If the court finds that sexual intercourse took place between Bruce Lehrmann and Brittany Higgins it will also have to find she was “so intoxicated as to be unable to consent” and that evidence is not available, Lehrmann’s lawyers have told the federal court.
“The evidence simply does not permit a positive finding of fact that Ms Higgins’ intoxication was, at any relevant time, such that she could not consent to sexual activity,” new submissions filed in Lehrmann’s defamation case against Channel Ten and Lisa Wilkinson said.
The submission argues that neither CCTV footage from parliament house of Higgins entering through security nor expert evidence about her likely blood alcohol levels proved Higgins was heavily intoxicated.
The court was also told it would have to find – if sex did take place and Higgins was too drunk to consent – that Lehrmann “either knew or believed Ms Higgins was incapable of consenting to sexual activity”.
Justice Michael Lee will deliver his judgment as early as this month in the high-profile case brought by the former Liberal staffer. Lehrmann says he was defamed by a rape allegation made by Higgins on Ten’s The Project. Lehrmann was not named but says he was identifiable.
Lehrmann, Ten and Wilkinson made final submissions on Friday after additional evidence was heard in a cross-claim brought by Wilkinson against Ten for her legal fees. The former presenter on The Project won the case last month.
Lehrmann submitted that even if Justice Lee rejects his evidence about what happened inside Linda Reynolds’ office, he could not be satisfied Ten and Wilkinson “have established any sexual activity, consensual or otherwise, took place for several reasons.”
The reasons include that Higgins may have been found naked on the couch because she removed her own white dress due to either feeling sick or having already vomited on it.
They also admit their client’s evidence is “unsatisfactory” and “it would be open to the court to form an adverse view of his credit” but it is overstating it to say he is a “compulsive liar”.
In closing arguments in court in December, defence lawyers described Lehrmann as a “fundamentally dishonest man”, suggesting his repeated mistruths about the events of March 2019 suggest he might be a “compulsive liar”.
Lisa Wilkinson’s lawyer, Sue Chrysanthou SC, also told the court there “can’t be any doubt in anyone’s mind that there was sex” on the night Brittany Higgins was allegedly raped.
“The only issue that would trouble your honour, having regard to the unsatisfactory state of the evidence by both persons, is the consent issue,” Chrysanthou said.
Both Chrysanthou and Matt Collins KC, representing Network Ten, highlighted a series of lies they allege Lehrmann told also in their closing arguments.
Both also conceded there were issues with Higgins’ credibility but say she delivered a powerful and consistent account of the alleged rape itself.
Collins told the court that Lehrmann was “revealed to be a fundamentally dishonest man who was prepared to say or do anything he perceived to advance his interests”.
He pointed to Lehrmann’s alleged lies about being attracted to Higgins, buying drinks for her at the Dock bar in Canberra, encouraging her to drink and “skol” a drink, touching and kissing her at a later venue, the 88mph nightclub, telling parliament security he had been instructed to pick up documents, and then telling his boss Fiona Brown he was there to drink whiskey.
Chrysanthou also alleged Lehrmann lied about needing to return to the office to make notes of a conversation about submarines he had had with unidentified defence bureaucrats at the Dock.
Lehrmann’s lawyers in the final submissions published on Friday countered that Higgins had a “preparedness to tell lies, including elaborate lies, on the most solemn of occasions” because her evidence in the trial contradicted what she told the Commonwealth in her personal injury compensation claim.
“Ms Higgins’ evidence in this proceeding on multiple elements of the allegation is itself contradicted by other out of court representations made, such as to the Project during the two sit down interviews, or representations in Ms Higgins’ book or representations made to [news.com.au].
“The court would reject Ms Higgins’ evidence in its entirety unless corroborated by other independent evidence or contemporaneous documents,” the submission said.
“In the case of the [Commonweath] Deed, this involved payment of a settlement sum to her that was life changing,” Lehrmann’s submission said. “In the case of the criminal trial it was the prospect of securing a guilty verdict against the man that she had earlier accused of rape in the most public of forums.”
In her final submission to the court Wilkinson said evidence heard in the cross-claim had “graphically illustrated to the court the legal advice and approval from Network Ten that Ms Wilkinson received to give her speech at the Logies”.
“The court now knows that Ms Wilkinson gave entirely truthful evidence about the advice she had received,” it said.
But Lehrmann submitted this does not absolve Wilkinson of responsibility. “Her actions remain ill advised, reckless and prejudicial to the Applicant’s right to a fair trial,” the submission said.
