‘Breathe again’: Brittany Higgins breaks silence over Lehrmann defamation loss
Brittany Higgins has broken her silence after Bruce Lehrmann failed to overturn a landmark defamation suit, saying she can “breathe again”.
Brittany Higgins has broken her silence after Bruce Lehrmann failed to overturn a landmark defamation suit loss in which he was found to be a rapist.
Lehrmann suffered yet another defeat on Wednesday when the Full Court of the Federal Court dismissed his appeal on the blockbuster defamation suit loss to Network 10 and Lisa Wilkinson.
Taking to social media hours after the verdict, Ms Higgins said she could finally “breathe again”.
“While on the face of it, this was a defamation case against a media outlet, in reality this was once again a rape trial,” she said.
“I cannot begin to tell you how re-traumatising it has to have your rapist weaponize the legal system against you for daring to speak out.
“Sadly, this isn’t uncommon, it’s a legal tactic increasingly used around the world by perpetrators in a bid to sue victim-survivors into silence as a direct response to MeToo.
“Even after everything, I still believe in the importance of speaking out about gendered violence.
“There is inherent value in showing the one in five Australian's who have experienced sexual assault aren’t just statistics, they are your fiend, mother, daughter, sister, and neighbour.”
Ms Higgins thanked the court and the defence’s legal team, as well as Channel 10.
She directed her followers to information of legal reforms, including changes to empower courts to dismiss lawsuits filed with the intent to harass or intimidate people.
NewsWire understands that Lehrmann is already briefing counsel for an application for special leave in the High Court.
Lehrmann sued the network and its high-profile former journalist over Ms Higgins’ bombshell interview on The Project in February 2021, in which she alleged that she was raped by a colleague inside Parliament House.
The former Liberal staffer suffered a bruising defeat in the Federal Court when Justice Michael Lee upheld Ten’s truth defence and found – on the balance of probabilities – that Lehrmann had raped Ms Higgins in the early hours of March 23, 2019 after a night out drinking with colleagues.
He launched an appeal to the Full Court of the Federal Court, and on Wednesday morning Justices Michael Wigney, Craig Colvin and Wendy Abraham ruled in favour of Wilkinson and Ten.
They upheld Justice Lee’s judgment, in which he found that Lehrmann knew that Higgins was drunk and not consenting when they went back to the office of their then boss, Defence Minister Linda Reynolds.
Lehrmann, who was not present in court, was also ordered to pay Wilkinson’s and Ten’s legal costs for the appeal.
It means the unemployed student on Centrelink benefits is facing a massive legal bill which has already run over $2m.
‘Devastating’
Lehrmann’s appeal was wholly unsuccessful after the court dismissed all four grounds of his appeal.
The Full Court of the Federal Court said that it had upheld the “devastating findings” about Lehrmann’s lack of credibility.
On appeal, Lehrmann had claimed he was not afforded “procedural fairness” because the version of events found by Justice Lee were not put to him in cross-examination and he could not respond to them.
The Full Court of the Federal Court found that he was “well and truly on notice” that it had been alleged that he had sexually assaulted his then-colleague, while she was asleep or unconscious, on a couch in the minister’s office.
The court noted that Lehrmann had claimed, in his evidence, that he had no sexual contact with Higgins and never saw her again that night after they went different ways as they entered the office.
Justice Lee in his original judgment found that Lehrmann told “deliberate and material lies” about the events in Senator Reynolds’ office.
“There was no practical injustice to Mr Lehrmann in senior counsel not putting, in terms, the alternative case as to recklessness,” the three judges said.
“Further, the fact that the primary judge did not accept the case to the effect that Mr Lehrmann engaged in forceful sexual intercourse, did not mean that there was some procedural unfairness to Mr Lehrmann.
“He had the opportunity to answer the case and give an account as to what occurred in the Minister’s office. He gave an account that there was no sexual intercourse. It was an account that the primary judge rejected as involving the telling of deliberate and material lies.
“There is no challenge to the devastating findings as to Mr Lehrmann’s lack of credibility.”
‘Antiquated’
The Full Court of the Federal Court found some of Ms Burrows’ submissions were “infected with antiquated notions” about rape.
In her submissions to the court, Ms Burrows said that an “ordinary reasonable reader” would not regard “nonviolent sexual intercourse” which involved “inadvertent recklessness” as being a rape.
“The ordinary reasonable person is not a lawyer who examines the impugned publication overzealously but someone who views the publication casually and is prone to a degree of loose thinking,” Ms Burrows said in her submissions to the court.
The court found that those submission were: “infected with antiquated notions as to what constitutes rape, particularly that it involves taking by force.”
‘Screamed loudly’
In its judgment, the Full Court of the Federal Court went beyond Justice Lee’s findings and stated that he should have found that Lehrmann had “actual knowledge” that Higgins was not consenting.
“The circumstances then presented to Mr Lehrmann, as found by the primary judge, screamed loudly to anyone with normal faculties that the very drunk, passive and silent woman, prone to drowsiness and with significant impact on her cognitive abilities, who was his junior colleague at work and who was not in any kind of personal relationship with Mr Lehrmann, had not consented to sexual intercourse,” the three-judge panel said.
They found that the “only reasonable inference” was that before he had sex with Higgins, he “did turn his mind to whether Ms Higgins consented to sex”.
They found he “was aware that she was not consenting, but proceeded nonetheless.”
Lisa ‘moving on’
Outside court, Lisa Wilkinson’s barrister Sue Chrysanthou SC said that her client was “utterly delighted” with the outcome.
