Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/145

 H THE SECTION 25 DEFENCE

H.1 Introduction

561 As mentioned above (at [93]), to establish a defence under s 25 of the Defamation Act, the respondents are required to prove the substantial truth of each imputation, meaning it is true in substance or not materially different from the truth. Further, and again as noted above, it is sufficient if the "sting" or gravamen of an imputation is substantially true. Recognising the sting of each imputation pleaded in this case, all parties agreed in a statement of agreed issues that the only question on truth is question 4: "Whether [Mr Lehrmann] raped Brittany Higgins in Parliament House in 2019?".

H.2 Substantial Truth: Was there a Rape?

I What Needs to be Proven

562 The submissions of all parties were less than helpful in relation to this aspect of the case. This is not a criticism of the barristers but reflects the reality that the respondents say sexual intercourse happened in such a way as to mean it follows axiomatically that there must have been a rape; whereas Mr Lehrmann's case is that no sexual intercourse took place at all.

563 More particularly, Network Ten contends that because Mr Lehrmann denied any sexual contact, this:

… obviate[ed] the need for any enquiry as to whether the intercourse described by Ms Higgins could have been consensual or as to whether his conduct was other than wilful or reckless (Crimes Act 1900 (ACT), s 54). If intercourse occurred as described by Ms Higgins, it was obviously rape.

564 But it is not as easy as that for at least two reasons: first, as I have explained, although I have found intercourse took place, I am not reasonably satisfied as to an aspect of the account of Ms Higgins as to what occurred, that is, she repeatedly and expressly said to Mr Lehrmann that he should stop; and secondly, the relevant inquiry on the substantial truth defence is not governed by whether Mr Lehrmann breached a particular statutory norm, being s 54(1) of the Crimes Act.

565 This second point requires some elaboration.

566 It is agreed the respondents must prove Mr Lehrmann raped Ms Higgins, but what does one mean by "rape" in this context? Does it mean something different from what can be described as the penetrative sexual offence that existed in the ACT at the time of the alleged assault or Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369