In Lehrmann v Network 10 Pty Ltd [2024] FCA 368 (15 April 2024), Justice Lee addressed – in the context of a defamation proceeding where one of the defences pleaded was truth, there in respect of the applicant Mr Lehrmann having raped Ms Higgins – made helpful observations as to the relevant legal principles:
A OPENING REMARKS
[1] Mr Bruce Lehrmann sues Network Ten Pty Limited ( Network Ten ) and Ms Lisa Wilkinson (together, the respondents ) in defamation in relation to an episode of Network Ten’s The Project programme ( Project programme ).
[2] It is a singular case: the underlying controversy has become a cause célèbre. Indeed, given its unexpected detours and the collateral damage it has occasioned, it might be more fitting to describe it as an omnishambles.
[3] For some people, any unwelcome findings will be peremptorily dismissed. The reasoning process, including the drawing of fine distinctions based upon the subtleties of the evidence, will be of no interest. This reaction is inevitable given that several observers have a Rorschach test-like response to this controversy and fasten doggedly upon the “truth” as they perceive it. Their response is visceral because the “truth” is revealed and declaimed, rather than proven and explained. Some jump to predetermined conclusions because they are disposed to be sceptical about complaints of sexual assault and hold stereotyped beliefs about the expected behaviour of rape victims, described by social scientists as “rape myths”; others say they “believe all women”, surrendering their critical faculties by embracing and acting upon a slogan arising out of the #MeToo movement. Some have predetermined views as to the existence or otherwise of a conspiracy to suppress a rape for political purposes. For more than a few, this dispute has become a proxy for broader cultural and political conflicts.
[4] This judgment is not written for people who have made up their mind before any evidence was adduced or are content to rest upon preconceived opinions. It is written to set out my factual findings comprehensively and explain my decision to the parties and to the open and fair-minded.
[5] To achieve this end, from the start of this case, I have attempted to ensure as transparent a process as possible, conscious that a trial conducted in public, accessible to the public, and only upon evidence and submissions made fully available to the public, was the best security for confidence of the fair-minded in the impartiality and efficiency of the justice system.
[6] An astute observer would have gleaned from the trial that this case is not as straightforward as some commentary might suggest. In part, this is because the primary defence hinges on the truth of an allegation of sexual assault behind closed doors. Only one man and one woman know the truth with certitude.
[7] For an impartial outsider seeking to divine the truth (or, more accurately, ascertaining what most likely happened), two connected obstacles emerged.
[8] The first is, at bottom, this is a credit case involving two people who are both, in different ways, unreliable historians.
[9] Countless scholarly articles have been written seeking to explain the frailties of human memory and why it is that different people may remember the same event in different ways. People give unreliable evidence for various reasons and distinguishing between a false memory and a lie can often be difficult. Aspects of so-called “witness demeanour” or physiological signs of deceit are of little use unless the witness is cognitively aware of their deception. Recognising these realities, judges are reluctant to characterise a false representation as a lie unless another explanation is unavailable and it is necessary to do so to resolve a controversy. But as we will see, this is a case where credit findings are central and sometimes an explanation other than mendacity is not rationally available.
[10] To remark that Mr Lehrmann was a poor witness is an exercise in understatement. As I will explain, his attachment to the truth was a tenuous one, informed not by faithfulness to his affirmation but by fashioning his responses in what he perceived to be his forensic interests. Ms Brittany Higgins, Mr Lehrmann’s accuser, was also an unsatisfactory witness who made some allegations that made her a heroine to one group of partisans, but when examined forensically, have undermined her general credibility to a disinterested fact-finder.
[11] The second and related obstacle was the assertion that what went on between these two young and relatively immature staffers led to much more. By early 2021, allegations of wrongdoing had burgeoned far beyond sexual assault. It was said a sexual assault victim had been forced by malefactors to choose between her career and justice. The perceived need to expose misconduct (and the institutional factors that allowed it) meant the rape allegation was not pursued in the orthodox way through the criminal justice system, which provides for complainant anonymity.
