover-up of alleged criminal conduct when, upon any fair review of the available material, the basis for such a grave allegation is infirm (even taking the evidence of Ms Higgins as to what she “felt” or what was “weird”, and the assertion senior staffers from the Prime Minister’s Office (PMO) had met with Senator Reynolds in her office, at their highest). The willingness to maintain that such conduct occurred in the absence of any solid, verifiable material in her possession, demonstrates her willingness to engage in speculation (or, to use her words, to read between the lines” (T1781.38)). Indeed, the maintenance of this allegation seems odder in circumstances where, by the end of the trial, Ms Wilkinson was emphasising her reliance on the investigative work of others. In any event, for the purposes of assessing her evidence, this willingness to speculate causes me to approach her testimony with some caution.

321    Fourthly, and picking up on the last point, there is the evidence upon which rests Ms Wilkinson’s final submissions that her job in relation to the publication was to “to read the pre-prepared script” and that “she acted not only reasonably in reading that pre-prepared script but perfectly, in that she read it word for word”. As I will develop below when dealing with the reasonableness of her conduct in relation to publication, this picture is hard to reconcile with Ms Wilkinson getting up on the night of the Logies; accepting a prestigious award on behalf of The Project; and declaiming “this interview and this story is by far the most important work I have ever done”. Moreover, the evidence given as to any degree of professional scepticism or rigour in analysing the allegations must be seen in the light of her assertion immediately thereafter: “I knew it [that is, it would be the most important work I would ever do] from that very first phone call I had early last year with a young woman, whose name, she told me, was Brittany Higgins” (Ex 12).

322    Balanced against this is that I accept Ms Wilkinson was sincere and genuine in parts of her evidence and, most particularly, consistently with what she said at the Logies, she never questioned the underlying truth of any of Ms Higgins’ allegations from the first moment they were articulated. I also accept she held genuine concerns about the procedures and assistance available to Ms Higgins, and as to what she alleged she experienced. In particular, I accept she fully believed what Ms Higgins told her on 2 February 2021 about the state of Senator Reynolds’ knowledge as at the time of the 1 April meeting.

323    I also accept Ms Wilkinson reposed confidence in the producers and executive producers at Network Ten who were responsible for different aspects of the production, editing, and approval of the Project programme.

F.9    Mr Llewellyn

324    I can be briefer with the other statutory qualified privilege witnesses, including Mr Llewellyn, whose evidence I address in considerable depth below. He was cross-examined at length.

325    Mr Lehrmann submitted that Mr Llewellyn was an unimpressive witness who made non-responsive speeches and struggled to give answers to questions, and that his evidence ought not be accepted “unless it is corroborated by documents or other witnesses, not including Ms Wilkinson.

326    To the extent this submission suggests my focus should be on contemporaneous materials and what inferences should be drawn from what is revealed in recordings and other candid communications, rather than ex post facto assertions in an affidavit, it is well made. I further accept that Mr Llewellyn was often non-responsive, and several aspects of his evidence were less than satisfactory, such as:

(1)    his testimony as to the lack of a political motivation of Mr Sharaz (T1630), a conclusion which cannot be reconciled with the contemporaneous material including, as just one of a number of examples, Mr Sharaz saying to him on 27 January 2021 that (Ex 36 (at 1:14:09–1:14:17)):

the reason we’ve chosen the timeline we’ve had is because it’s a sitting week when we want the story to come out. A break and then

… the Senate goes in March, and that’s when I’m going to talk to - I’ve got a friend in Labor, Katy Gallagher on the Labor side, who will probe and continue it going. So sitting week, story comes out. They have to answer questions at Question Time. It’s a mess for them. March, Senate estimates. Hopefully we can try and get the footage, that sort of stuff, for Britt’s clarity and then he’s going to call an election whenever he calls it.

(2)    relatedly, his initial refusal to accept that he knew that Mr Sharaz intended to assist the then Opposition to pursue the issues being discussed in Parliament (T1629–30); and

(3)    his refusal to accept the reality that the Project programme conveyed the impression that Ms Higgins would not be supported if she went to police (T1574.146).

327    Mr Llewellyn did provide generally credible testimony in cross-examination as to aspects of what he did. Whether those steps were all he should have reasonably done is discussed below.

F.10    Mr Meakin

328    Mr Peter Meakin is an editorial consultant with over 60 years’ experience as a journalist with a high reputation built by being in a number of senior roles in commercial television.

329    I will deal with some of his evidence below when dealing with the s 30 defence. If suffices to note for present purposes that he was an impressive witness who gave thoughtful, responsive answers and, refreshingly, was willing to make concessions adverse to the case of Network Ten when he thought it was appropriate.

F.11    Dr Robertson

330    During the course of final submissions, I described Dr Robertson, a toxicologist called by Network Ten, as a “very impressive expert [witness] (T2328). I adhere to that view. It is unnecessary to say more than he was a disinterested and cautious witness who understood the role of an expert is to assist the Court. In the end, however, his evidence is only relevant to the extent I can accept as reliable the assumptions upon which he based his opinions.

F.12    Mr Reedy

331    In two interlocutory judgments delivered ex tempore during the trial, I detailed the background of Mr Tim Reedy (the forensic lipreading expert) and the nature of his evidence: Lehrmann v Network Ten Pty Limited (Expert Evidence) [2023] FCA 1577 and Lehrmann v Network Ten Pty Limited (Expert Evidence) (No 2) [2023] FCA 1647.

332    In the latter judgment, in allowing the tender of Mr Reedy’s evidence (initially given on the voir dire) in the trial, I said (at [17]) that the arguments raised by counsel for Mr Lehrmann in the context of seeking discretionary exclusion of the evidence of the lipreader “are matters which will need to be considered carefully when I assess the weight of the evidence, including my personal observations and assessments of the interactions captured by the relevant CCTV footage” (original emphasis).

333    Mr Reedy was an impressive and accomplished man who did his best to assist the Court but, in the end, there is no need for me to form definitive views about his evidence. This is because I do not intend to place weight upon it.

334    This is no reflection upon Mr Reedy. After the hearing, I have had the opportunity of considering the interactions captured by the relevant CCTV footage closely and repeatedly. I have formed my own views from my observations as to the nature of the interactions and communications between Mr Lehrmann and Ms Higgins, which emerge tolerably clearly from many reviews of the recording.

335    In not placing weight on Mr Reedy’s evidence, I am additionally conscious of the limitations on the process of lipreading from video (readily acknowledged by Mr Reedy) and, more importantly, that the opinion lipreading evidence may, at least to some extent, have been affected by the fact that when Mr Reedy viewed the video, he “saw that the man was encouraging her, enticing her to drink everything that was on the table (T2181.5). I am grateful for Mr Reedy’s assistance, but I am in as good a position as him to assess whether this is a fair characterisation of what occurred.

G    FACTUAL FINDINGS OF RELEVANCE TO THE SECTION 25 DEFENCE

336    Before going further, I should make four preliminary points.

337    First, although I have considered all the evidence adduced, in this section I will make findings about what relevantly occurred without necessarily setting out conflicting accounts. I have already explained my general approach to the evidence of various witnesses, and it would expand an already burdensome judgment to proceed otherwise, particularly when the important facts leading up to and following the incident emerge fairly clearly; secondly, the evidence ranged far and wide and a number of incidents recounted have no bearing on the resolution of the case, hence I will try to avoid making findings on immaterial matters; thirdly, from time to time I make reference to the transcript these references are not necessarily meant to be exhaustive references but are often illustrative, and point to an example of where the relevant evidence can be usefully found; and fourthly, and most significantly, at Section I below, I make findings as to the relevant post-incident conduct, which was the subject of much and disputed evidence; although these findings are located chronologically, and after I have expressed my conclusions on the substantial truth defence, I have taken them into account in forming views as to credit and in reaching my ultimate conclusion on the substantial truth defence.

G.1    Pre-Incident Events

I    The Reynolds’ Office

338    In the Reynolds office, there was a clear pecking order. Although Ms Higgins overstated the seniority of Mr Lehrmann in her 2021 accounts to Ms Maiden and the Project team, Mr Lehrmann was more senior than Ms Higgins in his role as policy advisor, while Ms Higgins was an administrative officer and junior media advisor. I am not satisfied the issue of Mr Lehrmann bullying Ms Higgins had been escalated within the office as Ms Higgins asserted in 2021, but accept Mr Lehrmann would give her tasks, such as organising a new phone list so that Mr Lehrmann was listed at a particular spot and moving a fridge, which Ms Higgins recalled as being “particularly annoying” tasks (T602.16603.9). Whether she actually did feel like Mr Lehrmann’s secretary (T934.20) is unnecessary to resolve, but what matters is that she did feel he was in a position of power in the office and in his dealings with her.

339    The office was in a state of flux, owing to the Senator’s recent change in portfolio, and the spectre of the May 2019 federal election, which most observers confidently expected the Coalition Government would lose. Many of the Ministerial staff were in what is known as a “deferral period”, when a person is temporarily employed by a Minister pending the final selection of Ministerial staff (T87–88). Mr Lehrmann was in a deferral period of approximately one month following Senator Reynolds’ swearing-in to the portfolio of Minister for Defence Industry on 2 March, and all staff, including Ms Higgins, would enter a deferral period in the weeks prior to the election. There was no security in any of these jobs and, as contemporaneous messages discussed below confirm, Ms Higgins understood this to be the case.

340    Work hours were long and, like in many demanding professional offices, it was common for staff members to socialise outside work hours, including by having dinner and drinks.

341    The floorplan of the Minister’s Suite is of some significance although it is not a matter of disputation. In evidence are two marked-up versions of the floorplan, the first being a copy annotated by Mr Lehrmann (Ex 19); and the second being a copy marked-up by Ms Higgins (Ex R1), the latter of which I have reproduced as Annexure C.

342    As can be seen, upon entering the Minister’s Suite, one passes through a reception waiting area, at the end of which there is a perpendicular corridor, which leads to the support staff area (where the desks of Mr Lehrmann and Ms Higgins were located) to the left, and to the Minister’s office to the right. In the support staff area, there are large window ledges, upon which one can sit, overlooking what is known as the Prime Minister’s Courtyard.

II    Mr Lehrmann’s Knowledge of Ms Higgins

343    Mr Lehrmann told the Court he did not know Ms Higgins or her aspirations in working for Senator Reynolds until their interaction at the Kingston Hotel (colloquially, the “Kingo”) on 2 March 2019, discussed below (T175.926). He later admitted the pair had interacted in passing, when Mr Lehrmann went to visit Ms Abbott in Mr Ciobo’s office, where Ms Higgins worked at the front desk (T175.36–42).

344    Despite his denials (see, for example, T176.1437; T350.4344), as noted above (at [156]), I am satisfied Mr Lehrmann was taken with Ms Higgins from the outset. He told Ms Hamer as much in early March 2019 (T1047.119), and agreed he found her attractive when interviewed for the Spotlight programme in June 2023 (T351.112).

III    2-3 March 2019: Drinks at the Kingston Hotel and Related Events

345    At the Kingo on 2 March, a telling incident occurred, and the event and its reverberations are consistent with: (a) Mr Lehrmann’s attraction to Ms Higgins; (b) Mr Lehrmann’s immaturity and lack of self-awareness; and (c) Senator Reynolds being given information that may have caused her to question whether Mr Lehrmann was someone in whom she could repose confidence.

346    Mr Lehrmann attended Senator Reynolds’ swearing-in ceremony and then attended a celebratory lunch at the Kingo together with some colleagues, being Ms Hamer, Mr Wotton and Ms Michelle Lewis, the office manager of Senator Reynolds’ Perth office.

347    At some point, Messrs Lehrmann and Wotton were playing pool and drinking. Ms Hamer and Ms Lewis were near the snooker table. Mr Lehrmann told Mr Wotton, in substance, that he wanted to invite Ms Higgins for a drink because he knew her; that she worked for Mr Ciobo; and that she was looking for another job. Ms Lewis left at some point.

348    Ms Hamer and Messrs Lehrmann and Wotton discussed who might move across to work in Senator Reynolds’ office. Mr Lehrmann asked Ms Hamer whether she knew Ms Higgins. Ms Hamer had not met Ms Higgins but had obtained her contact details through Instagram. Upon being apprised of this fact, Mr Lehrmann asked Ms Hamer to contact the “good looking” Ms Higgins on Instagram and invite her to the pub (T1047.35).

349    Ms Hamer then messaged Ms Higgins on Instagram, asking her to come to the Kingo for a drink if she was free. Ms Higgins responded saying she would drop in before attending to other plans.

350    Ms Higgins understood, or at least suspected, this would amount to an informal job interview. Ms Higgins arrived and after some time passed, she and Ms Hamer split off from Messrs Lehrmann and Wotton to have a private conversation in the courtyard, which lasted somewhere between thirty minutes and an hour. Ms Hamer and Ms Higgins apparently clicked and discussed their journeys into politics, and Ms Hamer asked Ms Higgins her plans in the light of Mr Ciobo’s resignation (T1048).

351    When Ms Hamer and Ms Higgins rejoined the others, Ms Hamer informed everyone she was impressed by Ms Higgins and discussed a plan whereby Ms Higgins would have carriage of the Minister’s Canberra-based media matters, while Ms Hamer would be responsible for those that were Perth-based. Ms Hamer indicated she would inform the Minister that Messrs Lehrmann and Wotton had met Ms Higgins and supported her joining the team (T1082.3944).

