Lehrmann ‘an inspiration’, lawyer claims after defamation loss against Ten and Wilkinson
The former Liberal staffer wants to return to ‘the lion’s den’ for a third time with an appeal to the High Court after his bid to overturn rape findings backfired spectacularly.
Bruce Lehrmann’s lawyer has claimed he should be seen as an “inspiration” for those wrongly accused, after he lost his defamation appeal against the finding that he raped his ex-colleague Brittany Higgins in Parliament House.
On Wednesday, the Full Court of the Federal Court rejected Lehrmann’s bid to overturn Justice Michael Lee’s ruling last year that, on the balance of probabilities, he raped Ms Higgins in the ministerial office of Senator Linda Reynolds in March 2019.
Delivering the appeal court judgment, Justice Michael Wigney dismissed the appeal with costs.
“The Full Court has found that the way in which the primary judge dealt with and determined the proceedings was not procedurally unfair to Mr Lehrmann,” he said.
“The Full Court has found that the ordinary, reasonable viewer of the broadcast would understand rape as involving sexual intercourse occurring without the consent of the person, and the perpetrator either knowing that the victim is not consenting, or being reckless as to whether they are consenting.
“Recklessness, in that context, encompasses the perpetrator not caring whether the victim is consenting, either as a conscious lack of regard for whether the person is consenting or complete indifference as to whether they are consenting.”
The decision leaves Mr Lehrmann with at least $2 million in legal costs awarded earlier to Ten and Ms Wilkinson, which he is unlikely to be able to pay. The appeal may have added another $500,000 to their costs, for which he is also liable.
Mr Lehrmann was not in court for the decision. His lawyer, Zali Burrows, told reporters outside the court that her client was “overwhelmed” by the decision and maintained 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, “ Ms Burrows said. “I just hope Bruce is seen as an inspiration to those who say they’ve been wrongly accused.”
Mr Lehrmann would seek special leave to appeal to the High Court, she said.
Ms Burrows had argued in the appeal proceedings that Justice Lee made findings that were neither advanced by Ten and Ms Wilkinson nor put to him in cross examination, amounting to a denial of natural justice and procedural fairness.
However, the Full Court found that Justice Lee’s factual findings concerning Mr Lehrmann’s actions fell within the ordinary meaning of rape and rejected Mr Lehrmann’s contention that Justice Lee had erred in finding that Network Ten and Ms Wilkinson had discharged the burden of proving that he had raped Ms Higgins.
“This was not a case where there were two competing accounts, each of which had been found to lack any credibility,” Justice Wigney said. “While the primary judge made some adverse findings concerning the credibility of Ms Higgins account, His honor, nevertheless accepted key parts of her evidence about the sexual assault.
“In contrast, the primary judge rejected the entirety of Mr. Lehrmann’s account and found that he had deliberately lied in important respects. In those circumstances, it was well open to the primary judge to find that Network Ten and Ms Wilkinson had proved to the requisite civil standard that Mr Lehrmann had raped Ms Higgins.”
The Full Court went further than Justice Lee, who had simply found that Mr Lehrmann was reckless about whether Ms Higgins had consented, accepting the contention of Ten and Ms Wilkinson that Justice Lee should have concluded that Mr Lehrmann knew that Ms Higgins did not consent.
“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 turn his mind to whether Ms Higgins consented to sex, was aware that she was not consenting, but proceeded, nonetheless.”
The Full Court found it was “neither necessary nor appropriate” to give detailed consideration to the arguments advanced by Ms Wilkinson in support of her claim that if Mr Lehrmann’s appeal in relation to the truth defence was upheld, the primary judge should have upheld her separate defence of qualified privilege.
Ms Wilkinson’s barrister Sue Chrysanthou SC said that her client was “utterly delighted” by the appeal decision.
“She’s particularly happy about the court’s acceptance of her contentions in relation to the nature of the assault,” Ms Chrysanthou said.
Network 10 said the decision of the Full Court was a resounding endorsement of Justice Lee’s judgment, which “remains a triumph for truth and reiterates that Network 10 prevailed in proving that Brittany Higgins’ allegations of rape were true”.
