‘Horror movie’: Bruce Lehrmann’s claim as he pushes court to overturn rapist finding

Bruce Lehrmann’s lawyers have compared Brittany Higgins’s evidence in his defamation case to a “horror movie” in a new submission. WARNING: Graphic

WARNING: Graphic

Bruce Lehrmann’s legal team has compared Brittany Higgins’ evidence in his defamation case to a “horror movie”, arguing the Federal Court should overturn Justice Michael Lee’s finding he is a rapist because Ten’s account of a “violent rape” was inconsistent with his findings.

In new submissions to support his legal appeal, solicitor Zali Burrows has outlined the reasons she argues that Network Ten and Lisa Wilkinson’s truth defence win should be overturned.

In May, Justice Lee ruled on the balance of probabilities that Bruce Lehrmann raped Brittany Higgins on a couch in Parliament House in 2019 by being recklessly indifferent to her inability to consent to sexual intercourse – upholding Network Ten’s truth defence.

This was based on the civil standard on the balance of probabilities and Mr Lehrmann has appealed the Judgment. He maintains his innocence.

Mr Lehrmann’s legal team says Ten’s account of a ‘violent rape’ is inconsistent with Justice Michael Lee’s findings. Picture: NCA NewsWire/Nikki Short

The judge dismissed Mr Lehrmann’s lawsuit and ordered him to pay Ten $2 million in costs.

In the new legal submissions, Mr Lehrmann’s legal team argued Justice Lee’s findings that he was “recklessly” indifferent to her consent was at odds with the case as pleaded by Ten and Lisa Wilkinson.

“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.

“His Honour made findings that were inconsistent with Mr Lehrmann’s version that there was no sexual intercourse and findings that are substantially inconsistent with Ms Higgins’ version of events, different to the way the justification case was pleaded by both Channel Ten and Ms Wilkinson and put to Mr Lehrmann in cross examination.”

Mr Lehrmann’s lawyers are pushing for Lisa Wilkinson’s truth defence win to be overturned. Picture: NCA NewsWire/Monique Harmer

In his judgment, Justice Lee went on to note that “given what I have found about it being likely Ms Higgins did not expressly voice her resistance, and the other findings I have made of their interactions (that Ms Higgins was ‘like a log’), I do not consider I can be positively satisfied on the balance of probabilities that Mr Lehrmann turned his mind to consent and had, at the relevant time, a state of mind of actual cognitive awareness that Ms Higgins did not consent to having sex.”

“But this is not the end of the matter,’’ Justice Lee wrote. “It is not in dispute that the knowledge element can be established by recklessness and Mr Lehrmann in his closing submissions, when in dealing with differences between imputations, accepts that “the bare fact of rape … might be committed simply by being recklessly indifferent to whether or not there was consent.

“Recklessness can, of course, mean different things, such as an awareness the complainant might not be consenting (possibility recklessness), indifference as to whether the complainant is consenting (indifference recklessness) and failure to give any thought as to whether the complainant is consenting (inadvertence recklessness) – although possibility recklessness might be best seen as a variant of indifference recklessness.”

Justice Lee’s judgment also found Brittany Higgins had likely not 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.

“If I was to accept that Ms Higgins was obviously unconscious when sexual intercourse commenced, then proof of the knowledge element would follow readily,’’ Justice Lee wrote.

“That may well have been the case, but it is equally probable this may not have been obvious, thus requiring focus on the issue as to whether Mr Lehrmann understood that Ms Higgins, in her inebriated state, was not fully aware of what was happening to her.”

Brittany Higgins arrives at Federal Court during the defamation case in December 2023. Picture: NCA NewsWire/Jeremy Piper

Mr Lehrmann’s legal case argues he was denied procedural fairness because the judge arrived at a case theory different to that pleaded in court or given in evidence by the former Liberal staffers at the centre of the case.

“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,” the legal submission says.

Mr Lehrmann expressly denied raping Ms Higgins during the defamation trial. “I did not,” Lehrmann replied.

He said he “didn’t get consent because I didn’t have sexual intercourse with her”. He denied being in the room with her and as a result said he was not aware that Higgins was either passed out or semiconscious.

High stakes legal challenge

The high stakes legal fight now unfolding stems from Mr Lehrmann’s decision to appeal that Judgement.

In a notice of contention filed with the Federal Court in June, Lisa Wilkinson claimed Justice Lee made multiple errors both in his findings about her conduct and about the rape of Ms Higgins by Mr Lehrmann.

In the new submissions, Ms Wilkinson contends that if the appeal is allowed in relation to the defence of justification (truth), then Justice Lee should have found that she succeeded in her defence under s30 of the Defamation Act 2005, which is her qualified privilege defence.

“Alternatively, if the court considers that damages should have been awarded and proceeds to reassess the provisional award nominated by the primary judge, Wilkinson contends that (Justice Lee) erred in finding that her conduct in giving the Logies speech aggravated damages,’’ the submission states.

Ms Wilkinson was sued personally as a publisher of an episode of The Project that aired on Network Ten at 7pm on February 15, 2021 (broadcast) in which Ms Higgins made allegations of sexual assault at Parliament House in February 2019.

If Mr Lehrmann is successful in reversing the finding in respect of the truth defence, his lawyers argue it would be open to the court to consider whether his Honour’s contingent damages award of $20,000 was adequate or not.

“His Honour awarded $20,000 by way of damages on the hypothesis that the case was otherwise established, this is an inadequate amount of damages especially more so when there are matters of aggravation which should have led to an award of aggravated damages of a considerable amount,” his lawyer Zali Burrows said.

Originally published as ‘Horror movie’: Bruce Lehrmann’s claim as he pushes court to overturn rapist finding