It’s the saga about an alleged rape that never ends.
After a jury in a criminal rape trial was aborted after juror misconduct, the subsequent inquiry which revealed prosecutorial misconduct and the resignation of the ACT Director of Prosecutions, we have the sequel to the rape trial.
That sequel is a civil defamation case by Bruce Lehrmann, who was the defendant in the rape trial, brought against Network Ten and Lisa Wilkinson for an episode on The Project about the alleged rape.
Yesterday, following the closing of the evidence Justice Michael Lee opined that both Bruce Lehrmann and Brittany Higgins have “real credit issues” and that “various parts of each witness’s evidence simply can’t be accepted”.
This is not surprising. Experienced Counsel (barristers) in this case have torn strips off them and shown that both have given false accounts.
This would be expected to be more of a problem for the defendants Network Ten and Lisa Wilkinson than Lehrmann, given that the defendants bear the onus of proof of establishing that the alleged rape occurred, and because that is a serious allegation of criminality, the requirement laid out by the High Court in Refjek v. Mcilroy (1965) 112 CLR 517 applies:
“The “clarity” of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment 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: see Briginshaw v. Briginshaw (1938) 60 CLR 336 , per Dixon J. (1938) 60 CLR, at p 362 ; Helton v. Allen (1940) 63 CLR 691 per Starke J. (1940) 63 CLR, at p 701 ; Smith Bros. v. Madden (1945) QWN 39 , per Dixon J. (1945) QWN, at p 42 .”
The likelihood of the qualified privilege defence succeeding, which allows media publishers to communicate defamatory matter to the public if done reasonably in all the circumstances, is looking fairly slim.
Justice Lee has also raised concerns about the advice Wilkinson accepted from lawyers regarding infamous her Logies speech, which caused Lehrmann’s criminal trial to be delayed by several months.
Justice Lee observed it seemed “entirely fantastic that any lawyer acting competently could have given advice that that speech was anything other than inappropriate”. That seems like a fair analysis, and reflects poorly on Wilkinson’s credibility.
In our view, Wilkinson did not perform well in the witness box.
So the three main protagonists in this saga have reason to worry about adverse findings when judgment is delivered.
