Bruce Lehrmann trial: Judge makes big call on Higgins, Lehrmann

Lisa Wilkinson’s barrister has attacked Bruce Lehrmann’s reasons for why he said he went back to Parliament House and claimed there was “no other rational reason” than to have sex with Brittany Higgins, a court has heard.

Mr Lehrmann is suing Network 10 and Ms Wilkinson for defamation over Ms Higgins’ February 2019 interview on The Project during which she alleged she was sexually assaulted by her former colleague.

Ms Higgins has claimed that she was raped on a couch inside Senator Linda Reynolds’ office after a night out drinking with colleagues at two Canberra bars on March 23, 2019.

Mr Lehrmann has consistently denied the allegations and has argued that he was defamed by the story.

Justice Michael Lee heard submissions from Network 10 barrister Dr Matt Collins KC and Ms Wilkinson’s barrister Sue Chrysanthou SC on Thursday.

On Friday, Mr Lehrmann’s barrister legal team will deliver their closing arguments.

THE KEYS

Ms Wilkinson’s barrister Sue Chrysanthou SC on Thursday afternoon accused Mr Lehrmann of telling a lie about his reasons for going back to Parliament House in the early hours of March 23, 2019 and claimed his version of events made “no sense”.

Mr Lehrmann told the court during his evidence that he left his keys and pass at Parliament House when he went out to dinner at the Kingston Hotel with a colleague before he was invited to The Dock bar by Ms Higgins.

He claims that after kicking on at another venue, 80s-themed bar 88MPH, he went back to parliament to collect his belongings.

Ms Chrysanthou said it was “incomprehensible that he wouldn’t take his keys with him to the pub.

“Why would you leave your keys at Parliament House when you’re going out for dinner at 6.30pm in Kingston …. There’s Parliament House, there’s the Kingston Hotel, your house is deadset in the middle?” Ms Chrysanthou said.

“And it’s not early that you’re having dinner, you’re having dinner at about 6.30pm.”

“NO OTHER RATIONAL REASON”

Ms Chrysanthou said Mr Lehrmann had “no other rational reason” for going back to Parliament House than to have sex with Ms Higgins.

“We say His Honour should find that it was the applicant’s intention in travelling to Parliament House to have sex with Ms Higgins,” Ms Chrysanthou said.

“There’s no other rational reason for them to go there, and Your Honour would be satisfied that was his purpose.

“It’s also possible - given the evidence Your Honour has heard from an objective perspective and that she was clearly very intoxicated - that that could have been her intent at that point.

“She doesn’t remember. And arguably is too intoxicated to … rationally make decisions. In her intoxicated state that could have been her intent.”

“LIAR”

Ms Chrysanthou questioned whether Mr Lehrmann was a “compulsive liar”, saying he had made several untruthful statements to the court.

“One has to wonder if Mr Lehrmann is just a compulsive liar. Which doesn’t help us because a compulsive liar doesn’t have consciousness of guilt, they just lie,” Ms Chrysanthou said.

“Or whether the lies that have been told were directed to covering up the fact that he had sex with Ms Higgins.

“We say it can’t be in any doubt in anyone’s mind that there was sex. And that the only issue that would trouble Your Honour, having regard to the unsatisfactory state of the evidence by both persons, is the consent issue.”

“A STRAIGHT BAT”

Lisa Wilkinson’s barrister Sue Chrysanthou SC has argued that Mr Lehrmann went back to Parliament House to have sex with Ms Higgins because he had a girlfriend at home.

Mr Lehrmann told the court, during his evidence, that he went back to Parliament House to collect his keys.

He says he did not have any sexual contact with Ms Higgins that morning and left when he noticed several missed calls from his girlfriend.

“It just struck me odd… if you’re sitting in your office and you decide to go out to dinner with one of your mates, then you kick on, you would think there would be some contact at some point in the night with the girlfriend,” Justice Michael Lee said.

“Your honour has his phone records, he doesn’t ring his girlfriend,” Ms Chrysanthou said.

“He makes no attempt to call her to see if she can open the door before he leaves the nightclub.

“He doesn’t call her, despite the fact she’s been calling him repeatedly when he leaves Parliament House ... The phone records are in evidence.”

Justice Lee questioned whether it was Ms Chrysanthou’s argument that Mr Lehrmann had gone back to Parliament House because he wanted to go back to Parliament House for sex.

