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This was published 8 months ago
Ultimate ruling in Lehrmann case may not be cut and dried
By Deborah Snow
Perhaps it was the long hours in court on Thursday, the head-spinning technicality of the legal argument, or her trademark irreverence.
Whatever the impetus, Sue Chrysanthou, SC, the whip-smart legal counsel for Lisa Wilkinson, threw the switch to vaudeville late in the afternoon as she conjured up ever more improbable reasons why – if there’d been no sexual act – Brittany Higgins had been found naked and passed out on a ministerial couch in the early hours of March 23, 2019.
Lisa Wilkinson and her barrister Sue Chrysanthou, SC, outside the Federal Court in Sydney on Friday.Credit: Flavio Brancaleone
Had the young staffer, returning to Parliament House with colleague Bruce Lehrmann after a night out drinking, taken off her lightweight dress because she felt hot? How did that make sense? It was Canberra, after all, the barrister remarked unkindly. Had there been “some kind of freak heat wave” in the national capital that day and the airconditioning had broken down?” No, she argued. There could be no other explanation for Higgins’ state of undress, she told Justice Michael Lee, other than “that sex occurred”. (The temperature in Canberra that night was 16.7 degrees at the airport, according to Bureau of Meteorology records.)
Chrysanthou’s brief foray into absurdity had deadly serious intent.
For 4½ weeks, Network Ten’s legal team and Bruce Lehrmann’s lawyers have been sparring over whether or not he raped her in then defence industry minister Linda Reynolds’ inner ministerial sanctum.
On the cusp of Christmas, the defamation hearings have drawn to a close in Sydney’s Federal Court, and Justice Lee has retired to consider his ruling.
If he finds, despite Lehrmann’s denials, that a rape occurred, then the network’s truth defence triumphs and it will win.
Bruce Lehrmann outside the Federal Court in Sydney on Friday.Credit: Flavio Brancaleone
If not, Ten’s lawyers will need to fall back on their secondary (and more perilous) defence of qualified privilege, which requires them to show reasonableness and care in handling the story. The network’s assertion that it did show such care has been under repeated challenge during the course of the hearings.
Followers of the case might be expecting some closure – for Higgins or Lehrmann – on the central rape allegation. That’s because the defamation action provided something Lehrmann’s criminal trial (which was aborted late last year) did not: a chance to see both young protagonists in the witness stand, under intense cross-examination. (Lehrmann was never cross-examined last year because he chose to exercise his right to silence.)
For the first time, the pair’s conflicting accounts have been publicly available to compare, side by side.
But on the core question of whether a rape occurred, the ultimate ruling may not be cut and dried.
Lee may accept Higgins’ version, or Lehrmann’s, or neither. Or he may find that some sexual act did occur, but not feel persuaded that it was necessarily rape, in which case a consent issue arises, muddied by the pair’s alcohol consumption and the prior intimacy observed between them by one witness at a nightclub. This third scenario was actively canvassed in the courtroom on Friday.
(It’s worth recalling that Higgins, in the days after the assault, told her then office colleague Chris Payne that “I could not have consented, it would have been like f---ing a log”.)
But Ten’s lawyers say if the judge were to find that a sexual act occurred – under circumstances where consent was blurred – then Lehrmann’s actions in launching a suit based on a lie (i.e. that there was no sex at all) would be heinous enough to warrant him receiving no damages at all.
The Project producer Angus Llewellyn (centre) with solicitor Marlia Saunders and barrister Matt Collins, KC, outside the Federal Court in Sydney on Tuesday.Credit: Dion Georgopoulos
Chrysanthou and Matt Collins, KC, playing tag team for Wilkinson and Ten, have done their best to portray Lehrmann as an unmitigated liar, a “fundamentally dishonest” man, “combative”, “defensive” and “arrogant”. They’ve had plenty to work with.
Lehrmann has admitted some falsehoods, and in other respects offered differing and unconvincing explanations for his and Higgins’ return to parliament in the early hours of Saturday morning. The one he eventually settled on – that he needed to work on question time folders – has been badged as “ludicrous” by Collins, given parliament wasn’t even sitting that week, and Lehrmann had already flagged an intention to leave Reynolds’ employ.
However, Higgins’ credit has also been found wanting. On Friday, Lehrmann’s barrister, Steven Whybrow, SC, launched a fierce attack on what he called her “demonstrated capacity to lie”.
She had lied to her employer, to her former boyfriend Ben Dillaway, to federal police agents, to Network Ten’s The Project, in her statutory declaration for Ten, and in the draft manuscript of a book she had been contracted to write, Whybrow claimed.
Far from being raped, he said, Higgins had constructed a story to protect her career, fearing she would be sacked once she learnt – four days after waking up in Reynolds’ office – that a security guard had found her in a state of nakedness in the early hours of that morning.
That, Whybrow said, was “horrific” enough, “embarrassing”, “humiliating” and potentially “career-limiting” for a young professional woman to lie to protect herself and her dream job. The case against Lehrmann was all based on “lies, damned lies and CCTV” he claimed, referencing the hours of camera footage from the Dock Hotel (where the pair were drinking on the relevant night) that the court has sat through.
