The Project was a programme of Network Ten.
The broadcast
On 15 February 2021, The Project ran a story that had been broken earlier that day by Samantha Maiden in an article entitled “Young staffer Brittany Higgins says she was raped at Parliament House”. The story was about an alleged rape of former staffer Brittany Higgins at Parliament house.
Lisa Wilkinson, a journalist with Network Ten presented the programme and opened the story as follows:
“Welcome back to this special edition of The Project.
Tonight claims of rape, roadblocks to a police investigation and a young woman forced to choose between her career and the pursuit of justice, and it all happened right in the heart of our democracy.
Brittany Higgins says the government betrayed her …
Higgins went on to talk about how she had invited a man she worked with in the office of Defence Minister Linda Reynolds for work drinks, she got drunk, went to Parliament because the man said he needed to collect something, and eventually passed on on the couch of Minister Reynolds’ office. She woke up in pain because her leg was being crushed and found the man was having sexual intercourse with her without her consent. The following Tuesday, the man was terminated from his employment by Minister Reynolds’ chief of staff Fiona Brown.
Higgins then said that she was then interviewed in the same room where she was raped, and claimed that as soon as she recounted the rape Brown had treated the matter as being about “managing a situation”, she felt that “it immediately became sort of like a political problem”, and she was told by Brown that “internal mechanisms were already at play”. Higgins went on to say that “Parliament jealously guards its protections” and asserted that Brown had repeatedly refused to allow her to access the CCTV of her on the right in question. Higgins also claimed that Minister Reynolds and Brown then had another meeting in same the office they knew that she was raped in, and that Brown was visibly uncomfortable about any mention of the rape incident, that Reynolds “didn’t broadly want to see me anymore” and that Brown had treated the incident as being an issue with her that she could either deal with or just leave. Higgins also claimed that Brown had offered to her that she could go home to process what had happened to her and that she wouldn’t be coming back, but because this was her dream job she stayed and they went her to WA where she was isolated and suicidal. Higgins then said that she was pressured not to go to the police because of the culture that would see her speaking out as being not a team player.
Bruce Lehrmann
Bruce Lehrmann was the man referred to as the rapist in The Project’s broadcast.
He was subsequently charged with rape of Higgins. After a trial, the jury was discharged after juror misconduct.
The defamation defamation
Lehrmann sued Network Ten and Wilkinson (“the defendants”) for defamation.
Lehrmann in the statement of claim alleged the Project programme, in its natural and ordinary meaning, was defamatory of him and carried the following imputations:
→ He raped Brittany Higgins in Defence Minister Linda Reynolds’ office in 2019.
→ He 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.
→ He, whilst raping Brittany Higgins, crushed his leg against her leg so forcefully as to cause a large bruise.
→ After he finished raping Brittany Higgins, he left her on a couch in a state of undress with her dress up around her waist.
There was no dispute that at least one person identified Mr Lehrmann which satisfied the identification element.
The defendants pleaded that the defences of justification (truth) and qualified privilege applied, and they were therefore not liable for defamation.
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4.
Truth is a defence at common law, however in order for such a defence to succeed, the defamatory matter must be true in substance and effect: Howden v ‘Truth’ & ‘Sportsman’ Ltd 1937 58 CLR 416. Therefore, the defendant must prove that the meaning of the defamatory imputations are true and accurate in all except the most minor details, they must also prove the correctness of any inference that a reasonable person may draw from the matter: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1.
Section 25 of the Defamation Act 2005 provides that:
Furthermore, Section 30 of the Defamation Act 2005 provided that:
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the “recipient”) if the defendant proves that:
(a) the recipient has an interest or apparent interest in having information on some subject, and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
…
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:
(a) the extent to which the matter published is of public interest, and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c) the seriousness of any defamatory imputation carried by the matter published, and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f) the nature of the business environment in which the defendant operates, and
(g) the sources of the information in the matter published and the integrity of those sources, and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i) any other steps taken to verify the information in the matter published, and
(j) any other circumstances that the court considers relevant.
s 140 of the Evidence Act 1995 (Cth), 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.
Credit findings
Federal Court judge Justice Michael Lee was scathing in his assessment of Lehrmann’s honesty as a witness:
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.
Examples of this included:
→ Lehrmann in evidence denying that he found Ms Higgins alluring as at March 2019.