[12] As we will also see, when examined properly and without partiality, the cover-up allegation was objectively short on facts, but long on speculation and internal inconsistencies — trying to particularise it during the evidence was like trying to grab a column of smoke. But despite its logical and evidentiary flaws, Ms Higgins’ boyfriend selected and contacted two journalists and then Ms Higgins advanced her account to them, and through them, to others. From the first moment, the cover-up component was promoted and recognised as the most important part of the narrative. The various controversies traceable to its publication resulted in the legal challenge of determining what happened late one night in 2019 becoming much more difficult than would otherwise have been the case.
[13] I will come to the legal issues, the principles that have guided fact-finding, some observations concerning the credit of various witnesses, and then my findings as to what relevantly went on. But before doing so, I will explain some uncontroversial matters and the issues in the case.
…
E APPROACH TO FACT-FINDING, ONUS, AND THE STANDARD OF PROOF
E.1 General
[90] It is next appropriate to set out how I have directed myself as to fact-finding, the burden of proof, the standard of proof, and other more particular matters given the nature of the principal allegation.
[91] Without introducing complications arising from the differing ways in which the phrase “burden of proof” has been used — and the differences between legal and evidential burdens (as to which see C R Williams, ‘Burdens and Standards in Civil Litigation’ (2003) 25(2) Sydney Law Review 165), I will use the expression burden or onus of proof as simply being the identification of which party has to demonstrate the case or an aspect of the case propounded, whereas the standard of proof is the applicable benchmark that the evidence adduced must meet to discharge that onus.
[92] The question of who bears the onus in aspects of this case is straightforward. Mr Lehrmann had (and has successfully discharged) his onus in proving he has been defamed as alleged; the respondents now bear the onus of proof with respect to their defences. If those defences fail and Mr Lehrmann is entitled to damages, he will then be required to prove the compensatory damages he seeks.
[93] What this means is that in order to make out the defence of substantial truth, the respondents need to discharge their onus of proving that Mr Lehrmann raped Ms Higgins. The nature of this aspect of the forensic contest brings with it considerations that are necessary to canvass in further detail.
[94] I have discussed the relevant principles at length a number of times (see, for example, Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244 (at 324–325 [284]–[288])). Notwithstanding this, it is worth referring to Besanko J’s recent survey of matters relevant to onus and proof in Roberts-Smith v Fairfax Media Publications Pty Ltd ( No 41) [2023] FCA 555 . In Roberts-Smith , his Honour dealt with a number of matters relevant to: (a) the onus of proof in a justification or substantial truth case (at [93]–[94]); and (b) the standard of proof in a case where there is a serious allegation (at [95]–[110]). With respect, his Honour’s exposition in relation to these matters is comprehensive. I gratefully adopt the above-mentioned paragraphs.
[95] At the risk of supererogation, I will, however, say something in my own words. I will also deal with the agreed facts relevant to Ms Higgins’ credit and some miscellaneous matters, which have informed my approach to the evidence.
E.2 Relevant Observations as to Standard of Proof
[96] As to the standard of proof, the starting (and end) point is s 140 of the Evidence Act 1995 (Cth) ( EA ), which relevantly provides:
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
[97] The matters set out in subsection (2)(a), (b) and (c) are mandatory but not exhaustive considerations; other considerations may also be relevant, including the inherent likelihood of the occurrence of the fact alleged and the notion that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 (at 65 per Lord Mansfield).
[98] The concept used in subsection (1), being the “balance of probabilities”, is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per Dixon J). The “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”: Jones v Dunkel (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found.
[99] Justice Hodgson put it differently, but to the same effect, by observing that when deciding facts, a civil tribunal of fact is dealing with two questions: “not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”: see D H Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-finding’ (1995) 69 Australian Law Journal 731; Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (at 576 [14]–[16] per Hodgson JA, Beazley JA agreeing).
[100] Whatever way it is put, a “[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact”: NOM v DPP [2012] VSCA 198; (2012) 38 VR 618 (at 655 [124] per Redlich and Harper JJA and Curtain AJA); Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164 (at 176 [51] per Campbell JA, Bergin CJ in Eq and Sackville AJA agreeing).
