The four reasons Bruce Lehrmann thinks his appeal should succeed

Bruce Lehrmann has urged an appeal court to overturn a finding that he raped his then-colleague, Brittany Higgins, in Parliament House, arguing that the evidence before the court did not support that conclusion.

In a notice of appeal, filed in the Federal Court on Friday, Lehrmann sets out four grounds of appeal against the landmark decision of Justice Michael Lee on April 15 to dismiss his defamation suit against Network Ten and high-profile presenter Lisa Wilkinson.

Bruce Lehrmann outside the Federal Court in Sydney on April 15 after his defamation loss.Credit: Dominic Lorrimer

Lehrmann has asked the Full Court of the Federal Court to set aside Lee’s decision and enter judgment in his favour. The handwritten words “Bruce Lehrmann” appear next to a line on the appeal form asking who prepared the document.

It is not yet clear if a solicitor or barrister will act for him during any hearing.

‘Credibility problems’

A photo tendered in court in Bruce Lehrmann’s defamation trial of what Brittany Higgins described as a bruise on her leg.

The former federal Liberal staffer claims he was denied procedural fairness during his defamation case. He alleges Lee made findings in relation to Ten and Wilkinson’s successful truth defence that were not put to him when he gave evidence in the Federal Court last year.

The judge’s finding that the truth defence was established was “contrary to evidence” and did not meet the standard of proof, Lehrmann claims.

He alleges Higgins had “significant credibility problems” and the court should not have been satisfied on the balance of probabilities that Lehrmann had raped Higgins in Parliament House in 2019, in light of a principle known as the Briginshaw standard that requires a court to proceed cautiously in making grave findings.

Lee said in his judgment that he had “considerable doubts about the authenticity” of a photo purportedly of a bruise on Higgins’ leg. The judge said he fell “well short of being satisfied” Lehrmann caused a bruise, and was not satisfied Higgins fell up a flight of stairs at a nightclub “so as to sustain the bruise”.

Lehrmann claimed that Ten and Wilkinson regarded this photo as “cornerstone ‘evidence’ ” and, following the judge’s finding about this photo and other evidence, it “was not open to the judge to find the case he did”.

Hypothetical damages inadequate

Lehrmann also says Lee’s assessment that he would only have been entitled to $20,000 if he had won the defamation case was “wholly inadequate”.

Lehrmann launched defamation proceedings against Ten and Wilkinson last year over a February 2021 interview with Higgins, aired on The Project.

Defamatory meanings

He claimed the broadcast conveyed a series of defamatory meanings including that he raped Higgins in Parliament House, continued to rape her “after she woke up mid-rape and was crying and telling him to stop at least half a dozen times”, and “crushed his leg against her leg so forcefully as to cause a large bruise”. Lehrmann denied there was any sexual contact between the pair at all.

Lee found on the balance of probabilities that Lehrmann had raped Higgins, and was indifferent to whether she was consenting. The judge did not accept that it had been established that Higgins woke up mid-rape and was crying and telling Lehrmann to stop, or that he caused a large bruise on her leg.

But the judge found that the “defamatory sting” of each of the meanings was that Lehrmann raped Higgins, and the truth defence had been established by proving that assault.

Lehrmann has fashioned an appeal ground from that finding. He says that The Project broadcast suggested “a violent rape” and this was “contrary to the non-violent rape ... which was ultimately found”.

Funds for appeal

It is not yet clear how Lehrmann, who is an unemployed law student, would fund an appeal.

War veteran Ben Roberts-Smith agreed last year to orders requiring him to pay almost $1 million as security to cover the legal costs of Nine newspapers in the event he loses his appeal against his own devastating defamation loss. Ten and Wilkinson may also seek security for costs from Lehrmann.

An appeal would not require witnesses, including Higgins and Wilkinson, to give evidence afresh.

If the appeal proceeds, either of Wilkinson or Ten may opt to challenge the judge’s finding that their fallback defence of qualified privilege would have failed if the truth defence had not been established.

Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.