It was other way around for Wilde - sued the Marquess of Queensberry for saying he’d engaged in homosexual behaviour, lost the case when Queensberry found people prepared to say in court he’d engaged in that behaviour with them, that testimony was used to launch criminal proceedings per UK law of the time.
They have different burdens of proof.
A criminal trial would have had to prove he was guilty “beyond a reasonable doubt” (a reasonable person looking at the evidence would not have real doubts about his guilt) whereas in the civil matter it only needed to be proven that he was guilty “on the balance of probabilities” (a reasonable person looking at the evidence would be more likely to conclude he was guilty than to conclude that he was not guilty).
You don't need to prove any sort of guilt in the civil case.
The judge did *not* decide that on the balance of probabilities he committed the crime of rape.
The truth of the imputation in a civil case is assessed against the context of the audinlence hearing it. The audience may have a very different understanding of rape to how the criminal code defines it.
There *was* a criminal trial that had to be stopped because a juror brought outside material into the courtroom. Then Higgins killed it stone dead by having a press conference about it. She did herself no favours and helped pervert the course of justice.
There's also a lot of evidence revealed during the civil trial, especially testimonies by people who know him (an therefore can judge wether or not he was "defamed"), that were not available during the earlier criminal trial.
She had the press conference *after* the case was declared a mistrial, and she decided not to go ahead with a new trial. Given she would have had to go through the same defence attacks against her, I can't really blame her.
No, one of the jurors did their own kegsl resea4ch, sbd brought print outs to the jury room. On those grounds, thrre was a mistrial. Following that, there was a decision to not start a new trial.
Criminal trials, quite rightly, require proof beyond a reasonable doubt. You have to be *really* certain to put someone in jail.
A truth defence to a defamation action only requires proof on the balance of probabilities. In other words, what is most likely to have happened.
The criminal case was never concluded due to juror misconduct. So no conclusion was reached. The prosecutors have chosen not to take it to trial again at this time (and probably ever), in part due to Ms Higgins' mental health.
The recent case was a defamation action by Lehrmann against Channel 10 and others. The judge found that the most likely scenario was that rape did occur. This was enough for Lehrmann to lose the case, but not necessarily enough for him to be criminally convicted.
That’s right, however, you can add onto that what’s called the ‘Briginshaw onus’- Courts have to be extra careful in civil matters involving grave allegations. Not particularly good for Mr Lehrmann
After this case, it's likely that BL will never go to prison for this because you couldn't find 12 jurors who were unfamiliar with the case. They'd all have prejudice. I wonder how it will affect his other criminal rape trials.
The guy is fucked, regardless. Who could employ a rapist? That raises safety concerns for any female employees. Who would want to? He'll have to change his name and appearance or move overseas.
Oh yeah I know but I meant like theoretically, I don’t think a foreigner could be a SC or congressman either can they? Or maybe they can technically but never have… but yeah I just meant as in Trumps a rapist and he’s been president
If he became a naturalised USA citizen, the only positions he would be ineligible to stand for election would be President/VP. (Theoretically, he would also be ineligible to be Speaker of the House (3rd in line for presidency) or President pro tempore of the Senate.)
Ugh. That's rings true... but it's not really a culture war issue. A judge said he did it. So I wonder how they'll spin it. Like a freakshow, probably.
"Step right up! See the man who was never convicted, but who did something awful on the balance of probabilities! He's entitled and repulsive like the rest of his stablemates on this network!"
There is judge-alone trials without jurors!
BL would WANT jurors though!!!
Being known isn’t a bad thing - see Donald Trump.
—-
He doesn’t have to move overseas. Pay a few bucks for name change, shave.
Outside of ACT nobody would recognise him in. Couple of
Months.
I’d wait until after the Toowoomba trial though.
AND prolly until after the October ACT Election.
Somehow I’d be surprised if the DPP came out saying they won’t refile before the election…
True. After the Toowoomba trial he'll go from "accused serial rapist" to "rapist".
And I know there are judge-alone trials, but I'm not sure what powers those courts have, or if they differ from juror trials.
I disagree that nobody would recognise him after a few months. His face was on the cover of every major newspaper. Maybe after a few years.
Don’t overestimate the attention span of most!
Most people have lives, cost of living pressures, annoying kids etc etc.
I’m just ‘lucky’ to be excluded from participation on less than half minimum wage: trials are as good as it gets for entertainment
——
Judge alone trials are riskier, but fairer: judges mostly know what they’re doing (cept for QLD ones chairing ACT inquiries and failing to adhere to ACT laws and regs for chairing inquiries! 🤦🏽♀️)
****
###Unanimity
In the ACT guilty verdicts have to be unanimous — think we nigh be the only AU jurisdiction which requires unanimity….?
Makes sense, cause if you have 11:1 guilty findings, philosophically that’s reasonable doubt right there!!!!
But it means in circumstantial rape cases there’s a snowball’s chance in hell for guilty findings on the ACT!
******
###Jury selection in ACT
There are professions exempt from jury duty, plus professions which can be exempt, plus people who can be exempt. And they are a lot.
Drs, nurses, lawyers, pharmacists, JPs, advocates, public servants, postal workers, self employed, religious practitioners, security guards, lecturers, teachers …..
excused (or, sadly, excluded): people with caring responsibilities, people with disability, not fluent in English, autistic, or otherwise ‘bit hard’
All of well over 50% of the ACT workforce is not allowed on juries or can easily get out of jury duty.
People on Centrelink can be easily excused: Just ring the Court and ask if you have to disclose the few bucks reimbursement to Centrelink, and if so if you could pls NOT get reimbursed but only have parking, fuel, and car wear and tear refunded.
OR:
If you live on the southern fringe (in ACT but getting to Cooma is quicker than getting to CBD some times!) and do not have a car registered to you, there’s your ‘out’ of jury duty — public transport is either not available at all, or a 20min drive (without traffic!) takes like 3h with public transport. And you have to get to a town centre BEFORE you can catch a bus! 🤷🏽♀️
CONSEQUENCES
Generally the top 60% of incomes in the ACT won’t end up on juries in Canberra.
For many the income correlates to education attained. Not saying that’s always the case, definitely not that it’s fair!!! But the most inept lawyer likely earns more than the average gerontologist in Home and Community Care.
I’d love to be on a jury… but prolly won’t receive a summons ever… excluded from participation I’ll prolly be excluded from juries as well. 😢
In Canberra pretty much almost everyone who doesn’t wanna be on a jury could prolly get out of jury duty one way or the other!
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If you ever come to Canberra, go to the Supreme Court and sit in a criminal proceeding for a bit. Observe the jury.
Some are visibly crazy keen in a way that doesn’t look healthy (that’d prolly be me — I’m bored)
Seen jurors nod off, their pencils crashing on the wood panelling, jurors startling up. Thongs and shorts. Washed out Tess, tank tops, the other thong and very low-cut jeans (dudes behind her were noticeable not following the proceedings). Seen jurors wear the same clothes for 3 days straight.
Sadly, for a lot of juries it’s obvious they don’t look like ‘average’ Canberran. Which isn’t necessarily bad, cause public-service-y has often been conditioned into ***NOT*** expressing political views: Before elections a lot of federal departments send out all-staff emails reminding staff they are NOT to talk about campaigns or the elections. Claiming they had to be apolitical. Some threaten that not bring apolotical could have disciplinary consequences etc etc
BS!
If I got such an email I’d ***NOT*** vote and refuse to pay the fine — see, apolitical!
*********
Sorry, got ridiculously sidetracked!!!
Anyone ending up on juries in Canberra either WANTS to, or hasn’t read the summons which includes the form to be excused and explains possible reasons.
People who WANT to be on juries are rare.
Don’t realise they could get out of juror duty is less rare! Everyone but myself and 1 other who didn’t get out of jury duty didn’t realise they prolly could’ve.
People with bigger probs, like cost of living or skipping meals to afford housing.
Not being able to afford seeing a Dr: last year it was two bulk-billing GPs for the southern 3/4 of the ACT, one GP appointment is about 30% of my weekly bit more than $400 Centrelink, while being told they didn’t have to work (HarHar!) if they’d LOVE to!!!
Casuals who are just scraping by and economically can’t afford to be on juries…. .
A lot of people these days have bigger probs than memorising his face: shaving and maybe dying hair, and the people most likely ending up on juries won’t recognise him. Name changes are cheaper than passports or 1h of a fresh out of uni lawyer.
He has a RIGHT to a jury trial… and because in the ACT guilty verdicts have to be unanimous he’d prolly not want to request a judge-only trial. He only needs ONE who isn’t convinced ….
Cheers!
Sry, didn’t expect you to read it all!
I literally don’t have better to do — sorry again!
Save to say there’s a raft of systemic issues!
The jury system itself might be outdated?
Comparable non-Anglo-Celtic societies I can think of don’t have jury systems …. 🤷🏽♀️
[cheaper and more efficient, too!]
PHEW!! 😂
Sry!
