Bruce Lehrmann’s legal team, headed by solicitor Zali Burrows, has filed an application for Special Leave to Appeal to the High Court arguing it is a “matter of public importance” after an unsuccessful appeal to the Full Bench of the Federal Court late last year challenging the outcome of the defamation trial against Channel 10 and Lisa Wilkinson, which resulted in Judge Michael Lee’s finding that on the balance of probabilities he had raped Brittany Higgins.
In its exclusive report, The Nightly says “The application argues trial Judge Michael Lee’s initial judgment about the rape was compromised because he did his own research during the case and relied on a string of academic papers about human behaviour in sex assault and rape cases which were not entered into evidence.
“The reference to the research in Judge Lee’s judgment took Mr Lehrmann and his legal team by surprise and they had not been given an opportunity to address them.
“It also argues the Full Court erred in relying on defences in Mr Lehrmann’s appeal which in turn depended on those findings by Judge Lee “that were compromised by his having conducted his own research and having obtained extraneous non-legal material, such that there was not an impartial exercise of judicial power by the primary judge (Lee) in some aspects of the case.”
“Mr Lehrmann has always maintained his innocence.
“The Special Leave application argues the issues of importance to be considered are that proper judicial process was not followed, the impartiality of that process, public confidence in that judicial process, whether research by a judge of non-legal matters complies with proper judicial process, and the scope of a judge’s investigative role, if any, particularly where the research is not raised by the judge with the parties.
“The Special Leave application asks for the appeal to be allowed with costs, that judgment of the Full Court of The Federal Court be set aside; the original defamation judgment be set aside; that there be judgment for Mr Lehrmann on the question of liability; and the matter be referred to a single judge of the Federal Court for assessment of damages.”
The application was prepared by barristers Gabriella Rubagotti and Bryanna Workman.
Lehrmann appealed Justice Lee’s decision to the Full Court of the Federal Court but judges Michael Wigney, Craig Colvin and Wendy Abraham dismissed the appeal.
One of the academic papers referred to in Justice Lee’s judgement is by Associate Professor Jacqueline Horan and Professor Jane Goodman-Delahunty ‘Expert Evidence to Counteract Jury Misconceptions about Consent in Sexual Assault Cases: Failures and Lessons Learned’ (2020) 43(2) UNSW Law Journal 707. The judgment includes: “In that article (dealing with how so-called “rape myths” play a role in jury decision-making), the authors observed (at 710–11):
Legal authorities in Australia, Canada, New Zealand, the United Kingdom and the United States of America accept that sexual assault myths and misconceptions have a potential to exert an undue influence on triers of fact when deliberating about a sexual assault case. To avoid this undesirable influence, courts rely on traditional processes to educate juries so that they can better assess the evidence in a sexual assault trial on a sound factual basis. The two primary mechanisms to counteract the undue influence of sexual assault myths are expert evidence and judicial directions.
Over the last decade, counterintuitive expert evidence has been permitted to educate the jury as to how complainants vary in their behaviour both during and following a sexual assault. Legal practitioners and academics have noted that this provision remains underused, despite the widely acknowledged need for this type of educative intervention.”
***
Goodman-Delahunty was also commissioned to write a report for the Royal Commission into Institutional Responses to Child Sexual Abuse. A 2017 story details the concerns from a number of leading academics about some of the research commissioned:
Extract of story by Richard Guilliatt, The Australian September 30, 2017
Child institutional abuse probe’s approach under fire
“The $500 million royal commission into institutional child abuse is promoting “ethically dubious” and potentially harmful ideas about the counselling of sexual abuse victims and the reliability of their testimony, senior experts in the field have warned.
Several leading national and international researchers say the long-running inquiry has adopted a misguided victim-advocacy role and published misleading, inaccurate research that could potentially undermine the $4 billion redress scheme for abuse victims.
Richard Bryant, director of the Westmead Trauma Stress Clinic, said the royal commission appeared to be advocating counselling practices that were potentially dangerous and contradicted guidelines endorsed by the National Health and Medical Research Council.
His concerns were echoed by several experts in psychology, including emeritus professor Don Thomson, chairman of the ethical guidelines committee of the Australian Psychological Society, and Elizabeth Loftus of the University of California Irvine, an internationally renowned memory researcher who described some of the ideas endorsed by the commission as “brain babble”.