[101] Although s 140 EA is now the starting point, the concepts it incorporates are neither new nor novel. Any fact-finding inquiry depends upon context. As Kiefel CJ, Gageler and Jagot JJ recently observed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (at 874–875 [57]), the statutory provision:
… reflects the position of the common law that the gravity of the fact sought to be proved is relevant to “the degree of persuasion of the mind according to the balance of probabilities”. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.
(Citations omitted)
[102] As those acting for Mr Lehrmann correctly state, in Briginshaw , Dixon J (at 362) emphasised that reasonable satisfaction is not attained independently of the nature and the consequence of the fact to be proved, and his Honour referred to the seriousness of the allegation, the inherent unlikelihood of the alleged occurrence, or the gravity of the consequences flowing from the finding in question as matters which could all properly bear upon whether the court is reasonably satisfied or feels actual persuasion. The other members of the Court in Briginshaw also referred to the seriousness of the allegation sought to be proved as a matter relevant to whether or not the tribunal of fact could be satisfied of the fact alleged (at 347 per Latham CJ; 350 per Rich J; 353 per Starke J; and 372 per McTiernan J).
[103] None of this is inconsistent with what I said in Kumova v Davison (No 2) (at [262]), where I noted “the focus on the gravity of the finding is linked to the notion that the Court takes into account the inherent unlikelihood of alleged misconduct”. They are linked in that both the inherent unlikelihood of the alleged occurrence and the gravity of the consequences each require consideration.
[104] An allegation of rape ranks high in the calendar of criminal conduct, and, at the risk of repetition, the allegation needs to be approached with “much care and caution” and with “weight being given to the presumption of innocence and exactness of proof expected”: Briginshaw (at 347 per Latham CJ; 363 per Dixon J). Further, a finding of rape would, needless to say, be seriously damaging to Mr Lehrmann’s reputation and this consequence properly gives one pause before making it: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 (at 345–346 [68]–[69] per Mansfield and Gilmour JJ).
E.3 The Practical Difference Between the Civil and Criminal Standard
[105] Although I will explain below why the allegations to be proved in making out the truth defence and the allegations to be made out by the Crown in the criminal proceeding are not identical, this is an example where the same essential wrongdoing is to be assessed by reference to both the criminal and the civil standard. Such cases are not common, and they bring into sharp focus cardinal aspects of our legal system.
[106] Most first-year law students are introduced to the possibility of error of wrongful convictions and erroneous acquittals. They are (or at least were) made aware of what is often referred to as “Blackstone’s ratio”, being the fourth of five discussions of policy by Sir William Blackstone in his 1765 treatise Commentaries on the Laws of England , vol IV, ch 27 (Oxford University Press, 2016) (at 352) that “all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer”. I digress to note that this notion is ancient: the idea it is better to allow some guilty to escape rather than punish an innocent has Biblical origins (Genesis, 18:23–32) and later was the subject of discussion by Talmudic scholars (see Maimonides, The Commandments , Commandment No 290 (Charles B. Chavel, trans. 1967) (at 270)). Indeed, sixteen years before Blackstone, the concept had been expressed by Voltaire — albeit in a different ratio: “’tis much more prudence to acquit two persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent”: Voltaire, Zadig; or, The Book of Fate: An Oriental History (1749) (at 53).
[107] In any event, this moral choice accommodating the possibility of error has been reflected in fundamental aspects of our criminal justice system, including the presumption of innocence and the logically connected requirement the burden of proof rests with the prosecution. It also finds reflection in the rigour of the criminal law standard of proof.
[108] Hence, although it may be trite, it is worth stressing that in contrast to the present forensic contest, if this allegation of rape was to be determined at a criminal trial, it would not be open for the tribunal of fact to find the case proven unless it is satisfied that it has been proved beyond reasonable doubt: s 141(1) EA.
[109] So even though it is necessary to bear in mind the mandatory s 140(2) EA factors and the cogency of the evidence necessary to establish rape on the balance of probabilities, and that the rape will not be proven unless I feel an actual persuasion of its occurrence, the difference between the criminal and civil standard of proof is substantive and can be decisive in dealing with the same underlying allegation.