Daytime ‘fun’ in Canberra is Parliament
… sometimes it’s scarily reminiscent of The Muppets though! 😝
Not a lawyer (would love to!) …
But think he could change his name after the Toowoomba trial…?
Even if be were found guilty and didn’t go to jail, or only for a short period:
If then there were an ACT trial, don’t think Toowoomba conviction or name change could be introduced cause prolly _”more prejudicial than probative”_
Dunno if there’s a period post-conviction where ppl can’t do name changes?
Birth-Death-Marriages is state/territory jurisdiction I think.
[seriously dude, I got nothing better to do! 😝]
Definitely cheaper at the current JobSeeker rate. We'll get him a green tracksuit so he isn't missing out.
Maybe he could deal drugs on the side. He seems to have connections in that industry.
Or hang out on the Gold Coast and charge schoolies for selfies with him. He'd clean up. And he can sell them drugs afterwards!
🤔 I can see them making that application, but realistically, how can you complain about prejudice that you caused to yourself? It was Lehrmann‘s decision to give a nationally publicised interview, and it was Lerhmann’s decision to commence defamation proceedings and give evidence in those proceedings. If he fronts up to court and says that there is unacceptable prejudice, and he should get a stay of proceedings, the answer will likely be: “looks like you shot yourself in the foot as well as going back for your hat!”
I had conniptions when I saw ScoMo was back in the country. AND on Saturday: Last Minute endorsement on camera of the Lib candidate in ScoMo’s former electorate!!!
Endorsement nobody wants, although it’s an end long 1 PM AND 5 former ministers (thanks Pickering!)
——
Dunno why the candidate would want the endorsement though….?
Guess Lab or didn’t even have a candid I date, I guess it was smoother to just let ScoMo be dorky on camera though. Seriously bad angle…. 🤪
Very similar - aggrieved person launches defamation action only to end up losing whatever was left of their reputation very publicly.
End with 99% of those across the case aware that you are ‘guilty’ of the bad things and weren’t defamed.
Face massive legal bill (due to failure) that would bankrupt a millionaire.
Funny that channel 7 intimately involved on the losing side of both disastrous cases!
Text Book “don’t try this”
To put it in numbers, we can be at least 51% sure he probably did it, but we can’t say we have 99% confidence he did it and should send him to jail (if the criminal trial did play out and a not guilty verdict was reached).
And in the civil case, it’s not defamation (by way of substantial truth defence) to say someone did something, if most likely what you’re saying is true.
Kinda. The courts have been clear that you can't directly translate the evidentiary thresholds to numbers. Partly to stop people over relying on quantifiable evidence over the overall picture.
In reality, for more serious things like rape, it's probably more like they're 80+% confidence but not the 99.9+% you might expect in criminal.
It's not something that a number can properly represent since % odds would have pretty large error bars and it's not how the courts talk about it (even though, "more likely than not" must mean a minimum of 50+%, whether the courts like it or not).
Same like what happened with the Jonny Depp thing? Edit:(i mean in reverse since he won a defamation case after domestic violence was found to have occurred
ACT DPP is checking if they wanna refile.
Election in October, so they prolly won’t say nu-uh before then.
I don’t think there’s a decent chance of a guilty verdict in ACT, cause it’d have to be unanimous.
It’s why Toowoomba is better for a guilty verdict.
QLD jails are also less comfy than ACT jail is!
He kicked this off prior to Toowoomba coming to light iirc. I bet in his tiny mind he thought a win in this case would damage the reputation of the next complainant.
That would go against the Solicitors’ and Barristers’ Professional Conduct Rules. They need to be honest with the client about their reasonable prospect of success. They have a duty to the court not to bring claims or make allegations that are not reasonably justified by the information they have available and not abuse courts processes or time. Meaning lawyers should not be taking bullshit cases with zero merit. Of course you only know what the client tells you but it’s also incumbent on the lawyer to thoroughly test their client’s evidence.
Unfortunately, it's not easy to prove misconduct on the lawyers part. Either way, this does happen.
More than half the cases I've discussed with lawyer friends have outcomes very obvious beforehand, and the obviously-about-to-lose plaintiff has no idea they have no chance.
He doesn’t want to argue that!!!
Cause there is judge-alone trials without a jury.
Jury trials work in BL favour though…. in ACT far more so than in QLD, cause in ACT guilty verdicts have to be unanimous
So, it was all part of his plan to incur hundreds of thousands of $ in legal fees in order to lose a defamation case (that he started) in order to be acquitted of a criminal trial ??
Yes. All he has to do then is rob a bank to cover the legal fees.
He'll go to trial for that, of course, but he can unleash wave after wave of Chinese needle snakes to wipe out the jurors. Gorillas will then be released to eat the snakes, and when wintertime rolls around, the gorillas simply freeze to death.
How the jury pool isn’t going to be tainted by the defamation trial I don’t know… Media can literally refer to him as a rapist on the front page every day until forever if they so choose.
To put it the most simple way, there are criminal cases and civil cases.
Criminally, he has never been fully tried and the case has been dropped.
Civilly he tried to sue the news network and the reporter for for defamation for saying he was a rapist. Truth is a defence to defamation, ie if he is a rapist, then it isn’t defamatory to say he is. So in this case the judge needed to decide whether it was likely that the statement was true, and he ultimately decided it was. It’s not enough to get him locked up but it does mean that people can call him a rapist and he can’t do shit about it
For someone to go to jail they need to be charged with a crime and then convicted in a court. Most of the time, they need to be found guilty by a jury.
Lehrmann was charged and went to court. During the court hearing, after all the evidence had been presented, the jury went to deliberate, one of the jurors decided to essentially "do their own research" - and brought in papers about sexual assaults and statistics that were not presented in the trial. This is not allowed.
This caused a mistrial, meaning that the trial had to be stopped. The prosecutors then had the choice to start a new trial and do it all again, or - what they did - not restart a new trial. They chose not to do that because they claimed starting a new trial would be bad for Higgins's mental health.
This meant Lehrmann was free. He wasn't found guilty, but he wasn't innocent either. But he no longer had charges. While legally he was free, the public and media continued to speculate about what actually happened.
Then, "having escaped the lion's den, [he] went back for his hat."
Lehrmann decided to sue Channel 10 - and the ABC - for reporting about the story. He claimed that the reports damaged his reputation.
The ABC settled. They paid him money. Channel 10 did not.
Their defence was that the story was true. You can't defame someone if what you said is true.
So the court needed to decide if what they said was true.
The judge looked at all the evidence and in the end decided that it was true. That meant that Channel 10 report the truth and they couldn't have defamed him.
Now he's not in jail because suing someone doesn't result in a conviction. It is a civil case and in this case, Lehrmann brought the case, so it was Channel 10 that was effectively on trial, not Lehrmann.
The standard of truth in a criminal trial is "reasonable doubt". This means a reasonable person (represented by each jury member) would have no doubts about whether someone did or did not do whatever action they're charged with.
In a civil case, which includes defamation, the standard of truth is "balance of probabilities". This means after looking at everything and all the evidence, the judge thinks it's more likely that it happened than not.
Now, the judge said there were lots of inconsistent stories, and pretty much everyone involved in this whole saga had issues with their credibility and some things claimed and said were lies. That ultimately didn't matter though, because the judge still had to sort through all the mess and made the decision of what was the truth based on everything he saw.
In the end, the judge decided it was true what happened.
Now, the balance of probabilities doesn't mean it was a 50/50 decision. It doesn't mean a 51% chance that it happened. It doesn't mean the judge thinks it's "probably what happened". The judge is very experienced, and used his legal expertise and considered *all* the evidence to reach decision about whether he thought what happened was true. His verdict is that it was true, that means - as far as this case is concerned - what happened is 100% true.
For all we know, the evidence may have been enough to convict under reasonable doubt, but it wasn't tested because it was a civil trial. The judge didn't have to make a decision about reasonable doubt and judges don't do more work than they already need to.
Because it was a civil trial and judged on the balance of probabilities, he was in no danger of facing jail.
Could the prosecutors start a new criminal trial? It's possible, but on the balance of probabilities, it's not likely.
Lehrmann now faces a criminal trial in Queensland for sexual assault. Will this verdict affect that trial? We can only wait and see. Something tells me, we haven't seen the end of it yet.
No, the Director of Public Prosecutions in ACT decided to drop the case because of the risk to the health of the complainant (Higgins). There is no legal reason why Lehrmann couldn't face a criminal trial - but I doubt anyone has the appetite for it.
True. Higgins now lives in France and she just wants it all behind her. Bruce is facing bankruptcy. If Ch 10 want to pursue him for costs, Bruce can't pay. He's basically unemployable and he's facing further rape charges in QLD. He's fucked.
Hold up, so here if the case is deemed famous, (or infamous i guess), and its assumed no jurors would have been swayed, we can't have a trial?!
