Justice Michael Lee relied on an “arguably archaic” definition of consent when he found Bruce Lehrmann was “reckless in his indifference” to Brittany Higgins’ consent, Lisa Wilkinson has argued in fresh submissions in the Lehrmann defamation appeal.
Lehrmann, a former Liberal staffer, has appealed Lee’s April 2024 judgement that he was not defamed on four grounds by Network Ten and Wilkinson when they broadcast an interview with Higgins in 2021.
In the judgement Lee found that, on the balance of probabilities, Lehrmann raped Higgins in Parliament House in 2019.
On Monday Wilkinson and her former employer filed their submissions separately in response to Lehrmann’s appeal.
Wilkinson argued in documents filed to the federal court that Lee should have found that “an intentional rape” had taken place, instead of finding that there was no evidence Lehrmann knew that Higgins did not consent to the sexual activity.
“The primary judge proceeded on a legalistic and arguably archaic understanding of knowledge of consent given that he was not satisfied that Ms Higgins verbally or physically resisted,” Wilkinson argued.
“Having found Ms Higgins was significantly intoxicated, that the appellant was aware of her significant intoxication and that at the time of sexual intercourse Ms Higgins was passive ‘like a log’, his Honour should have found that the appellant had knowledge of Ms Higgins’ lack of consent at the time of intercourse.”
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.
Wilkinson’s counsel, Sue Chrysanthou SC and Barry Dean, have challenged various findings made by Lee.
Lee upheld the defence of truth, but found Wilkinson and Network Ten failed to establish the qualified privilege defence – that is, that the information broadcast was in the public interest and that they acted reasonably in airing the claims.
Wilkinson said although Lee concluded Lehrmann had no belief either way of Higgins’ consent, the ordinary person would consider that meant he had intentionally committed rape.
“It was therefore unnecessary for the primary judge to decide the defence on the alternative basis of recklessness – on the facts found by [Justice Lee], an intentional rape had been proved by the respondents in so far as that word, rape, is understood by the ordinary person.”
One of Lehrmann’s four appeal grounds is that he was denied procedural fairness because the case which was found to be true was not put to him in cross-examination.
“The rape described graphically by Ms Higgins included allegations of violence, an assault, [that she] called out ‘no’ on multiple occasions and numerous references to an assault and trauma,” Lehrmann’s appeal lawyer, Zali Burrows, said.
Burrows said Higgins told The Project the incident involved “forceful sexual intercourse” but the case found by Lee “involved no force”.
In response, Wilkinson submitted this argument is misconceived because at trial Lehrmann’s lawyers said it was unfair to ask him about consent because he had denied sexual intercourse.
“Given his emphatic denials of sexual intercourse or any similar intimate interaction whatsoever, there was no lack of fairness in not putting to Mr Lehrmann that he was reckless to Ms Higgins’ consent when he had had sexual intercourse with her,” the submission said.
“At trial Mr Lehrmann’s lawyers were of the view that it was unfair to ask him about consent because he had denied sexual intercourse.”
Lehrmann also argued the definition of rape was misconstrued by Lee and was not the ordinary person’s understanding of the word.
In reply, Wilkinson said all rape, including the rape that Lee found to involve non-consensual sexual intercourse, “is a serious act of violence”.
“The submission that there is non-violent rape involving non-consensual sexual intercourse or that the primary judge found a non-violent rape is misconceived and should be rejected outright,” Wilkinson said.
The third ground of Lehrmann’s appeal, that it was open to Lee to simply say “I just do not know” who to believe, should be disregarded, Wilkinson said.
Lehrmann said Lee did not believe the account of either Lehrmann or Higgins.
“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,” Lehrmann’s appeal document said.
“His Honour did not believe the account of either Mr Lehrmann or Ms Higgins,” Lehrmann said.
Wilkinson responded that it was open to Lee to accept the part of Higgins’ evidence that he found credible, “and more significantly was directly corroborated by the documented records of contemporaneous complaint”.
