Home » The omnishambles built on rape and ‘short-on-facts’ theory

The omnishambles built on rape and ‘short-on-facts’ theory

The finding of rape, delivered in a high-profile defamation case against Network 10 and Wilkinson over the initial story, means that although Lehrmann will probably never face jail for his actions, he can and will be branded a rapist.

Yet, that is not the end of the story, for Lehrmann or indeed for almost every single person with even the slightest connection to the sorry saga.

Lives, careers and reputations were ruined. A government fell as the issue metastasised. Questions were raised about how sexual assault allegations were handled by the legal system and dark clouds descended over how the media handled such cases and conducted itself more generally.

Perhaps never in Australia’s history has one allegation sparked such an extensive, expensive and, oftentimes, downright bizarre series of threats, claims, counterclaims and courtroom battles that span the continent.

To again adopt the words of Lee: “Given its unexpected detours and the collateral damage it has occasioned, it might be more fitting to describe it as an omnishambles.”

ACT government / DPP v Lehrmann

After initially deciding not to pursue Lehrmann, Higgins, on February 15, 2021, contacted ACT Police to reopen her complaint against him.

A month later, Lehrmann was interviewed by police and later the same year he was charged and pleaded not guilty in the ACT Supreme Court to one count of sexual intercourse without consent, often simply known as rape.

On February 8, 2022, facing a political firestorm over the culture that existed within Parliament House and more broadly in federal politics, former prime minister Scott Morrison issued an apology in the House of Representatives “to Ms Higgins for the terrible things that took place here”.

“But I am sorry for far more than that, for all of those who came before Ms Higgins and endured the same,” Morrison said.

Higgins was in the public gallery.

The speech was not checked by the government’s lawyers and later in the week, Lehrmann’s lawyers said they would seek a stay on the criminal trial, citing Morrison’s “extraordinarily prejudicial” comments.

Ex federal staffer Brittany Higgins in the public gallery for Scott Morrison’s apology.  

ACT Supreme Court Justice Lucy McCallum rejected the stay application in April but granted a second request in June after a controversial speech made by Wilkinson at the Logies just a week out from the trial.

In the end, Lehrmann’s trial began on October 4. Jury deliberations began on October 19, and the trial was abandoned on October 27.

In a press conference outside the ACT Supreme Court afterwards, Higgins criticised the “asymmetrical” way the criminal justice system dealt with complainants. Lehrmann’s lawyers referred her to the AFP for contempt.

On December 2, Drumgold announced that the second trial would not proceed because of Higgins’ mental health.

Drumgold v ACT Police

Following the trial but a month before dropping the case against Lehrmann, Drumgold hit the nuclear button on his relationship with the police.

In a letter to former ACT Police chief Neil Gaughan, the then DPP said he held “serious concerns” over “what he perceived “as some quite clear investigator interference in the criminal justice process”.

Reflecting the broader narrative, Drumgold claimed “political interference”.

He alleged that “key AFP members have had a strong desire for this matter not to proceed to charge”, and he went on to ask for Gaughan’s support for a full inquiry after the trial into the conduct of police investigators.

ACT DPP Shane Drumgold called for a public inquiry that backfired extraordinarily.  Rhett Wyman

A month later, The Australian published a diary note made by the ACT Police manager of criminal investigations, Detective Superintendent Scott Moller, in which he claimed there was “insufficient evidence to proceed” but he was unable to stop it due to “too much political interference”.

Less than a week after that, Drumgold’s letter was published in The Guardian, which obtained it through a freedom of information request.

The federal police union referred Drumgold to the ACT Ombudsman for a possible breach of FOI laws because ACT Police had not been consulted on the release. Drumgold later apologised.

The conduct of ACT Police was also referred to the Australian Commission for Law Enforcement Integrity, now a division of the National Anti-Corruption Commission. It is not clear who made the referral.

On December 21, 2022, the ACT government announced that it had appointed Queensland barrister Walter Sofronoff, KC, to conduct an inquiry.

Sofronoff v Drumgold

By the end of the first day of the Sofronoff Board of Inquiry on May 8, 2023, it was clear Drumgold’s tenure as DPP would soon come to an end.

Sofronoff’s final report – formally released on August 7, 2023 but splashed on the front page of The Australian three days earlier – found Drumgold’s belief that the police were interfering and seeking to sabotage the prosecution’s case was “baseless” and “came to infect his perception of investigators’ actions during the investigation and at the trial”.

