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Bruce Lehrmann’s defamation case against Network Ten has been defined by an inability to recall key details and testimony that is contradicted by other evidence. By Rick Morton.

‘You didn’t look nervous, Mr Lehrmann. You look very keen to tell a lie...’

Bruce Lehrmann arrives at the Federal Court in Sydney on Thursday.
Bruce Lehrmann arrives at the Federal Court in Sydney on Thursday.
Credit: AAP Image / Dean Lewins

During an interview on the Channel 7 program Spotlight this year, former political staffer Bruce Lehrmann lied about why he lied to his boss over his reason for returning to Parliament House with Brittany Higgins in March 2019.

The Seven Network then lied about its interview with Lehrmann – for which it would pay him $130,000 in rent – both to the public and to the Walkley Foundation that shortlisted it for excellence.

This is a small episode in Bruce Lehrmann’s defamation trial against Network Ten and presenter Lisa Wilkinson, but it illustrates a larger point: that lies are fissiparous, like bacteria in laboratory cultures, and one soon becomes two, then four, then eight and 16.

Lehrmann told Channel 7 Spotlight reporter Liam Bartlett he lied to his chief of staff Fiona Brown about the security breach at Parliament House because she had already warned him over an earlier document breach, which she didn’t know about at the time. The admission was another opening for Network Ten’s counsel, Matthew Collins, KC, to attack.

“You recollect giving a completely false account of what had occurred on Spotlight,” Collins said.

“Will it assist if I show you what you said on Spotlight?”

Lehrmann was almost sheepish in response.

“Oh no,” he said. “I recall what I said.”

Even so, as Lehrmann struggled to accept what it was he had said not six months ago, the tape had to be played.

“That interview was hastily arranged,” Lehrmann said in response.

“It was a very nerve-racking time for me appearing on national television.”

Collins was unimpressed. “You didn’t look nervous, Mr Lehrmann,” he said. “You look very keen to tell a lie about what had happened in the meeting.”

Lehrmann has always strenuously denied the allegation that he raped his colleague, Brittany Higgins, in the Parliament House offices of then defence industry minister Senator Linda Reynolds. The criminal trial arising from the charge was abandoned due to juror misconduct late last year and the prosecution was then dropped out of concern for Higgins’s health. A subsequent inquiry into the handling of that prosecution, led by former Queensland Supreme Court justice Walter Sofronoff, ended in scandal after torpedoing the career of the then ACT director of public prosecutions, Shane Drumgold, SC.

Lehrmann, through various avenues, has struggled so much with recall that he has changed his story within days of giving evidence in his own defamation trial. Many of these difficulties stem from the changing account of why he decided to go back to Parliament House at 1.48am with Brittany Higgins after a night of drinking at Canberra bars The Dock and 88mph on March 22, 2019.

He told parliamentary security, via intercom at the ministerial wing, that he was there on official business. There are recordings of this. He told Reynolds’ chief of staff, Fiona Brown, he had only come back to drink whisky. He told the Australian Federal Police, however, there was no alcohol in his office, even though there was. He did not correct this error afterwards, including at the criminal trial. Lehrmann has also claimed he went to collect his house keys.

In another version, he claimed he actually did go back to do work and that he needed to mark-up Question Time briefs because he had heard politically significant information about the French submarine contract while drinking that night. Lehrmann was evasive when Collins asked whether he had bothered to mention this to Brown during their second meeting on March 26, 2019.

“I just can’t confirm if I did or didn’t,” he said.

Days earlier, however – on Thursday, November 23 – Lehrmann told his own counsel, Steven Whybrow, SC, that he didn’t mention these briefs because he was worried Brown would take this as an even more serious breach of security than simply coming back to drink whisky.

“How is it,” Collins asked during cross-examination, “you’re able to give definite evidence to His Honour last week, last Thursday, about the same matter I’m telling you about this morning, and this morning your evidence is you’ve got no recollection?”

