WEBVTT - 'Australia’s most hated man': Inside the Bruce Lehrmann appeal 0:00:01.280 --> 0:00:03.600 From Schwartz Media. I'm Ruby Jones. 0:00:04.040 --> 0:00:13.120 This is seven Am. Bruce Lamon is arguably Australia's most 0:00:13.280 --> 0:00:17.000 hated man. That's according to his lawyer. She's been in 0:00:17.040 --> 0:00:19.680 court this week trying to make the case that Lamon 0:00:19.760 --> 0:00:22.720 shouldn't have to pay two million dollars to Channel ten 0:00:22.960 --> 0:00:26.240 until he's had the chance to appeal his failed defamation case. 0:00:26.920 --> 0:00:29.680 At the same time, Channel ten are arguing that Laman 0:00:29.680 --> 0:00:32.839 should have to front up two hundred thousand dollars in 0:00:32.920 --> 0:00:35.839 order to have the right to appeal at all. Today, 0:00:36.159 --> 0:00:39.760 defamation lawyer at Good Company Law, Hannah Marshall on Bruce 0:00:39.800 --> 0:00:43.239 Lammon's chance of appeal and what that means for Britney Higgins. 0:00:46.960 --> 0:01:00.880 It's Thursday, October seventeen, So Hannah. This week Bruce us Lahmann, 0:01:01.040 --> 0:01:05.759 former political staffer, accused rapist, was described in court as 0:01:05.959 --> 0:01:11.080 Australia's most hated man. So tell me about his situation 0:01:11.240 --> 0:01:14.120 right now? Where does he find himself? I think that 0:01:14.959 --> 0:01:15.679 Bruce Lherman. 0:01:16.000 --> 0:01:19.800 Right now, he's been labeled a rapist, judged on the 0:01:19.840 --> 0:01:24.600 civil standard to have sexually assaulted Brittany Higgins in the 0:01:24.600 --> 0:01:28.039 defamation case that he brought. He's lost his job as 0:01:28.040 --> 0:01:31.240 a result of everything that's happened. He's im the cuneus. 0:01:31.480 --> 0:01:34.000 He's out of money, and his own barrister says that 0:01:34.319 --> 0:01:36.160 the only way he can make money now is by 0:01:36.160 --> 0:01:40.080 doing something silly like going on only fans and so 0:01:41.120 --> 0:01:44.160 he wants to appeal the decision. He wants to see 0:01:44.200 --> 0:01:47.040 if he can rectify some of the damage to his 0:01:47.080 --> 0:01:49.840 reputation and improve his financial prospects. 0:01:50.040 --> 0:01:52.640 Okay, So he wants to appeal that decision that was 0:01:52.680 --> 0:01:55.840 made earlier this year when this judge found that he 0:01:55.920 --> 0:01:59.120 was not defamed by Channel ten because on the balance 0:01:59.120 --> 0:02:03.040 of probabilities he did rate Britney Higgins. So how is 0:02:03.200 --> 0:02:04.280 that going for him? 0:02:04.680 --> 0:02:07.520 So the appeal has reached a stage now where each 0:02:07.560 --> 0:02:11.359 of the parties have brought a different application, the ultimate 0:02:11.400 --> 0:02:14.960 effect of which is to decide whether the fact that 0:02:15.040 --> 0:02:17.920 Lherman has run out of money should stop the appeal 0:02:17.960 --> 0:02:21.560 from going ahead. So on Lherman's side, he's brought an 0:02:21.600 --> 0:02:27.359 application asking the court to prevent Channel ten from enforcing 0:02:27.400 --> 0:02:29.880 the costs order already made in its favor in the 0:02:29.880 --> 0:02:33.080 main defamation case. They've been awarded two million dollars in 0:02:33.160 --> 0:02:37.480 costs and Lherman wants them to be stopped from trying 0:02:37.520 --> 0:02:40.440 to get that money or make him bankrupt until after 0:02:40.480 --> 0:02:45.120 the appeals determined. On the other side, Channel ten has 0:02:45.600 --> 0:02:48.880 brought an application for what's called security for costs. They 0:02:48.919 --> 0:02:52.680 want Lherman to have to pay two hundred thousand dollars 0:02:53.000 --> 0:02:57.680 upfront to cover their legal costs if they win and 0:02:57.720 --> 0:03:02.080 defend the appeal. And so they say that the chances 0:03:02.080 --> 0:03:05.480 of him winning the appeal are weak at best. They 0:03:05.520 --> 0:03:09.560 say there's no public interest served by the appeal going ahead, 0:03:10.080 --> 0:03:12.839 and they say that it's common ground that Lehman won't 0:03:12.840 --> 0:03:15.320 be able to pay the costs of the appeal if 0:03:15.360 --> 0:03:15.880 they do win. 0:03:16.120 --> 0:03:16.919 So they say that for. 0:03:16.880 --> 0:03:18.800 All those reasons, he should have to put some money 0:03:18.840 --> 0:03:22.600 aside now for their protection before he can keep going. 