It was over dinner that a former senior Australian Federal Police investigator brought it up. A question no one appears to have considered.
A small restaurant on Sydney’s north shore. A black Wagyu steak. A bottle of Grand Merlot. A conversation that turned to Bruce Lehrmann and Justice Michael Lee’s judgement. In particular, his frequently and approvingly quoted remark, the first line in his Conclusions: ‘Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.’
What a great quote, went the media, colourful, illustrative … yeah, but…
…it puts us in mind of the less frequently quoted (but more criticised) remark by former ACT DPP Shane Drumgold immediately after the abandoned criminal trial, to the effect that he was confident he could get a rape conviction against Lehrmann. Indeed, that seems to be the ‘lions’ den’ from which Justice Lee thinks Lehrmann escaped. Presumption of innocence be damned.
During the 2023 Sofronoff inquiry, counsel assisting, Erin Longbottom KC, asked Drumgold about his December press statement where he lauded Higgins’ bravery and dignity after announcing he would not retry Lehrmann.
Longbottom: ‘Did you turn your mind to the impact that statement might have on Mr Lehrmann, who was entitled to the presumption of innocence?’ Drumgold admitted coyly, ‘Possibly not as much as I should have.’
The Sofronoff report found Drumgold’s speech after the trial collapsed implied he ‘personally believed Ms Higgins’ complaint of rape was true and that, as a consequence, Mr Lehrmann was guilty’.
‘The comments were improper and should not have been made,’ the report states.
‘It was not necessary for Mr Drumgold to express his views on the prospects of conviction at the time of discontinuance.
‘Nor was it his function to identify himself with the complainant to a degree that he made a public statement of support.’
Perhaps it wasn’t his hat that was left in the lions’ den, but the presumption of innocence. We are entitled to infer from Lee’s ‘lions’ den’ quip that he, too, regarded Lehrmann guilty to the criminal standard – without the required evidence beyond reasonable doubt.
Here is some context: Chief of Staff Fiona Brown asked Lehrmann what they did after entering the ministerial office and having a drink. Lehrmann answered: ‘I don’t wish to get into that.’ There are a number of different explanations for his answer, which is no doubt why Lee emphasised that this is a civil case and he doesn’t need to base his decision on the highest level of proof beyond reasonable doubt, which requires the exclusion of all other possibilities consistent with innocence. He chose one possibility. That Lehrmann had sexual intercourse with a drunken, unconscious or semi-conscious Higgins. Other possibilities are also in play…
For instance, Lehrmann and Higgins may both have privately, unstated, intended or hoped to have (consensual) sex but Higgins fell asleep too quickly. Or he may have found her having vomited on his return from his own office area. Either way, he abandoned the idea and left with Higgins asleep, naked on the couch. (There is no evidence nor a claim that Lehrmann took her dress off.) On Monday, March 25, notably before Fiona Brown or anyone other than Lehrmann and Higgins working for the Minister knew of the incident, the Ministerial private office was cleaned. As is evident from the contemporaneous records, this occurred by reason of actions commenced as early as 12:40 pm on March 23, involving the Chief of Staff of DPS (who had initially been called while Ms Higgins was still in the Ministerial Suite, as ‘someone may have vomited in there’). According to the evidence, they had been drinking all evening, eventually became amorous, ‘pashing’ at the 88mph bar, as Lauren Gain put it in her testimony, with Higgins agreeing to share an Uber with Lehrmann, skipping happily to join him in the privacy of Minister Reynolds’ suite… That’s the context.
There is much ambiguity in the answer, ‘I don’t wish to get into that.’
But then, unlike Network Ten, Lehrmann is dead broke, unlikely to be able to mount an appeal to overturn the Lee judgement. It would not have surprised anyone had Lee found he could not confidently assess whether rape had occurred or not.
We’d finished our steaks by the time another element of the Lee judgement came up for us to chew over: let’s call this the ‘cad’ remarks.
At Par 573 of his judgement, Justice Lee presents the scenario on the assumption sex was consensual.
Before setting out my reasons in relation to each element, which ought be considered separately, it is convenient to first consider (and then reject) the notion that if consensual sex took place, then it is likely that Ms Higgins and Mr Lehrmann would have left together. I do not consider this logic to be at all compelling. This is because, on the assumption the sex was consensual, Mr Lehrmann was still behaving dishonourably by having sexual intercourse with Ms Higgins while in a relationship, and his girlfriend was trying to contact him – presumably trying to work out where he was and why he was there at 2:15 am. Given he had satisfied himself, and that he knew his girlfriend was awake and was attempting to contact him, calling an Uber and getting out of the Ministerial private office with celerity (and leaving Ms Higgins undressed) is the action of a cad, but is nonetheless explicable.
The assumption is filled with speculation and rejected by Lee himself, but nevertheless contains the observation that Lehrmann is a cad. And a rapist.
Is there a female equivalent of a ‘cad’? Would that be applicable to Higgins for her behaviour in respect of how she treated her instant date, the man who was largely ignored and discarded earlier that evening?
In accepting the rape allegation as made out, Lee reminds us in his judgement, the respondents to the defamation claim are required to prove that Lehrmann had sexual intercourse without Higgins’ consent and knowing Higgins did not consent. It is difficult to accept Lee’s judgement that these were made out by Network Ten and Lisa Wilkinson.
Even Lee had trouble with it: The submissions of all parties were less than helpful in relation to this aspect of the case [Was there a rape?]. This is not a criticism of the barristers but reflects the reality that the respondents say sexual intercourse happened in such a way as to mean it follows axiomatically that there must have been a rape; whereas Mr Lehrmann’s case is that no sexual intercourse took place at all.
Something else happened … which may be why he said, ‘I don’t wish to get into that.’
DISCLOSURE: Andrew L. Urban has been invited to work with Bruce Lehrmann on his book about his experience, in due course. So far, Lehrmann has not confided in Urban regarding these matters.
