’Highly unusual’: Key point about Higgins’ dress - news.com.au

Welcome to our coverage of Bruce Lehrmann’s defamation suit against Network 10 and Lisa Wilkinson.

Mr Lehrmann is suing Network 10 and Ms Wilkinson over The Project’s interview with Brittany Higgins in which she alleged she was raped at Parliament House.

Mr Lehrmann is arguing he was defamed by the broadcast that did not name him but he argues identified him.

He strenuously denies the claims and Ms Higgins’ rape trial was aborted with no findings made against him.

Below are the key moments from Friday’s hearing, expected to be the final day of the weeks-long trial.

‘A strange thing’: Lehrmann’s actions questioned by judge

Justice Michael Lee has declared it is “a strange” thing if Bruce Lehrmann really did leave Brittany Higgins behind in a ministerial office and never asked how she got home.

During closing submissions on Friday, the judge said it was feature of the case that was “a tad odd”.

“Let’s assume for the moment that Mr. Lehrmann’s evidence is accepted,’’ Justice Lee said.

“And what happens is that you have the parting of the paths when you go into the suite. He takes out his pen and he works on the question time briefs.

“From general experience if you had been with a single woman all night, and gone back to Parliament House, and she’d gone off somewhere....

“It’s a strange to just leave her on her own and not worry about how she might get home, and just sort of wander off into the night.

“At the very best it’s a bit cad-ish.”

Up to no good

Justice Michael Lee has probed Bruce Lehrmann’s lawyer on why his client never called his girlfriend to explain why he was out until 2:30 am in the morning.

During closing submissions, Justice Lee again returned to the fact Mr Lehrmann’s girlfriend had called him in the early hours of March 23.

“Unless he was up to no good, why didn’t he ring his girlfriend?”,’’ he said.

Mr Whybrow replied that Mr Lehrmann’s evidence was that he had not seen the calls until later.

But Justice Lee then said if his phone was on silent he would still notice it even if it did not ring.

“I mean, it’s curious you mentioned that incident,’’ Justice Lee responded.

It was not unusual, he said, for witnesses to encounter some stresses in giving evidence.

“But he did appear slightly discombobulated.’’ he said.

Ms Chrysanthou also dismissed barrister Steve Whybrow’s suggestion that Ms Higgins took off her own dress.

“A highly unusual situation, one would think, in relation to two 23 year olds.

“It may be how 60 year old married couples behave but not to 23 year olds.”

‘Skeletons in the closet’: Lawyer says Higgins lied about rape

Bruce Lehrmann’s barrister has told the Federal Court that Brittany Higgins had “skeletons in the closet” after she was found naked in a ministerial office, but was never raped.

Steve Whybrow SC said that his own client’s denial that “nothing happened” was “very brave” if he was lying as there might have been DNA evidence.

It was consistent, he argued, that Mr Lehrmann was telling the truth.

Ms Higgins, he argued, had lied about an alleged rape to protect her job.

“In 2021, she completely recasts all of this in a way to suit her, with respect to a manipulative narrative,” Mr Whybrow told the court.

“She now has a two-fold skeleton in his closet. She was found passed out naked, and she has created a false narrative to explain that and cover up that unfortunate fact of having passed out naked in the minister’s office.”

But Justice Lee disagreed.

“They are hardly skeletons in the closet,” he said.

“It’s history by then.”

Lisa Wilkinson ‘knew it was rubbish ... did nothing’

Lisa Wilkinson “knew it was rubbish” that Brittany Higgins’ phone had been remotely wiped by the government but Channel 10 “did nothing” about pursuing the credibility concerns raised by the claim.

The conduct of the veteran broadcaster and Channel 10 was attacked by Bruce Lehrmann’s barrister Matthew Richardson SC on Friday in closing submissions.

The Federal Court has previously heard that Lisa Wilkinson was concerned about a claim Brittany Higgins made that her phone had been completely wiped and passed those concerns on to her producer.

“I was trying to get to the bottom of the phone situation, so alarm bells were ringing for me,” Ms Wilkinson said under cross-examination last week.

In closing submissions, Mr Richardson said that both Ms Wilkinson and her producer knew there was a big issue with the claim.