[110] Apart from anything else, this difference is evident from the necessity that in a criminal trial, the facts as established must be such as to exclude all reasonable hypotheses consistent with innocence.
[111] By way of useful summary, as was emphasised by the High Court in Rejfek v McElroy (1965) 112 CLR 517 (at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ):
[t]he difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.
E.4 Assessing the Credit of a Complainant of Sexual Assault
[112] Another aspect of the context of this fact-finding exercise is that the determination of the justification defence involves, among other things, consideration of the credibility of evidence given by Ms Higgins, a person who alleges she is a victim of a sexual assault.
[113] Prior to trial, Network Ten served purported expert evidence seeking to establish that aspects of Ms Higgins’ behaviour were not demonstrative of untruthfulness by reference to common or usual patterns of behaviour (as was anticipated would be asserted by Mr Lehrmann in cross-examination). This evidence was not proposed to be adduced by Network Ten in support of a submission that it was probable Ms Higgins was telling the truth, nor that her behaviour following the alleged rape rendered it more or less likely that the assault had occurred as alleged. Rather, the opinion evidence was said to support the proposition that any counterintuitive behaviour relied upon by Mr Lehrmann was of neutral significance.
[114] It was a type of evidence discussed by Associate Professor Jacqueline Horan and Professor Jane Goodman-Delahunty in their article ‘Expert Evidence to Counteract Jury Misconceptions about Consent in Sexual Assault Cases: Failures and Lessons Learned’ (2020) 43(2) UNSW Law Journal 707. In that article (dealing with how so-called “rape myths” play a role in jury decision-making), the authors observed (at 710–11):
Legal authorities in Australia, Canada, New Zealand, the United Kingdom and the United States of America accept that sexual assault myths and misconceptions have a potential to exert an undue influence on triers of fact when deliberating about a sexual assault case. To avoid this undesirable influence, courts rely on traditional processes to educate juries so that they can better assess the evidence in a sexual assault trial on a sound factual basis. The two primary mechanisms to counteract the undue influence of sexual assault myths are expert evidence and judicial directions.
Over the last decade, counterintuitive expert evidence has been permitted to educate the jury as to how complainants vary in their behaviour both during and following a sexual assault. Legal practitioners and academics have noted that this provision remains underused, despite the widely acknowledged need for this type of educative intervention.
[115] Such opinions as to “counterintuitive evidence” have been admitted under s 108C(1) EA in criminal sexual assault trials in a number of cases, including: Hoyle v R [2018] ACTCA 42; (2018) 339 FLR 11 (at 46–48 [223]–[244] per Murrell CJ, Burns and North JJ); MA v R [2013] VSCA 20; (2013) 226 A Crim R 575 (at 586–587 [45]–[52] per Osborn JA; at 595 [95] per Redlich and Whelan JJA); R v Kirkham [2020] NSWDC 658 (at [41]–[42] per McLennan DCJ); Aziz (apseudonym) v R [2022] NSWCCA 76; (2022) 297 A Crim R 345 (at 355–363 [49]–[92] per Simpson AJA, Lonergan J agreeing).
[116] The evidence was objected to by Mr Lehrmann on a number of grounds, which are now unnecessary to detail. Prior to ruling on the objections, I raised with the parties my preliminary view that even if the evidence was admissible, it would be, at best, of marginal utility in circumstances where: (a) this was a judge-alone trial; and (b) that subject to submissions to the contrary, I considered it would be appropriate to direct myself as to the impact of alleged counterintuitive conduct in a manner consistent with some foundational propositions referred to in the proposed evidence which, it seemed to me, simply reflected the accumulated experience of the common law (seen in standard directions) or in ordinary human experience.
