Bruce Lehrmann considering appeal against judgment that he raped Brittany Higgins

News.com.au can reveal that Mr Lehrmann has hired noted appeals specialist Guy Reynolds SC, and the appeal plan is likely to be flagged at this week’s costs hearing, on May 1.

The barrister’s clients have previously included Eddie Obeid, Man Haron Monis, Mick Gatto and Peter Dutton.

The hearing is also expected to include a discussion over Channel Ten’s conduct in green-lighting Lisa Wilkinson’s Logies speech after Justice Lee wrote to parties and asked for a transcript of comments made outside court by a lawyer acting for Channel Ten.

Mr Lehrmann has 28 days to lodge an appeal in relation to a Federal Court finding that he raped Ms Higgins, and lawyers familiar with the judgment say there’s one legal question that any challenge will focus upon.

That question relates to what Justice Lee refers to as “the knowledge element”, and it centres on paragraph 590 in his judgment.

It hinges on the judge’s reasoning that he was satisfied Mr Lehrmann knew that Ms Higgins was not consenting.

“If I was to accept that Ms Higgins was obviously unconscious when sexual intercourse commenced, then proof of the knowledge element would follow readily,’’ Justice Lee wrote.

“That may well have been the case, but it is equally probable this may not have been obvious, thus requiring focus on the issue as to whether Mr Lehrmann understood that Ms Higgins, in her inebriated state, was not fully aware of what was happening to her.”

Knowledge is a crucial element of sexual assault cases. In determining whether the accused person had knowledge, the jury or judge must consider what active steps the accused took to determine whether the victim was consenting.

In his judgment, Justice Lee went on to note that “given what I have found about it being likely Ms Higgins did not expressly voice her resistance, and the other findings I have made of their interactions (that Ms Higgins was ‘like a log’), I do not consider I can be positively satisfied on the balance of probabilities that Mr Lehrmann turned his mind to consent and had, at the relevant time, a state of mind of actual cognitive awareness that Ms Higgins did not consent to having sex.”

“But this is not the end of the matter,’’ Justice Lee wrote.

“It is not in dispute that the knowledge element can be established by recklessness and Mr Lehrmann in his closing submissions, when in dealing with differences between imputations, accepts that “the bare fact of rape … might be committed simply by being recklessly indifferent to whether or not there was consent”.

Justice Lee noted that “much ink has been spilled and significant attention of law reformers and legislators has been directed in recent years to the issue of what constitutes recklessness as it relates to the fault element in sexual offences”.

“Although this topic, for reasons I have explained, was wholly unexplored in the submissions and the parties have not engaged with the question as to what recklessness means having regard to the ordinary, contemporary conception of rape.

“Recklessness can, of course, mean different things, such as an awareness the complainant might not be consenting (possibility recklessness), indifference as to whether the complainant is consenting (indifference recklessness) and failure to give any thought as to whether the complainant is consenting (inadvertence recklessness) – although possibility recklessness might be best seen as a variant of indifference recklessness.”

In the judgment, Justice Lee argued that the knowledge element can be established “if the respondents prove, to the civil standard, that at the time sexual intercourse took place, Mr Lehrmann’s state of mind was such that he was indifferent to Ms Higgins’ consent, and he just went ahead willy-nilly”.

“Put another way, the knowledge element is established if Mr Lehrmann was so indifferent to the rights of Ms Higgins as to ignore the requirement of consent,’’ he wrote.

“I am satisfied that it is more likely than not that Mr Lehrmann’s state of mind was such that he was so intent upon gratification to be indifferent to Ms Higgins’ consent, and hence went ahead with sexual intercourse without caring whether she consented.

“This conclusion is not mandated by, but is consistent with, my finding that intercourse commenced when Ms Higgins was not fully cognitively aware of what was happening.

“In summary, I consider it more likely than not that in those early hours, after a long night of conviviality and drinking, and having successfully brought Ms Higgins back to a secluded place, Mr Lehrmann was hellbent on having sex with a woman he: (a) found sexually attractive; (b) had been mutually passionately kissing and touching; (c) had encouraged to drink; and (d) knew had reduced inhibitions because she was very drunk. In his pursuit of gratification, he did not care one way or another whether Ms Higgins understood or agreed to what was going on.

“Because of what I find to be Mr Lehrmann’s state of mind of non-advertent recklessness, the knowledge element has been made out.”

It remains to be seen whether Mr Lehrmann can secure the financial backers to appeal, given his original barrister Steve Whybrow has announced he’s no longer working on the case and hasn’t read the judgment.

However, Mr Reynolds may have agreed to act pro bono.

It is also understood that Mr Lehrmann may be considering seeking a modest extension to the 28-day period to appeal, as Ben Roberts-Smith initially did.

The Federal Court will convene on May 1 at 2:15pm to consider the issue of costs in the matter, with Channel Ten and Lisa Wilkinson seeking a costs order against Mr Lehrmann.