352    Following this happy news, Ms Higgins informed everyone she would be heading off and took out her phone and began to order an Uber (T1048.47–8).

353    Mr Lehrmann and Mr Wotton both asked Ms Higgins not to depart and to stay for a drink. Ms Higgins demurred, and Mr Lehrmann took Ms Higgins’ phone from her so that she could not complete the Uber booking and again entreated her to tarry with them awhile. Ms Higgins responded by repeating she had to go and said she was already running late (T1049.10).

354    Ms Hamer then intervened and protested, telling Mr Lehrmann something to the effect of “she told us she could only stay for a little while. She has to go” (T1049.12–14). Mr Lehrmann then returned Ms Higgins’ phone, which Ms Higgins accepted while laughing the incident off (which might be seen as a non-confrontational approach to an awkward situation, which was understandable given the power dynamic and Ms Higgins’ hopes to secure the job).

355    After Ms Higgins left, Ms Hamer was sensitive to what had happened and told Messrs Lehrmann and Wotton to “shut the f**k up” (T1083.32). She considered both men had behaved boorishly and in such a way as to make Ms Higgins feel she would not get a job because she had not fallen in with their plans to stay for a drink.

356    Mr Wotton was displeased at her reaction and responded, “quite passionately (T1083.37). Mr Lehrmann chimed in and told Ms Hamer she had overreacted in defending Ms Higgins and that he had only been joking. Ms Hamer disagreed and left shortly thereafter.

357    Ms Hamer was distressed by the incident. Once she left, she spoke to a relative and resolved to then send an email to Senator Reynolds at 4:47pm, resigning from her position as media advisor (Ex 56). The email did not elaborate upon her reasons for resigning. Ms Hamer had been unhappy at work, was missing her home in Perth, and felt “ganged up” on by Mr Lehrmann. In her mind, this was the final straw and she wanted to move on.

358    In the meantime, Mr Wotton returned to his hotel. On his way back, he contacted Ms Lewis and later met with her at the restaurant of the hotel, where Ms Lewis was also staying, to report the incident, being the “heated discussion” with Ms Hamer (T1085.34). During their meeting, Ms Lewis informed Mr Wotton that Ms Hamer had resigned (T1085.4142).

359    Ms Hamer and Messrs Lehrmann and Wotton attended Parliament House the following day, Sunday, 3 March. Each was only made aware of the presence of the others upon their arrival.

360    When Mr Wotton arrived, he overheard what appeared to him to be a “jovial” meeting between Senator Reynolds and Ms Hamer. What evidently was happening was that Senator Reynolds had asked Ms Hamer why she had resigned, and, in response, Ms Hamer had recounted the incident the previous night and had told the Minister “when the phone was taken away from Brittany, I, kind of, stepped in to defend her. Bruce then, kind of, got defensive, made a comment about me always feeling the need to stand up for women. I got defensive and then I just, kind of, just from there, said that I was – it was enough. I didn’t want to be here anymore” (T1068.1023). The Minister talked her out of resigning.

361    In any event, when Ms Hamer emerged from the room, Mr Lehrmann was then called in (despite his peculiar evidence, he does not recall being reprimanded by Senator Reynolds and yet recollects attending Parliament House and overhearing Mr Wotton being told off (T225)).

362    When Mr Lehrmann emerged from the meeting room after his reprimand, Mr Wotton took from the abashed look on Mr Lehrmann’s face that he was next, and that he would not be in for a pleasant time (T10845).

363    Senator Reynolds called Mr Wotton into her office and asked for his version of events. He gave an account, but she was not mollified and ticked him off. She explained that Messrs Lehrmann and Wotton were senior males in the office, in positions of power, and that they should have understood how their conduct may have made Ms Hamer and Ms Higgins feel (T1086.111). Senator Reynolds told him that the events of the previous day had “put her in a very difficult position in terms of whether or not Ms Higgins ultimately ended up with a job in her office” (T1086.2–4).

364    Messrs Lehrmann and Wotton later discussed the matter and consoled each other by both expressing they were unhappy with the way Senator Reynolds had dealt with the issue (T1086.31–35).

IV    15 March 2019: Team Reynolds Dinner

365    On 15 March, Senator Reynolds held a dinner at the Kingo for her newly integrated staff, apparently attended by Mr Lehrmann, Ms Higgins, Ms Hamer, Mr Wotton, and Ms Lewis.

366    Mr Lehrmann said he did not recall the dinner occurring (T205.1640). But I accept it happened.

367    Ms Higgins said she left the Kingo at about the same time as Mr Lehrmann (approximately 9 or 9:30pm), and the pair waited outside the venue for their respective rideshares. Around the time Mr Lehrmann’s vehicle arrived, Ms Higgins alleges Mr Lehrmann tried to kiss her, an advance she rebuffed. Mr Lehrmann does not recall waiting outside the Kingo with Ms Higgins and denies trying to kiss her or ever making an advance towards her (T206.714).

368    This advance might have happened, but I am not satisfied it did. I am chary in accepting this version of events for two reasons: first, this far from unremarkable incident was not raised in 2019 and is not even mentioned in the five-hour interview between Ms Higgins, Ms Wilkinson and Messrs Llewellyn and Sharaz (Ex 36); nor is it raised in the uncut, two-hour interview between Ms Wilkinson and Ms Higgins (Ex 37) even when Ms Wilkinson (and for that matter, Ms Maiden) asked Ms Higgins if she had an inkling that Mr Lehrmann may have been interested in her; secondly, it is raised for the first time when Ms Higgins was already being disingenuous about a number of things and I cannot discount the possibility this might amount to an attempt to buttress her allegations by pointing to a prior incident of inappropriate conduct that cannot be definitively disproved by any contemporaneous document or independent witness. Notably, this alleged occurrence paints Ms Higgins in a good light by showing her rebuffing Mr Lehrmann’s unwelcome attempts at intimacy (which cogent evidence establishes she did not do a week or so later at 88mph).

369    The effect of giving this evidence is reflected in the submission now made by Network Ten as painting Ms Higgins as experiencing a well-known phenomenon: “Ms Higgins’ first reaction was depressingly familiar to many women she blamed herself for doing something that had unintentionally led Mr Lehrmann on or encouraged him to kiss her.

370    In any event, nothing really turns on this incident. What matters, to the extent it does matter, is that Mr Lehrmann was attracted to Ms Higgins at this time and later in March (irrespective as to whether he made a clumsy and unwelcome attempt at osculation outside the Kingo).

V    20 March 2019: Mr Lehrmann’s First Security Breach

371    On Wednesday, 20 March, an incident took place involving Mr Lehrmann and a secure document. In the witness box, and on the Spotlight programme, Mr Lehrmann described it as a “very brief minor incident” (see, for example, T89.811) for which he was briefly scolded by a subordinate, Mr Payne. But, as he eventually conceded (T219.912; T219.3536), it was much more than that.

372    In an incident report (Ex R79 (at 2)), Mr Payne explained Mr Lehrmann left a “Top Secret - Codeword classified document uncovered and uncontrolled on a desk”. When this was brought to Mr Payne’s attention, Mr Payne informed Mr Lehrmann documents at that classification level could not be handled in such a manner and offered to provide him with appropriate document handling procedures. Mr Lehrmann declined and thought Mr Payne was straying outside his lane. He requested Mr Payne give him the document in order for him to return it to the originating agency, claiming he had a secure means by which to transport it. He was then observed leaving the Minister’s Suite with the document in an opaque plastic folder (which, hardly surprisingly, was not consistent with appropriate procedure).

373    Ms Brown promptly became aware a security incident had taken place (T1415.4647). She understandably took the incident seriously and subsequently initiated an office-wide audit in response (T1419.1023). Ms Brown gave evidence, which I accept, that the Home Affairs DLO stated Mr Lehrmann’s actions would be a sackable offence (Brown (at [25])). She discussed the issue with Mr Lehrmann in what she described as a low key way (T2039.2830).

374    All in all, this was far more than a minor lapse and the matter was unsurprisingly referred to, and relied upon, by Senator Reynolds in a letter sent to Mr Lehrmann on 4 April, in which the Minister indicated she was considering terminating his employment “on the basis of serious misconduct” (Ex 23) (show cause letter). In an email in response to the show cause letter, Mr Lehrmann stated he felt “embarrassed, ashamed and deeply remorseful” (Ex 24).

VI    22 March 2019: Before the Dock

375    On 22 March, Mr Ben Couch, an aide-de-camp, messaged a group of friends within the Department of Defence and adjacent offices, including a number of aides-de-camp from the Royal Australian Navy, arranging a plan for drinks at The Dock at around 7pm.

376    Ms Higgins was invited along separately by Ms Gain, whom she had known for a couple of months (T610.15–19). She viewed the event as a networking opportunity, and a chance to demonstrate to her professional peers she “wasn’t just a receptionist” and she had “contacts” (T610.3135). Ms Higgins extended the invitation to a number of others, including Mr Wenke (who worked for the Minister for Home Affairs and occasionally socialised with Mr Lehrmann), Mr Lehrmann and a man she was in contact with on the dating application Bumble, who also worked in politics (T610.3740; T611.19). Ms Higgins’ hapless date was referred to initially as “Bumble guy”, but as noted above (at [256]), later was given the dignity of being described by his Christian name, Nick.

377    Ms Higgins went home after work to ready herself for the night ahead. She had worn her favourite white pencil dress to work that day with a cardigan “to make it … more office appropriate” (T611.3640). She swapped her cardigan, work bag and work items (including her Parliamentary pass) for a smaller handbag and had a glass of wine before catching a taxi or Uber to The Dock (T611.3545).

378    Quite separately, Mr Lehrmann and Mr Wenke made plans to have “a couple of beers and a bite” at the Kingo after work (T240.3741). Unconvincingly, Mr Lehrmann told the Court he “recall[ed] Austin and I working on something” and could not “recall if it was necessary to go home after the Kingston or return … to Parliament” (T240.4147), while Mr Wenke was clear, and I accept, he had finished his work for the week by the time he set off for the Kingo (T1121.3738). There is no record of Mr Lehrmann telling his girlfriend of his plans. At some point over the course of their repast or afterwards, Mr Lehrmann and Mr Wenke decided to accept the invitation to kick onto The Dock.

VII    The Dock

379    Fortunately, we can identify with some precision what went on at The Dock given the existence of what Mr Reedy correctly described as high quality and clear CCTV footage (Ex R42 / Ex 17A). Over an extended period, it shows a group seated together around a long table, variously chatting, mingling, drinking, tucking away pizza and chips, going to the bar and moving to and fro.

380    Ms Higgins arrived at about 7:19pm and greeted the group of about eight, including Ms Gain and Major Irvine who had each arrived slightly earlier at around 7pm or so.

381    Mr Wenke’s evidence was that he and Mr Lehrmann arrived at The Dock around 8pm or 8:30pm (T1121.4041) but the CCTV records the group at the large courtyard table with Mr Lehrmann and Mr Wenke approaching at 8:39pm (Ex R42 / Ex 17A (at 20:39:31)), at which time Ms Higgins was in conversation with Nick. Mr Lehrmann agreed that the image recorded him and Mr Wenke arriving at The Dock (T252.24). After being introduced and exchanging pleasantries with those at the large table, Mr Lehrmann and Mr Wenke then went inside to the bar to order their first round, and then went to the courtyard and sat at a smaller table at around 8:44pm (Ex R19) (T264). Ms Gain was seated with them (T1105.2125).

382    Ms Gain had not previously met Mr Lehrmann (T1113.7), and she asked him where he worked. Mr Lehrmann told her that he was in Senator Reynolds’ office (T1103.116) and, at some point in the conversation, Mr Lehrmann spun the tall tale he was waiting on a clearance to come through so that he could go and work at ASIS. Ms Gain, politely, kept her well-founded incredulity to herself.

383    Not much time passed when Ms Higgins entered the courtyard at 8:51pm with a drink in her hand and then joined a conversation about the previous federal election and then imminent poll with Mr Lehrmann, Mr Wenke and Ms Gain (T616.711). Nick, alas, was left chatting to a man in a blue shirt (Ex R42 / Ex 17A (at 20:51:38)). After being forsaken like a shag on a rock for an extended period and despite then making successful attempts to interact with some of the group on the larger table, Nick understandably left The Dock, no doubt ruing swiping right.

384    With the exception of Mr Lehrmann, no-one who gave evidence as to their time at The Dock could recall discussing Australia’s submarine contracts with France at either table. The lack of recollection of any discussion of this topic is intuitively unsurprising. Declaiming on the topics of who was building submarines and where they were being built was not quite the repartee one would usually expect to hear over a convivial drink on a Friday night between twenty-year-olds out for a good time – even if (with respect) one would not expect the badinage of the Algonquin Round Table (and that some attending were political “junkies” or had an interest in defence matters).

385    The lack of detailed conversation on this topic is also consistent with Mr Lehrmann’s evidence that he was aware he could not discuss sensitive matters in public, and so kept the conversation at The Dock friendly and social (T258.3038; T259.12). Moreover, I accept the evidence of Ms Gain and Ms Irvine who told the Court that even if the submarine contracts had been discussed at the pub on a busy Friday night, the discussion would have been generalised, unclassified and based on what was already in the media (T1119.315). The suggestions made in Mr Lehrmann’s written submissions that I should draw adverse inferences because the respondents did not call various unnamed Naval officers to give evidence, or adduce evidence-in-chief as to the mention of submarines from the lipreader Mr Reedy, are wholly unrealistic (as the Naval officers were in neither side’s camp and any inference from the absence of evidence would not affect the combined weight of the evidence actually given by those present and commonsense conclusions drawn from the nature of the occasion).

