One way or another, Bruce Lehrmann is determined, you have to give him that. Depending on who you believe, he’s either an arrogant fool who keeps going ‘back for his hat’, or he’s a man grotesquely wronged and on a mission to prove his innocence. Whichever the case is, he’s back in court again.
Bruce Lehrmann’s lawyer has described evidence given by Brittany Higgins in his defamation case as akin to a “horror movie” as she urges an appeal court to overturn a finding that the former Liberal staffer raped Higgins in Parliament House.
An appeal against Justice Michael Lee’s civil judgement was on the cards the instant it was handed down. Despite the cartwheels and hoopla from the mainstream media, it was obvious that the judgement was disputable, to say the least. Granted, this was a civil case with a much lower evidentiary threshold: almost all legal observers were unanimous that it would never have secured a criminal conviction.
Even so, Lee’s finding amounted to little more than an ‘I just reckon’. There was no objective evidence to support the claim that Lehrmann raped Higgins or, indeed, that sexual intercourse even took place. On the contrary, there were reams of evidence that threw a cloud of doubt over the whole matter. Not least that, as Lee admitted, both witnesses were proven liars. One apparently spontaneously and ad hoc, the other strategically: lying when it suited her.
Lee chose to believe the strategic liar.
In written submissions filed on Tuesday, solicitor Zali Burrows said Federal Court Justice Michael Lee should not have upheld Network Ten and Lisa Wilkinson’s truth defence in the multimillion-dollar defamation case over an interview with Higgins broadcast on The Project in 2021.
Lee found on the balance of probabilities last year that Lehrmann, who was an adviser to the then Liberal defence industry minister Linda Reynolds, had raped Higgins in Parliament House in Canberra in 2019.
The judge dismissed Lehrmann’s lawsuit and ordered him to pay Ten $2 million in costs.
Lehrmann has filed an appeal against that decision. A hearing date for the appeal has yet to be set.
In the current case, there’s the not-inconsequential matter of the vast difference between what Higgins said happened and what Justice Lee just reckoned had happened. Burrows argues that the nature of the rape that Lee found had occurred
differed from the alleged assault depicted on The Project, and that this was significant in considering Ten and Wilkinson’s truth defence.
“The broadcast refers to a violent rape, with numerous references to an assault and trauma with references to pain, forceful sex, a struggle with being sweaty couldn’t get him off me, legs pinned open, a crushed leg with a large bruise, Ms Higgins crying telling Mr Lehrmann to stop and saying ‘no’ at least half a dozen times,” the submissions say.
“Her evidence also graphically describes a violent rape that included having an inability to scream like in a horror movie, audible slapping, rough, being pinned Mr Lehrmann going fast, legs pinned open between the side of the couch and other pinned open, there was sweat, shock and couldn’t get herself up from the couch.”
According to Justice Lee, for reasons known only to himself, Higgins did not say ‘no’ repeatedly. Indeed, “I find it is more likely than not that she was passive ... during the entirety of the sexual act.”
Because, well, he just reckoned.
Burrows argues Lehrmann was denied procedural fairness because Lee made findings that differed from the case advanced by any of the parties in court, and it was not put to her client in court for his response.
“His Honour derived his own case theory as to the facts, creating the difficulty that his case theory had never been advanced by Ms Higgins in her evidence, was not advanced in argument by Network Ten and Ms Wilkinson and nor was it ever put to Mr Lehrmann in cross-examination,” Burrows says.
She also says that this may be a case where it is “simply not ... possible to judge the likelihood that something happened reliably enough to reach a rational conclusion one way or the other on the balance of probabilities”.
For his part, Lehrmann has steadfastly and repeatedly denied that any sexual contact at all occurred.
And, rightly or wrongly, he’s pursuing every legal avenue to clear his name.
