What we heard today
Today we heard the last of the closing arguments and final submissions in a case that has run for more than four weeks, finishing up in the final hours before the federal court broke for the year.
A recap: Bruce Lehrmann is suing Network Ten and Lisa Wilkinson for defamation over an interview with Higgins broadcast on The Project and online which did not name him but alleged she had been raped by a Liberal staffer in March 2019.
Lehrmann has denied raping Brittany Higgins and during his criminal trial pleaded not guilty to a charge of sexual intercourse without consent. His first criminal trial was abandoned due to juror misconduct and the second did not proceed due to prosecutors’ fears for Higgins’ mental health.
Here’s what we heard during the defamation trial today:
Justice Michael Lee made arrangements for the transcript of the entire proceedings to be made available for inspection with the court in every state and territory of Australia after what he called “ludicrous” allegations on social media that there has been a cover-up of some evidence and protection of witnesses.
Lehrmann’s barrister Steve Whybrow SC told the court the broadcast of the interview with Brittany Higgins on The Project in 2021 unleashed a “virus of madness that spread amongst everybody, from politicians to journalists where subjudice just went out the window and where the rights of the individual ceased to exist”.
Whybrow contended that CCTV from the night at the Dock showed Bruce Lehrmann was not plying Brittany Higgins with drinks, but was just being friendly when he lined up her drinks in front of her.
Whybrow said “there is no way, as Ms Higgins asserts, that she’s 10-out-of-10 drunk ...”
Whybrow argued that Brittany Higgins’ evidence is not reliable, that she has changed her story when it suits her and has lied to police, employers and friends.
Justice Lee suggests Higgins’ behaviour could be consistent with “a narrative of someone coming to terms with something traumatic”.
Justice Lee also said it is simplistic to suggest a young woman could not have been sexually assaulted because she carried on in a professional manner.
A copy of British lip reader Tim Reedy’s report on the CCTV vision from The Dock bar in Canberra on the night of the alleged rape was uploaded to the federal court file.
Whybrow said it was very brave of Lehrmann to tell police “no sex occurred” when he could not possibly have known there was no forensic evidence.
Whybrow’s submission is that Higgins went and laid down on the minister’s couch, took her own dress off and fell asleep, and no sexual assault happened.
Whybrow said he contends that the rape allegation against his client is part of a political hit job fuelled by Higgins’ fiance David Sharaz.
Lehrmann’s legal team say that Higgins fabricated the photograph of a bruise on her leg which she claims was caused by Lehrmann when he was raping her.
In response to these submissions, Sue Chrysanthou SC, acting for Lisa Wilkinson, said Lehrmann was not identified by the Project and an ordinary viewer would have no idea who the Liberal staffer was. She also said there was no explanation as to why Lehrmann did not reply to an email from The Project which gave him 80 hours to respond.
Justice Lee said Lehrmann’s behaviour when he left Parliament House without checking on Higgins is “a tad odd”. “At the very best it’s a bit caddish.”
The trial, which ran over 21 days, concluded and Justice Lee has reserved his decision. His Honour thanked the parties for their exemplary conduct and is expected to deliver his judgment early in 2024.
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Judge acknowledges what could have been ‘difficult case to control’ after final arguments delivered
The trial, which ran over 21 days, is now over and Justice Lee has reserved his decision.
He thanked the parties for their exemplary conduct in what could have been “an extraordinarily difficult case to control and manage in the courtroom given its controversy”.
“I wanted to express my personal thanks to each of the counsel involved and the solicitors for allowing it to run so smoothly. And certainly, the interactions between everyone at the bar tables has been the best traditions for the bar and I’m extremely grateful.”
Lee is expected to deliver his judgment early in 2024.
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‘A tad odd’ to leave Parliament House without checking on Higgins, Lee says
Justice Lee said Lehrmann’s behaviour when he left Parliament House without checking on Higgins is “a tad odd”.
“I mean let’s assume for the moment that Mr Lehmann’s evidence is accepted,” Lee said.
“And what happens is that you have the parting of the paths when you go into the suite and he takes out his pen and he works on the question time briefs.
