Appeal judges have “struggled to understand” the case made by Bruce Lehrmann’s lawyer, who says the federal court judgment that her client raped Brittany Higgins in Parliament House in 2019 found the action was a “soft rape” but was characterised in a Network Ten broadcast as a “violent” assault.
Sydney criminal solicitor Zali Burrows – representing Lehrmann because, as the court heard Wednesday, he “couldn’t afford” his chosen barrister – submitted that her client was not given an opportunity to be questioned about the type of rape found by Justice Michael Lee.
“It was asserted against Mr Lehrmann … that he violently raped, that it was done in a violent nature,” Burrows said on day two of the appeal hearing.
“Whereas His Honour found a totally different case as if it was, using the phrase, a soft rape.”
One of the three judges, Justice Michael Wigney, did not accept Burrows’ summary of Lee’s judgment or her suggestion Lee “made a new case up”.
“I don’t think His Honour said anything about a violent rape or a soft rape,” Wigney said. “He made findings about what happened and what Mr Lehrmann’s state of mind was. I’m struggling to understand by what you mean that it was a new case.”
Colvin shut her down again when she said that no reporters had “anything nice to say” to her client and failed to ask him “are you OK?”.
“Is this a speech or this a submission?” Colvin said.
Lehrmann is appealing Lee’s April 2024 judgment, which found the former Liberal staffer was not defamed by Lisa Wilkinson and Network 10 when The Project broadcast an interview with Brittany Higgins in 2021 in which she alleged she was raped in Parliament House.
Sign up: AU Breaking News email
Burrows repeatedly asked the court to adjourn early to give her more time to prepare, but the justices refused, telling the solicitor she had had “plenty” of time.
Wigney said Burrows had already “obtained the court’s indulgence” to commence her reply to submissions a day later than scheduled, and she should start her response.
“If I can put it this way, nothing that has occurred this morning has impacted, or could impact, on your ability to reply to those matters,” Wigney said.
Burrows tried again, saying the appeal was set down for three days. “We still have tomorrow … we were just thinking if we could have a 10.15 start tomorrow, we’d be finished before lunchtime,” she said.
Wigney again declined the request, telling Burrows to “start now” and reminding her she had “more time over lunch” to sort out any issues she had with the transcript.
Burrows began speaking but immediately asked for a clarification to an earlier question from Colvin about a challenge to the underlying findings.
“It seems to me to be a very important and central issue for your appeal,” Wigney said. “It’s your appeal. What are the… do you understand the reference to the underlying facts?”
Wigney said Burrows had been in possession of Ten’s written submissions “for some time, quite clearly”, and they list the underlying facts “in quite simple terms”.
“So you’ve had plenty of opportunity to consider this issue,” he said.
Burrows came back a third time, asking: “Would it be possible if we could have an early lunch and then resume earlier?”
Wigney agreed, adjourning about 10 minutes early.
Burrows asked once more at the end of the day if she could finish early.
“There are further documents I prepared but I’m embarrassed to say they’re not here. Can we finish early and resume tomorrow morning?” she asked.
Wigney replied: “I don’t think so, I think we need to resume [now].”
The court published written submissions from the appellant and respondents, including Lehrmann’s reply to Wilkinson’s notice of contention, which challenges Lee’s finding that she and The Project team had failed in their defence of qualified privilege, known as section 30.
The Project’s decision not to name Lehrmann as the alleged Parliament House rapist was used as evidence of the “reasonableness” of Wilkinson’s journalism in her bid to assert qualified privilege.
However, Lehrmann claimed the decision not to name him was a “crafted strategy” to increase interest in the interview with Higgins.
“Mr Lehrmann does not agree with Ms Wilkinson’s assertion it was a factor to consider on assessing reasonableness, that in effect she should be commended for not naming Mr Lehrmann in the program is viewed as disingenuous, and viewed as a crafted strategy,” the reply said.
Not naming him was a ploy to “maximise the ratings of a story, to achieve an exciting air of mystery akin to a ‘whodunnit’.”
Lehrmann was charged with sexual intercourse without consent in 2021, and at his criminal trial in 2022, he pleaded not guilty, denying that any sexual activity had occurred.
After his criminal trial was aborted in December 2022, prosecutors dropped charges against Lehrmann for the alleged rape of Higgins, saying a retrial would pose an “unacceptable risk” to her health. Lehrmann has maintained his innocence.
The hearing wrapped up one day early and the justices have reserved their decision.
• Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). In the UK, Rape Crisis offers support on 0808 500 2222. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
