Bruce Lehrmann can’t afford a barrister to represent him in an appeal against his lost defamation case and deserves substantial damages because he is “a national joke”, the federal court has heard.
Lehrmann is appealing Justice Michael 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.
Opening the three-day appeal hearing, Lehrmann’s lawyer, Zali Burrows, apologised to the full bench of the federal court, justices Michael Wigney, Craig Colvin and Wendy Abraham, for her client’s failure to appoint an experienced barrister.
Introducing her argument for substantial damages should the court uphold any of the grounds for appeal, Burrows said her client was vilified in traditional and social media. “He’s pretty much become the national joke … [and] Australia’s most hated man,” Burrows said.
Burrows said Lehrmann “really wanted” Sydney barrister Guy Reynolds, SC, but “couldn’t afford” him so she would appear instead, and Lehrmann would sit beside her.
“I hope you don’t mind Mr Lehrmann joining me at the bar table,” she said.
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Burrows is a criminal defence lawyer and not an experienced barrister, a fact she pointed out to the bench when she said she was up against top silks Matt Collins KC, for Ten, and Sue Chrysanthou SC, for Wilkinson.
Justice Wigney assured Burrows she was well qualified, but did instruct her on some of the rules of the court as she presented her submissions. He reminded her she didn’t need to read out passages and should reference them instead.
“Sorry, What? What? What is the relevance of this if you don’t mind me asking?” Wigney said in response to Burrows raising the Logies speech given by Wilkinson when she won an award for the interview with Higgins.
When Burrows characterised Lee’s judgment as one which found a “non-violent rape” had occurred, Colvin said: “I’m not sure he found a non-violent rape, and I’m not sure that’s a concept I understand.”
Burrows was repeatedly questioned by the justices about her four grounds of appeal.
On the first of these grounds – that Lehrmann was denied procedural fairness and natural justice – Colvin said “I don’t understand the logic of this submission”.
Lehrmann’s case is that he was denied procedural fairness because Lee’s findings about the alleged rape differed from the one alleged by Ten and Wilkinson. Burrows said Lehrmann was not given a chance to respond to that version of the rape.
Collins, for Ten, told the court Lehrmann’s grounds of appeal are “misconceived” and “a distraction, in our respectful submission”.
“Because, at the end of the day, this was a defamation case, not a rape case,” Collins said.
“Sexual intercourse with someone without consent, in circumstances where you know they’re drunk, in our submission was satisfied as the ordinary definition of the way we say the ordinary person would interpret the word rape.”
“Is it really plausible in 2021 that a person in Mr Lehrmann’s position did not at any time turn his mind to the question of consent, having regard to the way in which social mores towards sexual relations between the genders have evolved?”
Burrows declined to detail all her grounds of appeal, saying she would prefer to address them in reply. Wigney warned her that this was unconventional and she could not introduce anything new in reply.
Collins said it was an “astonishing submission” that Lehrmann’s evidence might have been different if he had been given the chance to respond to questions about a “non-violent rape”.
“Well that’s, with respect, an astonishing submission, and it could only mean that had the pleading alleged a sexual assault in which consent was in question, he would have conceded to having had sexual intercourse with her, but argued that he thought he had her consent, or he did have her consent. That was never the way he ran his case,” he said.
The hearing continues.
Lehrmann was charged with sexual intercourse without consent in 2021, and at his criminal trial in 2022 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.