“From general experience if you had been with a single woman all night and gone back to Parliament House, and she’d gone off somewhere it’s a strange sort of thing just to leave her on her Pat Malone and not worry about how she might get home and just sort of wander off into the night.
“At the very best it’s a bit caddish.”
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Chrysanthou says Lehrmann’s team’s submission today that Higgins spent 100 minutes talking to Lehrmann at the Dock and may have had a sexual interest in him was contradictory.
Lehrmann gave evidence that he spent barely any time with Higgins and his dealings with her that night were cordial and professional.
“It may well be that Mr Lehrmann was so shy and retiring that he didn’t see these apparent obvious signs of interest from Ms Higgins that evening,” she said.
“It may well be that he had no idea when they entered the suite – one of the theories is that Ms Higgins was so interested in him she went and took her clothes off and was waiting for him – and he didn’t realise.
“That is a highly unusual situation, one would think, in relation to two 23-year-olds. Maybe it’s how 60-year-old married couples behave but not two 23-year-olds.”
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The Project and Ten not the cause of Lehrmann’s ‘woes’, says Chrysanthou
Lehrmann’s “woes” began when news.com.au published an article on the Monday before the Project went to air, Network Ten’s barrister has said.
“It is a revision of history, with respect, to lay it at our feet, the respondents, all of the woes that Mr Lehrmann suffered,” Sue Chrysanthou SC said in reply to closing submissions by Lehrmann’s legal team.
“It’s just not correct.”
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Chrysanthou: Lehrmann had 80 hours to respond to Project email and ‘did nothing’
Chrysanthou is now responding to Richardson’s submissions.
She says Lehrmann was not identified by the Project and an ordinary viewer would have no idea who the Liberal staffer was. She also said there is no evidence to show that he was identified beyond “one tweet by the author of True Crime Weekly, the one article where he was named”.
She also says Richardson has given no explanation as to why Lehrmann did not reply to an email from the Project which gave him 80 hours to respond.
Chrysanthou says a 23-year-old would ordinarily check their emails in that time frame.
Chrysanthou: “He has not addressed that his client was aware from that morning and at least by lunchtime that the allegations made in the [Samantha] Maiden article will be repeated with a live interview or recorded interview that night. And he did nothing.”
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Higgins fabricated photo of bruised leg, court hears
Lehrmann’s legal team say that Higgins fabricated the photograph of a bruise on her leg which she claims was caused by Lehrmann when he was raping her.
Richardson asks Justice Lee to ask, if he believes the “phone death narrative” told by Higgins, then how did the bruise photo survive?
Richardson is critical of Wilkinson and Llewellyn’s failure to investigate the metadata from the photograph in order to assess it was taken in 2019 and not in 2021 and presented as contemporaneous.
He also dismisses Wilkinson’s claim that she was not involved in what the Project eventually broadcast and wasn’t copied in on all the emails.
“She stood on a stage and accepted a Logie award for the program and now we see her instructing a counsellor to say ‘well, I didn’t really have that much to do with the programme, particularly near the end’,” Richardson said.
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Whybrow: rape allegation part of a political hit job
Whybrow said he contends that the rape allegation against his client is part of a political hit job fuelled by Higgins’ fiance David Sharaz.
Lee said even if Sharaz did seek out friendly journalists in 2021 to weaponise his girlfriend’s alleged rape, “it is still a question of how that rationally bears upon the truth of the allegations in 2019”.
In other points made by Lee:
He says how do you explain all the independent witnesses who told the court about Lehrmann’s bizarre “James Bond-type” of lies?
Lee: “What do I make of the independent evidence from people who seemed not to have a dog in any fight?”
Whybrow responds that the same could be said of Higgins.
Justice Lee quips that some of the 900 exhibits he been presented with are “irrelevant” and Whybrow says only 30 were presented to the applicant.
Whybrow has completed his submissions and the court is now hearing from Matthew Richardson SC.
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Whybrow said there is no significance in Lehrmann not picking up his phone when his girlfriend called him multiple times on the night in question, including when he was in the ministerial suite.
Whybrow said it was not “because he was in the minister’s suite raping Brittany Higgins”, as has been alleged by the defence.
“It is not necessarily the case that you’re going to ring up somebody at 2.30 in the morning,” Whybrow said. “You are probably already moving towards the doghouse at that stage anyway, by just being out so late and not answering the phone.”