0:03:23.080 --> 0:03:25.239 Right, Okay, So at this moment in time that it's 0:03:25.320 --> 0:03:29.720 not clear whether Leerman will even be allowed to appeal 0:03:29.760 --> 0:03:32.680 that decision unless he can pay, unless he can find 0:03:32.840 --> 0:03:34.040 two hundred thousand. 0:03:33.760 --> 0:03:37.240 Dollars, that's right, And so you know he's in this 0:03:37.280 --> 0:03:41.200 situation where his reputation is in tatters. You know, you'd 0:03:41.240 --> 0:03:44.160 be hard pressed to find a person who has a 0:03:44.160 --> 0:03:48.040 worse reputation. At this point most of Australia probably sees 0:03:48.080 --> 0:03:48.840 him as a villain. 0:03:49.240 --> 0:03:52.720 And you know, with that in mind, you might. 0:03:52.600 --> 0:03:55.920 Frame the question before the court right now as does 0:03:56.040 --> 0:03:58.640 Lherman deserve the right to an appeal? 0:03:59.440 --> 0:04:02.160 But strictly that's not the question that the court has 0:04:02.200 --> 0:04:02.720 to answer. 0:04:03.160 --> 0:04:06.320 You know that there's an automatic right of appeal which 0:04:06.480 --> 0:04:12.200 follows a defamation decision, and once you take Lherman out 0:04:12.200 --> 0:04:14.960 of the equation, you know what the court's looking at 0:04:15.000 --> 0:04:18.400 is a slightly different question, and it is should anyone 0:04:18.839 --> 0:04:23.760 lose their appeal right against a really serious defamation decision 0:04:24.240 --> 0:04:26.839 because they've run out of money? And that's a question 0:04:26.920 --> 0:04:30.679 of principle which has broader ramifications for the justice system. 0:04:31.680 --> 0:04:35.479 So what is likely to happen next in this case? Hunnah. 0:04:35.880 --> 0:04:38.960 So if it goes ahead with the appeal, he's raised 0:04:38.960 --> 0:04:42.200 several grounds which will be brought before the court. The 0:04:42.240 --> 0:04:45.440 main argument coming out of those grounds is whether he 0:04:45.480 --> 0:04:49.359 can overturn the finding of the truth defense. Justice Michael 0:04:49.440 --> 0:04:53.200 Lee found that there was a substantial truth in the 0:04:53.520 --> 0:04:57.800 publications in which Britney Higgins made her disclosures, and that's 0:04:57.839 --> 0:04:59.680 a complete defense to the defamation action. 0:05:00.080 --> 0:05:03.719 Mister Luhrmann raped Miss Higgins. I hasten to stress this 0:05:03.839 --> 0:05:06.400 is a finding on the balance of probabilities. This finding 0:05:06.440 --> 0:05:09.680 should not be misconstrued or mischaracterized as a finding that 0:05:09.720 --> 0:05:14.040 I can exclude all recenta hypotheses consistent with innocence. 0:05:14.320 --> 0:05:17.160 Luhrman's trying to overturn that now, and to do so 0:05:17.360 --> 0:05:21.640 he has to overturn that underlying factual finding that to 0:05:21.680 --> 0:05:22.320 the civil. 0:05:22.120 --> 0:05:23.960 Standard, he raped Britney Higgins. 0:05:24.480 --> 0:05:29.239 To overturn a factual finding on an appeal is really 0:05:29.240 --> 0:05:32.560 difficult because of the question being put to the court 0:05:32.680 --> 0:05:35.800 is basically asking it to reassess the evidence which the 0:05:35.839 --> 0:05:37.960 appeal judges haven't heard firsthand. 0:05:38.360 --> 0:05:41.360 Okay, So even if he is able to go ahead 0:05:41.400 --> 0:05:43.920 with this appeal, it seems like it would be quite 0:05:43.920 --> 0:05:46.600 a difficult case that he would have to make. 0:05:47.040 --> 0:05:47.560 That's right. 