Lehrmann’s lawyers delivering closing arguments

Bruce Lehrmann’s barrister has said his client took “the biggest punt of his life” during a key moment in the investigation of Brittany Higgins’ rape claim.

Bruce Lehrman’s barrister says the former political staffer took the “biggest punt of his life” when he told police that he did not have any sexual contact with Brittany Higgins at a time when he didn’t know if there was DNA evidence, 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, claiming he did not have any sexual contact with Ms Higgins, and has argued that he was defamed by the story.

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

Mr Lehrmann’s barristers Steve Whybrow SC and Matthew Richardson SC both delivered their closing addresses to the court on Friday.

Bruce Lehrmann arriving at the Federal Court on Friday. Picture: NCA NewsWire / Monique Harmer.

TRIAL COMES TO A CLOSE

After over four weeks of evidence, the trial finally came to an end on Friday afternoon following the completion of closing submissions.

Justice Michael Lee said that, he would deliver his judgment at a later date.

“I will formally reserve my decision today,” Justice Lee said.

“Really?” Ms Wilkinson’s barrister Sue Chrysanthou SC quipped, after the court adjourned just after 5pm.

“But Your Honour has still got many hours left of light.”

Justice Lee said that if both parties wished, he may bring the matter back to court in the new year for more submissions.

“On that note, I reserve my decision and I wish you all a Happy Christmas,” Justice Lee said.

“The court will adjourn.”

THE BRUISE PHOTO

During his closing submissions, Mr Whybrow told the court that a photo of a bruise taken by Ms Higgins was a “fabrication”.

“We say … that the photograph is a significant piece of evidence, we say it’s a fabrication,” Mr Whybrow said.

The court has heard that Ms Higgins had initially said that she suffered the bruise during the alleged sexual assault.

However, during her evidence, she conceded she may have suffered it while falling up the stairs at the bar earlier in the evening.

Ms Higgins airdropped the photo to Ten producer Angus Llewellyn during a meeting in January 2019, the court heard.

According to a statement of agreed facts tendered to the court: “When photographs are uploaded or shared on third party platforms… the metadata for such photographs may be removed by that platform.”

That process removed the metadata, which would have established when the photo was taken.

Ms Wilkinson’s barrister Sue Chrysanthou on Friday said that Mr Llewellyn had “no reason” to be suspicious.

“He had a photograph … which did not show any metadata at all,” Ms Chrysanthou said.

“It would have been a different scenario if what had been put to Ms Higgins that this screenshot had been taken to send to Mr Llewellyn to deprive him of an investigation of the metadata of the photo.

“But that’s a false narrative.”

IDENTIFICATION

Mr Richardson has argued that Mr Lehrmann was able to be identified by The Project interview, despite the fact he was not named.

The story was broken during the day on February 15, 2021 by news.com.au before the The Project went to air that evening.

That article, by journalist Samantha Maiden, did not make reference to the fact that the male at the centre of the allegations had followed Senator Linda Reynolds from one portfolio to another, while The Project did.

Mr Richardson argued that the news.com.au article “set the hares running” and helped to build the audience for The Project.

“The three witnesses we called all still identified Mr Lehrmann from the information contained in The Project,” Mr Richardson said.

“True enough, two of them already knew about it - not surprising - but they were still able to make a reasonable identification from the information provided.”

Brittany Higgins during her interview with Lisa Wilkinson.

THE LIP READER

A lip reader, called as an expert witness by Network 10, claims that Mr Lehrmann told Ms Higgins at a Canberra bar on the night of the alleged assault: “Drink it all. You can’t leave that, come on.”

Tim Reedy was flown from the UK to Sydney to give evidence after being hired by Network 10’s lawyers to analyse CCTV footage of Ms Higgins and Mr Lehrmann at the Dock on the evening of March 22, 2019.

Mr Lehrmann’s barrister Steve Whybrow objected to Mr Reedy’s report being allowed into evidence, noting his accuracy had never been objectively tested.

Mr Reedy’s report was on Friday released by the Federal Court.

In a transcript of what he claims was said at The Dock, Mr Reedy says Mr Lehrmann said at one point “drink that all” and Ms Higgins replied “I don’t want to”.

Mr Reedy says that Mr Lehrmann said: “Drink it all. You can’t leave that, come on. You’re not leaving that.”

Mr Reedy said he was unsure of the words in the next exchange.

He said he believed Ms Higgins replied “I will” and that Mr Lehrmann said “Well done … What a surprise”.

During his evidence, Mr Lehrmann has denied that such an exchange took place.

Lip reader Tim Reedy was flown to Sydney to appear as a witness. Picture: NCA NewsWire/Nikki Short.

POLITICAL HIT JOB

Mr Lehrmann’s barrister Steve Whybrow has accused Ms Higgins’ fiance David Sharaz of taking part in a “political hit job”.

Mr Sharaz has featured heavily throughout the trial however was not called as a witness by Network 10 and Ms Wilkinson.