Lehrmann responded: “Because I’m reflecting on the tone of Miss Brown in that meeting.”

Bruce Lehrmann has admitted to lying to his chief of staff and separately to his minister, Linda Reynolds. He has lied to the AFP and given conflicting evidence at this defamation trial and his criminal trial.

Last Friday, he claimed he did not buy Brittany Higgins a drink on the night of March 22, 2019. He was quickly taken to CCTV footage showing that he did, in fact, buy drinks for his colleague. On what credit card, or by what means, he cannot now say. Nor can Lehrmann say who told him the extremely sensitive information about the French submarine contract.

“I want you to tell His Honour what information you learned at The Dock and 88mph that was so important that it needed to be jotted down between 1.48 and 2.30am, while you’re inebriated, in Parliament House on the 23rd of March, 2019,” Collins said.

The witness could not say, except that perhaps it had something to do with construction moving from South Australia to Linda Reynolds’ home state of Western Australia.

He maintains, still, that he doesn’t recall his boss giving him a direct request to see her on his way out of Parliament House, after being told to pack his things less than half an hour earlier.

“What I want to suggest to you, Mr Lehrmann, is that you know very well that you were the first person to be summoned by Ms Brown on the 26th of March, 2019, to give an account of what had happened on the Saturday morning,” Collins said.

“I suggest to you that you feared that Ms Brown was going to speak to Ms Higgins, very shortly after you had been told to pack your things and leave. You feared, I’m suggesting to you, that Ms Higgins would tell Ms Brown that you had sexually assaulted her.”

Lehrmann said that was “ridiculous” because he didn’t actually know who Fiona Brown had spoken to at that point. Still, he missed two calls from his boss – he had not yet been terminated – at 1.09pm and 1.11pm and then texted back requesting correspondence be done in writing, over email.

Brown made several more attempts to contact Lehrmann and set up a face-to-face meeting with him to discuss his employment, which she booked for 10am on April 4, 2019. He texted that morning that he was “not in Canberra” and was dealing with a “sensitive family issue”.

Lehrmann, on the stand, could not say where he actually was. The back and forth led to some of the more spatially bizarre moments in a trial already concerned with who was where and when.

The family issue related to the health of his Queensland-based mother, but Lehrmann said: “I don’t recall being in Queensland. I do recall not being within the bounds of Canberra.”

He later offered the possibility that he was helping his girlfriend move her belongings to Sydney. As things deteriorated, Justice Michael Lee attempted to nudge Lehrmann towards a better memory of the occasion, given Lehrmann had admitted to remembering sending the text but not where he was when he sent it.

“Can you just tell me whether or not, having looked at that text, you were in Canberra or not in Canberra at the time that text was sent,” Justice Lee said.

Lehrmann said he could not say. “Oh, I’m sorry, your Honour. I can’t remember back then. The plan would have been not to have been in Canberra as I was, would have been, moving belongings to Sydney, thereby subsequently not being in Canberra.”

He could have been on the outskirts, for example, refuelling the car. Lehrmann was later shown text messages from his mother just days earlier, on March 31, which began with: “Did you make it back to Canberra OK?”

Lehrmann later accepted that on April 3, the day before his scheduled meeting with Brown, he was in Canberra; but he said he still couldn’t be sure where he was on April 4, when the meeting was to take place.

In the same 24-hour period, Reynolds had formally written to Lehrmann, sent via Brown to his personal Hotmail account, advising him that she intended to terminate his employment unless he was able to respond satisfactorily to her concerns regarding his “serious misconduct”.

With a deadline of less than a day, Lehrmann emailed the next morning a grovelling apology to both Brown and Senator Reynolds. He did so while “refuting”, in another admitted lie, the circumstances in which the security breach happened.

