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From Schwartz Media, I’m Ruby Jones, this is 7am.

Bruce Lehrmann is arguably Australia’s most hated man, that’s according to his lawyer.

She’s been in court this week trying to make the case that Lehrmann shouldn’t have to pay $2 million dollars to Channel 10, until he’s had the chance to appeal his failed defamation case.

At the same time, Channel 10 are arguing that Lehrmann should have to front up $200,000 in order to have the right to appeal at all.

Today, defamation lawyer at Good Company Law Hannah Marshall on Bruce Lehrmann’s chance of appeal and what that means for Brittany Higgins.

It’s Thursday, October 17.

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RUBY:

So, Hannah, this week, Bruce Lehrmann, former political staffer, accused rapist, was described in court as Australia's most hated man. So tell me about his situation right now. Where does he find himself?

HANNAH:

Things aren’t great for Bruce Lehrmann right now, he's been labelled a rapist judged on the civil standard to have sexually assaulted Brittany Higgins in the defamation case that he brought. He's lost his job as a result of everything that's happened. He's impecunious, he's out of money and his own barrister says that the only way he can make money now is by doing something silly, like going on OnlyFans. And so he wants to appeal the decision. He wants to see if he can rectify some of the damage to his reputation and improve his financial prospects.

RUBY:

Okay, so he wants to appeal that decision that was made earlier this year when this judge found that he was not defamed by Channel 10 because on the balance of probabilities, he did rape Brittany Higgins. So how is that going for him?

HANNAH:

So the appeal has reached a stage now where each of the parties have brought a different application. The ultimate effect of which is to decide whether the fact that Lehrmann has run out of money should stop the appeal from going ahead.

So on Lehrmann’s side, he's brought an application asking the court to prevent Channel 10 from enforcing the costs order already made in its favour in the main defamation case. They've been awarded $2 million in costs and Lehrmann wants them to be stopped from trying to get that money or make him bankrupt until after the appeal is determined.

On the other side, Channel 10 has brought an application for what's called ‘security for costs’. They want Lehrmann to have to pay $200,000 upfront to cover their legal costs if they win and defend the appeal.

And so they say that the chances of him winning the appeal are weak at best. They say there's no public interest served by the appeal going ahead. And they say that it's common ground that Lehrmann won't be able to pay the costs of the appeal if they do win. So they say that for all those reasons, he should have to put some money aside now for their protection before he can keep going.

RUBY:

Right. Okay, so at this moment in time, then, it's not clear whether Lehrmann will even be allowed to appeal that decision unless he can pay, unless he can find $200,000?

HANNAH:

That's right. And so, you know, he's in a situation where his reputation is in tatters. You know, you'd be hard pressed to find a person who has a worse reputation at this point. Most of Australia probably sees him as a villain and, you know, with that in mind, you might frame the question before the court right now, as does Lehrmann deserve the right to an appeal? But strictly, that's not the question that the court has to answer. You know that there's an automatic right of appeal which follows a defamation decision. And once you take Lehrmann out of the equation, you know, what the court's looking at is a slightly different question. And it is, should anyone lose their appeal right against a really serious defamation decision because they've run out of money? And that's a question of principle, which has broader ramifications for the justice system.

RUBY:

So what is likely to happen next in this case then Hannah?

HANNAH:

So if he goes ahead with the appeal, he's raised several grounds which will be brought before the court. The main argument coming out of those grounds is whether he can overturn the finding of the truth defence. Justice Michael Lee found that there was a substantial truth in the publications in which Brittany Higgins made her disclosures. And that's a complete defence to the defamation action.

Audio excerpt — Justice Michael Lee:

“Mr Lehrmann raped Ms Higgins. I hasten to stress this is a finding on the balance of probabilities. This finding should not be misconstrued or mischaracterised as a finding that I can exclude all reasonable hypotheses consistent with innocence…”

HANNAH:

And so Lehrmann is trying to overturn that now. And to do so, he has to overturn that underlying factual finding that to the civil standard, he raped Brittany Higgins. To overturn a factual finding on an appeal, is really difficult because the question being put to the court is basically asking it to reassess the evidence which the appeal judges haven't heard firsthand.

RUBY:

Okay, so even if he is able to go ahead with this appeal, it seems like it would be quite a difficult case that he would have to make.

HANNAH:
That's right. So the trial judge, Justice Lee, in reaching his decision on the truth defence, had to make a really careful, detailed assessment of the evidence before him, including the testimony of Bruce Lehrmann and Brittany Higgins.

The judgement itself, it goes on for over 300 pages. It's really deliberate and detailed in that analysis. I think having regard to the importance of the decisions which he has to make, you know, he characterised Lehrmann as a persistent, self-interested liar and said his attachment to the truth is a tenuous one. He also had issues with Brittany Higgins’ credibility, but for the most part, he connected those to the being consequences of the trauma that she suffered and did see a common thread in her evidence. So the appeal judges would generally defer to the trial judge's assessment. You know, they haven't had the benefit of observing the witnesses and seeing how they react to cross-examination, seeing their body languages and all those other things that happen in the courtroom as the case plays out. You know, unless there's a really obvious error for those reasons, appeal judges generally won't overturn factual findings. So, you know, his position's pretty bad either way.

RUBY:

Coming up after the break – how long can this case continue through the courts?

