What we heard today
Today we heard closing arguments from Network Ten’s barrister, Matt Collins SC, and Wilkinson’s barrister, Sue Chrysanthou SC.
A recap: Bruce Lehrmann is suing Network Ten and Lisa Wilkinson for defamation over an interview with Higgins broadcast on The Project and online which did not name him but alleged she had been raped by a Liberal staffer in March 2019.
Lehrmann has denied raping Brittany Higgins and pleaded not guilty to a charge of sexual intercourse without consent. His criminal trial was abandoned due to juror misconduct and the second did not proceed due to prosecutors’ fears for Higgins’ mental health.
Here’s what we heard:
Collins told the court he would show Lehrmann was “revealed to be a fundamentally dishonest man who was prepared to say or do anything he perceived to advance his interests”. He said if Justice Lee was persuaded there was sexual intercourse in Parliament House that night “then what has happened in this trial is monstrous – absolutely monstrous” as Lehrmann brought a defamation case on a “fundamentally false premise”.
Collins said Lehmann’s demeanour in the witness box was “combative and defensive” and Justice Lee should “approach the entirety of his evidence with extreme suspicion”.
Collins said one theory of the applicant that Higgins “monstrously fabricated a rape allegation in order to save her job” was “utterly incoherent for a number of reasons”.
Collins said that television is “transient” and the words said at the beginning of The Project story about there being a “roadblock” to reporting a rape should not be taken too literally.
Justice Lee has expressed his opinion on Lisa Wilkinson’s Logies speech, saying it “should have been obvious to anyone that that’s the sort of thing that shouldn’t be said eight days before a criminal trial starts”.
Chrysanthou said Wilkinson “had no decision-making power as to the final content of the broadcast”.
Chrysanthou has said the way Lehrmann chose to approach Brittany Higgins’ allegations by “denying sex” occurred made the case “so much more antagonistic”.
Chrysanthou has said there “can’t be any doubt in anyone’s mind that there was sex”, adding: “the only issue that would trouble your honour, having regard to the unsatisfactory state of the evidence by both persons, is the consent issue”.
Chrysanthou questioned why Lehrmann took 40 minutes to write briefing notes while in parliament on the night of the alleged rape, and claimed he was “ignoring the phone calls from his girlfriend because he was having sex with Ms Higgins”.
The trial will resume tomorrow when Lehrmann’s lawyer is expected to give closing arguments.
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Wilkinson’s lawyer questions why Higgins was found naked if no sex had occurred
Chrysanthou has questioned – given the evidence that Higgins was found naked in Parliament House – if Higgins and Lehrmann didn’t have sex, “why was she naked?”
“I haven’t checked the weather for that day, but unless there was some sort of freak heatwave in Canberra at the end of March and the air conditioning wasn’t working well in Parliament House, it just seems unusual that she had had no clothes on, and on balance, your honour would be satisfied that there was sex that occurred,” Chrysanthou.
Chrysanthou has also pointed out that, contrary to what Lehrmann told the police, Fiona Brown’s affidavit shows that Lehrmann told Brown he had “chatted” to Higgins before he left.
“Contrary to the evidence he’s given to your honour and contrary to what he told the police, he did have interaction with Ms Higgins according to those admissions and did see her before he left. Whereas his evidence is he went left, she went right. He never saw her again. So on his own evidence that’s used on his behalf in the trial, that’s not true,” Chrysanthou said.
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Lehrmann ‘ignoring the phone calls from his girlfriend because he was having sex with Ms Higgins’, Wilkinson’s lawyer claims
Chrysanthou has questioned why it took Lehrmann 40-minutes to write the briefing notes while in parliament on the night of the alleged rape.
“Why did it take him 40 minutes to write the submarine notes? I mean, he couldn’t remember what it was that was so important. What was it? That took 40 minutes to write down?” Chrysanthou said.
Chrysanthou alleges Lehrmann lied about missing “five or six” phone calls from his girlfriend during those 40 minutes because his phone was “on silent”.
“[That] is hard to accept having regard to the attachment he clearly had to his phone as seen from all the footage, so we say that’s another lie, that he was ignoring the phone calls from his girlfriend because he was having sex with Ms Higgins,” Chrysanthou said.
Chrysanthou also raises Lehrmann’s admission in court that he told security his reasons for entering parliament house on the night of the alleged rape, but the real reason he needed to get in was to collect his house keys.
“The notion that it was more complicated to get into his apartment complex than it was to get through security of Parliament House, having to lie and go through all the processes with a drunk Ms Higgins tagging along just seems incredible,” she said.