He went on to say: “Drumgold advanced nothing resembling evidence to support the serious allegations of impropriety that he levelled against the police” and the letter “showed a lack of objectivity on his part.”

He also found Drumgold “knowingly lied to the Chief Justice” when the DPP indicated a meeting note showing he warned Wilkinson against the Logies speech was made contemporaneously when it was added days after the meeting by himself, and his junior Skye Jerome had a different recollection.

Other findings included that Drumgold “preyed on” inexperienced prosecutors, and acted in a way that was “grossly unethical”, though it was appropriate for the ACT’s top criminal lawyer to pursue the case to trial.

Following the report’s publication, Drumgold took leave and never returned.

Walter Sofronoff, KC’s, judicial inquiry was found to be infected by bias. Bradley Kanaris

Drumgold v Sofronoff

That was not the end of the story for either Drumgold or Sofronoff.

Sofronoff’s decision to give a copy of the final report to a columnist from The Australian, Janet Albrechtsen, and the ABC’s Elizabeth Byrne (before even giving it to the government) sparked fury from the Territory’s chief minister.

It also promoted Drumgold to seek a judicial review of the findings in a bid to have them overturned, a step that could salvage his career.

It was revealed in the subsequent judicial review that there were 273 phone interactions – calls, texts and emails – over seven months between Sofronoff and Albrechtsen.

Acting Supreme Court judge Stephen Kaye, who oversaw the review, said the “private and, to some extent secretive, nature of the communications that took place between Mr Sofronoff and Ms Albrechtsen” were of concern,

He ruled the inquiry was tainted by apprehended bias against Drumgold, and found a “fair-minded observer” would conclude that the head of the inquiry had been “influenced” by Albrechtsen’s negative views of Drumgold.

The former DPP failed to establish seven of the eight arguments pursued on the grounds of legal unreasonableness, but Kaye did rule the finding he acted unethically in his questioning of former Coalition senator Linda Reynolds – who was Higgins’ and Lehrmann’s boss at the time of the rape – during Lehrmann’s criminal trial was unreasonable. He also found Drumgold was not afforded natural justice in relation to other findings.

Kaye ordered the ACT government to pay Drumgold’s costs, and the latter is now lobbying the ACT to have the findings of the report overturned in full.

ACT Integrity Commission v Sofronoff

On April 5, 2024, the ACT Integrity Commission said it had received and was assessing corruption allegations regarding Sofronoff. At the heart of the complaint were his dealings with journalists during and after the inquiry.

“Given the extraordinary and ongoing public discourse about the conduct of the Board of Inquiry and the recent judgment in the Supreme Court in Drumgold v Board of Inquiry … I have determined that it is in the public interest to disclose that the commission is assessing whether the issues call for investigation,” Integrity Commissioner Michael Adams, KC, said.

John McMillan, former commissioner for the Australian Commission for Law Enforcement Integrity, was appointed as an acting integrity commissioner to oversee the assessment of the complaint.

ACT Police v ACT government / Drumgold

Six police officers – Michael Chew, Scott Moller, Marcus Boorman, Robert Rose, Trent Madders and Emma Frizzell – involved in the Lehrmann case and who received generally favourable comments in the Sofronoff inquiry sought to have the findings maintained in the subsequent judicial review.

It also came to light during interlocutory proceedings in December 2023 that five of the officers served Drumgold and the ACT government with a defamation concerns notice, a precursor to launching a defamation case.

At the heart of the complaint are the allegations made in the letter that was made public by the Guardian and in particular the allegation that the officers engaged in “a very clear campaign to pressure” him not to prosecute.

One of the AFP officers told The Australian the letter had ­“destroyed careers and destroyed people’s lives”.

“When you’re in a profession where integrity is ­pivotal, if you lose your integrity, if it’s suggested that you are corrupt, or you’re trying to pervert the course of justice or influence something, it just goes against the grain.”

A lawsuit has not been filed.

AFP senior office Neil Gaughan was on the receiving end of Drumgold’s untrue allegations.  Alex Ellinghausen

Lehrmann v ACT government / Drumgold

Another threat that was not followed was Lehrmann’s suggestion that he would launch legal proceedings against the ACT government after the damning findings about the way the criminal trial was conducted.

Following the release of the Sofronoff inquiry, Lehrmann said he had “instructed my solicitors to prepare a statement of claim against the state”.

“I’ve got lawyers that need to be paid, people who have supported me, like my mum and uncle, who need to be supported,” he said. “I’m not interested in becoming a millionaire, but I do want to perhaps get on with my life.”

