Warning: Graphic content
Bruce Lehrmann’s lawyer has described evidence given by Brittany Higgins in his defamation case as akin to a “horror movie” as she urges an appeal court to overturn a finding that the former Liberal staffer raped Higgins in Parliament House.
In written submissions filed on Tuesday, solicitor Zali Burrows said Federal Court Justice Michael Lee should not have upheld Network Ten and Lisa Wilkinson’s truth defence in the multimillion- dollar defamation case over an interview with Higgins broadcast on The Project in 2021.
Lawyer Zali Burrows and her client Bruce Lehrmann.Credit: Edwina Pickles / Kate Geraghty
Lee found on the balance of probabilities last year that Lehrmann, who was an adviser to the then Liberal defence industry minister Linda Reynolds, had raped Higgins in Parliament House in Canberra in 2019.
The judge dismissed Lehrmann’s lawsuit and ordered him to pay Ten $2 million in costs.
Lehrmann has filed an appeal against that decision. A hearing date for the appeal has yet to be set.
Burrows argues that the nature of the rape that Lee found had occurred differed from the alleged assault depicted on The Project, and that this was significant in considering Ten and Wilkinson’s truth defence.
“The broadcast refers to a violent rape, with numerous references to an assault and trauma with references to pain, forceful sex, a struggle with being sweaty couldn’t get him off me, legs pinned open, a crushed leg with a large bruise, Ms Higgins crying telling Mr Lehrmann to stop and saying ‘no’ at least half a dozen times,” the submissions say.
“Her 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.”
In his decision in April 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 Ms Higgins understood or agreed to what was going on”.
He found Lehrmann knew Higgins “had reduced inhibitions because she was very drunk”.
“In his pursuit of gratification, he did not care one way or another whether Ms Higgins understood or agreed to what was going on,” Lee said.
The judge did not find that Higgins had said “no on a loop”.
“I find it is more likely than not that she was passive ... during the entirety of the sexual act,” he said in his decision.
Burrows argues Lehrmann was denied procedural fairness because Lee made findings that differed from the case advanced by any of the parties in court, and it was not put to her client in court for his response.
“His Honour derived his own case theory as to the facts, creating the difficulty that his case theory had never been advanced by Ms Higgins in her evidence, was not advanced in argument by Network Ten and Ms Wilkinson and nor was it ever put to Mr Lehrmann in cross-examination,” Burrows says.
She also says that this may be a case where it is “simply not ... possible to judge the likelihood that something happened reliably enough to reach a rational conclusion one way or the other on the balance of probabilities”.
Lehrmann maintained in court that no sexual contact at all occurred between the pair.
During the trial in 2023, Ten’s barrister, Dr Matt Collins, KC, put a series of questions to Lehrmann as part of his cross-examination, including suggesting that the former Liberal staffer had sex with Higgins on the couch in Reynolds’ office in the early hours of March 23, 2019.
“I did not,” Lehrmann replied.
Lehrmann said later in court that he “didn’t get consent because I didn’t have sexual intercourse with her”.
Lehrmann replied, “No, Dr Collins”, when it was put to him that he was aware that Higgins was either passed out or semi-conscious.
In separate submissions filed on Monday, Wilkinson urges the appeal court to uphold the truth defence.
However, in the event that defence is not upheld, she 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 second defence known as qualified privilege. Lee found this defence would have failed if the truth defence had not been successful.
National Sexual Assault, Domestic Family Violence Counselling Service 1800RESPECT (1800 737 732).
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