By Adelaide Lang in Sydney

Bruce Lehrmann cannot be considered a man with a reputation for sexual morality when he was found to have likely raped colleague Brittany Higgins, a court has been told. 

The former federal political staffer is appealing his defamation loss against Network Ten and journalist Lisa Wilkinson over an interview with Ms Higgins on The Project in 2021.

Federal Court Justice Michael Lee found Ms 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” 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 Ms 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 appeals 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 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, Zali 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 Dr 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 satisifed had occurred: that sex took place, Ms 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, Dr Collins said.

Lehrmann has argued the judge was not satisfied about a number of the violent elements argued by Ten, including that Lehrmann had held open Ms Higgins’ legs or pinned her to the sofa.

“The sting of the (defamatory) imputation resides in the act of intercourse without consent, not in any detail of it,” Dr 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 Ms Higgins.

The ex-Liberal staffer had engaged in wicked conduct throughout the trial which amounted to “an exceptional abuse of process”, Dr 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”.

In his headline-grabbing decision, Justice Lee quipped: “Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.”

Ms 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 Ms Higgins.

His criminal case in 2022 was abandoned without any findings against him.

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