Brittany Higgins, Bruce Lehrmann to take stand in defamation trial

Both former Liberal staffers at the centre of an alleged rape in Parliament House will give verbal evidence in two separate defamation cases between Bruce Lehrmann, Ten and the ABC.

Brittany Higgins Bruce Lehrmann composite 2. Picture: NCA Newswire

A Federal Court judge has revealed both Brittany Higgins and Bruce Lehrmann will take the stand during the defamation matters between Mr Lehrmann and two media organisations, as the court debates the admissibility of expert evidence stating false sexual assault complaints as “rare”.

Both former Liberal staffers at the centre of an alleged rape in Parliament House will give verbal evidence during the defamation cases of Mr Lehrmann and Network Ten and journalist Lisa Wilkinson, and a separate matter between Mr Lehrmann and the ABC.

The matters are expected to be heard together across four weeks in November.

Ms Higgins has repeatedly stated her willingness to give evidence in the defamation proceedings, and on Monday morning Justice Michael Lee said it would be necessary for her to take the stand after she failed to deliver her written affidavit on time.

Tim Senior, acting for Ten and the ABC, told the court on Monday his legal team was unable to meet Ms Higgins due to her “unavailability”.

“The delay, I am instructed, there were two reasons for that: Ms Higgins’ unavailability, and the unavailability of her solicitor Mr Zwier,” Mr Senior said. “The combination of those matters meant that we weren’t able to conference with Ms Higgins.”

Bruce Lehrmann walks out of the Federal Court in Sydney. Picture: NCA NewsWire/ Flavio Brancaleone

While Network Ten served an outline of the affidavit on schedule, Justice Lee said there was “no explanation” as to why the full affidavit could not be filed on time.

“I think we’ll just proceed on the basis she gives evidence by viva voce (verbal evidence),” he said.

Justice Lee said regardless of the schedule, he would have expected both Mr Lehrmann and Ms Higgins to give verbal evidence regarding the “critical incidents” that were alleged to have occurred in Parliament House.

“One of the reasons I would adopt that course I think, Mr Senior … evidence of what might be described as the critical incidents, which are the subject of the truth defence, even if an affidavit was served, I think require the critical witnesses to give viva voce evidence in chief in any event,” Justice Lee said.

Mr Lehrmann, who has consistently denied the rape allegations, is suing Ten and Wilkinson over an interview with Ms Higgins that aired on The Project in February 2021 detailing allegations Mr Lehrmann raped Ms Higgins in Parliament House, but not naming Mr Lehrmann as the alleged attacker.

Network Ten will rely on a truth defence.

Mr Lehrmann is suing journalist Lisa Wilkinson for defamation.

Mr Lehrmann is also suing the ABC over their decision to live broadcast a National Press Club address of Ms Higgins and former Australian of the Year Grace Tame. While Mr Lehrmann was not named in the address, he says the ABC used the address to deliberately try to prejudice his rape trial.

The ABC will rely on a public interest defence.

The Federal Court on Monday heard Mr Lehrmann’s legal team will have four weeks to compile submissions arguing expert evidence from psychologist Chris Lennings is inadmissable.

Mr Senior said Dr Lennings’ evidence would speak to the response of sexual assault victims and their actions following the event.

However Mr Lehrmann’s barrister, Matthew Richardson SC, said he would “certainly” object to the admissibility of the evidence, as it claimed false sexual assault complaints are “rare” and seemed to simply be based on analysis of academic papers.

“As to the first report, which in addition to opining about the typical behaviour of victims of sexual assault, also posits opinions that for instance, false complaints are rare,” he told the court.

“There certainly will be objection to that evidence starting from the basis of whether or not there‘s a recognised field of expertise and so on, but also the conclusions and the opinions that are expressed, we would say have no sufficient factual foundation it really appears to be an analysis of academic papers.”

A second report from forensic toxicologist Michael Robertson will also be submitted into evidence, regarding “his observations and opinion about Ms Higgins and her level of intoxication on the night in question.”

The matters will be heard together at a final hearing that begins on November 22. It is expected to last for around four weeks and will hear from about 30 witnesses.