386    Having explained the timing and nature of the social occasion, it is worthwhile organising the further and important factual findings relating to events that took place at The Dock into three topics: first, Mr Lehrmann’s payments; secondly, the drinks consumed by Ms Higgins; and thirdly, a summary of the interactions between Mr Lehrmann and Ms Higgins.

Mr Lehrmann’s Payments

387    As I have already noted, Mr Lehrmann had initially said in his evidence, when asked how much he had to drink at The Dock, that he had “only a couple of rounds with Austin. We – we were in – so I think it would have been one round for me, one round for him” (T94.4345), that is, each shouted the other once (T244.1439). This, of course, was consistent with his evidence he did not have any cash with him on the night (T249.8); his adamant insistence he only had two sources of funds that he could access (an EFTPOS debit card and a credit card (T249.1747)); that he only used one of these cards (T250.919); and his relevant account statements provided by him to the AFP and which were adduced into evidence.

388    As I will come to shortly, the CCTV establishes beyond argument what happened and inevitably Mr Lehrmann was required to accept the answers he had given about not having bought drinks for anyone other than Mr Wenke had been false (T260.18; T288.3040).

389    Mr Wenke does not recall lending his credit card to Mr Lehrmann (T1126.2829) and it would not have been consistent with his usual practice to have done so (T1126.3132). By the end of Mr Lehrmann’s evidence, no rational explanation had been forthcoming.

390    How then did he purchase them?

391    The answer can be seen in a portion of the CCTV footage which demonstrates that at about 9:35pm, Mr Lehrmann handed over a card in payment of a $42.50 charge for a round of drinks “one of which is for Ms Higgins” (Ex R42 / Ex 17A (at 21:34:56); T2359). Despite his persistent representations to both the AFP and this Court that he only had access to the cards in respect of which he provided statements, it is evident this was untrue.

392    This issue is essentially ignored in Mr Lehrmann’s written submissions, with the comment being made that Mr Lehrmann’s evidence about the number of drinks purchased at The Dock was less problematic than it was made out to be” because it was not just him “who was clearly wrong about various details” and he “had no reason to retain minute details of this night and it is unrealistic to expect anyone to do so, almost [two] years later. But it is much more than that.

393    This is far from a picayune point. I do not accept that having access to another source of funds to allow payment by way of card at The Dock (and possibly later at 88mph) is a “minute detail or is something that would have been forgotten. Moreover, Mr Lehrmann did not say he may have had access to other funds but could not now recall he repeatedly denied it. The purchase of drinks on behalf of Ms Higgins by Mr Lehrmann was, and must have been known by Mr Lehrmann to be, an important aspect of their interactions leading up to the incident later that night.

Drinks Consumed by Ms Higgins

394    There was no agreement and hence no comprehensive table provided by the parties in their final submissions about what the evidence reveals as to all the drinks consumed by Ms Higgins on the evening of 22 March and early hours of 23 March 2019.

395    I have prepared such a table and reproduce it at this point of my reasons as a guide to what the evidence reveals, even though it anticipates my findings as to what occurred after Ms Higgins left The Dock and I consider may well underestimate alcohol consumption, for reasons I will explain when it comes to making findings as to why Ms Higgins and Mr Lehrmann went to the Ministerial Suite and what occurred there.

Drink

Where

What

Bought by

When

Reference

1

Home

Glass of wine

-

Unknown (after work but before 7pm)

T611.42 (Ms Higgins)

Ms Higgins arrives at The Dock

7:19pm

Ex R42 / Ex 17A (at 19:19:02)

2

The Dock

Spirit-based drink

Ms Higgins

7:25pm

Ex R42 / Ex 17A (at 19:25:21)

3

The Dock

Spirit-based drink

“Blue polo shirt guy”

7:50pm

Ex R42 / Ex 17A (at 19:50:22)

4

The Dock

Spirit-based drink

Nick

8:05pm

Ex R42 / Ex 17A (at 20:05:02)

5

The Dock

Spirit-based drink

Nick

8:34pm

Ex R42 / Ex 17A (at 20:34:04)

Mr Lehrmann and Mr Wenke arrive at The Dock

8:39pm

Ex R42 / Ex 17A (at 20:39:31)

6

The Dock

Spirit-based drink

Unknown

8:51pm

Ex R42 / Ex 17A (at 20:51:38)

7

The Dock

Spirit-based drink

Mr Lehrmann

9:34pm

Ex R42 / Ex 17A (at 21:34:58)

8

The Dock

Spirit-based drink

Ms Higgins

10:09pm

Ex R42 / Ex 17A (at 22:09:31)

9

The Dock

Spirit-based drink

Unknown (Mr Lehrmann passes drink to Ms Higgins)

10:42pm

Ex R42 / Ex 17A (at 22:42:21)

10

The Dock

Spirit-based drink

Mr Lehrmann

11:10pm

Ex R42 / Ex 17A (at 23:10:21)

11

The Dock

Spirit-based drink

“Dark jacket guy” (Mr Lehrmann gestures Ms Higgins to finish drink)

11:50pm

Ex R42 / Ex 17A (at 23:50:55)

Mr Lehrmann, Ms Higgins, Ms Gain and Mr Wenke leave The Dock for 88mph

11:51pm

Ex R42 / Ex 17A (at 23:51:35)

12–14

88mph

Between one to three 30ml shots or nips (as I will explain below, my finding is that Ms Higgins had at least two, but possibly more, spirit-based drinks at 88mph)

Unknown

12:00am–1:30am

T295.33–4 (Mr Lehrmann); T619.17–20 (Ms Higgins); Wenke (at [13]); Gain (at [41], [47])

396    A review of the CCTV footage does not always show empty glasses. It is difficult to be certain as to whether Ms Higgins drained the dregs, but I am satisfied it is more likely than not that she would have, given she was not challenged on her evidence she consumed the drinks (which accords with commonsense, given the prices that were being paid for them).

397    The evidence also establishes that Mr Lehrmann was aware of the following consumption by Ms Higgins (using the drink numbers from the table) while at the Dock:

(1)    at around 8:51pm, shortly after Mr Lehrmann’s arrival, Ms Higgins, with a spirit-based drink in hand (Drink 6), joins the smaller courtyard table with Mr Lehrmann, Mr Wenke, and Ms Gain (Ex R42 / Ex 17A (at 20:51:38));

(2)    at around 9:34pm, Mr Lehrmann buys a spirit-based drink for Ms Higgins (Drink 7) and three beers for the small table (Ex R42 / Ex 17A (at 21:34:58));

(3)    slightly over half an hour later, at around 10:09pm, Ms Higgins buys herself another drink (Drink 8) and returns to the small courtyard table (Ex R42 / Ex 17A (at 22:09:31); T270.1123) – incidentally, in the absence of Mr Lehrmann, the CCTV captures Ms Higgins showing apparent signs of impairment, swaying back and forth and struggling to maintain balance while standing at the bar before returning to the small table (Ex R42 / Ex 17A (at 22:08:28));

(4)    about twenty minutes later, Mr Lehrmann, Ms Higgins and Ms Gain had returned to the large table; and about ten minutes after that (at 10:34pm), it is evident Mr Lehrmann collects three spirit-based drinks on the table and pushes them towards the corner of the large table close to where Ms Higgins was standing (Ex R42 / Ex 17A (at 22:34:20–28); T272.1416); my close review of the video has not allowed me to conclude that in doing so he said “All hers, all hers” to Ms Gain (indicating that the three drinks were for Ms Higgins) or exactly what words passed between Ms Higgins and Mr Lehrmann, but whatever was said, I am amply satisfied from viewings of the video that Mr Lehrmann was, by his actions, encouraging Ms Higgins not to let the collected drinks go to waste and encouraging further consumption by her (with Ms Higgins playfully resisting the suggestion she drink them by patting Mr Lehrmann on the shoulder) (Ex R42 / Ex 17A (at 22:34:31));

(5)    at around 10:42pm, Mr Lehrmann handed Ms Higgins a spirit-based drink (Drink 9) (Ex R42 / Ex 17A (at 22:42:21); T275.68) after she came back to the large table – being, it appears, the fourth such drink he had observed Ms Higgins consume since he had arrived (T275.1011) (cf MFI 64 (at 22:34:02)); it is not entirely clear that Ms Higgins, in response, said “come on”; and although something was said by her, I cannot be certain of the precise words;

(6)    at around 11:08pm, Ms Higgins finished Drink 9 in one hit, looks a tad unsteady on her feet (Ex R42 / Ex 17A (at 23:08:03–14)), and then joins Mr Lehrmann (who then quickly finished his drink) in walking towards the bar area (Ex R42 / Ex 17A (at 23:08:28); T278.46279.5); Ms Higgins seems by this stage to be ebullient, putting her hands in the air and is evidently in high spirits; although it is easy to be distracted at this point in the video by two happy middle-aged ladies re-enacting what might be a scene out of Mamma Mia in the background, Mr Lehrmann can be seen talking with Ms Higgins and purchasing drinks, including a further spirit-based drink for Ms Higgins (Drink 10) (Ex R42 / Ex 17A (at 23:09:51); T280.27), which she subsequently consumed;

(7)    thereafter, as time moves towards 11:20pm, Ms Higgins looks again less than entirely steady on her feet; and, by half-past eleven, things seem to be winding down: Ms Higgins can be seen focused on her phone; and, after speaking on her phone to Mr Dillaway at 11:36pm, at around 11:37pm, Ms Higgins got up while holding Drink 10 and engaged with Mr Lehrmann, Ms Gain and Mr Wenke (Ex R42 / Ex 17A (at 23:37:28); T282.2533);

(8)    at around 11:50pm, Ms Higgins picked up and skolled another drink (Drink 11) (Ex R42 / Ex 17A (at 23:51:03); T284.4043)notably the sixth spirit-based drink which Mr Lehrmann had observed Ms Higgins consume since his arrivalfrom a close review of the video, it is clear that Mr Lehrmann had again actively encouraged her to consume the drink.

398    I have no doubt that from his own observation, Mr Lehrmann must have been aware that a woman of Ms Higgins’ stature consuming this much alcohol was likely to have become significantly inebriated.

399    Attached as Annexure D to these reasons are screenshots taken by Network Ten’s legal representatives from the CCTV video (Ex R17–R30 inclusive), which record ten drinks consumed by Ms Higgins at The Dock (including the six drinks Mr Lehrmann observed Ms Higgins consume already mentioned above (at [397])).

400    The oral evidence of Ms Higgins was that by the time she left The Dock, she had consumed 11 vodka, lime and sodas or vodka diet cokes (T614.2033; T617.3740) (together with Drink 1, being a glass of wine consumed at home, being 12 drinks in total). She said that night she was “drinking for a purpose. I was drinking to get drunk” (T946.3338). The consumption of her first drink at home was unchallenged, and as would already be evident from my findings, I accept it occurred. Although her behaviour as revealed in the CCTV footage is consistent with someone proposing to get drunk (and succeeding in that effort), my reservations as to Ms Higgins’ reliability cause me some hesitation in accepting her uncorroborated testimony as to how much she drank by the time she left The Dock. A far surer guide is the CCTV recording (Ex R42 / Ex 17A).

401    The written submissions made on behalf of Mr Lehrmann assert that the foundation for the assumption Ms Higgins consumed ten drinks at The Dock (and three others elsewhere) “is tenuous”. More specifically, he asserts that a close review of MFI 64 (being a 20-minute selection relied upon by Mr Lehrmann taken from the whole of the CCTV footage in evidence and from the cameras operating that night) “suggests Ms Higgins consumed not more than [nine] drinks at [The] Dock” and “no more than [ten] drinks all night”.

402    In the end, doing my best from viewing the CCTV footage and the other evidence, I find Ms Higgins had the drinks I have identified, and I do not accept Mr Lehrmann’s submissions. But if for some reason I am wrong, and only nine were consumed, I do not think it really matters because it is not possible to be precise as to the full extent of her further consumption, and she continued to kick on.

Interactions between Mr Lehrmann and Ms Higgins

403    In final submissions, Mr Whybrow contended that if one has regard to the whole of the CCTV footage (Ex R42), rather than selected extracts, it is: “not accurate to say that [Mr] Lehrmann is spending all his time with [Ms] Higgins, keeping an eye on her, plying her with drinks, all of those things that are put as significant credit issues against him” (T2363.2537; T2361.35). In amplification of this submission, as noted above, the 20-minute selection relied upon by Mr Lehrmann (said fairly not to amount to “a subjective and selective view) (being MFI 64) was played in Court (T2352–3).

404    It is true that Mr Lehrmann was not constantly with Ms Higgins and was not encouraging her to drink earlier in the evening, but it is equally true that his evidence-in-chief that his interactions with Ms Higgins at The Dock “were professional and cordial” and that “I recall them being minimal, to an extent” (T94.3839) was a serious distortion of their dealings. Those interactions cannot be properly characterised, as Mr Lehrmann attempted to do, as “some brief social interactions” or “incidental conversations” and “nothing of substance” (T246.1926). Contrary to his evidence, he did spend most of the evening with Ms Higgins and, as the night wore on, was aware of her drinking and, towards the end of the evening, was encouraging her to drink well beyond the bounds of sobriety.

