Bruce Lehrmann defamation trial: Two little lies that snowballed – and the conspiracy that became a joke

Lisa Wilkinson, left, and her barrister Sue Chrysanthou outside the defamation trial on Friday. Picture: NCA NewsWire / Monique Harmer

For the first time, we can stack up two case theories that might make sense.

More sense, anyway, than ‘mad fantasist’ on one side or ‘callous predator’ on the other.

And they both start with small lies.

Throughout the trial, the defence counsel have ridiculed what they said was Lehrmann’s case theory: that Higgins fabricated the rape allegation to save her own job.

Who would do such a monstrous thing?

It’s only now, in closing submissions from Steve Whybrow SC that we see the case theory Lehrmann’s side is actually putting.

Whybrow told Justice Michael Lee that, in fact, Ms Higgins is someone who told a tiny lie in a moment of panic, and then watched as that lie snowballed.

In fact, Whybrow said, it wasn’t even her idea.

Whybrow said Linda Reynolds’ former chief of staff, Fiona Brown, was telling the truth when she told the court, as written in her contemporaneous notes, that on the Tuesday after the rape, Higgins did not say anything about being assaulted, and in fact, shook her head ‘No’ when asked if anything had happened she didn’t want.

Speaking of Brown – a momentary interruption to scoff at how silly we all were to think this whole thing was about an alleged political cover-up by the Morrison government.

Oh no, say Lisa Wilkinson and Ten. We never said that.

It’s now become a joke even for the judge: in closings on Friday, Whybrow referred to the fact Fiona Brown said well, actually, senior ministers ordered her to go to police without Higgins’ consent and she refused, and thought they might sack her.

Lee chortled: “This is the cover-up where everyone wanted to tell the police?”

“Yeah, that’s right,” Whybrow laughed.

Back to Whybrow’s case theory.

Bruce Lehrmann and lawyer Steven Whybrow on Friday. Picture: NCA NewsWire / Monique Harmer

Shortly after being scolded by Brown for entering parliament after hours, Higgins sent her friend Ben Dillaway, a message saying: “So I think I may not continue to be employed with Linda (Reynolds).”

Dillaway replied: “What? Did something happen?”

Higgins: “Yeah, it’s pretty bad … So on Friday night, how I ended up in the ministerial office. It didn’t play out how I made out. I don’t remember getting there at all. Vaguely remember Bruce being there. And then I woke up in the morning half dressed by myself in the minister’s office on Saturday morning.”

Dillaway: “Was it just you and Bruce who went back there or a group of people? Did you hook up in there or did someone take advantage of you?

That’s the moment where Whybrow says the seed was first planted.

Higgins replied: “Yeah, it was just Bruce and me from what I recall. I was barely lucid. I really don’t feel like it was consensual at all. I just think if he thought it was okay, why would he just leave me there like that?”

Whybrow told the judge Higgins later that week floated the idea with Brown, telling her Bruce had been “on top of me” but, according to Brown, still not saying she’d been raped.

Brown took Higgins down to the police – where Whybrow said Higgins told a bigger lie, alleging she’d been assaulted – and then more and bigger lies.

Whybrow said Higgins tried to control the snowball, now an ice boulder, by withdrawing the police complaint, ignoring detectives’ phone calls, washing the dress, deleting photos – but the arrival of David Sharaz into her life remoulded the small lie into a giant political cover-up.

“He’s at the meeting. He’s making all of these inputs. This was a political hit job, if you look at the communications emanating from him,” Whybrow said.

In Whybrow’s contention, Higgins and Sharaz had to add the cover-up element, to explain why she’d gone quiet in 2019.

So what about Lehrmann’s lies?

Sue Chrysanthou, SC, counsel for Wilkinson, put what she called, smiling, “just a hypothesis” to Justice Michael Lee on Thursday.

The defence says Lehrmann and Higgins definitely had sex – and it can’t have been consensual, because she was too drunk.

Chrysanthou said Lehrmann told a small lie at the start – that he was only in the office to drink whisky or jot down notes – but that necessarily turned into a big lie once he realised his legal pickle.

And by the time he spoke to police and denied raping Higgins, he’d had the benefit of speaking to his then-lawyers, Warwick and John Korn.

Chrysanthou said: “I imagine that an experienced criminal lawyer would not let a client speak until they explain a certain number of things to them about what needs to be proved.”

“Now at that point, one might think – and this is just hypothetical – a very intelligent criminal lawyer would say: ‘Mate, a person in that position can’t consent’,” Chrysanthou said.

“So one can see how it’s possible that a person in Mr. Lehrmann’s situation would form the view that it would be dangerous to run a criminal case just on the consent issue.

“But he locked himself in by telling the police that that’s what happened. And then a series of lies then flowed from that.”

The judge knows they have both told lies. Both plaintiff and defence have admitted as much.

The choice for Lee, as he retreats to the Central Coast to start writing what he’s promised will be a very long judgment, is which liar to believe?