Reynolds v ACT government / Drumgold

But while no lawsuit was filed by Lehrmann, one was launched by former defence minister Linda Reynolds – who was Higgins’ and Lehrmann’s boss in 2019 – over claims made about her in Drumgold’s letter to ACT Police that was later released to the media.

In the document, the then DPP accused Reynolds of “disturbing” conduct including giving contrary evidence to her chief of staff, directly soliciting transcripts of other evidence she should not have access to, and organising for her partner to attend court for the entire trial.

He later withdrew all the allegations during the Sofronoff inquiry, which found them to be baseless, and the ACT government settled with Reynolds for $90,000 – comprising $70,000 in damages and $20,000 for legal fees – and issued an apology.

“The territory has accepted that allegations about Senator Reynolds made by the former DPP were found by the board of inquiry to be defamatory,” the Territory’s Attorney-General Shane Rattenbury said.

Reynolds v Higgins & Sharaz

Reynolds also launched two separate defamation proceedings against Higgins and her fiancé, former press gallery journalist David Sharaz, over posts each made on social media.

The former Coalition minister filed her suit against Higgins in August last year over an Instagram post on July 4 and another on Twitter on July 20, which she said had defamed her. The statement of claim also said Higgins’ comments breached a previous settlement and release signed in March 2021

The claim against Sharaz relates to two tweets in 2022.

The matters, which were filed before the Supreme Court of Western Australia where Reynolds lives, have been beset by delays and procedural questions about whether they should proceed together.

It was reported in January that Reynolds had sought advice on how to freeze the assets of Higgins, who moved to France in late 2023. In January, Justice Marcus Solomon implored the parties to settle without going to trial.

Following a long mediation session on March 5, for which Higgins and Sharaz returned to Australia, the former was hospitalised. The matter is set to return to court on May 24.

David Sharaz, Brittany Higgins and Linda Reynolds arrive at court in Perth for mediation in their defamation row. Trevor Collens

Reynolds v HarperCollins / Patrick

In January 2023, Reynolds also launched a lawsuit against Aaron Patrick, a journalist for The Australian Financial Review, and his publisher HarperCollins over a book titled Ego, which the former minister alleged made defamatory statements about her response to Higgins’ allegations of rape. It was later reported the matter had been confidentially settled.

Higgins v Reynolds

Shortly after the initial rape allegations were aired in February 2021, it was reported that Reynolds called Higgins a “lying cow” in an open-plan office in Parliament House. The allegation prompted a defamation threat by Higgins.

The matter was settled when Reynolds apologised. Higgins later said any financial settlement from the confidential matter would be donated.

Lehrmann v the ABC

On February 9, 2022, a little short of a year after airing her allegation against Lehrmann, Higgins addressed the National Press Club in Canberra with 2021 Australian of the year Grace Tame.

In an address broadcast live by the ABC and published on its YouTube page, Higgins said: “I was raped on a couch in what I thought was the safest and most secure building in Australia.”

Though she did not name Lehrmann, his identity was by this stage public and he sued the ABC.

The matter was scheduled for hearing in the Federal Court with similar matters brought against Network 10 and News.com.au; but on the morning of the trial’s scheduled start date, the ABC’s lawyers revealed the national broadcaster had settled the case for $150,000, including $143,000 for costs.

The ABC agreed to publish a statement on its corrections and clarifications page; not to reinstate the YouTube video, and to remove a Facebook video, but made no admission of liability.

Lisa Wilkinson outside the Federal Court after the judgment was delivered. Wolter Peeters

Lehrmann v News.com.au

Lehrmann also sued News.com.au and Maiden over the initial 2021 story.

Similar to the ABC, News.com.au settled with Lehrmann, agreeing to pay $295,000 towards his legal costs without any admission of liability. It also agreed to add a correction at the bottom of the original story.

News.com.au notes that a criminal charge of sexual assault was brought against Mr Lehrmann and later dropped. News.com.au does not suggest that he was guilty of that charge,” part of the correction said.

Lehrmann v Network 10

“Mr Lehrmann raped Ms Higgins,” said line 620 of Lee’s judgment, delivering Network 10 and Wilkinson a clear legal victory.

He hastened to add this was to the requisite civil standard (the balance of probabilities), not the criminal standard (beyond reasonable doubt).

Lee’s assessments of the “dramatis personae” – the various people involved – yielded mixed results. He was excoriating of Lehrmann’s credibility, and Higgins was deemed an “unreliable historian”.