405    He was also keen to continue the evening and his interactions with her. As events at The Dock were winding up, a plan was made for a group to then go to an 80s themed bar, known as “88mph”, and located in the Canberra Civic. Although it does not matter, no evidence was adduced as to why the bar had this name, but one might speculate the owner was an aficionado of the popular 1985 film Back to the Future where Marty McFly (Michael J Fox) travels in a DeLorean time machine from the 1950s back to the 1980s at that speed.

VIII    88mph

406    As it happened, only Mr Lehrmann, Ms Higgins, Mr Wenke and Ms Gain continued on to 88mph. Perhaps unsurprisingly, given the hour of the visit and the amount of alcohol that had been consumed, the evidence as to aspects of what occurred at 88mph was somewhat hazy.

407    Mr Lehrmann submits there is “no consistent or reliable evidence as to how many drinks Ms Higgins consumed at 88mph”, other than what can be inferred from the fact Mr Lehrmann spent $40 at 88mph (or, more accurately, $40 shown on what we now know are incomplete card statements) (Ex 15). But Ms Higgins did give evidence Mr Lehrmann and Mr Wenke bought her and Ms Gain drinks and that they were shots (T619.11–12). Although she could not recall how many shots she had, her recollection was that there were rounds of drinks, plural (T619.19). Ms Gain said she could “remember having at least one drink; I don’t recall what that drink was” (T1106.1516) and Mr Wenke explained he recalled “talking and drinking” but did not recall the specifics (T1123.9).

408    It is not entirely clear, but I think it is highly likely that Ms Higgins had at least two and possibly more shots at 88mph given the context of the earlier drinking (particularly towards the end of the festivities at The Dock), Mr Lehrmann’s encouragement of the drinking, and the solecism of taking the benefit of shouting and not reciprocating. This is consistent with Ms Higgins’ evidence and suggests that she had a least two shots (which, with the benefit of s 144 EA, I assume would have been 30ml nips). I am fortified in this view given that the group stayed in 88mph for a period in excess of an hour and a half.

409    But whatever else may be less than pellucid, one thing did emerge with clarity from the evidence of Ms Gain: that at 88mph “Brittany hooked up with Bruce” (Ex R59).

410    I am amply satisfied that I ought to reject the evidence of Mr Lehrmann and Ms Higgins which is inconsistent with this account of Ms Gain. In particular, I reject Mr Lehrmann’s denial of “pash[ing]” Ms Higgins (T297.5–11) and “any intimate behaviour” with Ms Higgins at 88mph (T301.16–17).

411    As to Ms Higgins, she asserted that Mr Lehrmann was “all over her space” (T620.17–24) and gave evidence that (T620.7–10):

I remember him having his arm around my shoulder. I remember him touching me and I remember having, like, a thought process of – of discomfort, but not wanting to vocalise a discomfort, so I remember that. I – I called it handsy. I felt him being handsy with me.

412    Ms Higgins evidence that she was passive and discomforted is an example, on one level understandably, of Ms Higgins moulding her recollection. Despite her evidence, and as much as Ms Higgins might regret it, as Ms Gain recalled, they were “quite touchy with one another” (T1106.20) and “his hands [were] on her thighs and her hands [were] on his thighs” (T1107.1–2) and they engaged in a mutually passionate kiss. This was “a real kiss”; more than “a peck, it was very much a kiss kiss”, a “passionate kiss” and a “pash” (T1107.421). The submission made by Network Ten that Ms Gain’s account is “entirely consistent with Ms Higgins’ account” is, with respect, silly. One does not “pash” passively.

413    Mr Lehrmann was acting upon his attraction to Ms Higgins, and the less than sober Ms Higgins was sufficiently uninhibited to be a not unwilling participant in the level of intimacy Ms Gain described. Any discomfort was not evident to Ms Gain, who viewed what was happening as mutually intimate conduct by two young people “hooking up” in a nightclub.

414    I also accept the evidence of Ms Gain that Ms Higgins fell over and was required to be helped back up (T1106.18). This happened close to the booth, and Mr Lehrmann was the one to help her to her feet and back into the booth (T1106.35–46). She could not recall if Ms Higgins injured herself in the fall (T1116.30–35). Although, based upon Ms Gain’s evidence, this incident occurred and there may have been other stumbling, including on the stairs, I am not satisfied that there was any “falling up the stairs” so as to sustain the bruise recorded in the bruise photograph as Ms Higgins belatedly suggested (and given how a body would likely “fall up” to strike ascending stairs, it is not immediately obvious to me how the bruise photograph depicts such an injury – assuming the photograph existed in 2019).

415    Ms Gain also told the Court she formed a view, based on her previous observations of alcohol on Ms Higgins, that Ms Higgins was intoxicated. She knew the difference between when Ms Higgins was and was not drunk, and she characterised Ms Higgins as drunk at 88mph (T1106.25–33; T1116.37–43). I accept that this was her genuine view informed by observing her over an extended period that night, that this view accorded with the reality of Ms Higgins’ condition.

IX    Leaving 88mph and the Journey to Parliament House

416    By about 1:30am, the group resolved it was time to go.

417    Ms Gain and Mr Wenke agreed to share an Uber or taxi as they lived in the same direction (T1123.2331). Ms Gain could not recollect leaving 88mph (T1107.2731).

418    Ms Higgins’ present recollection was that someone told her that she and Mr Lehrmann lived in the same direction and by that stage, she was “so compliant” that she agreed and got into a cab or Uber with him (T621.23–41).

419    Mr Lehrmann’s evidence was that everyone left 88mph at the same time and that he indicated to the group that he had to go back to Parliament House to get his keys (T121.12). He further asserted that Ms Higgins indicated that she needed to go to Parliament House and, consequently, he suggested that they should share an Uber (T121.9–12).

420    I reject both these accounts.

421    Mr Lehrmann’s account is risible. Ms Higgins was the most junior and recent member of Senator Reynolds’ office. What possible reason was there for this heavily intoxicated young woman, who had earlier seen no need to carry her parliamentary pass, go back to work after a night on the tiles? It is not as if one can readily envisage what work was necessary to be done by a junior media advisor at a ridiculous hour on a Saturday morning. Further, if the reason Mr Lehrmann needed to return to Parliament House was to collect his keys, he could have texted his girlfriend to have her meet him at the door or called her (T306.1314).

422    Mr Lehrmann asks me to accept the proposition that it was “a process to get in” to his shared flat (T306.10) and that to avoid this complication, he preferred to: (a) go out of his way to go back to work in the early hours; (b) lie to Parliament House security; (c) sign the necessary register; (d) be issued with a pass; (e) go through a metal detector; (f) be escorted by a security guard to his office; (g) obtain his keys from his office; (h) book another Uber; (i) go back through a Parliamentary exit; (j) meet the rideshare car; and then (k) ride home. Even if he was in the doghouse because he had stayed out late, I think it is safe to conclude that the process of getting into a flat he shared with his girlfriend would have been a significantly less elaborate exercise.

423    Moreover, the incoherence of this evidence is also shown by the fact that if he really needed to collect his keys from Parliament House, he could have just said so, and the sensible security guards who gave evidence before me would, no doubt, have assisted him to get them.

424    Ms Higgins’ evidence was that she thought she was going home. She said that at some point during the ride, Mr Lehrmann said something to the effect: “I have to just pick something up from work” (T621.46). This account has a kernel of truth in that it explains why she agreed to leave with Mr Lehrmann (or even explains why she got into the Uber with Mr Lehrmann), but otherwise does not withstand analysis.

425    Like with so much fact-finding in litigation, the key to unlocking what most likely happened is found in examining the most contemporaneous accounts; in this case, what they both initially and spontaneously said as to why they ended up in an Uber and going back to Parliament House. As we will see, as for Mr Lehrmann, this comes from his conversation with Ms Brown in their second meeting on 26 March 2019 where he told her that he “came back to drink some whisky or something like that” (T153.4547). Notably, and as I have already explained, at this meeting, after Mr Lehrmann said he chatted” with Ms Higgins, when pressed by Ms Brown’s question “what else did you do whilst in the office?”, Mr Lehrmann revealingly said he “didn’t wish to get into that” (T2052.4–5).

426    As for Ms Higgins, as I have referred to in dealing with the credit of Major Irvine, on the Wednesday or Thursday after the incident, Ms Higgins said to her (T1180.41–45): Bruce and I were in a[n] Uber to go home and he wanted to come back to Parliament House. He had some whisky to show me or something (see also Irvine (at [60])). This is also consistent with her representation to Mr Dillaway on the day after the incident (despite at the time being “cagey”), that “we brought the party back to Parliament House” (T1216.2930).

427    I am satisfied that regardless of whether there was ever any settled initial plan to share an Uber home, at some stage, and with the acquiescence of the inebriated Ms Higgins, the plan became for the Uber to go to Parliament House following what Mr Lehrmann had said about whisky. Needless to say, based on this finding (and even on the evidence she gave at the trial), the representations made by Ms Higgins in the PL that it was without agreement” between Mr Lehrmann and Ms Higgins that Mr Lehrmann got into the taxi and directed it to stop at Parliament House (cf PL cll 2.4, 2.5) are incorrect.

G.2    A Snapshot in Time: Things We Know as to the Position as at 1:40am

428    I previously commenced a defamation judgment (Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 (at [1][2])) by referring to the saw that “nothing good happens after two o’clock in the morning” and observing it reflected the wisdom that drink and the wee hours often occasions trouble.

429    Here too there was a combination of drink and the wee hours, and it led, on any view of it, to trouble: but before we examine what that trouble entailed, it is worth pausing to consider what was likely in the minds of one man and one woman who found themselves being conveyed by an unknown Uber driver to Parliament House shortly before twenty to two in the morning.

430    Dealing first with Mr Lehrmann, he had been attracted to Ms Higgins for a while and, for the first time, had just been able to kiss the object of his attraction passionately, placed his hand intimately on her leg and thigh, and had his physical displays of affection requited.

431    Secondly, as is reflected by what had just taken place, he was a man who had already acted unfaithfully towards his girlfriend by the standards of right-thinking people and had no scruples about doing so again that evening.

432    Thirdly, he likely wanted to continue to be intimate with Ms Higgins. Put bluntly, he was a 23-year-old male cheating on his girlfriend, having just “hooked up” with a woman he found sexually attractive. Human experience suggests what he then wanted to happen is not exactly shrouded in mystery.

433    Fourthly, Mr Lehrmann had been drinking, and he knew Ms Higgins was inebriated indeed, as I have explained, he had encouraged Ms Higgins consumption of alcohol; and although he may not have understood precisely how alcohol affects the cerebral cortex of the brain and works to impair cognitive and psychomotor functions, like most young men, he must have known that excessive alcohol consumption leads to impaired judgment, and lowered inhibitions.

434    Fifthly, he could not go to his place (for obvious reasons), and if he wanted to continue to be intimate with Ms Higgins, he knew this was best done at a place he could access and where they could be alone; of course, he knew such a place, being the Minister’s office at Parliament House.

435    Sixthly, he would have been buoyed by getting Ms Higgins into an Uber and securing her agreement to come back to the Ministerial Suite by telling her something along the lines of: that he had some whisky to show [her] or something” (T1180.41–45).

436    Seventhly, he would have thought the presence of whisky in the Ministerial Suite made it a perfect location and a better option than suggesting going back to Ms Higgins’ shared accommodation (as Parliament House afforded the opportunity of continuing to drink whisky, which would only assist his aim of continued or enhanced intimacy). Incidentally, this probably means his comment about seeing his whisky had a broader significance than just being Mr Lehrmann’s functional equivalent of a clichéd pick-up line used by men of ill intention to lure women to a private place.

437    Eighthly, in the light of the above, commonsense suggests that it is obvious there was one dominant thought running through the mind of Mr Lehrmann as he was approaching Parliament House, and it was nothing to do with French submarine contracts.

438    Then we have Ms Higgins.

439    She was in a very different and potentially difficult position. She was working in a professional office where she correctly perceived Mr Lehrmann as having greater power and, in fact, he had been dealing with her as a subordinate. Earlier in the evening she felt Mr Lehrmann was “nice to me for the first time and I was pleased with how it was going” (T617.2226) and felt “like an equal”, like they were “peers almost” (T617.2531). She wanted to get on with him and, moreover, was keen to interact even at the expense of abandoning her date. She was drunk and had been drunk for some time and, for whatever combination of reasons, she had not only not rebuffed the advances of Mr Lehrmann, but had reciprocated in the manner described by Ms Gain.

440    Given the state of the evidence, apart from the uncertainties of trying to draw conclusions from what one can gauge impressionistically from the Parliamentary CCTV, how keen Ms Higgins was to go back to Parliament House is difficult to tell. But even if she found the prospect a tad unwelcome, going back was understandable, as like many professionals the subject of an advance by a work colleague with more power, Ms Higgins did not want to alienate someone she perceived could be of real importance to her career. If she agreed to go back somewhat reluctantly, it would have been for a reason not dissimilar as to why she made light of the incident three weeks earlier, when Mr Lehrmann had taken her mobile phone when she was trying to leave the Kingo. In this regard, there is no evidence Ms Higgins was aware that Mr Lehrmann had already decided to move on from working with the Minister.

441    In any event, she agreed to go to Parliament House after Mr Lehrmann had said he “had some whisky to show [her] or something”; but the extent of her genuine enthusiasm and whether in her affected state she thought she was just going back for a drink, or whether she thought the reference to whisky was simply a pretext for more intimacy, is difficult to tell (and, in the end, does not really matter). Notably, Ms Wilkinson submits that it may be (having regard to Ms Higgins interactions with Mr Lehrmann at 88mph) that it was [Ms Higgins] intention to have sexual intercourse with [Mr Lehrmann] at that time and that she no longer recalls that given her level of intoxication” and that this “would be one explanation why she exited with [Mr Lehrmann] at [Parliament House] rather than staying in the Uber and going home by herself.

