Brittany Higgins says she can ‘breathe again’ after Lehrmann’s appeal bid fails

Brittany Higgins has said it feels like she can “breathe again” after Bruce Lehrmann failed in his bid to overturn a landmark defamation ruling that he raped her in Parliament House.

The Full Court of the Federal Court on Wednesday rejected Lehrmann’s appeal against his defamation loss and made further damning findings against the former federal Liberal staffer.

In a decision last year, Federal Court Justice Michael Lee found on the balance of probabilities that Lehrmann sexually assaulted Higgins in Parliament House in 2019.

On that basis, Lee dismissed Lehrmann’s multimillion-dollar defamation suit against Network Ten and journalist Lisa Wilkinson over an interview with Higgins aired on Ten’s now-defunct The Project in 2021. He upheld the media parties’ defence of truth to the rape allegation.

On Wednesday, the appeal court – Justices Michael Wigney, Craig Colvin and Wendy Abraham – dismissed Lehrmann’s appeal against Lee’s decision and ordered him to pay his opponents’ legal costs.

Higgins said in a statement on Wednesday night: “Finally, it feels like I can breathe again.

“Thank you to the court for their consideration, the defence legal team for their tireless efforts and to Channel Ten for being such ardent supporters of survivors of sexual assault.

“While on the face of it this was a defamation case against a media outlet, in reality this was once again a rape trial.”

She said the litigation had been retraumatising but “[even] after everything, I still believe in the importance of speaking out about gendered violence”.

The court went further than Lee and made a significant finding that Lehrmann was not reckless about whether Higgins was consenting to sex, but was aware she did not consent and went ahead anyway.

The “only reasonable inference from the facts as known to Mr Lehrmann at the time, is that at some point before sexual intercourse commenced, Mr Lehrmann … was aware that she was not consenting, but proceeded nonetheless”, the court said in its written decision.

The trio of judges said the circumstances before Lehrmann “screamed loudly to anyone with normal faculties that the very drunk, passive and silent woman … who was his junior colleague at work and who was not in any kind of personal relationship with [him] … had not consented”.

“There is no suggestion that events unfolded in a way that meant Mr Lehrmann did not have time to reflect on the circumstances as they were presented to him or that they had some other dimension that was relevant to Mr Lehrmann’s knowledge at the time,” the decision said.

Professor David Rolph, a defamation law expert at the University of Sydney, said the result of the appeal was “entirely unsurprising”.

“If anything, in relation to the finding of actual knowledge of a lack of consent, it proves the wisdom of the dictum that nothing is ever so bad that it can’t get worse.”

Lehrmann’s lawyer, Zali Burrows, had argued Lee had insufficient evidence to find the former staffer was a rapist, and the nature of the rape Lee found had occurred differed from the “violent” rape depicted in the interview.

The appeal court said some of the submissions advanced for Lehrmann were “infected with antiquated notions as to what constitutes rape, particularly that it involves taking by force”.

Burrows said outside court that this was “not the end of … [Lehrmann’s] pursuit for justice” and he would be seeking advice about a High Court application for special leave to appeal.

Lee found that Ten and Wilkinson had proven to the civil standard – on the balance of probabilities – that Lehrmann was “hell-bent on having sex” with Higgins, had encouraged her to drink, and did “not care one way or another” whether she consented.

He concluded that Lehrmann had raped Higgins in the early hours of March 23, 2019, in the office of their boss, the then-Liberal defence industry minister Linda Reynolds.

In a later decision, Lee ordered Lehrmann to pay $2 million to Ten to cover some of its legal costs of defending his failed lawsuit. The unemployed law student does not have the means to pay that sum.

Notwithstanding the costs orders in its favour, Ten is left with a multimillion-dollar legal bill for defending the lawsuit and the appeal. The broadcaster agreed this year to pay $1.15 million to Wilkinson, its former employee, to cover some of the costs of her separate legal team.

Both Ten and Wilkinson, via their barristers Dr Matt Collins, KC, and Sue Chrysanthou, SC, successfully argued that the appeal court should go further than Lee and find Lehrmann knew Higgins did not consent to sex. This was because Lee had found Lehrmann knew Higgins was “very drunk”.

The appeal court noted that Lee had “ultimately found that when Ms Higgins was on the couch and sexual intercourse occurred, she was, as she had said in the days after the incident, ‘like a log’, that is to say, she was passive and that she did not, or was unable to, articulate anything”.

“[In] our respectful view, his honour should have found actual knowledge on the part of Mr Lehrmann that Ms Higgins did not consent to sexual intercourse.”

Lehrmann maintained during the defamation trial that he did not have any sexual contact at all with Higgins.

His ACT Supreme Court criminal trial over Higgins’ alleged rape was aborted in 2022 due to juror misconduct. The charges were later dropped owing to concerns about Higgins’ mental health.

Support is available from Lifeline 13 11 14; Beyond Blue 1800 512 348; Kids Helpline 1800 55 1800; National Domestic Family and Sexual Violence Counselling Service 1800RESPECT (1800 737 732).

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