The court has heard that he communicated with and provided documents to both Ms Wilkinson and Ten producer Angus Llewellyn.

He was also present at a pre-interview meeting with Ms Wilkinson, Mr Llewellyn and Ms Higgins in a Sydney hotel in January 2021.

And Mr Whybrow questioned why he was not called as a witness.

“Yet the one person … that might be expected to give powerful, detailed evidence, in-depth evidence of complaints made to him … turns around and is not here,” Mr Whybrow said.

“It’s almost like a Where’s Wally, he’s everywhere but you can’t find him in this. He’s at the meeting, he’s making all of these inputs.

“This was a political hit-job if you look at the communications emanating from him.”

Justice Michael Lee asked how Mr Sharaz’s evidence could be relevant to allegations Ms Higgins was sexually assaulted in 2019.

“Let’s assume, for the sake of argument, that Sharaz decided to seek out journalists he perceived as friendly ones and reached out to contacts in order to formulate, what you describe as, a political hit job in 2021 and weaponise his girlfriend’s allegations,” Justice Lee asked.

“Let’s assume that’s true - and I express no view one way or another.

“There’s still a question how that rationally bears upon the truth of the allegations in 2019.”

“What was he was told that makes him somebody they didn’t want to call as a witness? …. They called other people,” Mr Whybrow said.

Brittany Higgins and fiance David Sharaz. Picture: NCA NewsWire / Jeremy Piper.

THE DRESS

Mr Lehrmann’s barrister Steve Whybrow SC told the court that his client had no way of knowing there was a lack of DNA evidence when he told police that he did not have sex with Ms Higgins, calling it the “biggest punt of his life”.

Mr Lehrmann, during his evidence, told the court that he had no sexual contact with Ms Higgins on the morning of March 23, 2019.

It’s a version of events he first gave when he was interviewed by the AFP during in Sydney in April 2021.

“That was a big call,” Mr Whybrow SC told the court.

Mr Whybrow told the court on Friday that Mr Lehrmann had no way of knowing at the time that Ms Higgins had washed the dress that she was wearing that night.

“Mr Lehrmann’s representation to police ‘nothing happened’ was a very brave thing to say where potentially the police could say ‘here’s your DNA on this dress, on her, do not pass go, do not collect $200’,” Mr Lehrmann said.

“That denial, in my submission, needs to be given some weight.”

Brittany Higgins in the dress she was wearing on the night she alleges she was sexually assaulted. Picture: Supplied.

“IRRESPECTIVE OF THE FACTS”

Mr Lehrmann’s barrister Steve Whybrow SC has contended that Mr Lehrmann was subjected to a case of “sentence first, trial later” and that in the minds of some people will forever be considered guilty, regardless of the evidence.

“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 one who has consistently and emphatically denied any such thing happened.

“And who, consequent to the way this allegation came to be aired, has forever and will forever, irrespective of whatever your honour says … irrespective of the facts, irrespective of the evidence, he will for all time, be in their minds, the person who raped Brittany Higgins.

“And a man who has always asserted and maintained that no sexual activity of any nature took place.”

NAKED

Mr Whybrow told the court that Ms Higgins would have been worried about losing her job after she was found naked in Senator Reynolds’ office on the morning of March 23, 2019.

The court has heard that Ms Higgins was found passed out on a couch by a security guard.

“Something that might reasonably be described as a potential career-limiting or career-ending moment for somebody who has ambitions to be a politician,” Mr Whybrow said.

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

“It must have been a horrible experience for Ms Higgins to wake up in that office, it would appear naked, having gone in there, potentially because there was some amorous intentions on the cards, potentially because she was feeling sick and wanted to lay down.”

During her closing submissions on Thursday, Ms Wilkinson’s barrister Sue Chrysanthou questioned why Ms Higgins took her clothes off if she didn’t have sex.

Justice Lee said it would be a “tad odd” for someone to lie down naked for “no apparent reason”.

Mr Whybrow said: “Mr Lehrmann’s … evidence is ‘I didn’t know that she did that’ … And he hadn’t gone back to check on her, it was an office the size of a four-bedroom house and 40 minutes later when he left ‘I didn’t know if she left or not’, ‘I ordered an Uber and I left’, He didn’t go back and check.”

“COMPLETE FALSEHOODS”

In his closing address on Friday, Mr Whybrow has attacked Ms Higgins as someone who has told repeated lies.

“In this case, fundamentally, Ms Higgins is not a person whose evidence can be relied upon at all,” Mr Whybrow said.

“She’s not an accurate, nor a reliable historian.

“More significantly, she has demonstrated herself to be, repeatedly, and in various forums, over a significant period of time, less than frank and honest.

“Whenever she has some legal or moral or ethical obligation to tell the truth, she has demonstrated she has no qualms whatsoever in obfuscating, asserting matters she does not know one way or the other as fact, but mostly telling complete falsehoods.”

