‘Rape myths’: Ten, Wilkinson hit back at Lehrmann over appeal bid

Network Ten and Lisa Wilkinson have hit back at Bruce Lehrmann after he filed a last-ditch bid to overturn a damning defamation decision that concluded he raped his former colleague Brittany Higgins in Parliament House.

Lehrmann is seeking High Court special leave to appeal against the decision of the Full Court of the Federal Court, handed down in December last year.

The former federal Liberal staffer argues the court should have upheld his appeal against Federal Court Justice Michael Lee’s landmark decision in 2024 that found on the balance of probabilities that he was a rapist.

Lehrmann’s legal team alleges in documents filed in the High Court that the Full Court’s decision “depended on findings made by [Lee] … that were compromised by his having conducted his own research and having obtained extraneous non-legal material”.

The application for special leave points to material referred to in Lee’s decision, including a University of NSW Law Journal article that the judge described as “dealing with how so-called ‘rape myths’ play a role in jury decision-making”.

The term “rape myths” refers to misconceptions about how victims might behave during and after a sexual assault.

Ten and Wilkinson said in responses filed in the High Court that the special leave application lacked sufficient prospects of success and should be refused.

Ten’s legal team, headed by Melbourne silk Matt Collins, KC, said in its response that Lee “did not identify the … [rape myths] paper as a result of ‘conducting his own research’” but because Ten had, in fact, referred to it during the trial.

Ten had argued the paper “supported their submission that expert evidence of ‘rape myths’ was relevant and admissible” in the defamation case, the broadcaster said in its written response.

Ultimately, Lee did not need to decide whether expert evidence on that topic was admissible because Ten did not tender it. The rape myths paper was referred to in the judgment “only in” the context of discussing that chain of events, Ten said.

Ten said a second paper on rape myths, which was referred to in an expert report it opted not to tender in evidence, was “referred to in passing” by Lee and was “obviously not relied upon” by the judge in reaching his rape finding in an earlier part of the judgment.

Wilkinson’s barristers, Sue Chrysanthou, SC, and Barry Dean, said in a separate response that “there is no factual basis for [Lehrmann] ... to allege that the primary judge’s factual findings were compromised” as he alleged.

Lehrmann filed defamation proceedings in 2023 against Ten and Wilkinson over an interview with Higgins aired on Ten’s now-defunct The Project in 2021.

Lee upheld the media parties’ defence of truth to the rape allegation made in the broadcast. He found on the balance of probabilities that Lehrmann sexually assaulted Higgins in Parliament House in 2019.

The appeal court – Justices Michael Wigney, Craig Colvin and Wendy Abraham – went even further than Lee in its decision last year. It made a significant finding that Lehrmann was not reckless about whether Higgins was consenting to sex, but was aware she did not consent.

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.

Lehrmann filed the application for special leave to appeal against that decision in the High Court last month.

Anyone needing support can contact 1800 RESPECT (1800 737 732), National Sexual Abuse and Redress Support Service 1800 211 028, Lifeline 13 11 14, and Kids Helpline 1800 55 1800.

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