Moment of truth arrives in Lehrmann case
Two political staffers shuffle down a hallway inside Parliament House.
The man dressed in a blue and white chequered shirt and dark trousers, the woman in a white cocktail dress, barefoot and clutching her shoes.
They are led down a corridor by a security guard to the office of their boss, Senator Linda Reynolds.
They file into the Defence Industry minister’s office at exactly 1.48am and 15 seconds, according to the clock on the Parliament House CCTV, with the woman, Brittany Higgins, entering first.
Security vision also captures the man, Bruce Lehrmann, exiting just after 2.30am.
For over three years, ever since Ms Higgins used interviews with The Project’s Lisa Wilkinson and news.com.au’s Samantha Maiden to allege she was raped by her former colleague on a couch in the senator’s office, the story has gripped the country.
But now, on Monday, perhaps the most decisive chapter will play out inside the Federal Court.
Mr Lehrmann has long maintained that he did not sexually assault Ms Higgins - according to his version of events he had no sexual contact with her that night.
And after his criminal trial in the ACT Supreme Court collapsed, and the charge against him was dropped, he sued Ms Wilkinson and Network 10 for defamation.
Over five weeks late last year, the trial before Justice Michael Lee played out in courtroom 22A of the Federal Court, with both sides fiercely attacking the other.
Each day thousands tuned into a live stream of the proceedings, which was broadcast on the Federal Court’s YouTube channel.
It has been described as a “quasi-criminal trial” given that Network 10 and Ms Wilkinson have relied on a truth defence.
The matter will be decided on the civil standard of the balance of probabilities, which is less than the criminal standard of beyond reasonable doubt.
But Justice Lee is expected to make judgments on what happened behind closed doors in those 42 minutes in Parliament House in the early hours of Saturday, March 23, 2019.
ON A LOOP
It is not in dispute that Ms Higgins and Mr Lehrmann drank with colleagues on the evening prior to the alleged sexual assault.
CCTV played during the trial showed them drinking at The Dock pub, before they later kicked on at 88MPH alongside colleagues Austin Wenke and Lauren Gain.
Ms Higgins, during her evidence, said that she had no recollection of how much she drank at The Dock, however she said from viewing CCTV she believed she had 11 vodka drinks.
Vision played during the trial showed the group interacting and socialised, however there was no vision from 88MPH, because Ms Higgins was unable to recall the name of the 80s-themed bar to AFP officers.
On the stand, Ms Higgins described her state of intoxication at this point as being “extreme” and said that she fell over on several occasions at 88MPH.
She told the court that at 88MPH, Mr Lehrmann put his arm around her shoulder and touched her thigh and that “he was being handsy”.
Ms Gain told the court that she saw Ms Higgins and Mr Lehrmann kissing “passionately”.
“I remember Brittany and Bruce sitting quite close together, I remember them being quite touchy with one another, I remember them kissing and I remember her taking selfies of the two of them,” Ms Gain told the court.
The following day, Ms Gain sent a message to a colleague, Nikita Irvine, that “Brittany hooked up with Bruce.”
Mr Lehrmann, during his evidence, denied having any intimate contact with Ms Higgins that evening, including Ms Gain’s suggestions that Mr Lehrmann and Ms Higgins kissed at 88MPH.
Ms Higgins and Mr Lehrmann travelled back to Parliament House.
She told the court that when she entered Senator Reynolds’ suite she went and sat on a ledge overlooking the Prime Minister’s courtyard and the next thing she remembered was waking up on a couch in the minister’s private office.
“My head was in the back corner of the couch,” she said.
“He was on top of me, his arms were over the top of the couch. He was having sex with me at that point in time and that was what I first woke up to.”
She said she felt “water-logged”, “heavy” and as if she couldn’t move.
“I told him no, on a loop. I don’t know how many times I said it. I told him to stop,” Ms Higgins said.
“I couldn’t scream for some reason. It was trapped in my throat, I couldn’t do it.”
THE FRENCH SUBMARINE DEFENCE
Mr Lehrmann, during his evidence, told the court that once inside the minister’s office, he went to the left and Ms Higgins went to the right, in the direction of the minister’s personal suites.
When he was questioned by Ten’s barrister Dr Matt Collins about the alleged sexual assault, Mr Lehrmann repeatedly said “That did not happen” and “No.”
He says that after entering the office, he did not see Ms Higgins again that night.
Mr Lehrmann said that he had returned to Parliament to collect his keys, after leaving them on his desk when he went to dinner.
He said he spent 30 to 40 minutes writing ministerial notes about the French submarine contract issue after having conversations with several aides-de-camps that evening at the Dock.
“Based on the conversations that I had at The Dock, I took it upon myself to make some notes while it was fresh in my mind against various briefs in those folders,” he said.
“It was heavily focused on the submarine issue, given the political sensitivity at the time.”
He said that when he saw he had several missed calls from his then-girlfriend, he collected his keys, exited the building and ordered an Uber home.
Network 10 attacked his version of events, arguing that Mr Lehrmann was unable to specify any information he had learned about the French submarine issue that evening.
As well, they emphasised that Mr Lehrmann, in his evidence to the court, had described aides-de-camps as “handbag-carriers” for the minister.
RELIABILITY
Both sides mounted fierce attacks on the credibility of the key players in the trial.
Mr Lehrmann’s barrister described Ms Higgins as a “fundamentally dishonest” witness who lied repeatedly.
