On the second day of the appeal hearing, many parts of the submissions advanced on behalf of Bruce Lehrmann were met with either confusion or rejection by the full court bench.
Bruce Lehrmann’s appeal of Justice Michael Lee’s defamation judgment finished up on Thursday (21 August) afternoon with Justice Craig Colvin’s interruption of Zali Burrows’ complaint that no one would “have anything nice to say” to her client as he leaves court.
Burrows started to say Lehrmann had faced a “level of vitriol, hatred” before Justice Colvin asked whether it was a “speech or submission”.
The complaint was made after Burrows briefly addressed the full court of the Federal Court on damages Lehrmann would be entitled to if he were successful in overturning the April 2024 findings that, on a civil standard of proof, he raped Brittany Higgins five years ago.
Lehrmann has never been convicted of the rape by a criminal court and has continued to maintain his innocence.
Much of Burrows’ reply submissions repeated the evidence in chief, particularly the claim that Justice Lee had “found a case which had not been pleaded” by Network Ten or journalist Lisa Wilkinson.
Burrows said that by finding this supposedly alternative case, Lehrmann had been denied the opportunity to respond to it in evidence and cross-examination. Instead, the solicitor submitted that Lehrmann learnt of the new case against him “on the day of the judgment”.
She added that Justice Lee “shouldn’t have gone on his own fact-finding mission” and “purely stuck to what was pleaded on defence”.
“He comes up with his own version as to how [the rape] occurred. That is not, with respect, a judge’s role to do that,” Burrows said.
As a “quasi-rape trial”, Burrows added there should have been careful consideration by Justice Lee “in respect of cases like this”.
“I know there aren’t too many defamation cases where they become quasi-criminal trials, but in these circumstances, this is an unusual case where [there are each] of the imputations in the pleaded defence and he has to meet that,” Burrows told the full court.
However, confusion then arose when Burrows attempted to clarify that Lehrmann was challenging the factual findings made by Justice Lee, but failed to specify why. The court also noted the challenge had not been referred to in the notice of appeal or written submissions.
Burrows started to go through each of the particulars one by one – including that Lehrmann had been attracted to Higgins and had actively encouraged her to drink – by saying he denied them.
“I understand he may have denied that then and continues to deny it, but that was not the question I asked. The question was whether the judge was wrong in making those findings and why – it’s not enough to say Lehrmann denied it,” Justice Michael Wigney said.
When Burrows tried to elaborate further on Lehrmann’s denial of one of the particulars, Justice Colvin interrupted again to say he would not be “entertaining those submissions” because there had been no prior reference to them in any material filed before the appeal.
Justice Colvin added that Justice Lee’s findings “were within the four corners of what was described” in the particulars.
“In fact, he did not find all of them … [which] was a matter that went to Higgins’ credit. His Honour accepted her credit in spite of them. So I cannot understand how you can make the submissions,” he said.
“It is all very well to say it out loud, but you have to explain why.”
Both Ten and Wilkinson filed a notice of contention that asked the appeal court to infer Lehrmann had not been merely reckless during the rape of Higgins, but knew she was not consenting.
Asked whether she had a reply, Burrows said the media parties would have to “go back to the old case that was submitted by Ten”.
“Then they are going to have to ask the court to accept the whole case that Justice Lee has rejected; otherwise, you’re going to have to determine it on the new case that Justice Lee found,” she said.
Near the end of her reply submissions, Burrows said it was “pretty hurtful” of the media parties to assert Lehrmann had “misled his lawyers in the criminal court [by] asking them to cross-examine a complainant when he [knew] he shouldn’t”.
It was in reference to submissions Dr Matt Collins KC made on Wednesday that Lehrmann had perverted the course of justice by lying to police and instructing counsel to cross-examine Higgins in circumstances where he knew the rape had occurred.
Collins said it was “so wicked” that the administration of justice would be brought into disrepute if Lehrmann was awarded damages.
“He was within his rights at all times for Higgins to be cross-examined in the Canberra court, in the criminal court, and it is not the case whatsoever that he gave his lawyers false instructions,” Burrows said.
Judgment has been reserved.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
