Brittany Higgins is set to wed her fiancee David Sharaz this weekend as Bruce Lehrmann considers whether to appeal a Federal Court judgment that he is a rapist.
It’s D-Day for Mr Lehrmann and the deadline to lodge an appeal to the Federal Court’s decision.
Mr Lehrmann is still tipped to lodge an appeal in the matter, but as of Friday morning there was no sign the paperwork had been lodged with the Federal Court appeals registrar.
Ms Higgins, who has moved to France, is currently in Australia for her weekend wedding in the Queensland hinterland.
If an appeal is lodged, the matter will be considered later this year by three Federal Court judges in a full court appeal.
It follows Justice Michael Lee’s finding, on the civil standard balance of probabilities, that he raped Ms Higgins in the private ministerial offices of Defence Industry Minister Linda Reynolds.
Mr Lehrmann has always denied that had sex with Ms Higgins and maintains his innocence.
Justice Lee delivered a blockbuster, 130,000-word decision in favour of Channel Ten in April.
Mr Lehrmann had sued Ten presenter Lisa Wilkinson over The Project’s 2021 interview with Brittany Higgins about her alleged rape in a Parliament House office.
On May 1, Mr Lehrmann’s lawyers previously indicated they may appeal the decision, and were given a two-week extension on the four-week deadline to do so.
The Knowledge element
Lawyers familiar with the judgment say there’s one legal question that any challenge may focus upon.
That question relates to what Justice Lee refers to as “the knowledge element”, and it centres on paragraph 590 in his judgment.
It hinges on the judge’s reasoning that he was satisfied Mr Lehrmann knew that Ms Higgins was not consenting.
“If I was to accept that Ms Higgins was obviously unconscious when sexual intercourse commenced, then proof of the knowledge element would follow readily,’’ Justice Lee wrote.
“That may well have been the case, but it is equally probable this may not have been obvious, thus requiring focus on the issue as to whether Mr Lehrmann understood that Ms Higgins, in her inebriated state, was not fully aware of what was happening to her.”
Knowledge is a crucial element of sexual assault cases. In determining whether the accused person had knowledge, the jury or judge must consider what active steps the accused took to determine whether the victim was consenting.
In his judgment, Justice Lee went on to note that “given what I have found about it being likely Ms Higgins did not expressly voice her resistance, and the other findings I have made of their interactions (that Ms Higgins was ‘like a log’), I do not consider I can be positively satisfied on the balance of probabilities that Mr 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.”
Bankruptcy’ a possibility for Bruce Lehrmann
Justice Lee has raised the prospect that Mr Lehrmann will be unable to pay Ten’s $5 million legal costs and will be forced into bankruptcy.
If he is forced into bankruptcy it could also have an impact on the former Liberal staffer’s capacity to appeal the judgment he raped Ms Higgins, because strict rules apply to appeals that can involve evidence of the plaintiff’s financial capacity to pay legal costs that were not applied during the original civil trial.
During a legal costs hearing in Sydney, Ten’s barrister Matt Collins KC raised concerns that much of the legal arguments were “academic” because Mr Lehrmann will not be able to pay the costs that are estimated to be between $5 million and $6 million.
“Alternatively, someone has to go and bankrupt Mr Lehrmann or do something like that,’’ Dr Collins said.
Justice Lee also discussed how Wilkinson should get her legal bills paid for by Channel Ten, following her court victory on that issue.
“She’s entitled to get a cheque from Network 10 prior to waiting to see whether or not Mr Lehrmann comes up with any money or he’s placed in a bankruptcy,’’ Justice Lee said.
Ten claims Lehrmann brought case on ‘deliberately wicked’ basis
Ten has argued Mr Lehrmann should be ordered to pay its massive legal costs on an indemnity basis, which covers a higher proportion of a costs bill than the standard order, on the basis he brought the case “on a deliberately wicked and calculated basis”.
Barrister Matt Collins KC argued that the circumstances were similar to the Ben Roberts-Smith matter where he was ordered to pay Nine’s costs on an indemnity basis.
While he did not stipulate how much those legal costs were, legal sources have previously suggested the combined cost of Ten and Wilkinson were between $5 million and $6 million.
“The proceeding was commenced by Mr Lehrmann in circumstances in respect of imputations, all of which had at their heart an assertion that he had been defamed by a publication that he had raped Ms Higgins,” Dr Collins said.
“One now proceeds from the basis that he must have known at all that though the imputations of which he complained were substantially true.
“In those circumstances, we are very much in the territory in our submission in which, with which the court was faced in the Ben Robert-Smith matter.
“Where in light of the findings of fact, in that case, taking the findings as a starting point, the proceedings could be seen always to have been commenced on a basis that was doomed to fail and that the applicant must have known was doomed to fail.”