“These two knew it was rubbish,” he said.

Justice Lee then observes that having identified the problem, nothing happened.

“Basically, what you were saying is a little bit worse than private doubts because Ms Wilkinson, correctly, increasingly fastens on to this as a problem and raises it.

“And so it’s brought to their attention and then nothing happens.”

Another issue was the bruise photograph which “materialises” on the same day the producers are told about the complete phone death.

“They don’t ask to see any metadata,” Mr Richardson said.

“They are so keen on their story. They don’t add a breath of change despite the fact that a short message exchange, I should say, shows that they have doubts.”

Earlier, both of Mr Lehrmann’s barristers also honed in on Ms Higgins partner David Sharaz as the elusive cartoon character, Where’s Wally.

“He’s everywhere but you can’t find him in this,” Mr Whybrow said.

When Mr Richardson commenced his closing submissions on Network 10 and Lisa Wilkinson’s qualified privilege defence, he noted Mr Sharaz was present when a screenshot of her bruise was taken at 8.45am on January 27, 2021.

“He is right there as this narrative of her complete phone death is spun,” Mr Richardson said.

“He’s around as well at 8.45am on the morning of the 27th, there is no evidence as to where that comes from but Higgins and Sharaz were together at that time.”

But Lisa Wilkinson’s barrister Sue Chrysanthou hit back at the assertions that Channel 10 did not do enough about the bruise photo.

“There was no failure to inquire by Mr Llewellyn. (Lisa Wilkinson) raised questions about it. and she was told those questions were resolved.

“And one of the ways that Mr Llewellyn resolved those questions was to sign Ms Higgins up to a statutory declaration as to when the photograph was taken, because they couldn’t tell. There was no metadata on the photo itself.

“Why is that not reasonable? They’re not forensic investigators. They are not lawyers.”

‘This was a political hit job’

Bruce Lehrmann’s legal team honed in on the decision not to call Brittany Higgins’ boyfriend David Sharaz suggesting he had orchestrated “a political hit job”.

In his closing arguments, Steve Whybrow SC said it was striking that Channel 10 had called as witnesses a former flatmate and Ms Higgins father and mother and not Mr Sharaz.

“This was a political hit job. If you look at the communications emanating from him,” Mr Whybow said.

But Justice Michael Lee then intervened.

“Let’s assume that’s for present purposes true. I express no view one way or the other, it is still a question of how that (relates) to the truth of the allegations in 2019,” Justice Lee said.

He then turned to the “silly lies” told by Bruce Lehrmann including that he worked for ASIO.

“I mean, (it) just seems bizarre, like the James Bond type,” Justice Lee said.

“(If he’s a man) indifferent to the truth or falsity of what he says?”

Ms Higgins may have had ‘amorous intentions’

Bruce Lehrmann’s barrister has suggested that Brittany Higgins may have had “amorous intentions” herself when she returned to Parliament House at 1:41am with her Liberal colleague.

In closing submissions, Mr Whybrow has insisted his client did not have sex with Ms Higgins.

But he speculated she may have taken off her own dress in “anticipation” and waited for Mr Lehrmann on Linda Reynolds’ ministerial couch.

“We can at least I think start with an objective fact that Ms Higgins was found naked, after a night of drinking, passed out on the Minister for Defence industries couch,” Mr Whybrow said.

“Something that might reasonably be described as a potential career-limiting or career-ending movement moment for somebody, especially somebody with ambitions to be a politician.

“And unfortunately, in the way our world works unfairly and at times disgracefully, in relation to what men can do and what women can do, for a young woman there’s an obvious and at times sexist disparity about how incidents might be perceived and what the consequences might be for them.

“It must have been a horrible moment for Ms Higgins to wake up in that office … naked.

“Having gone in there, potentially, because there were some amorous intentions on the cards, potentially because she was feeling sick and she wanted to lay down.

“But she’s woken up at this point in time, proceeding on the basis that obviously, from our perspective, that there was no sexual intercourse of any time.”

Justice Lee then interjected “what is the explanation for that” in terms of Ms Higgins being found naked.

“It’s a tad odd,” Justice Lee said.

“(She) just sort of decided to take their clothes off and lie down?”

