Bruce Lehrmann’s appeal of Justice Michael Lee’s April 2024 defamation judgement wrapped up on Thursday, one day short of the three days which had been set down to hear it.
It was an abrupt end to a high-profile four-year legal battle over Network Ten’s interview with Brittany Higgins on The Project on 15 February 2021.
The justices have reserved their decision on whether to overturn Lee’s finding that the former Liberal staffer was not defamed by Lisa Wilkinson and Network 10 when they alleged Higgins was raped in Parliament House.
The abrupt ending to the trial was not the only surprise which played out on Wednesday and Thursday in a Sydney courtroom.
Despite the nation’s two most accomplished defamation barristers, Dr Matt Collins KC and Sue Chrysanthou SC, appearing for the respondents, all the attention was on Lehrmann’s lawyer Zali Burrows.
She is a well-known criminal defence lawyer but has no experience in defamation law and has not been admitted to the bar. So she seemed to struggle at times to present complex legal arguments before the full bench of the federal court, justices Michael Wigney, Craig Colvin and Wendy Abraham.
“I’m just going to try and do the best I can,” Burrows said after apologising for her client’s failure to retain a silk.
Despite briefing Guy Reynolds SC, and delaying the trial by six months to accomodate his schedule, Lehrmann “couldn’t afford” him and Burrows had to press on alone.
The written submissions had been lodged back in March, presumably with the assistance of Reynolds, but now the four grounds of appeal had to be articulated in verbal submissions. The justices were unfailingly polite, making allowances and taking time to explain law and procedure.
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The uneven match between the parties produced some extraordinary courtroom scenes, all broadcast on the federal court’s YouTube channel.
Here are five key moments.
‘Astonishing submission’
Arguing that Lehrmann was denied procedural fairness and natural justice because Lee came up with “his own version” of how the alleged rape occurred, Burrows faced a sceptical bench.
“I don’t understand the logic of this submission,” Colvin said.
“You need to explain why it is a different case.
“It is all very well to say these things out loud, but you need to explain why this is a different case.”
Burrows claimed Ten reported a “forceful” rape whereas Lee found a “soft rape”.
“It was asserted against Mr Lehrmann … that he violently raped, that it was done in a violent nature,” she said. “Whereas His Honour found a totally different case as if it was, using the phrase, a soft rape.”
Colvin: “I’m not sure he found a non-violent rape, and I’m not sure that’s a concept I understand.”
Burrows and Lehrmann outside court during a rainy week in Sydney. Photograph: Steve Markham/AAP
Much of the time over the two days was taken up with this argument, which was dismissed by Ten’s silk Collins as “misconceived” and “a distraction, in our respectful submission”.
Collins said it was an “astonishing submission” that Lehrmann’s evidence might have been different if he had been given the chance to respond to questions about a “non-violent rape”.
Wigney asked how Lehrmann would have answered questions differently when he had consistently maintained no sexual intercourse took place.
She repeated that Lehmann did not get an opportunity to answer differently.
Lehrmann as the ‘victim’
One thing Burrows was good at was presenting Lehrmann as a victim. She asked the court to substantially increase his damages should he win on appeal because he has been vilified in traditional and social media.
“He’s pretty much become the national joke … Australia’s most hated man,” Burrows said.
She bemoaned the fact that when he left court “no one in the back of the court or any of the reporters downstairs are going to have anything nice to say to him and not even ask, ‘Are you OK?’.”
Colvin cut her off: “Is this a speech or is this a submission?”
‘I need more time’
Burrows asked the bench on multiple occasions to adjourn so she could have more time to prepare her own submissions. They refused every time.
Wigney said Burrows had already “obtained the court’s indulgence” to commence her reply to submissions a day later than scheduled, and she should start her response.
“If I can put it this way, nothing that has occurred this morning has impacted, or could impact, on your ability to reply to those matters,” Wigney said.
After another request Burrows was told to “start now” and reminded she had “more time over lunch” to sort out any issues.
She made a final bid for more time at the end of the day, asking if she could finish her submissions early and come back on Friday.
“There are further documents I prepared but I’m embarrassed to say they’re not here. Can we finish early and resume tomorrow morning?” she asked.
Wigney replied: “I don’t think so, I think we need to resume 1755869197.”
‘It’s your appeal’
When Burrows asked for a clarification of a question from Colvin about a challenge to the underlying findings, Wigney appeared perplexed.
“It seems to me to be a very important and central issue for your appeal,” Wigney said.
“It’s your appeal. What are the … do you understand the reference to the underlying facts?”
Wigney said Burrows had been in possession of Ten’s written submissions “for some time, quite clearly”, and they list the underlying facts “in quite simple terms”.
“So you’ve had plenty of opportunity to consider this issue,” he said.
No reply to notice of contention
While Burrows did address the matters in the appeal proper, she had little to say about Ten and Wilkinson’s extensive challenges of Lee’s judgement.
Ten said Lee was wrong to find Lehrmann was reckless to consent for sex, based on how intoxicated Higgins was. Wilkinson argued Lee erred when he found Wilkinson’s team failed in their defence of qualified privilege, known as section 30.
They argued Lee should have found that “an intentional rape” had taken place, instead of finding that there was no evidence Lehrmann knew that Higgins did not consent to the sexual activity.
Chrysanthou sought to overturn Lee’s decision on Wilkinson’s qualified privilege defence, arguing her client acted reasonably in preparation of the program.
“It was always our case at trial that Ms Wilkinson should have succeeded in this defence, but also so should have Network Ten,” Chrysanthou said.
But after hours of submissions that detailed where Wilkinson believed Lee had made errors, Burrows had no reply to Collins or Chrysanthou.
Wigney prompted Burrows to answer before he wrapped up, saying “the compelling inference is that your client was not merely reckless but knew that Ms Higgins was not consenting”.
“Now, you haven’t addressed that at all. It’s detailed written submissions have been made in relation to it and, oral submissions. Is there… anything you want to put to us in relation to that?”
Burrows never took up the offer.
