It’s the moment captured on CCTV that was played to the jury in the rape trial – the conversation between Brittany Higgins and the man she accused of raping her later that night.
But lawyers acting for Channel Ten are proposing to lead evidence on something the trial never heard: what Bruce Lehrmann may have said to Ms Higgins.
The Federal Court was told on Wednesday that a British lip-reading expert had analysed those words and had discovered something barrister Matt Collins KC regarded as “probative”.
“What it does is provide a transcript of the lip reader’s opinion as to words spoken by Mr Lehrmann and Ms Higgins at various points in the CCTV footage from the Dock,” Dr Collins said.
Dr Collins said the expert had been “deliberately” chosen from the UK to find someone who had not been following the case.
But it’s not yet clear the evidence will be allowed, with Mr Lehrmann’s barrister, Steve Whybrow SC, questioning the admissibility of the evidence.
“I do have some concerns about what would appear to be quite leading materials put to Ms Higgins of conversations she’s had, apparently, or a version of conversations she’s had four years ago,” he said.
Lehrmann maligned as ‘revolting predator’
Opening his argument, Bruce Lehrmann’s barrister Matthew Richardson SC said The Project and Lisa Wilkinson, who did not name Mr Lehrmann, had destroyed his reputation.
Both the journalist and the former Liberal staffer sat in the packed courtroom on Wednesday, along with men’s rights activist and supporter of Mr Lehrmann Bettina Arndt.
“My client has been publicly maligned as certainly the most prominent rapist, probably one of the more revolting predators of the recent history of this country,’’ Mr Richardson SC said.
He argued the publication that seared the story into the “national consciousness” was the TV interview between the complainant and Ms Wilkinson.
“Carefully edited, Your Honour, to emphasise the emotion of the complainant … the denunciation of my client as the most odious of predators accompanied as, Your Honour will have heard, by sinister sound effects as, you know, a horror movie interlude, and with melancholy piano sounds as well.
“Mr Lehrmann has lost everything, as Your Honour will hear.
“A substantial award of damages would be called for accompanied by a written judgement, particularly critical in this case, vindicating Mr Lehrmann.
‘Degrading memes’ warning over broadcast of trial
Earlier, Channel Ten lost a bid to stop the public from watching the trial, live-streamed from the Federal Court’s YouTube channel, warning it could lead to “degrading memes”.
The push was not supported by Mr Lehrmann or the former host of The Project, Lisa Wilkinson, who has separate legal representation at the trial.
In submissions released by the Federal Court, Channel Ten raised concerns that the broadcast could distress Ms Higgins, who will be cross examined.
“An uncontrolled livestream of the trial would inevitably increase the stress and trauma experienced by Ms Higgins,’’ the Ten submission stated.
“(She) would be required to give all of her evidence viva voce in the courtroom to a global audience watching in real time, with the fear of what malignant onlookers might do with the livestream.”
However, Justice Lee rejected the Ten network’s concerns it could prejudice Mr Lehrmann’s looming rape trial in Queensland.
Crucially, he noted that it was Mr Lehrmann’s preference for the entire matter to be live streamed, and that his legal team had not objected to the matter being freely available to any member of the public.
“Network Ten’s asserted concerns for Mr Lehrmann’s right to a fair trial are misdirected,’’ Justice Lee said.
Justice Lee said the principle of open justice required the matter to be livestreamed in the normal way.
Bruce Lehrmann in the witness stand
Mr Lehrmann took to the witness stand in his defamation trial against Ms Wilkinson after his lawyers accused Channel Ten of spreading “poison” and painting him as a “revolting predator”.
At around 3pm, Mr Lehrmann swore an oath of affirmation to tell “the whole truth and nothing but the truth”.
Mr Lehrmann’s evidence-in-chief was led by his Mr Whybrow, who noted that his client’s occupation was being a law student.
Mr Lehrmann told the Federal Court he was socially isolated after The Project story aired and the “disgusting” commentary about him online.
He said he was “defriended” by old colleagues on social media and was removed from “group chats, blocking me, the list goes on”.
“It was getting quite disgusting,’’ he said.