→ Lehrmann’s initial evidence had not met Ms Higgins prior to attending the Kingston Hotel on 2 March 2019 and downplayed his awareness of her
→ Lehrmann’s false evidence about what occurred at The Dock on 22 March 2019
→ Lehrmann emphatically denied any intimacy with Ms Higgins at the 88mph nightclub, when Lauren Gain’s evidence was 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”
→ Lehrmann gaving 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.”
On the other hand, Justice Lee was also critical of Higgins’ credit, finding that 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.
Justice Lee was “comfortably satisfied that a number of credit issues arising from a fair assessment of the evidence of Ms Higgins cannot be minimised” by considering that she was an unreliable witness, although “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).
Whether sex occurred
Justice Lee found that there were Five Incontrovertible Facts:
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]); T1166.15–20);
(4) Ms Higgins opened her eyes and looked at Ms Anderson but then proceeded to roll into the foetal position (Anderson (at [50]–[55])).
Justice Lee inferred the following from the Five Incontrovertible Facts:
“(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.
For these reasons, Justice Lee found that intercourse took place between Lehrmann and Higgins in the Ministerial Suite.
Did Higgins consent?
Justice Lee found that on the balance of probabilities, Higgins did not consent because:
“Notwithstanding the cautions to which I have referred, the full range of other possibilities combined, and taking all my reservations as to the credibility and reliability of Ms Higgins into account, her evidence that she was not fully aware of her surroundings but then suddenly became aware of Mr Lehrmann on top of her, at which time he was performing the sexual act, when given orally before me, struck me forcefully as being credible and as having the ring of truth. I use the term “fully aware” advisedly, as consciousness is best understood as not being a binary concept but rather as being on a continuum, and the evidence defies a finding as to her precise state of consciousness at a specific time.”
Whether Lehrmann knew that Higgins was not consenting
Justice Lee was not satisfied that Lehrmann knew Higgins did not consent to having sex, but found that Lehrmann was recklessly indifferent to whether Higgins was consenting because:
“I am satisfied that it is more likely than not that Mr Lehrmann’s state of mind was such that he was so intent upon gratification to be indifferent to Ms Higgins’ consent, and hence went ahead with sexual intercourse without caring whether she consented. This conclusion is not mandated by, but is consistent with, my finding that intercourse commenced when Ms Higgins was not fully cognitively aware of what was happening.
In summary, I consider it more likely than not that in those early hours, after a long night of conviviality and drinking, and having successfully brought Ms Higgins back to a secluded place, Mr Lehrmann was hell-bent on having sex with a woman he: (a) found sexually attractive; (b) had been mutually passionately kissing and touching; (c) had encouraged to drink; and (d) knew had reduced inhibitions because she was very drunk. In his pursuit of gratification, he did not care one way or another whether Ms Higgins understood or agreed to what was going on.
602 Because of what I find to be Mr Lehrmann’s state of mind of non-advertent recklessness, the knowledge element has been made out.”
As Lehrmann in his closing submissions had acknowledged, “the bare fact of rape… might be committed simply by being recklessly indifferent to whether or not there was consent”.
Lies as evidence
One of the most elegant and precise parts of the judgment was the relevance of Lehrmann’s lies to the issue of whether he committed a rape. Justice Lee found that:
I am comfortably satisfied on the balance of probabilities that the instructions he gave his trial lawyers about no contact and a lack of sex were given because he knew the admission of sex with a drunk woman would mean the possibility of her lack of consent was brought squarely into issue and he feared the truth.
However, this was not a finding of an Edwards lie, because it was not a lie found to have been told out of knowledge of the truth, but rather out of fear of the truth. In other words, the finding is Lehrmann lied about sex with Higgins because he could not be confident she had consented (or he knew that she hadn’t). This appears to be one of the reasons why Higgins’ evidence in that respect as found to have “the ring of truth”.
qualified privilege
Justice Lee held that the qualified privilege defence had to fail, because the broadcast was not reasonable for the following reasons:
(1) The rape allegations were intertwined with the cover-up and the Project team had strong indications of the unreliability of their main source, particularly as to how she lost material on her phone and selected material survived; her explanations were implausible and rather than this being a flashing warning light, Mr Llewellyn’s instinct was to avoid “unnecessary doubt” (Ex R295) and was not even followed up. The lack of curiosity about investigating the bruise photograph is especially unreasonable given its subjective and objective importance and given it was said to viewers to be physical evidence corroborating Ms Higgins’ rape allegation (Annexure A (lines 35–37)).