442    It is also worth noting, before we go on, a number of the above matters bring into sharp focus the central importance of my findings based on the acceptance of the independent evidence of both Ms Gain (as to what occurred earlier that night) and Major Irvine (being the recipient of a recounting by Ms Higgins of what occurred around four days later) and, as I will explain, are consistent with other representations made by both Mr Lehrmann and Ms Higgins in the immediate wake of the incident.

G.3    Security and Entry to the Ministerial Suite

443    Upon arrival at the gate to the entry into Parliament House, Mr Lehrmann pressed the intercom and said: “Oh, hi mate. Bruce Lehrmann here with Minister Linda Reynolds. We’ve been requested to pick up some documents. I’ve forgotten my pass” (Ex 16; T306.40–42). I emphasise the word “we’ve” because during the trial it was often said [I’ve] been requested … (T123.36), but it is clear upon listening closely to Ex 16 that Mr Lehrmann uses the word “we’ve”.

444    The reason for this lie, according to Mr Lehrmann, was that if he had suggested his reason for returning to Parliament House was to collect his keys, security would “have thought that was a minor thing” and told him to “bugger off and come back next week” (T351.1434). I do not accept this speculative evidence and notably this suggestion was never put to the security guards for their comment.

445    A further flaw in Mr Lehrmann’s account is that although he says he thought Ms Higgins had some unarticulated reason to access Parliament House, he never ascertained whether she had a security pass or a better reason to enter, which would have obviated his reason to lie (T310.119).

446    Ms Higgins recalled getting out of the car and walking to the Point 8 entrance to the back of Parliament House. She says she could not recall why she had got out of the car; she gave the evidence that she just thought that because Mr Lehrmann had got out, she should too (T622.1722). But I do not accept this evidence – as I have explained, she knew she was going to the Ministerial Suite and had acquiesced in doing so.

447    At around 1:41am on 23 March 2019, Mr Lehrmann and Ms Higgins came into Point 8 (Fairweather (at [9]); Anderson (at [11]); Ex 17 (at 01:41:43)). Ms Higgins could not remember much conversation between her and the security guards (T623.1718).

448    The evidence of one of the security guards, Ms Nikola Anderson, was that she paid particular attention to Ms Higgins because she thought she looked nice, and she noticed that she had what appeared to be grass stains down one side of her dress (Anderson (at [12])). She also recorded in her later incident report that she was advised “that [Mr Lehrmann and Ms Higgins] had urgent business that needed tending to” (Ex R67).

449    The evidence of the other security officer, Mr Mark Fairweather, was that he had previously seen Mr Lehrmann and Ms Higgins at Parliament House, but he did not know their names; and that Mr Lehrmann told him: “We’re here to do some work” and that [Mr Lehrmann and Ms Higgins] had to go to Senator Reynolds Suite (Fairweather (at [12], [14][15]); T307.3947). Mr Fairweather was able to confirm relevant details as to Mr Lehrmann and Ms Higgins from computer records (Fairweather (at [16][21]); Anderson (at [17][19])). But they were required to fill out the visitor pass register, and Mr Fairweather’s evidence (corroborated by the CCTV footage) was that Mr Lehrmann completed the register for himself and for Ms Higgins (Fairweather (at [22]–[27], [61]); T1172.4245).

450    Bizarrely, Mr Lehrmann denied signing the register on behalf of Ms Higgins, but accepted that at no point is Ms Higgins recorded as bending down to write anything on the visitor pass register (as seemed to be initially suggested by Ms Anderson). One does not need the assistance of an expert to be confident the handwriting in the register is the same for both relevant entries (Ex R2).

451    Mr Fairweather recalled a general smell of alcohol but did not think that the visitors were overly affected (by which he meant slurring, falling over, vomiting level drunk) so as to be refused entry (Fairweather (at [29][32], [62])). He considered the scale of intoxication to be “very moderate” and not “heavily intoxicated” because otherwise he would have refused entry (T1172.427). Mr Fairweather, although an experienced security guard, was not a breathalyser in human form. He said at the time they were “half pissed” (Ex R69). I have no doubt his evidence was given genuinely, but without prolonged examination and complete information as to what had occurred earlier in the evening (and although Mr Lehrmann may only have been “half pissed”), he mistakenly but honestly underestimated the extent of the intoxication of Ms Higgins. Similarly, Ms Anderson realised Ms Higgins was intoxicated after she observed her struggling to get her shoes back on coming through the metal detector (Anderson (at [27][28])) and later recorded this observation in her incident report (Ex R67).

452    I pause to note that the trenchant criticism of Ms Anderson and Mr Fairweather in the submissions of Network Ten is both unfair and over the top. Those submissions censoriously assert that Mr Lehrmann and Ms Higgins ought to have been denied entry to Parliament House having regard to their state upon arrival, or they ought to have been supervised when going to the Ministerial Suite and then immediately escorted out” and the security guards “are open to criticism” and letting them in was a very serious misjudgement on their part”.

453    These prim criticisms were never put to them for their comment, and as anyone with the life experience of being in pubs frequently would readily understand, drunk people are often able to compose themselves for a fleeting or short interaction and it is often difficult to form an immediate and accurate view as to the extent of intoxication of a person with whom one has not had any extended contact. I have little doubt that what happened with staff obtaining entry this night was no different than what would happen if staff presented themselves in the same way at entry points of countless professional offices throughout the country. On the information the security guards had available to them, they had no concerns that something untoward was going to happen. After having had the benefit of hearing them in the witness box, I have no doubt the security guards were conscientiously trying to do their jobs and the submissions critical of them, which smack of both hindsight distortion and Grundyism, ought not to be accepted.

454    In any event, Mr Lehrmann and Ms Higgins then proceeded to put personal items into trays that went through a security scanner. Mr Lehrmann walked through a metal detector and Ms Higgins followed him. The metal detector was activated twice by Ms Higgins (Ex 17 (at 01:45:02–12)) and Ms Anderson realised the culprit was Ms Higgins’ shoes. Ms Higgins then returned through the metal detector and removed her shoes. She put her shoes in a white tray and pushed the tray through the scanning machine. She came through the metal detector without wearing her shoes, and it was not activated (Ex 17 (at 01:45:50)).

455    The CCTV then records Ms Higgins making unsuccessful attempts to put on her shoes. Ms Anderson then said: “Don’t worry about it, just carry your shoes. It’s okay but put them on when you get up there” (Anderson (at [29])); Ms Higgins then collected her items from the tray and hurried through a set of double doors towards the lift (Ex 17 (at 01:46:57)). I have no doubt that Ms Higgins inability to put on her shoes was caused by her state of inebriation. This is consistent with her walking barefoot through Parliament House, and then tossing her head back and looking towards the ceiling while she waited to be let into the Ministerial Suite (Ex 17 (at 01:47:56)).

456    It is worth pausing at this point in the narrative to make a miscellaneous point relevant to Mr Lehrmann’s credit. Mr Lehrmann said he had two phones and a wallet with him for the whole evening (T92.56; T249.12; T316.69). In cross-examination, he denied having just one phone when he entered Parliament House and says that he took out both devices when he came through the security door (T250.21251.4; T314.316). I am satisfied that a close review of the CCTV footage (Ex 17 (at 01:45:13–25)) establishes that Mr Lehrmann removed but one phone from the security tray.

457    Ms Anderson then escorted Mr Lehrmann and Ms Higgins to the Ministerial Suite, which she then opened with a key (Ex 17 (at 01:48:10); Anderson (at [35])).

G.4    Whisky, and the Accounts of What Happened Inside the Ministerial Suite

458    I will set out each account and comment upon them before detailing my findings and coming to my conclusions below. Prior to doing so, however, it is worth making findings about whisky.

I    The Whisky at the Office

459    I am satisfied that being conscious of the importance of the whisky, Mr Lehrmann has made several false statements about this topic.

460    There is no doubt that Mr Lehrmann had at least three bottles of whisky and other alcoholic beverages in the old Senate office, which he moved to the Ministerial Suite (T196.3338; Ex 29 and 30; T191.18193.33). If it was ever in doubt, which it is not, Ms Hamer and Mr Wotton confirmed this was the case (T1061.79; Hamer (at [6]); Wotton 28 September 2023 (at [38])). Hence the terms of the invitation given to Ms Higgins to accompany him to the Ministerial Suite.

461    I am also satisfied that Mr Lehrmann gave deliberately false answers to the AFP during his 19 April 2021 interview when he said: “yeah, I didn’t have any alcohol in my office” (Ex 31, Q762) and that to his knowledge, there was no alcohol in the Ministerial Suite (Ex 31, Q754; T196.2838). Importantly, when the AFP put to him that Ms Brown had told the AFP that: “he just came in to have a drink to drink his whisky”, Mr Lehrmann doubled down and asserted: “… there’s no alcohol, I didn’t have any alcohol, so, to access” (Ex 31, Q764).

462    Demonstrating his forensic difficulty with his representations concerning the Scottish libation, his evidence on this topic at trial was all over the shop. Despite saying in his evidence-in-chief that he had told Ms Brown that he “came back to drink some whisky or something like that” (T153.4547), in cross-examination, Mr Lehrmann said that what in fact he had said to Ms Brown was that he “came back to have a drink” (T228.1924). But he should have known this excuse would not fly as he had accepted that he told Ms Brown in their second meeting on 26 March 2019 that he went back to drink whisky (T228.2632) and, as recently as June 2023, he had told the Spotlight programme (T228.42229.48; E x R16) that he had given Ms Brown the whisky excuse on 26 March 2019 (T230.120).

463    This is not just another unsatisfactory aspect of Mr Lehrmann’s evidence. This is an important lie. It was his way of distancing himself from the rationale he had originally given for going to the Ministerial Suite, being the same reason conveyed to Ms Brown, immediately and spontaneously, when first confronted with having to account for his actions in the days after the incident. Moreover, it was a lie that had serious consequences, because with knowledge of the truth, he allowed his denial of having alcohol in his office to go uncorrected throughout his criminal trial, and allowed submissions to be advanced to the jury that the account he had given to police was truthful and accurate (T202.13). I hasten to add that I have no doubt his senior counsel acted in accordance with appropriate ethical constraints at the criminal trial, and so it must follow he did not apprise his own trial lawyers as to the true position.

II    Mr Lehrmann’s Account

464    Turning to Mr Lehrmann’s current account, as we know, he says he came back from a nightclub in the early hours of a Saturday morning to get his keys, but then decided to work on Question Time briefs prompted by information that he had received at The Dock. Despite its length, it is worth setting out his account given in chief (T142145.30):

MR WHYBROW: Mr Lehrmann, you have already given evidence that you’re in – you had come back to Parliament House to get your keys?---Yes.

What did you do when you reached the end of the line, or the route that you have drawn on that map?---I placed my phones down on my desk and I observed the Question Time folders opposite me.

Okay. Can you describe what that means?---So against the wall, I had carriage of about five or six Question Time briefing folders about the size of the court books here.

And are they documents that needed to be kept in a secure cabinet, or anything of that nature?---No, they’re not.

What’s the nature of a Question Time folder?---Primarily political in nature, to prepare a minister for Question Time and senate estimates that are also utilised for as well. As well as some media and other external things, if a minister was travelling to an event, we had a brief ready.

In relation to Senator Reynolds, did that encompass a single portfolio or a single subject area?---It did not.

And why was that?---In the Senate, senators who are ministers have representing arrangements as well, and Senator Reynolds still had carriage of some of the Home Affairs portfolio as well, as she was still sworn, I believe, as the emergency management minister as well.

Okay. Now, you said that you saw these folders there on your desk?---Yes.

What happened?---Based on the conversations that I had at the dock, I took it upon myself to make some notes while it was fresh in my mind against various briefs in those folders.

What sort of briefs?---From my recollection, it was heavily focused on the submarine issue, given the political sensitivity at the time.

To your recollection, were there documents in any of those briefs relating to that subject?---Many, yes.

And what did you do?---I would have, to the best of my recollection, I would have firstly, identified the brief, read the briefs - - -

Sorry. I just want to ask, were you standing, sitting, or what did you do?---Sitting, yes.

Okay. And you said you put your phone down, or phones?---Yes.

***

MR WHYBROW: What happened?---I loaded up the Question Time folders, read the briefs, identified the relevant ones that were on my mind to make those notes.

My recollection was I didn’t turn around – my computers were behind me at that point, because my desk was a U-shape.

What form did these notes take?---Either handwritten on the – on the brief itself or via Post It notes. The Question Time briefs had a pink overlay cover sheet that would go over the top of the departmental produced Question Time brief, so if I can explain. The Question Time brief would come up from the department in a raw form and a – policy advisors would then annotate and make notes and for certain politically sensitive issues, would put a pink slip over the top of that Question Time brief with political talking points, if you will.

Okay. And do you recall how long you spent doing this task?---My recollection was 30 to 40 minutes.

Okay. And did you finish that task?---Yes.

And what did you do when you finished it?---I turned around to my phones and saw that I had missed calls and got my keys and went out the back door.

Did you hear – sorry, I wanted to ask you this – were your phones, or was there any practice as to whether your phones were on loud, soft or anything?---They’re always on silent.