What is the judge making of all this?
Lee has already signalled his view that there are “various parts of each [of Lehrmann’s and Higgins’] evidence [that] simply can’t be accepted”, warning that observers should resist the “human tendency” to bestow “white hats and black hats”.
However, while Ten’s barristers agree that some portions of Higgins’ evidence are demonstrably weak, that does not apply, they say, to the core rape allegation.
Brittany Higgins interview with Lisa Wilkinson, aired on The Project in 2021.
Her description of coming around from a stupor to allegedly find Lehrmann sweating on top of her “mid-rape” was “visibly raw”, emotionally compelling, “very distressing”, and consistent, Collins asserted.
He argued there was “a qualitative difference” between the dishonesty of Lehrmann and “the successful credit attacks that were levelled at Brittany Higgins”.
The weakest points in Higgins’ evidence have centred on questions such as the alleged loss of data from her phone, the validity of her claims about a bruise on her leg, and claims of a political cover-up that forced her to stay silent for two years until she finally went public on The Project on February 15, 2021.
Higgins has said she believed she was under pressure not to proceed with a police complaint in March and April 2019 because of higher-ups seeing her as a “political problem” for the Liberal Party in the run-up to a closely fought election.
She has taken particular aim at Reynolds and Reynolds’ chief of staff Fiona Brown, whom she has depicted as treating her callously.
Specific claims of a cover-up made by Higgins were rejected at the time by then prime minister Scott Morrison’s press secretary Andrew Carswell in responses to questions from The Project’s producer Angus Llewellyn, but were given short shrift when the segment aired.
Brown has been depicted by Higgins as a “terrifying” individual, but she cut a rather forlorn figure in the witness box this week Lee was so concerned about Brown’s mental health that he delayed until Wednesday a livestream recording of her evidence made over the two previous days.
Fiona Brown outside the Federal Court in Sydney on Tuesday.Credit: Steven Siewert
Higgins has been adamant that she told Brown within four days of the alleged assault that she recalled waking up on the minister’s couch to find Lehrmann “on top” of her.
Brown disputes the timing of Higgins telling her that, though she concedes that from early on she felt she couldn’t “rule in or out” that an assault had occurred. Certainly by April 1, she and Reynolds had learnt enough to suggest Higgins go directly to the Australian Federal Police post inside Parliament House to begin a complaints process. And by April 5, Lehrmann’s employment had been terminated.
On Brown’s own evidence, it appears she was inadequately trained to handle the quandary her young staffers had presented her with. She had been in the chief of staff role for only about two weeks before the alleged rape occurred, before which she’d held a senior administrative role in the prime minister’s office.
Brown said she believed she’d done her “professional best” while staying focused on preserving Higgins’ “agency” and offering her full support.
Steven Whybrow, SC, and Bruce Lehrmann outside the Federal Court in Sydney in late November.Credit: Nikki Short
She maintained she was closely following a script prescribed by the Department of Finance in her conversations with Higgins and Lehrmann, having been told not to be accusatory or inquisitorial.
She added that she was so cognisant of protecting Higgins’ right to choose that she resisted pressure from her own boss, Reynolds, and another senior minister, Alex Hawke, to take the matter to police regardless of what Higgins herself wanted. As the judge remarked drily on Friday, “this is the ‘cover-up’ where everyone wanted to tell the police”.
Asked by Whybrow if there would have been any political expediency in attempting to actively discourage Higgins from making a complaint, Brown grew animated.
“None, absolutely none,” she replied. “The story wasn’t about politicians, the story was about two staff members … two 23-year-olds … The police were consulted, you know the Department of Finance was consulted, the DPS [Department of Parliamentary Services] knew. There was no cover-up!”
Those final words – the last words spoken from the witness box in this case – were left hanging in the air like gun smoke on Wednesday afternoon, before the barristers on both sides launched into extensive summing up on Thursday and Friday.
Lee inquired if anyone in the court was planning to submit that Brown was a “knowing participant” in a systemic cover-up of a rape allegation. Chrysanthou replied in the negative.
This has some significance because, earlier in the case, Wilkinson had endorsed the suggestion that her view was that Reynolds and Brown were indeed “knowing participants in a systemic cover-up”. When the judge put to her that it would have been “wicked” for that to have occurred, Wilkinson agreed.
Collins and Chrysanthou have argued that, even if their star presenter and Ten erred in accepting Higgins’ claims of politically motivated attempts to suppress her complaint, this has no relevance to the central defamation allegation.
It’s not clear that Justice Lee will accept that position. As he pointed out on Thursday, The Project team framed the story as a political bombshell, with a young woman forced to choose – as its scriptwriters put it – between her career and obtaining justice.
If Justice Lee has not found clearly on the rape allegation, and then finds that Ten framed the story unreasonably, the outcome could be an interesting one for the network.
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