Bruce Lehrmann returns to court to fight damning rape findings
In a landmark judgment, Justice Michael Lee in April last year dismissed his multi-million dollar lawsuit against the network and its former star journalist over its reporting of Brittany Higgins' rape allegations on The Project.
Justice Lee found – on the civil standard of the balance of probabilities – that Lehrmann had raped his then colleague inside Parliament House in March 2019 after a night out drinking in Canberra.
Lehrmann is now seeking to have the findings overturned on appeal, with a three-day hearing before the Full Court of the Federal Court beginning on Wednesday morning.
The appeal hearing will be presided over by Justices Michael Wigney, Justice Craig Colvin and Justice Wendy Abraham.
'Procedural fairness'
Justice Lee found: 'it is more likely than not' that Lehrmann was 'so intent upon gratification to be indifferent to Ms Higgins' consent, and hence went ahead with sexual intercourse without caring whether she consented.'
In commenting on Lehrmann's decision to sue after criminal proceedings against him were withdrawn, Justice Lee said: 'Having escaped the lions' den, Mr Lehrmann made the mistake of going back for his hat.'
Lehrmann's legal team, headed by solicitor Zali Burrows, has claimed that Lehrmann was denied procedural fairness, because Justice Lee's findings were different to the case put forward by Ten and Wilkinson at trial.
Lehrmann has maintained his innocence and claimed that he had no sexual contact with Higgins inside the office of their then-boss Senator Linda Reynolds.
On his version of events, after entering Reynolds' office, he went to the left and she went to the right, and he did not see her again that night.
In her evidence given to the court during the trial in late 2023, Ms Higgins said she told Mr Lehrmann 'no on a loop', that she couldn't scream and that she felt 'waterlogged and heavy'.
Justice Lee found that he was not satisfied that Ms Higgins said 'no on a loop' and it was more likely than not 'that she was passive … during the entirety of the sexual act.'
Lehrmann argues there are inconsistencies between Justice Lee's findings and the case pleaded by Ten and Wilkinson.
'Consent'
Lehrmann's legal team argued that while he was on the witness stand, he should have been questioned further about whether he was reckless about consent.
But that argument has been slammed by Wilkinson's legal team which described it as 'entirely misconceived'.
In their written submissions to the court, they said that during the trial, Lehrmann was probed by Ten's barrister Dr Matt Collins about whether Ms Higgins had consented to sex.
'Did Ms Higgins at any time consent,' Dr Collins asked at the time.
'I didn't get consent because I didn't have sexual intercourse with her,' Lehrmann said.
Ms Wilkinson's lawyers say in their submission: '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.
'They now apparently take the view that it was unfair to him to not have asked him specific questions about consent.'
They say it is 'difficult to see' how he was 'denied natural justice or procedural fairness' because he was not questioned further.
'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 submissions say.
Lehrmann faced trial in the ACT Supreme Court in 2022 after pleading not guilty to one count of sexual intercourse without consent.
The trial was abandoned due to juror misconduct and the Director of Public Prosecutions dropped the charge and plans for a retrial due to concerns about Ms Higgins' welfare.
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