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RUBY:

Hannah, Bruce Lehrmann, he's one of several men who have been accused of assault or misconduct in the years since Me Too who has then gone on to sue a media company for defamation for their reporting of that. If we were to take a step back and have a look at the last few years, do you think that this is happening to the extent where you might call it a trend?

HANNAH:

For a long time and I mean, not 8 to 10 years, kind of hundreds of years, defamation cases have been used as a tool of powerful white men to silence criticism against them. And so the Me Too movement was a moment in time which kind of was well suited to that particular narrative.

There was this period where there were a ton of big wins for plaintiffs and now we've seen things start to kind of shift back in the opposite direction. So there's been a real swing.

Audio excerpt – News Host:

“There was a bombshell in Craig McLachlan’s defamation trial today, the actor dropping the case against Nine Newspapers and the ABC…”

HANNAH:

The Craig McLachlan case in the Me Too movement was a good example of that, where the case arose from allegations of sexual harassment during the course of the staging of the Rocky Horror Picture Show production. And he brought claims against the news publishers and also one of the women who had made the allegations in the first place for defamation. He quite spectacularly dropped his case after, I think, ten days of hearing and a fairly eviscerating cross-examination by the defence barrister, you know, and that was hailed as a real victory for both victim survivors who were brave enough to share their stories and the press who reported them.

Audio excerpt – Paul Barry (Media Watch):

“It was Australia’s one-time father of the year who found himself falling from hero to zero amid headlines like this:”

Audio excerpt – Dramatic VO 1:

“Murder…”

Audio excerpt – Dramatic VO 2:

“War Criminal…”

Audio excerpt – Dramatic VO 1:

“War hero to zero.”

HANNAH:

The Ben Roberts-Smith case was probably another example, more recently, you know, of a major victory for the press. It was a defamation case about a murder allegation and war crimes being committed in Afghanistan. The truth defence was the basis for success there. And so a bit like Lehrmann, it operated as a quasi criminal trial conducted to the civil standard. And finally, although it was also hailed as a huge victory for the media, you can't discount the immense time and expense that was involved in defending the stories and the allegations. So, you know, there's balance to all of it, I think.

RUBY:

And it's coming up to four years, I believe, since Channel 10 first broadcast its interview with Brittany Higgins. Is there a point at which there will be an end in sight in terms of this being able to proceed through the courts any further?

HANNAH:

Look, any civil case like this can run the full course of the appeal framework in Australia. So if Lehrmann or Ten is unhappy with the finding on this appeal, assuming it does go ahead, they would then have to ask for leave to go to the High Court and then if granted, they get a full court appeal in the High Court. So there's still a number of steps but there's no reason on their face, aside from this money question, that those steps wouldn't be available to them and intent in this case.

That could easily take, you know, another year or two, depending on court timetables and things like that. You know, on the plus side, for Brittany Higgins, she won't have to be involved any further. The court won't be taking new evidence. But of course, the publicity will remain intense and the court will still have to have regard to the testimony that she's already given. So that of itself will involve a degree of re-traumatisation yet again.

RUBY:

And as this contest over the public version of events around this case has played out, the legal system has really been tested in many different ways. As that has happened, what do you think has been revealed about the way the legal system functions?

HANNAH:

It's such a long and sad case the way it's all played out and between the criminal proceedings, this defamation case, the other defamation case, other criminal proceedings, it brought to light some really important issues for the Australian judicial system. Things like how does our criminal justice system treat rape victim survivors? What does consent mean and what's wrong with consent laws? What's the role of the press in publishing these kinds of disclosures, and how do they do it responsibly? And the power imbalance that's involved in defamation proceedings and the propensity of powerful white men to use them to silence their critics.

RUBY:

Do you think that watching what's happened to Brittany Higgins has influenced the way that people think about talking publicly about things that have happened to them and perhaps even the advice that they might be given in terms of being able to, I guess, outline a realistic scenario of what could happen if they do talk to the media?

HANNAH:

So I've had to advise a number of women about the legal risk in making these kinds of disclosures. And I have to tell them that to tell their story publicly comes with really substantial legal risk. They can be subject to prosecution themselves for defamation by their perpetrator. They can be asked to give evidence to support the news publisher's truth defence. They can be subject to cross-examination. And no matter how much I believe their story, you know, you have to be really frank that the judge might not prefer their version of events. You know, the evidence in these cases is often highly contested and there's been a real patchwork of defamation decisions where the judges have made different findings about, you know, who is to be believed. And so you can't give a person very much comfort that the legal system will support them or protect them. In fact, it's the opposite.

RUBY:

Hannah, thank you so much for your time.

HANNAH:

Thank you, Ruby.

RUBY:

You can read Hannah Marshall’s analysis of the Lehrmann case in The Saturday Paper this weekend.

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RUBY:

Also in the news today…

Combatting the influence of so-called alpha male influencers will be the focus of an expanded education program in Victorian schools.

The state education minister announced that their ‘Respectful Relationships’ program will take into account the popularity of figures such as Andrew Tate who promote misogyny and have a large following among teenage boys.

The program, currently taught in 2000 government schools, will also be expanded to help students identify coercive control.

And

Fresh filings have revealed that Elon Musk has donated almost double the amount of money to Donald Trump’s election bid than originally thought.

Campaign finance documents made public show that Musk has given $75 million US dollars to Trump via his America PAC. The PAC is focused on swaying voters in swing states such as Pennsylvania, where Musk recently appeared on stage at a rally with Trump.

I’m Ruby Jones, this is 7am. See you tomorrow.

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