Bruce Lehrmann has made a last-ditch effort to clear his name of findings that, on the balance of probabilities, he raped Brittany Higgins in Parliament House in 2019.
The alleged incident has spawned more than a dozen legal cases.
In documents filed to the high court, Lehrmann’s legal team argued that initial findings against him were “compromised”, and that a finding by the full bench of the federal court upholding that decision was therefore also compromised.
The application for special leave to appeal claims the federal court judge Michael Lee, in initial findings against Lehrmann, “inappropriately” did his own research, meaning both findings should be set aside.
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In 2021, former Liberal staffer Brittany Higgins told Network Ten’s The Project and news.com.au that she had been raped in 2019 on a couch in Parliament House.
The alleged rapist was not named, but Higgins’s Liberal colleague at the time, Bruce Lehrmann, claimed he was identifiable.
In 2022, Lehrmann pleaded not guilty to a charge of sexual intercourse without consent. That criminal trial was aborted because of juror misconduct and the charges were dropped with prosecutors saying a retrial would pose an “unacceptable risk” to Higgins’s health.
In 2023, Lehrmann sued Ten and presenter Lisa Wilkinson for defamation.
Justice Lee dismissed that claim, and found, on the balance of probabilities, that Lehrmann raped Higgins.
Lee’s colourful 2.5 hour summary of the case described it as an “omnishambles”.
Lee had reasoned 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”.
Lehrmann sought to overturn that 2024 defamation judgement.
But in December last year, the full bench of the federal court dismissed Lehrmann’s appeal and argued that Lee should have found that Lehrmann knew Higgins did not consent to sexual intercourse.
The bench said Lehrmann was not inebriated at the time and would have known that a “very drunk, passive and silent” Higgins was not consenting.
Lehrmann’s new application argues that the full court erred by depending on findings made by Lee that “were compromised by his having conducted his own research and having obtained extraneous non-legal material, such that there was not an impartial exercise of judicial power by the primary judge in some aspects of the case”.
It claims Lee should have been limited to expert material included in the agreed facts of the case, but that he also researched other academic literature on sexual assault victims.
It highlights Lee referring to Higgins’s “counterintuitive behaviour” saying it was “not inconsistent with the conduct of a genuine victim of sexual assault struggling to process what happened, seeking to cope and working through her options”.
“Irrespective of the fact that the primary judge had made compromised findings, the Full Court went further than even the primary judge himself was prepared to go: it made a finding that the applicant had actual knowledge that Ms Higgins did not consent to sexual intercourse,” the application claims, adding that high court intervention is therefore warranted, that both cases should be thrown out and costs awarded.
The application also argues about the meaning of the term “rape” and that defendants must prove the substantial proof of what they “actually published”.
It says that, in the publication context, “the ordinary reasonable viewer would have understood ‘rape’ in this context to mean ‘the rape and injury of an unconscious and then protesting woman’”.
“In other words, it was rape of a certain kind,” it says, arguing that the judgements against him “wrongly cast the relevant rape conveyed by the programme as a rape of any kind”.
• Information and support for anyone affected by rape or sexual abuse is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). In the UK, Rape Crisis offers support on 0808 500 2222. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
