‘Lies, damned lies and CCTV’: Lehrmann’s barrister delivers blistering closing address

CCTV footage showing Bruce Lehrmann and Brittany Higgins at The Dock in Canberra on March 22, 2019.Credit: Spotlight, Channel Seven

He said CCTV footage could show “anything you want it to, depending on how you present it”, and accused Ten of deploying a “very selective section” of it during the trial.

Asked by Lee about a section of the CCTV footage in which Lehrmann moves three drinks in front of Higgins, Whybrow said it was a “friendly” exchange “rather than some evil against-her-will plying” of her with alcohol.

Ten, who called an expert lip-reader to give evidence in the case, put to Lehrmann that the words he said at this point were “all hers, all hers”. Lehrmann denied uttering those words.

Paraphrasing Lewis Carroll’s Alice’s Adventures in Wonderland, Whybrow said his client had been subjected to a form of “sentence first, trial later”.

Trip to Parliament House

The barristers for Ten and Wilkinson suggested during closing addresses on Thursday that Lee had sufficient evidence to find, at a minimum, that Higgins and Lehrmann had sex in Parliament House in the early hours of Saturday, March 23, 2019.

Lisa Wilkinson and her barrister Sue Chrysanthou, SC, outside the Federal Court in Sydney on Friday.Credit: Flavio Brancaleone

They argued that in those circumstances Lehrmann should not receive damages because he had persisted in a lie that no sexual activity occurred at all. Higgins has told the court that she woke up while Lehrmann was raping her.

A photo of Brittany Higgins and Senator Linda Reynolds taken on May 16, 2019, showing her wearing the white dress she wore on the night of her alleged rape on March 23 that year.

Whybrow said on Friday that neither of the chief protagonists in the case had said in their evidence that they went back to Parliament House for any kind of “amorous activity”. He said that even if they went back to the office with that intention it didn’t mean that it happened.

He said his submissions examining the evidence “will hopefully cause your honour to be able to confidently exclude that Mr Lehrmann raped Ms Higgins, and that Mr Lehrmann had sex at all with Ms Higgins”.

He conceded Ten’s barrister, Dr Matt Collins, KC, had “tied [Lehrmann] … in knots” and “undid him” when he cross-examined him about whether he bought Higgins drinks at Canberra’s The Dock hotel in the hours before the alleged rape, but said this did not translate to his client being a “compulsive liar”.

Whybrow alleged Higgins was not an accurate or reliable historian and had “invented allegations”, while Ten alleged on Thursday that Lehrmann had been “revealed to be a fundamentally dishonest man”. Chrysanthou said on Friday that Higgins had continued to see a rape counsellor “on and off” for two years, which was inconsistent with her fabricating the allegation.

Higgins’ state of undress

Asked by Lee what he was to make of the fact that Higgins was found naked in the office hours after Lehrmann had left, Whybrow said it was a “complex matter” for the judge, and his client’s evidence was that he didn’t know about that and had not checked on her before he left the office.

It was potentially consistent with a range of scenarios, Whybrow said, including some form of intimacy or the expectation of it, or of Higgins feeling sick and removing her dress. He noted that Higgins had subsequently washed her dress, which would have removed what he described as a “lack” of evidence.

He submitted it was incomprehensible that Higgins would wear the dress she wore on the night she alleges she was raped by Lehrmann to a work dinner on May 16, 2019, six weeks after the alleged sexual assault, if that assault had happened. Higgins gave evidence that it was an attempt to “reclaim” the dress, and she never wore it again.

‘Up to no good’

In a question the judge described as deliberately provocative, Lee noted Lehrmann’s girlfriend had called him in the early hours of March 23, and asked: “Unless he was up to no good, why didn’t he ring his girlfriend?”

Whybrow replied that Lehrmann’s evidence was that he had not seen the calls until later, and it was not necessarily the case that one would call back at 2.30am.

‘Phoning a friend’ email

During his closing address, Whybrow pointed to an email Higgins sent Lehrmann on March 26, three days after the alleged assault, in which she asked for help with a work task and said she was “phoning a friend”.

Lee suggested it might be “a tad simplistic” to suggest the email was inconsistent with an assault having taken place. He said examples were “legion” of young women in professional roles dealing with more senior men and needing to “navigate a very tricky path sometimes” to maintain a working relationship when they had been harassed or worse.