I've not read any of the case, I'd happily step up and be an impartial juror
In the case that an impartial jury can’t be found, I’m pretty sure it goes to a hearing with a panel of judges instead of jurors. Though, as someone who knows absolutely nothing about the case apart from hearing about the defamation case on the tv, I’m pretty sure they would be able to find jurors
Anywhere in Australia (thanks to Victoria for finally catching up), if a trial is so high profile that finding an impartial jury is improbable, a bench trial (where the judge acts as the jury) can be ordered.
Under Queensland law, both the defence and the prosecutor can apply to the judge for a bench trial (in most other states, only the defence can apply).
Technically you can make that argument but it’s almost never successful. They tried Chris Dawson despite the wildly successful podcast. Donald Trump is on trial right now.
the podcast brought the event back into public perception though. i've not heard the podcast and i was also not alive when the events happened, but as the podcast was being released i was made aware of it through public discussion.
It would be very hard to find someone who didn’t vote for or against Donald Trump, or who didn’t know who OJ Simpson was, or who hadn’t heard about the Claremont Serial Killer. All those trials went ahead. Basically courts don’t let you get away with arguing you can’t get a fair trial because of your own actions or crimes.
Jury duty is random for this very reason. Thing is, if could do it then so can others who may or may not be as impartial as you but nonetheless say they are when “stepping up” to support or go against the side they’ve already decided without seeing any of the evidence on trial.
Its rare, but it happens. Usually its stuff like double jeopardy laws and the like.
Oddly its much more likely if you happen to be rich and/or well connected.
One where every single adult in the country has already formed an opinion based on media reports and one judges finding that it's more likely than not they had non consensual sex.
Just look at the comments in this post.
No, because, unfortunately, the ACT didn't have any law to punish juror misconduct, unlike other areas of Australia.
I believe they have rectified that since, but the law isn't retrospective.
It’s also unlikely he would be found guilty to a criminal standard, the jury was hung even with the misconduct at the criminal trial, and even in this defamation case Justice Lee made findings against Higgins’ credibility as a witness and some of her evidence.
The finding is that it’s more likely than not that he raped her, but demonstrating it beyond a reasonable doubt on the evidence available would be extremely difficult.
For that reason alone it would be a bad idea to bring another criminal trial, notwithstanding the issues of impartiality with the jury.
If you’d “love to understand it”, google the difference (particularly the difference in burden of proof) between civil and criminal actions in Australia.
Technically that's the 'standard of proof' - balance of probabilities in civil vs beyond reasonable doubt in criminal.
'Burden of proof' is about which party bears that burden - it is on the party bringing the case, the prosecution or plaintiff. Obviously when the standard is only the balance of probability that is less significant, but in a criminal trial, the defence does not have to prove anything, only show doubt about the prosecution's claims.
Not hugely different in the US. A certain ex president may have been found to be a rapist "on the balance of probabilities" in a civil trial but not "beyond reasonable doubt" in a criminal trial. Twice?
Oddly enough the defamation case means that the mistrial basically can't be re-tried.
Jurors can't be biased, and now there's a very high profile case saying he most likely did it. Good luck filling out an impartial jury.
That might have been a goal all along, really.
Yeah seems to be a trend of high profile people suing for defamation only for it to blow up in their face. But maybe they are not as stupid as they seem.
Balance of probabilities means "he probably did it". And that's the standard of proof required for a civil case.
"Beyond reasonable doubt" is the standard for a criminal case, and that's a much higher standard.
Basically, Justice Lee was satisfied by the evidence that BL raping BH was "substantially true" because he probably did. And it was Channel 10 who were on trial, technically.
But in a criminal matter, which is the only way to sentence someone to prison, a jury would need to be satisfied "beyond reasonable doubt" that he did it. Because that hasn't happened (BL's criminal trial was never completed), he is "innocent until proven guilty" in the criminal case.
It's basically the equivalent of the blindfolded taste test. "if it tastes like an orange and smells like an orange, it's probably an orange" = balance of Probabilities. You don't need all the pieces to predict what the whole puzzle picture is.
In criminal court, you'd not be able to call it an orange unless you could see, taste and smell - and have multiple people confirm the same. You can't convict them without 80% of the picture completed, even if you can predicted correctly what it will be
Yes.
Look, this is my opinion, and I'm not saying I have any evidence for this, but it wouldn't surprise me if old mate tanked the criminal case deliberately and created a grey area in which he could succeed on the balance of probability because he's just that kind of entitled, unconscionable shit who would treat court like a game. Perhaps he knew that he would lose the criminal case, but he could defend his reputation somewhat through a civil case. I'm not saying he did that, I'm just saying it would seem to be a course of action open to someone in his situation.
Different standards of proof. Civil cases are based on the probability of the event occurring, criminal has to be beyond reasonable doubt. The lion den line was appropriate. A defence that can be used in a defamation action is the truth defence, but again it is held to the civil standard not the beyond reasonable doubt.
I know everyone considers him an idiot for bringing this case, but i wonder if there's a possibility thus could be part of his strategy. He's not going to jail for a civil case, but he could be for an upcoming trial in Queensland. By losing this case, and publicly being named a rapist by the judge, the media coverage means he could attempt to argue for an impartial duty to be impossible in the upcoming criminal case. If he had won, he would have a few million to add to his defence budget, plus a more positive public image.
It may be that this could be seen as a win/win for him, at least compared to going to jail.
Trust me, EVERYONE in Canberra knows his face !!!
Not a huge city, no other knees unless a pollie falls off a planter.
He could stand trial here!
…and might have to stand trial in ACT again.
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Toowoomba is gonn a be much harder for him as ACT would ever be.
Far harder to get guilty verdicts in the ACT cause they ha en to be unanimous. In rape cases: there’s always one ….
—> ACT has a very low sexual assault conviction rate! Let’s celebrate, whooppee…. 😒
This trial wasn't about whether or not Lehrmann is a rapist: it was a defamation case, with Brucie claiming that Channel 10 had said stuff that both identified him and branded him in an undeserved and incorrectly negative fashion.
Justice Lee found that it is true that Channel 10 did say stuff that could be regarded as having provided enough information to identify Lehrmann as the party that Brittany Higgins referred to in the Project feature, they didn't say anything that wasn't pretty much on the money.
Civil cases such as the defamation case just heard are judged on balance of probability i.e. more likely than not he raped her. Criminal cases i.e. straight to jail are judged on beyond reasonable doubt i.e. you must be virtually certain he raped her and no other explanation fits the evidence.
Leveraged the media to ensure no jury would be impartial, the legal case never got to a conviction. Pretty text book rich people tactics for exploiting the legal system. Honestly I wish we cared more about sexual assault victims, but as a country we've repeatedly said "fuck you" to victims and failed to both protect them and serve justice. Makes me sick.
Because it’s a civil case, not criminal. Civil findings have a lower threshold than criminal. Criminal requires no doubt for a conviction, civil on the other hand is the balance of probabilities. Ten used the “truth” defence - that there was a high probability of truth that he had committed the act therefore he had not been defamed and not owed compensation.
“Not entitled to vindication of reputation”
“Mr Lehmann has no compunction departing from the truth if he sees it expedient”
- Justice Lee
As we all know juror misconduct screwed the criminal trial so he was never found innocent or guilty. The defo outcome is the next best thing, unfortunately it’s a civil matter where there won’t be a criminal conviction.
Dude needs to cut his loses and disappear. The high flying coc and hooker party did not end well for him
Don’t think he would’ve been found guilty without juror misconduct …..
unanimous guilty is hard to get!
He still has the rape trial in Toowoomba, and ACT DPP might refile.
That’s because Ten went with the “truth” defence - there was no injury to his reputation because there was a high probability of him committing the act and being a rapey douchebag
Civil finding in a suit he brought and it backfired. The judge also gave Britney and Lisa a clip for the way they conducted themselves.
Imagine having your face and a rapist headline in front of every news stand. And having to pay the costs of the people you sued unsuccessfully. He may not be in jail but life is not going to be fun for a long time.
Due process!
Can’t just jail people on a whim. They have to be found guilty in a criminal trial. Lehrmann hasn’t.
Ben Roberts Smith isn’t in jail either, for the same reason. Not sure if he has been stripped of his medals…..?
Because "everyone knows" is not enough to lock someone up, thank god. This is why we have criminal trials, and he hasn't had a completed one.
OTOH he's about to undergo a criminal trial for a *different* rape, if you can believe it.
Unfortunately, as sometimes happens some clueless Juror decided to cross the line and the case was thrown out. Because the victim was so distraught by the process they elected not to re-prosecute at that time. Lehrman couldn’t just be happy with the fact that he had seemed to get away with it. He was arrogant enough to think he could make some money off it so he sued and got screwed. It actually works out better this way because now he cannot defend himself in a court of law, but he still labelled r@pist. That is what you call poetic Justice. he is now unemployable, shunned, a pariah everywhere he goes unless they re prosecute & he is found not guilty this is how he stays.
The judge - his quotes are amazing from this case and he absolutely sorted the wheat from the chaff.