Mr Whybrow pointed to Ms Higgins’ initial claim, to police, that her Bumble date who she met at the Dock, “Nick”, was “bullied” by her colleagues.

However CCTV footage from the Dock showed Nick getting up to leave after Ms Higgins left him alone with her colleagues for 40 minutes after she moved to another table to sit with Mr Lehrmann, and Liberal staffers Austin Wenke and Lauren Gain.

Bruce Lehrmann is suing Network 10 and Lisa Wilkinson for defamation. Picture: NCA NewsWire/Nikki Short.

Barrister Sue Chrysanthou SC and Lisa Wilkinson leaving court. Picture: NCA NewsWire/Nikki Short.

“VIRUS OF MADNESS”

Mr Whybrow lamented what he described as a “sliding doors moment” in the case, when Ms Higgins went to reactivate her police complaint in February 2021 when she was told not to speak to the media.

“If only people around her, like Davis Sharaz, like Lisa Wilkinson, like Angus Llewellyn, like Emma Webster, like any of the other politicians with Ms Higgins before this matter was aired,” Mr Whybrow said.

“If only they had said ‘this is an important story, but you should go to the police first, you should go and have this dealt with appropriately and properly by the police, this story can wait, let us deal with the allegations you make against Mr Lehrmann and you deal with your story down the track’.

“If that had happened, we wouldn’t be here, we would not have had what appears to have been a virus of madness that spread amongst everybody, from politicians to journalists. Where sub judice just went out the window, where the rights of the individual ceased to exist.”

Mr Lehrmann’s barrister, Steve Whybrow, lamented that people around Brittany Higgins (left) like friend Emma Webster (right), did not tell her to wait until police had finished their investigation before going to the media. Picture: NCA NewsWire / Nikki Short

THE ROUND OF DRINKS

Mr Whybrow has hit back at one of the claims against Mr Lehrmann relating to a round of drinks he purchased at The Dock bar on the evening Ms Higgins alleges she was sexually assaulted.

The court has heard Mr Lehrmann purchased two beers and a vodka during one round at the bar.

Mr Lehrmann’s bank account produced to the court showed that he only made one purchase, for $16, at The Dock Kingston on the evening of March 22, 2019.

Network 10’s and Ms Wilkinson’s barristers alleged that it was an example of a lie told by Mr Lehrmann.

Mr Whybrow said CCTV showed the bartender entering the amount of $42.50 onto the machine before Mr Lehrmann handed over his card.

“We don’t know how and why that $42.50 does not show up on his account,” Mr Whybrow said.

“It may be he was given a card by somebody else when they were sitting at that back table, somebody that falls into the category of being too lazy to go up and get the drinks … or the machine may have malfunctioned, or any number of things.

“But to use that as some kind of makeweight to compulsive lying does not follow.”

“PLYING”

Mr Whybrow has hit back at suggestions that at one point at The Dock Mr Lehrmann was “plying” her with alcohol.

Mr Whybrow on Friday played to the court CCTV of the drinks that Ms Higgins consumed while at The Dock over several hours.

The footage showed Ms Higgins meeting a Bumble date – named as “Nick” during the trial – as she mingled with colleagues.

However after Ms Higgins gets up and moves to another table, leaving Nick alone with her colleagues. After 40 minutes, Nick got up to leave without saying goodbye to Ms Higgins

Footage from the night showed Mr Lehrmann moving a drink in front of Ms Higgins.

However Mr Whybrow said it was just a case of Mr Lehrmann pointing out that she was “backed up” with three drinks in front of her.

“She is now backed up three drinks,” Mr Whybrow said.

“Rather than some evil, against-her-will plying, one can see from the body language, Ms Higgins taps Mr Lehrmann lightly on the shoulder and in a way that’s not all indicative of any concern, it’s friendly.”

“You say that’s an innocuous social exchange,” Justice Michael Lee asked.

“Indeed,” Mr Whybrow said.

Mr Whybrow has hit back at claims made earlier in the trial that Mr Lehrmann “plied” Ms Higgins with alcohol. Picture: 7 Spotlight

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.”

She also questioned why he didn’t ask his then-girlfriend, who he lived with at the time, to buzz him into their apartment block.

“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.”

The court has heard that early on March 23, 2019, Ms Higgins was discovered naked on a couch in Senator Reynolds’ office.

And Ms Chrysanthou questioned why she would have been undressed if she didn’t have sex.

“The question for your Honour is: why was she naked?” Ms Chrysanthou said.

“If they didn’t have sex, why was she naked? Did she just get hot?”

Brittany Higgins appeared as a star witness for Network 10. Picture: NCA NewsWire/Jeremy Piper.

“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.”

Lisa Wilkinson pictured arriving at Federal Court on Friday. Picture: NCA NewsWire / Monique Harmer

“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.”

Originally published as Lehrmann’s lawyers delivering closing arguments