Harlene Hayne, vice-chancellor of the University of Otago in New Zealand, said one of the commission’s recent reports contained “a level of error that would probably cause you to fail an undergraduate memory course”.
The criticisms centre on two royal commission reports, one on the proposed compensation scheme, the other examining the effects of childhood trauma on memory…..
…The compensation report draws extensively on the advice of Cathy Kezelman, president of the victim-advocacy organisation the Blue Knot Foundation and co-author of a 120-page counselling guide that advocates “trauma-informed care”, an approach the royal commission adopted. Its central idea is that counsellors focus on their clients’ underlying trauma rather than their presenting symptoms… Professor Bryant said the trauma-informed approach advocated by Dr Kezelman directly contradict best-practice guidelines endorsed by the NHMRC, which encourage counsellors to focus on treating symptoms.
He said her counselling guidelines advocate ethically dubious and potentially dangerous therapy techniques such as helping clients retrieve “implicit memories” that are hidden from consciousness, a technique that caused a rash of false and bizarre reports of child abuse in the 1980s and 90s.
“Does the royal commission really want to advocate policies that are contrary to the NHMRC?” he asked. “If funds are going to be made available for people who have been damaged, I think it would be ethically irresponsible, and would further compound the damage to the victims, if the system promoted or even -allowed psychological services that are not evidence-based.”
Professor Loftus described aspects of the guidelines as “brain babble”, saying if they were widely adopted, “I foresee a world of hurt in Australia’s future”.
Dr Kezelman defended the guidelines, saying they had been endorsed by the Royal Australian and New Zealand College of Psychiatrists and the Royal Australian College of General Practitioners. The chairman of the RANZCP’s faculty of psychotherapy, Michael Daubney, said current counselling methods often did not meet the complex needs of people who had suffered extensive interpersonal abuse in childhood, a gap that trauma-informed care could fill. The royal commission report stipulates it is not advocating any particular counselling model for the compensation scheme, but recommended Dr Kezelman’s organisation be involved in accrediting counsellors for the scheme: she now sits on the advisory panel devising it.”
and…
“The other royal commission report to have attracted strong criticism is a 185-page review of the effects of childhood abuse on memory, which states among its findings that young children are not highly suggestible and do not appear to be more susceptible to misinformation than adults.
Professor Thomson said these assertions are contradicted by decades of research, a view supported by Professor Hayne and Deirdre Brown, from Victoria University of Wellington, two leading child psychology researchers.
Professor Hayne described the report as sloppy, inaccurate and potentially harmful to the cause of abuse victims. She was concerned a government inquiry was promoting such an erroneous, falsely optimistic view of children’s reliability, potentially undermining years of study into their vulnerabilities as witnesses. “Maybe they misguidedly have the view that this is an advocacy exercise,” she said. “I can see how this report could be misused and would lead to greater harm to children, if it leads to the belief they don’t have special needs as witnesses.”
The lead author of the report, Jane Goodman-Delahunty of Charles Sturt University, said she was aware some researchers contested its findings but these reflected robust recent research showing children were not as suggestible as earlier studies had reported. She said one aim of the report was to highlight ways to address the high incidence of “potentially wrongful acquittals” in child sex abuse cases, although it acknowledges the importance of careful, non–suggestive questioning of children.
In a prepared statement, the royal commission said it had commissioned a large number of research reports, and the report co-authored by Professor Goodman-Delahunty reflected the views of the authors and not necessarily the views of the commission itself.”
In Cardinal Pell’s appeal, wasn’t it the case that the High Court said having regard to the “whole of the evidence”, the jury should have had a doubt about the applicant’s guilt?
Extract: “Criminal law – Sexual offences against children – Appeal against conviction by jury on ground that verdict unreasonable or cannot be supported having regard to
whole of evidence – Where prosecution case wholly dependent upon acceptance
of truthfulness and reliability of complainant’s account – Where jury assessed
complainant’s evidence as credible and reliable – Where witnesses gave
unchallenged evidence of specific recollections, practices and routines inconsistent
with acceptance of complainant’s account (“unchallenged inconsistent
evidence”) – …– Whether unchallenged inconsistent evidence required jury, acting
rationally, to have entertained doubt as to applicant’s guilt.”