Mr Lehrmann’s barrister then speculated that Ms Higgins may have taken off her dress herself in anticipation of having sex.

“In anticipation … of what may be about to occur,” Mr Whybrow said.

Mr Whybrow said the next day she contacted a security guard she had been “flirting with” and asked him about what he had heard but later deleted the messages.

Higgins texts ‘not consistent with nothing happening’

Justice Michael Lee has suggested that Brittany Higgins’ messages with an ex-boyfriend Ben Dillaway after her alleged rape are “not consistent with nothing happened”.

During closing submissions on Friday, Bruce Lehrmann’s barrister Steve Whybrow suggested that Ms Higgins had “lied and lied”.

“Ms Higgins has lied to her employer. She’s lied to her intimate partner Ben Dillaway and it’s a significant lie compared to, for example, lying about finding someone attractive; she’s lied to federal agents (Katie) Thelning and (Rebecca) Cleaves,” he said.

“She’s lied to (Detective Senior Constable) Sarah Harman, she’s lied to Angus Llewellyn and Lisa Wilkinson; she’s lied in her statutory declaration.

“And in two formal pieces of evidence in chief interviews with police making formal allegations she was sexually assaulted; she has told untruths in the draft of the book, she prepared pursuant and contrary to contractual obligations to tell the truth.”

Mr Whybrow said this was a case of “a tissue of lies”.

“Whilst giving evidence under oath during Mr Lehrmann’s (criminal) trial, she, in my submission, you will find, told deliberate untruths.

“And the cherry on the cake is that following the blowing up of the trial, within days of the director withdrawing it, we had that extraordinary evidence where I asked how much money she got. She said $1.9 million, but she also just threw in there, as a throwaway comment, the Commonwealth admitted liability. And that was just patently false.”

Mr Whybrow suggested that messages she exchanged with her ex Ben Dillaway were the “Rosetta stone” because they provided a clue to what was really going on.

Initially, Ms Higgins says she is hungover. She exchanges messages with him the morning after. But after she is called into an employment meeting she discloses she was raped.

“But they just are not consistent with nothing happening,” Justice Lee interjected.

“This is someone she’d had … still a very, very close relationship where, obviously enough she felt she could confide in him.”

Asked why she was lying to Mr Dillaway, Mr Whybrow speculated she was reassuring Mr Dillaway that she had an STD check.

“She didn’t go and have an STI check, because she didn’t need to have an STI check because she hadn’t had sex with Mr Lehrmann.”

Judge’s blunt question in Lehrmann case

Bruce Lehrmann’s barrister Steve Whybrow has declared Mr Lehrmann will forever be regarded as a rapist by some sections of the community, regardless of the outcome of the defamation trial.

“This is a contest between the evidence of two young people, one who says she was subjected to a vicious merciless sexual assault by a colleague at her workplace and the other one who has consistently and emphatically denied any such thing happened,” Mr Whybrow told the Federal Court.

“And who, consequent to the way this allegation came to be aired, will forever irrespective of whatever your honour says … (be regarded as) the person who raped Brittany.

“A man who has always asserted and maintained that no sexual activity of any nature took place. And that’s the vice.”

Mr Whybrow accused Channel 10’s lawyers of “backing away” from the story that Mr Lehrmann raped Ms Higgins by raising the hypothesis that there was sex and if that was the case Mr Lehrmann had lied about it to the police and the Federal Court and should not be awarded damages.

He described this as a “heads we win, tails you lose” idea.

But Justice Michael Lee said he did not agree that was the case.

“Let’s put it bluntly, this is a story … you have a 23-year-old man, a lot to drink, out on the tiles, with a woman he finds attractive, girlfriend at home ignoring telephone calls from her,” Justice Lee said.

“A woman’s hand on his leg, passionately kissing, gets in a car going to a private place.

“Now does a man in a situation like that have French submarine contracts on his mind? Or does he have something else on his mind?”

Lehrmann’s ‘bizarre lie’ was ‘explicable’

Brittany Higgins is “not an accurate or a reliable historian” and has proven to be “less than frank” when giving evidence and even “telling falsehoods”, a court has been told.

Bruce Lehrmann’s barrister Steve Whybrow SC has told the Federal Court in closing submissions that Channel 10’s star witness Ms Higgins cannot be regarded as a reliable witness.

