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Former Liberal staffer Bruce Lehrmann has filed a number of defamation claims against media companies, Network Ten and News Life Media, and respective journalists, Lisa Wilkinson and Samantha Maiden, over rape allegations which went to trial last year.

Lehrmann is alleging defamatory statements were made in two stories related to interviews undertaken by both media companies with the complainant in his trial, Brittany Higgins, in February 2021. Lehrmann claims both stories defamed his reputation and were “recklessly indifferent to the truth”.

It’s important to note that this defamation case is not a rehashing of last year’s criminal trial and there are important differences between a claim of defamation and a criminal prosecution.

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How did we get here?

In February 2021, former Liberal staffer Brittany Higgins made statements to News.com.au (owned by News Life Media) and The Project on Network 10  alleging that she was raped by fellow Liberal staffer Bruce Lehrmann in the early hours of 23 March 2019, in the office of then-Defence Industry Minister Senator Linda Reynolds.

Lehrmann was charged with rape in late 2021 and pleaded not guilty.

A trial occurred in October 2022 but was abandoned after it was discovered that a juror had conducted private research and taken their findings into the jury room. A retrial was ordered, however ACT Director of Public Prosecutions, Shane Drumgold, subsequently decided to not continue the prosecution over concerns for the mental wellbeing of Ms Higgins.

Lehrmann filed defamation proceedings against both media companies and their respective journalists on 7 February 2023.

What does Lehrmann need to prove?

Unlike in a criminal trial, where Lehrmann was the accused, as the “plaintiff” in a defamation proceeding, Lehrmann has the legal and evidentiary burden to prove the claim of defamation to the civil standard of “on the balance of probabilities”.

There are three key elements to a claim of defamation:

  1. That information was communicated to a third person;
  2. That the information identified the plaintiff; and
  3. That the information had defamatory imputations about the plaintiff.

There is no dispute over the first element, that both stories communicated information to third parties.

Neither the story in News.com.au nor The Project directly named Lehrmann, however he argues that he was identifiable by politicians, political assistants, staffers, journalists, family, friends and acquaintances despite not being directly named.

As outlined in Lehrmann’s statement of claim against Network 10, the defamatory imputations being alleged over The Project story include:

  • That he raped Brittany Higgins in Defence Minister Linda Reynold’s office in 2019.
  • That 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.
  • That whilst raping Brittany Higgins, crushed his leg against her leg so forcefully as to cause a large bruise.
  • That after he finished raping Brittany Higgins, he left her on a couch in a state of undress with her dress up around her waist.

As outlined in Lehrmann’s statement of claim against News Life Media, the defamatory imputations being alleged over the News.com.au story include:

  • That he raped Brittany Higgins in Defence Minister Linda Reynold’s office in 2019.
  • That he signed Brittany Higgins, who was drunk and did not have her security pass, into Parliament House so he could rape her.
  • That he continued to rape Brittany Higgins after she woke up and was crying.
  • That after he finished raping Brittany Higgins, he left her on a couch half dressed.

What will the defendants argue?

At the time of writing, defence submissions have been filed by Network 10, Lisa Wilkinson and News Life Media.

Each of the defence submissions have commonalities, arguing that:

  • Lehrmann was not identified in the relevant stories.
  • The claim is not tenable as Lehrmann has filed his cause of action longer than “1 year following the date of publication” which is required as per s14B of the Limitation Act 1969 (NSW). However, this limitation period can be extended.
  • The defence of “qualified privilege” applies as readers and viewers of the relevant stories were entitled to the information, and communicating this information was reasonably within the public interest.
  • The defence of “justification” applies as the alleged defamatory imputations are “substantially true”.

The standard of proof for the formal defences of qualified privilege and justification, is to the civil standard of “on the balance of probabilities”. That is, the media companies and respective journalists in this case will need to prove that it is “more likely than not” that the defence applies.

What does “substantially true” mean?

Much media attention has focused on the defence of justification and the potential that key aspects of the previous criminal trial will be relitigated in court in order to prove the alleged defamatory statements were “substantially true”.

Brittany Higgins has publicly stated that she is willing to give evidence to assist the defendants.

The defence of justification is outlined under s25 of the Defamation Act 2005 (NSW), which simply states “[i]t is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true”.

Section 4 of the Act defines “substantially true” as “true in substance or not materially different from the truth”.

This defence does allow for some facts in the alleged defamation material to be incorrect. However, if the core of the defamatory imputation is true, then it is “substantially true”.

For example, let’s say a news story claims that “Person A stole a red bag from Person B in order to sell it for profit”.

This potentially defamatory imputation (“that Person A is a thief”) would still be “substantially true” even if: (i) the bag was blue or (ii) Person A actually stole the bag for personal use.

However, the story would not be “substantially true” and would be clearly defamatory if Person A had actually borrowed the bag with permission from Person B.

When a claim for defamation in brought, the court presumes that the publication made is false. It is for the defendants to prove, on the balance of probabilities, that the alleged defamation information is “substantially true”.

The particulars in each defence filing for the defence of justification are quite extensive, referring to key pieces of evidence that formed part of the previous criminal trial. In substance however, the defendants argue that:

  • Bruce Lehrmann had sexual intercourse with Brittany Higgins without her consent in the early hours of 23 March 2019.
  • That Higgins was so intoxicated that she could not consent to sexual activity.
  • That Higgins was unconscious when Lehrmann penetrated her.
  • That Lehrman knew at the time of sexual intercourse that Brittany Higgins was unable to consent.
  • That Lehrman’s conducted amounted to rape of Higgins in parliament house in 2019.

Possible remedies if successful

The most common remedy for actions in defamation is the award of damages (monetary compensation).

Section 35 of the Defamation Act 2005 (NSW) limits the amount of non-economic damages (such as loss of reputation, pain and suffering etc) claimable at $250,000. However, economic damages, such as loss of a career opportunity, could allow for higher damages to be given..

The details of damages sought by Lehrmann have yet to be filed with the court.

By Jarryd Bartle.

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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