If Bruce Lehrmann proceeds with the defamation action, how will it differ from the aborted criminal case?

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Less than a week after the criminal charges against him were dropped, Bruce Lehrmann now has his sights set on a slew of possible libel actions against prominent outlets and personalities, including Network Ten, ABC and Lisa Wilkinson.

The differences between the recently halted criminal case and the envisioned defamation case are vast and significant, but I’ll try to summarize some of them in the next 800 words.

Related: Integrity Watchdog to look into allegations of police misconduct during Bruce Lehrmann case

Perhaps most critically, Lehrmann would not be entitled to silence in his libel case, a right he exercised as a defendant in the criminal case. In defamation cases, the plaintiff must testify, at least if he is seeking damages and a claim for the alleged damage done to his reputation. If the defendants seek to prove the veracity of the allegations stemming from their publications, Lehrmann would, in all likelihood, have to provide detailed evidence to defeat the truth defense, including about what happened the night he was alleged (and of which consistently and vehemently denies) that he raped Brittany Higgins in Parliament. By taking the witness stand, he would inevitably be subject to extensive cross-examination by a lawyer acting on behalf of the defendants on these matters.

In the criminal case, prosecutors had to satisfy a 12-person jury that the allegations were true beyond a reasonable doubt. Conversely, if the defendants in the libel case plead a defense of truth, they would only need to show that the allegations are substantially true on the balance of probabilities – a lower threshold than the criminal standard. If the recent history of defamation cases is anything to go by, it is likely that Lehrmann will initiate defamation proceedings in federal court, where his case will be heard and decided by a court judge, rather than having some of the factual aspects of the case determined by a jury. The prospects of defendants pleading a truth defense in any defamation case increased significantly after Higgins confirmed that she would be prepared to be a witness in support of any truth defenses mounted by defendants in a defamation case.

While Australia’s libel laws are notoriously skewed in favor of plaintiffs, so much so that Sydney has commonly been coined the libel capital of the world, Lehrmann would have to overcome a number of significant hurdles to open the door to a libel case.

First, Lehrmann would have to prove that he has been identified in the publications he is suing over. In the vast majority of defamation cases, identification is not a problem because the plaintiff is usually named. But Lehrmann was not named when Higgins’ allegations were first aired by Lisa Wilkinson on The Project or by Samantha Maiden on news.com.au in February 2021. Lehrmann has not been publicly named by the media as the person accused of raping Brittany Higgins until August. 2021. Whether Lehrmann can rely on later publications that identified him as a basis for proving that he was identifiable in previous stories remains an unresolved legal issue that Lehrmann and his legal team must address.

Second, under the reformed libel laws, a plaintiff must prove that he has suffered serious harm from defamatory publications. While the seriousness of the damage to Lehrmann’s reputation appears evident, media defendants could argue that given the ubiquity of publications about Lehrmann, it is impossible for him to show what damage has been caused by particular articles or broadcasts. In other words, how will she prove to what extent the damage to his reputation was caused by The Project, ABC or Shane Drumgold SC or any of the other potential defendants she is said to be considering suing?

Third, unlike in criminal cases where the truth or falsehood of the allegations is all that ultimately matters, in a libel case the defendants can still win even if they cannot prove (or do not seek to prove) the truth of substantial allegations. One way for defendants to do this in the Lehrmann case would be to show that their publication was about a matter of public interest and that they reasonably believed that the publication of the matter was in the public interest.

None of this will be news to Lehrmann, who has reportedly received advice from prominent plaintiff media attorney Mark O’Brien, whose recent clients include Craig McLachlan and Ben Roberts-Smith. Lehrmann is also said to have received behind-the-scenes advice from attorney Arthur Moses SC, which would mean Lehrmann would be represented by two of the attorneys who acted on behalf of Roberts-Smith in his four-year-old defamation case against Age and Sydney Morning Herald (in which the author of this article starred for newspapers).

One of the lasting lessons they taught me about defamation is that it’s like grabbing a tiger by the tail: it’s hard to let go without getting bitten.

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