***

When you were sitting at your desk, were you able to see what work Ms Higgins was doing?---No.

Okay. How far away was her workstation from yours, based on your recollection?---Centimetres, if you – you know, but behind – between a divider.

Okay. During the time that you were at your desk, did you have any further interaction with Ms Higgins?---I did not, no.

Did you hear her?---No.

***

When you had finished annotating the Question Time briefs and you said you picked up your phone, what happened?---I - - -

HIS HONOUR: Sorry, did you say phone?

MR WHYBROW: Phones.

HIS HONOUR: Yes.

MR WHYBROW: Sorry, you said something about a phone after you had finished?---Yes, I had my work phone and my personal phone.

Okay. Going back to having annotated the briefs, what happened then?---I ordered an Uber on one of my phones. I can’t recall which one, whatever one had the Uber app.

Okay, and what did you do then?---I exited the back door, right beside my desk and left.

Did you make any inquiries as to the whereabouts of Ms Higgins?---I did not.

Why not?---I wasn’t – I wasn’t even sure that she was still there and I had indicated, as I entered as well, that I would get what I – what I need and head off. I thought that was sufficient.

III    Consideration of the Account of Mr Lehrmann

465    I have already said enough to indicate that I consider Mr Lehrmann’s account to be an elaborate fancy.

466    First, there are my findings as to what happened at 88mph, and the rationale given by Mr Lehrmann to have Ms Higgins come back to a private place at Parliament House. As I have already noted, put in stark terms, it is fanciful a somewhat lubricated male staffer accompanied by a woman he found attractive, who he had just been “pashing” in a nightclub despite having a girlfriend, would then be interested, after coming to a private place very late, to just say “cheerio”, and then soberly proceed to note up briefs for a Question Time that was not to occur for one and a half weeks, a fortiori when the staffer had already resigned; had no outstanding tasks; was not ordinarily involved in work concerning the Defence portfolio (T1424.3942); and hitherto had demonstrated no outward signs of being a workaholic.

467    Secondly, even if we leave to one side my findings as to what was on Mr Lehrmann’s mind, the account itself lacks coherence. Mr Lehrmann was unable to identify any information he obtained at The Dock (or 88mph) relevant to the work he was supposedly doing for the Minister on the Question Time folders (T387.3033). He said that the only information that he could recall was about “the French submarine contract” (T387.36) but he was unable to specify who had provided him with information about the contract (T387.39; T388.1). I have already rejected his evidence that he was having detailed discussions about politically sensitive matters at The Dock with, among others, aides-de-camp (T388.32; T389.35).

468    Thirdly, and although less significant, Mr Lehrmann did not mention being so conscientious that he decided to work on Question Time folders early on a Saturday morning when asked what he was doing by Ms Brown or when he was later asked to show cause why he should not be terminated for serious misconduct by the Minister. Mr Lehrmann did not explain why he had not raised his supposed diligence other than he thought Ms Brown would be more concerned about someone coming back to the office doing work. Although I appreciate that Ms Brown would have escalated the security breach in the event Mr Lehrmann had accessed sensitive work information, if Mr Lehrmann had, in truth, been working manually in recording important information, one assumes there would have been ways of painting this information more favourably than coming back to the office for no reason other than to luxuriate while imbibing strong liquor.

469    Fourthly, it is not lost on me that doing manual marking up on paper with a pen, moving documents around or sticking tabs on paper is perhaps the only work that would not require Mr Lehrmann to log into a computer and leave some form of retrievable electronic record. I do not believe I am being unduly cynical to remark that this strikes me as being convenient.

470    Fifthly, it may be a minor point in the scheme of things, but if we are to assume that Mr Lehrmann had shared an Uber with Ms Higgins and understood she was attending to some unexplained work task early on Saturday morning, why would Mr Lehrmann just bolt from the office after attending to his tasks without attempting to extend the courtesy of checking whether she was there or saying he was going? One would expect a man with any manners faced with the possibility he was leaving a young woman late at night and unaccompanied, who he knew had been drinking, would check whether she had gone and, if not, how she was getting home safely; but it suffices for present purposes to say that Mr Lehrmann’s account, as to this aspect alone, is intuitively odd.

471    Sixthly, and importantly, there is the contradiction between this account and what he first told Ms Brown before there was any allegation of sexual assault. As noted at [276] above, he first represented to Ms Brown he did not access any documents, he came back to drink whisky, and had a whisky with Ms Higgins.

472    All in all, I accept the submission made by Network Ten that Mr Lehrmann’s evidence about writing on Question Time folders was a transparent lie, and yet it remains the only explanation Mr Lehrmann has offered to this Court for his presence in the Ministerial Suite for 40 minutes on 23 March 2019. It also is unsurprising that Mr Lehrmann made his spontaneous and telling comment noted earlier to Ms Brown a couple of days later when asked “what else [did you do] while in the office?”, Mr Lehrmann replied “I don’t wish to get into that” (T2052.4–5).

IV    Ms Higgins Account

473    Ms Higgins has no recollection of being escorted to the Ministerial Suite and did not even know there had been a security guard accompanying her and Mr Lehrmann. Her first memory within the Suite was sitting on a ledge, being the ledge by the windows overlooking the Prime Minister’s Courtyard (T626.1922).

474    She initially said she sat on the ledge for a “long period of time (T626.3841). The evidence Ms Higgins would just sit there for a “long” period alone when, according to her account, Mr Lehrmann had said to her (and she understood) that he was just picking something up immediately struck me as strange, and I asked her to clarify it as follows (T627.17):

HIS HONOUR: you said you have a recollection of being there I think you mentioned for a long period?---It could have been five minutes.

475    Very soon thereafter, the evidence-in-chief changed as Dr Collins KC went back to the topic, and the following exchange took place:

DR COLLINS: Okay. And I think you said to his Honour you don’t have a recollection of how long you were there?---No, I’m not sure. It could have been a minute, but it – for me, it – I thought we were going in and out quickly, so it probably wasn’t a very long period of time.

476    Later, in cross-examination, Mr Whybrow also explored this issue and the following exchange occurred (T9545):

MR WHYBROW: You have a recollection of waiting for some period of time for Mr Lehrmann?---Yes, but when I say “a long time”, I feel like it was – it was, like, minutes, like, but in my mind, it felt like a long time.

Right. You don’t like the words “long time” now, do you? And you want to make it minutes, do you?---No, it’s just – I’ve used the word “a long time”, a lot, and people have issue with it, because they don’t understand the context in which I’m trying to convey, so I have to be more specific, especially now in this field. So it felt like a long time to drunk me, but realistically, it was, like, minutes.

477    Later, Mr Whybrow put to Ms Higgins that she had previously said to Ms Wilkinson that (T961.21):

I remember he was, sort of, taking a really long time with something. I don’t know, it felt like he was taking a really long time. And I was sitting on the ledge of the office, sort of, windows that overlook the Prime Minister’s courtyard, and was feeling – I was feeling very out of it and so I got to the point where – I don’t know if he guided me there or if I went by myself – went the myself – but I ended up lying down and passing out on the Minister’s couch.

?---Yes. And I’m saying that on the basis that I woke up on the couch with your client raping me - - -

Yes, you’ve said - - -?--- - - - so I was on the couch.

478    In any event, for reasons that were unclear in her inebriated state, she was apparently alone for some period (being variously a really long time, or a long time, or five minutes and it just “felt” long, or it was a minute) and she did not understand where Mr Lehrmann had gone and why she was still at Parliament and wanted to go home.

479    She also said she was looking for Mr Lehrmann and was not able to see him (T628.15) and because he was not within eyeshot (and therefore not at his desk), she speculated he was either in the kitchen or the DLO area (T627.59; T954.1845). She denied that she sat at the ledge in the Minister’s office (T956.45).

480    In her account in chief before me, her memory is then blank. She had said to Ms Wilkinson (T961.21) that she was feeling very out of it and so I got to the point whereI ended up lying down and passing out on the Minister’s couch. She had also said to Ms Maiden (Ex 50 (at 6–7)) that she was sitting on one of “these little window ledges that face into the Prime Minister’s Courtyard” and then had the following exchange (Ex 50 (at 7)):

Ms Maiden:    

And what was he doing?

Ms Higgins:    

I don't know, a really...

Ms Maiden:

Yeah, you don't remember, no.

Ms Higgins:

No, but I just remember I was laying down on the Minister’s couch. So I was really, really drunk and the world felt like it was spinning and I thought I was going to die

481    Ms Higgins at trial denied she remembered (that is, had a real memory) of laying down on the Minister’s couch in the private office, although the above extract has a degree of tension with this evidence. Before me, after being on the ledge, the next thing Ms Higgins said she remembers (or, as she put it, the next “touchpoint”) is only when she awakes on the Minister’s couch.

482    Despite its length and graphic nature, it is appropriate to set out her next memories in some detail. She explained (T628.2328):

So the first thing I remember when I woke up was a pain in my leg; that was the thing that kind of stirred me up. Bruce was on top of me. I was – so my head was in the back corner of the couch. He was on top of me, his arms were over the top of the couch. He was having sex with me at that point in time. And that was what I first woke up to at that point in time and is, like, the next touchpoint that I have. It’s the next thing.

483    She was asked to describe where her head was located on the couch. She said (T628.3640):

I was lodged in between the armrest and the back of the couch. My head was jammed in the corner and he was on top of me, over he wasn’t looking at me, he was lurched over the top of me. I was spread open and exposed. I had one leg open, on the side of the couch, and then one open, which is where his knee was, in my leg.

484    After being asked to further describe what she recollected, Ms Higgins went on (T629.2945):

I told him “No”, on a loop. I don’t know how many times I said it. I told him to stop. I couldn’t I couldn’t scream for some reason. I don’t know, it was just, like, trapped in my throat; I couldn’t do it. I know I felt really, like, waterlogged and heavy and I couldn’t – I couldn’t move. I was under the impression it had been going on for, like a little bit of time. I used the expression, like, “I was I was late to the party”. Yes, I felt like it had been going on for a little while and I was only, kind of, coming to right at the end.

I just it seemed like he was going quite fast and he kind of seemed a bit sweaty, or I don’t know, maybe I was the one who was sweaty. But it, like, it wasn’t there was no, like – there was no, like – it – he was very much in the throes of it. It was very much rough and happening, and it didn’t matter that I was talking or awake or whatever, it just felt like he was doing it and – like, it didn’t matter, like I was an afterthought, like, he was – it felt like he was going to climax soon, or, like it had been going on for a while and that he was – I don’t know. I don’t know if “speeding up” is the right word, I don’t know. Yes, that’s that was my impression at the time. Yes.

485    Pausing the narrative in chief for a moment, it is useful to refer to some evidence given in cross-examination, where Ms Higgins said (T962.29963.6):

MR WHYBROW: You’ve given evidence to his Honour that when you were, on your evidence, being sexually assaulted by Mr Lehrmann, your head was towards the door?---Yes.

And you previously gave evidence in the trial that his knee was on your leg - - -?---Yes.

- - - whilst he was penetrating you?---Yes.

And you asserted that the bruise photograph was caused by that conduct?---It hurt. I had a bruise and made an assumption, but I – I – I have to accept that it may not have been from that.

Okay. And do you recall that when you gave your evidence before the jury and you were describing these events, you were describing that this knee on your thigh was on your left thigh?---I didn’t remember the left or right, but my head was in the corner. One was up against the couch and one was spread open, and so that would have been the left side, yes.

And the photograph that you have provided was a photograph of your right thigh?---Yes.

Okay. And I take it you have no recollection of turning around?---Not in the middle of the night, but I know – not in the middle of the night. I don’t recall moving in my sleep when I was passed out after the rape.

486    Going back to her account in chief, Dr Collins adduced the following evidence (T630.131):

DR COLLINS: You said you couldn’t scream; did you try?---I don’t know, I just – I couldn’t – like, you think of a scream and you, like, want to – it didn’t come out. I was saying “No” and I was telling him to stop, and there was an urgency to it, but I couldn’t – I couldn’t, like, scream like you see in, like, the horror movies, like, I couldn’t – I don’t know. I don’t know why I couldn’t.

To your recollection, did Mr Lehrmann respond to you asking him to stop?---No, he didn’t even acknowledge it.

You said you had the impression he was close to a climax. Do you have a recollection of how the incident ended?---I don’t know, but I – I believe he finished and I believe he finished inside of me.

Why do you have that belief?---I don’t know. I just – it stopped suddenly and I don’t remember him – I don’t remember it being anywhere else, or him – I just remember when he stopped, it stopped and he got off me.

And sorry to press it, but can you describe where your legs where at the time of the - - -?---Yes.

- - - the sex?---So I was laying down. My head was obviously in the back, and my legs were pinned open. So he was on top of me. One leg was kind of pinned against the side of the couch and the other one was pinned open. And all of a sudden, once he finished, he stopped and he got off me. So I don’t believe he came anywhere else but inside of me.

And when he stopped, do you have a recollection of what he did?---I remember him getting up. And I didn’t say anything at that point. And he looked at me and then he left.

Did any – was there any words spoken?---No, we didn’t say anything.

487    Ms Higgins then recalled Mr Lehrmann leaving (either through the back exit or the back slip door) and after Mr Lehrmann had left that she: “couldn’t get up off the couch. I don’t know if it was, like, shock, or if I was just so drunk that I physically couldn’t get up, but I couldn’t pick up my body off the couch. And then I passed out” (T630.3840; T631.3132). She did not want to be there, but she could not get up and did not know why (T630.4244).