He said Lehrmann did not necessarily know that his phone was ringing and “he wasn’t deliberately ignoring it”.
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No ‘reliable evidence’ Higgins and Lehrmann had sex, Whybrow says
Whybrow’s submission is that Higgins went and lay down on the minister’s couch, took her own dress off and fell asleep, and no sexual assault happened.
Whybrow: “Because otherwise he’s had to wake [Higgins] up and for her to then engage in consensual sex with her or he has had to rape a sleeping woman, in my submission, your honour, you would not have any cogent and reliable evidence upon which to find either of those two things.”
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Lehrmann could not have known there was no physical evidence when he denied sex occurred, Whybrow says
It was very brave of Lehrmann to tell police “no sex occurred” when he could not possibly have known there was no forensic evidence, Whybrow said. He added that despite police telling Higgins to keep her photos and her white dress as potential evidence, she deleted photos and washed her dress.
Whybrow contends Lehrmann could not have known there was no physical evidence when he denied any sex occurred.
Whybrow: “I am seeking to however, take your honour, down a process of examination of the evidence by reference to what happened in the objective circumstances that will hopefully cause your honour to be able to confidently exclude that Mr Lehrmann raped Ms Higgins, and that Mr Lehrmann had no sex at all with Ms Higgins.”
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Lip reader Tim Reedy’s report uploaded to court file
The federal court has just uploaded a copy of British lip reader Tim Reedy’s report on the CCTV vision from The Dock bar in Canberra on the night of the alleged rape.
The transcript is an interpretation of exchanges between a man and woman (Lehrmann and Higgins) made by Reedy.
Reedy’s report suggests the man says:
Drink that all. Now. All.
The woman says:
I don’t want to.
The man says:
Drink it all. You can’t leave that, come on. You’re not leaving that.
Lehrmann’s counsel Steven Whybrow objected to the tender of Reedy’s evidence and has criticised its accuracy. Earlier in the trial, Whybrow asked Reedy:
Would you accept that in the circumstances where you have never been assessed as to the accuracy of your lip-reading, that some of your opinions might not be correct?
Reedy responded:
I would say that they’re more correct than not.
Justice Lee makes a quip about The Project claim of a political cover-up
Justice Michael Lee has made a quip about the claim by The Project that there was a political cover-up of Brittany Higgins’ alleged rape.
His comment came as Whybrow was taking him through what he says was Higgins’ “false trail” that a crime had been committed.
Whybrow said Higgins did not tell Fiona Brown until the Thursday of the week of the alleged assault that Bruce Lehrmann “was on top of me”.
Whybrow said “contrary to the prevailing narrative [Reynolds’ office] almost wanted to take it out of everybody’s hands and say ‘go straight to the police’”.
Lee interjects: “And this is the cover-up where everyone wanted to tell the police.”
Whybrow: “That’s right. That’s the cover-up where everyone wanted to tell the police.”
The court heard earlier this week that Brown defied two Coalition ministers’ orders to report the incident because she believed Higgins needed control over the situation.
She said Senator Linda Reynolds and then special minister of state Alex Hawke were “covering themselves” – or protecting themselves – by instructing her to make a police report.
Brown did escort Higgins to the police in Parliament House on 27 March 2019.
The court has adjourned until 2pm.
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Justice Lee describes some of Lehrmann barrister’s suggestions about Higgins’ behaviour as ‘simplistic’
Justice Lee has said it is simplistic to suggest a young woman could not have been sexually assaulted because she carried on in a professional manner.
He was responding to a suggestion from Whybrow that no sexual assault happened because Higgins sent Lehrmann a friendly email asking for help with a work task after the alleged incident.
Lee: “Isn’t that a tad simplistic? I mean, the reality is … in any area where there’s going to be professional young women who are dealing with men, particularly men of a greater status than them in the workplace, who have to reconcile the fact that they’re either being sexually harassed, or it’s escalated to something above that, and they’ve got to navigate a very tricky path sometimes about how they respond to something which they know is highly inappropriate.”
“They’ve got to fashion some way of trying to reconcile that with the maintenance of their professional relationship and sometimes that will cause people to communicate in a way which may give the message that everything is OK when in truth, everything is not OK,” the judge said.
