‘Why was she naked?’ Lisa Wilkinson’s lawyer makes closing statement in trial against Bruce Lehrmann
Lisa Wilkinson’s lawyer has given a withering statement in court, asking a pivotal question about the night Brittany Higgins alleges she was raped.
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 Thursday’s hearing.
Wilkinson’s lawyer questions why Higgins was found naked
Lisa Wilkinson’s barrister Sue Chrysanthou SC told Justice Michael Lee that if no sex occurred, no rational explanation has been provided as to why Ms Higgins was found naked.
“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?
“It doesn’t make a lot of sense. It’s Canberra. I haven’t checked the weather for that day, but unless there was some sort of freak heatwave in Canberra at the end of March and the air conditioning wasn’t working.
“It just seems unusual that she hadn’t had no clothes on, and on balance, you’re on it would be satisfied that there was sex that occurred.”
Given Ms Higgins’ level of intoxication, the barrister said it was possible that Ms Higgins had an intention to have sex when she returned to Parliament House and can’t remember that.
The barrister submitted that Mr Lehrmann returned to the Parliament with the intent of having sex.
“It’s also possible, given the evidence one your honour has heard from an objective perspective as to Ms Higgins’ conduct and the fact that she clearly was very intoxicated, that could have been her intent as well at that point,” she said.
“She doesn’t remember.”
Wilkinson’s lawyer lashes Bruce Lehrmann
Ms Chrysanthou told the Federal Court that “one has to wonder if Bruce Lehrmann is a compulsive liar” or whether his lies are simply aimed at covering up the fact he had sex with Brittany Higgins.
In her closing submissions, the barrister has agreed that Mr Lehrmann told so many “bizarre lies’ from his reasons for returning to Parliament to planning to work for ASIO that it was in the realm of a Walter Mitty character.
It would be, she said, “a terrible thing” if he had lied about having sex with Ms Higgins, whether or not he believed it was consensual.
If he had lied about this, she said it had condemned Ms Higgins to looking like “a fantasist”.
“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, or whether the lies that have been told were directed to covering up the fact that he had sex with Ms Higgins,’’ she said.
“And we say it’s, there can’t really be any doubt in anyone’s mind that there was sex.”
While discussing this hypothesis, it was debated in court that if Mr Lehrmann was lying, whether or not he was “locked in” when his criminal barrister John Korn said nothing sexual occurred in August, 2021.
She pointed to the ABC’s Four Corners program earlier that year where a security guard said Ms Higgins was highly intoxicated.
“This is just hypothetical, but a very intelligent criminal lawyer might say, “Mate, a person in that position can’t consent’,’’ the barrister said.
“This is just a hypothetical.”
She then detailed a string of bizarre lies she submitted that Mr Lehrmann had told including telling people he was going to work for ASIO.
Justice Lee then said that suggested “a sort of Walter Mitty type behaviour.”
“That exactly the person ,,, as to how to describe that sort of conduct,’’ she replied.
“Which doesn’t necessarily assist us because it’s more along the compulsive liar rather than the consciousness of guilt, train, but it is unusual, it’s unusual behaviour.”
‘Pregnant’ Project broadcast slammed
Justice Michael Lee has criticised The Project’s broadcast as “pregnant” with suggestions that Brittany Higgins was blocked from making a rape complaint.
Lisa Wilkinson’s barrister Sue Chrysanthou SC made submissions on Thursday that regardless of her client Lisa Wilkinson’s “strong views”, the word cover up was “not there”.
“She doesn’t say it’s because of Ms (Fiona) Brown or because of (Senator Linda) Reynolds,” Ms Chrysanthou said.
Justice Lee disagreed, saying, “the whole piece is pregnant with the notion that people were stopping her and preventing her” from making a police complaint.
“I’ll look at it again in light of your submission,” he said.
Ms Chrysanthou replied “We wholly disagree with that.”
“Yes, I thought you might,” Justice Lee replied.
Justice Lee said it was also as “plain as a pike staff” that the interview suggested there were issues with police obtaining the CCTV of Ms Higgins entering Parliament House.
Lisa Wilkinson’s workplace admission
Earlier, the Federal Court was told that Ms Wilkinson had “limited” input and wasn’t copied into the majority of emails.
Lisa Wilkinson’s barrister Sue Chrysanthou SC said her client had “little to no decision-making power” in the The Project broadcast.
“Her role in the publication, as for the actual content that was published, was actually very limited,” she said.
“She brought the story forward, she was the first person Ms Higgins and Mr Sharaz contacted, but after that Your Honour will see that 80 or 90 per cent of the material she was not copied into.
“To the extent she is included in emails and makes suggestions, for the most part [they] were not taken up.