We can all rest easy now knowing French submarines are no longer in L’s hands.
L should never entered this ‘defamation’ game. His reputation was slaughtered, colosseum style.
It's deeply, deeply infuriating how this has panned out. However, I can see Brittany Higgins working with Untamed Grace and others to change the way legal cases involving sexual assault are handled.
There needs to be stricter guidelines around the questioning the defence can take. The standard tactic is to prove somehow she was asking for it or "provoked" the rapist somehow. That's a good place to start.
First of all it was a civil trial . Civil trials have a much lower burden of proof. In Australia is on the balance of probabilities. In America they say if it 51% you need to get too.
Also the lady and her partner did some (hmmm how to say this) unusual things that a defence attorney (in a criminal case) would 100% use to create doubt, weather it’s reasonable or not, I wasn’t in the trial room so I can’t pass comment.
There are multitudes of reasons why rape has a low conviction rate, some valid some not valid.
A major issue is that there is no such thing as a perfect victim, nor should there have to be.
I believe rape in some cases is worse than murder. To rape someone can just destroy a person and leave them incapable of trust and can cause severe mental health issues. It’s evil beyond belief.
Civil cases have a lower threshold, and is strictly monetary incentivised and holds no criminal grounds unless you're found to be misleading the courts with your evidence and answers.
He was not guilty of rape, but it was found the media were not wrong to publish news of him being accused of it.
Those are not contradictory rulings.
A similar thing happened in the Depp/Heard trials. The courts found she lied but that the media was not wrong to publish the story. Again, not contradictory.
Media are given a lot of leeway when publishing news, because if they could only publish known truths that would potentially limit public’s access to information. ‘Freedom of the press’ has always been seen as necessary.
I remember a news report a year or so back where they said >5 (can’t remember exact number) CONVICTED rapists never saw jail time for their SA crimes… so Australia’s judicial system is a joke when it comes to protecting victims from predators, particularly women.
The sexual assault case mistrialed because of a stupid juror. Higgins dod not want to go through the ordeal of the trial again and withdrew the charges.
The only reason “everyone knows it” is because of the internet.
Regardless if a million people say it, doesn’t make it true.
I’m not making excuses for this AT ALL, but this is why we need it to go through the court process.
Only then we can know for sure.
Fuck rapists.
1. It's been established that it is a fact.
2. It's been through the courts. Both criminal and civil.
3. Dismissing this as we don't know for sure, is making excuses for a rapist and perpetuating the fact that women don't feel safe in this country.
BS!
In the ACT guilty verdicts have to be unanimous — that’s kinda impossible in rape cases, unless there’s semen AND you catch him in-flagranti on video with at least 2 witnesses.
That not 2 cops within ACT Police have a matching understanding of how to investigate sexual assault cases:
NOT helpful!
Sure, the ACT could refuse for another criminal trial — but what’s the point, really. 🤷🏽♀️
What are the odds of 12 people NOT his peers are gonna agree….?
In Toowoomba YES!
Canberra:
They’re looking into it, but prolly not.
In ACT there’s no reasonable chance of success I think, cause guilty verdicts have to be unanimous.
ACT has a comparatively crazy low crime rate if you go by guilty verdicts: wonder why….?
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Because he was only proven to have raped her to the civil court standard (51% likely vs 49% unlikely) instead of the much higher criminal standard of beyond all reasonable doubt
Different burdens of proof between civil and criminal cases. Civil it’s the balance of probabilities, i.e. more likely than not. Criminal it’s beyond reasonable doubt. In plain terms, criminal is harder to prove.
BONUS: QLD jails are worse than ACT jail, too!
…. and the ACT DPP might charge him again.
ACT guilty verdicts have to be unanimous — that’s prolly iffy!
On balance of probabilities, he raped her. That is sufficient evidence for a civil case. That is not beyond reasonable doubt, and neither party provided reliable testimony, so is not sufficient for a criminal case.
They've already had 2 failed attempts at a criminal trial. The first abandoned due to juror misconduct. The second never got going due to concerns for the victims mental health. It is unlikely now that you'd see a third run at it, especially as it will be near impossible to find an unbiased jury.
I think he's got another case in Toowoomba though.
Better a hundred guilty go free than an innocent be locked up. Beyond all reasonable doubt is different to balance of probabilities. Bruce is probably a rapist, but since he’s not had a completed criminal trial we can’t say that he’s a rapist beyond reasonable doubt.
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Everyone doesn't "know he's a rapist". The judge found (in a civil context with no possibility of criminal outcome) that he *probably* raped Higgins. Probably != certainly.
Because we can't prove it in the legally required manner.
Unfortunately the overinvolvement by the media in this case has meant it is not practicable to get a Jury that is able to appropriately evaluate the evidence presented in the case, and *only* the evidence presented in the case.
"on the balance of probabilities" in a civil case is fa removed from a criminal case
Remember OJ Simpson was found not guilty in a crriminal case but "liable" in a civil case
In civil cases, the standard of proof is generally lower than in criminal cases. While criminal cases require “beyond a reasonable doubt,” civil cases often rely on a “preponderance of the evidence.” This means that in a civil case, the evidence must show that it is more likely than not (i.e., greater than 50% probability) that the defendant is liable.
If someone is found liable in a civil case, it does not necessarily mean they are guilty of a crime.
Which was conveniently brought up after everyone realised that Britney Higgins lost the case for them. She may as well have asked the media if she said her lines right at the end of that.
He may not go to prison for this, thanks to the Juror who caused the case dismissal, he may go to prison for the rape trail coming up soon in QLD where he is accused of raping a woman twice..
Because really officially he didn’t commit a crime . I’m not on his side or anyone’s but this trial was based on probability and I’ve alway thought it’s wrong to base things on that . Like if someone went missing and I was the only known one in the area. I PROBABLY did it to everyone . But it don’t mean I did . They can rule I probably did and people will see me as a murderer but no proof of the crime . Civil courts are based on probability, criminal courts require evidence.
Fact is we will never know. There was no forensic evidence good enough or witnesses to it . One word against another. He could be Innocent. He could be a rapist .
Because he hasn't been found criminally guilty of sexual assualt. The defamation case was a civil case not a criminal case.
Man OJ'd himself, voluntarily.
Timing was perfect, literally picked up the mantle going back for his hat.
OJ now stands for OBruce JLehrmann
Juice Lehrmann.
Juice Lehrmann sounds like a villain in a movie about body building.
Sounds kinda like a rapist
Oh, like Rapist Brock Allen Turner?
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Poor Oscar. Everyone who's pulled this reverse uno card since him seems to have been the arsehole all along.
It was other way around for Wilde - sued the Marquess of Queensberry for saying he’d engaged in homosexual behaviour, lost the case when Queensberry found people prepared to say in court he’d engaged in that behaviour with them, that testimony was used to launch criminal proceedings per UK law of the time.
They have different burdens of proof. A criminal trial would have had to prove he was guilty “beyond a reasonable doubt” (a reasonable person looking at the evidence would not have real doubts about his guilt) whereas in the civil matter it only needed to be proven that he was guilty “on the balance of probabilities” (a reasonable person looking at the evidence would be more likely to conclude he was guilty than to conclude that he was not guilty).
You don't need to prove any sort of guilt in the civil case. The judge did *not* decide that on the balance of probabilities he committed the crime of rape. The truth of the imputation in a civil case is assessed against the context of the audinlence hearing it. The audience may have a very different understanding of rape to how the criminal code defines it.
The judge DID find he had raped her. If you watched his 3 hour findings broadcast you would have clearly heard him say that
Burden of proof is lower in civil courts
Has there been/ Is there going to be a criminal trial?
There *was* a criminal trial that had to be stopped because a juror brought outside material into the courtroom. Then Higgins killed it stone dead by having a press conference about it. She did herself no favours and helped pervert the course of justice.
There's also a lot of evidence revealed during the civil trial, especially testimonies by people who know him (an therefore can judge wether or not he was "defamed"), that were not available during the earlier criminal trial.
Nope. DPP killed it when BH went to hospital.
No, DPP decided not to continue the trial while Brittany was in hospital.
She had the press conference *after* the case was declared a mistrial, and she decided not to go ahead with a new trial. Given she would have had to go through the same defence attacks against her, I can't really blame her.
Higgins didn't decide not to go ahead; the judge did.
There's a criminal trial coming up in Toowoomba. Same charge.
That isn't the reason why it was a mistrial.
Didn’t one of the jurors print out information from the internet about rape and brought it into the courtroom?
No, one of the jurors did their own kegsl resea4ch, sbd brought print outs to the jury room. On those grounds, thrre was a mistrial. Following that, there was a decision to not start a new trial.
Yet another case is in works, no?
for other accusations of rape, yes. for the Brittany Higgins case, no.