Whybrow said he agreed 100% with the sentiment but it had to be seen in context.
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Justice Lee: Higgins’ behaviour could be consistent with someone ‘coming to terms with something traumatic’
Steve Whybrow SC has returned after the break and is taking Justice Michael Lee through the morning that Brittany Higgins woke up naked in the ministerial suite.
“It must have been a horrible moment for Ms Higgins to wake up in that office, it would appear, naked,” Whybrow told the court.
“Having gone in there, potentially, because there was some amorous intention on the cards, potentially because she was feeling sick.”
Justice Lee asked why she was naked if no sex took place.
Whybow suggested that Higgins could have taken off her dress “in anticipation that [sex] may be about to occur” or because it was her favourite dress.
He says Higgins that morning spoke to a friend who was also a security guard at Parliament House and Ben Dillaway and did not mention she had been sexually assaulted.
“In my submission, she has put herself in a situation which is highly embarrassing and humiliating and with career-limiting potential,” he said on Friday.
“She says nothing to Dillaway and when he asks for more information, she shuts him down equivocally.”
Justice Lee interrupts and says Higgins’ behaviour could also be consistent with “a narrative of someone coming to terms with something traumatic”.
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Lehrmann barrister: Higgins had ‘no qualms’ about ‘telling complete falsehoods’
Steve Whybrow SC is arguing that Brittany Higgins’ evidence is not reliable, that she has changed her story when it suits her and has lied to police, employers and friends.
“We say, fundamentally, Ms Higgins is not a person whose evidence can be relied on at all. She’s not a reliable historian,” he told the court.
“But more significantly, she has demonstrated herself to be repeatedly and in various forums over a significant period of time less than frank or honest in giving evidence.
“Whenever she has faced a situation where she has some legal or moral or ethical obligation to tell the truth, she has demonstrated that she has no qualms whatsoever in obfuscating: asserting matters she does not know one way or the other is fact whether they are true or not, but mostly telling complete falsehoods.”
Justice Michael Lee interjected to say it seemed to him that Higgins’ comments when stating that something happened to her – to both Ben Dillaway and Chris Payne – appeared to be genuine.
Lee said Higgins told Payne in the days after the alleged rape “I could not have consented, it would have been like fucking a log” and she told Dillaway “I really don’t feel like it was consensual at all”.
“Those sorts of representations … weren’t anything other than one would expect from a young woman who suffered … something and was working through, in her own mind, about how she was dealing with it,” Lee said.
The court took a 15-minute break and will now sit through to 1pm.
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Whybrow: it appears there was no way Higgins was ‘10-out-of-10’ drunk
Steve Whybrow SC is now taking Justice Michael Lee to his submissions about what happened when the two young staffers went back to Parliament House in the early hours of a Saturday morning.
“It appears to the casual blind Freddie, that there is no way, as Ms Higgins asserts, that she’s 10-out-of-10 drunk, didn’t know what was going on, didn’t want to be there, things of that nature.”
Whybrow said they may both have gone back to work with the intention of having sex but that does not mean anything of an intimate nature happened.
Whybrow said Bruce Lehrmann lied to his boss Fiona Brown about why he went back to Parliament House after hours because he was worried she would be more concerned about him accessing defence files than drinking whisky.
Higgins took herself into the minister’s office and put herself on the lounge “feeling sick and lying down and [Lehrmann] was off somewhere doing something else”, Whybrow said.
Whybow contends that Higgins was not grossly intoxicated according to the way she handled herself in the CCTV footage from the security cameras in Parliament House.
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Whybrow: Lehrmann was not ‘plying’ Higgins with drinks
Steve Whybrow SC contends that the video shows Bruce Lehrmann was not plying Brittany Higgins with drinks – as was suggested by Network Ten’s legal team – but was just being friendly when he lined up her drinks in front of her.
“One can see from the body language of Ms Higgins that she touched Mr Lehrmann lightly on the shoulder,” Whybrow said.
“Rather than some evil against-her-will-plying one can see from this ... it’s just an innocuous social exchange. This is an example of how lies, damned lies and CCTV can affect [people] if one only looks out of context at something that Mr Lehrmann did.”
