Bruce Lehrmann defamation trial LIVE BLOG: Lawyer details TWO theories for why Brittany Higgins took off her dress and was found lying naked on the couch at Parliament House

Bruce Lehrmann’s lawyer Steven Whybrow SC told the court that Brittany Higgins told a litany of lies to her loved ones, her boss, police, and to Lisa Wilkinson about her alleged rape.

The court previously heard Ms Higgins lied to police about going to a doctor after her alleged rape.

In his closing submissions, Mr Whybrow said Ms Higgins also lied to Lisa Wilkinson and Network Ten producer Angus Llewellyn about a bruise on her leg which she claimed was a result of Mr Lehrmann raping her.

She signed a legally binding statutory declaration stating the bruise was taken on April 3, 2019, 10 days after the alleged assault – but there was no metadata to suggest the image was taken prior to 2021.

He said: ‘She has told untruths in the draft of [her] book, she prepared pursuant and contrary to contractual obligations to tell the truth.

‘We submit that page is a tissue of lies – a tissue of lies.’

He said the reason her story was commercially viable was ‘because of the way it developed’.

‘Whilst giving evidence under oath during Mr Lehrmann’s [criminal] trial, she, in my submission, you will find, told deliberate untruths.’

Mr Whybrow said her speech outside the ACT Supreme Court in October last year, after the jury in Mr Lehrmann’s criminal trial was dismissed, didn’t blow the trial up.

However, he said ‘it certainly made sure that [it] would be very difficult for Mr Lehrmann to get any presumption of innocence, into the future’.

Justice Lee said an incontrovertible fact of the case is that Brittany Higgins was naked when she woke up in Linda Reynolds’ office after the alleged assault.

‘It’s a tad odd, separated from the notion of someone who has had sex, that they just sort of decide to take their clothes off and lie down for no apparent reason,’ he said.

Bruce Lehrmann’s barrister said she may have taken her clothes off and lay down on the couch because she thought Mr Lehrmann was going to have sex with her.

‘Or because it was her favourite dress,’ he said.

Ms Higgins previously told the court the white Kookai cocktail outfit was her favourite dress.

Mr Whybrow then pointed to the texts Ms Higgins sent Ben Dillaway over that weekend, where she appeared to shrug off the fact that she drank a lot and ended up back at Parliament House on March 23, 2019.

In her draft book, tentatively titled #NotJustADaughter, Ms Higgins said she got up that morning, took a jacket from a charity box, and caught the lift down to security before leaving the building.

The book was drafted in April 2021 – two years after the fact.

He said she didn’t actually do that at all – she didn’t catch the lift, but walked down about 60 stairs with vomit stains on her dress.

Bizarre scenes in court on Friday when a well-dressed member of the public scolded an elderly woman for using her phone during court proceedings.

Various members of the public turn up in court each day to watch our legal system in action.

They’re typically pension-aged, but they generally don’t interrupt things. Until today.

After scolding a very confused woman in the front row, she picked up her bag, stormed to the back of the court and sat down – before she briefly whipped out her own phone.

The faint sound of bagpipes could be heard, though no one could work out where it was coming from.

A few people looked around discreetly, but Mr Whybrow was still delivering his closing submissions and Justice Lee didn’t appear to have noticed, so independent investigations ended quite quickly.

When the woman started stomping her foot, it became clear that the bagpipes were coming from her phone – which was tucked away in her bag.

This went on for about five minutes before Justice Lee announced the court would adjourn for lunch.

Everyone stood while he left the room, but the woman couldn’t wait to leave.

She tried to exit the back row, shouted ‘excuse me’ at a journalist who was in her way, and stormed out of the courtroom.

Once the judge had left the room, one solicitor asked his colleague: ‘Could you hear bagpipes?’

Sue Chrysanthou said, ‘That was weird’.

Lisa Wilkinson asked: ‘Was that Bruce’s mum?’

Mr Lehrmann was quick to dispel rumours that the woman was his mother.

The elderly woman, who had been scolded just moments prior, addressed the room: ‘Am I allowed to use my phone in court?’

