Bruce Lehrmann’s appeal hearing opened with a back and forth between his solicitor and the full court on some of her more puzzling submissions, including a claim that Lehrmann had been “surprised” by Justice Michael Lee’s findings on how the rape occurred.
Unable to afford senior counsel, Bruce Lehrmann instead sat alongside his solicitor, Zali Burrows, before the full bench of the Federal Court to advance four appeal grounds against Justice Michael Lee’s April 2024 judgment in favour of Network Ten and former The Project host and journalist, Lisa Wilkinson.
In dismissing his defamation proceedings, Justice Lee found, on the civil standard of proof and based on the balance of probabilities, that Lehrmann raped Brittany Higgins in 2019. No criminal findings were ever made against Lehrmann, who continues to deny the rape.
On his first ground of appeal, Lehrmann claimed Justice Lee denied him procedural fairness by determining the rape occurred in such a way that fell “outside the pleadings” argued by Ten and Wilkinson.
Burrows told Justices Michael Wigney, Craig Colvin and Wendy Abraham that Lehrmann was “taken by surprise” when Justice Lee’s judgment referenced the rape “in a particular way that wasn’t put to Lehrmann firstly in the defence or evidence or anything like that”.
She added later that Lehrmann “didn’t realise that version of rape was considered or contemplated until he was attending the delivery of judgment, and he heard the version then”.
When Burrows attempted to draw a distinction between what she claimed was violent and “non-violent rape”, Justice Colvin swiftly refuted the claim as a concept he did not “understand”.
On Burrows’ claim that Lehrmann was entitled to “know the full particulars” of the allegations put against him, Justice Wigney said there were “pages of particulars to support the justification defence”.
“The primary judge wasn’t satisfied that all of those particulars were made out, but nonetheless satisfied, in relation to the element of absence of consent, that it was recklessness, that your client was reckless as to whether Higgins was consenting,” Justice Wigney said.
There was then some confusion about Burrows’ submissions that Lehrmann “may have called other witnesses, perhaps he would have given [other] evidence” if the details of the rape found by Justice Lee had been put to him during the defamation proceedings.
Justice Wigney clarified that Lehrmann’s case during the substantive matter was that sexual intercourse with Higgins never occurred.
“Your client was cross-examined about this [and] the evidence he gave was that there was no sexual intercourse. It seems it would be unlikely there would have been objection to that [alternative] line of questioning … he would have kept on saying there was no sexual intercourse, wouldn’t he?” Justice Wigney said.
In response, Burrows said it would be “unfair” to conclude Lehrmann would have given the same answers to different questions.
Dr Matt Collins AM KC, appearing for Network Ten, said Burrows’ submissions about a possible change of evidence from Lehrmann had the alternative rape been put to him was “astonishing”.
“It can only mean that if the pleading alleged a sexual assault where consent was in question, he would have accepted he had sexual intercourse with her but argued he had consent – that is not the way he ran his case,” Collins said in reply submissions.
Collins also clarified that while there may be a difference in the level of violence involved in other serious crimes, such as murder, rape was an “abhorrent violation of bodily autonomy” and the circumstances in which Higgins was assaulted had been “awful”.
Sue Chrysanthou SC, for Wilkinson, said that despite there being an opportunity to review written submissions, Lehrmann’s counsel in the substantive matter never complained about the pleadings.
In support of the procedural fairness ground, Burrows also claimed Wilkinson’s case “basically followed” Network Ten’s.
In reply, Collins said the “field of evidence” was the same for both Network Ten and Wilkinson, and Justice Lee had been entitled to take this into consideration when he confirmed that Lehrmann would only be cross-examined by one senior counsel on particular issues.
Bench knocks back reply submission preference
Rather than advancing the second ground of appeal during oral evidence in chief, Burrows told the bench she would “prefer to address this in reply” submissions on Thursday.
Justice Wigney said the difficulty of allowing that – particularly in circumstances where Burrows had not filed written submissions in reply – would mean Collins and Chrysanthou would be robbed of the “fair opportunity to deal with those issues”.
“The issue is not so much that you didn’t put on written submissions in reply, it’s just in the absence of that, it is all the more important you deal with the substantive arguments on appeal now,” he said.
In response, Burrows said she did not want to take Collins and Chrysanthou by surprise, but they were “probably two of Australia’s leading defamation barristers here”.
“If I address orally in reply, I’m most confident they would be able to deal with anything I have to say straight away,” Burrows said.
However, the bench was reluctant to allow Burrows to proceed that way. Justice Wigney clarified that Burrows would have the opportunity to make reply submissions, but only in response to the oral submissions made by Collins and Chrysanthou.
The matter will continue on Thursday.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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