Bruce Lehrmann’s appeal takes aim at Justice Michael Lee

Bruce Lehrmann has filed written documents in court in a bid to overturn Justice Michael Lee’s damning findings handed down in April last year.

It is understood Bruce Lehrmann, a second-year law student, worked closely with solicitor Zali Burrows to draft the 16-page document for his appeal. Picture: NewsWire / John Gass

EXCLUSIVE: Bruce Lehrmann and his solicitor have argued that a federal court judge should have said “I just do not know” whether Brittany Higgins was raped in Parliament House, rather than making findings that were never advanced by the parties.

The written submissions, exclusively obtained by this masthead, were lodged in the Federal Court on Tuesday in a bid to overturn Justice Michael Lee’s damning findings against Lehrmann in April last year.

Lehrmann maintained his innocence and launched a civil case against Network Ten and Lisa Wilkinson for defamation for publishing allegations that he raped Ms Higgins when they were colleagues in 2019.

The case was dismissed and Lehrmann was ordered to cover $2m in costs.

A hearing date for the appeal has not yet been set.

It is understood Lehrmann, a second-year law student, worked closely with solicitor Zali Burrows to draft the 16-page document.

Bruce Lehrmann and solicitor Zali Burrows in Hobart. Picture: Elise Kaine

In the submissions, Ms Burrows pointed to alleged discrepancies between the way Network Ten and Ms Higgins described the assault, and Justice Lee’s findings. Specifically, she pointed to his finding in situations where there was no physical evidence, only one witness statement versus another.

The network’s case involved claims that Lehrmann knew Ms Higgins did not consent to sexual intercourse based on a number of factors, including that she repeatedly said ‘no’ and told him to stop, that she was crying, and was too intoxicated to give consent.

Ms Higgins also told the court that she said “no” during the assault.

Brittany HigginsPicture: Justin Lloyd

While Justice Lee found there was an assault, he also found that Ms Higgins did not say “no” at the time. That finding opposes the evidence given in court, according to the submissions.

“His Honour cannot find facts if those facts were not put to Mr Lehrmann and Ms Higgins was not asked to give a version of the rape that His Honour found,” Ms Burrows said.

“His Honour should have inferred that there was no evidence that Ms Higgins could give that would have assisted the version he found. His Honour should have instructed himself to reject any information in relation to the case he found that was not put to Mr Lehrmann and Ms Higgins.”

Ms Burrows also said the network advanced an argument for a violent rape, where Ms Higgins was injured, cried, and repeatedly told Lehrmann to stop. She also pointed out that Justice Lee dismissed a number of the violence-related claims.

“[Ms Higgins’] evidence also graphically describes a violent rape that included having an inability to scream like in a horror movie, audible slapping, rough, being pinned, Mr Lehrmann going fast, legs pinned open between the side of the couch and other pinned open, there was sweat, shock and couldn’t get herself up from the couch,” Ms Burrows said.

In the judgement, Justice Lee rejected claims that Lehrmann pinned Ms Higgins’ leg open and left a bruise, that she was trapped in a corner of the couch, and that he left her with her dress around her waist.

Ms Burrows said Justice Lee’s “fundamental error” was that he felt compelled to choose between whether Ms Higgins was raped or not, rather than failing to consider a third possibility where neither case was proven.

“This is an exceptional case, and it was open to His Honour to simply say ‘I just do not know’ who to believe when he has made adverse credit findings against both Ms Higgins and Mr Lehrmann,” Ms Burrows said.

Originally published as Bruce Lehrmann’s appeal takes aim at Justice Michael Lee