0:05:47.880 --> 0:05:52.239 So the trial judge, Justice Lee, in reaching his decision 0:05:52.240 --> 0:05:55.120 on the truth's defense, had to make a really careful, 0:05:55.400 --> 0:06:00.640 detailed assessment of the evidence before him, including the testimony 0:06:00.800 --> 0:06:04.680 of Bruce Lehman and Britney Higgins. The judgment itself, it 0:06:04.720 --> 0:06:06.200 goes on for over three hundred pages. 0:06:06.400 --> 0:06:08.840 It's really deliberate and. 0:06:08.960 --> 0:06:12.479 Detailed in that analysis, I think having regard to the 0:06:12.520 --> 0:06:15.200 importance of the decisions which he has to make. You know, 0:06:15.279 --> 0:06:19.880 he characterized Lherman as a persistent, self interested liar and 0:06:19.920 --> 0:06:21.279 said his attachment. 0:06:20.839 --> 0:06:22.520 To the truth is a tenuous one. 0:06:22.960 --> 0:06:26.840 He also had issues with Britney higgins credibility, but for 0:06:26.880 --> 0:06:30.920 the most part, he connected those to the being consequences 0:06:30.960 --> 0:06:33.280 of the trauma that she suffered and did see a 0:06:33.320 --> 0:06:37.560 common thread in her evidence. So the appeal judges will 0:06:37.640 --> 0:06:41.440 generally defer to the trial judge's assessment. You know, they 0:06:41.480 --> 0:06:44.760 haven't had the benefit of observing the witnesses and seeing 0:06:44.800 --> 0:06:47.960 how they react to cross examination, seeing their body languages, 0:06:47.960 --> 0:06:50.200 and all those other things that happen in the courtroom 0:06:50.839 --> 0:06:52.159 as the case plays out. 0:06:52.600 --> 0:06:55.119 You know, unless there's a really obvious error. 0:06:55.680 --> 0:07:00.920 For those reasons, appeal judges generally won't overturn factual findings. So, 0:07:01.480 --> 0:07:03.760 you know, his position's pretty bad either way. 0:07:06.880 --> 0:07:09.800 Coming up after the break, how long can this case 0:07:09.960 --> 0:07:21.240 continue through the courts? And Bruce Lyman, he's one of 0:07:21.320 --> 0:07:24.640 several men who have been accused of assault or misconduct 0:07:24.720 --> 0:07:27.559 in the years since me Too, who has then gone 0:07:27.560 --> 0:07:31.400 on to sue a media company for defamation for their 0:07:31.440 --> 0:07:33.920 reporting of that. If we were to take a step 0:07:33.920 --> 0:07:36.480 back and have a look at the last few years, 0:07:36.520 --> 0:07:40.200 do you think that this is happening to the extent 0:07:40.280 --> 0:07:42.720 where you might call it a trend. 0:07:44.160 --> 0:07:47.000 For a long time, and I mean not eight to 0:07:47.080 --> 0:07:50.000 ten years, kind of hundreds of years, defamation cases have 0:07:50.080 --> 0:07:53.560 been used as a tool of powerful white men to 0:07:53.680 --> 0:07:58.320 silence criticism against them. And so the Me Too movement 0:07:58.720 --> 0:08:03.600 was in time which kind of was well suited to 0:08:03.720 --> 0:08:09.880 that particular narrative. There was this period where there were 0:08:09.920 --> 0:08:12.280 a ton of big wins for plaintiffs, and now we've 0:08:12.320 --> 0:08:15.720 seen things start to kind of shift back in the 0:08:15.720 --> 0:08:18.600 opposite direction, so there's been a real swing. 0:08:19.080 --> 0:08:22.400 There was a bombshell in Craig McLaughlin's defamation trial today, 0:08:22.520 --> 0:08:26.560 the actor dropping the case against nine newspapers and the ABC. 0:08:27.240 --> 0:08:30.560 The Craig McLoughlin case in the Me Too movement was 0:08:31.040 --> 0:08:35.360 a good example of that, where the case arose from 0:08:35.520 --> 0:08:39.880 allegations of sexual harassment during the course of the staging 0:08:39.880 --> 0:08:40.839 of the Rocky Horror. 0:08:40.600 --> 0:08:43.160 Picture Show production, and. 0:08:43.320 --> 0:08:45.880 He brought claims against the news publishers and also one 0:08:45.920 --> 0:08:48.120 of the women who had made the allegations. 0:08:48.120 --> 0:08:50.839 In the first place for defamation. 