done what they did [it] would have been catastrophic" (T526.16–36). It follows that in his opinion, the improper conduct quickly redounded to his considerable forensic advantage.
1088 Although I am satisfied that Mr Lehrmann was justifiably angry and hurt at the giving of the Logies speech (as would any accused when the conduct of others may adversely influence the disposition of likely jurors), and the giving of the speech did serve to increase his subjective hurt, the evolution of his state of mind to the recognition that the Logies speech significantly reduced his chances of conviction, diminishes the practical and ongoing effect of the aggravating conduct.
M.7Quantum
1089 Despite both being compensatory in nature, where applicable, in relation to post-1 July 2021 publications, s 35(2B) of the Defamation Act requires an award of aggravated damages to be made separately from ordinary compensatory damages. That provision does not, however, apply in this proceeding and I will proceed to make a single award as has been the traditional common law approach.
1090 Mr Lehrmann would have been entitled to more than a nominal award but as the above analysis demonstrates, his award of ordinary compensatory damages would be very modest. Hence any augmentation of damages occasioned by the aggravating conduct, comes from a very low base. If it had been necessary to assess damages in favour of Mr Lehrmann, the appropriate and rational relationship between the actual harm sustained and the damages awarded would lead to total damages of $20,000.
NCONCLUSION AND ORDERS
1091 Having escaped the lions' den, Mr Lehrmann made the mistake of going back for his hat.
1092 As I stressed at the commencement of these reasons, there is a substantive difference between the criminal and civil standards of proof. To make the grave finding Mr Lehrmann raped Ms Higgins, it is unnecessary for me to reach a level of certainty indispensable to criminal liability. The respondents have not won because I can exclude all other possibilities as to what happened, but because they have proven that such possibilities that are open on the evidence, both individually and collectively, are unlikely; and further because I am satisfied that the evidence provides an appropriate basis upon which to reach a conclusion. Put another way, they have proven that the whole of the evidence, properly analysed, establishes a