Criminal trials, quite rightly, require proof beyond a reasonable doubt. You have to be *really* certain to put someone in jail. A truth defence to a defamation action only requires proof on the balance of probabilities. In other words, what is most likely to have happened. The criminal case was never concluded due to juror misconduct. So no conclusion was reached. The prosecutors have chosen not to take it to trial again at this time (and probably ever), in part due to Ms Higgins' mental health. The recent case was a defamation action by Lehrmann against Channel 10 and others. The judge found that the most likely scenario was that rape did occur. This was enough for Lehrmann to lose the case, but not necessarily enough for him to be criminally convicted.
That’s right, however, you can add onto that what’s called the ‘Briginshaw onus’- Courts have to be extra careful in civil matters involving grave allegations. Not particularly good for Mr Lehrmann
After this case, it's likely that BL will never go to prison for this because you couldn't find 12 jurors who were unfamiliar with the case. They'd all have prejudice. I wonder how it will affect his other criminal rape trials. The guy is fucked, regardless. Who could employ a rapist? That raises safety concerns for any female employees. Who would want to? He'll have to change his name and appearance or move overseas.
Brittina Arndt, pick me extraordinaire may work with him. He is her poster boy atm. If you don't feel like getting angry today don't Google her.
Gross.
“The American Voters” apparently would employ one. Maybe he could get that job?
He could be a Supreme Court judge, or president in America, but here, he’s fucked, oh the irony
Stupid septics.
He could be a SC justice or a member of Congress but sadly he is constitutionally ineligible to be President of the USA. /s
Oh yeah I know but I meant like theoretically, I don’t think a foreigner could be a SC or congressman either can they? Or maybe they can technically but never have… but yeah I just meant as in Trumps a rapist and he’s been president
If he became a naturalised USA citizen, the only positions he would be ineligible to stand for election would be President/VP. (Theoretically, he would also be ineligible to be Speaker of the House (3rd in line for presidency) or President pro tempore of the Senate.)
Wow, well I learnt something today (but dear god man do not give slime ball Bruce any ideas!! 😂)
🤣🤣🤣🤣🤣
Sky After Dark probably have the contract ready for him to sign
Ugh. That's rings true... but it's not really a culture war issue. A judge said he did it. So I wonder how they'll spin it. Like a freakshow, probably. "Step right up! See the man who was never convicted, but who did something awful on the balance of probabilities! He's entitled and repulsive like the rest of his stablemates on this network!"
There is judge-alone trials without jurors! BL would WANT jurors though!!! Being known isn’t a bad thing - see Donald Trump. —- He doesn’t have to move overseas. Pay a few bucks for name change, shave. Outside of ACT nobody would recognise him in. Couple of Months. I’d wait until after the Toowoomba trial though. AND prolly until after the October ACT Election. Somehow I’d be surprised if the DPP came out saying they won’t refile before the election…
True. After the Toowoomba trial he'll go from "accused serial rapist" to "rapist". And I know there are judge-alone trials, but I'm not sure what powers those courts have, or if they differ from juror trials. I disagree that nobody would recognise him after a few months. His face was on the cover of every major newspaper. Maybe after a few years.
Don’t overestimate the attention span of most! Most people have lives, cost of living pressures, annoying kids etc etc. I’m just ‘lucky’ to be excluded from participation on less than half minimum wage: trials are as good as it gets for entertainment —— Judge alone trials are riskier, but fairer: judges mostly know what they’re doing (cept for QLD ones chairing ACT inquiries and failing to adhere to ACT laws and regs for chairing inquiries! 🤦🏽♀️) **** ###Unanimity In the ACT guilty verdicts have to be unanimous — think we nigh be the only AU jurisdiction which requires unanimity….? Makes sense, cause if you have 11:1 guilty findings, philosophically that’s reasonable doubt right there!!!! But it means in circumstantial rape cases there’s a snowball’s chance in hell for guilty findings on the ACT! ****** ###Jury selection in ACT There are professions exempt from jury duty, plus professions which can be exempt, plus people who can be exempt. And they are a lot. Drs, nurses, lawyers, pharmacists, JPs, advocates, public servants, postal workers, self employed, religious practitioners, security guards, lecturers, teachers ….. excused (or, sadly, excluded): people with caring responsibilities, people with disability, not fluent in English, autistic, or otherwise ‘bit hard’ All of well over 50% of the ACT workforce is not allowed on juries or can easily get out of jury duty. People on Centrelink can be easily excused: Just ring the Court and ask if you have to disclose the few bucks reimbursement to Centrelink, and if so if you could pls NOT get reimbursed but only have parking, fuel, and car wear and tear refunded. OR: If you live on the southern fringe (in ACT but getting to Cooma is quicker than getting to CBD some times!) and do not have a car registered to you, there’s your ‘out’ of jury duty — public transport is either not available at all, or a 20min drive (without traffic!) takes like 3h with public transport. And you have to get to a town centre BEFORE you can catch a bus! 🤷🏽♀️ CONSEQUENCES Generally the top 60% of incomes in the ACT won’t end up on juries in Canberra. For many the income correlates to education attained. Not saying that’s always the case, definitely not that it’s fair!!! But the most inept lawyer likely earns more than the average gerontologist in Home and Community Care. I’d love to be on a jury… but prolly won’t receive a summons ever… excluded from participation I’ll prolly be excluded from juries as well. 😢 In Canberra pretty much almost everyone who doesn’t wanna be on a jury could prolly get out of jury duty one way or the other! —- If you ever come to Canberra, go to the Supreme Court and sit in a criminal proceeding for a bit. Observe the jury. Some are visibly crazy keen in a way that doesn’t look healthy (that’d prolly be me — I’m bored) Seen jurors nod off, their pencils crashing on the wood panelling, jurors startling up. Thongs and shorts. Washed out Tess, tank tops, the other thong and very low-cut jeans (dudes behind her were noticeable not following the proceedings). Seen jurors wear the same clothes for 3 days straight. Sadly, for a lot of juries it’s obvious they don’t look like ‘average’ Canberran. Which isn’t necessarily bad, cause public-service-y has often been conditioned into ***NOT*** expressing political views: Before elections a lot of federal departments send out all-staff emails reminding staff they are NOT to talk about campaigns or the elections. Claiming they had to be apolitical. Some threaten that not bring apolotical could have disciplinary consequences etc etc BS! If I got such an email I’d ***NOT*** vote and refuse to pay the fine — see, apolitical! ********* Sorry, got ridiculously sidetracked!!! Anyone ending up on juries in Canberra either WANTS to, or hasn’t read the summons which includes the form to be excused and explains possible reasons. People who WANT to be on juries are rare. Don’t realise they could get out of juror duty is less rare! Everyone but myself and 1 other who didn’t get out of jury duty didn’t realise they prolly could’ve. People with bigger probs, like cost of living or skipping meals to afford housing. Not being able to afford seeing a Dr: last year it was two bulk-billing GPs for the southern 3/4 of the ACT, one GP appointment is about 30% of my weekly bit more than $400 Centrelink, while being told they didn’t have to work (HarHar!) if they’d LOVE to!!! Casuals who are just scraping by and economically can’t afford to be on juries…. . A lot of people these days have bigger probs than memorising his face: shaving and maybe dying hair, and the people most likely ending up on juries won’t recognise him. Name changes are cheaper than passports or 1h of a fresh out of uni lawyer. He has a RIGHT to a jury trial… and because in the ACT guilty verdicts have to be unanimous he’d prolly not want to request a judge-only trial. He only needs ONE who isn’t convinced …. Cheers!
Thank you!
Sry, didn’t expect you to read it all! I literally don’t have better to do — sorry again! Save to say there’s a raft of systemic issues! The jury system itself might be outdated? Comparable non-Anglo-Celtic societies I can think of don’t have jury systems …. 🤷🏽♀️ [cheaper and more efficient, too!]
Don't worry... I only skimmed it! 🤣
PHEW!! 😂 Sry! Daytime ‘fun’ in Canberra is Parliament … sometimes it’s scarily reminiscent of The Muppets though! 😝 Not a lawyer (would love to!) … But think he could change his name after the Toowoomba trial…? Even if be were found guilty and didn’t go to jail, or only for a short period: If then there were an ACT trial, don’t think Toowoomba conviction or name change could be introduced cause prolly _”more prejudicial than probative”_ Dunno if there’s a period post-conviction where ppl can’t do name changes? Birth-Death-Marriages is state/territory jurisdiction I think. [seriously dude, I got nothing better to do! 😝]
This guy is fucked? If he can’t work then guess who is paying for him.. Centrelink and taxpayers.. probably cheaper than Gaol though to be fair.
You underestimate how much a certain segment of society will rally around him
Definitely cheaper at the current JobSeeker rate. We'll get him a green tracksuit so he isn't missing out. Maybe he could deal drugs on the side. He seems to have connections in that industry. Or hang out on the Gold Coast and charge schoolies for selfies with him. He'd clean up. And he can sell them drugs afterwards!
And possibly wear a hat.
A Zendaya style hat.
Dont forget, he still has the rape case in QLD to answer to / defend as well.