0:08:51.600 --> 0:08:55.439 He quite spectacularly dropped his case after I think ten 0:08:55.520 --> 0:09:00.719 days of hearing and a fairly inviscerrating cross examination by 0:09:00.760 --> 0:09:03.600 the defense barrister, you know, and that was hailed as 0:09:03.600 --> 0:09:07.680 a real victory for both victim survivors who were brave 0:09:07.800 --> 0:09:11.000 enough to share their stories and the press who reported them. 0:09:11.280 --> 0:09:14.160 It was Australia's one time Father of the Year who 0:09:14.200 --> 0:09:18.080 found himself falling from hero to zero amid headlines like this. 0:09:18.640 --> 0:09:22.600 Murder war criminal war hero to zero. 0:09:22.920 --> 0:09:26.160 The Ben Robert Smith case was probably another example more 0:09:26.160 --> 0:09:29.360 recently of a major victory for the press was a 0:09:29.360 --> 0:09:32.640 defamation case about a murder allegation and war crimes being 0:09:32.640 --> 0:09:36.360 committed in Afghanistan. The truth defense was the basis the 0:09:36.400 --> 0:09:40.079 success there, and so a bit like Lherman, it operated 0:09:40.080 --> 0:09:43.840 as a quasi criminal trial conducted to the civil standard. 0:09:44.400 --> 0:09:47.600 And you know, finally, although it was also hailed as 0:09:47.640 --> 0:09:50.920 a huge victory for the media, you can't discount the 0:09:51.640 --> 0:09:56.000 immense time and expense that was involved in defending the 0:09:56.080 --> 0:09:57.559 stories and the allegations. 0:09:57.760 --> 0:10:00.600 So you know, there's balance to all of it, I think. 0:10:01.360 --> 0:10:05.000 And it's coming up to four years I believe since 0:10:05.240 --> 0:10:09.480 Channel ten first broadcast its interview with Brittany Higgins. So 0:10:10.280 --> 0:10:13.280 is there a point at which there will be an 0:10:13.360 --> 0:10:17.240 end insight in terms of this being able to proceed 0:10:17.280 --> 0:10:18.880 through the courts any further. 0:10:19.640 --> 0:10:23.000 Look, any civil case like this can run the full 0:10:23.080 --> 0:10:27.440 course of the appeal framework in Australia. So if Lherman 0:10:27.600 --> 0:10:30.480 or Ten is unhappy with the finding on this appeal, 0:10:30.640 --> 0:10:33.400 assuming it does go ahead, they would then have to 0:10:33.440 --> 0:10:35.760 ask for leave to go to the High Court, and 0:10:35.760 --> 0:10:38.160 then if it's squanted, they get a full court appeal 0:10:38.160 --> 0:10:40.840 in the High Court. So there's still a number of steps, 0:10:40.880 --> 0:10:44.120 but there's no reason on their face, aside from this 0:10:44.280 --> 0:10:47.360 money question that those steps wouldn't be available to Lerman 0:10:47.440 --> 0:10:48.440 and Ten in this case. 0:10:49.080 --> 0:10:52.000 That could easily take another year or. 0:10:52.040 --> 0:10:55.400 Two depending on court timetables and things like that. 0:10:56.120 --> 0:10:56.360 You know. 0:10:56.559 --> 0:10:59.320 On the plus side for Brittany Higgins, she won't have 0:10:59.400 --> 0:11:02.440 to be in further the court won't be taking new evidence, 0:11:03.040 --> 0:11:07.960 but of course the publicity will remain intense and the 0:11:08.000 --> 0:11:10.840 court will still have to have regard to the testimony 0:11:10.840 --> 0:11:13.960 that she's already given, so that of itself will involve 0:11:13.960 --> 0:11:15.400 a degree of re traumatization. 0:11:15.520 --> 0:11:20.200 Yet to gain, And as this contest over the public 0:11:20.360 --> 0:11:24.520 version of events around this case has played out, the 0:11:24.600 --> 0:11:27.720 legal system has really been tested in many different ways 0:11:28.320 --> 0:11:31.200 as that has happened. What do you think has been 0:11:31.480 --> 0:11:34.600 revealed about the way the legal system functions? 0:11:35.200 --> 0:11:39.719 Though it's such a long and sad case, the way 0:11:39.760 --> 0:11:44.880 it's all played out and between the criminal proceedings this 0:11:45.000 --> 0:11:48.840 defamation case, the other defamation case, other criminal proceedings, it's 0:11:48.840 --> 0:11:52.319 brought to light some really important issues for the Australian 0:11:52.480 --> 0:11:56.679 judicial system, things like how does our criminal justice system 0:11:57.120 --> 0:11:59.119 treat rape victim survivors? 