Bruce Lehrmann has lost his appeal against a defamation judgment which found he raped Brittany Higgins.
But the full bench of the federal court went further than the defamation trial judge, arguing federal court judge Michael Lee should have found Lehrmann knew Higgins did not consent to sexual intercourse.
The former political staffer was seeking to overturn a 2024 ruling by Lee. The 30-year-old had sued Ten and Wilkinson for defamation over an interview with Higgins on The Project in 2021, but Lee dismissed his claim and found on the balance of probabilities he had raped Higgins in 2019.
On Wednesday morning, the appeal judges dismissed all four grounds of the appeal: that it was procedurally unfair to Lehrmann; that an ordinary person viewing The Project would have thought he committed a violent rape with lack of consent; that Lee erred in finding Network 10 and Wilkinson had discharged the burden of proof in relation to the rape; and that he should have been awarded more than $20,000 should he have won.
But the appeal judges disagreed with Lee’s reasoning that Lehrmann did not have, at the relevant time “a state of mind of actual cognitive awareness that Higgins did not consent to having sex”.
The full bench of the federal court said Lehrmann was not inebriated when he took Higgins into the ministerial office in parliament house and he would have known that his junior colleague, a “very drunk, passive and silent woman” was not consenting.
“Having considered with some care all of the detailed findings made with due deliberation by the primary judge and with due regard to the seriousness of the finding, in our respectful view, his Honour should have found actual knowledge on the part of Mr Lehrmann that Ms Higgins did not consent to sexual intercourse,” the judgment said.
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Ten and Wilkinson both contended that Lee ought to have found that Lehrmann knew that Higgins did not consent to having sex.
“On the couch, Mr Lehrmann was also aware that Ms Higgins was not speaking and was not moving” the full court said.
“Mr Lehrmann knew he was not in a sexual relationship with Ms Higgins. Indeed, he knew that until that evening their relationship had been solely as work colleagues. Specifically, he knew that Ms Higgins had not expressed her consent to sexual intercourse with him.”
The way in which the primary judge dealt with and determined the proceedings was not procedurally unfair to Lehrmann, Justice Michael Wigney said in his summary delivered in court on Wednesday.
Lee found during the defamation trial that Lehrmann was reckless to Higgins’ consent, but Wigney said: “The full court has found based on the unchallenged findings made by the primary judge that the only reasonable inference to be drawn from the facts known and observable to Mr Lehrmann at the time that he had sexual intercourse with Ms Higgins is that Mr Lehrmann did turn his mind to whether Ms Higgins was consenting to sex, was aware that she was not consenting, but proceeded nonetheless.”
“Mr Lehrmann was also well and truly aware that the case against him included a claim that he had been reckless as to Ms Higgins’ consent,” Wigney said.
“The full court has found that the ordinary, reasonable viewer of the broadcast would understand rape as involving sexual intercourse occurring without the consent of the person the victim, with the other person the perpetrator, either knowing that the victim is not consenting or being reckless as to whether they are consenting.”
Neither Lehrmann nor Wilkinson was in court room 19E in Sydney’s federal court but they were represented by solicitor Zali Burrows and Sue Chrysanthou SC. Matt Collins KC was in court for his client, Ten.
Lehrmann has been ordered to pay costs.
Lehrmann’s appeal
Lehrmann appealed against the finding during a two-day hearing in August, arguing the judge erred in finding Ten and Wilkinson had legally justified the imputation of rape.
The appeal judges of the full court of the federal court were told Lee’s factual findings differed from the case run against Lehrmann, including that he had committed a “non-violent” rape against Higgins.
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“The primary judge found that the rape occurred in a particular way that wasn’t put to Mr Lehrmann in evidence, and he was taken by surprise as to the nature of the rape,” Burrows said.
But the ruling depicted a violent rape, argued Collins for Ten, labelling the suggestion that Lehrmann may have given different testimony as “astonishing”.
“The sting of the [defamatory] imputation resides in the act of intercourse without consent, not in any detail of it,” Collins told the appeal hearing.
Both sides took issue with the definition of rape employed by Lee, with Burrows maintaining it was inconsistent with an ordinary person’s understanding.
Ten and Wilkinson urged the appeal judges to find that Lehrmann was not only reckless as to Higgins’ consent – as Lee found – but that he knew she was not consenting.
A criminal trial of the rape allegations was abandoned in 2022 due to juror misconduct. Lehrmann has always maintained his innocence.
A Ten spokesperson said “Justice Lee’s judgment was resoundingly endorsed by the unanimous decision of the full federal court”.
“The judgment remains a triumph for truth and reiterates that Network 10 prevailed in proving that Brittany Higgins’ allegations of rape were true. It remains a vindication for the courageous Brittany Higgins who gave a voice to women across the nation,” the spokesperson said.
Lehrmann’s lawyer said outside court that her client maintained his innocence and would seek advice on appealing against his defamation loss to the high court.
Burrows told reporters Lehrmann was “overwhelmed” by the decision and she was worried about his mental health.
“He is a young man who is accused of rape in Parliament House and he maintains his innocence,” she said.
“We respect what the court has said, but everyone should reflect, even the shameless politicians who abuse him for an agenda and everyone else, that Bruce’s life has been destroyed.
“I’d just like to say that I hope Bruce is seen as an inspiration to those who say they’ve been wrongly accused, because he will be seeking advice on special leave [to appeal to the high court] in his pursuit for justice.”
