Lehrmann has become a ‘national joke’, court told

Bruce Lehrmann’s lawyer has told a court the former federal Liberal staffer has become a “national joke” as he fights to overturn a damning finding that he raped his then colleague Brittany Higgins in Parliament House.

Lehrmann is appealing against Federal Court Justice Michael Lee’s landmark decision last year dismissing his defamation case against Network Ten and journalist Lisa Wilkinson.

Lee was satisfied Ten and Wilkinson had proved to the civil standard – on the balance of probabilities – that Lehrmann raped Higgins in the office of their then-boss, Liberal senator Linda Reynolds, in the early hours of March 23, 2019. This is lower than the criminal standard of beyond reasonable doubt.

The Full Court of the Federal Court – Justices Michael Wigney, Craig Colvin and Wendy Abraham – started hearing the appeal in Sydney on Wednesday.

‘Australia’s most hated man’

Lehrmann’s solicitor, Zali Burrows, said her client was the subject of intense media scrutiny and had been harassed on social media.

“He’s pretty much become the national joke, and … he’s probably Australia’s most hated man,” Burrows said.

Burrows said the appeal court should reassess damages if his appeal was successful. Lee had concluded Lehrmann would have been entitled to only $20,000 if he had won the case.

She also apologised to the court that he was not represented by a silk. Burrows said Lehrmann “really wanted” Sydney barrister Guy Reynolds, SC, but “couldn’t afford” him.

The defamation case

The defamation case centred on an interview with Higgins broadcast on Ten’s now-defunct The Project program in 2021. Lee found the interview conveyed that Lehrmann, who was not named, was a rapist, but that Ten and Wilkinson had succeeded in proving this was true.

In his decision last year, Lee found Lehrmann was “hell-bent on having sex” with Higgins, had encouraged her to drink, and did “not care one way or another whether [she] … understood or agreed to what was going on”.

This amounted to recklessness about consent as opposed to actual knowledge of a lack of consent.

The appeal

A central argument by Lehrmann in his appeal is that he was denied procedural fairness because Lee allegedly made findings that differed from the nature of the rape alleged by Ten and Wilkinson. Lehrmann claims this version of events was not put to him in court for his response.

Burrows said the media parties alleged a “violent rape” during which Higgins said “no” repeatedly. However, Lee found it was more likely Higgins was passive, Lehrmann knew she had “reduced inhibitions because she was very drunk”, and he was indifferent about consent.

‘Non-violent rape’

Burrows submitted that Lee’s findings involved a “non-violent rape”, prompting Justice Colvin to say: “I’m not sure he found a non-violent rape, and I’m not sure … that’s a concept that I understand.”

Justice Wigney said Lehrmann was “aware of the allegations” of recklessness because they were set out in the media parties’ written defences. He noted Lehrmann had maintained there was no sexual intercourse at all.

“What do you expect that he would have been asked in those circumstances?” Wigney said. “He would have kept on saying there was no sexual intercourse, wouldn’t he?”

Burrows replied that “just because he’s … given denials to the court of allegations of a violent rape” did not mean it could be assumed he would have “given the same answers if there was a different set of allegations put to him”.

Dr Matt Collins, KC, acting for Ten, said this was an “astonishing submission” which could “only mean” there were circumstances in which Lehrmann would have conceded he had sex with Higgins “but argued that he thought he had her consent, or he did have her consent”.

“That was never the way he ran his case,” Collins said.

Lehrmann was asked a series of questions during the trial in 2023 about whether he had raped Higgins or had sex with her. He gave evidence he did not have sex with Higgins, and he “didn’t get consent because I didn’t have sexual intercourse”.

‘All rape is violent’

Collins said the court should find Lehrmann knew Higgins was not consenting. He said Lee’s findings were consistent with “a ghastly rape”.

As to the distinction Burrows drew between violent and non-violent rape, Collins said that “all rape is violent” and involved an “abhorrent violation of bodily autonomy” causing “grave trauma”.

Ten had made submissions in court and in writing about recklessness, Collins said, meaning it was “just not right” to say the allegations had not been put to Lehrmann.

Collins said Lee had found Higgins was “not fully aware of her surroundings when the act begins”, did not consent when she became aware but did not “get the words out to scream or resist”, and Lehrmann left her there when he was finished. “Those circumstances are awful,” Collins said.

Sue Chrysanthou, SC, acting for Wilkinson, said: “We say a young man who knows that a woman is very drunk knows that she can’t consent, in this day and age.”

She said Lee’s “serious” findings were consistent with that conclusion.

In submissions filed earlier this year, Wilkinson urged the appeal court to uphold the truth defence. If that defence is not upheld, Wilkinson says the court should find she acted reasonably in broadcasting the rape claim.

A finding that she acted reasonably is central to the success of a defence known as qualified privilege. Lee found this defence would have failed if the truth defence was not established.

Lehrmann’s ACT Supreme Court criminal trial over the alleged sexual assault of Higgins was aborted in October 2022 due to juror misconduct, and the charges were later dropped altogether owing to concerns about Higgins’ mental health.

The hearing continues on Thursday.

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