Bruce Lehrmann has appealed the federal court’s finding that he raped Brittany Higgins on the grounds that the sexual assault described by Justice Michael Lee was “substantially inconsistent” with the violent rape portrayed on The Project.
In April last year Lee found that, on the balance of probabilities, Lehrmann raped Higgins in Parliament House in 2019 and the former Liberal staffer was not defamed by Network Ten and Lisa Wilkinson when they broadcast an interview with Higgins in 2021.
Lehrmann is appealing the judgment and has filed submissions in the federal court outlining several grounds for appeal.
His appeal lawyer Zali Burrows said Higgins told The Project the incident involved “forceful sexual intercourse” but the case found by Lee “involved no force”.
“The problem is that the broadcast clearly suggests a violent rape, where the complainant was in tears and repeatedly refused consent, of which repeated refusal the perpetrator must have been aware,” the submission said.
“That is quite different from a non-violent rape involving inadvertent recklessness as to whether there was consent.”
Lehrmann’s legal team say he was denied procedural fairness because the case which was found to be true was not put to him in cross-examination.
“He was not cross-examined adequately on issues arising in the truth defence and accordingly, there has been a breach of procedural fairness to the extent we submit must result in the judgment against Mr Lehrmann being set aside,” the submission said.
Lehrmann has also argued the definition of rape was misconstrued by Lee and was not the ordinary person’s understanding of the word.
“The rape described graphically by Ms Higgins included allegations of violence, an assault, called out ‘no’ on multiple occasions and numerous references to an assault and trauma,” the submission said.
“The ordinary reasonable reader would have, particularly in this context, exclude rape by this form of non-advertent recklessness and would probably mean a violent rape with express lack of consent.”
In his judgment Lee said he was “satisfied a rape took place” but he did not accept it had been established that Higgins was crying and telling Lehrmann to stop at least half a dozen times or that he crushed “his leg against her leg so forcefully as to cause a large bruise” or that he left her “with her dress up around her waist”.
The third ground is that it was open to Lee to simply say “I just do not know” who to believe which would have led to a finding Ten and Wilkinson hadn’t proven their case.
This argument is based on adverse credit findings Lee made against both Higgins and Lehrmann because he did not think they had been entirely truthful.
“This is an exceptional case, and it was open to His Honour to simply say ‘I just do not know’ who to believe when he has made adverse credit findings against both Ms Higgins and Mr Lehrmann,” the submission said.
“His Honour did not believe the account of either Mr Lehrmann or Ms Higgins.”
Lee said in his judgment that if Lehrmann had won he would have been entitled to damages of $20,000.
Burrows said if Lehrmann is successful in reversing the finding in respect of justification he is entitled to “aggravated damages of a considerable amount”.
In October Justice Wendy Abraham allowed the appeal and said the finding by Lee “is extremely serious” and the appellate process is a “fundamental aspect of the administration of justice”.
Abraham said aspects of Ten and Wilkinson’s case had failed at trial and all parties now claimed Lee’s judgment contained errors.
Wilkinson has also challenged Lee’s finding, but on the grounds that she acted reasonably in broadcasting an allegation of rape.
In her submissions to the appeal, Wilkinson said the qualified privilege defence “should have been found to have been established” in the original judgment.
• Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). In the UK, Rape Crisis offers support on 0808 500 2222. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
