The Federal Court is streaming Federal Court Justice Michael Lee’s decision in the Lehrmann case. Lee will read extracts of his written judgment from 10.15am in Sydney.
You can watch the livestream below:
Federal Court Justice Michael Lee notes that if Lehrmann was reckless as to whether Brittany Higgins was consenting to sex this would be sufficient to prove the third element of sexual assault.
Lee said that Ten and Wilkinson would have proven the third element if they have established on the balance of probabilities that Lehrmann was “indifferent” to consent and “just went ahead willy-nilly”.
The judge said he was satisfied it was more likely than not that Lehrmann was so intent on gratification that he was “hellbent on having sex” with her.
“In his pursuit of gratification he did not care one way or another,” Lee said.
This means the mental element has been established and the court has found Lehrmann sexually assaulted Higgins in Parliament House in March 2019. This is a finding to the civil standard, meaning the balance of probabilities, and not to the criminal standard of beyond reasonable doubt.
Federal Court Justice Michael Lee said he was not satisfied Brittany Higgins gave a “clear verbal protest” to Bruce Lehrmann, although he notes that this is not conclusive.
He has already found that Ten and Wilkinson have proven on the balance of probabilities Lehrmann had sex with Higgins. Lee is now considering whether the media parties have also proven it was non-consensual, and whether Lehrmann knew at the time that Higgins was not consenting.
He said Higgins’ evidence about being unaware of her precise surroundings but waking up with Lehrmann on top of her “struck me forcefully as being credible and having the ring of truth”.
He said he had reached a state of “actual persuasion” Higgins did not consent.
Federal Court Justice Michael Lee said that the natural and ordinary meaning of rape is as follows in the context of this case:
- Lehrmann had sexual intercourse with Higgins;
- Without her consent; and
- Knowing Higgins did not consent.
Federal Court Justice Michael Lee has now made a crucial finding that sexual intercourse took place between Brittany Higgins and Bruce Lehrmann on the balance of probabilities, meaning it is more likely than not.
However, he must now consider if he is satisfied that what occurred was rape, meaning sexual intercourse without consent.
“What does one mean by rape in this context?” Lee asks rhetorically.
He said his inquiry is focused on the “natural and ordinary meaning of the word rape … in contemporary Australia”.
Federal Court Justice Michael Lee is now delivering his findings about what happened in the ministerial suite in the early hours of March 23, 2019.
“I am convinced … that sexual intercourse did take place,” he said.
However, he did not find that Higgins said “no on a loop”. He said it was “more likely than not” that she was passive.
Federal Court Justice Michael Lee notes evidence that Brittany Higgins engaged with Bruce Lehrmann the following week at work.
He said this could readily be characterised as the behaviour of a woman attempting to come to terms with what had happened to her and “find some way of coping with such a predicament”.
It did not suggest her allegation of sexual assault was false, he said.
He said the fact that Higgins did not subject herself to a test for sexually-transmitted infections after the alleged assault did not necessarily suggest her account was untruthful. He noted the accepted impacts of trauma on the behaviour of sexual assault victims.
Federal Court Justice Michael Lee also makes a finding that Lehrmann was aware of Brittany Higgins’ inebriation.
Federal Court Justice Michael Lee said that he strongly suspected Bruce Lehrmann and Brittany Higgins did drink more in Parliament House, but it was not necessary for him to make a finding about it.
He has found that Higgins was seriously inebriated and had consumed 11 drinks at The Dock on the Kingston foreshore earlier in the evening. He said she was “comfortably satisfied” Higgins was a “very drunk young woman”.
Justice Michael Lee notes that former Parliament House security officer Nikola Anderson told the court last year that she did a welfare check in suite about 4.15am and found Higgins naked on the couch in the minister’s office with her dress on the floor. She recorded the incident in her notebook.
Nikola Anderson outside the Federal Court in Sydney last year.Credit: Kate Geraghty
Lehrmann had left Parliament House about 2.34am.
He had missed six calls from his then-girlfriend. He booked an Uber about 2.31am.
Federal Court Justice Michael Lee said there was “sufficient time”, approximately 40 minutes, for Bruce Lehrmann and Brittany Higgins to continue to drink in Parliament House as well as for “coitus”.
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