[117] Sensibly, both parties agreed, and it became unnecessary to deal with admissibility or discretionary exclusion issues, as the following became common ground as agreed facts pursuant to s 191 EA (Agreed Facts dated 18 December 2023 ( agreed facts )):
(1) trauma has a severe impact on memory by splintering and fragmenting memories; such that semantic or meaning elements become separated from emotion; and interfering with the timespan memories require to consolidate and become permanent;
(2) due to the potential for cuing of emotional responses to fragmented memories, memory can change, be subject to reconsolidation effects, and even when these effects are not marked initially, memories may remain labile for some time (thus changes in what the person reports as their memory of an event can be expected);
(3) lack of clarity and confused accounts can be expected until such time as the memory has consolidated;
(4) inconsistencies in reporting following a traumatic event are often observed and explicable through underlying theories of trauma and memory function;
(5) omissions can be understood as alterations in awareness due to high arousal at the time of the event that consolidate over time;
(6) inconsistency is often observed in reliable reports of sexual assault and is not ipso facto a measure of deception;
(7) in understanding the account of an alleged “survivor”, a person must consider how that account was elicited; this includes the skill and attitudes towards the person by the investigating officers; the time elapsed between the traumatic event and the formal interview; and the psychological/emotional state of the person being interviewed at the time of interview;
(8) the first forensic interview is potentially a trigger for intrusive thoughts that can lead to fragmentation of memory and dissociation; patterns of behaviour such as high confidence and clarity in the account are not helpful in determining whether the account is accurate;
(9) despite the belief that the emergence of inconsistencies across interviews is a sign of lying (people “can’t keep their story straight”), the literature on memory, impacts of trauma and the dynamic between interviewee and the interviewer must be considered; and
(10) multiple interviews are typically necessary to construct a clear narrative of events; however, the consequence of these multiple interviews may be patterns of inconsistency or omissions especially early in the interview process (which need to be carefully evaluated but are not in and of themselves necessarily indicative of deception or accuracy).
[118] Consistently with the agreement of the parties, to the extent these propositions are relevant, I will bear them in mind in assessing the impact of any counterintuitive behaviour pointed to by Mr Lehrmann, after the alleged assault, on Ms Higgins’ credit.
[119] In a similarly helpful and constructive way, the parties also agreed facts as to the impact of acute alcohol intoxication, in that it has:
(1) a significant and negative effect on memory as it can impair the memory for behaviour and motivation of all parties involved in a sexual act, including a sexually aggressive act; and
(2) been shown to impair judgment; impact negatively on executive function; and impair attention to environmental cues; it can lead to fragmentary memories that slowly recover and consolidate and from a forensic perspective, this process of fragmentation of memory with at times slow recovery may lead to apparent inconsistency and omissions between interviews.
[120] Although not an agreed fact, there is a further matter worth mentioning about alcohol consumption that is uncontroversial. As was pointed out by Professor Julia Quilter, Professor Luke McNamara and Ms Melissa Porter in their article ‘The Nature and Purpose of Complainant Intoxication Evidence in Rape Trials: A Study of Australian Appellate Court Decisions’ (2022) 43(2) Adelaide Law Review 606, alcohol consumption is “strongly associated with sexual violence crimes, including rape” (at 607). A review of cases, however, suggests that complainant intoxication evidence has historically been more likely to impede, rather than support, the prosecution’s ability to prove non-consent, because it can be used to: suggest consent based on a “loss of inhibition” narrative; and/or challenge the credibility of the complainant as a witness and the reliability of their account.
[121] But here, of course, the evidence adduced by Mr Lehrmann and the forensic choices he has made means he does not directly advance a “loss of inhibition” narrative and, significantly, any submission made as to the reliability of Ms Higgins as someone affected by alcohol is also relevant (if the evidence otherwise establishes sex took place) to the question of whether she was so affected by alcohol as to be incapable of consenting to sex.
