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How Lee nailed the Lehrmann defamation judgment

Justice Michael Lee… “Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat”. Photo: judgment livestream

The judicial task of judgment writing is solitary work, to put aside any biases, to avoid over-simplification and exaggeration, to eschew the use of adverbs and adjectives, to go over and over draft judgments so that what remains is lean, clear, scrupulously fair. Let us be grateful for the work of Justice Lee, his staff, and the decision to show it all on You Tube, says legal columnist HUGH SELBY.  

There are trial judgments and there are appeal judgments. Losers read judgments to find out “why?”. Lying witnesses read judgments to see if, and how, they were caught. 

Hugh Selby.

Lawyers read trial judgments to assess whether a successful appeal is possible. Lawyers read appeal judgments because they clarify the law. 

Law teachers, mostly, read only appeal judgments, leaving their students ill-prepared to become litigators.

The reading public doesn’t read judgments. Why should they? They have no personal stake in the outcome. If a case is newsworthy they can get the gist of the result from a media report.

But there is the exception, and that’s when an erudite, judge wordsmith (aka Justice Michael Lee) goes to a lot of trouble to write a trial judgment (and give a spoken summary of it). 

He engagingly informs the non-lawyer public of what was claimed, what was the evidence, how that evidence can be gathered and analysed, and what then unfolds in terms of explanations, findings and legal consequences. Readers are taken on a journey with an expert guide.

Once upon a time…

For those who have had better things to do for the past four years, Brittany Higgins, a one-time parliamentary staffer, alleged that Bruce Lehrmann, also a staffer, had raped her in a ministerial suite in the wee hours when both should have been home in their own beds.

Her claims (which went a lot further than the alleged rape) became a “reality” soap opera. This was a saga with a surfeit of sex, lies and videotape.

In one of the soap opera’s Acts Mr Lehrmann became the accused in a rape trial. He was fortunate to have skilled legal advice given pro bono. 

The trial did not go well for Ms Higgins (as the complainant). Mr Lehrmann did not give evidence. The trial reached no conclusion. The prosecution after some “this way and that” announced there would be no retrial. Mr Lehmann, at the end of 2022, was home free. All he had to do was keep his mouth shut.

Should have left the hat

Perhaps it was need, perhaps it was greed, perhaps it was a layering of self-delusions. As Justice Lee memorably summed up Mr Lehrmann’s fate, “Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat” (para 1091). I would add, “and a tempting treasure trove”. 

Mr Lehrmann’s ill-considered claim that his reputation had been wrongly tarnished took up some 26 hearing days. 

But it all came down to the judge’s hunch – proved to be right – that the consumption of alcohol would be determinative. 

He – not the parties (go figure) – combed through the evidence – spoken, written, CCTV – and made a table of how many “spirit-based drinks” Ms Higgins imbibed (para 395), actively encouraged by Mr Lehrmann. 

The answer was 12-14, possibly more, and that’s before the whisky drinking in the ministerial suite.

From that it followed that Ms Higgins had been in no condition to give consent. Reckless as her condition he had his wicked way. That’s rape. 

Justice Lee penned 125,000 words to resolve the issues. At that length it’s longer than most current crime novels and thrillers.

It’s worth a look, not because of a fast-paced fiction plot (though there was plenty of fiction in this case), but because lawyer and non-lawyer alike can learn all about the writing of judgments that persuade. The learning is so much easier because the story, in all its permutations, is so well known.

Any judgment writer must decide whether the initial focus is upon the applicable law or the setting out and evaluation of the facts. 

Justice Lee explained the context by first giving some background, then identifying the key individuals and events. That done he shared, serially, the legal principles. 

With each legal principle, he stated and evaluated the evidence, being careful to follow what he had set out about a proper approach to fact finding, which party has the onus of proof, and what does “the balance of probabilities” (being the standard of proof) require. That makes the judgment persuasive.

The Table of Contents for this judgment is detailed and informative. It is the itinerary for the judgment journey. Any reader can quickly find any issue that interests them.

The judicial task of judgment writing is solitary work. It requires repeated self-instruction to “do no unnecessary harm”, to put aside any biases, to avoid over-simplification and exaggeration, to eschew the use of adverbs and adjectives, to go over and over draft judgments so that what remains is lean, clear, scrupulously fair and has the dispassionate reader nodding their agreement.

That’s what you will find when you go through this judgment to find the answer to those who are still keen to be wrong.

Let us be grateful for the work of Justice Lee, his staff, and the decision to show it all on YouTube. 

The judgment (case reference [2024] FCA369 ) can be found on the Federal Court of Australia website here or here.

