“Judicial abuse occurs when judges substitute their own political (Personal) views for the law”.
THE DAWN OF PROCRUSTEAN JUSTICE
The judgment delivered by Justice Michael Lee in the Federal Court of Australia in April 2024, Lehrmann v Network Ten Ltd (No 5), constitutes one of the more conspicuous recent instances in which a superior court has ventured beyond the conventional boundaries of civil defamation litigation to pronounce, on the balance of probabilities, that a serious indictable offence (rape) had in fact been committed.
In finding that Mr Lehrmann had raped Ms Higgins in a ministerial office in Parliament House in March 2019, Lee J expressly held that Mr Lehrmann had been “indifferent” to the question of consent and had repeatedly and deliberately lied in his evidence on critical matters.
The primary judgment, running to some 420 pages, was upheld unanimously by a Full Court of the Federal Court (Rares, Wigney, and Lee JJ themselves sitting on the appeal bench in an unusual configuration) on 3 December 2025, with Mr Lehrmann again ordered to pay indemnity costs.
“Judges must have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath”..– John Roberts
JUDGE MICHAEL LEE SAW WHAT EVEN GOD COULD NOT SEE
What renders the proceeding remarkable, however, is not merely its subject-matter but the methodological and rhetorical posture adopted by the primary judge in this matter.
In a matter that had already polarized public sentiment along lines of gender ideology with an intensity seldom seen outside the culture-war theatres of the United States, Lee J elected to position the court as the final arbiter not only of reputational injury but of contested historical truth in circumstances where direct evidence was confined exclusively to the contradictory testimony of the two principals, and where a prior criminal trial had collapsed amid concerns of juror misconduct.
Michael Lee J imported elements of Ruiz vs OJ Simpson in a civil trial (officially titled Fred Goldman, et al. v. Orenthal James Simpson, but formally known as Ruiz v. Simpson because the court assigned case number SC031947 and the first plaintiff listed on some documents was Sharon Ruiz, Nicole Brown Simpson’s mother).
This was the controversial case where US sporting legend, O.J. Simpson was held civilly responsible for the killings of his ex spouse, Nicole Simpson and her lover Ron Goldman, despite having been acquitted in the criminal trial (People v. Orenthal James Simpson, 1994–1995). This case is a classic example used in law to explain the difference between the criminal standard (“beyond a reasonable doubt”) and the civil standard (“preponderance of the evidence” or “balance of probabilities”).
OUTWITTING THE DEVIL?
There is no known precedent in Australian law in which, following a criminal trial that has concluded without a verdict, whether by reason of a hung jury, discharge of the jury, or any other cause, a court has either:
- directed or permitted the question of the accused’s criminal guilt to be determined incidentally in the course of separate civil proceedings before another court; or
- allowed a civil court, of its own motion or otherwise, to assume jurisdiction to pronounce upon, or effectively determine, the accused’s guilt of the indictable offence by applying the civil standard of proof (balance of probabilities) in place of the criminal standard (beyond reasonable doubt), and in the absence of the full body of evidence that would have been adduced had the criminal trial proceeded to verdict.
In short, Australian law has never recognized a mechanism by which the unresolved criminal guilt of an accused may be “transferred” to, or unilaterally resolved by, a civil court hearing in a related but distinct proceeding. The two jurisdictions remain rigorously separated in both procedure and the standard of proof required to establish criminal responsibility.
JUDICIAL ACTIVISM BEYOND THE PALE– THE IMPOTENT STATE
Australian jurisprudence rigorously maintains the separation between criminal and civil proceedings. Criminal guilt can only be established in a criminal forum, to the standard of proof beyond reasonable doubt, with protections such as the presumption of innocence enshrined in common law and human rights instruments like article 14 of the International Covenant on Civil and Political Rights (incorporated via statutes such as the Human Rights Act 2004 (ACT) and Charter of Human Rights and Responsibilities Act 2006 (Vic)).
Civil proceedings, by contrast, address civil liability (e.g., for damages in tort) and apply the lower balance-of-probabilities threshold, even when alleging conduct akin to a crime, as affirmed in cases like Neat Holdings Pty Ltd v Carillon Holdings Pty Ltd [1992] HCA 1 and Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. A civil finding of liability does not equate to, nor bind as, a criminal conviction; it carries no penal consequences and cannot “resolve” unresolved criminal proceedings.
In cases of an aborted criminal trial, outcomes are limited to: retrial (permissible under statutes like the Criminal Procedure Act 1986 (NSW) s 21, but rare beyond two hung juries without exceptional public interest); nolle prosequi (prosecutorial discontinuance); or, exceptionally, a stay as an abuse of process (Jago v District Court (NSW) [1989] HCA 46).
Compensation for victims may follow via civil claims or state schemes (e.g., Victims of Crime Assistance Act 1996 (Vic)), but these do not adjudicate criminal guilt. No mechanism exists for a civil court to “appropriate” or pronounce on criminal responsibility in this manner, as it would violate double jeopardy principles (Criminal Code Act 1995 (Cth) s 403A) and the accused’s fair trial rights.
‘SALTING’ THE EVIDENCE-LYNCH MOB JUSTICE
The judgment is replete with extended discursive passages, on the sociology of alcohol consumption among young political staffers, on the phenomenology of memory under intoxication, on the performative dimensions of feminist advocacy, that sit uneasily alongside the traditional forensic task of evaluating testimonial reliability under the Briginshaw standard. A reversal of the crucifixion of Lindy Chamberlain (and countless Aboriginal Australian defendants before her since Federation).
Critics, including distinguished former members of the intermediate appellate judiciary, have characterized the approach as an exercise in judicial activism of a particularly venturesome kind: one in which established evidentiary principle and the disciplined restraint historically associated with civil proceedings on the balance of probabilities were subordinated to a broader socio-moral project.
CULTURAL RATIFICATION-A HIGHER MORAL IMPERATIVE or IMPARTIAL ADJUDICATION?
The danger inherent in such an enterprise is self-evident. When only two persons can ever know with certainty what transpired in a dimly lit office after midnight, and when the community is already riven by irreconcilable interpretive frameworks, the assumption by a single judge of the mantle of national truth-teller risks transforming the court into an instrument of cultural ratification rather than impartial adjudication.
The subsequent disarray, evident in the conflicting public commentaries of senior counsel, a retired court of appeal president conducting a statutory inquiry, and journalistic partisans, merely confirmed that the judgment had not resolved the national fracture but had instead become its newest theatre.
The Full Court’s endorsement of Lee J’s conclusions, while doctrinally orthodox in its deference to primary findings of credit, does not dispel the deeper institutional concern. A judicial officer’s discretionary latitude, however capacious in theory, remains tethered to procedural fairness, to the received rules of evidence, and to a modest appreciation of the limits of forensic reconstruction. Where those constraints are relaxed, or appear to be relaxed, in service of a perceived higher moral imperative, the legitimacy of the decision is imperiled, irrespective of its ultimate affirmance on appeal.
“Credit findings, when conjoined with unbridled judicial discretion, become a potent instrument enabling a judge to disregard, or indeed to annihilate compelling evidence that offends his/ her private sentiments or preconceived convictions resulting in grave injustices.”
In an era of institutional distrust, the spectacle of a court pronouncing definitively upon an allegation that a criminal jury could not safely resolve serves less as vindication than as caution.
Ivan Pavkovic and Katrina Fernandez
A Civil Societies Initiative