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‘No other rational reason’ for Lehrmann to go to Parliament House other than to have sex with Higgins, Wilkinson’s lawyer says
Chrysanthou has told the court it should find that “the applicant’s intention in travelling to Parliament House was to have sex with Ms Higgins”.
“There’s no other rational reason for them to go there. On balance, and your honour would be satisfied, that was his purpose,” she said.
“It’s also possible, given the evidence one has heard from an objective perspective as to Ms Higgins’ conduct and the fact that she clearly was very intoxicated, that could have been her intent as well at that point.
“She doesn’t remember and arguably is too intoxicated to have formed a proper or rational … decisions, but in her intoxicated state that could have been her intent.”
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Wilkinson’s lawyer: ‘can’t be any doubt in anyone’s mind that there was sex’
Chrysanthou has said “one has to wonder if this Mr Lehrmann is just a compulsive liar” after pointing to instances where Lehrmann allegedly “lied”, including about the reason that he had entered Parliament House on the night of the alleged rape.
“One has to wonder if this Mr Lehrmann is just a compulsive liar, which doesn’t help us because a compulsive liar doesn’t have consciousness of guilt, they just lie, or whether the lies that have been told were directed to covering up the fact that he had sex with Ms Higgins,” Chrysanthou said.
Chrysanthou has said there “can’t be any doubt in anyone’s mind that there was sex”.
“The only issue that would trouble your honour, having regard to the unsatisfactory state of the evidence by both persons, is the consent issue.”
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Lehrmann’s denial any sex took place made case ‘so much more antagonistic’, Wilkinson’s lawyer says
Chrysanthou has said the way Lehrmann chose to approach Brittany Higgins’ allegations by “denying sex” occurred made the case “so much more antagonistic”.
She said disputes about sexual assault “occur a lot, particularly amongst young people and particularly where drugs and alcohol are involved”.
“There’s a certain level of understanding by some people, at least, that can happen, and there can be two innocent parties in that circumstance, depending on each other’s state of mind,” Chrysanthou has told the court. “But the way that Mr Lehrmann chose to approach it, by denying sex, made it so much more antagonistic.
“But also from the perspective of the attacks that have been made on Ms Higgins, that really, she’s being accused of just plainly making up the whole thing.”
Chrysanthou said there was never any hesitation from Higgins that a sexual act had occurred as shown in early text messages. “The only hesitation she has is … what happened? Did he misunderstand?”
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Wilkinson’s lawyer asked to justify claims in Project broadcast about political cover-up of alleged rape
Justice Lee is asking Chrysanthou to justify the claims in the Project broadcast about a so-called political cover-up of the alleged rape and claims that the CCTV tapes from Parliament House were not made readily available to Higgins.
Lee said the whole piece “is pregnant with the notion that there were people … who engaged in a course of conduct to prevent her from reporting this allegation to police”.
Chrysanthou, who is making an argument for a qualified privilege defence, is referring to the introduction of the Project which began with the line about “roadblocks to the police investigation”.
Justice Lee: “The question is what actually was conveyed [by the Project] and what insinuations were conveyed? Having regard to taking the piece as a whole, and what the ordinary average reader would have drawn from it.”
Chrysanthou said the two journalists believed Higgins’ allegations and it was reasonable to do so.
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Wilkinson had ‘no decision-making power as to final content of the broadcast’, lawyer claims
Chrysanthou is now presenting her submissions on Wilkinson’s liability, which she says is different to Ten’s.
The barrister was hired by Wilkinson to represent her interests separately. She said Wilkinson was the first person Higgins and her fiance, David Sharaz, contacted at Ten but after that she had little knowledge of the communications about the program.
“I think about 80 to 90% of the material she’s not copied into,” Chrysanthou said.
“… on the most part, her suggestions were not taken up by the producers. So she had no decision-making power as to the final content of the broadcast. And in fact, the documents show that the script was being amended past 5 or 6pm.
“And she had nothing to do with that, not copied into those emails.”
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Higgins made no allegation of sexual assault, Brown claims in affidavit
Fiona Brown’s redacted affidavit has been published on the federal court’s website.
Brown repeats the evidence she gave in the witness box that Higgins made no allegation of sexual assault in meetings with her.
“There was no reference in either meeting to an alleged sexual assault (or rape or any other consensual or non-consensual sexual conduct),” Brown said in the affidavit.