“She has no decision-making power and the script was being amended beyond 5 and 6pm.”
Justice Lee also told the court that he found it impossible to believe that any lawyer had given Lisa Wilkinson the green light to give her Logies speech.
The advice was never provided to the trial on the basis that it was covered by legal privilege.
On Thursday, Justice Lee said that legal advice was “evidently absurd”.
“Do you think a lawyer would have given that advice?,” he said.
‘Monstrous’ allegation in Lehrmann case
Network 10’s barrister Matthew Collins KC has conceded the lack of evidence of when Ms Higgins took a photo of a bruise on her leg – that she told Channel 10 was sustained during the alleged rape – is “problematic”.
The Federal Court has heard there’s no metadata to support that it was originally taken in 2019.
Ms Higgins said she took a screenshot and airdropped it to Channel 10 producer Angus Llewellyn.
“No one has got any explanation,” Justice Michael Lee said on Thursday.
In closing submissions, Dr Collins outlined 10’s case and why The Project acted reasonably in the preparation of the story.
He conceded there was “no question” the bruise photograph produced by Brittany Higgins was “problematic”.
But her core account of an alleged rape had not wavered.
“Her evidence here was consistent with all of those previous accounts and it was, we all saw, compelling and it was distressing and in our submission, it was believable,” Dr Collins said.
“She did become highly distressed at times while in the witness box. She was overwhelmed by emotion at times, particularly when questioning came close to the events of the night of the 22nd and 23rd.
“I mean there was, we would submit, a palpable rawness and vulnerability about her testimony when it came to the central matter, your Honour … which was consistent with her giving honest evidence about a terrible memory.
“It did stand to her credit that she was prepared to acknowledge past errors and correct them before your Honour, and critically, on the alleged assault.”
However, Dr Collins said the suggestion by Mr Lehrmann’s legal team that Ms Higgins had “fabricated a rape allegation in order to save her job” was “monstrous”.
Judge slams Lehmann, Higgins evidence
Bruce Lehrmann has been exposed as a “fundamentally dishonest man” who is prepared to say and do anything to advance his interests, the Federal Court has been told in closing submissions of his defamation trial.
Network 10’s barrister Matt Collins KC made the submission Thursday to Justice Michael Lee in his closing arguments.
But Justice Lee also observed that both of the key protagonists – Mr Lehrmann and Channel 10’s star witness Brittany Higgins had “credit” issues as witnesses of truth – a proposition that Dr Collins said he accepted.
“Obviously enough, the evidence of the two people who were in the room at the time of the alleged assault is utterly irreconcilable,” Dr Collins said.
“On Ms Higgins account, there is a vivid description of sexual assault.
“On Mr Lehrmann’s account, there’s no sexual activity, consensual or otherwise whatsoever.
“Now successful attacks were made in cross examination on the credit of both Mr Lehrmann and Ms Higgins.
“But we would submit that the success of those attacks was qualitatively different
“Mr Lehrmann was revealed to be a fundamentally dishonest man who was prepared to say and do anything that he perceived to advance his interests.
“He was wholly unconcerned with giving the court an honest account of the events of the 22nd and 23rd 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 evidence, we will submit knowingly false evidence, in respect of almost every significant integer concerning that event.”
Justice Michael Lee said one of the dilemmas of the case was that there were real issues with the evidence of both the complainant Brittany Higgins and the man she alleged raped her, Mr Lehrmann.
“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’s evidence simply can’t be accepted.”
“We agree,” Dr Collins KC said.
Dr Collins also raised the possibility that sex had occurred with consent and both Mr Lehrmann and Ms Higgins were not telling the truth.
Mr Lehrmann has always maintained no sex occurred.
“In this case, your honour is faced with a very strange circumstance where neither party has put consent or arguable consent on the table as an explanation,” Dr Collins said.
“It’s a very important … if your honour came to the view that on the balance of probabilities, sexual intercourse occurred in that room in those 40 minutes, but didn’t feel the degree of persuasion necessary to establish that it was non consensual or reckless, we would be in the situation of a most wicked set of circumstances.
“On that hypothesis, Mr Lehrmann would have gone to a criminal trial on a basis which he knew to be false.
“The complainant would have been cross examined on a basis clearly on instructions, but on a basis that was false.
“And then that wicked scheme would have been perpetuated on that hypothesis and in this court, yet again.
“The abuse of process would be so extreme, and so-so closely correlated to the sector of reputation, which is an issue, that we would be in the territory of saying you wouldn’t (award) damages even if you were in doubt about the question of whether consent was whether it’s been recklessness in respect of consent.”
