Higgins, Lehrmann and the defamation trial
Sam Hawley: Hi, I’m Sam Hawley, coming to you from Gadigal land. This is ABC News Daily. It’s one of the most watched defamation cases, with both Brittany Higgins and Bruce Lehrmann taking the stand in the Federal Court this week. Mr. Lehrmann is suing Network Ten and journalist Lisa Wilkinson for defamation over an interview where Ms. Higgins alleged she’d been raped by a Liberal staffer at Parliament House in 2019. Mr. Lehrmann has denied the allegation and has never been found guilty of any wrongdoing. Today, reporter Patrick Bell on the case and the key evidence. And a warning: This episode includes some details of a rape allegation. Patrick, we’re going to discuss what we’ve heard from both Brittany Higgins and Bruce Lehrmann in the Federal Court this week, but we should start by outlining the case, because we must remember that this is a civil proceeding. It relates to defamation, doesn’t it?
Patrick Bell: That’s right, Sam. The criminal case in relation to the alleged rape of Brittany Higgins in a Parliament House office, you’d remember, fell over last year because of a juror misconduct.
ABC News Report: The trial of Bruce Lehrmann over the alleged rape of Brittany Higgins was dramatically halted today after a juror was caught doing their own research.
ABC News Report: The breach was only discovered during a routine tidy up of the jury room by a court sheriff, when an academic paper, not in evidence in the trial fell out of a folder.
Patrick Bell: And the top prosecutor in the act at the time abandoned plans for a retrial out of concern for Ms. Higgins’ health.
Shane Drumgold, former ACT director of public prosecutions: I’ve made the difficult decision that it is no longer in the public interest to pursue a prosecution at the risk of a complainants’ life.
Patrick Bell: Bruce Lehrmann has always denied the allegations against him and has never been found guilty of any wrongdoing. So this is a defamation proceeding brought by Mr. Lehrmann against Network Ten and its presenter Lisa Wilkinson, who until last year had a role hosting The Project. And Mr. Lehrmann claims that an interview that she did with Brittany Higgins on The Project in early 2021 defamed him – and that was when she first went public with the allegation that she’d been raped by a Liberal staffer.
Sam Hawley: But Patrick, in that interview that aired on Channel Ten, Mr. Lehrmann wasn’t named, was he?
Patrick Bell: No, he wasn’t. But in a letter to Network Ten, he argued that his name was widely trafficked as the culprit on social media and the internet generally. His lawyers said it was notorious within Parliament House and elsewhere, that Mr. Lehrmann was the person alleged to have assaulted Ms. Higgins, and he claims he was identifiable by some of the other details they included in the program.
Sam Hawley: Patrick, let’s now go inside the courtroom because, as we mentioned earlier, both Brittany Higgins and Bruce Lehrmann have been on the stand this week. Let’s start with Brittany Higgins. A substantial amount of her evidence came on Wednesday, didn’t it?
Patrick Bell: Indeed. So she was questioned at length about the night that she had been out drinking with Mr. Lehrmann and others at a Canberra pub and then a nightclub in the CBD. She told the court that it was the most intoxicated she’d ever been in her life: it was an abnormality that she was so drunk. She said she’d consumed 11 vodka-based alcoholic drinks at The Dock and then, said she recalls having shots at the nightclub that a smaller group went on to.
ABC News Report: Ms. Higgins told how she’d invited Mr. Lehrmann and others to drinks at Canberra bar The Dock, but barely remembers a nightclub later, although she did recall Mr. Lehrmann getting into her space.
Patrick Bell: At that nightclub, she told the court she remembered Mr. Lehrmann was being handsy, as she called it, that he had his arms around her and touching her legs and thigh areas, and she said she was tolerating it, but she didn’t want it. Then, of course, she testified about the details of when the pair went back to Parliament House. She told the court she had a patchy recollection of that period. She had no independent memory of things that she’s subsequently seen on security footage, things like going through the metal detector and then being escorted by a security guard to the office of Senator Linda Reynolds.
Sam Hawley: And then Ms. Higgins was asked to detail the alleged rape.
Patrick Bell: She was, and Ms. Higgins became tearful at several points in her testimony, including this point. She gave an account of the alleged rape. As she recalled it, she told the court that Bruce Lehrmann was on top of her and that’s what she woke up to find. She said he was having sex with her, that she’d refused consent “on a loop”, she said. She told the court she kept saying “no” or “stop” and can’t remember exactly how many times she said it, but said Mr. Lehrmann didn’t acknowledge it. And she also said she believes that he had a climax while he was in her.
Sam Hawley: And Patrick, what did she tell the court about what happened after the alleged incident, which, of course, Mr. Lehrmann denies and he’s never been found to have committed a crime.
Patrick Bell: Indeed, Ms. Higgins told the court that in the immediate aftermath of the alleged assault she didn’t disclose it to her housemates or to other friends. She said she was still in shock and processing what had happened to her and wasn’t ready to talk to anyone. She described to the court being in a depressive state that weekend and not leaving the house at all, and that she only left when she had to return to work on the Monday. And then she detailed to the court some of those early interactions in that week. Upon her return, she said, Mr. Lehrmann bought her a takeaway coffee from the Parliament House cafe, and that he had behaved in a way that she said conveyed a sense of familiarity, that he’d sent her an email that had a smiley face in it, and she was really upset about that and told the court she’d freaked out because he had never been quite so familiar with her before the alleged assault.
