Bruce Lehrmann’s bid to overturn a Federal Court finding that, on the balance of probabilities, he raped his former colleague, Brittany Higgins, has begun on shaky ground, with judges openly questioning the logic of his appeal.
The former Liberal staffer commenced legal proceedings yesterday to appeal Justice Michael Lee’s April 2024 ruling, which found, on the balance of probabilities, that Lehrmann raped Higgins in Parliament House in 2019. His defamation claim against Network Ten and journalist Lisa Wilkinson collapsed after Justice Lee accepted Ten’s “truth” defence.
Now represented only by his solicitor, Zali Burrows, Lehrmann is attempting to have that decision overturned. Burrows apologised to the full bench of the Federal Court, Justices Michael Wigney, Craig Colvin and Wendy Abraham, for her client’s failure to appoint an experienced barrister.
“Mr Lehrmann couldn’t afford Mr Reynolds, which we really wanted, so we apologise in advance,” Burrows told the court, referring to Sydney silk Guy Reynolds.
Burrows conceded that she was not as prepared as she would have liked, but that she was “just going to try and do the best I can.”
Burrows argued Lehrmann was denied procedural fairness because Justice Lee’s findings differed from how the rape allegation had been pleaded.
“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.”
“I’m not sure that that’s a concept that I understand,” Justice Colvin responded. “I don’t understand the logic of the submission.”
Justice Wigney also questioned the claim, noting Lehrmann had consistently denied any sexual intercourse. “He would have maintained that there was no violence, because there was no sexual intercourse,” Wigney said. “How could he have been questioned about the particulars?”
Burrows maintained that Justice Lee’s version of events deprived Lehrmann of fairness, urging the court to recognise a difference between “violent” and “non-violent” rape.
Network Ten’s lawyer, Dr Matthew Collins, dismissed the distinction as “obviously rooted in historical misconceptions”. He told the court there was “no coherent basis for distinguishing between the rape of a woman who is cognitively impaired … and one who is conscious”, insisting both scenarios amount to “a horrid violation of bodily autonomy”.
“All rape is violent,” Dr Collins asserted.
Burrows also argued that Lehrmann would have been entitled to more damages than the $20,000 flagged by Justice Lee, had he succeeded.
“As I’ve previously submitted to the court, he’s probably Australia’s most hated man,” she said. “He’s pretty much become the national joke.”
Collins countered that Lehrmann’s reputation was already tarnished. “That is not a man with any reputation in respect of sexual morality that would warrant compensation,” he told the court.
Wilkinson’s Defence Under Fire
Lisa Wilkinson’s barrister, Sue Chrysanthou SC, strongly rejected Lehrmann’s claim that he had been denied procedural fairness.
She argued the key issue was Higgins’ capacity to consent, not whether she verbally refused. “Not only did Mr Lehrmann know she was drunk, he participated in making her more drunk,” she told the court. “A young man who knows that a woman is very drunk knows that she cannot consent. This is not a legal question, this is a question that is considered on the standards of the community.”
Chrysanthou also claimed that Justice Lee had been unfair in criticising Wilkinson for believing Higgins when she first came forward with her allegation. “It was ironic,” she told the court, Lee was critical of Wilkinson’s belief in Higgins when he found that her rape allegations had “a ring of truth”.
She pressed the point that Wilkinson’s initial trust in Higgins should not be treated as unreasonable. “A judge of this court can watch a witness and say in a judgment to a very high standard, ‘I believe you’,” Chrysanthou said. “So what is wrong with a journalist, with my client’s experience in this issue, listening to Ms Higgins … and finding that she believed her as a starting point?”
Lehrmann, who was charged in 2021 with sexual intercourse without consent, pleaded not guilty at his criminal trial the following year. The trial collapsed due to juror misconduct, and prosecutors later dropped charges, citing risks to Higgins’ health. Lehrmann continues to maintain his innocence.
The appeal hearing will continue today.