E.5 The Importance of Contemporaneous Representations
[122] In a complex commercial case, Webb v GetSwift Ltd (No 5) [2019] FCA 1533 , I noted the following about the process of fact-finding (at [17]–[18]):
[17]…what matters most in the determination of the issues in cases such as this is the analysis of such contemporaneous notes and documents as may exist and the probabilities that can be derived from these documents and any other objective facts. …
[18]As Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [15]–[23], there are a number of difficulties with oral evidence based on recollection of events given the unreliability of human memory. Moreover, considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial… [T]he surest guide for deciding the case will be as identified by Leggatt J at [22]:
… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on the witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
[123] As the Full Court later observed in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; (2018) 396 ALR 193 (at 254 [239] per Allsop CJ, Besanko and Middleton JJ), this approach might be best seen as a helpful working hypothesis, rather than something to be enshrined in any rule. Although these observations were made in the context of fact-finding in commercial cases, this does not mean they are anything but apposite to the fact-finding task to be undertaken in this defamation proceeding.
[124] Moreover, in this case, in addition to file notes, texts, social media messages and emails, hours of audio, video and closed-circuit television ( CCTV ) footage has been adduced into evidence. I have reviewed this contemporaneous material and, for my manifold sins, have listened or watched all the audio-visual records in evidence. I have trudged unyieldingly through this material because insofar as it casts light on the relevant issues, these contemporaneous records are a far surer guide as to what happened than ex post facto accounts or rationalisations, or unverifiable assertions as to what people “felt”.
[125] The helpful working hypothesis of paying close regard to the contemporaneous documents and representations to disinterested third parties is of signal importance, especially where, as I will explain, I have misgivings as to the reliability of aspects of the accounts given by a number of important witnesses.
E.6 The Court is Not Bound to Accept Either of the Parties’ Accounts
[126] As I will explain further below, the particularised allegation made by the respondents brings with it the requirement to prove:
(1) that, at the time and place alleged (that is, at Parliament House on 23 March 2019), Mr Lehrmann had sexual intercourse with Ms Higgins;
(2) without Ms Higgins’ consent; and
(3) knowing Ms Higgins did not consent.
[127] It is notorious that in many rape trials, the forensic battleground is whether the Crown can prove beyond reasonable doubt the second element ( non-consent element ) and the third element ( knowledge element ). In recent times, law reformers have focused attention on whether it is appropriate that consent to sexual activity must be communicated by words or actions, such that there is a responsibility to take steps to find out whether the other person is consenting. This has spurred some recent legislative change: see, for example, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW).
[128] It is beyond the scope of this judgment to discuss these changes, but as the Victorian Law Reform Commission recently put it in its report Improving the Justice System Response to Sexual Offences: Report (September 2021) (at [19.13]), some of the features of the criminal justice system:
make sexual offences more difficult to prove in court. By their nature, sexual offending often happens in private, without other witnesses. The accused does not have to give evidence because they have a right to silence. For rape, the need to prove there was no consent means that many cases will end up focusing on the complainant.
[129] What is notable about this civil case, and the criminal case that preceded it, is that by reason of Mr Lehrmann’s forensic position to contest the establishment of the first element (that sexual intercourse occurred), he has not engaged directly (through challenging the Crown case at the criminal trial or by way of evidence before me) with the reality and appreciation of consent.
[130] Specifically, Mr Lehrmann has advanced an account that he came back to the Ministerial Suite accompanied by Ms Higgins for them to then go their separate ways: not only was there no sex, but no intimacy of any kind.
[131] Below I explain why this aspect of Mr Lehrmann’s evidence is stuff and nonsense, but for present purposes, this conclusion makes it necessary to point out that in general, disbelief of one witness’s account does not establish the contrary, or that a witness giving a contrary account must be believed: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 (at 385–386 [60] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
[132] Of course, if I am ultimately unable to make a finding one way or another as to what actually happened, it is open to decide the issue on the basis that the party who bears the burden of proof on this issue (that is, the respondents) have failed to discharge their burden: Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 (at 955–956 per Lord Brandon, Lords Fraser, Diplock, Roskill and Templeman agreeing). Relatedly, and importantly, given my rejection of Mr Lehrmann’s account of what went on, it must be borne in mind that a civil onus of proof is not discharged by mere disbelief in opposing evidence (see, for example, in the context of a criminal onus, Liberato v R (1985) 159 CLR 507 (at 515 per Brennan J)).
E.7 Multiple Available Hypotheses and Onus
[133] Related to the last point, it is also necessary to consider the existence and cogency of other hypotheses open on the evidence.
