A judge should have found Bruce Lehrmann knew Brittany Higgins was not consenting to sexual intercourse, Lisa Wilkinson’s lawyers have told the federal court ahead of his appeal.
In fresh documents filed ahead of Mr Lehrmann’s defamation case appeal, Sue Chrysanthou SC and Barry Dean said having found Ms Higgins was significantly intoxicated, Justice Michael “should have found that the appellant had knowledge of Ms Higgins’ lack of consent at the time of intercourse”.
Lawyers representing Ms Wilkinson filed a notice of contention on Wednesday, which only comes into play if the appeal judges make a finding in Mr Lehrmann’s favour.
In a landmark judgment in the Federal Court in April, Justice Michael Lee found Mr Lehrmann had, on the balance of probabilities, raped Brittany Higgins at Parliament House in March 2019.
The judge subsequently dismissed Mr Lehrmann’s claim he had been defamed by Ms Wilkinson’s 2021 interview with Ms Higgins on The Project.
Mr Lehrmann is appealing the decision, with documents filed earlier this month, claiming he was denied procedural fairness by Justice Lee.
In the new arguments, Ms Chrysanthou and Mr Dean argued Justice Lee’s judgment should be “affirmed on grounds other than those relied on by the court”.
In the documents, the lawyers said the judge was correct when he found Higgins was so intoxicated she was “like a log”.
But they argued Justice Lee should have found Mr Lehrmann knew Ms Higgins was not consenting to sexual intercourse at the time of the intercourse.
“His Honour in assessing whether the second respondent had established that the appellant had raped Ms Higgins was required to consider the natural and ordinary meaning of rape, which included the ordinary person’s understanding of the concept of knowledge of lack of consent as at the date of publication, and failed to so at judgment,” the document states.
In his judgment, Justice Lee had found Mr Lehrmann was “recklessly indifferent to the truth” or was “finding it difficult to remember” what occurred in the hours before the rape.
The judge found Mr Lehrmann did not have a “stage of mind of actual cognitive awareness” that Ms Higgins had consented.
“He did not care one way or the other whether Ms Higgins understood or agreed to what was going on,” the judgment reads.
Ms Wilkinson’s lawyers also argue Justice Lee erred in “preferring Ms Fiona Brown’s evidence over Ms Higgins”, which they say went against Ms Higgins’ credibility.
Ms Chrysanthou and Mr Dean also objected to multiple areas of Justice Lee’s judgment in regards to the qualified privilege defence by Network Ten and Ms Wilkinson.
Justice Lee found Ten and Ms Wilkinson would not have been able to rely on the qualified privilege defence if the truth defence had failed.
“If the Court upholds the appeal in relation to justification, the second respondent contends that his Honour should have found that the second respondent had established her defence,” the fresh documents state.
They argue the defence should have been established.
Ms Chrysanthou and Mr Dean argue their client’s conduct was reasonable in publishing Ms Higgin’s allegations of rape and were supported by the fact Ms Wilkinson was “never in doubt” about the account, and she relied on “trusted and experienced producers” at Network Ten.
The lawyers claim Ms Wilkinson was not responsible for the final broadcast, which was “subject to review and approval by numerous producers and executives”.
They claimed Ms Wilkinson understood producers at the show “undertook extensive factual checking, review and decision making before the broadcast”.
Ms Wilkinson claims the judge failed to have regard to parts of her evidence, such as the reliability of the “bruise photo”
“If the Court will enter judgment for the appellant and finds the provisional assessment of damages by his Honour against the second respondent is in error and should be reassessed, the second respondent contends that his Honour erred in finding at judgment that the second respondent’s conduct was improper and unjustifiable,” Ms Chrysanthou and Mr Dean wrote.