‘This cannot stand’ – Bruce Lehrmann

Andrew L. Urban.

 Justice  Lee’s judgement is not reliant on any arguments by any of the parties, according to Bruce Lehrmann’s notice of appeal against Justice Lee’s judgement in his failed defamation trial: ‘this cannot stand’ is his stance, broke and derided as he is. 

It is because he is broke that he is representing himself at the appeal. He has little choice but to appeal, given that the judgement means he has no prospect of a life. While the judgement brands him as a rapist (a term devoid of nuance) he is barred from employment and shunned by society. But living in the shadows hasn’t stopped him from stepping back into the lions’ den, as it were.

Although he cannot afford an official legal team, he has received advice from some acclaimed legal minds – because they felt compelled to help him defeat the outcome.

In short, the most powerful ground of appeal (see details below) is that the judgement is not reliant on any arguments pleaded by any of the parties. In other words, nobody argued what the judge found as proved. That is a failure of procedural fairness and the judgement must be set aside.

In his notice of appeal, Lehrmann lists the following four grounds:

Grounds of appeal

1. Case found outside the pleadings – denial of procedural fairness by Trial Judge.
   • Case on justification as found not pleaded by the First or Second Respondent.
   • Case on justification as found not in the evidence of witness for the First Respondent.
   • Case of justification as found not put to Mr Lehrmann in cross examination.
   • Trial Judge did not to raise in argument.
   • Trial Judge breached procedural fairness in allowing a case be found that was not pleaded or advanced by the First and Second Respondents nor in the evidence of witnesses for the First Respondent nor put to the applicant in cross examination.
   • The justification defence as pleaded has been rejected by the Trial Judge, it should follow that judgement is in favour of Mr Lehrmann.
2. Justification finding contrary to evidence and application of standard of proof required by Trial Judge.
   • A full review of the evidence and findings by the Trial Judge together with the significant credibility problems of the First Respondents primary witness would satisfy the Court of Appeal that the principles flowing from Briginshaw v Bringinshaw (1938) 60 CLR 336 and the relevant provisions of the Evidence Act have been misdirected and not applied.
   • Further, the case found by the Trial Judge was never advanced by the primary witness for the First Respondent in her evidence and not advanced by the First and Second Respondent in argument.
3. Construction/misconstruction of the imputations by Trial Judge.
   • The imputations must be judged in the context of the particular publication, Stoker v Stoker [2020] AC 593 and not as the Trial Judge said as “ordinary, contemporary conceptions of rape” (594 of the judgement).
   • The broadcast suggests a violent rape, where the complainant was in tears and repeatedly refused consent, of which repeated refusal the perpetrator must have been aware. This is contrary to the non-violent rape involving inadvertent recklessness as to consent which was ultimately found on the judgement made by the Trial Judge.
4. Inadequate award of damages where aggravation made out by applicant
   • Trial Judge found the submissions of the applicant relating to aggravation were made out, principally the Logies Speech and the impact it had on the administration of justice.
   • It follows that the amount that the Trial Judge would have awarded in an alternative fall of the evidence is wholly inadequate.

DISCLOSURE: Andrew L. Urban has been invited to work with Bruce Lehrmann on his book about his experience, in due course.