Yet, after Lehrmann, perhaps the most damaging assessment was saved for Network 10’s legal counsel Tasha Smithies, who signed off Wilkinson’s Logies speech that prompted the delay to Lehrmann’s criminal trial.

”There has been ample time for mature reflection and yet there is no recognition, even now, that the speech could have undermined the administration of justice and caused it to be disrupted,” Lee said.

“It is one thing to make a mistake, even a serious mistake – after all, to err is to be human.

“But I regret to say that the continuing lack of insight by Ms Smithies as to the inappropriateness of her conduct related to the speech reflects, in my view, a lack of proper appreciation of her professional obligations as a solicitor and her paramount duty to the court and the administration.”

Auerbach v Network 7 / Lehrmann

The cameo of former Network 7 Spotlight producer Taylor Auerbach cannot go without mention.

The brief appearance of the man tasked with wooing Lehrmann to give an interview on Seven’s Spotlight program was peculiar, and largely involved the revelation that he paid approximately $10,315 to Sensai Thai Massage, $401.83 for a round of golf at Barnbougle, Tasmania, and $361 for a steak.

Lee largely dismissed his contribution, which, quite aside from not being relevant to matters in issue, was motivated by “rancour” towards his former boss and employer. But it did spark a threat from Lehrmann to sue Auerbach, the former of whom claimed it was “untrue and bizarre”.

Former Seven network Spotlight producer Taylor Auerbach made a brief cameo. Dion Georgopoulos

Wilkinson v Network 10

Wilkinson’s concurrent legal spat with her employer is also worthy of note. Due to concerns about the nature of Network 10’s defence, Wilkinson chose to employ her own legal representation at a reported cost of about $700,000.

After the bombshell legal advice supporting Wilkinson’s Logies speech was revealed, Lee found it was reasonable for Wilkinson’s legal fees to be covered by Network 10.

Higgins v the Commonwealth of Australia

Amid the dozens of revelations out of the Network 10 defamation trial was the amount Higgins received to settle a workplace compensation claim she filed against the Commonwealth for breaching its duty of care to her.

A deed of settlement filed in the case showed Higgins was paid $2.4 million. This comprised $400,000 for hurt, distress and humiliation suffered by Higgins arising from alleged conduct during her employment; $1.48 million to cover lost earning capacity; $220,000 for medical expenses; $100,000 for past and future domestic assistance; and $245,000 for her legal costs.

The deed cited correspondence from Higgins’ lawyers in December 2021 identifying a range of potential legal claims. A year later, in December 2022, it was reported the case had been settled, but all details were confidential.

Before the case was settled, Reynolds claimed she was blocked by Attorney General Mark Dreyfus from participating in the mediations under threat of the Commonwealth no longer paying her legal bills. She lodged a complaint with the National Anti-Corruption Commission over concerns about the “unusually swift” mediation process and Dreyfus’ role in it.

The NACC does not disclose updates on specific referrals.

Supporters rally behind Brittany Higgins at the March4Justice protest in Canberra in March. Dominic Lorrimer

Higgins v the Morrison Government

The final issue, though not a legal stoush, was a battle nonetheless that involved “coordinated publicity” for political objectives.

In handing down his judgment on Monday, Lee noted that from the moment Higgins went public in 2021, “the cover-up component was promoted and recognised as the most important part of the narrative”.

At the heart of this was the claim that the Coalition, largely through the actions of Higgins’ then boss Reynolds and her then chief of staff, Fiona Brown, wanted to cover up the rape for political purposes.

This narrative took hold and was deployed to damaging effect.

When Higgins went public, the story struck at the heart of an issue that had been festering under the surface for decades; that many women working in politics had a similar story, and many more didn’t feel safe in the workplace.

But the suggestion of a cover-up went much further and caught then prime minister Morrison flat-footed.

A day after the allegation was aired, Morrison announced a review into workplace culture at Parliament House, but his reference to having made the decision after consulting his wife, Jenny, was roundly criticised.

His parliamentary apology to Higgins was also later viewed through the lens of conspiracy – that it was deliberate to stop or delay the criminal trial.

Yet, on Monday, Lee found in relation to the cover-up narrative “upon any fair review of the available material, the basis for such a grave allegation is infirm”.

“It is the only alleged cover-up of which I am aware where those said to be responsible for the covering up were almost insisting the complainant to go to the police,” he said, adding later in his judgment that “any suggestion that these matters are indicative of a cover-up forcing her not to pursue her complaint are devoid of merit”.

For the Morrison government, that finding is more than two years too late.