While Network 10, in their closing submissions, accused Mr Lehrmann of lying on 13 occasions.
During Mr Lehrmann’s criminal trial, Ms Higgins told the court that following the alleged sexual assault, she kept the white dress she was wearing that evening under her bed “in a plastic bag for a good six months”.
However photos tendered during the trial showed her wearing the dress at a function with Linda Reynolds in May 2019, just days out from the federal election.
“It was my favourite dress, I used to wear it all the time and I was trying to reclaim it … I never wore it after this event. I thought maybe I could disassociate it from the rape but I never could,” Ms Higgins told the court.
She denied suggestions from Mr Lehrmann’s barrister, Steve Whybrow, that her willingness to wear the dress was proof that she was not sexually assaulted.
Ms Higgins during her evidence, told the court that she on several occasions made incorrect claims about the state of her dress when she woke up the morning of the alleged sexual assault.
The court has heard that she had previously written in a draft book and told police and journalists that when she woke up inside Parliament, that the dress was hanging around her waist like a belt.
The court heard that version of events was contradicted by the evidence of a security guard, who said that Ms Higgins was discovered naked.
Mr Lehrmann’s barristers also accused Ms Higgins of lying about when she first disclosed the allegations to Senator Reynolds’ chief of staff, Fiona Brown.
The court has heard that the following Tuesday, Ms Brown separately met with Mr Lehrmann, who was dismissed for breaching security rules, and Ms Higgins.
Mr Lehrmann’s legal team argued that Ms Higgins account, that she told Ms Brown during that meeting that she had been raped, could not be believed.
According to Ms Brown’s evidence, during that meeting Ms Higgins told her “I am responsible for what I drink and my actions.”
Ms Brown also told the court that at a second meeting, two days later on March 28, Ms Higgins said: “I remember him being on top of me.”
Network 10 highlighted what they described as 13 lies told by Mr Lehrmann during his evidence.
“Mr Lehrmann was a witness prepared to say or do anything that he perceived would assist his case or undermine Network Ten’s case,” Ten’s barrister Dr Matt Collins said in his closing submissions.
During his evidence, Mr Lehrmann claimed that he entered Parliament House that morning to retrieve his keys.
Upon arriving at Parliament House, he pressed the intercom and told security: “Oh, hi mate. Bruce Lehrmann here with Minister Linda Reynolds. I’ve been requested to pick up some documents. I’ve forgotten my pass.”
Mr Lehrmann, during his evidence, acknowledged that was a lie.
As well, Ten’s barristers pointed out that Mr Lehrmann had told Ms Brown, during a meeting on March 26 that he returned to Parliament to “drink whiskey”.
Justice Michael Lee was scheduled to earlier this month hand down his highly-anticipated findings in the case.
However, Network 10 was given leave to reopen its case to hear evidence from former Seven spotlight producer Taylor Auerbach.
In sworn affidavits and his testimony to the court, Mr Auerbach made damaging allegations that Seven had reimbursed costs for expensive restaurants and accommodation for Mr Lehrmann, as well as reimbursing him for money he spent on prostitutes and illegal drugs, at a time when they were attempting to woo him.
Seven and Mr Lehrmann have denied Mr Auerbach’s claims about the purchase of drugs and prostitutes.
Mr Auerbach also told the court that Mr Lehrmann provided him with a series of documents, including Ms Higgins’ text messages, which were obtained during Mr Lehrmann’s criminal trial.
According to a legal principle known as the “Harman undertaking”, there is an implied undertaking that a party to a legal proceeding cannot use material, which is handed over in those proceedings, for another purpose.
The court heard that Mr Lehrmann’s solicitors, in correspondence, repeatedly denied that he had breached the implied undertaking by handing over material to Spotlight.
THE DEFENCES
Mr Lehrmann was not named during The Project broadcast in February 2021.
But his lawyers have argued that “there are certain people who must have watched the program and must have known, or found out soon afterwards, who the alleged perpetrator was.”
They point out that while not naming Mr Lehrmann, The Project described the perpetrator as a “senior male advisor” to Senator Reynolds who previously worked in Home Affairs and after leaving the senator’s office obtained work in Sydney.
The broadcaster has sought to rely on two defences - truth and qualified privilege.
In their truth defence, Ten and Ms Wilkinson are seeking to establish the truth of Ms Higgins’ allegation and they bear the onus of proving, on the balance of probabilities, that a rape occurred.
“There is no independent evidence for a rape. There is no rape examination, no doctors’ reports, no witnesses,” Mr Lehrmann’s legal team said in their written closing submissions.
Mr Lehrmann stood trial after pleading not guilty in the ACT Supreme Court in October 2022 however the trial was abandoned due to juror misconduct before the Director of Public Prosecutions abandoned a retrial because of concerns for Ms Higgins’ welfare.
Ten has described Ms Higgins evidence as “coherent, compelling”, and noted that in order to reject their truth defence, Justice Lee would need to find that she had deliberately lied.
Under the qualified privilege defence, Ten and Ms Wilkinson argue that they acted reasonably in putting the story to air.
Ms Wilkinson and Project producer Angus Llewellyn gave detailed evidence to the court about the steps they took in researching Ms Higgins’ story.
Justice Lee will hand down his decision at 10.15am on Monday morning. The judgment will be broadcast on the Federal Court’s YouTube channel.