‘They weren’t there to play Scrabble’
Bruce Lehrmann and Brittany Higgins were not at Parliament House at 1:40am “to play scrabble” and it’s “game over” if the court finds any sex occurred – consensual or otherwise, the federal court has been told.
In closing submissions today, Network 10’s barrister Matt Collins KC submitted that if the court finds even consensual sex occurred it is “game over” for his defamation case given Mr Lehrmann has always maintained nothing happened.
Dr Collins KC also submitted that the reasons Mr Lehrmann had given to explain the return to Parliament House, namely to work on question time folders, was “just ludicrous”.
“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 be persuaded) that sexual intercourse took place.
“Why else is Ms Higgins naked at 4:20am passed out?”
“Yes,” Justice Lee replied.
Dr Collins submitted that the closest Mr Lehrmann ever came to telling the truth was when he told his chief of staff Fiona Brown that he went back to drink whiskey, and when asked what else he was doing, told her that he didn’t want to go into that.
“His first instinct is to lie,” Dr Collins said.
“To say he’s going back to drink whiskey, something which he now says is not true.
“(Fiona Brown) says, ‘what else did you do?’ And his answer was, we would submit the closest he ever got to being honest about it.
‘I don’t want to go into that.’
“On our hypothesis, two 23-year-olds have been out drinking all night. Mr Lehrmann is attracted to Ms Higgins.
“They’ve been drinking. They’ve touched and pashed while they’re at 88mph.
“Mr Lehrmann’s got a girlfriend at home. Ms Higgins has got a housemate. What place do they have access to?
“They’ve got access to Parliament House.”
Sharaz the ‘prophet’ who ‘never turns up’
Justice Michael Lee has compared David Sharaz to “the Prophet of Elijah”, a constant presence at the case who “never turns up”.
In closing submissions today, Network 10’s barrister Matt Collins KC has explained their reasons for never calling him as a witness.
“Mr Sharaz, who is like the Prophet Elijah … there’s a place at the table but he never turns up,” Justice Lee said.
But Dr Collins insisted that David Sharaz was not around in 2019 when the alleged incident occurred.
Elijah was a Hebrew prophet who fled the wrath of the vengeful Jezebel by undertaking a pilgrimage to Sinai.
Every Passover, Jews set an extra cup of wine on the dinner table and open the door for the enigmatic prophet Elijah, hoping he will enter.
Dr Collins said that if Ms Higgins had fabricated the rape, she would have had to do so on March 26, 27 or 28, 2019 more than a year before she had even met Mr Sharaz.
“Even if all of that were right, and there was some grand conspiracy in 2021, it has to be tied back to the single relevant question of fact, your honour has to decide in this case, if (it) was fabricated, the fabrication occurred on the 26th 27th or 28th of March and no later,” Dr Collins said.
The idea it was capitalised on, or exploited the subject of financial gain in 2021 was in his “respectful submission is so remote from the central facts to be decided that “there was no no forensic advantage in putting Mr Sharaz in the witness box”.
‘Swamping’ could cost Lehrmann payout
Network 10 will argue the “swamping effect” of Bruce Lehrmann subsequently being charged with rape and some of his conduct afterwards means that he should be awarded nominal damages – or no damages at all – even if he wins his defamation case.
Lawyers for Network 10, Lisa Wilkinson and Bruce Lehrmann commenced their closing submissions on Thursday, with the trial expected to wrap by the end of the week.
During that process, the barristers will present Justice Michael Lee with why he should find that Network 10 has proved on the balance of probabilities that Bruce Lehrmann raped Brittany Higgins, or not, and if that is not proven what damages should apply.
Mr Lehrmann is suing Channel 10 and Lisa Wilkinson over her interview with Brittany Higgins on The Project in 2021.
“If the defences fail, then of course, the question of damages will arise,’’ Network 10’s barrister Matt Collins KC said.
Dr Collins said it was a case of “limited publication at the end of the day to persons who reasonably identified Mr Lehrmann”.
Channel 10 did not name Mr Lehrmann and as such, even though there were 725,000 viewers initially, the “vast majority had no idea the person was Bruce Lehrmann”.
“So it is a case in which damages will be moderated by reason of the limited extent of relevant publication,” he said.
“But there are further matters bearing upon questions of damages.
“There is a question of causation. We will submit evidence … of the confounding feature of the news.com.au article published earlier on the 15th of February.
“Secondly, there is the swamping effect on of Mr Lehrmann and subsequently being charged with rape and named publicly in August 2021.
“And thirdly, there are questions in relation to Mr Lehrmann’s conduct in relation to this litigation.
“And I will address submissions to your honour to the effect that depending upon the findings of fact, your honour makes, it may be a case where even if the defences fail, you’re not to award any damages.”