Bruce Lehrmann’s lawyers argue evidence is not available to rule out Britanny Higgins’ consent

Bruce Lehrmann outside the federal court in Sydney. Lehrmann’s lawyers argue: ‘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.’ Photograph: Bianca de Marchi/AAP

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.