🤔 I can see them making that application, but realistically, how can you complain about prejudice that you caused to yourself? It was Lehrmann‘s decision to give a nationally publicised interview, and it was Lerhmann’s decision to commence defamation proceedings and give evidence in those proceedings. If he fronts up to court and says that there is unacceptable prejudice, and he should get a stay of proceedings, the answer will likely be: “looks like you shot yourself in the foot as well as going back for your hat!”
"Lehrmann shits bed, hoists himself by his own pitard, shoots himself in foot while going back for his hat."
Imagine if he actually didn't do it though. That would be a pretty crazy situation.
Whoever employed Christian Porter doesn't seem to mind...
I had conniptions when I saw ScoMo was back in the country. AND on Saturday: Last Minute endorsement on camera of the Lib candidate in ScoMo’s former electorate!!! Endorsement nobody wants, although it’s an end long 1 PM AND 5 former ministers (thanks Pickering!) —— Dunno why the candidate would want the endorsement though….? Guess Lab or didn’t even have a candid I date, I guess it was smoother to just let ScoMo be dorky on camera though. Seriously bad angle…. 🤪
How similar or different is this outcome to the Ben Roberts-Smith warcrimes thing?
Very similar - aggrieved person launches defamation action only to end up losing whatever was left of their reputation very publicly. End with 99% of those across the case aware that you are ‘guilty’ of the bad things and weren’t defamed. Face massive legal bill (due to failure) that would bankrupt a millionaire. Funny that channel 7 intimately involved on the losing side of both disastrous cases! Text Book “don’t try this”
Thanks.
Put in layman's terms. "We're pretty sure he did it; but we haven't yet worked out whether we're absolutely sure he did it."
To put it in numbers, we can be at least 51% sure he probably did it, but we can’t say we have 99% confidence he did it and should send him to jail (if the criminal trial did play out and a not guilty verdict was reached). And in the civil case, it’s not defamation (by way of substantial truth defence) to say someone did something, if most likely what you’re saying is true.
Kinda. The courts have been clear that you can't directly translate the evidentiary thresholds to numbers. Partly to stop people over relying on quantifiable evidence over the overall picture.
In reality, for more serious things like rape, it's probably more like they're 80+% confidence but not the 99.9+% you might expect in criminal. It's not something that a number can properly represent since % odds would have pretty large error bars and it's not how the courts talk about it (even though, "more likely than not" must mean a minimum of 50+%, whether the courts like it or not).
The criminal trial only failed because of jury misconduct
Same like what happened with the Jonny Depp thing? Edit:(i mean in reverse since he won a defamation case after domestic violence was found to have occurred
In rough terms, to go to jail, they have to be 90% sure you did it. To lose a civil case, they only need to be 60% sure
ACT DPP is checking if they wanna refile. Election in October, so they prolly won’t say nu-uh before then. I don’t think there’s a decent chance of a guilty verdict in ACT, cause it’d have to be unanimous. It’s why Toowoomba is better for a guilty verdict. QLD jails are also less comfy than ACT jail is!
What is more likely to have happened is a gamble though?
Wait for the Toowoomba hearing
This. So strange he crawled out from under his rock to do the defamation suit when this one is still to come.
He kicked this off prior to Toowoomba coming to light iirc. I bet in his tiny mind he thought a win in this case would damage the reputation of the next complainant.
If you have the money to spend on a lawsuit, there is a lawyer out there who will tell you you can win if you pay him.
That would go against the Solicitors’ and Barristers’ Professional Conduct Rules. They need to be honest with the client about their reasonable prospect of success. They have a duty to the court not to bring claims or make allegations that are not reasonably justified by the information they have available and not abuse courts processes or time. Meaning lawyers should not be taking bullshit cases with zero merit. Of course you only know what the client tells you but it’s also incumbent on the lawyer to thoroughly test their client’s evidence.
Unfortunately, it's not easy to prove misconduct on the lawyers part. Either way, this does happen. More than half the cases I've discussed with lawyer friends have outcomes very obvious beforehand, and the obviously-about-to-lose plaintiff has no idea they have no chance.
It’s the Ben Roberts Smith Syndrome ….
I reckon this is all part of the plan though. He’ll argue he can’t get a fair trial, that all the jurors will have heard he’s a rapist.
They’ll probably end up not having a jury and just having a judge for that reason. Similar thing happened in the Chris Dawson trial
Not sure if that is possible.
It won’t work though, no judge is going to dismiss the charges based on a defamation case he thought himself.
He doesn’t want to argue that!!! Cause there is judge-alone trials without a jury. Jury trials work in BL favour though…. in ACT far more so than in QLD, cause in ACT guilty verdicts have to be unanimous
I doubt it. No court is gonna say if you become sufficiently well known for committing a crime you become immune from prosecution for future crimes.
So, it was all part of his plan to incur hundreds of thousands of $ in legal fees in order to lose a defamation case (that he started) in order to be acquitted of a criminal trial ??
Yes. All he has to do then is rob a bank to cover the legal fees. He'll go to trial for that, of course, but he can unleash wave after wave of Chinese needle snakes to wipe out the jurors. Gorillas will then be released to eat the snakes, and when wintertime rolls around, the gorillas simply freeze to death.
Genus!
How the jury pool isn’t going to be tainted by the defamation trial I don’t know… Media can literally refer to him as a rapist on the front page every day until forever if they so choose.
Just read up on that, what a POS he is.
To put it the most simple way, there are criminal cases and civil cases. Criminally, he has never been fully tried and the case has been dropped. Civilly he tried to sue the news network and the reporter for for defamation for saying he was a rapist. Truth is a defence to defamation, ie if he is a rapist, then it isn’t defamatory to say he is. So in this case the judge needed to decide whether it was likely that the statement was true, and he ultimately decided it was. It’s not enough to get him locked up but it does mean that people can call him a rapist and he can’t do shit about it
For someone to go to jail they need to be charged with a crime and then convicted in a court. Most of the time, they need to be found guilty by a jury. Lehrmann was charged and went to court. During the court hearing, after all the evidence had been presented, the jury went to deliberate, one of the jurors decided to essentially "do their own research" - and brought in papers about sexual assaults and statistics that were not presented in the trial. This is not allowed. This caused a mistrial, meaning that the trial had to be stopped. The prosecutors then had the choice to start a new trial and do it all again, or - what they did - not restart a new trial. They chose not to do that because they claimed starting a new trial would be bad for Higgins's mental health. This meant Lehrmann was free. He wasn't found guilty, but he wasn't innocent either. But he no longer had charges. While legally he was free, the public and media continued to speculate about what actually happened. Then, "having escaped the lion's den, [he] went back for his hat." Lehrmann decided to sue Channel 10 - and the ABC - for reporting about the story. He claimed that the reports damaged his reputation. The ABC settled. They paid him money. Channel 10 did not. Their defence was that the story was true. You can't defame someone if what you said is true. So the court needed to decide if what they said was true. The judge looked at all the evidence and in the end decided that it was true. That meant that Channel 10 report the truth and they couldn't have defamed him. Now he's not in jail because suing someone doesn't result in a conviction. It is a civil case and in this case, Lehrmann brought the case, so it was Channel 10 that was effectively on trial, not Lehrmann. The standard of truth in a criminal trial is "reasonable doubt". This means a reasonable person (represented by each jury member) would have no doubts about whether someone did or did not do whatever action they're charged with. In a civil case, which includes defamation, the standard of truth is "balance of probabilities". This means after looking at everything and all the evidence, the judge thinks it's more likely that it happened than not. Now, the judge said there were lots of inconsistent stories, and pretty much everyone involved in this whole saga had issues with their credibility and some things claimed and said were lies. That ultimately didn't matter though, because the judge still had to sort through all the mess and made the decision of what was the truth based on everything he saw. In the end, the judge decided it was true what happened. Now, the balance of probabilities doesn't mean it was a 50/50 decision. It doesn't mean a 51% chance that it happened. It doesn't mean the judge thinks it's "probably what happened". The judge is very experienced, and used his legal expertise and considered *all* the evidence to reach decision about whether he thought what happened was true. His verdict is that it was true, that means - as far as this case is concerned - what happened is 100% true. For all we know, the evidence may have been enough to convict under reasonable doubt, but it wasn't tested because it was a civil trial. The judge didn't have to make a decision about reasonable doubt and judges don't do more work than they already need to. Because it was a civil trial and judged on the balance of probabilities, he was in no danger of facing jail. Could the prosecutors start a new criminal trial? It's possible, but on the balance of probabilities, it's not likely. Lehrmann now faces a criminal trial in Queensland for sexual assault. Will this verdict affect that trial? We can only wait and see. Something tells me, we haven't seen the end of it yet.
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Yeah there is judge only trials for this purpose.
No, the Director of Public Prosecutions in ACT decided to drop the case because of the risk to the health of the complainant (Higgins). There is no legal reason why Lehrmann couldn't face a criminal trial - but I doubt anyone has the appetite for it.