“Of the eight drinks only two were bought by Lehrmann.”
The barrister said: “Your honour might recall the old term in sexual assault cases pre-tendency evidence days of ‘guilty passion’ had to be a bit more than just saying – three weeks earlier in a social gathering – that somebody was attractive.”
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Lehrmann’s barrister: not clear if Higgins consumed all the drinks
Whybrow is now showing a segment of the CCTV video in which Higgins is sitting next to her Bumble date, known only as Nick, drinking a number of beverages and eating some hot chips.
The video so far shows Higgins being given six drinks – only one of which was bought by Lehrmann. Whybrow says we don’t know whether she consumed all the drinks.
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Lehrmann’s barrister says Higgins ‘deliberately destroyed evidence’
Whybrow is now showing Justice Lee the CCTV from the night at the Dock venue. He says the video shown by the defence was highly selective and did not show the full picture. He says there are nine hours of video from the Canberra bar to choose from.
“Higgins obfuscated and delayed presenting her phone to the police for a period of three months. And it took them three hours [to download its contents].
“And we have the exhibit of course where she hides in plain sight and says ‘I’m deleting stuff off my phone ahead of the police’. There is no reference to any bruise until about February 2021.
“This is a photograph taken by Ms Higgins. I will obviously be saying she has deliberately destroyed evidence and we say [that is] for the purposes of hiding the fact that she had not been sexually assaulted.”
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Project interview unleashed a ‘virus of madness’, lawyer says
The broadcast of the interview with Brittany Higgins on The Project in 2021 unleashed a “virus of madness that spread amongst everybody, from politicians to journalists where subjudice just went out the window and where the rights of the individual ceased to exist”, Lehrmann’s barrister Steve Whybrow SC has told the court.
The broadcast on 15 February acted “like a large stone in a pond and ripples just spread out across that pond” leading to Higgins on 15 March “standing outside Parliament House giving a speech at a march for justice rally in which she says, amongst other things, ‘I was raped in that building’.”
“Since then, people have been hiding behind throwaway phrases like due process and the presumption of innocence,” Whybrow said.
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Justice Lee to release full transcript to combat ‘tinfoil hat nonsense’
Justice Michael Lee has made arrangements for the transcript of the entire proceedings to be made available for inspection with the court in every state and territory of Australia. He has made the arrangements after what he called “ludicrous” allegations on social media that there has been a cover-up of some evidence and protection of witnesses.
A post on X, formerly known as Twitter, alleged that Fiona Brown’s evidence was edited on request by “commonwealth solicitors” before it was broadcast.
“I’d usually treat that as the tinfoil hat nonsense it is save for the fact it’s had 54,000 views and been liked 654 times,” Lee said.
“Let me say that anyone with a modicum of common sense would have understood that Fiona Brown was a quiet witness, located herself well away from the microphone and there was difficulty from time to time … [but] the vast bulk of her responses were recorded on the video.”
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Welcome to what is due to be the final day of the Lehrmann defamation trial
Today is scheduled to be the final day of the Bruce Lehrmann defamation trial, which has been running since 22 November in Sydney’s federal court.
It began with the applicant, a former Liberal staffer, speaking in open court for the first time given he was not required to give evidence during the criminal trial which was aborted last year with no findings against Lehrmann.
Lehrmann maintains his innocence and pleaded not guilty to one charge of sexual intercourse without consent. He denies any sexual activity had occurred.
In December 2022, prosecutors dropped charges against Lehrmann for the alleged rape of Brittany Higgins, saying a retrial would pose an “unacceptable risk” to her health.
Lehrmann’s barrister Matthew Richardson SC has told the court that following the withdrawal of the criminal proceedings against him, he brought the proceedings against “his most prominent accusers, Channel Ten and Lisa Wilkinson and The Project”.
Today we will hear from his legal team as they present their final submissions to justice Michael Lee.
Yesterday, Wilkinson’s barrister Sue Chrysanthou SC told the court there “can’t be any doubt in anyone’s mind that there was sex” on the night Higgins was allegedly raped.
Chrysanthou told the court the former Liberal staffer was a “fundamentally dishonest man” and a compulsive liar.
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