0:12:00.080 --> 0:12:03.720 Does consent me? And what's wrong with consent laws? What's 0:12:03.760 --> 0:12:04.520 the role of the. 0:12:04.440 --> 0:12:08.000 Press in publishing these kinds of disclosures and how do 0:12:08.040 --> 0:12:12.360 they do it responsibly? And the power and balance that's 0:12:12.400 --> 0:12:17.199 involved in defamation proceedings and the propensity of powerful white 0:12:17.240 --> 0:12:20.280 men to use them to silence their critics. 0:12:21.360 --> 0:12:24.200 Do you think that watching what's happened to Britney Higgins 0:12:24.760 --> 0:12:29.640 has influenced the way that people think about talking publicly 0:12:29.679 --> 0:12:32.040 about things that have happened to them, and perhaps even 0:12:32.280 --> 0:12:35.839 the advice that they might be given in terms of 0:12:36.080 --> 0:12:39.959 being able to outline a realistic scenario of what could 0:12:39.960 --> 0:12:41.679 happen if they do talk to the media. 0:12:42.320 --> 0:12:45.320 So I've had to advise a number of women about 0:12:45.640 --> 0:12:49.040 the legal risk in making these kinds of disclosures, and 0:12:50.520 --> 0:12:54.400 I have to tell them that to tell their story 0:12:54.480 --> 0:12:59.520 publicly comes with really substantial legal risk. They can be 0:12:59.640 --> 0:13:05.560 subject to prosecution themselves for defamation by their perfet trader. 0:13:06.160 --> 0:13:08.880 They can be asked to give evidence to support the 0:13:08.920 --> 0:13:10.439 news publishers truth defense. 0:13:10.960 --> 0:13:14.480 They can be subject to cross examination. 0:13:14.520 --> 0:13:18.200 And no matter how much I believe their story, you know, 0:13:18.240 --> 0:13:21.400 you have to be really frank that the judge might 0:13:21.440 --> 0:13:24.680 not prefer their version of events. You know, the evidence 0:13:24.720 --> 0:13:29.320 in these cases is often highly contested, and there's been 0:13:29.360 --> 0:13:32.840 a real patchwork of defamation decisions where the judges have 0:13:33.480 --> 0:13:37.800 made different findings about you know, who is to be believed. 0:13:37.840 --> 0:13:42.040 And so you can't give a person very much comfort 0:13:42.800 --> 0:13:45.200 that the legal system will support them or protect them. 0:13:45.400 --> 0:13:48.240 In fact, it's the opposite. 0:13:48.840 --> 0:13:50.920 Hannah, thank you so much for your time. 0:13:51.360 --> 0:13:56.800 Thank you. Ruby. 0:13:57.840 --> 0:14:00.959 You can read Hannah Marshall's analysis the Laman case in 0:14:01.000 --> 0:14:18.440 a Saturday paper this weekend. Also in the news today. 0:14:19.040 --> 0:14:22.640 Combating the influence of so called alpha male influences will 0:14:22.680 --> 0:14:26.680 be the focus of an expanded education program in Victorian schools. 0:14:27.360 --> 0:14:31.520 The state Education Minister announced that their Respectful Relationships program 0:14:31.800 --> 0:14:34.400 will take into account the popularity of figures such as 0:14:34.440 --> 0:14:37.840 Andrew Tate, who promote misogyny and have a large following 0:14:37.920 --> 0:14:42.520 among teenage boys. The program, currently taught in two thousand 0:14:42.600 --> 0:14:46.400 government schools, will also be expanded to help students identify 0:14:46.520 --> 0:14:52.000 coercive control and fresh filings have revealed that Elon Musk 0:14:52.080 --> 0:14:54.680 has donated almost double the amount of money to Donald 0:14:54.720 --> 0:14:59.520 Trump's election bid than originally thought. Campaign finance documents made 0:14:59.520 --> 0:15:02.560 public show that Musk has given seventy five million US 0:15:02.640 --> 0:15:05.680 dollars to Trump by his American Pack. The pack is 0:15:05.720 --> 0:15:09.440 focused on swaying voters in swing states such as Pennsylvania, 0:15:09.720 --> 0:15:12.920 where Musk recently appeared on stage at a rally with Trump. 0:15:13.720 --> 0:15:30.120 I'm Ruby Jones. This is seven am. See you tomorrow.