Federal Court judges question logic of Bruce Lehrmann's legal argument in appeal against defamation ruling

Australia Broadcast Center

15 hours ago

Bruce Lehrmann's bid to overturn a finding that he raped his former colleague Brittany Higgins has not started smoothly, with Federal Court judges questioning the logic of his grounds of appeal.
The former Liberal staffer's defamation claim against Network Ten and journalist Lisa Wilkinson failed, after Justice Michael Lee found last year, on the balance of probabilities, Mr Lehrmann had raped Ms Higgins at Parliament House in Canberra in 2019.
Follow our live blog for the latest updates from the courtroom.
Mr Lehrmann has now returned to the Federal Court to seek to overturn that finding, represented by his solicitor, Zali Burrows.
Mr Lehrmann is being represented solely by Ms Burrows, because the court heard he was unable to afford his preferred barrister, Sydney silk Guy Reynolds.
"Mr Lehrmann couldn't afford Mr Reynolds, which we really wanted, so we apologise in advance," Ms Burrows told the court.
Ms Burrows conceded she was "not as prepared" as the opposing council but said "I'm just going to try and do the best I can".
This morning, in spelling out the first of four grounds of appeal, Ms Burrows said Mr Lehrmann was denied procedural fairness.
"The primary judge found that the rape occurred in a particular way that wasn't put to Mr Lehrmann in defence," she told the court.
"He was taken by surprise as to the nature of the rape … it was pleaded as a violent rape, when His Honour [Justice Lee] found it was a non-violent rape."
In response, Justice Craig Colvin, one of three judges presiding over the appeal, said, "I'm not sure that that's a concept that I understand".
Justice Wigney also weighed in, pointing out that Mr Lehrmann had consistently maintained his innocence and that no sexual intercourse took place.
He said it would not have made sense for Mr Lehrmann to have faced questions about the nature of an act he was denying.
"He would have maintained that there was no violence, because there was no sexual intercourse," Justice Wigney said.
"How could he have been questioned about the particulars?"
Justice Colvin voiced his confusion.
Mr Lehrmann's appeal raises questions about how the court considered the meaning of rape to the ordinary, reasonable person.
Ms Burrows relied on her written submissions, which urged the court to discern a difference between the seriousness of a rape that is violent with one that is non-violent.
In responding, Network Ten's lawyer Dr Matthew Collins said that argument was "obviously rooted in historical misconceptions", and that there was no coherent basis for distinguishing between the rape of a woman who is "cognitively impaired" and unable to resist, and one who is conscious.
He said either scenario was a "horrid violation of bodily autonomy" and that effectively "all rape is violent".
Another ground of appeal is that Mr Lehrmann was entitled to more damages than the $20,000 Justice Lee had flagged, if he had been successful in the original case.
Ms Burrows said her client had "pretty much become the national joke", arguing the level of damages was insufficient.
"As I've previously submitted to the court, he's probably Australia's most hated man," she said.
Dr Collins disputed Ms Burrows's claims that the manner of the rape was erroneously linked to the damages Mr Lehrmann should have received, if he had won.
He argued, whether or not Ms Higgins verbally refused consent, Mr Lehrmann still raped a woman he knew was "seriously intoxicated" and left her alone in the office of a federal minister.
Although Ms Higgins did not name her alleged rapist in the interview with The Project, Mr Lehrmann said he was identifiable, and therefore defamed.
A criminal trial over the allegation collapsed in 2022 because of juror misconduct and the charge against Mr Lehrmann was later dropped.