(2) Further relevant to credibility as to the allegation of rape was the fact that her account was, as Mr Lehrmann submitted, “replete with inconsistencies and implausibilities”; a fair review of the first meeting reveals, to an objective observer, how vague Ms Higgins was as to any concrete detail, repeatedly asserting that people or things were “weird” or saying what she felt and, to the extent there was any detail, those details shifted, moving from Senator Reynolds and Ms Brown representing “we wouldn’t stop you”, to accepting she was offered support, to saying she was not offered support and was made to feel that going to the police was not an option, to Ms Brown making it plain that if she went to the police she would not have a job. Sensibly, Ms Thorton had stressed (Ex R190) that she wanted “clarity on what was said by who means to who [sic] in terms of Brittany not pressing charges. And whether there’s a paper trail or [sic] notes or witnesses or anything to corroborate that part of it”. Despite this caution, and without this detail, the serious allegation of a cover-up was immediately accepted as being inherently credible, resulting in a want of reasonable scrutiny as to her general credibility, which was directly relevant to assessing the cogency of the allegation of rape. Rather the approach of Ms Wilkinson and Mr Llewellyn was to encourage the cogent articulation of an obstruction narrative, with this exchange occurring in the first meeting…
(3) The motivations of Mr Sharaz in selecting the journalists to tell and use the story were manifest and rather than this motive being a cause of some degree of circumspection, but Mr Llewellyn and Ms Wilkinson indicated their willingness to assist in the political use of the allegations as Ms Higgins and Mr Sharaz intended.
(4) As noted above in Section J.2, the Timeline document, according to Network Ten, confirmed the view that the story was potentially an issue of great public interest and should be pursued. Despite this, there was no proper investigation of representations made in the document, including as to why: (a) it was said notification was sent to the DPP from the “Parliament House AFP Station” (an allegation never explained); (b) the tension between the notion there was something sinister about the ominous comment about a “contract with Minister Cash from Star Chamber [being] rejected. (Note – Fiona Brown sits on Star Chamber)” with the fact that Ms Higgins was in truth offered three jobs after the 2019 election; (c) the wrongful implication that Mr Lehrmann was fired because of the assault; or (d) Ms Higgins’ assertion that she met with the Parliament House AFP on 26 March (which was not only wrong factually, but necessarily confused the fact that Ms Brown organised the initial visit after the meeting on 1 April).
(5) The ahistorical and misconceived notion embraced by Mr Llewellyn and Ms Wilkinson that there was an Executive Government-controlled approach to AFP policing within Parliament House, which obstructed investigation and caused delays, contributing to the withdrawal of Ms Higgins’ complaint and suggesting, together with the other things Ms Higgins was alleging, that according to Ms Wilkinson, Parliament House was the safest place in Australia to rape someone (see [841] above).
(6) The approach to seeking comment from Mr Lehrmann including the steps taken to contact Mr Lehrmann (from which approach there was no dissent by Ms Wilkinson) when the contacts provided by Mr Sharaz were obviously inadequate (and the Project team were warned not to research Mr Lehrmann via LinkedIn in case Mr Lehrmann was notified of that research – “Worth noting that if you click on the alleged perpetrator’s LinkedIn profile he could get a notification – something we clearly wish to avoid” (Ex R180; see also R126)).
(7) If Network Ten wanted to get in contact with Mr Lehrmann, there were ways of ensuring that contact could be achieved. He was not living the life of a hermit – he was working for a public company in Sydney. The approach lacked reasonableness in the circumstances of the publication of an allegation of such seriousness. Network Ten were not to know that Mr Lehrmann was unlikely to take up any invitation.
(8) Finally, was the dismissal of contradictory information received from Mr Carswell and failing to follow it up with Ms Higgins; but this is a mere instance of the broader problem that Mr Llewellyn, like Ms Wilkinson, started from the premise that what Ms Higgins said about her allegations was true. They resolved from the start to publish the exclusive story and were content to do the minimum required to reduce unacceptable litigation risk.