“I shut down my Facebook, my Instagram, my Twitter, LinkedIn as well,” he said.
“It sent me into a deep spiral.”
Mr Lehrmann said he had found out who his real friends were, which turned out to be “not many.”
Brittany Higgins under fire
Earlier, during the opening day of the defamation trial, Mr Lehrmann’s barrister Matthew Richardson SC slammed the program, described Brittany Higgins as “unreliable”, and said her account was “riddled with inconsistencies”.
Earlier, Mr Lehrmann’s lawyer Matthew Richardson SC said he would lead evidence on “inconsistencies” in her evidence-in-chief and cross-examination during Mr Lehrmann’s criminal trial.
“Inconsistencies and improbabilities have accumulated and they are sufficient to render Ms Higgins an unreliable witness,’’ he said.
“Her account about the purchase of alcohol … her attendance at medical appointments … the matter in which material on her phone came to be deleted, these have a material and adverse effect on her credibility.”
Mr Richardson told the court that, while Channel Ten would argue that inconsistent statements could be typical of a sexual assault victim, there was no such thing as a typical reaction.
He said Mr Lehrmann was deserving of a substantial payout.
“That brings me now to damages,’’ he told the Federal Court.
“I’ll remind the court of the viewership of 725,000 views on the night, about 200,000 more views or slightly more than that on the internet up until 30 June 2021.
“Obviously, many persons who viewed it initially would not have identified my client, but the poison would have spread.”
Former Liberal staffer gives evidence
The first witness called was former Liberal staffer Karly Abbott, whom Ms Higgins has previously said she had discussed the alleged rape with later in 2019.
Ms Abbott said she knew something was going on during Senate estimates in October, 2019 because Ms Higgins kept going into Senator Michaelia Cash’s office, but denied she was aware of a sexual assault allegation.
Ms Abbott “absolutely” rejected this account and insisted that she only knew of a security incident involving the pair that had led to the termination of Mr Lehrmann’s employment.
“Can I suggest this to you, that she discussed with you the fact that she had been sexually assaulted by Mr Lehrmnann at Parliament House when she was working for Minister Reynolds?’’ Channel Ten’s barrister Matt Collins KC said.
“Absolutely not,’’ Ms Abbott replied.
“And I suggest that you said to Ms. Higgins, you will, ‘Make sure this never gets out. This is just yours.’”
“Absolutely not,’’ Ms Abbott replied.
When the story first broke in 2021, Ms Abbott said her reaction was “WTF”.
Mr Lehrmann “destroyed” by interview
Opening his arguments in court, Mr Lehrmann’s barrister, Mr Richardson, said his client’s life had been upended.
“Our client comes here seeking vindication for the defamation that has utterly destroyed him. He comes here for justice,’’ Mr Richardson said.
“He understands that he can’t persuade everybody. But following the withdrawal of the criminal proceedings against him he brings these proceedings against his most prominent accusers, Channel 10 and Lisa Wilkinson and The Project, he comes here to the Federal Court.
“He will say what happened to him. He will submit himself to cross examination, and he will seek vindication and compensation.”
In submissions to the Federal Court, Mr Lehrman’s lawyer argued he was readily identifiable despite not being named.
“It’s clear right from the start where Channel Ten stands. Ms Higgins is portrayed in an entirely positive way.
“Essentially she is canonised by this program with Ms Wilkinson.
“She is held up as the epitome of truthfulness and decency, not a scintilla of doubt is applied to any aspect of her complaint or allegations. The message is plain: what she says has happened.”
ABC settles defamation case
Earlier, the Federal Court heard that Mr Lehrmann had settled his defamation case with the ABC over Brittany Higgins’ speech to the National Press Club with Grace Tame.
The former Liberal staffer had accused the ABC of prejudicing the trial against him by broadcasting Ms Higgins’ nationally televised address.
However the ABC’s barrister Matt Collins KC told the Federal Court that “the matter has settled.”
“The proceedings have settled on mutually acceptable, confidential terms, without admission of liability,’’ an ABC spokesman said.
The Channel Ten and Lisa Wilkinson hearing continues.