Brittany Higgins was left “naked, drunk and alone” without a care for her wellbeing after she was allegedly raped by her then-colleague Bruce Lehrmann, lawyers for journalist Lisa Wilkinson have argued in their final submissions for a defamation case.
But in his own lengthy submissions, the former Canberra staffer’s lawyers argued that while they accepted his evidence was in some respects “unsatisfactory”, any claims that he was a “compulsive liar” unfairly overstated the problems with parts of his evidence.
Mr Lehrmann is suing Network 10 and Ms Wilkinson for defamation in the Federal Court over a report on The Project in February 2021, in which Ms Higgins alleged she was raped by a colleague at Parliament House in March 2019. Mr Lehrmann has consistently denied the allegation.
In submissions released on Friday, lawyers for Ms Wilkinson — who ran a truth and qualified privilege defence at the defamation trial — argued the court should believe Ms Higgins’ evidence that she woke up to find Mr Lehrmann having sex with her and that his version of events were “inherently improbable”.
“It makes no sense that the applicant just left Ms Higgins there at 2.30am when they arrived there together after an evening socialising,” the submission read.
“He rushed out … if nothing untoward had occurred, why did he not wake her up so she could leave too?”
It was noted Ms Higgins was not challenged on her evidence that she did not give consent.
“By reason of the toxicology evidence, the court should find that Ms Higgins was incapable of consent,” the submission read.
“If the court accepts that Ms Higgins was unconscious when sex was initiated by Mr Lehrmann, then he plainly knew Ms Higgins was not consenting.”
Ms Higgins testified she repeatedly told him to stop, which if accepted, was further evidence of knowledge of no consent, or withdrawal, they added.
“Leaving her there, semi lucid is indicative of his knowledge that Ms Higgins did not consent to what he had just done,” the submission read.
The lawyers further noted recklessness, which involved a failure to consider if a person was consenting, was also a possibility. “If the court concludes that Mr Lehrmann was aware that Ms Higgins was intoxicated and failed to consider whether she was capable of consent, this would amount recklessness,” the submission read.
“Again, rushing out is consistent with this state of mind – leaving her there naked, drunk and alone without a care as to her well being or comfort.”
In his own submissions, Mr Lehrmman’s lawyers accepted the court could possibly form an adverse view of his credit, but said describing him as a “compulsive liar” significantly and unfairly overstated problems with aspects of his evidence.
“When it comes to matters directly relevant to the facts in issue, Mr Lehrmann was … consistent and unshaken in his evidence,” the submission read.
Mr Lehrmann maintained that upon entering the office he turned left and did not see Ms Higgins again. He also rejected suggestions of sexual activity.
“He said this to police, even at a stage when he had no way of knowing whether any forensic evidence, such as DNA, existed,” the submission read.
“He could not have known Ms Higgins had not seen a doctor. He could not have known that Ms Higgins had not retained or provided her dress to police for forensic testing.”
The lawyers argued a potential reason Ms Higgins was found asleep on the couch naked was that she removed her dress before she lay down to avoid vomiting on her dress and then passed out.
In a scathing assessment of Ms Higgins’ evidence, the lawyers argued she was a “fundamentally dishonest witness” and the court could not believe her without independent corroborative evidence.
“She has persisted in asserting lies even when they became untenable,” the submission read.
“Whenever Ms Higgins was challenged, her almost automatic response was to give unresponsive and self-serving speeches about the effects of trauma, or to go on the attack and make further allegations.
“Her mendacity extends so far and so wide that it is submitted that nothing she asserts could be accepted as reliable in the absence of
independent corroborative evidence.”
The verdict will be handed down this year.
Mr Lehrmann stood trial in the ACT Supreme Court in 2022 after pleading not guilty to one count of sexual assault, but the trial was aborted due to juror misconduct.
The charges were subsequently dropped and no findings have been made against him.