488    Ms Higgins said that her breasts and bottom half were exposed. She was not sure where her dress was, but it was conceivable that it was around her waist, or it may have been taken off (T631.18-20; T631.2729).

V    Consideration of the Account of Ms Higgins

489    The first thing to be said about Ms Higgins account is that it involves a grave allegation by a witness with general credibility problems and whose contentious evidence, in accordance with the fact-finding principles explained above in Section E, must be approached with great care. But by reference to my findings as to the circumstances in which Mr Lehrmann and Ms Higgins found themselves, taken as a whole, it does not strike me as inherently implausible (unlike the account of Mr Lehrmann).

490    Before drawing conclusions as to the extent to which this account should be accepted, three matters merit particular focus. This is despite these matters not being the subject of detailed submissions from Mr Lehrmann (because of the case theory of no contact adopted by him).

491    First, as my findings establish, Ms Higgins account commences with a false characterisation of how it is she came back to the Ministerial Suite in the first place. As Ms Gain made plain, she had “hooked up” with Mr Lehrmann, and what occurred thereafter must be viewed in the light of the fact that Ms Higgins had been in a nightclub being intimate with Mr Lehrmann and had then agreed to accompany him.

492    Secondly, and relatedly, is the pretext of coming back, being what Mr Lehrmann had said to her about whisky – she did not accompany Mr Lehrmann to the Suite just to sit passively on a ledge for a very long period (or a short period, or something in between) for no apparent reason waiting for a person who had wandered off (unless, of course, it was to grab the whisky and some glasses, a task which would have taken no time at all).

493    Thirdly, and in a quite different category, is a subtle tension between Ms Higgins’ various accounts of the assault. As I said at the commencement of these reasons, the surest guide to what went on are the probabilities arising from the logic of events, the testimony of independent and honest witnesses, and contemporaneous and apparently candid representations. Falling within the last two of these categories, is the evidence of two assertions made by Ms Higgins, being a representation:

(1)    made only three days after the incident, and immediately after Mr Payne had asked “Did he rape you?”, being her immediate and spontaneous response: “I could not have consented. It would have been like f**king a log (T1422.3943);

(2)    with her ex-boyfriend (noted in above Section F.7), again just days after the incident, where in response to his direct question “Did you hook up in there or did someone take advantage of you?”, Ms Higgins replied: “Yeah, it was just Bruce and I from what I recall. I was barely lucid. I really don’t feel like it was consensual at all” (Ex R99 (at 695)).

494    These representations, which suggest she was passive and hence incapable of consenting, reflect an interaction somewhat different from one where Ms Higgins had repeatedly, and unequivocally, said “no on a loop. This must be qualified by noting that consistently with the notion of passivity, there was alleged immobility, in that she also said at trial (as I have reproduced in context above), that she:couldn’t scream for some reason it was just, like, trapped in my throat; I couldn’t do it. I know I felt really, like, waterlogged and heavy and I couldn’t – I couldn’t move; and later: I couldn’t, like, scream like you see in, like, the horror movies, like, I couldn’t – I don’t know. I don’t know why I couldn’t (T629).

495    In pointing this out, I am conscious that shortly after the incident, on 1 April 2019, Ms Higgins also told AFP officers that Bruce had said something about finishing – I said something about “no don’t” or “no don’t” (Ex R77 (at 4)). As I will explain, however, this was said by Ms Higgins while she was conveying a number of untruths to AFP officers which seemed to paint her actions in what she, at the time, perceived to be a better light and at a time she was not intending to proceed with a criminal complaint.

496    What is one to make of this?

497    It might have been said to be a possible pointer to a lack of reliability of this aspect of her evidence given at trial, but the point was not relied upon by those acting for Mr Lehrmann, presumably because what commonsense and the agreed facts go some way in explaining is that a tension or inconsistency of this type must not be dealt with superficially and there may be an entirely benign explanation for its existence.

498    If Ms Higgins had been the victim of the assault she recounted, this could simply reflect the lability and frailty of memory following such an event and how someone can come to process trauma and later recount a consolidated memory of a highly distressing incident which has come to dominate her life in recent times. Whatever the truth of what happened, I have little doubt Ms Higginscurrent account at trial reflects how I expect she would have wanted to act in such a situation, that is, to demonstrate active and repeated resistance to her assaulter.

499    I will come back to this issue, but before leaving it, it is worth recalling her almost ebullient reaction when told the news by Ms Maiden that Mr Lehrmann denied that any sex took place and, as she said in chief (T703.22):

DR COLLINS: And just explain what was going through your mind as you heard for the first time that Mr Lehrmann’s position was that he had not had any sexual contact with you?---I was really relieved. I thought that, like, we were going to have this very nuanced debate about consent and alcohol and all this kind of stuff, and I was really shocked and kind of happy at the time that he was saying that nothing had happened, because to my mind it was so preposterous

500    There is, of course, no nuanced debate about consent if a woman repeatedly says no and a man proceeds on regardless. Or, going back to the words Ms Higgins used to Mr Dillaway, there is no need in such circumstances to only “feel like” what happened was not consensual. There is, however, the real possibility of some form of nuanced debate if a woman is barely lucid, she later processes what occurred, and she realises she has been assaulted while initially lacking proper awareness of what was going on.

G.5    Findings as to What Occurred in the Ministerial Suite

501    Having made a series of factual findings leading up to the entry of Mr Lehrmann and Ms Higgins into the Ministerial Suite, identified what had motivated them to come back to the Suite, and as to aspects of their accounts of what then occurred, in this section I will: first, identify and consider five incontrovertible facts; secondly, summarise my findings as to the condition of Ms Higgins in the Suite; thirdly, identify post-incident events not already dealt with that might rationally bear upon what happened in the Suite; and fourthly, state my conclusions.

I    Five Incontrovertible Facts

502    It is worth commencing this aspect of my reasons by identifying some matters relevant to what happened that are indubitably true, and then draw some logical and direct inferences from those facts.

503    First, is that Mr Lehrmann and Ms Higgins were alone in the Ministerial Suite for about 40 minutes between 1:48 and 2:30am.

504    Secondly, during this time, Mr Lehrmann did not answer six telephone calls from his girlfriend between 2:16 and 2:18am (T320.16; Ex R85A).

505    Thirdly, at about 2:33am, Mr Lehrmann departed alone through the security gate and was collected by an Uber (Ex 17 (at 02:33:18); Fairweather (at [42])).

506    Fourthly, immediately after, or shortly after Mr Lehrmann left, Ms Higgins, having been affected by alcohol, fell into a very deep sleep on the couch in the Suite in a state of undress. Indeed, in this regard, as Mr Lehrmann accepts in his final submissions, Ms Higgins, at some time, passed out in the Minister’s suite”.

507    Fifthly, given no-one had seen Ms Higgins leave, it was decided between Mr Fairweather, Ms Anderson and Mr Kevin Callan, their supervisor, that Ms Anderson should go up to the Minister’s office to do a welfare check (Anderson (at [39][43]); Fairweather (at [51][54])); which she then did, and at about 4:20am, Ms Anderson:

(1)    entered the Suite shouting “Security, hello security” (Anderson (at [45]));

(2)    went to the door of the Minister’s office and said “Security. Hello? Security” and there was no answer (Anderson (at [45]));

(3)    opened the door to the Minister’s office and then saw Ms Higgins lying on her back on the couch in a state of undress such that she saw Ms Higgins’ vagina and Ms Higgins’ knees were up and slightly apart (Anderson (at [46][49]); T1166.1520);

(4)    Ms Higgins opened her eyes and looked at Ms Anderson but then proceeded to roll into the foetal position (Anderson (at [50][55])).

508    I have deliberately used the term “state of undress” because there is some question as to whether Ms Higgins was fully naked, which I will resolve below, but with that qualification, all the matters specified above are not in contest.

509    What one can directly infer from these incontrovertible facts is that: (a) there was sufficient time for Mr Lehrmann and Ms Higgins to continue to drink whisky together and/or to have coitus; (b) Mr Lehrmann was either engaged in sexual intercourse, conduct preparatory to this act, or some other activity between 2:16 and 2:18am and did not appreciate his girlfriend was calling him, or was aware of the calls but ignored them; (c) by the end of the 40 minutes, Ms Higgins was sufficiently affected by alcohol not to leave the Suite to go home but in her state had come to be lying naked or semi-naked on the couch; and (d) one hour and fifty minutes later, Ms Higgins was, although not in obvious distress, sufficiently discombobulated that when seen by a uniformed stranger, did not interact verbally and did not move immediately to recover her modesty by putting on her dress or covering herself.

510    I now turn to making findings as to Ms Higgins’ condition at the critical time, which, for reasons I will explain, I regard as being towards the end of the 40-minute period and shortly before Mr Lehrmann left, that is, around 2:20am or thereabouts (or about two hours prior to being found by Ms Anderson).

II    The Condition of Ms Higgins in the Suite

511    Dr Robertson’s video observations of Ms Higgins half an hour earlier (at around 1:50am) were that she exhibited no obvious signs of intoxication in the sense of being able to walk through the check point unassisted, although he observed that: (a) she was required to support herself by holding on to the table when seeking to put her shoes back on (T1997.813) (Ex R877 (at [3.4])); and (b) at this stage, it was likely that Ms Higgins had developed some acute tolerance to alcohol and, as such, was likely to appear less intoxicated, particularly if her Blood Alcohol Content (BAC) (being a measure of alcohol in the blood as a percentage calculated in grams per 100 millilitre of blood) was falling at this time (Ex R877 (at [3.4])).

512    Dr Robertson was asked to opine on the likelihood of Ms Higgins falling asleep having regard to her level of intoxication between 1:50am and 2:15am. Dr Robertson’s evidence (on the highly contestable and conservative assumptions as to the extent of drinking at 88mph and that drinking ended at or shortly prior to 1:30am), was that it is likely that at 1:50am and 2:15am, Ms Higgins’ BAC would have peaked and was likely falling. Assuming a BAC of approximately 0.25% and a falling BAC, the effects of alcohol would likely have included sedation and increased tiredness, and would have increased the likelihood of falling asleep (Ex 877 (at [3.6]–[3.7])).

513    Despite the efforts of both parties to lend a patina of precision to what in truth is an inherently imprecise exercise based wholly upon assumptions, it is impossible to be certain as to Ms Higgins’ BAC as at about 2:20am. What is far more important than any pinpoint BAC (which we will never know with certainty), is her general condition, that is, how her level of drunkenness affected her early that morning, and how I find it would have appeared to Mr Lehrmann.

514    I have already made findings that as early as four hours before, Ms Higgins was sufficiently affected such that the CCTV shows her losing her balance and stepping backwards to maintain balance (and there are later but less obvious indications recorded on the CCTV of her being less than entirely steady on her feet). CCTV suggests Mr Lehrmann must have been aware of at least one incident at The Dock demonstrating a lack of balance, and things then progressed (see above at [397]). He knew she was drinking excessively. It was evident to Ms Gain that Ms Higgins was drunk, and I am satisfied that the same observation would have been made by any sentient person observing her over an extended period.

515    Further, and importantly, there is the evidence I accept of Ms Gain, that Ms Higgins fell over, and Mr Lehrmann helped her to her feet and back into the seating booth. It must have been obvious to anyone that had seen (and been a party to) this incident that alcohol consumption had decreased Ms Higgins’ motor co-ordination, and whatever may have been her precise BAC, she was seriously inebriated.

516    One then comes to the question of what happened in the Ministerial Suite. Intuitively, given what had been happening, one would think it likely the drinking continued given what we know about Mr Lehrmann encouraging Ms Higgins to imbibe and the rationale given by him for them both to come back to the Suite. After all, Mr Lehrmann said he was going to show Ms Higgins whisky not Qing Dynasty ceramics. Moreover, very shortly after the incident, and before any allegation of sexual assault was made, Mr Lehrmann represented to Ms Brown (Annexure B) that he came back to drink whisky and ended up drinking two glasses; “chatted” with Ms Higgins but “didn’t wish to get into” anything else they did; and said “they [that is, Ms Higgins and Mr Lehrmann] had a whisky”.

517    Despite these contemporaneous representations, additional drinking with Ms Higgins in the Ministerial Suite was not put to Mr Lehrmann in cross-examination because Dr Collins embraced the account given by Ms Higgins as to why she came back to Parliament House, which I have rejected. Mr Whybrow did not put additional drinking to Ms Higgins because it was the antithesis of his case theory. This is a good illustration of the difficulties with fact-finding when the only two witnesses to an event do not tell the whole truth. If I had my druthers, I would have liked to have seen Mr Lehrmann tested on his previous representations as to drinking with Ms Higgins and to hear Ms Higgins’ response, but I understand forensically why that was not the case. Although I strongly suspect that additional joint drinking did take place in the Ministerial Suite, it is unnecessary for me to make a positive finding.

518    There is, of course, other evidence as to intoxication. There are the various assertions of Ms Higgins that her intoxication was “worse than even the worst night at schoolies” and “10 out of 10 drunk” (T927.38–45) and those of Mr Lehrmann downplaying her level of intoxication. Given my concerns as to the self-serving nature of this testimony, it is unsafe to place any significant weight upon this evidence, save to the extent that I accept Ms Higgins inherently probable evidence that she felt very drunk.