Bruce Lehrmann’s barrister Steven Whybrow SC told the court Brittany Higgins wanted to see the CCTV of the moment she and Mr Lehrmann entered Parliament House because she couldn’t remember what actually happened.

They entered the building at about 1.30am after a long drinking session at The Dock hotel in Canberra and nightclub 88mph.

‘She has these gaps from a long day of drinking,’ he said.

Mr Whybrow said she needed to fill in the gaps from the night that she didn’t remember, and wanted to fill in the blanks with security footage.

‘She just makes stuff which is totally wrong and she has an obsession with seeing the CCTV,’ he said.

He pointed to a section earlier in the trial when Justice Lee said police investigators don’t show alleged victims CCTV because it changes their memory.

Bruce Lehrmann’s barrister Steven Whybrow SC has suggested that Brittany Higgins lied to her boss about being raped because she was worried she would lose her job.

He said she was found in a state of undress in Parliament House after she entered the building with Mr Lehrmann in the early hours of March 23, 2019, and was likely very embarrassed.

Mr Lehrmann was fired over it on March 26, and Mr Whybrow said Ms Higgins was probably also afraid she would lose a position she previously described as her ‘dream job’.

‘It’s not a binary position that to make a false allegation is a monstrous thing,’ Mr Whybrow said.

‘She comes to the genesis of an allegation which would be monstrous if pursued, but there may be some merit in saying “Bruce is gone” and give an alternative to ensure your job isn’t necessarily at threat.’

Justice Lee interjected: ‘Does that mean that what she was doing was to make, and then withdraw, the complaint?

‘And that’s why she shut it down in 2019 and it was only reactivated for reasons I don’t need to concern myself with in this section.’

Justice Lee said: ‘She’s putting out bread crumbs.’

Mr Whybrow said: ‘At this stage, and for some period of time, she has no intention to make a false complaint – it’s simply unethical and a bit dishonest.’

Justice Lee suggested Ms Higgins’ behaviour could also be consistent with someone who was working though a problem – battling a decision about whether to report the matter versus not wanting to be known as an alleged rape victim.

Bruce Lehrmann’s barrister Steven Whybrow SC has apologised to the court for mispronouncing the name of Lisa Wilkinson’s baririster, Sue Chrysanthou SC.

During the morning tea break, she said: ‘Steve, it’s Chrysanth-oo – it rhymes with Sue.’

When court resumed he apologised, in jest, for pronouncing her name ‘Chrysanth-ou’.

Justice Lee informed her that he had been using both pronunciations interchangeably.

Bruce Lehrmann’s barrister Steven Whybrow SC has lashed out at Brittany Higgins’ evidence about her $2.4million claim against the Commonwealth.

When Ms Higgins was on the witness stand, she told Justice Lee the Commonwealth admitted liability when it settled with her.

However, the deed clearly says the Commonwealth did not admit liability.

‘We had extraordinary evidence about her settlement … She also threw in there that the Commonwealth admitted liability but that was patently false,’ he said.

He also pointed to Ms Higgins claim, as outlined in the deed, that her former boss Fiona Brown ‘prevented’ her from taking leave for her mental health after the alleged rape, or from assisting police with the investigation.

Ms Brown strongly denies those claims.

He also pointed out that she deleted a message with her ex-boyfriend Ben Dillaway on April 9, 2019, which said she didn’t want to proceed with a police investigation.

She was referring to the CCTV footage of her entering Parliament House with Mr Lehrmann in the early hours of March 23, 2019 – telling Mr Dillaway she had requested to see the footage, but was denied access.

The court previously heard the CCTV was not provided because there was no active police investigation at the time.

Ms Higgins wrote: ‘I’m not interested in pursuing it but it’s all beyond strange.’

Mr Whybrow said he hadn’t been able to work out why she kept thousands of texts with Mr Dillaway, except that one.

Bruce Lehrmann’s barrister Steven Whybrow SC said Brittany Higgins’ texts with Ben Dillaway is the ‘Rosetta stone’ in her evidence.