“You would say that’s a factor - a 23-year-old male, drinking, previous thoughts that Ms Higgins was attractive,” Justice Lee said.

“Shortly before going to Parliament House - if I accept Ms Gain’s evidence - hands all over each other and kissing, no contact with the girlfriend - that should lead up to a conclusion that he may not have been playing with a straight bat with his girlfriend and gone back to Parliament House … And it’s more than likely than not he would have gone back and had sex.”

“The opportunity presented itself to him and he took it,” Ms Chrysanthou said.

“He went to Parliament House because he couldn’t go home for that purpose.”

SHARAZ

Ms Chrysanthou has explained why Ms Higgins’ fiance David Sharaz was not called as a witness by her client during the trial.

She said while Mr Sharaz did communicate with producer Angus Llewellyn and Ms Wilkinson, as well as taking part in a pre-interview meeting in a Sydney hotel in January 2019, his evidence would not have been relevant to her case.

“There is not one question I can think of that I would ask Mr Sharaz in chief that would be relevant to any fact in issue,” Ms Chrysanthou said.

“He can’t give evidence on any fact in issue of my truth defence ... His communications with my client are wholly unchallenged.

“My client has put on a lengthy affidavit about the emails she received from Mr Sharaz.”

Justice Michael Lee said while the existence of the communications were not in question, he suggested “the purpose of the communications” and his “motivations” for them were.

“His motivations, in fact, are not in issue,” Ms Chrysanthou argued.

THE REQUESTS FOR COMMENT

Network 10’s barrister Dr Matt Collins KC has responded to suggestions that The Project did not give Mr Lehrmann sufficient time to respond to questions before going to air.

The court has heard that producer Angus Llewellyn sent Mr Lehrmann questions at 2.45pm on Friday February 12, 2021 - three days before the broadcast - via text and to Mr Lehrmann’s hotmail account.

Mr Lehrmann has claimed that he did not see the email until three days after The Project went to air.

Dr Collins said Mr Llewellyn sent “detailed” questions and it was the same email address which Mr Lehrmann used when he was sent a show-cause notice by Senator Linda Reynolds in April 2019.

He said that Mr Lehrmann had also obtained three separate pieces of advice, including from his lawyer, not to respond to media inquiries on Monday February 15, 2021.

“The reality is he never had any intention of engaging with Network 10 or any other media organisation before The Project went to air,” Dr Collins said.

“The request was sent to Mr Lehrmann’s principal, personal address which had been active since at least 2019.”

GAME OVER

Dr Collins has told the court that Mr Lehrmann and Ms Higgins were not at Parliament House in the early morning “to play scrabble”.

“They weren’t there to play scrabble,” Dr Collins said.

“There is a limited universe of things that plausibly happened during that 40 minutes.

“And even if your Honour were in some doubt about the question of consent, we’d say your Honour ought to feel an active persuasion, having regard to the facts … that sexual intercourse took place.

“Why else is Ms Higgins naked at 4.20am and passed out?”

Dr Collins said it was “not improbable” that sexual intercourse occurred in Parliament House, which raised a question of consent.

“At that point, frankly, for Mr Lehrmann, it’s game over because if Your Honour reaches persuasion that there was sexual intercourse, when what has happened in this trial is monstrous,” Dr Collins said.

“Absolutely monstrous, to have conducted a defamation case as the moving party, on that hypothesis, on the basis of a fundamentally false premise.”

“INCOHERENT”

Dr Collins said it was “utterly incoherent” to argue that Ms Higgins had fabricated the sexual assault allegation to save her job.

“Your Honour heard from (Senator Reynolds’ chief of staff Fiona) Brown two days ago that Ms Higgins’ job was never at risk,” Dr Collins said.

The court heard that Ms Higgins had claimed that she told Ms Brown at a March 26 meeting that she woke up to find Mr Lehrmann “on top” of her.

However, Ms Brown told the court that claim wasn’t made until a March 28 meeting.

“By the 28th, the job was not, on any view of it, at risk,” Dr Collins said.

“If one were fabricating a rape allegation to save a job, one would do it on the first occasion and do it clearly and unequivocally.”

“ARROGANT”

Dr Collins conceded there were “plainly inconsistencies” in Ms Higgins’ version of events.

“She had changed the sequencing of events, particularly over time,” Dr Collins said.