This Hotmail address is the exact personal email address used by Network Ten’s The Project producer Angus Llewellyn to put a series of detailed allegations to Lehrmann on February 12, 2021, at 2.46pm. Lehrmann says he didn’t see this email until he checked his spam folder a week after the program aired.

The program, the subject of this defamation proceeding, did not name Bruce Lehrmann as the subject of Higgins’s rape allegation. The Higgins story was broken online by news.com.au journalist Samantha Maiden about 8am on February 15, 2021, in advance of The Project airing that evening. In court, Lehrman gave what Collins called “a completely irreconcilable answer” to questions about whether he thought he could identify himself in that story. By one account he didn’t know it was about him. By another, in now-settled defamation proceedings against NewsLifeMedia, he argued it was immediately obvious.

Lehrmann spent the rest of that day taking counsel from friendly advisers. He was concerned he would be named by The Project, which he knew would be airing its interview that evening. Two casual advisers gave the same unequivocal advice: do not talk to the media. Lehrmann agreed during cross-examination that he was told he should make no attempt to contact Channel 10 but later denied this.

“Well, I must have been mistaken,” he said. “It was broad advice from, from those few people…”

Lehrmann watched the episode that night in relief: he was not named. After it aired, he appeared to have asked around for cocaine and, based on text messages, stayed out until 6.30am. He gave evidence that he thought he had close friends come over for some drinks instead.

By the time Brittany Higgins was called to give evidence this week, the core details of the night of March 22, 2019, were already on the record. She offered further detail: that Bruce Lehrmann attempted to kiss her while waiting for a rideshare and, crucially, that she remembers waking up in Parliament House with Lehrmann on top of her, raping her, and close to climax.

Under cross-examination by Steven Whybrow, Higgins was told: “What I want to suggest to you, Ms Higgins, is that as you find out further information you adapt and evolve your narrative to fit the new information. Do you agree with that?”

“No,” she said. “But I accept where I am wrong and try to apply it in every weird circumstance I end up in to give the most honest answer I can.”

Under cross-examination she said: “I thought I was telling the truth. I was just not always correct, but I was always doing my best.”

Whybrow pressed Higgins on whether she really spent three hours locked in a bathroom having a panic attack on April 4, 2019, the day of Steven Ciobo’s valedictory speech, and whether the photograph of a bruise on her leg was a “recent invention”.

“Do you want a third go with why and when you had an anxiety attack on that day,” Whybrow asked.

Higgins was contrite. “I can’t remember every moment of every day,” she said. “I’m doing my best here.”

Later on Thursday, Higgins met the full intensity of the Whybrow counterattack for a second time since he questioned her during the criminal trial. Whybrow accused Higgins of making up the sexual assault to protect her job, of lying to the police and giving false statements in her own criminal matter.

While she conceded she lied to police about seeing a doctor after the alleged assault, she did so because she was “embarrassed” and “traumatised”. Similarly, she said she did not remember whether she was fully naked or her dress was bunched up around her abdomen on the morning of the assault.

“As I was being raped, it wasn’t my primary concern where my dress was… I was deeply more concerned about the penis in my vagina that I didn’t want than I was about my dress,” she said.

“I realised that in those moments of trauma, my memory wasn’t perfect.”

A day earlier, Higgins cried as she was asked to recount the events of March 22. She was asked to write an “H” where her head was and an “L” where each of her legs were on a diagram of the couch where the alleged rape took place. As she did, her hands shook. It was a violent, uncontrolled shake.

Higgins was unable to sign herself in to Parliament House that night. She was too intoxicated to complete the form.

This week, signs were put up at the building to reflect a change in policy: “MoPS Act staff, volunteers, Departmental Liaison Officers and sponsored pass holders are required to complete an After-hours Access Form when accessing building entry points between 11pm and 5am daily.”

The defamation trial continues.

This article was first published in the print edition of The Saturday Paper on December 2, 2023 as "‘You didn’t look nervous, Mr Lehrmann. You look very keen to tell a lie...’".

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