The texts begin at about 7.45am on March 23, 2019 – the morning after the alleged assault – and end about two months later, in April of that year.

Ms Higgins and Mr Dillaway exchanged thousands of texts within that period and show that she didn’t explicitly make a rape complaint until the following week.

Justice Lee said the exhibit ‘seems to be quite important’.

Mr Whybrow described those texts, along with her former boss Fiona Brown’s notes, as the ‘Rosetta stone’ of evidence.

The judge said ‘it does seem to be that those are representations are nothing other than one would expect for a young woman who suffered something’.

Mr Whybrow said: ‘And, with respect, I will contend strenuously there is an explanation to all these things.’

Bruce Lehrmann’s barrister Steven Whybrow SC said it’s clear from the CCTV at The Dock hotel that Bruce Lehrmann did not ply Brittany Higgins with drinks.

An argument by Network Ten’s lawyers was that Ms Higgins was plied with drinks by Mr Lehrmann on the night of the alleged rape.

The security footage showed Mr Lehrmann bought Ms Higgins two of the eight drinks she had that night.

At one point, Mr Lehrmann could be seen ‘lining’ three drinks up in front of her.

However, Mr Whybrow said it was clear from the footage that the drinks were hers and he was only moving them towards her to be friendly.

‘One can see from the body language of Ms Higgins that she touched Mr Lehrmann lightly on the shoulder,’ Mr Whybrow said.

‘Rather than some evil against-her-will-plying one can see from this … it’s just an innocuous social exchange,’ he said.

‘This is an example of how lies, damned lies and CCTV can affect [people] if one only looks out of context at something that Mr Lehrmann did.’

He said it was not accurate to say that Mr Lehrmann tried to spend all his time with Ms Higgins that night, or that he was plying her with drinks, or keeping an eye on her – as outlined in her $2.4million statement of claim.

‘All of those things that are put as significant credit issues against him,’ Mr Whybrow said.

He also pointed out that Mr Lehrmann was clearly drinking that night, in spite of the fact that Ms Higgins said he wasn’t in her claim against the Commonwealth.

Bruce Lehrmann’s barrister Steven Whybrow SC told the court ‘CCTV can say anything you want it to’.

He played the security footage of Brittany Higgins and Mr Lehrmann at The Dock hotel in Canberra on March 22, 2019 – on the night of the alleged assault.

The footage clearly shows Ms Higgins standing at a table with Mr Lehrmann and other colleagues, when she takes a photo of a cocktail.

Mr Whybrow told the court thousands of photos were extracted from Ms Higgins’ phone in the lead-up to the criminal trial last year, but the photo of the cocktail was not found.

Nor were any other photos from that night.

Police told her not to delete any photos.

‘Ms Higgins is clearly taking a photo of that cocktail and she was asked not to delete photos from her phone,’ he said.

Bruce Lehrmann’s barrister Steven Whybrow SC started delivering his closing submissions on Friday morning.

He slammed Lisa Wilkinson, Ms Higgins’ best friend Emma Webster and her fiancé David Sharaz for failing to tell the former staffer to go to the police with her rape allegation, rather than litigating it through the media.

‘Oh, if she had taken the advice of police not to litigate this through the media,’ Mr Whybrow said.

‘Oh, if only the people around her, like Sharaz, Webster, Wilkinson and politicians.

‘If only they had said “Brittany, this is an important story but you should go to the police, this story can wait, let us deal with the allegations against Mr Lehrmann and you can deal with your story down the track”.’

He said if that had happened, ‘we wouldn’t be here’.

‘We wouldn’t have had what appears to be a virus of madness that spread where subjudice went out the window – where the rights of the individual ceased to exist.’

He also slammed everyone who gave Ms Higgins a platform to speak about her rape allegations, before Mr Lehrmann had even been charged.

Ms Higgins addressed a crowd of thousands at the March4Justice women’s march outside Parliament House in March 2021 and said she was raped in the building, before her allegations were tried before a court.

She was also given a platform to speak at the National Press Club in January 2022, during which she referred to ‘my rapist’, while standing next to Grace Tame, who is a proven victim of sexual assault.

