Bruce Lehrmann has “perverted the course of justice” if he is found to have lied about having even consensual sex with Brittany Higgins, the Federal Court has been told.
Barrister Sue Chrysathanou, acting for Lisa Wilkinson, has outlined how the court should proceed if it finds Mr Lehrmann had sex with Ms Higgins in the ministerial suite.
The statements were made in closing submissions in the defamation trial against Channel Ten and Lisa Wilkinson.
Broadcaster Channel Ten has separately argued if the Federal Court finds Mr Lehrmann had sex with Ms Higgins that night, that his conduct in bringing the defamation case – given he denied any sex – is “utterly wicked” and as such no damages should be awarded.
“[T]hat would be wicked conduct of the highest magnitude that would, in Network Ten’s submission, rise to the level of a very exceptional case of abuse of process,” barristers Matt Collins KC and Tim Senior’s submission stated.
“The circumstances would be such that it would bring the administration of justice into disrepute to award Mr Lehrmann any damages.”
To the extent it is found that Mr Lehrmann had sexual intercourse with Ms Higgins, Ms Wilkinson’s legal team argued this would mean he had “cheated on his girlfriend despite using his apparently monogamous relationship with her as a reason to deny Ms Higgins’ allegations.”
“That he perverted the course of justice in lying to the police,’’ the submission states.
“That he instructed his counsel to cross-examine Ms Higgins both at the criminal trial and in this trial on a false basis and presented her as a fantasist to the Courts and in his public statements, and that such conduct is so serious and connect to the serious allegations that no damages ought to be awarded.”
However, Mr Lehrmann’s own legal team have argued that he should still receive “substantial damages” even if he is found to have lied about having sex with Ms Higgins.
In written submissions, his team state that if the Federal Court finds that “intercourse probably happened” that Mr Lehrmann’s denial of sex during his interview with the Australian Federal Police “was a lie, and that this is a serious matter which is relevant to assessing [the quantum of] damages”.
“It is going too far, however, to characterise it as “perverting the course of justice”, as Ms Wilkinson does in her defence,” Mr Lehrmann’s legal team submission states.
Ms Wilkinson’s legal team conceded Ms Higgins was a “combative witness” who did not always have “a good recollection” of some events but argued that should not stop the Federal Court from finding she told the truth about her alleged rape.
Barrister Sue Chrysanthou argues in her closing submissions that Ms Higgins has been under “unrelenting pressure” since going public with her rape claim in February, 2021.
Justice Michael Lee is now considering his findings on whether or not Channel Ten and Lisa Wilkinson’s truth defence was successful or if they should be forced to pay damages to Bruce Lehrmann.
“The second respondent accepts that Ms Higgins was a combative witness and at times, did not have a good recollection of some events,’’ the submission states.
“However, she was quick to accept when her memory failed her and also conceded where she made errors about some details and the sequence of events.
“Since making her claims public, Ms Higgins has been under unrelenting pressure and scrutiny. It is apparent that, more than any other witness, she had every reason to be defensive, particularly given Mr (Steve) Whybrow was the counsel who cross-examined her at the criminal trial.”
Regardless, the submission argues that Ms Higgins should be believed on the issue at the centre of the defamation trial.
“We all saw Ms Higgins’ evidence in chief about that event – it was compelling and believable. Ms Higgins’ was supported by objective and incontrovertible evidence, as discussed below,’’ it states.
On the question of Ms Wilkinson’s own performance in the witness box, the submission notes that Ms Wilkinson had affirmed two affidavits and her account of factual events in her affidavits was almost entirely unchallenged.
“Ms Wilkinson has spent decades in a professional environment which involved conversational style interviews and debates,’’ the submission states.
“It is unsurprising that she had difficulty within the structure of giving evidence for the first time in a Court. Although at times her answers were unresponsive, it was clear that she was earnestly attempting to answer what she understood she was being asked and was doing so honestly. Ms Wilkinson’s oral evidence should be generally accepted and, where relevant, relied upon.”
Fiona Brown “completely lacks ordinary human insight”
Lisa Wilkinson’s legal team also takes aim at Ms Higgins former chief of staff Fiona Brown in the closing submission.
Ms Brown’s barrister had previously raised concerns about her giving evidence citing mental health concerns.
“It is notable that Ms Brown did not appear (from an emotional perspective) to have any difficulty answering questions,’’ Lisa Wilkinson’s legal team’s submission states.
“Many of her answers were unsatisfactory and were directly contradicted by her own notes, her record of interview to police in March 2021 and her affidavit in these proceedings.
“The court would not be satisfied that these difficulties were due to any mental health condition.
“Ms Brown’s contentions about her various interactions with Ms Higgins should not be accepted to the extent she maintains that she did not comprehend that Ms Higgins was alleging that she had been sexually assaulted.
“All of the contemporaneous documents contradict this – as does the evidence about the conduct and reactions of Lauren Baron, Senator Reynolds and Alex Hawke and the direct evidence of not only Ms Higgins, but also Christopher Payne and Nikita Irvine.
“Having heard Ms Brown’s evidence (over some 5 hours) and observed her demeanour and attitude towards this issue, it is open to the Court to form the view that Ms Brown is not being dishonest about this issue, rather she completely lacks ordinary human insight into such matters.
“There was certainly evidence that could lead to this conclusion. She plainly lacked training and experience to deal with the circumstances that arose in late March 2019, and also general human experience in relation to victims
of sexual assault.
“Ms Brown’s attitude and demeanour and significant age difference also readily explains why Ms Higgins felt that Ms Brown appeared uncomfortable and unwilling to discuss the issue, leaving Ms Higgins feeling abandoned and unsupported.”
Brittany Higgins “candid” and “honest”
Ms Wilkinson was separately represented by her own legal counsel at the trial. Network Ten’s own submission argues that Justice Lee should reject attacks on Ms Higgins’ credibility.
“Notwithstanding the inconsistencies in her evidence that she frankly acknowledged, she was overall a candid and honest witness,’’ the submission states.
“Her evidence in respect of the sexual assault was raw and compelling, and it was consistent with the objective evidence, where available, and the objective touchstones referred to above.
“There was, at the end of the day, a stark contrast between the evidence given by Ms Higgins and Mr Lehrmann. As noted above, Mr Lehrmann was fundamentally dishonest about almost every significant integer of the event in respect of which he has brought this proceeding.
“He did not make appropriate concessions of the kind made by Ms Higgins. His ultimate position is, having lied endemically, to ask the Court to accept his as telling the truth when he says he did not sexually assault Ms Higgins, while at the same time declining to give the Court any coherent account of what he says in fact occurred in the Ministerial Suite in the early hours of 23 March 2019.”
Bruce Lehrmann’s legal team has conceded that their client’s evidence in his defamation trial against Lisa Wilkinson and Channel 10 was “unsatisfactory” – but insisted that Brittany Higgins is a “fundamentally dishonest witness”.