“She is so grateful to the court for its diligence and efficiency in delivering this judgment in an extremely complicated matter.
“She’s particularly happy about the court’s acceptance of her contentions in relation to the nature of the assault.
“And she’s looking forward to moving on now that she’s done with her lawyers.”
Network 10 said the win in the Full Court of the Federal Court was a “resounding” endorsement of Justice Lee’s judgment.
“(Justice Lee’s) judgment remains a triumph for truth and reiterates that Network 10 prevailed in proving that Brittany Higgins’ allegations of rape were true,” the network said.
“It remains a vindication for the courageous Brittany Higgins who gave a voice to women across the nation.
“Network 10 remains firmly committed to honest, fair and independent journalism; to holding those in power to account; to giving people a voice who wouldn’t otherwise have one; and to always pursuing without fear or favour, journalism that is firmly in the public interest.”
“Inspiration”
Outside court, Lehrmann’s solicitor Zali Burrows said that he was “really overwhelmed” by the decision, which means four judges have now found – on the balance of probabilities – that he was a rapist.
She went on to claim that he should be seen as an “inspiration” for those that have been wrongly accused.
“I just want everyone to remember at the heart of the matter that we have a young man who was accused of a rape in Parliament House,” she said.
“He maintains his innocence. We respect what the court has said.
“But everyone should reflect, even the shameless politicians who used him for an agenda, and everyone else, that Bruce’s life has been destroyed.
“I’d just like to say that I just hope Bruce is seen as an inspiration to those who say they’ve been wrongly accused.
“Because he will be seeking advice for special leave (to the High Court) and it’s not the end of his pursuit for justice.”
Lehrmann would need special leave from the High Court – the country’s highest court – to appeal the Full Court of the Federal Court’s loss.
The full court found Lehrmann was aware Ms Higgins did not consent at the time of the rape, a finding that goes beyond the initial judgment that he was “recklessly indifferent” to whether she consented.
“The full court has also accepted a contention advanced by Network 10 and Ms Wilkinson that, on the facts as found by the primary judge, His Honour should have concluded that Mr Lehrmann knew that Ms Higgins did not consent to having sexual intercourse,” Justice Wigney said on Wednesday.
“The full court has found, based on the unchallenged findings made by the primary judge, that the only reasonable inference to be drawn from the facts – known and observable to Mr Lehrmann at the time he had sexual intercourse with Ms Higgins – is that Mr Lehrmann did turned his mind to whether Miss Higgins consented to sex, or was aware that she was not consenting, but proceeded nonetheless.”
Millions
It means Lehrmann now faces a massive legal bill, which he is unlikely to be able to meet.
After the Federal Court trial, Lehrmann was ordered to pay $2m for Ten and Wilkinson’s legal costs.
The court allowed him to proceed with his appeal without having to pay $200,000 surety.
At the time Ms Burrows told the court that Lehrmann was on Centrelink and unable to meet a $200,000 costs order.
Ten and Wilkinson asked for the surety to secure their legal bills for the appeal, but were denied by the court as Lehrmann was allowed to proceed with his appeal.
Having failed in his appeal, Lehrmann is now facing a whopping legal bill which includes the $2m in his opposition’s legal costs for the Federal Court trial.
It’s estimated that Ten and Wilkinson’s combined legal costs for the appeal would be up to $500,000.
Bankruptcy proceedings now loom for Lehrmann.
‘Made a new case up’
Lehrmann’s solicitor Zali Burrows argued during his appeal that Justice Lee’s findings differed from the case put forward by Ten and Wilkinson, and Ms Higgins’ evidence.
“Generally, we say Mr Lehrmann could have conducted the case differently if the version that the judge had found against Mr Lehrmann had been put to him at the beginning,” Ms Burrows told the hearing earlier this year
“It was asserted against Mr Lehrmann … that he violently raped, that it was done in a violent nature.
“Whereas His Honour found a totally different case as if it was, using the phrase, a soft rape.”
She further asserted that Justice Lee: “made a new case up”.
Going back for his hat
Justice Lee found that Lehrmann more than likely knew that Higgins was drunk when he went with her to their then-boss Senator Linda Reynolds’ office after drinking at an ‘80s-themed bar.
He found that Lehrmann was “hellbent” on having sex with Higgins and had been mutually kissing her earlier in the night.
“In his pursuit of gratification, he did not care one way or another whether Ms Higgins understood or agreed to what was going on,” Justice Lee said in his judgment.
Justice Lee remarked: “Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.”
It was a reference to the fact that Lehrmann faced trial in the ACT Supreme Court but the proceedings were abandoned due to juror misconduct.
The charges were later dropped due to concern for Higgins’ welfare.
Lehrmann has persistently denied that any sexual contact with Higgins took place and that when they entered the Defence Minister’s office, he went one way and she went another and did not see her again that night.
‘Astonishing’
During the appeal hearing earlier this year, Ten’s barrister Dr Matt Collins KC attacked the argument that Lehrmann may have given different evidence had he been aware of what Justice Lee’s findings might be.
He said the argument was “astonishing” given that he has persistently claimed that he did not have sex with Higgins.
“There were only two people in the room,” Dr Collins said.
“But (Ms Burrows) said Mr Lehrmann’s evidence might have been different.
“That’s, with respect, an astonishing submission.”
He argued that Ms Burrows’ argument could only be true if consent was in question.
Originally published as ‘Breathe again’: Brittany Higgins breaks silence over Lehrmann defamation loss