Whybrow agreed with those general observations, but said the email had to be seen “in a context”.

Sexual assault charge dropped

Lehrmann’s ACT Supreme Court trial for sexual assault was aborted last year due to juror misconduct. The charge against Lehrmann was later dropped altogether owing to concerns about Higgins’ mental health.

The lawsuit

Lehrmann is suing Ten and Wilkinson over an interview with Higgins, broadcast on The Project on February 15, 2021, that he alleges defames him by suggesting he is guilty of raping Higgins in then defence industry minister Linda Reynolds’ office on March 23, 2019, when they were both working as staffers to the Liberal senator.

Lehrmann not named

Lehrmann was not named in Ten’s interview. A preliminary issue in the case is whether he was identified because of the details provided in the broadcast.

If the court finds Lehrmann was identified in the interview, Ten and Wilkinson are seeking to rely on defences of truth and qualified privilege.

The truth defence

Under the truth defence, Ten must prove on the balance of probabilities that Lehrmann raped Higgins.

While this is less onerous than the criminal standard of proof beyond reasonable doubt, the so-called Briginshaw principle applies in civil cases involving serious allegations and requires courts to proceed cautiously in making grave findings.

Qualified privilege

Qualified privilege relates to publications of public interest and requires a media outlet to show it acted reasonably. Wilkinson’s evidence was directly relevant to that defence.

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Matthew Richardson, SC, acting for Lehrmann, said Lee could not be satisfied the media outlet acted reasonably, including in relation to the amount of time it gave to Lehrmann and political figures to respond to Higgins’ allegations, and to put any responses to her before the program aired.

Ex-chief of staff’s call to ASIO

Documents released by the Federal Court on Thursday reveal that Fiona Brown, the former chief of staff to Reynolds, told the court she contacted the ASIO director-general about Lehrmann after he accessed the parliamentary office after hours.

In an affidavit filed in Lehrmann’s defamation case, Brown, who was chief of staff to Reynolds in 2019, said she understood Lehrmann was “keen for a promotion or allocation of ongoing tasks which involved ASIO and security matters”.

But Brown said that ASIO matters were “not relevant to the Defence Industry portfolio”.

She said that when Lehrmann “learnt that the job offer in the Defence Industry Minister’s office was going to be straight Parliamentary and Budget with some policy, he indicated he was not interested in staying on and said he wanted to pursue opportunities in ASIO”.

“At some point, Mr Lehrmann told me he’d had a job interview, or was pursuing work, with ASIO,” Brown said.

The court has heard Lehrmann had decided to leave Reynolds’ staff for a new job when he was instructed on March 26, 2019, to pack up his things after accessing the Parliament House office after hours. His role was formally terminated on April 5 over the security breach.

Fiona Brown, the former chief of staff to then defence industry minister Linda Reynolds, outside the Federal Court in Sydney on Tuesday.Credit: Steven Siewert

The court has heard Brown was advised by the Department of Finance on March 26 that Lehrmann and Higgins had entered the office in the early hours of March 23, and Higgins had been found later by a security guard naked and passed out.

Brown said Lehrmann told her she came back to the office to drink whisky.

“I asked ‘What else did you do whilst in the office?’ He said ‘I don’t wish to get into that’,” Brown said in her affidavit.

She said that she contacted the ASIO director-general on about March 27 and “informed him that the Minister had asked me to contact him about Bruce Lehrmann as it was our understanding that Mr Lehrmann was in the process of getting a job with ASIO”.

“Mr [Duncan] Lewis [the then ASIO director-general] told me he did not recall Mr Lehrmann and asked me to spell his name. He advised that he was not aware of him being in the process of getting a job with ASIO.

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“I told him that the Minister asked that he consider revocation of his security clearance should Mr Lehrmann ever be looking for a job with ASIO. I subsequently informed the Minister of my conversation with the director-general.” Brown said she told Lewis about the unauthorised after-hours office access and an earlier incident in March in which Lehrmann had left a top secret document on his desk.

She said in her affidavit that after the first incident she was “starting to form the opinion that Mr Lehrmann was too immature to hold such highly classified material”.

Lee asked Whybrow on Friday what he was to make of “silly lies” it appeared Lehrmann told, including about ASIO, and whether it might indicate he was “indifferent to the truth or falsity” of what he said. Whybrow replied that the same might be said of Higgins.

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