Former barrister Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

Liar, rapist: Ten ‘vindicated’ in Lehrmann verdict

 

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Hugh Selby

Hugh Selby

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4 Responses to How Lee nailed the Lehrmann defamation judgment

cbrapsycho says: 21 April 2024 at 6:34 pm

A brilliant judge who’s silenced the gossip, the rumours, the speculation and the conspiracy theories with his exhaustive analysis of the evidence and clear explanation of his judgement as well as the legal process that took him there.

Never before have I learned so much from a court case, as Justice Lee taught all observers about the legal principles, the process of analysis and the issues to be ignored as red herrings to the case at hand. He discussed the definition of rape, dismissed rape myths, spoke of the effects of trauma on memory and recall, outlined the context and how it was relevant to the behaviour of those involved, whilst clearly detailing the logic that led to his nuanced conclusions.

He educated us all and hopefully broke down some of the simplistic myths and assumptions by which people often reach incorrect conclusions.

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David says: 22 April 2024 at 8:04 am

Like the ill fated Voice referendum we seem to be at a point where the public and media represented views differ significantly from what people are saying in private. The on the balance of probabilities verdict only considers things up to the point a rape could have occurred. If we consider the events after the alleged act we have Higgins supposedly so intoxicated she cannot remember and Lehrmann sober enough to calmly exit the scene. Ask yourself what would someone do, on the balance of probabilities with “the scene” if they knew they were in control and the victim had no idea what was going on ? Would they simply walk away leaving all the evidence in control of the victim and those who were clearly going to find her, or, would they make some attempt to destroy any evidence? What would have happened if he simply dressed her and left her sleeping comfortably on the couch with a blanket or coat over her ? Easy for him to do and the whole judgement would be need to remove any reference to her being found naked. Why did he leave all the physical evidence in other peoples control ? Keep in mind this was in a place where everyone knew they would be seen, videoed and id checked entering the place. There’s no I wasn’t anywhere near defense.

We have a perpetrator who is in control of their actions and a victim who have little control or idea what’s going on. The outcome is the preparator effectively leaves a card at the scene saying “I’m not going to tell you I had sex with her but I’ve left her naked for you to find along with all the physical evidence”. What is the probability of that happening?

There’s a lot more actions following the event that cast significant questions on the balance of probabilities verdict but the one above should ring enough alarm bells. But if your interested ask yourself, based on the balance of probabilities, do the actions of the perpetrator and victim following the event imply there was or wasn’t any physical evidence of rape?

In a one off, given Lehrmann’s character, you might think, well is doesn’t sound right but so be it. But this is the legal system and it is somewhat horrifying to think other cases may refer to this or people may base their actions based on this is the way the law will read them. People can argue this was a defamation rather than a criminal trial so things are different but are the people we’re worried about really thinking about that in the heat of a situation?

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Ray says: 22 April 2024 at 10:08 am

I think Hugh helps provide some information, however one key point that should be made is that a “balance of probabilities” decision is of lower value to that of “Beyond Reasonable Doubt” which is the requirement to convict someone. That Justice Lee has made factual ‘statements’ that Lehrmann committed the act he was originally accused of, is actually an eye opener and eyebrow raiser in itself. Civil cases have a lower threshold of proof requirement, on a basis of 51% probability means ‘the balance of proof is in favour of/against’ and in doing so, a life can be utterly destroyed.
Mr. Selby has not successfully explained this in his opinion piece, which was disappointing – as he has given good and timely information throughout much of the main and side play activities.
I for one was not impressed this was not explained properly.

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David says: 22 April 2024 at 11:38 am

I agree. The “a life can be utterly destroyed” is worth highlighting. The severity of rape is on par with murder yet people cannot falsely claim “they murdered me” for revenge, money or political gain. Falsely claiming rape has very serious consequences on the accused and this case highlights that once accused your life is destroyed with little recourse on the false accuser because the defamation bar is so low for such a serious topic. This is not about defending or accusing either party but about where we go from here and what conversation we should be openly having. Is this a case where the law and it’s practitioners are not fit for purpose? I assuming the judge was in a position where he had to make a ruling on probabilities and did so on events leading to the accusation rather than after. The afterwards part is where the guilty behavior and telltales occur and there is all sorts of knowledge and research in this area. This seems to have been ignored and has a coincidence with the aborted criminal trial. The message for the uneducated is with no physical evidence you can accuse someone of rape and you’re safe from defamation. Looking at this from the other direction, are we heading to a system where people who fear they may be falsely accused have the right to order someone to be raped tested so the lack of physical evidence is recorded? That would be very ugly but what other option do we have?

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