High-profile journalist Lisa Wilkinson has argued she never doubted Brittany Higgins’ rape allegations as part of an attempt to overturn critical court findings about her reporting.
While Justice Michael Lee found a Network Ten report on the Project in February 2021 did not defame Bruce Lehrmann when it effectively outed him as a rapist, the judge said that not enough was done to test Ms Higgins’ allegations beforehand.
In a Federal Court judgment in April, Justice Lee found, on the balance of probabilities, that the 29-year-old sexually assaulted Ms Higgins in a Parliament House office in March 2019.
Lehrmann has since appealed these findings.
Justice Lee also found Ten and Wilkinson’s defence of qualified privilege could not stand, saying they did not adequately probe all of Ms Higgins’ claims.
They included that the rape had been covered up by her bosses in the Liberal Party ahead of the impending federal election.
“When examined properly and without partiality, the cover-up allegation was objectively short on facts, but long on speculation and internal inconsistencies,” Justice Lee said.
On Wednesday, Wilkinson filed a notice of contention in Lehrmann’s appeal, saying if the Full Court found the law student was defamed, the defence of qualified privilege should be upheld.
For this defence to succeed, a media organisation or journalist has to prove they acted reasonably when publishing something in the public interest.
In the notice, Wilkinson’s barristers Sue Chrysanthou SC and Barry Dean said Justice Lee erred by rejecting her unchallenged affidavit evidence about the steps she took before The Project segment was aired.
The judge dismissed this evidence, saying there was “a decided air of artificiality” behind the affidavits in their suggestion that The Project team properly deliberated over whether to air Ms Higgins’ allegations.
Wilkinson’s barristers say their client acted reasonably because she was “never in doubt” about Ms Higgins’ account and had relied on trusted and experienced producers while performing her work.
They have challenged a total of 40 of the judge’s findings against the journalist, including her perceived lack of independence and that she did an insufficient amount of work before the broadcast.
The journalist’s legal team has also taken aim at Justice Lee’s findings that Lehrmann was merely “indifferent” to whether Ms Higgins had consented to sex in the Parliament House office.
After finding that Ms Higgins was significantly intoxicated and remained passive “like a log” during sex, the judge should have found Lehrmann had actual knowledge of her lack of consent, Ms Chrysanthou and Mr Dean argued.
In a notice of appeal, signed by himself without any lawyers, Lehrmann said he was denied procedural fairness by Justice Lee.
The 29-year-old pointed to significant credibility problems with Ms Higgins, including a photo of a bruise falsely put forward as being caused during the alleged rape.
He said that because of the deficiencies in Ms Higgins’ evidence, the court should not have found he engaged in such a serious crime and instead upheld his defamation case.
The picture of rape depicted in The Project broadcast was very different to what Justice Lee found, he wrote.
“The broadcast suggests a violent rape where the complainant was in tears and repeatedly refused consent,” he said.
“This is contrary to the non-violent rape involving inadvertent recklessness as to consent which was ultimately found in the judgment.”
He asked for the decision to be overturned and for the Full Court or a single judge other than Justice Lee to calculate the damages owed.
Lehrmann has always denied he sexually assaulted Ms Higgins and is not facing any criminal charges over the incident after his trial was aborted due to juror misconduct.
1800 RESPECT (1800 737 732)
National Sexual Abuse and Redress Support Service 1800 211 028
