Australia | Lehrmann prepares to take the stand
Having previously pledged to “light some fires”, Bruce Lehrmann is preparing to go where he never went during his rape trial: the witness box.
And for the first time, he will be cross-examined on the night in question.
During a defamation trial that is being billed as a “de facto rape case”, Mr Lehrmann is preparing to once again face his accuser, Brittany Higgins, with Justice Michael Lee to determine the outcome.
Twenty-nine witnesses were called to give evidence during the criminal trial in the ACT Supreme Court. But as is customary, they did not include the accused.
Mr Lehrmann pleaded not guilty to a charge of sexual intercourse without consent before the trial collapsed as a result of juror misconduct.
He chose not to give evidence, although he did speak to police in 2021 and that interview was played to the jury.
One year ago, Chief Justice Lucy McCallum was careful to remind the jury that it should cast no aspersions based on Mr Lehrmann’s decision not to give oral evidence. It could not be used against him or used to help prove the prosecution’s case.
The accused rarely does take the stand in sexual assault matters. It is up to the prosecution to prove the case beyond reasonable doubt. There is no requirement for the accused to submit to cross examination.
But in making the choice to sue Channel Ten for defamation in the Federal Court, Mr Lehrmann has agreed to give evidence.
He has already briefly taken the witness stand in an early skirmish during the defamation trial over the decision to extend the time period on when he could sue for defamation.
But that did not include any cross examination of the substantive matter: the night in question.
Unless the matter is settled by the parties after the opening arguments, this time the cross examination will include that night.
He will be cross-examined by a legal team led by some of Australia’s top defamation lawyers: Matt Collins KC for Channel Ten and Sue Chrysthanthou, who is acting for Lisa Wilkinson.
It’s also likely that he will be probed on his dealings with Channel 7’s Spotlight program, and host Liam Bartlett, for its blockbuster television special. The Seven Network has insisted he was never paid for the interview.
Early revelations from the defamation case, including Channel Ten’s legal discovery of Bruce Lehrmann’s phone, have already proved dramatic.
In March, documents released by the Federal Court revealed Mr Lehrmann messaged friends asking “you got any gear?” and saying “need bags” on the night Brittany Higgins’ allegations of rape were first reported, suggesting to friends they “get lit”.
The texts were regarded as relevant to Mr Lehrmann’s bid to extend the usual 12-month time limit on defamation claims, a fight he won.
The long-awaited defamation trial is high stakes: it could result in a multimillion-dollar payout for the former Liberal staffer if he is successful.
Regardless of the outcome, it is likely to involve bruising cross-examinations of all of the combatants in this endless saga.
Mr Lehrmann, his accuser Brittany Higgins and Channel Ten’s Lisa Wilkinson and Angus Llewllyn, who worked on The Project’s 2021 interview with Ms Higgins, are all expected to be called as witnesses.
One year ago the former Director of Public Prosecutions Shane Drumgold abandoned a second trial, citing the strain on complainant Brittany Higgins’ mental health and saying it presented a “significant and unacceptable” risk to her life.
Now she is preparing to take the stand in a legal battle that will include none of the protections afforded to sexual assault complainants in rape trials.
The cross examination by Steve Whybrow SC, who was Mr Lehrmann’s barrister in the criminal trial, is expected to be tough and confronting for Ms Higgins.
It will canvass a range of matters, including private text messages that were ruled inadmissable or irrelevant during the trial.
Ms Higgins has been preparing for the cross examination with her own lawyer Nicholas Owens SC, who represented Nine in the Ben Roberts-Smith case.
He is also representing her in a separate defamation legal suit brought against Ms Higgins by her former employer, Liberal Senator Linda Reynolds.
The trial was hardly a picnic. In his final submissions to the court Mr Whybrow told the court that his case rested upon the fact that Ms Higgins did not know what happened after she entered Parliament House with Mr Lehrmann.
He told the jury that Ms Higgins said things in her evidence that were “totally and utterly inconsistent”, describing her as “unreliable”.
“In the kindest way to Ms Higgins, without findings of deceit or dishonesty or secondary gain or personal interest … just say ‘she doesn’t know’,” he told the jury.
“She doesn’t know what happened. We can’t be satisfied beyond a reasonable doubt that she knows what happened.
“Our contention is that it didn’t. There was no sex. It didn’t happen.”
The second round of cross examination by Mr Whybrow – or more accurately the third bout if you count Ms Higgins’ hospitalisation during the first trial – is expected to be a brutal affair.
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