Did the judge have regard to the whole of the evidence in Lehrmann’s case. Some comments/questions:
1. Conflicting Witness Accounts
The Incident at the Kingo where BL was supposed to have taken BH phone. NH said this happened and that BL said BH was good looking (which somehow got translated into sexually attractive and then Hell Bent of having sex with). But NH had had the argument with JW about the offer of the promotion to BH so she could do media in Canberra and the East Coast. BH and JW concerned no proper interview process. JW said at trial he could not recall the phone being taken and as he had reported the Kingo incident to the office manager that evening (NH had told both JW and BH to “shut the F* up” before resigning via text while she was walking home), he felt he would have reported the phone matter.
2. Information Missing from Justice Lee’s Drinks Table in the Judgment
Raw CCTV evidence that Steve Whybrow showed the court just before Christmas 2023 reveals that the female public servant NI bought 3 rounds of drinks in the last 1. 5 hours at the Dock and she and other men helped distribute the drinks to BH. For some reason, this section of CCTV is not in the AFP video. These 3 rounds of drinks also do not appear to be in the expert Toxicologist’s report on the Federal Court file. NI had made pouring drink and sculling motions, pointing to the small table where BL, BH, LG and AW were sitting – shown in SW video.
3. Discrepancies in Ms Higgins evidence to Police
There are pages of discrepancies identified by investigating police in the material on the Website of the Inquiry into the ACT Criminal Justice System (Sofronoff Inquiry). The police stated they found BH uncooperative, evasive and manipulative. “The victim was reluctant to fully support the investigation by delaying investigator’s requests, withholding info, reporting the progress to the media”.
BH father and partner gave evidence of them visiting BH the weekend after the alleged incident, (it had all been arranged previously) and BH took them on a tour of Parliament House that Saturday. Their witness statements are almost completed blacked out on the Federal Court file. Why?
4. Tensions between AFP and ACT Police. This became very clear in the Sofronoff Inquiry in relation to whether there was sufficient evidence to charge Lehrmann. The Master Chronology prepared for the Criminal Trial and posted on the 2023 Federal Court case online (in the Auerbach affidavit) also gives an insight into the involvement of many senior AFP including those who appear to have backgrounds in National Security and Counter Terrorism! One of the senior AFP officer said the Commissioner had told him “just get it done” in relation to the charging. Another senior AFP Officer LC had made notes which did not appear to align with the recollections of LR and FB. This was in the recent WA trial judgement. The now ex AFP officer LC was the only witness called by Higgins lawyers.
5. Lip Reader flown in from UK in Dec 2023. The qualifications do not seem to have been published in the media and the explanation as to why a UK lip reader had to be used instead of an Australian lip reader.
6. Was equal weight given to contemporaneous representations or only from some witnesses?
Much weight appears to have been given to some witness contemporaneous recollections (eg CP who reported the classified doc breach about BL – but no affidavit online, NI an ADC – but she told the court she did not keep a record of conversation with BH, LG regarding the alleged kiss etc at the nightclub – but she could not remember who she left with and whose home she went to, and certain texts between BH and her friend/ex partner BD). BH did not refer to any kissing at night club, BL denied any kiss, AW said he did not see any kissing — but the Judge accepts LG evidence. Judge did not seem to comment on the following contemporaneous text exchange the morning of the alleged incident:
Ex R99 on Fed Court online file 715am Sat 23/3/19 to ex bf: she needed to “slow down a bit, gotten a little out of hand recently haha… ha ha I just get myself into trouble, gotta keep that shit locked down”…explaining “just the standard shenanigans”.
7. The Security Guard AWs who came on duty at Parl House the morning of the alleged incident and BH texted him in the lead up to, the morning and the weekend of the alleged incident. Never called as a witness, judge did not enquire about his contemporaneous records.
8. The male public service Aide De Camps of Head of Navy, Gov General (according to BL police interview) and others at the Dock Hotel – about 5 of 6 of them. Never called as witnesses and no enquiries made about the conversations that evening. Lip reader not asked about their conversations. A couple of them did spend time at the small table where BH, BL, AW and LG were seated. And helped distribute drinks according to SW video shown towards end of 2023 trial.
8. Judge appeared to help LG out when she was giving evidence about BL and his alleged future job in ASIO/Intelligence. When she stumbled he said something like, you knew he was serious, that it was not a joke.
9. Who paid for all the drinks and food at The Dock and at the Nightclub 88MPH and the Uber to the nightclub?
BL credit card shows only limited amounts at the 2 venues from 830am – 130am (? from memory $16 and $40?). Who paid for all the drinks? Was there any check of credit cards held by the key people present? Receipt online shows a payment for $118 at The Dock Hotel. Does not appear to be much investigation into the payments.