“… At no point during this meeting did Ms Higgins tell me or disclose or indicate in any way that she had been raped, sexually assaulted, or suffered any other kind of assault or inappropriate conduct.”
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Justice Lee says it ‘should have been obvious to anyone’ that Wilkinson’s Logies speech shouldn’t be said just before criminal trial
Justice Lee has expressed his opinion on Lisa Wilkinson’s Logies speech in which she referenced Higgins as a 26-year-old woman of “unwavering courage” before Lehrmann’s ACT criminal trial.
Lee said it “should have been obvious to anyone that that’s the sort of thing that shouldn’t be said eight days before a criminal trial starts”.
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Wilkinson’s barrister, Sue Chrysanthou SC, is now presenting her closing submissions.
She says her “fallback position” is that Justice Lee finds that sexual intercourse took place at a time when Lehrmann was in a relationship with his girlfriend, that he left Higgins there on her own and intoxicated, that he ignored the multiple telephone calls from his girlfriend and then ultimately that he lied about it.
Chrysanthou said an opportunity presented itself to him and he took it and he went to Parliament House because he couldn’t go home for that purpose.
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Lehrmann gave 'knowingly false evidence' to court, Ten's barrister says
The court is back from lunch and Collins is finishing up his submission.
He is now arguing that Justice Lee should award no damages to Lehrmann because he brought a defamation case that was an abuse of process based on a “monstrous” lie.
“In our submission Mr Lehrmann gave false evidence, knowingly false evidence, to the court about almost every significant integer of the event in respect of which he has sued,” Collins said.
“First [reason] is he allowed a false account of his conduct to go uncorrected by his counsel or the chief justice at the time of this criminal trial.”
Collins said Lehrmann also made baseless allegations against one of the witnesses, Lauren Gain, who was present on the night Higgins alleges she was raped.
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Fiona Brown considered Lehrmann ‘too immature’ to hold highly classified material
The affidavit of Fiona Brown, the former chief of staff to Linda Reynolds, has also been tendered and released publicly this afternoon.
In her affidavit, she says that Lehrmann was not a “favourite” of Reynolds and had annoyed other staff when they had moved into the new office after the minister was given the portfolio of defence industry.
She said she also had concerns about Lehrmann having “an ‘unusual’ interest and ‘fascination’ in ASIO and Home Affairs and would regularly be “name-dropping the first names of the ASIO Director-General and his Chief of Staff”. She said she considered that to be inappropriate and later, after an incident in which highly classified material was mishandled, she formed the opinion that “Mr Lehrmann was too immature to hold such highly classified material”.
Brown used her affidavit to also outline the extensive attempts she made to support Higgins, including offering to walk with her to and from police stationed at Parliament House.
She said she had felt unable to speak out to defend herself until the planned retrial against Lehrmann was aborted.
After the criminal trial had been delayed, then subsequently aborted, and there was to be no retrial, I felt free to finally start to talk publicly about what had happened to me along the way, including my mental health struggles in the aftermath of The Project broadcast. I had maintained my independence and silence for almost two years, in the interests of due process for both the complainant and defendant and the rule of law.
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Released documents show police ‘disappointed’ at DPS’s failure to respond to requests for information
Documents tendered in the Bruce Lehrmann defamation trial show the early frustrations of police as they tried to secure key documents from the Department of Parliamentary Services.
The documents show that in the weeks after the alleged rape, police based at parliament had to make “several verbal conversations and requests” to receive a copy of parliamentary security services’ incident report.
One officer said he was “disappointed” at DPS’s failure to respond.
He wrote:
Further to my several verbal conversations and requests pertaining to receiving a copy of the OPS/PSS Incident Report for the incident that occurred on 22/23 March in Minister Reynolds suite.
If I don’t receive a copy of this at your earliest convenience, noting it’s two weeks since it occurred, the AFP will have no choice but to start interviewing those involved in the incident, including those in senior OPS positions.
I’m disappointed that I have had to write now as another follow up to my requests of last week.
The documents also show that DPS had refused to hand police CCTV vision of the incident initially because of the lack of an active investigation.
The court has adjourned for lunch and is due to return at 2pm.
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AFP commissioner criticised DPS response to alleged incident, released documents show
A significant number of documents have been released to the public as the Lehrmann defamation trial moves through its closing stages.
One of those documents is a letter from Andrew Colvin, the then Australian federal police commissioner, strongly criticising the Department of Parliamentary Services (DPS) for its response to the incident.
