‘We never alleged a cover-up in Brittany rape case’, Lisa Wilkinson claims
Lisa Wilkinson says Justice Michael Lee should have focused on Brittany Higgins’ rape allegations but was instead preoccupied by the alleged political cover-up in the defamation case brought by Bruce Lehrmann.
Lisa Wilkinson says Justice Michael Lee should have been focused on Brittany Higgins’ rape allegations and not been “distracted” by allegations of a political cover-up in the defamation case brought by Bruce Lehrmann.
Ms Wilkinson’s lawyer made the claim in Mr Lehrmann’s appeal against a ruling by Justice Lee that, on the balance of probabilities, the former political staffer had raped Ms Higgins in Parliament House in 2019.
But Justice Lee also found that the Ten Network and Ms Wilkinson had failed in their defence of qualified privilege; that is, that they had not acted fairly and reasonably in the preparation and aftermath of the story.
The judge was highly critical of Ten program The Project’s suggestion that the rape had been hushed up to avoid a political scandal in the lead-up to a federal election.
But on Thursday Ms Wilkinson’s counsel, Sue Chrysanthou SC, told the court the cover-up claims were “barely relevant” compared to the rape allegations made by Ms Higgins in her 2021 interview with Ms Wilkinson on The Project.
“We say His Honour was distracted by the so-called cover-up, when His Honour’s focus should have been on the rape allegation,” Ms Chrysanthou said.
Justice Lee had found that Ms Wilkinson failed to carry out an investigation into cover-up allegations, but Ms Chrysanthou said such allegations were never made on the program.
Justice Lee said in his judgment that Ms Wilkinson had won a “glittering prize” – a Logie – for the story about alleged roadblocks that forced a rape victim to choose between her career and justice. But that was “supposition without reasonable foundation in verifiable fact”, and its dissemination caused a “brume of confusion”, the judge found.
However, Ms Chrysanthou said there was no allegation of corrupt conduct on the program and that Ms Wilkinson had lost her defence of qualified privilege “because His Honour could not accept that enough was done on this so-called corrupt conduct or cover-up”.
“We put quite forcibly that that was barely relevant, other than to the extent it had an impact on Ms Wilkinson’s belief in the truth of the rape allegation,” Ms Chrysanthou said.
Justice Michael Wigney challenged Ms Chrysanthou’s proposition.
“It is of some relevance, is it not, because part of His Honour’s reasoning was given the way this story had been initially presented to Ms Wilkinson (by Ms Higgins’ partner, David Sharaz) in particular, and that this political bombshell that should have caused your client to be even more cautious about her underlying allegation of rape?” Judge Wigney said.
Ms Chrysanthou said she agreed from “a credit perspective” that if Ms Higgins had been making allegations that in Ms Wilkinson’s mind were “deranged”, then that should affect her consideration of the rape claim.
She said the claims on the program about “roadblocks” were a reference to the fact that the Australian Federal Police could not get hold of CCTV footage from Parliament House, that no one had called a doctor when Ms Higgins was first found naked in then senator Linda Reynolds’ office and that there was no workplace investigation of the incident.
Ms Chrysanthou said Ms Reynolds, her chief of staff Fiona Brown and Senator Michaelia Cash were all given the opportunity to respond to “the roadblock allegations”, and to the extent that they contradicted Ms Higgins, their denials were included in the program.
Justice Lee was in error in not referring to any of the responses, she said.
“His Honour went awry at the outset, from approaching the entire reasonableness question out of context … His Honour says the rape is a side show in the broadcast,” Ms Chrysanthou said.
Mr Lehrmann’s lawyer, Zali Burrows, told the court her client would have conducted his case differently if the version of the rape in Justice Lee’s findings – which differed in some respects from the evidence of both Ms Higgins and Mr Lehrmann – had been put to him.
When challenged by Justice Wigney, she replied: “It could have been depending on the particular type of allegations, or what witnesses could have been called.”
The judge pointed out that the pair were alone in the ministerial suite, and pressed Ms Burrows: “So let’s put aside the calling of other further witnesses – how could he have conducted his case differently?”
Ms Burrows: “Let’s just say there was a version of what happened that there was loud music playing and screaming or something else happening ... ”
Justice Wigney (interrupting): “That seems to be entirely hypothetical, because no one was suggesting that version of events, so let’s focus on how you say Mr Lehrmann would have conducted his case differently.”
Ms Burrows: “It’s difficult to know, not being his lawyer at that time.”
Justice Wigney: “Well, you’re making the submission.”
As Ms Burrows was attempting to make her case, Ms Higgins uploaded an Instagram story, with a screenshot of a message, which said: “If it wasn’t so serious it would be funny”, linking the post to the Taylor Swift song, The Smallest Man Who Ever Lived.
Ms Higgins was not in court but may have been among the roughly 2000 viewers watching the case on the Federal Court’s YouTube site.
In submissions filed with the court earlier, Ms Burrows claimed Ms Wilkinson’s 2021 interview with Ms Higgins was deliberately designed as a “whodunit”, and that it was no defence that he was not named on the program.
Ms Chrysanthou had argued that her client had acted reasonably in preparing the story by not identifying Mr Lehrmann in the broadcast, even though a handful of people might have been able to guess who it was.
But in her submission, Ms Burrows said Ms Wilkinson’s assertion that she should be commended for not naming Mr Lehrmann was “disingenuous”.
Instead, the program should be viewed “as a crafted strategy to maximise the ratings of a story, to achieve an exciting air of mystery akin to a ‘whodunit’, a common phrase used to ask who committed a crime with the effect of provoking a greater public interest to ‘create chatter’ a ‘buzz’, placing the primary focus on the identity of the alleged perpetrator”.
The program was arguably designed to “highlight the sensationalism of a complex plot-driven story involving political scandal, cover-up of a rape in parliament”, Ms Burrows alleged.
The program was “far more epic and dramatic” than the online article by news.com.au journalist Samantha Maiden that had been published earlier that day, she said.
Although Mr Lehrmann was not specifically named in the program, “a sophisticated journalist” such as Ms Wilkinson “would be aware when providing enough indicia as to the identity of Mr Lehrmann is teasing the viewer and inviting greater public engagement and promotion of the story”.
Mr Lehrmann was easily identified by the references to him being a “senior male adviser” to Ms Reynolds; that he had previously worked for her in the Home Affairs portfolio: that he had attended a drinks event with Ms Higgins and other colleagues from the Department of Defence, and; that he had packed his bags after being called into a meeting with chief of staff Ms Brown.
Several witnesses in the defamation trial gave evidence of discussions, gossip and rumours about the identity of the perpetrator, Ms Burrows said.
Justices Wigney, Colvin and Wendy Abraham have reserved their judgment in the appeal.