Dr Collins said her reliability had also been questioned over her interactions with Senator Reynolds, her chief of staff Fiona Brown, and The Project and Lisa Wilkinson.

However he said Mr Lehrmann’s evidence should be rejected unless it was corroborated by another source.

“Mr Lehrmann’s demeanour in the witness box was combative and defensive,” Dr Collins said.

“At times he showed an arrogant disregard towards propositions which I put to him in cross-examination.

“The problems with his credit are so endemic - and I don’t think I’ve ever made the submission in respect of a plaintiff in a defamation case - but we would say Your Honour would approach the entirety of his evidence with extreme suspicion and would reject it unless there’s a cogent foundation for it.”

He described Ms Higgins’ evidence about the alleged sexual assault as being “emotional”, “distressing” and “consistent”.

“PATENTLY FALSE”

Network 10’s barrister Dr Matt Collins KC said that Justice Michael Lee should not believe Mr Lehrmann’s evidence unless it was supported by other evidence.

“We submit that Mr Lehrmann was revealed to be a fundamentally dishonest man, who was prepared to say and do anything he perceives to advance his interests,” Dr Collins said.

“He was wholly unconcerned with giving the court an honest account of the events of 22nd and 23rd of March 2019.

“Remarkably, he is an applicant who seeks the aid of the court to vindicate his reputation in respect of a report of an event in circumstances where he’s given false - and we would submit - knowingly false evidence in respect of almost every significant integer concerning that event.”

Justice Lee said that there were pieces of evidence from both Ms Higgins and Mr Lehrmann which he couldn’t accept.

“One of the challenges in this case, it seems to me, is that the two principal witnesses have real credit issues,” Justice Michael Lee said.

“And various parts of each witness’ evidence simply can’t be accepted, it seems to me.”

“And we agree,” Dr Collins said.

Dr Collins argued that Mr Lehrmann’s version of events was contradicted by other witnesses and evidence, including CCTV footage.

Dr Collins said that Mr Lehrmann had on three occasions told the court that he did not buy Ms Higgins two drinks at The Dock bar on the evening of March 22, 2019, however later conceded he did after viewing CCTV.

“Mr Lehrmann was forced eventually to admit that. But before we got to the admission we got three denials,” Dr Collins said.

“He denied it in his examination in chief … and I got him to repeat the denial twice.

“It’s a bizarre piece of dishonesty when your honour reflects on it because Mr Lehrmann knew we had the CCTV footage, he said he’d seen the CCTV footage before. He said he’d seen the CCTV footage in preparing to come and give evidence. Yet he gave your honour patently false evidence on three occasions about it.”

FRENCH SUBMARINES

Dr Collins attacked Mr Lehrmann’s credibility after he told Senator Reynolds’ chief of staff in the week following the alleged sexual assault that he went back to Parliament House to drink whiskey.

During his evidence, Mr Lehrmann said he went back to parliament to collect his keys and spent 30 or 40 minutes writing ministerial notes on French submarines.

“His first instinct is to lie, to say he went back to drink whiskey, something he now says which is not true,” Dr Collins said.

“In Ms Brown’s note he says something very curious. She says ‘what else did you do?’ And his answer was - and we submit (this is) the closest he ever got to being honest about it - (Mr Lehrmann says) ‘I don’t want to go into that’, according to Ms Brown’s notes.

“On our hypothesis, two 23-year-olds have been out drinking all night. Mr Lehrmann is attracted to Ms Higgins, they’ve been drinking, he’s caused her to skoll, they’ve touched or pashed at 88MPH.

“Mr Lehrmann has a girlfriend at home. Ms Higgins has got a housemate. What place do they have access to? They’ve got access to Parliament House.”

During his evidence, Mr Lehrmann admitted to lying to Ms Brown.

Dr Collins said that if he was doing work for the minister, he would have admitted that to his chief of staff in their March 26 meeting.

Dr Collins told the court Mr Lehrmann first said he went back to his desk to do work during his interview with the AFP in April 2021.

Dr Collins said that explanation of what he was doing in the office was “simply absurd”.

“It was 2am on a Saturday morning, he was drunk, there was no Question Time for at least 10 days, he’d already resigned, he had no further work to be doing anyway,” Dr Collins said.

“He had no responsibility for French submarines, the people at The Dock were mostly aide-de-camps, who he described as handbag carriers.

