The Federal Court has upheld a finding that Bruce Lehrmann, on a civil standard of proof, raped Brittany Higgins in Parliament House.
Content warning: Rape, sexual assault.
Justices Michael Wigney, Craig Colvin and Wendy Abraham dismissed Bruce Lehrmann’s appeal of his failed defamation proceedings against Network Ten and high-profile journalist Lisa Wilkinson.
The defamation proceedings were dismissed back in April, with Justice Michael Lee finding, on a civil standard of proof and based on the balance of probabilities, that Lehrmann raped Higgins in 2019.
Lehrmann has continued to strenuously deny the rape allegations and no criminal findings have ever been made.
In a summary read out on Wednesday (3 December) morning, Justice Wigney said the full court determined the way in which Justice Lee dealt with the proceedings “was not procedurally unfair” to Lehrmann.
Lehrmann had claimed the details of the rape found by Justice Lee were different than those submitted during the proceedings.
He asserted Justice Lee found it was a “forceful, violent rape”, rather than “non-consensual”. Justice Wigney pressed that non-consensual sexual intercourse falls within the ordinary meaning of rape.
“It was well open to the primary judge that Network Ten and Wilkinson had proved to the requisite civil standard that Lehrmann had raped Higgins,” Justice Wigney said.
Justice Wigney said the full court also found that, based on the unchallenged findings by Justice Lee, Lehrmann “did turn his mind to whether Higgins was consenting to sex, was aware she was not consenting, but proceeded nonetheless”.
During appeal hearings, Lehrmann’s solicitor Zali Burrows – known mostly for her criminal law work – told the court he was “taken by surprise” when Justice Lee referenced the rape “in a way that wasn’t put to Lehrmann firstly in the defence or evidence or anything like that”.
Burrows claimed Lehrmann “may have called other witnesses, perhaps he would have given [other] evidence”.
At that time, Justice Wigney clarified that Lehrmann’s case in the original proceedings was that sexual intercourse 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 asked.
Burrows said Justice Lee “shouldn’t have gone on his own fact-finding mission” and “purely stuck to what was pleaded on defence”.
Lehrmann has been ordered to pay costs of the appeal.
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Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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