The “so-called bruise photo” was the exemplar of this and was “fabricated evidence”, he said, but there were other examples he said including the claims Mr Lehrmann tried to kiss her or claims that her Bumble date on the night of the alleged rape was “bullied” when she ignored him at the bar.

“In this case, we say fundamentally, Ms Higgins is not a person whose evidence can be relied on at all,” he said.

“She’s not an accurate nor a reliable historian. But more significantly, she has demonstrated herself to be repeatedly and in various forums over a significant period of time, less than frank or honest in giving evidence.

“Whenever she has faced a situation where she has some legal or moral or ethical obligation to tell the truth, she has demonstrated that she has no qualms whatsoever in obfuscating certain matters, she does not know one way or the other is fact.”

Mr Whybrow said what had been described as “a bizarre lie” – that Mr Lehrmann went back to the office to work on question time folders and then lied about it by saying he was drinking whiskey – was explicable when you understood that Fiona Brown, his chief of staff was worried about what he was accessing from a security perspective.

The Federal Court has previously heard that Mr Lehrmann was previously involved in a security incident in the office when he left behind a document.

It was, Mr Whybrow said, “explicable given his perception of Ms Brown’s grilling him about the subject of whether he’d done any work”.

Mr Lehrmann later told police he was not drinking whiskey as he told Ms Brown and was working on question time folders.

‘Virus of madness’: Higgins slammed in court

Brittany Higgins has been accused of telling “tall tales” and creating “a virus of madness” in relation to her allegations by going to the media before the police.

In his closing submissions, Bruce Lehrmann’s barrister Steve Whybrow SC has played CCTV of the night in question.

Mr Whybrow said the case was about “lies, damned lies and CCTV.”

He said that the unedited tape tells a different story to some of the edits played at the criminal trial.

He noted that despite her claim the drinks involved a large group of Liberal staffers who were about to lose their jobs, that the only staffer who was invited was Mr Lehrmann.

But the most significant decision he argued was going to the media.

“Oh, if she had taken the advice of the police not to litigate this through the media,” Mr Whybrow said.

“Oh, if only the people around her, like (David) Sharaz, (Emma) Webster, (Lisa) Wilkinson and politicians, if only they had said ‘Brittany, this is an important story but you should go to the police, this story can wait, let us deal with the allegations against Mr Lehrmann and you can deal with your story down the track’.”

“We wouldn’t be here if that had happened. We would not have had what appears to have been a virus of madness that spread amongst everybody from politicians to journalists,” he said.

The barrister suggested The Project program was “like a large stone in a pond and ripples spread out across that point in every corner and aspect”.

“On the 15th of February, 2021, this broadcast goes to air, and on the 15th of March, 2021, Ms Higgins is 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’.”

“And since then, people have been hiding behind throwaway phrases like due process and the presumption of innocence,” he said.

“How dare we have due process or the presumption of innocence before Mr Lehrmann had even been spoken to by the police, the complainant is making a serious allegation (that) is publicly broadcast that she was raped.

“Anybody trying to provide a counter narrative to that story is shouted down as some sort of rape apologist or anti-woman or a misogynist.”

Mr Whybrow also slammed Lisa Wilkinson’s Logies speech telling the court it “beggars belief a week out from a criminal trial” that she would deliver such a speech.

“At the start of that criminal trial, I quoted Mark Twain telling the jury that this case was the epitome of his famous saying, ‘Never let the facts get in the way of a good story’.

“Having now, from my perspective, had the benefit of evidence as to precisely how the sausage was made … that submission rings truer now than they did in October 2022.”

Mr Lehrmann conceded that the CCTV showed him buying her a drink.

“They say sometimes when there’s a punch you lean in, and he did. He did buy a drink and he did present a card. It’s not (possible) to ascertain who’s (card it was).

“But the suggestion that he somehow hid it is a very tenuous one.”

As the CCTV continues, he notes that Ms Higgins is both having drinks bought for her and buying them herself.

“But far from plying her with drinks, even though he’s sitting at that table, she buys herself a drink at this point in time,” he said.

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2023-12-22 06:45:00Z
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