Bruce Lehrmann, Lisa Wilkinson defamation trial: Brittany Higgins to give evidence
A year after the criminal case against Bruce Lehrmann collapsed, the question of whether he raped Brittany Higgins will again be interrogated in court. This time, it will fall to a federal judge.
Just over a year ago, the rape case against Bruce Lehrmann collapsed after a juror brought external evidence into the jury room, with a retrial then abandoned over fears for Brittany Higgins’ mental health.
That train of events left unanswered the question that had gripped the nation: Did Mr Lehrmann rape Ms Higgins on the couch of a senior Liberal minister in Parliament House?
On Wednesday, the question will again become the subject of interrogation, this time in a defamation action.
And it will fall to Justice Michael Lee in the Federal Court to deliver the answer.
Mr Lehrmann is suing Network 10 and journalist Lisa Wilkinson over an interview she conducted with Ms Higgins that aired on The Project in 2021, detailing accusations Mr Lehrmann had raped Ms Higgins, but not naming him as the alleged attacker.
The defamation trial is shaping up, as predicted, to become a de facto rape trial, with Ten seeking to prove that Ms Higgins’ allegations that she was raped in Parliament House in March 2019 are “substantially true”.
Ten is confident Ms Higgins will take the stand to give evidence that she was raped by Mr Lehrmann.
Concerns over her fragile mental health led prosecutors to abandon a retrial of Mr Lehrmann in the ACT Supreme Court last year, but Ms Higgins has confirmed her commitment to appear as a witness “to defend the truth” in any civil action brought by Mr Lehrmann.
However there will be significant differences between the two cases, most notably that Ms Higgins is not protected by the same rules of evidence that apply under criminal law to complainants in sexual assault cases.
In addition to its truth defence, Ten also claims it did not identify Mr Lehrmann in its broadcast, and that it made reasonable efforts to contact him and get his response.
Ms Wilkinson, former co-host of The Project, has hired high profile defamation barrister Sue Chrysanthou SC after unexpectedly ditching Ten’s legal team.
Ten will be represented in court by Matt Collins KC, who will focus on Ten’s truth defence, while Ms Chrysanthou will defend her client’s journalism, arguing that Ms Higgins’ story was in the public interest and that Ms Wilkinson conducted herself appropriately in reporting it.
She will argue that Ms Wilkinson placed much faith in her producers at The Project in ensuring that all due care was taken to ensure the program was fair.
Separately, in the NSW Supreme Court, Wilkinson is suing Ten for failing to cover her legal costs throughout the proceedings.
While she says the network should pay her fees upfront - already totalling more than $700,000 - Ten says the costs are likely unreasonable, and, if paid, should be done so in one lump sum payment at the conclusion of the defamation trial. Those matters will be determined in due course.
Matthew Richardson SC will open Mr Lehrmann’s case, honing in on whether the broadcaster acted reasonably, while Steven Whybrow SC, who represented Mr Lehrmann during his criminal trial, will lead in attacking Ten’s truth defence.
Mr Richardson has told the court the team plans lengthy cross-examinations of Ms Higgins, Ms Wilkinson and Network 10 producer Angus Llewellyn.
The first witnesses are expected to be friends and former colleagues of Mr Lehrmann who will give evidence they identified him as the rape suspect in the broadcast even though he was not named.
Mr Lehrmann’s team will argue that the details provided in the program – that it was a male staffer in former Defence Minister Linda Reynolds’ office who left within a week of the incident – meant his identity would be known to anyone who had worked in that office.
In a recording of a five hour preparatory meeting between Ms Wilkinson, Mr Llewellyn, Ms Higgins and her partner David Sharaz, Mr Llewellyn stated that “we may as well have named him because so many people would be able to identify him from the position and that kind of stuff”.
Ten says the few friends and former colleagues who might have identified him were unlikely to have believed the allegations. The network will also point to Lehrmann’s own evidence that friends were calling him on the day of the broadcast speculating about the identity of the alleged rapist, apparently unaware it was him.
Mr Lehrmann will argue Ten did not give him a reasonable chance to respond to the allegations.
Mr Llewellyn, sent emails to two email addresses supplied by Mr Sharaz, one of which was for an employer he had already left, and sent a text and made two follow up calls on a mobile number Mr Lehrmann had used two years before when he worked in Senator Reynolds’ office.
Mr Lehrmann is likely to take the stand by the end of the week and will be subject to a lengthy cross-examination by Dr Collins, probing inconsistencies in his account of the night, and in his conduct later, including his appearances on the Seven Network’s Spotlight program earlier this year.
Dr Collins may suggest that Mr Lehrmann was behind the leak of texts from Ms Higgins’ mobile phone, the tape of the Ten’s preparatory meeting and CCTV footage from Parliament House, all provided to the defence under subpoena during the criminal trial.
Ten will likely argue, as it has at previous hearings, that Mr Lehrmann is the culprit and has been trying to intimidate witnesses, including Ms Higgins.
Ten will call evidence from those friends that Ms Higgins and Mr Lehrmann went drinking with earlier in the evening, as well as security guards from Parliament House, and friends and colleagues to whom she disclosed the incident later.
The network has subpoenaed Linda Reynolds’ former chief of staff Fiona Brown, who spoke to both Higgins and Lehrmann about their after-hours entry to Parliament House, but it is unclear whether she will give evidence.
It is also far from clear that Ms Brown’s evidence would assist Ten’s case.
Ms Brown has strenuously denied several of Ms Higgins’ claims, including that the young staffer told her she had been raped and had not supported her, and that Ms Brown had offered Higgins a “payout” to get her out of the way in the lead up to the election.
If Ms Brown does not give evidence, Mr Lehrmann’s team will be seek to rely on the testimony she gave at the rape trial.
Ms Higgins would likely be next in the stand, followed by Ms Wilkinson and other Ten staffers on The Project defending their journalism.
When the case opens on Wednesday one of the first decisions to be made by Justice Michael Lee will be whether to allow proceedings to be live streamed on the Federal Court’s Youtube channel.
Ten opposes a public screening, arguing it is likely to make the trial more distressing for Ms Higgins because she is not protected by the same rules of evidence that apply to complainants in sexual assault cases.
Mr Whybrow’s cross examination of Ms Higgins was severely constrained by Chief Justice Lucy MacCallum in the ACT Supreme Court trial.
In the defamation case, any line of questioning that Dr Collins pushes in his cross examination of Mr Lehrmann will be fair game for Mr Whybrow to put to Ms Higgins in his cross examination of her.
The trial is expected to run for up to four weeks.
