‘Thespian flair’: Unlikely video star at heart of Lehrmann defamation case

At times, the legal drama has threatened to spiral out of control like a malevolent Catherine wheel. Yet Lee has managed to bring to it a degree of humanity and geniality – leavened by wit – that has tempered its hard edges, along with an incisiveness that repeatedly drags counsel and witnesses back to the core issues.

Barrister Geoffrey Watson, SC, co-founder of the Centre for Public Integrity, says: “In a case where the emotions could run very high, the judge has defused much of that with a very apparent feeling of goodwill … Anybody who’s seen the high level of diligence and incredible stamina of the judge and the barristers here could not help but be impressed.”

(Apart from attending a cricket Test match, Lee has apparently worked on the judgment every day since the new year.)

What former attorney-general George Brandis, KC, has described as Justice Lee’s “thespian flair” has injected a touch of showmanship into the proceedings.

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Long-time legal observer Richard Ackland, editor of the legal newsletter Justinian, says: “Undoubtedly the case has made Lee a bit of a minor celebrity. He has now got this huge following, and people love seeing him and his sparky retorts and repartee with the barristers. He seems to have taken a vast delight in the YouTubing and streaming of the proceedings.”

When the courtroom was treated to footage of one-time Spotlight TV producer Taylor Auerbach manically destroying his former friend Steve Jackson’s golf clubs last week, Lee remarked drily, “the shorter the iron, the more difficult it is”.

When a barrister last year offered to explain what a “DM” (direct message) was, a mock-indignant Lee riposted, “I am not one of those judges who says, ‘Who are the Rolling Stones?’”

He made short work of arguments being proffered by Ten’s counsel last week that the media union’s code of ethics shouldn’t be brought to bear on Ten’s conduct. It wasn’t complicated, Lee retorted, to expect that the journalists and producers involved in putting Higgins’ bombshell interview to air in 2021 would report honestly and not allow their beliefs to undermine their independence. “It’s like not shoplifting from Woolworths – it’s not complicated,” he added.

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Another leading Sydney barrister, who asked not to be named, said the Lehrmann case was “the hottest show in town at the moment”. It’s a brutal truth about a case that remains, at its heart, a de facto rape trial.

Upwards of 30,000 viewers were watching the hearings online last week, as human hand grenade Auerbach stepped into the witness box to accuse his former colleagues of winning an exclusive interview with Lehrmann by way of sex workers, booze, cocaine and expensive dinners. Oh, and a Tasmanian golfing getaway.

But Auerbach was ultimately a two-day sideshow.

Lee listened and then grew impatient with what he described as “allegations being thrown around like a Gatling gun” – a reference to the hand-cranked prototype machine gun invented during the American Civil War (Lee is apparently a devotee of certain kinds of Americana, notably those of the Nixon era).

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He was anxious to get back to the main game – most importantly, his judgment, which was meant to have been handed down last week and will now be delivered on Monday, after he tweaks it in the light of last week’s revelations.

In the meantime, the media has had a field day with the hundreds of pages of documents and exhibits that have been dropped onto the Federal Court file – strings of text messages, CCTV footage, a draft of Higgins’ hitherto-unpublished book, receipts and invoices, correspondence, and lengthy affidavits. It’s within the judge’s discretion as to how much of this goes on the public record. And Lee has made plain throughout the proceedings that he is for as much “sunlight” as possible.

Watson says, “The judge can make all sorts of limiting orders which can impede access, and this judge has been really very open.”

There were only two people in that Parliament House office for the critical 40 minutes early in the morning of Saturday, March 23, 2019, when Higgins alleges Lehrmann callously raped her while she was passed out on a ministerial couch (a claim he denies). Two unreconcilable accounts, with Lee at one point framing the dichotomy as the “Tigris and Euphrates of the truth defence” (a reference to the two rivers which in ancient times framed Mesopotamia).

Despite the hopes for a black-and-white ruling by many, Lee may not oblige. As he reminded the courtroom in the run-up to Christmas last year, there was a great tendency for people to assign “white hats and black hats … [but] I realise that human affairs are more complex than that”.

The Tigris and Euphrates metaphor was classic Lee – a glimpse of what Brandis has described as his “idiosyncratic” erudition.

During Lee’s swearing-in ceremony, other intriguing titbits emerged. While a leading commercial-law barrister, he was a director of the Bell Shakespeare Company in the early 2000s.

He’s an avid follower of British and US politics, an aficionado of the poet-singer Leonard Cohen, and possessor of a signed photograph of Richard Nixon, which, according to Brandis, he obtained directly from the former US president.

He’s a lover of history, biography and cricket, and (one can intuit from some of his courtroom comments) is passionate about his family (wife Penny and two children). He sees the law, well applied, as an instrument of social justice.

Has it been a good thing for one Federal Court judge to receive the profile and attention Lee’s been getting?

Anthony Whealy, KC, himself a former NSW Supreme Court justice, thinks it is – “as long as it’s for the right reasons. And what I think he has exhibited throughout the proceedings are two qualities: he’s been very well-balanced in the way he approaches the whole thing; and there is the occasional little bit of levity. But it has never been overwhelming. And I think those are the reasons he has [attracted] that following.”

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