The letter, tendered in court, slams the late notification of the AFP and criticises the cleaning of the room in which the alleged rape occurred. The letter acknowledges that DPS had not, at the stage of the cleaning, been notified of any allegation of a criminal offence.
Colvin wrote:
It remains unclear why the AFP wasn’t notified at the time of the incident. And I contend this is unacceptable. The AFP security controller at [parliament house] has been delegated primacy for security and incident management and AFP inclusion in an initial response to the incident could have resulted in earlier notification of an alleged criminal offence, more appropriate handling of the alleged victims’ welfare and better scene management. Another issue of concern relates to the length of time it took DPS to share the [parliamentary security services] incident report with the AFP.
The letter was written in September 2019, after Higgins’ initial complaint, which she subsequently asked to be paused. The letter has previously been reported by News.com.au but has not been seen more broadly.
The court has taken a short adjournment.
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Ten’s barrister says ‘roadblock’ comments on The Project should not be taken too literally
Collins said that television is “transient” and the words said at the beginning of The Project about there being a “roadblock” to reporting a rape should not be taken too literally.
“Viewers watch it only once,” Collins said. “They don’t pore over the transcript in the way that we do in the artificial way we do it in this courtroom.”
Collins is now taking Justice Lee over the evidence about the photograph of a bruise on Higgins’ leg which the court has heard has no metadata because it was a screenshot.
Higgins provided The Project with the photograph and Lehrmann’s legal team has been critical they did not ask to see the metadata.
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Wilkinson and The Project producer ‘discerned no inconsistencies’ in Higgins’ account of alleged rape, Ten’s barrister says
Collins is now taking Justice Lee to the matter of whether it was reasonable in the circumstances for The Project to publish the allegation of rape, which is Ten’s qualified privilege defence.
Wilkinson and Higgins heard the rape allegation from Higgins on two occasions: the five-hour meeting and the two-hour on-camera recording.
“In our written submissions, we’ve extracted what Ms Higgins said on each of those occasions. I won’t repeat it now but what both Mr Llewellyn and Ms Wilkinson said as did the other witnesses was that they discerned no inconsistencies between the account of the rape on those two occasions,” Collins said.
Both journalists are highly experienced and they believed Higgins’ allegation and they asked her to sign a statutory declaration attesting to her claim, Collins said.
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Ten’s barrister says network does not have to prove if Higgins had to choose between justice and her job
Collins said it is not the burden of Network Ten to establish that there “were in fact roadblocks to a police investigation, or that Ms Higgins in fact, had to choose between her career and the pursuit of justice”.
These were lines which were broadcast on The Project ahead of the interview with Higgins.
Collins said the cross-examination of Lisa Wilkinson and her producer Angus Llewellyn on those matters went to credit about whether it was reasonable of Ten to broadcast the rape allegation but they were not up to Ten to prove.
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Ten’s barrister says theory Higgins fabricated rape allegation to save her job is ‘utterly incoherent’
Collins said one theory of the applicant is that Higgins “monstrously fabricated a rape allegation in order to save her job”.
“That theory with respect to a friend is utterly incoherent for a number of reasons,” he said. “First, as your honour heard from Ms Brown just two days ago, Ms Higgins’ job was never at risk.”
The evidence against the applicant’s theory includes a text message Higgins sent to her friend Ben Dillaway which said “I don’t feel as though it could have been consensual”.
Another argument which disproves that theory is that Higgins said to departmental liason officer Christopher Payne that the sexual intercourse with Lehrmann “must have been like – excuse me – fucking a log”.
Collins said if Higgins fabricated the rape she committed the perfect crime because she kept her job and she worked on the election campaign.
“The government was unexpectedly re-elected and she got her dream job,” Collins said. “Why then, two years later, does she go to the media and reactivate a police complaint if the motive for fabricating the rape was to save her job?”
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Ten’s barrister says inconsistencies in Higgins’ evidence may be due to trauma
Collins said Higgins was “overwhelmed by emotion” at times and was pulled up by Justice Lee for making speeches in the witness box.
Collins said Higgins’ emotions were explicable because she has been called a liar “over many years”.
He is now taking Justice Lee to Higgins’ inconsistencies, which include whether her dress was off or around her waist.
He said her confusion about the dress was a mistake a “traumatised drunk person” may make.
Another “trivial” point – which he said the applicant made much of – was the apparent inconsistency about where Higgins found the box of Roses chocolates she ate when she woke up in Reynolds’ suite.
Collins: “Was it in the kitchen or was it on Mr [Christopher] