This article contains references to sexual assault.
Former federal political staffer Bruce Lehrmann is appealing his defamation loss against Network Ten and journalist Lisa Wilkinson over an interview with Brittany Higgins on The Project in 2021.
Federal Court Justice Michael Lee found Higgins' claims she had been raped in parliament house in 2019 were proven on the balance of probabilities in a ruling against Lehrmann in April 2024.
As Lehrmann's lawyer cast her client as "a national joke" who was treated unfairly during the defamation trial, Ten rejected suggestions any appeal loss should be met with a substantial award of damages.
Justice Lee would have awarded Lehrmann $20,000 if he'd won his case.
But Lehrmann raped Higgins when he knew she was seriously intoxicated, continued raping her when she became aware and left her in a state of undress, Network Ten's lawyer told the appeal court on Wednesday.
"That is not a man with any reputation in respect of sexual morality that would warrant compensation," Matt Collins KC said.
Lehrmann's lawyer, Zali Burrows, told the court her client was denied procedural fairness because the events found by the judge were "starkly different" from the case run by Ten.
The now-30-year-old was accused of committing a violent rape, but Justice Lee found it was a "non-violent" rape, Burrows said.
"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," she told the court.
But Collins argued the judge had found the opposite and indeed: "all rape is violent".
He said Lehrmann had been faced with the facets of the case which Justice Lee was satisfied had occurred: that sex took place, Higgins did not consent, and Lehrmann had been reckless as to her consent.
The elements fit a definition of rape that an ordinary person would understand, Collins said.
Bruce Lehrmann's lawyer Zali Burrows (left) apologised that Lehrmann was not represented by a silk, telling the panel of judges he "really wanted" Guy Reynolds SC but "couldn't afford" to engage him. Source: AAP / Dan Himbrechts
"The sting of the (defamatory) imputation resides in the act of intercourse without consent, not in any detail of it," Collins said.
The suggestion Lehrmann would have given different testimony if he was aware of the facts contemplated by the judge was "astonishing", he said, given Lehrmann denied ever having sex with Higgins.
The ex-Liberal staffer had engaged in wicked conduct throughout the trial which amounted to "an exceptional abuse of process", Collins charged.
"Mr Lehrmann instructed his senior counsel to cross-examine a sexual assault victim on the basis that no sexual intercourse occurred," he said.
The appeal judges also heard the defamation judgment, which followed a mistrial on a sexual assault charge, meant Lehrmann probably became "the most damaged man in Australia".
Return to 'lion's den'
In his headline-grabbing decision, Justice Lee quipped: "Having escaped the lions' den, Lehrmann made the mistake of going back for his hat."
Burrows said media attention, aggravated by commentary from Channel Ten and Wilkinson, had led to a flood of hateful social media comments aimed at Lehrmann.
"He's pretty much become a national joke," she said.
"He's probably Australia's most hated man."
Lehrmann maintains he did not sexually assault Higgins.
His criminal case in 2022 was abandoned without any findings against him.
If this story has raised any issues for you, help is available at Lifeline on 13 11 14.
If you or someone you know wants to talk about sexual assault or harassment, family or domestic violence, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au In an emergency, call 000.