[134] Recently, in Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391 , Perram J, in an unusual circumstantial case (and with apologies to those, like me, who thought that algebra would not be involved in this case) observed (at [21]):
Where there are only two competing hypotheses that between them account for the universe of possibilities open on the evidence, a court’s satisfaction that one is more likely than the other will entail that the occurrence of the fact supported by the more likely hypothesis is proved on the civil standard. Whilst it is important not to approach the civil standard in an excessively arithmetical way in terms of numeric probabilities it can be useful to do so to illustrate some consequences in a circumstantial case where multiple hypotheses are in competition with each other. For example, where there are only two competing hypotheses and one is more probable than the other then it must follow that the more likely one is more likely than not. (More formally: if P(A)>P(B) then since P(A)+P(B)=1 then one may validly infer that P(A)>1/2.) But the logic of this breaks down where there are three or more competing hypotheses. If P(A)>P(B)>P(C) then the fact that P(A)+P(B)+P(C)=1 does not warrant the conclusion that P(A)>1/2 as will be seen if P(A)=45%, P(B)=30% and P(C)=25%. Thus the court will only be satisfied that a fact is established if the hypothesis supporting it is more likely than all of the others considered together ( ie P(A)>(P(B)+P(C))). In particular, the mere fact that one of the hypotheses emerges as more likely than each of the others will not suffice, it must be more likely than all of them.
[135] Of course, as his Honour recognised, nothing said in Palmanova is intended to depart from the realities that: (a) mechanical or arithmetic comparison of probabilities independent of belief will not justify a finding of fact; or (b) each competing hypothesis open on the evidence might range, possibly very significantly, in likelihood of occurrence. The important points made, however, are the need for care when there are a range of possibilities open, and the only way one reaches a state of reasonable satisfaction as to one being proven is to conclude its existence is more likely than all the other hypotheses available on the evidence.
E.8 False in One Thing does not mean False in Everything
[136] Moreover, in assessing whether one has reached a state of reasonable satisfaction in making a finding of fact, it is jejune to proceed on the basis that rejecting part of an account of a witness of an event must mean one must reject all aspects of the account of the witness.
[137] Consistently with ordinary human experience, some witnesses may misremember or lie about some things but tell the truth about others. Despite my concerns about the truthfulness of both Mr Lehrmann and Ms Higgins, it would be simplistic to proceed on the basis this means I must reject everything they say. As the Full Court (McKerracher, Robertson and Lee JJ) explained in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 (at [94]):
It has been a long time since the maximfalsus in uno, falsus in omnibus (false in one thing, false in everything) was part of the common law, its broad applicability having been rejected long ago (including by no less a judge than Lord Ellenborough CJ in R v Teal (1809) 11 East 307 103 ER 1022 ). It is trite that the tribunal of fact (be it a judge or jury), having seen and heard the witness, is to decide whether the evidence of the witness is worthy of acceptance and this may involve accepting or rejecting the whole of the evidence, or accepting some of the evidence and rejecting the rest: Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 at 45–47 [118]–[123]; Flint v Lowe (1995) 22 MVR 1 ; and S v M (1984) 36 SASR 316 . It is for this reason a jury is directed that they may accept some parts of a witness’s evidence, but not other parts: Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 . This reflects the accumulated wisdom and experience of the common law that witnesses may lie about some things and yet tell the truth about others, and the tribunal hearing the evidence is best placed to fix upon the truth. …
[138] Another Full Court (Wigney, Wheelahan and Abraham JJ) in Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 recently made the same point (at [272]) as follows:
… People sometimes tell lies when giving evidence. What is significant is not the mere fact of the untruthfulness, but its relevance to the issues in dispute. A finding that a witness has lied about a matter need not lead to the rejection of all of the evidence of that witness, but may affect the degree of satisfaction of the existence or otherwise of a fact in issue to which the witness’s evidence was directed. …
E.9 Implied Admissions and “Consciousness of Guilt”
[139] Given, as I will explain, the two principal witnesses in the justification case told lies during their evidence and in the making of out-of-court representations, the final matter to which I wish to draw attention is how these lies can be used in the fact-finding process.