10. NI and LG both knew the nightclub was 88MPH. NI and BH were talking the week of the alleged incident – walk to passport office etc. So why does BH tell AFP she does not know the name of the nightclub? No CCTV ever obtained.
I believe in the Law but now I know how corrupt Judges are, you wash my back & I will wash yours, guilt should be on evidence not what Judges think. Cheers
You might also consider whether the High Court erred in its decision in the Steven Fennell case in relation to the hammer.
Steven,
Are you the same Steven Fennell as https://gnechlawyers.com/afternoons-on-4bc-the-extraordinary-case-of-steven-fennell/
I ask because of the nature of your replies to me on another thread. I consider your knowledge of the Neill-Fraser case to be naive and largely based on the opinions of Neill-Fraser’s supporters.
Here is something for you to think about:
When an eyewitness states what they saw then the critically important things to consider are:
distance, lighting conditions, location of the light source with respect to the direction the eyewitness was looking at the time of day, the length of time that the eyewitness was looking at the relevant scene, etc. That is something that you didn’t consider in your reply to me regarding the grey dinghy.
Jenny,
Yes, I am the same Steven Fennell.
Thank you for taking the time to set out your position. I’m not dismissing the general principles you raise about eyewitness evidence, you’re absolutely right that distance, lighting conditions, angle, duration of observation and the position of light sources are all critical when assessing any claimed sighting. Those factors deserve careful, disciplined analysis and are often underestimated in public discussion.
On the narrow issue of the grey dinghy, I’m prepared to concede that reasonable people can differ once those factors are fully accounted for. I don’t claim that any single eyewitness account, taken in isolation, establishes innocence or guilt.
Where I continue to disagree is in the broader assessment of the case. My position on Sue Neill-Fraser’s innocence does not rest on one disputed sighting or on supporter opinion, but on the cumulative implausibility of multiple actions attributed to her by police. When those allegations are examined against actual evidence the timing, physical capability, forensic findings, and internal consistency, they strain common sense. It is that overall pattern, rather than any single contested detail, that underpins my view.
By way of context (not to divert from Sue’s case), in September 2025 I lodged a 720-page police complaint in my own matter, which is due to be responded to by 9 January 2026. That complaint removes any doubt of my assertions because every assertion is supported by the police’s own evidence, including conclusions from their own specialists that were not applied as they should have been. My case should never have gone to trial: every prosecution allegation was contradicted by other police evidence. Yet it proceeded regardless.
That experience strongly informs how I view cases like Sue Neill-Fraser’s. Juries are human. Research consistently shows that a significant majority of people enter trials believing police would not lay charges unless they already “have the evidence”. If the prosecution tells a coherent story, presents it as fact, and repeats it; particularly if objections are not made or sustained juries frequently accept that narrative over the underlying facts.
I saw this first-hand. In my trial, the prosecutor repeatedly told the jury that I took cheques to the bank this was said multiple times in quick succession and many times overall. There were no cheques. There never were. The repetition only stopped when my lawyer finally objected.
Similarly, the word “meagre” was repeatedly used to describe my income in 2012, inviting the jury to infer financial hardship or motive. At the time, the average annual income in Queensland was approximately $57,000. The police forensic accountant’s own figures put my income at over $102,000, plus more than $10,000 in contra arrangements and cash-in-hand work. By any objective measure, that is nearly double the state average, yet the label “meagre” was allowed to stand. Narrative displaced fact.
History shows how powerful these dynamics can be. Even after the Chamberlains were acquitted and substantial material emerged that had never been presented to the jury, many people continued to believe Lindy Chamberlain was guilty; not because of evidence, but because she was seen as unlikeable or did not behave as expected on the witness stand. Opinion replaced fact.
I raise this not to claim infallibility, but to explain why I am sceptical when convictions rest heavily on narrative, inference and asserted behaviour rather than solid, tested evidence. People are entitled to opinions; police and prosecutors are not. They are obliged to operate on facts.
Finally, a word about records. The written transcript is often an incomplete representation of what actually occurred in court. My High Court transcript runs to about 70 pages and is a relatively quick read, yet the audio-visual recording runs for over three hours. What the transcript cannot convey are the pauses, the uncertainty, the searching for words, or the judges’ visible reactions, raised eyebrows, disbelief, even suppressed laughter. In my view, the transcript captures perhaps half of what really matters. I strongly suspect the same dynamic applied in the Neill-Fraser case. If audiovisual records exist, I would encourage anyone serious about the case to view them.