519    There is also the important CCTV footage of Ms Higgins entering Parliament House at about 1:45am (Ex 17) and walking through security. Mr Lehrmann submits this demonstrates Ms Higgins: (a) walked in a straight line through the metal detectors wearing high heels twice; (b) bent over multiple times without falling over or stumbling, including once bending from the hip and standing on one foot without any support; (c) skipped along the corridor to catch up to Mr Lehrmann; (d) smiled and acknowledged someone out of shot and acknowledged a security guard; and (e) did not fall over or need to be carried through security.

520    This is all substantially true, but drunk people sometimes walk in a roughly straight line, and it also shows Ms Higgins trying to put her shoes back on (which, I presume would not be a complex task), struggling for a considerable period and steadying herself against the security desk. Her difficulty was so obvious that Ms Anderson called out to her: “Don’t worry about it, just carry your shoes. It’s okay but put them on when you get up there” (Anderson (at [29])). Ms Higgins then gave up trying to put her shoes back on, collected her items from the tray and then Ms Higgins engaged in the unrestrained behaviour of skipping after Ms Anderson and Mr Lehrmann sans shoes (Ex 17 (at 01:46:57)).

521    During her entry, the CCTV footage demonstrates she was not paralytically drunk and was, at this time, able to function to a certain level. Consistently with this, the experienced Mr Fairweather let her in. But understandably given the nature of his limited observations, he was not able to appreciate how far her cognition had been affected and, in particular, how her inhibitions and decision-making capacity had been impaired.

522    Unlike the security guards, but like Ms Gain on the night, we have an excellent idea of the extent of Ms Higgins’ drinking and, taking all the evidence together, by 2:20am or so, I am comfortably satisfied that Ms Higgins was a very drunk 24-year-old woman, and her cognitive abilities were significantly impacted. Given this state and the late hour, it is highly likely she was prone to drowsiness. This is strongly supported by the fact, as Mr Lehrmann put it in his final submissions, that she passed out naked in the Minister’s suite (emphasis added) and my finding she was still very significantly affected two hours after she was left alone.

523    Further, in the light of my findings as to Mr Lehrmann’s conduct, I am also satisfied he was aware of her condition.

524    For completeness, I should mention that in Section I.2 below, I refer to a contemporaneous note of Assistant Commissioner Close of a meeting on 4 April, which contains a reference toinfo that alleged victim may have been drugged. This representation is in evidence before me because no objection was made by Mr Lehrmann as to its admissibility, no application was made for its discretionary exclusion, nor was any application made for a limitation on its use under s 136 EA. Despite this, it is of such a speculative nature to have no probative value. No other suggestion of this type has been made in the evidence and no party has made submissions about this topic. In these circumstances, I ought to give it no weight and put it (and a related representation made in the same document as to any other incident) out of my mind.

III    Post-incident Conduct

525    It is next worth pausing to check the suggested counterintuitive behaviour pointed to by Mr Lehrmann that might rationally bear upon what happened in the Minister’s office and any other relevant post-incident conduct. In this regard, it is, of course, necessary to again have regard to the agreed facts as to the effect of trauma and alcohol on recollection.

526    The events upon which most emphasis was placed were some exchanges between Mr Lehrmann and Ms Higgins immediately in the days following the incident, which commenced by Mr Lehrmann emailing Ms Higgins eight hours after leaving Parliament House by forwarding a news summary with the following message (Ex 20):

Might see about getting you on this list! :)

527    Ms Higgins did not read this message until Monday, 25 March (T638), and also on that day, at 7:34am, Mr Lehrmann forwarded Ms Higgins another news summary with the following message (Ex 21):

Not letting me send to private email! Will email David and get your gmail on the mail list!

BL

528     Ms Higgins responded at 1:15pm in the following terms (Ex 21):

So weird!

Honestly, that would be the best if you could.

529    That morning, Mr Lehrmann purchased Ms Higgins an unsolicited cup of coffee, left it on her desk, said it was for her and then kept walking (T325.3043); notably Mr Lehrmann did not seek to repeat the suggestion he “went out” for a coffee with Ms Higgins (as he had told the Spotlight programme (T327.12–13)).

530    The next day, at 10:28am, Ms Higgins sent the “phoning a friend” email to Mr Lehrmann asking for some help with a task in preparing some “portfolio stats to generate some [talking points] to put into a campaign prep pack (Ex 22).

531    With regard to how she felt around this time, Ms Higgins gave evidence that she was worried that Mr Lehrmann may have “gone around and told [people] we had had consensual sex”, but that his normalising the situation (for example, by sending the emails) made her feel “weirdly relieved” because “it’s my word against him, trying to verify that it was rape and that there was no consent” and she was not in a position to deal with having a fight about whether or not it had been consensual right at that moment (T639.2844).

532    At best, I agree with the respondents that this evidence is essentially neutral. The evidence is consistent with a rape not having occurred, but on the assumption Ms Higgins was a victim, this reaction does not offend commonsense. I have already explained why it was unnecessary for me to accept opinion evidence explaining the danger of making assumptions as to the reliability of sexual assault complaints by reason of some a priori view as to how victims of sexual assault are expected to behave. Reasoning based upon so-called “typical” behaviour of genuine victims, such as shunning or exhibiting hostile behaviours towards the perpetrator or avoiding contact is superficial and distorts the process of fact-finding.

533    In considering the validity of Ms Higgins’ allegation, I do not consider Ms Higgins’ actions in accepting a cup of coffee or responding to emails about news alerts or requesting Mr Lehrmann’s professional help as important. They are consistent with there not being any issue between them but again, on the assumption she was a victim, they can be readily characterised as the actions of a woman who had not yet come to terms with what had happened to her but needed to confront the reality that she had to work out a way of being in the same professional office as a male colleague who had assaulted her. No doubt the struggle to work out how to respond would resonate with many women working in any type of workplace who have had to find some way of coping with such a predicament.

534    I have little doubt that if she had been raped, that by the time of these interactions, it is quite conceivable that Ms Higgins would be driven by conflicting emotions: self-doubt, concern that she would be humiliated by word leaking out to her colleagues and questioning the prudence of her own behaviour.

535    Moreover, these incidents cannot be assessed in a vacuum. It is also necessary to have regard to the fact that other contemporaneous actions of Ms Higgins are consistent with her being a victim of sexual assault. I have already considered her important contemporaneous representations to Mr Payne, Mr Dillaway, and Major Irvine. Below, in Section I, I make detailed findings as to relevant post-incident conduct, but it is worth mentioning some aspects of this behaviour in this part of my reasons, as they provide important context to the alleged counterintuitive behaviour.

536    First, was what was said to Mr Dillaway during their first discussion after the incident, while Ms Higgins is still in the Ministerial Suite. Because of what was said during that discussion, Mr Dillaway recounted his impression as follows in the Master Chronology (as recorded in Annexure H to the affidavit of Mr Auerbach sworn 2 April 2024 (MC) (at 15)):

I’d got the impression that she’d done - something had happened that she didn’t want to tell me about. Um, but I wasn’t sure what it was at that time, I probably assumed that maybe she just – she’d hooked up with another guy or something like that. Um, you know, had been out partying. Um, and then, you know, I was trying to- it didn’t - it didn’t - I remember thinking it didn't make any sense at all what she was telling me because she said, “They were out, then they went back to a minister’s office to have drinks.” And having worked in that building for a long time, like I know you just - you can’t just go have a party in a minister’s office. Like when Parliament’s sitting, yeah, you can get people into an office pretty easy. But when Parliament’s not sitting, you can’t just go from a nightclub, zoom by Parliament and bring everyone from the bar and have a party in the minister’s office. And kind of when she said that to me initially, I remember thinking like -you know, WTF, I’m like that doesn't make any sense. “What do you mean youse [sic] went back to the minister’s office and had drinks and partied there?” I’m like, “That doesn't make any sense.” And I think as I stated to probe those questions, um, she tried to kind of shut it down. And, you know, she said, “Look, I don't want to talk about it.”

537    This is not inconsistent with a victim of sexual assault still trying to process what happened, and being initially reticent in discussing the details with someone with whom they were close.

538    Secondly, and importantly, are the representations made by Ms Higgins in meetings with Ms Brown recorded in Annexure B. Those communications show a woman working through a traumatic event and providing further information notwithstanding she did not, at that time, feel able to say to Ms Brown in express words that she had been raped (which was a graphic word she initially had some but not uniform difficulty in applying to her experience). Hence, even when she first articulated to Ms Brown at the end of her third meeting on Thursday, 28 March, that she recalled Mr Lehrmann “being on top of me” (and which caused Ms Brown to be shocked) (T2129.1–27), she did not expressly say she had been raped. As noted above (at [272]), as she said to Ms Maiden (Ex 50 (at 12)) “I think for like the longest time I was really weird about actually saying it was rape”. Given the agreed facts as to the effects of trauma, this is hardly surprising.

539    Thirdly, are the prompt communication of allegations with the AFP and the Sexual Assault and Child Abuse Team (SACAT) in 2019 and the subsequent counselling, which will be examined in further detail below, and which are consistent with a sexual assault having taken place (even though it would be unsafe to rely on a lack of complaint and counselling as counterintuitive behaviour, for reasons I have explained).

540    Fourthly, was Ms Higgins’ message to Mr O’Connor (the Queensland MP and friend of Ms Higgins) on 29 March 2019, where she represented that a “super f****ed up thing happened little while ago” (T1920.44–1921.4) and a subsequent telephone conversation during which Mr O’Connor (T1921.37–40):

absolutely remember[ed] the word “rape” [being used]. That’s not something that you forget, and she absolutely did say that he had taken her back to Parliament House.

541    Fifthly, there was some relatively insignificant evidence of a change of demeanour in the wake of the incident given by Ms Kellie Jago (Ms Higgins’ mother), Ms Hamer, Ms Alex Humphries (Ms Higgins’ housemate) or, more significantly, of distress by Ms Cripps, the crisis counsellor.

542    Sixthly, is the conduct on 3 April 2019 responding to Mr Dillaway’s offer to “reach out to the PMO” (Ex R99 (at 814)) which was accepted by Ms Higgins, and which led to a conversation with Mr Julian Leembruggen which was the subject of a contemporaneous record by Mr Dillaway:

Spoke to PMO. He was mortified to hear about it and how things have been handled. He’s going to discuss with COS [Dr John Kunkel] – no one else. I flagged need for councillor [sic] and desire to be closer to home during election.

543    To which Ms Higgins replied (Ex R99 (at 814)) incidentally, in terms in stark contrast to her later narrative:

Thank you for doing that. Honestly, I really appreciate it. The help is beyond welcomed.

I wouldn’t say it’s been handled poorly, just a difficult situation to manage. Seriously, Fiona is great. I just think there has been a lot of competing things going on.

544    Again, for present purposes this does not prove a rape occurred, but a person in the position of Ms Higgins agreeing for a friend to “reach out to the PMO” in relation to matters relevant to the incident is not behaviour counterintuitive to a sexual assault having occurred.

545    Finally, was a representation made to her father which falls into a somewhat different category because it occurred much later. Mr Higgins gave raw and palpably believable evidence that after the trip to Canberra at the end of March 2019, he did not hear from his daughter and felt something was wrong (T1469.4147). He then explained on 2 February 2020, his daughter sent him a message that said: “When you are free this week, we probably need to have a chat. So much has gone on in the past year, and I haven’t fully kept you in the loop. You have to keep your cool, though, and back me up” (Ex R882; T1470.15–19). Mr Higgins and his daughter subsequently had a call (T1476.3233) during which Ms Higgins told him that “the inappropriate [thing] that had happened at Parliament House was that she had been raped…” (T1470.3536). Again, this sort of statement must be put in its proper context, but one wonders why a daughter would say such a thing to a clearly loving father absent a genuine belief a sexual assault had taken place. For completeness, it is worth stressing these apparently candid communications with her father might be thought to have cogency because they occurred before the person later charged with the responsibility of “pitching” the project of the cover-up, Mr Sharaz, came into her life on 29 May 2020 (MC (at 63)), the important Four Corners programme, and the subsequent development of the cover-up narrative.

546    A further aspect of Ms Higgins post-incident behaviour said by Mr Lehrmann to be “powerful evidence that Ms Higgins knew no sexual activity had taken place” was her failure to have a sexually transmitted infection check performed, despite telling Mr Dillaway she was doing so and her evidence she believed Mr Lehrmann finished’ inside [of her] (T630.10–12). I reject this submission. It suggests a pattern of typical or “normal” behaviour of rape victims that takes insufficient account of the agreed facts as to the possible effects of trauma and the variability of reaction sexual trauma can cause. There may be many reasons on the assumption Ms Higgins was a victim of rape for her not wanting to subject herself to such a process, particularly when the surrounding contemporaneous material suggests she had no intention of pursuing a complaint with the police at this time.

547    In summary, despite other concerns as to her creditworthiness, any alleged post-incident counterintuitive behaviour of Ms Higgins does not materially affect my assessment of the underlying cogency of her allegation she was assaulted. Further, considering all the post-incident conduct to which I have referred as a whole, it is not inconsistent with the conduct of a genuine victim of sexual assault struggling to process what happened, seeking to cope, and working through her options.

IV    Complaint Evidence or Prior Consistent Statements

548    Before leaving the topic of the contemporaneous representations made by Ms Higgins which provide context to her other post-incident conduct, it is convenient here to make a further point.

549    This is a civil proceeding and so s 66(2) EA, applicable to complaint evidence, is not relevant. In this civil case, no objection was made as to the admissibility of any evidence of complaint or alleged prior consistent statements made by Ms Higgins,