Mr Whybrow said she was lauded for her bravery at the National Press Club, adding that her ‘allegations had not been tested and the only inference is that they don’t need to be’.

‘How dare we have due process or the presumption of innocence before Mr Lehrmann had even been spoken to by the police, the complainant is making a serious allegation [that] is publicly broadcast that she was raped,’ he said.

‘Anybody trying to provide a counter narrative to that story is shouted down as some sort of rape apologist or anti woman or a misogynist.’

Justice Lee could make three findings at the end of Bruce Lehrmann’s defamation trial.

He could find that Mr Lehrmann did rape Brittany Higgins, and was therefore not defamed by Lisa Wilkinson and Network Ten.

The judge could find that Mr Lehrmann did not rape Ms Higgins, which would mean he was defamed and would likely be awarded damages.

Justice Lee could also find that there isn’t enough evidence one way or the other, which means it can’t be determined whether Ms Higgins was raped or not.

If that’s the outcome, Mr Lehrmann would win the case because the allegations against him can’t be proven.

However, it could mean he walks away with nothing.

In court on Thursday, the network’s barrister Matthew Collins KC argued that Mr Lehrmann should not be awarded damages if the judge is not able to determine whether a rape took place.

Justice Lee said: ‘[If] the probabilities are so evenly matched … then the appropriate response in a circumstance like that must be to award no damages.’

Network Ten’s barrister Matthew Collins KC delivered a scathing argument against Bruce Lehrmann during closing submissions on Thursday.

He tied the current defamation trial into Mr Lehrmann’s criminal trial last year, arguing the former Liberal staffer did rape Brittany Higgins and knowingly lied to two courts.

Dr Collins explained that if Justice Lee did find a sexual act took place in Linda Reynolds’ office on March 23, 2019, the ‘monstrosity’ of lying about it it was made worse by the fact that he would have also lied about it in the criminal trial.

‘Because in the criminal trial not only was a knowingly false account put before the jury and allowed to go uncorrected, but counsel was – must have been instructed to cross-examine – on the basis of the lie,’ he told the court.

Justice Lee interrupted Dr Collins a few times to test the validity of his arguments – not because he agreed with them.

He said if Mr Lehrmann went back to Parliament House that night to have sex with Brittany Higgins, rather than to make notes on Question Time briefs like he said, ‘it would be monstrous to run a defamation case on the premise that you have told a really black lie’.

Mr Lehrmann will win the defamation case if the judge either finds that he did not rape Ms Higgins, on a balance of probabilities, or if he is unable to determine whether a rape happened or not.

It was argued that if the judge is not able to work out whether a rape took place, Mr Lehrman would win the case but should not be awarded damages.

Justice Lee said: ‘[If] the probabilities are so evenly matched … then the appropriate response in a circumstance like that must be to award no damages.’

On Friday, Mr Lehrmann’s barristers will deliver their closing arguments for the case.

Brittany Higgins her fiancé David Sharaz have arrived at their new French chateau after leaving Australia behind with a multimillion-dollar payout.

The couple stepped out of a dark-coloured Volvo at their sprawling five-bedroom chateau on the outskirts of Lunas – a sleepy village in the south of France with a population of just 600 people – on Thursday.

They were wearing matching beige trench coats for the gloomy winter weather after travelling from the 4.5-star Sheraton Bordeaux Airport hotel.

The couple was later spotted walking hand-in-hand as they headed to WFS Bordeaux where they reunited with their beloved cavoodle Kingston.

The property, which has a massive pool and a gazebo for entertaining, is surrounded by protective hedges and a large iron gate, and is estimated to be worth about AU$600,000.

Bruce Lehrmann is suing Lisa Wilkinson and Network Ten in the Federal Court over her 2021 interview with Brittany Higgins in which she alleged he raped her in Parliament House in 2019.

He was not named, but claims friends and former colleagues were able to identify him as the alleged rapist.

He has continually maintained his innocence.

Closing submissions began on Thursday and will continue on Friday.

If submissions have not finished by the end of the day, another date will be set in late January or early February.