I respect that you approach this case from a different standpoint, and I’m happy to engage on the evidence where there is genuine room for discussion.
Steven
What on this earth prompted you to write the following sentence in your other reply about the Neill-Fraser’s case?
“Sue was accounted for at home during that 5-9pm window, per the records.”
Where on earth did you get that?
It’s as though you don’t actually know Neill-Fraser’s Statutory Declaration and her trial transcript?
What records are you relying on? Perhaps that claim surfaced in some private discussions postrial. I read thousands of comments on this case, the trial transcript, all publicly available court decisions and virtually all online comments on the case going back 2013. I don’t recall any of Neill-fraser’s lawyers nor her supporters ever claiming that she was actually home during the hours of 5pm – 9pm.
Perhaps you are referring to some private discussions.
Hi Jenny,
I am sorry but I did not write:-
“Sue was accounted for at home during that 5-9pm window, per the records.”
I did not write it in any version it is not there now the only thing I did was add the links to my court matter then because I cocked that I i wrote and combined them but at not time did I write the sentence above do you have a screen-shot or anything so we can work it out?
Jenny on a re-reading of your reply do you mean a comment made at an earlier time that has nothing to do with the conversation in this post or my reply to you here?
I have both OCD and ABI (acquired brain injury) and it can sometimes confuse timelines and short term memory so if you are referring to an earlier post a date or details that would make it easier for me to locate.
I would like to refresh my memory or at least read what I wrote and when but would have to be after after September 2019 as prior to that I was still an inmate.
Did you actually use AI do generate the comments on the Neill-Fraser case? I ask because AI can hallucinate and generate false information that the person who used AI might not pick out to notice what was actually generated by AI until someone points out the error?
Read your comments on https://wrongfulconvictionsreport.org/2026/01/04/politicians-make-fake-excuses-to-avoid-accountability/
Steven,
Your lengthy and well worded comment isn’t what one would expect from a person ABI (acquired brain injury) who has short term memory problems! Looks to me that you used AI.
Jenny,
Thank you for the link you provided to my case.
I appreciate you taking the time to read it. For completeness, I’ll add two references I mentioned earlier.
The written High Court transcript of my matter is here: https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans//2019/186.html
The corresponding audio-visual recording of the hearing is here: https://www.hcourt.gov.au/cases-and-judgments/hearings/av-recording/av-2019-09-11
As you’ll see, the transcript is a relatively short read, but the hearing itself runs for over three hours a useful illustration of how much context, nuance and judicial reaction is lost when only the written record is relied upon.
Steven
My Opinion: balancing facts with fairness
Fact-based anchor:
At present, the highest court that has actually decided the matter, the Full Federal Court, has upheld, unanimously, the finding that Lehrmann likely raped Higgins on the civil standard.
Lehrmann has lost both the primary trial and the appeal.
Fairness considerations:
Civil findings in defamation cases are not criminal convictions and should not be framed as such in public discourse; that is a core fairness point often missed in commentary.
Claims of procedural unfairness (e.g., reliance on extraneous research) deserve careful legal scrutiny. If a judge relied on material not put before the parties, that can matter legally even if the ultimate finding was correct on the evidence.
However, just because a judge referenced academic work does not automatically mean the entire decision was unfair, what matters is whether it affected the parties’ ability to respond meaningfully.
Public interest and perception:
The High Court only grants special leave in a small fraction of cases. It will assess whether the issues raised are of legal principle and public importance, not merely whether Lehrmann disagrees with the outcome.
Fairness includes respect for established appellate processes; indefinite ongoing litigation can be fair to neither the accused nor the complainant.
Conclusion ( in my humble view of a balanced opinion)
On the facts as established in court so far, the civil findings against Lehrmann have been upheld twice and now face only a conditional High Court review. On fairness grounds, procedural issues raised by his team are not trivial and merit serious legal consideration, but that should not be conflated with factual guilt or innocence.
The appropriate balance lies in acknowledging judicial findings while recognising legal process and standards matter and that the High Court is the correct venue to resolve arguable points of law.
If the High Court were to grant special leave, it would likely be to address legal procedure, not to re-weigh evidence consistent with Australia’s appellate framework.
That Andrew is my opinion as someone that has been down this very road and was able to have the High Court review lower courts decision with success.