Bruce Lehrmann was not “indifferent” to Brittany Higgins consenting to sexual intercourse, but instead knew she was not consenting, Lisa Wilkinson’s lawyers have told the federal court in fresh arguments ahead of the former Liberal staffer’s defamation case appeal.
In April Justice Michael Lee found the former Liberal staffer was not defamed by Wilkinson and Ten when The Project broadcast an interview with Higgins on Monday 15 February 2021 in which she alleged she was raped in Parliament House.
Earlier this month Lehrmann filed an appeal claiming he was denied procedural fairness by the judge who rejected his defamation case against Network Ten and Wilkinson.
In new arguments filed on Wednesday, Wilkinson’s lawyers said Lee was correct when he found Higgins was so heavily intoxicated and passive that she was “like a log”.
But they argued he erred in not finding that Lehrmann knew she could not consent and Lee’s judgment “should be affirmed on grounds other than those relied on by the court”.
“Having found Ms Higgins was significantly intoxicated, that the appellant was aware of her significant intoxication and that at the time of sexual intercourse Ms Higgins was passive ‘like a log’, his Honour should have found that the appellant had knowledge of Ms Higgins’ lack of consent at the time of intercourse,” the notice of contention prepared by barristers Sue Chrysanthou SC and Barry Dean said.
“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.”
In his judgment in April, Lee was not satisfied, on the balance of probabilities, that Lehrmann “turned his mind to consent and had, at the relevant time, a state of mind of actual cognitive awareness that Ms Higgins did not consent to having sex”.
Lee found that Lehrmann was “recklessly indifferent to whether or not there was consent”.
Lee said it was more likely than not in those early hours, “after a long night of conviviality and drinking and having successfully brought Ms Higgins back to a secluded place, Mr Lehrmann was hellbent on having sex with a woman he found attractive” and knew was inebriated.
“He did not care one way or the other whether Ms Higgins understood or agreed to what was going on.”
“Because of what I find to be Mr Lehrmann’s state of mind of non-advertent recklessness, the knowledge element has been made out,” Lee found.
Wilkinson contends Lee erred in his decision to prefer Fiona Brown’s evidence over that of Higgins, a decision which went against Higgins’ credibility.
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The matter of contention was the timing of when Higgins told Brown she had been raped on the couch in Linda Reynolds’ office.
Lee made his decision “without regard to contemporaneous records and other independent evidence from witnesses whose evidence was accepted without qualification that corroborated Ms Higgins’ evidence where it conflicted with Ms Brown’s”, the filing said.
Wilkinson has also made several objections to Lee’s findings in relation to the qualified privilege defence put up by Ten and Wilkinson. She asserts the defence “should have been found to have been established by the second respondent” Wilkinson.
The objections include that she was not responsible for the final product which went to air and she was subject to directions by Ten, such as not to have any direct engagement with Higgins about the broadcast.
Wilkinson said she understood that The Project’s producers “undertook extensive factual checking, review and decision making before the broadcast”.
Wilkinson said Lee failed to have regard to her evidence that she had further discussions about the reliability of the “bruise photo” and was informed by producers that the issue had been addressed.
If Lehrmann were to be successful in his appeal, Wilkinson contends that Lee erred in finding that her conduct was improper and unjustifiable.