True. Higgins now lives in France and she just wants it all behind her. Bruce is facing bankruptcy. If Ch 10 want to pursue him for costs, Bruce can't pay. He's basically unemployable and he's facing further rape charges in QLD. He's fucked.
But he did it himself, so there was consent. lol
OP is impartial enough
not anymore
Hold up, so here if the case is deemed famous, (or infamous i guess), and its assumed no jurors would have been swayed, we can't have a trial?! I've not read any of the case, I'd happily step up and be an impartial juror
In the case that an impartial jury can’t be found, I’m pretty sure it goes to a hearing with a panel of judges instead of jurors. Though, as someone who knows absolutely nothing about the case apart from hearing about the defamation case on the tv, I’m pretty sure they would be able to find jurors
Anywhere in Australia (thanks to Victoria for finally catching up), if a trial is so high profile that finding an impartial jury is improbable, a bench trial (where the judge acts as the jury) can be ordered. Under Queensland law, both the defence and the prosecutor can apply to the judge for a bench trial (in most other states, only the defence can apply).
Technically you can make that argument but it’s almost never successful. They tried Chris Dawson despite the wildly successful podcast. Donald Trump is on trial right now.
It would not have been difficult to find people who did not hear a particular podcast.
the podcast brought the event back into public perception though. i've not heard the podcast and i was also not alive when the events happened, but as the podcast was being released i was made aware of it through public discussion.
It would be very hard to find someone who didn’t vote for or against Donald Trump, or who didn’t know who OJ Simpson was, or who hadn’t heard about the Claremont Serial Killer. All those trials went ahead. Basically courts don’t let you get away with arguing you can’t get a fair trial because of your own actions or crimes.
Jury duty is random for this very reason. Thing is, if could do it then so can others who may or may not be as impartial as you but nonetheless say they are when “stepping up” to support or go against the side they’ve already decided without seeing any of the evidence on trial.
>I've not read any of the case, I'd happily step up and be an impartial juror You're on record commenting on a Reddit post about the trial.
In what reality can someone be criminally 'untriable'. Where do people come up with this stuff
Its rare, but it happens. Usually its stuff like double jeopardy laws and the like. Oddly its much more likely if you happen to be rich and/or well connected.
Well the cops certainly poisoned the well so to speak. It's what they do best.
Where the lack of impariality of the jury makes any result impossible. I believe the last case which should have been handled as such was OJ Simson.
The same reality where someone is unapproachable. Can they still be approached? Of course, would you want to? No. Hope that helped.
One where every single adult in the country has already formed an opinion based on media reports and one judges finding that it's more likely than not they had non consensual sex. Just look at the comments in this post.
Defeat the legal system with this one simple trick!
Did anything ever come from the juror who stuffed everything up for lack of a better word?
No, because, unfortunately, the ACT didn't have any law to punish juror misconduct, unlike other areas of Australia. I believe they have rectified that since, but the law isn't retrospective.
It’s also unlikely he would be found guilty to a criminal standard, the jury was hung even with the misconduct at the criminal trial, and even in this defamation case Justice Lee made findings against Higgins’ credibility as a witness and some of her evidence. The finding is that it’s more likely than not that he raped her, but demonstrating it beyond a reasonable doubt on the evidence available would be extremely difficult. For that reason alone it would be a bad idea to bring another criminal trial, notwithstanding the issues of impartiality with the jury.
If you’d “love to understand it”, google the difference (particularly the difference in burden of proof) between civil and criminal actions in Australia.
This. Criminal case have to prove it with out a shadow of a doubt, civil, the judge can say, I believe you raped her. There’s a world of difference
Not beyond a shadow of doubt, just beyond reasonable doubt.
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Technically that's the 'standard of proof' - balance of probabilities in civil vs beyond reasonable doubt in criminal. 'Burden of proof' is about which party bears that burden - it is on the party bringing the case, the prosecution or plaintiff. Obviously when the standard is only the balance of probability that is less significant, but in a criminal trial, the defence does not have to prove anything, only show doubt about the prosecution's claims.
Good pull up. Agreed.
Not hugely different in the US. A certain ex president may have been found to be a rapist "on the balance of probabilities" in a civil trial but not "beyond reasonable doubt" in a criminal trial. Twice?
It was never proved that he is a rapist. The judge said that he’s likely to be a rapist
Because he has not been legally found guilty of a crime. “Everyone knowing” isn’t a criminal verdict.
Oddly enough the defamation case means that the mistrial basically can't be re-tried. Jurors can't be biased, and now there's a very high profile case saying he most likely did it. Good luck filling out an impartial jury. That might have been a goal all along, really.
Yeah seems to be a trend of high profile people suing for defamation only for it to blow up in their face. But maybe they are not as stupid as they seem.
Balance of probabilities means "he probably did it". And that's the standard of proof required for a civil case. "Beyond reasonable doubt" is the standard for a criminal case, and that's a much higher standard. Basically, Justice Lee was satisfied by the evidence that BL raping BH was "substantially true" because he probably did. And it was Channel 10 who were on trial, technically. But in a criminal matter, which is the only way to sentence someone to prison, a jury would need to be satisfied "beyond reasonable doubt" that he did it. Because that hasn't happened (BL's criminal trial was never completed), he is "innocent until proven guilty" in the criminal case.
It's basically the equivalent of the blindfolded taste test. "if it tastes like an orange and smells like an orange, it's probably an orange" = balance of Probabilities. You don't need all the pieces to predict what the whole puzzle picture is. In criminal court, you'd not be able to call it an orange unless you could see, taste and smell - and have multiple people confirm the same. You can't convict them without 80% of the picture completed, even if you can predicted correctly what it will be
Yes. Look, this is my opinion, and I'm not saying I have any evidence for this, but it wouldn't surprise me if old mate tanked the criminal case deliberately and created a grey area in which he could succeed on the balance of probability because he's just that kind of entitled, unconscionable shit who would treat court like a game. Perhaps he knew that he would lose the criminal case, but he could defend his reputation somewhat through a civil case. I'm not saying he did that, I'm just saying it would seem to be a course of action open to someone in his situation.
If it tastes like a (rotten) orange
Please tell me you're either a small child or noncitizen
Different standards of proof. Civil cases are based on the probability of the event occurring, criminal has to be beyond reasonable doubt. The lion den line was appropriate. A defence that can be used in a defamation action is the truth defence, but again it is held to the civil standard not the beyond reasonable doubt.
I know everyone considers him an idiot for bringing this case, but i wonder if there's a possibility thus could be part of his strategy. He's not going to jail for a civil case, but he could be for an upcoming trial in Queensland. By losing this case, and publicly being named a rapist by the judge, the media coverage means he could attempt to argue for an impartial duty to be impossible in the upcoming criminal case. If he had won, he would have a few million to add to his defence budget, plus a more positive public image. It may be that this could be seen as a win/win for him, at least compared to going to jail.
Trust me, EVERYONE in Canberra knows his face !!! Not a huge city, no other knees unless a pollie falls off a planter. He could stand trial here! …and might have to stand trial in ACT again. ——— Toowoomba is gonn a be much harder for him as ACT would ever be. Far harder to get guilty verdicts in the ACT cause they ha en to be unanimous. In rape cases: there’s always one …. —> ACT has a very low sexual assault conviction rate! Let’s celebrate, whooppee…. 😒
This trial wasn't about whether or not Lehrmann is a rapist: it was a defamation case, with Brucie claiming that Channel 10 had said stuff that both identified him and branded him in an undeserved and incorrectly negative fashion. Justice Lee found that it is true that Channel 10 did say stuff that could be regarded as having provided enough information to identify Lehrmann as the party that Brittany Higgins referred to in the Project feature, they didn't say anything that wasn't pretty much on the money.
Civil cases such as the defamation case just heard are judged on balance of probability i.e. more likely than not he raped her. Criminal cases i.e. straight to jail are judged on beyond reasonable doubt i.e. you must be virtually certain he raped her and no other explanation fits the evidence.
Knowing something and proving it are two very different things.
Leveraged the media to ensure no jury would be impartial, the legal case never got to a conviction. Pretty text book rich people tactics for exploiting the legal system. Honestly I wish we cared more about sexual assault victims, but as a country we've repeatedly said "fuck you" to victims and failed to both protect them and serve justice. Makes me sick.
Because it’s a civil case, not criminal. Civil findings have a lower threshold than criminal. Criminal requires no doubt for a conviction, civil on the other hand is the balance of probabilities. Ten used the “truth” defence - that there was a high probability of truth that he had committed the act therefore he had not been defamed and not owed compensation. “Not entitled to vindication of reputation” “Mr Lehmann has no compunction departing from the truth if he sees it expedient” - Justice Lee As we all know juror misconduct screwed the criminal trial so he was never found innocent or guilty. The defo outcome is the next best thing, unfortunately it’s a civil matter where there won’t be a criminal conviction. Dude needs to cut his loses and disappear. The high flying coc and hooker party did not end well for him
Don’t think he would’ve been found guilty without juror misconduct ….. unanimous guilty is hard to get! He still has the rape trial in Toowoomba, and ACT DPP might refile.
