Brittany Higgins, Bruce Lehrmann have ‘real credit issues’: Justice Michael Lee
In an unusual move, Justice Michael Lee has declared some evidence from Bruce Lehrmann and Brittany Higgins ‘simply can’t be accepted’.
In an unusual move, the Federal Court judge presiding over Bruce Lehrmann’s defamation case has declared during the penultimate day of hearings that both Mr Lehrmann and Brittany Higgins have “real credit issues” and that “various parts of each witness’s evidence simply can’t be accepted”.
Lawyers for Network 10 described Mr Lehrmann as “evasive” and “combative” in the witness box, with an “arrogant disregard” for questioning during cross-examination. Ms Higgins, they argued, was “raw” and “vulnerable”, and her account “compelling” and “believable”.
Lisa Wilkinson’s barrister, Sue Chrysanthou SC, who also made her concluding remarks on Thursday, argued her client had “no decision-making power as to the final content of the broadcast”, such that the producers did not take up many of her suggestions.
Justice Michael Lee raised concerns about the advice Wilkinson accepted from lawyers regarding her Logies speech, which was judged to have been prejudicial to Mr Lehrmann’s case and delayed his criminal trial by several months.
Justice Lee said it seemed to him to be “entirely fantastic that any lawyer acting competently could have given advice that that speech was anything other than inappropriate”.
“How do you factor that into the notion that someone’s telling you ‘well, I followed legal advice’ if you think the legal advice is self-evidently absurd,” he said.
Mr Lehrmann is suing Ten and Wilkinson over her interview with Ms Higgins on The Project in 2021, detailing accusations that Mr Lehrmann raped Ms Higgins on March 23, 2019, but not naming him as the alleged attacker.
Mr Lehrmann has consistently denied raping Ms Higgins.
Ten’s barrister, Matthew Collins KC, agreed with Justice Lee’s proposition that: “One of the challenges in this case seems to me that the two principal witnesses have real credit issues.”
He also answered “we agree” to Justice Lee’s opinion that “various parts of each witness’s evidence simply can’t be accepted”.
But Dr Collins said he would argue the inconsistencies in their stories were not equal.
“In respect of both key protagonists, we will seek to persuade Your Honour that there was a qualitative difference between the dishonesty of Mr Lehrmann and the successful credit attacks that were levelled at Ms Higgins,” Dr Collins said.
One example he gave was whether Ms Higgins’ dress was fully on when she was found by a security guard, or whether she was naked, and argued that fact did not have any bearing on her credibility. He also said there was “no question” the bruise photograph produced by Ms Higgins was “problematic”.
But he said her account of the alleged assault “has never wavered in any material respect” and was “consistent with all of those previous accounts”. “To her credit,” he added, she was “prepared to acknowledge past errors and correct them”.
Mr Lehrmann, on the other hand, was “revealed” throughout the trial, Dr Collins said, “to be a fundamentally dishonest man”. He said Mr Lehrmann was “prepared to say or do anything he perceived to advance his interests”.
He said Mr Lehrmann denied twice that he was “physically attracted” to Ms Higgins, but that there was “credible evidence” from Liberal staffer Nicky Hamer “that (there was attraction) from the conversation at the Kingston hotel” on March 2, 2019.
Dr Collins also said Mr Lehrmann denied he bought two drinks at the Dock for Ms Higgins three times before accepting it, despite CCTV footage from the night. “It’s a bizarre piece of dishonesty, though, when Your Honour reflects on it because Mr Lehrmann knew we had the CCTV footage,“ Dr Collins said.
He also argued Mr Lehrmann denied numerous times he touched and “pashed” Ms Higgins at 88mph nightclub, despite evidence from Lauren Gain they “hooked up”.
Ms Chrysanthou also questioned Mr Lehrmann’s “bizarre lies”, such as why he deliberately left his keys at Parliament House instead of just saying he forgot them. Ms Chrysanthou and Dr Collins both argued there was no doubt Mr Lehrmann and Ms Higgins had sex, only that there may be questions around whether it was consensual. “They weren’t there to play Scrabble,” were Dr Collins’ words.
The criticism that followed was how “monstrous” it was that Mr Lehrmann conducted the defamation case, as the moving party, on a “fundamentally false” premise. “Allowing the complainant to be cross-examined on that false premise over days, freed from the constraints that might protect her in a criminal trial, and in circumstances where the criminal trial had gone before on the same false basis, uncorrected, before the jury,” Dr Collins said. He also called it a “wicked scheme”.
They argued Mr Lehrmann should not be awarded damages if Justice Lee came to the conclusion they had sex, as the “abuse of process would be so extreme”.
Ms Chrysanthou said Ms Higgins was portrayed as a “fantasist” in the community because Mr Lehrmann chose to say he did not have sexual relations with her rather than say they had consensual sex.
The court was finally given a partial explanation for why Ms Higgins’ fiance, David Sharaz, was not put on the stand, with Dr Collins saying there was “no forensic advantage” since they met more than a year after the central argument of the case – whether Ms Higgins fabricated the rape in March and April 2019.
Justice Lee compared Mr Sharaz to the Prophet Elijah – “there’s always a place for him at the table but he never turns up”.
Mr Lehrmann’s lawyer, Steven Whybrow SC, will present his closing submissions on Friday.