The risks and regrets of a defamation trial

Mistake indeed.

It is open to Lehrmann to appeal the judgement. That said, when a decision such as this is largely decided on an assessment of the truthfulness and credit of witnesses that appear before a judge in first instance, a court of appeal is often loathe to upset findings of fact.

Justice Lee surprised most of us by the positive finding that Lehrmann had in fact raped Higgins, albeit that the finding of fact was on the civil standard of proof – that is, on the balance of probabilities. That standard of proof is completely different to the criminal standard of proof, which is beyond reasonable doubt.

In the first instance, we are dealing with what is most probable. In criminal trials any reasonable doubt held by a juror pertaining to the guilt of the accused must result in a verdict of not guilty. Advised by his lawyers, Lehrmann knew that and still pressed on with his defamation action.

In doing so he joins a long line of people who have sued for defamation only to regret their actions, particularly when truth is pleaded as a defence.

The way that defamation laws work is set out in a statutory code called The Defamation Act. The same or similar Act was legislated in all Australian States and Territories in 2005 and 2006. That legislation took the old causes of action of libel and slander and created a uniform, codified system under which aggrieved people could sue for defamation. There are necessary elements to be proved by a plaintiff including, that the publication identified the plaintiff and of course that having done so, published something about the plaintiff that was false and thereby damaged the plaintiff’s reputation.

A variety of defences are available to defendants, often media companies, including publications that attract absolute privilege, such as in Parliament, or qualified privilege when frank and honest communication is needed, say at a board level.

Then there is the defence of fair comment which is often pleaded by the press, but the defence that results in the highest stakes game of all is the defence of truth. That what has been published, though identifying the plaintiff, and damaging the plaintiff’s reputation, is nonetheless permissible because it is true. Truth as a defence in defamation proceedings is a total defence.

When Ten pleaded truth as a defence, the stage was set for an epic battle between Lehrmann and Ten, presided over by Justice Lee of the Federal Court, who delivered his judgment on Monday.

When truth is pleaded as a defence, it is by definition necessary for the court to hear an account of everything said by the plaintiff to be false, and the defendant to be true. It is the ultimate defamation showdown.

He joins a long line of people who have sued for defamation only to regret their actions, particularly when truth is pleaded as a defence

A famous example of this was Oscar’s Wilde’s abortive attempt to sue the Marquess of Queensberry for asserting he was a homosexual, then criminalised conduct in England.

Just as with the Lehrmann action, truth was pleaded as the defence, and after three days of trial, with matters going badly for Wilde, his lawyers discontinued the case. But it was too late. Amongst his lovers was The Marquess’s son Lord Alfred Douglas, and Wilde was charged and convicted of gross indecency and sentenced to imprisonment. The catalyst for the whole disaster was his initial decision to sue for defamation.

In Australia, we have seen a number of high-profile people commence defamation proceedings only to discover they are caught “holding the tiger by the tail”. Actor Craig McLachlan sued The Sydney Morning Herald and the ABC. After ten days of trial and just before 11 women were about to start giving evidence against him, his action was withdrawn.

The truth of the allegations levelled at McLachlan by the Herald and ABC was in issue. As a result of the discontinuance of his action McLachlan faced costs ordered against him but there was no judgment and no findings of fact. Nonetheless, with the benefit of hindsight it would seem unlikely that McLachlan would have taken that route if faced with the same choice again.

Then there was the judgment in the case of Ben Roberts-Smith, who sued a brace of media outlets over allegations that he had engaged in alleged war crimes whilst serving in Afghanistan. Justice Besanko of the Federal Court found against the plaintiff, and his judgment is now appealed. The appeal has been heard and judgment is reserved.

As to the findings of fact of Justice Besanko, as with other recent high-profile cases, truth was an issue. The court found that the allegations that Roberts-Smith was involved in the killings of four unarmed Afghan prisoners was substantially true; a devastating blow to the reputation of the plaintiff, and fatal to his defamation action.

Given that the matter has been appealed, no conclusion should be drawn until the appeal court has spoken, particularly in view of the plaintiff’s consistent denial of the allegations. However, the court’s judgment raises similar considerations as to the wisdom of such high-wire legal actions.

What we know of matters like this is that as soon as truth is a defence it significantly ups the ante in defamation trials involving a person with a high public profile.

But a second consideration, as Lehrmann has learnt, is that as soon as a plaintiff places character in issue the whole of that person’s reputation and character becomes relevant. That is because what a judge might award in damages to a plaintiff turns very much on what that person’s reputation in the community is to begin with.

Even if he had won, the judge’s intimation regarding damages he would have awarded Lehrmann would hardly have been worth the effort of a protracted trial. The judge said: “If it had been necessary to assess damages in favour of Mr Lehrmann, the appropriate and rational relationship between the actual harm sustained and the damages awarded would lead to total damages of $20,000”.

The final kicker for Lehrmann was the finding that he gave false evidence to the court, by asserting under oath that he had not given confidential evidence relevant to the then criminal charge of rape laid against Lehrmann to Channel Seven, when the judge found that he had.

Just as with the Wilde case, watch this space, because giving false evidence may amount to a criminal offence of perjury, which carries a maximum sentence of imprisonment.

How did the media fare?

Ten did not come off scot-free from Justice Lee’s judgment, and neither did Lisa Wilkinson, who in effect caused the delay of the criminal trial against Lehrmann by her inopportune speech at the Logies, described by the judge as “grossly improper and unjustifiable”. Ten was also criticised for letting Wilkinson down. But at the end of the day, the defence of truth got up, and that was the main game.

It is doubtful though for this reason: To publish serious allegations against a person the media engage in a great deal of fact checking. Newspapers and the media can get it wrong, but if the main thrust of an allegation is true, they will usually publish what is regarded as in the public interest.

The media may be criticised for sensationalism, for bias, for hurried journalism, and for inaccuracy, given the pace of an ever-tightening news cycle, but it is also their right to publish what is true, as it is in our interest to learn of it, even if it takes a court to confirm it. But the media remains sobered because whilst there are wins, there are also losses.

Geoffrey Rush succeeded in his defamation action against Nationwide News and its newspaper the Daily Telegraph and received substantial damages. Erin Molan sued the same publisher and won her case in 2022. Heston Russell recently succeeded in his action against the ABC, also heard by Justice Lee.

In the Lehrmann matter, the judge put pay to any thesis promulgated by  Ten that a political conspiracy existed to silence Higgins, saying that “trying to particularise it during the evidence was like trying to grab a column of smoke”. Ten should not therefore be crowing too shrilly about its win.

However, when matters are important for the public to know, about the character of public people, about our methods of governance, and about matters that may touch on the fabric of our nation and our national identity, we must back our media in fearless and unbiased reporting.

There are lessons for all of us from the Lehrmann trial, not least the parties for their conduct. However, the greatest lesson is of the importance of freedom of expression, even if the media don’t get it right every time.

As to the role of the law, it is the umpire. It exists both to facilitate freedom of expression and determine what is “an issue of public interest”, as well as to protect our rights as citizens if we are genuinely defamed. That said, as Sir John Falstaff said in Shakespeare’s Henry IV: “The better part of valour is discretion.”