[140] Ms Higgins is not a party, and although any lies told by her will be central to my assessment of her creditworthiness (and hence reliability), the position of Mr Lehrmann, as a party and as someone who gave evidence contrary to the evidence adduced by the onus-bearing party, needs separate examination.
[141] Recently, as part of the Full Court in Kim v Wang [2023] FCAFC 115; (2023) 411 ALR 402 , I referred (at 428 [150]) to the decision of the High Court in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2010) 243 CLR 361 (at 384–385 [63]), where Heydon, Crennan and Bell JJ relevantly explained that when a party calls testimony known to be false, this conduct can amount to an implied admission or circumstantial evidence permitting an adverse inference, and I then (at 428–429 [151]) observed as follows:
Recently, in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 , Besanko J addressed the circumstances in which lies can give rise to a finding of a consciousness of guilt or the making of an implied admission and described them as “complex and highly contentious” (at [197]). In summarising the authorities, his Honour observed (at [205]) that a court must “be cautious before treating a lie as an implied admission or evidence of a consciousness of guilt” and, among other things, should bear in mind there may be reasons for the telling of a lie apart from a realisation of guilt: Edwards v R (1993) 178 CLR 193 (at 211 per Deane, Dawson and Gaudron JJ).
[142] The concept derives from the criminal law and forms part of the more general principle that the Crown can rely upon an accused’s post-offence conduct as evidence of a consciousness of guilt: this could be a lie told in or out-of-court or by other conduct, including suborning witnesses or absconding to avoid arrest: McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227 (at 233 [26] per Latham J, Hislop J and Whealy JA agreeing). A good example is seen in Pollard v R [2011] VSCA 95; (2011) 31 VR 416 , where the evidence of the accused hiding a mobile phone was properly admitted as part of the Crown’s circumstantial case.
[143] When it comes to “ Edwards lies” as post-offence conduct, as is usefully explained by the Judicial College of Victoria in Pt 4.6 of its Victorian Criminal Charge Book (which deals with “Incriminating Conduct (Post Offence Lies and Conduct)”) (at [25]), at common law, untrue assertions and false denials are only capable of being used as an implied admission if the accused perceives that the truth is inconsistent with innocence and the jury was required to consider the following matters before using such lies as evidence of an implied admission:
(1) the lie was deliberate;
(2) the lie related to a material issue;
(3) the telling of the lie showed knowledge of the offence and was told because the truth would implicate the accused; and
(4) there was no other explanation for the telling of the lie consistent with innocence (see R v Edwards (1993) 178 CLR 193 ; R v Renzella [1997] 2 VR 88 ).
[144] But there is a need for adaption of the principles explained in these criminal law authorities in a civil case. In the appeal in Australia’s longest running defamation case, Beazley, Giles and Santow JJA in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 comprehensively dealt with admissions by conduct (at [78]–[88]). In doing so, the Court of Appeal referred to the fourth of the matters noted above and observed the concept that no other rational inference may be drawn is a concept of the criminal law, necessitated by the standard of proof of beyond reasonable doubt. The Court of Appeal went on to explain that in a civil case, it is sufficient for “a lie to be accepted as an admission of guilt, if that is the more probable inference to be drawn” (at [88]). I respectfully agree that such an approach is not only appropriate, but necessary to accommodate the differing standard of proof.
[145] How a lie can be used in assessing the reliability of the accounts given by Mr Lehrmann or Ms Higgins is straightforward. What I am presently concerned with is how an identified lie of Mr Lehrmann can and should be used to lend weight to the other evidence said to support the satisfaction of the onus of proof by the respondents. I will return below in Section H.2 to implied admissions and simply note for present purposes that the identification and use of “ Edwards lies” should be approached with caution, including in the light of the warning in Briginshaw (reflected in s 140 EA) that reasonable satisfaction should not be produced by, among other things, indirect inferences.
(emphasis added)
His Honour found the defence of truth was proved. An appeal has been filed by the applicant against the decision.
