'Australia’s most hated man': Inside the Bruce Lehrmann appeal

From Schwartz Media. I'm Ruby Jones.

This is seven Am. Bruce Lamon 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 Lamon shouldn't have to pay two million dollars to Channel ten until he's had the chance to appeal his failed defamation case. At the same time, Channel ten are arguing that Laman should have to front up two hundred thousand dollars in

Right now, he's been labeled 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 im the cuneus. 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 only fans and so

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 ten because on the balance of probabilities he did rate Britney Higgins. So how is that going for him?

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 Lherman has run out of money should stop the appeal from going ahead. So on Lherman's side, he's brought an application asking the court to prevent Channel ten from enforcing the costs order already made in its favor in the

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.

Right, Okay, So at this moment in time that it's not clear whether Leerman will even be allowed to appeal that decision unless he can pay, unless he can find two hundred thousand.

Dollars, that's right, And so you know he's in this 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 Lherman 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 Lherman 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.

So what is likely to happen next in this case? Hunnah.

So if it 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 defense. Justice Michael Lee found that there was a substantial truth in the publications in which Britney Higgins made her disclosures, and that's a complete defense to the defamation action.

Mister Luhrmann raped Miss Higgins. I hasten to stress this is a finding on the balance of probabilities. This finding should not be misconstrued or mischaracterized as a finding that I can exclude all recenta hypotheses consistent with innocence.

Luhrman's trying to overturn that now, and to do so he has to overturn that underlying factual finding that to the civil.

Standard, he raped Britney Higgins.

To overturn a factual finding on an appeal is really difficult because of the question being put to the court is basically asking it to reassess the evidence which the appeal judges haven't heard firsthand.

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.

That's right.

So the trial judge, Justice Lee, in reaching his decision on the truth's defense, had to make a really careful, detailed assessment of the evidence before him, including the testimony of Bruce Lehman and Britney Higgins. The judgment itself, it goes on for over three hundred 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 characterized Lherman as a persistent, self interested liar and said his attachment.

To the truth is a tenuous one.

He also had issues with Britney 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 will 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.

Coming up after the break, how long can this case continue through the courts? And Bruce Lyman, 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.

For a long time, and I mean not eight to ten 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 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.

There was a bombshell in Craig McLaughlin's defamation trial today, the actor dropping the case against nine newspapers and the ABC.

The Craig McLoughlin 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 inviscerrating cross examination by the defense 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.

It was Australia's one time Father of the Year who found himself falling from hero to zero amid headlines like this.

Murder war criminal war hero to zero.

The Ben Robert Smith case was probably another example more recently of a major victory for the press was a defamation case about a murder allegation and war crimes being committed in Afghanistan. The truth defense was the basis the success there, and so a bit like Lherman, it operated as a quasi criminal trial conducted to the civil standard.

So you know, there's balance to all of it, I think.

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

Look, any civil case like this can run the full course of the appeal framework in Australia. So if Lherman 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 it's squanted, 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 Lerman and Ten in this case.

That could easily take 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 in 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 traumatization.

Yet to gain, 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?

Though 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's brought to light some really important issues for the Australian judicial system, things like how does our criminal justice system treat rape victim survivors?

Does consent me? 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 and balance that's involved in defamation proceedings and the propensity of powerful white men to use them to silence their critics.

Do you think that watching what's happened to Britney 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 outline a realistic scenario of what could happen if they do talk to the media.

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 perfet trader. They can be asked to give evidence to support the news publishers truth defense.

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.

Hannah, thank you so much for your time.

Thank you. Ruby.

You can read Hannah Marshall's analysis the Laman case in a Saturday paper this weekend. Also in the news today. Combating the influence of so called alpha male influences 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

I'm Ruby Jones. This is seven am. See you tomorrow.