“He was unable to identify any fact he had learned about French submarines beyond some amorphous question that there might be media speculation that they might move from South Australia to Western Australia. There are no notes recording what he said.

“You honour also had the evidence of Ms (Lauren) Gain which was at The Dock everyone was very careful not to talk about anything other than things in the public domain.”

Dr Collins told the court that Ms Higgins and Mr Lehrmann did not go back to parliament to “play scrabble”.

“They weren’t there to play scrabble,” Dr Collins said.

“There is a limited universe of things that plausibly happened during that 40 minutes.”

“NO DAMAGES”

Network Ten and Ms Wilkinson are relying on the defences of qualified privilege and truth.

Network 10’s barrister Dr Matt Collins told the court on Thursday that even if their defences fail, Justice Michael Lee should not award Mr Lehrmann any damages.

“Depending upon the findings of fact your honour makes, this may be a case where the defences fail, your honour ought not award any damages,” Dr Collins said.

“No damages or nominal damages,” Justice Michael Lee asked.

“Either or, really,” Dr Collins said.

Mr Lehrmann was not named by The Project, however he argues he could have been identified in their broadcasted interview with Brittany Higgins.

“There were something like 725,000 viewers of The Project when it went to air on the 15th of February, 2021 and there were about 200,000 more views online after that,” Dr Collins said.

“We would like his honour to conclude from the evidence that the vast, overwhelming majority (of viewers) will have had no idea that the unnamed person, accused by Ms Higgins, was Mr Lehrmann.

“There’s a pleaded case against us that unknown persons were motivated to seek out Mr Lehrmann’s identity and did so.

“That case was not prosecuted in the evidence outside of a single tweet and a handful of online articles.”

THE LIP READER

On Tuesday, a forensic lip-reader claimed in court that Ms Higgins was “plied” with alcohol and Bruce Lehrmann encouraged her to “drink that all now” at a Canberra bar on the night that she alleges she was sexually assaulted.

Lip-reading expert Tim Reedy was flown from London to Sydney by Network 10 as the last of the witnesses to give evidence during the trial.

Mr Reedy, who is profoundly deaf and is a self-taught lip-reader, provided a report of what he asserts was said between Ms Higgins and Mr Lehrmann at the Dock Bar on the evening of March 22, 2019.

Mr Reedy told the court that he spent three days scrutinising CCTV from The Dock and interactions between Ms Higgins and Mr Lehrmann.

The court heard that in Mr Reedy’s report, he made a note describing how in one portion of the CCTV “man is lining up drinks, plying the woman with alcohol”.

Mr Lehrmann’s barrister Steve Whybrow SC asked Mr Reedy how he came to write the note.

“Because this was a party and everyone’s having fun,” Mr Reedy said.“What stuck out was Ms Higgins was drinking and she’s literally in the corner of a table, and there are some drinks there, on the table, and they are pushed in her direction.

“And this suggests she had been plied by alcohol.”

Mr Reedy also asserted in his report that at one point Mr Lehrmann said “drink that all now” and Ms Higgins replied “I don’t want to”.

During his evidence to the court earlier in the trial, Mr Lehrmann denied those words were spoken, saying “I would completely disagree with that” and “I don’t recall that ever taking place”.

Mr Whybrow attempted to cast doubt on Mr Reedy’s evidence and questioned whether he had ever been tested as to the accuracy of his report.

“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,” Mr Whybrow said.

“I would say that they’re more correct than not,” Mr Reedy said.

Justice Michael Lee allowed Network 10 to tender Mr Reedy’s report.

However he noted objections from Mr Whybrow that Mr Reedy had never been tested as to his accuracy.

“THERE WAS NO COVER UP”

Meanwhile, Ms Higgins’ former boss in Senator Reynolds’ office, Fiona Brown, denied taking part in a political “cover up”.

Mr Lehrmann’s barrister Steve Whybrow asked Ms Brown, who was Ms Reynolds’ chief of staff at the time, if there would have been any “political expediency” from dissuading Ms Higgins from going to police.

“There’s none, absolutely none,” Ms Brown said.

“The story wasn’t about the politicians, the story was about two staff members ... These were two 23-year-olds and there was no cover-up.

“The police were consulted, the Department of Finance was consulted, the DPS knew. There was no cover up.”

Ms Wilkinson’s barrister Sue Chrysanthou SC told Justice Michael Lee on Tuesday that it was not alleged that Ms Brown was involved in a systemic cover up.

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