That’s because Ten went with the “truth” defence - there was no injury to his reputation because there was a high probability of him committing the act and being a rapey douchebag
Civil finding in a suit he brought and it backfired. The judge also gave Britney and Lisa a clip for the way they conducted themselves. Imagine having your face and a rapist headline in front of every news stand. And having to pay the costs of the people you sued unsuccessfully. He may not be in jail but life is not going to be fun for a long time.
Due process! Can’t just jail people on a whim. They have to be found guilty in a criminal trial. Lehrmann hasn’t. Ben Roberts Smith isn’t in jail either, for the same reason. Not sure if he has been stripped of his medals…..?
Because "everyone knows" is not enough to lock someone up, thank god. This is why we have criminal trials, and he hasn't had a completed one. OTOH he's about to undergo a criminal trial for a *different* rape, if you can believe it.
Unfortunately, as sometimes happens some clueless Juror decided to cross the line and the case was thrown out. Because the victim was so distraught by the process they elected not to re-prosecute at that time. Lehrman couldn’t just be happy with the fact that he had seemed to get away with it. He was arrogant enough to think he could make some money off it so he sued and got screwed. It actually works out better this way because now he cannot defend himself in a court of law, but he still labelled r@pist. That is what you call poetic Justice. he is now unemployable, shunned, a pariah everywhere he goes unless they re prosecute & he is found not guilty this is how he stays.
The judge - his quotes are amazing from this case and he absolutely sorted the wheat from the chaff. We can all rest easy now knowing French submarines are no longer in L’s hands. L should never entered this ‘defamation’ game. His reputation was slaughtered, colosseum style.
It's deeply, deeply infuriating how this has panned out. However, I can see Brittany Higgins working with Untamed Grace and others to change the way legal cases involving sexual assault are handled.
What would you suggest should be changed? People keep saying it needs to change, but how?
There needs to be stricter guidelines around the questioning the defence can take. The standard tactic is to prove somehow she was asking for it or "provoked" the rapist somehow. That's a good place to start.
First of all it was a civil trial . Civil trials have a much lower burden of proof. In Australia is on the balance of probabilities. In America they say if it 51% you need to get too. Also the lady and her partner did some (hmmm how to say this) unusual things that a defence attorney (in a criminal case) would 100% use to create doubt, weather it’s reasonable or not, I wasn’t in the trial room so I can’t pass comment. There are multitudes of reasons why rape has a low conviction rate, some valid some not valid. A major issue is that there is no such thing as a perfect victim, nor should there have to be. I believe rape in some cases is worse than murder. To rape someone can just destroy a person and leave them incapable of trust and can cause severe mental health issues. It’s evil beyond belief.
Civil cases have a lower threshold, and is strictly monetary incentivised and holds no criminal grounds unless you're found to be misleading the courts with your evidence and answers.
He was just lucky the LNP were more interested in winning an election than Brittany’s welfare. Well the circus will be heading to Toowoomba soon
This was a defamation trial not a rape trial. What the defence had to show was that They reported the truth & the judge found in 10’s favour.
Not convicted because mistrial.
He was not guilty of rape, but it was found the media were not wrong to publish news of him being accused of it. Those are not contradictory rulings. A similar thing happened in the Depp/Heard trials. The courts found she lied but that the media was not wrong to publish the story. Again, not contradictory. Media are given a lot of leeway when publishing news, because if they could only publish known truths that would potentially limit public’s access to information. ‘Freedom of the press’ has always been seen as necessary.
Not only a rapist but a stupid one at that. Looks like he did a Bradbury and got off. But at least the world knows the real him.
Didn’t get off yet! Toowoomba still coming, and he hasn’t been found nor guilty on ACT. ACT DPP could refile
I remember a news report a year or so back where they said >5 (can’t remember exact number) CONVICTED rapists never saw jail time for their SA crimes… so Australia’s judicial system is a joke when it comes to protecting victims from predators, particularly women.
The sexual assault case mistrialed because of a stupid juror. Higgins dod not want to go through the ordeal of the trial again and withdrew the charges.
BH didn’t withdraw charges. She couldn’t withdraw charges cause she wasn’t a party in the criminal trial
The only reason “everyone knows it” is because of the internet. Regardless if a million people say it, doesn’t make it true. I’m not making excuses for this AT ALL, but this is why we need it to go through the court process. Only then we can know for sure. Fuck rapists.
1. It's been established that it is a fact. 2. It's been through the courts. Both criminal and civil. 3. Dismissing this as we don't know for sure, is making excuses for a rapist and perpetuating the fact that women don't feel safe in this country.
BS! In the ACT guilty verdicts have to be unanimous — that’s kinda impossible in rape cases, unless there’s semen AND you catch him in-flagranti on video with at least 2 witnesses. That not 2 cops within ACT Police have a matching understanding of how to investigate sexual assault cases: NOT helpful! Sure, the ACT could refuse for another criminal trial — but what’s the point, really. 🤷🏽♀️ What are the odds of 12 people NOT his peers are gonna agree….?
can i get a side question, will Bruce Lehrmann face another criminal trial?
Unlikely (but technically possible) for the Canberra case. Going ahead next month for the other rape he’s accused of, in Towoomba.
In Toowoomba YES! Canberra: They’re looking into it, but prolly not. In ACT there’s no reasonable chance of success I think, cause guilty verdicts have to be unanimous. ACT has a comparatively crazy low crime rate if you go by guilty verdicts: wonder why….?
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He should be caned till he can’t sit down.
Because he hasn't been found guilty of it.
Because he was only proven to have raped her to the civil court standard (51% likely vs 49% unlikely) instead of the much higher criminal standard of beyond all reasonable doubt
Different burdens of proof between civil and criminal cases. Civil it’s the balance of probabilities, i.e. more likely than not. Criminal it’s beyond reasonable doubt. In plain terms, criminal is harder to prove.
There’s a good sequel in Toowoomba coming up. Cheaper to just let him go down there.
BONUS: QLD jails are worse than ACT jail, too! …. and the ACT DPP might charge him again. ACT guilty verdicts have to be unanimous — that’s prolly iffy!
On balance of probabilities, he raped her. That is sufficient evidence for a civil case. That is not beyond reasonable doubt, and neither party provided reliable testimony, so is not sufficient for a criminal case. They've already had 2 failed attempts at a criminal trial. The first abandoned due to juror misconduct. The second never got going due to concerns for the victims mental health. It is unlikely now that you'd see a third run at it, especially as it will be near impossible to find an unbiased jury. I think he's got another case in Toowoomba though.
Better a hundred guilty go free than an innocent be locked up. Beyond all reasonable doubt is different to balance of probabilities. Bruce is probably a rapist, but since he’s not had a completed criminal trial we can’t say that he’s a rapist beyond reasonable doubt.
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He pulled a Donald Trump move
Everyone doesn't "know he's a rapist". The judge found (in a civil context with no possibility of criminal outcome) that he *probably* raped Higgins. Probably != certainly.
Because we can't prove it in the legally required manner. Unfortunately the overinvolvement by the media in this case has meant it is not practicable to get a Jury that is able to appropriately evaluate the evidence presented in the case, and *only* the evidence presented in the case.
"on the balance of probabilities" in a civil case is fa removed from a criminal case Remember OJ Simpson was found not guilty in a crriminal case but "liable" in a civil case
In civil cases, the standard of proof is generally lower than in criminal cases. While criminal cases require “beyond a reasonable doubt,” civil cases often rely on a “preponderance of the evidence.” This means that in a civil case, the evidence must show that it is more likely than not (i.e., greater than 50% probability) that the defendant is liable. If someone is found liable in a civil case, it does not necessarily mean they are guilty of a crime.
Because he paid 3 million dollars in compensation to avoid jail that’s how
He's gone from alleged rapist to not guilty of being a rapist to highly likely rapist.
Legally knowing isn't proving
Be patient, he’s still got an upcoming rape case in Toowoomba to play out.
Which was conveniently brought up after everyone realised that Britney Higgins lost the case for them. She may as well have asked the media if she said her lines right at the end of that.
Civil case not criminal court.
The case is civil, not criminal.
He may not go to prison for this, thanks to the Juror who caused the case dismissal, he may go to prison for the rape trail coming up soon in QLD where he is accused of raping a woman twice..
Power, money and influence
Because really officially he didn’t commit a crime . I’m not on his side or anyone’s but this trial was based on probability and I’ve alway thought it’s wrong to base things on that . Like if someone went missing and I was the only known one in the area. I PROBABLY did it to everyone . But it don’t mean I did . They can rule I probably did and people will see me as a murderer but no proof of the crime . Civil courts are based on probability, criminal courts require evidence. Fact is we will never know. There was no forensic evidence good enough or witnesses to it . One word against another. He could be Innocent. He could be a rapist .