Lehrmann proceedings day 21 – as it happened
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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.
Updated at 03.19 EST
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.
Updated at 03.11 EST
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.
Updated at 23.48 EST
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: 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.”
Bruce Lehrmann’s barrister Steven Whybrow arriving at court: he says Higgins potentially went to the ministerial suite because of ‘some amorous intention’. Photograph: Mick Tsikas/AAP
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”.
Updated at 21.43 EST
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.”
Brittany Higgins earlier this month leaving the federal court. The barrister for Bruce Lehrmann says it appears there was ‘no way’ Higgins didn’t know what was going on. Photograph: Dean Lewins/AAP
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.
Updated at 21.00 EST
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.
Updated at 18.52 EST
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.
Updated at 17.44 EST