Sam Hawley: Okay, so Patrick, before Brittany Higgins began her evidence, of course, Bruce Lehrmann had spent five days giving his evidence. Just tell me about what he told the court.
Patrick Bell: He told the court that after the interview aired on Network Ten that he became socially isolated, that he’d been removed from a number of group chats on Facebook Messenger and WhatsApp, and his number of Facebook friends had reduced. And that was part of his explanation for why he was identified in that story. He was, of course, asked about detailed accounts that Ms. Higgins has made about the alleged assault, and told the court that none of that happened. He told the court he didn’t get consent because he did not have sexual intercourse with Ms. Higgins. And in light of all of that, his barrister, Matthew Richardson, told the court that Bruce Lehrmann has been publicly maligned as one of the most revolting predators of the recent history of this country, and that that was defamatory and clearly harmful to his reputation. Mr. Lehrmann also denied making any advance towards Ms. Higgins at all. He did admit to being verbally flirtatious with her on the night in question, but denied any sort of physical contact, touching, kissing or anything of that nature.
Sam Hawley: All right, Patrick. So what was the other key evidence that was given by Bruce Lehrmann during his time in the court?
Patrick Bell: One of the key moments was when it was put to Bruce Lehrmann by Ten’s barrister, Matthew Collins, that he had deliberately tried to get Brittany Higgins drunk on the night that they’d been out in Canberra. He denied that, but he did concede, buying her two of the drinks she consumed at that Canberra pub, despite earlier saying he couldn’t recall doing so. Ten’s barrister challenged Bruce Lehrmann that he’d given false evidence to the court because earlier he’d said the only people he recalled buying drinks for at the venue were himself and his friend, Austin Wenke. Mr. Lehrmann had said he had been confused at different points of his testimony, and the judge did tell Bruce Lehrmann that if he felt like he couldn’t give an appropriate account of the events, he was being asked that he did need to say as much.
Sam Hawley: So, Patrick, that all came out in the cross-examination of Bruce Lehrmann. And there has been some confusion on Brittany Higgins’ side too, hasn’t there, when she was cross-examined on Thursday.
Patrick Bell: Indeed, there has been Sam. She told the court she was not always correct in the evidence she gave to the criminal trial. She was also grilled over a photo of a bruise on her leg that she first presented in the Channel Ten interview, and suggested that that was evidence of the alleged assault, but she has conceded under cross-examination the bruise could have been caused in another circumstance. There’s also been quite a serious imputation put by Mr. Lehrmann’s lawyers to Ms. Higgins: it was suggested to her that she had a financial interest in the outcome of the trial, because she still has a pending book deal, which Mr. Lehrmann’s barrister, Steven Whybrow, said was related in some substantial part to the truth of her allegation. And of course, Network Ten is seeking to prove that that allegation is true. Ms. Higgins has said that if she ever does finish the book, she’ll donate those earnings to charity and told the court she doesn’t care about the money at all.
Sam Hawley: Okay, Patrick, as we mentioned earlier, this is a civil trial relating to defamation, and Channel Ten is relying partly on the defence of truth. That is, that the allegations raised by Brittany Higgins in The Project interview are true. So what does Channel Ten and Lisa Wilkinson need to prove to succeed in the defamation case?
Patrick Bell: There are a few lines of defence that Network Ten has. It will seek to establish the truth of its reporting. Now they only need to do that on the balance of probabilities, rather than in a criminal trial, where you’d need to establish someone’s guilt beyond reasonable doubt. But even if it doesn’t do that, Network Ten can still win if it proves that there was a sufficient public interest in the story to attract a qualified privilege under the New South Wales laws. And it argues that the political fallout was massive, and therefore evidently it was a really important story to do.
Sam Hawley: So tell me what comes next in this process?
Patrick Bell: Well, Network Ten has said it plans to call more than 20 supporting witnesses to strengthen its argument that the reporting was true. Many of those are people who Ms. Higgins disclosed the alleged assault to: friends, we expect her own father may even be called as a witness. We’ll also hear from the Parliament House security guards who were on duty that night. And we also expect to hear from Network Ten representatives, including Lisa Wilkinson herself, about the efforts they took in the preparation of the program.
Sam Hawley: Okay. And this is a judge only trial, so when do we expect a result?
Patrick Bell: It’s unclear exactly. Justice Michael Lee will almost certainly reserve his decision at the end of these few weeks, but there will be a lot of pressure on justice Lee to come to a decision, because Mr. Lehrmann’s lawyers told the court earlier last week he was seeking vindication through this case, given the criminal trial was aborted. So whatever Justice Lee decides is bound to have huge ramifications for everyone involved.
Sam Hawley: Patrick Bill is an ABC reporter based in Canberra. This episode was produced by Bridget Fitzgerald, Nell Whitehead and Anna John, who also did the mix. Our supervising producer is David Coady. Over the weekend, catch the latest episode of If You’re Listening, Matt Bevan looks at the chaos at OpenAI and what it means for the future of artificial intelligence. I am Sam Hawley. ABC News Daily will be back again on Monday. Thanks for listening.
