premised on his guilt, and the headlong rush to judgment by those who unthinkingly obliterated "the distinction between an untested allegation and the fact of guilt" (to use the words of McCallum CJ).
1058 He also was visibly angered and upset about aspects of the conduct of the Director of Public Prosecutions during his criminal trial and, after trial, when Mr Drumgold implied, while making a public declaration praising Ms Higgins, that he personally believed her complaint was true and therefore Mr Lehrmann was guilty, even though the law continued to presume his innocence. Wholly unjustifiably, he also seemed to harbour resentment at the way in which the Chief Justice summed up the case to the jury.
1059 To a disinterested observer conscious of the importance of the rule of law, his white-hot anger as to his right to a fair trial and the presumption of innocence being undermined by persons presuming his criminal guilt and then expressing their conjecture publicly before the allegation was tested (and later when it was to be no longer tested in the criminal justice system), is perfectly understandable. But from my observation, this reaction seemed to be qualitatively different to the evidence he gave as to his subjective reaction to the publication of the imputations as to the underlying allegation of rape. This is likely to do with the fact that on the premise I am calculating damages, he well knew he had sex with Ms Higgins, which gave rise to at least some questions as to consent (remembering that we are presently dealing with a counterfactual).
1060 Mr Lehrmann was curiously phlegmatic when giving evidence as to the publication of the rape allegation itself, although I recognise it is important not to make too much of such demeanour assessments. As I have noted elsewhere (Kumova v Davison (No 2) (at [296])), ordinary human experience reveals there are people who express themselves in an understated way, and others who emote freely and are otherwise less restrained. This does not mean that the subjective hurt of the former person is any less than that of the latter. What matters is the genuineness of the evidence as to hurt to feelings, which is best assessed by the evidence-in-chief on this topic being given viva voce and in person. What was notable here, from close observation of the oral evidence, was the difference in demeanour between Mr Lehrmann's evidence as to his reaction to the publication of the imputations, and his manifest distress when speaking of the actions of those who acted without regard for his right to a fair trial.
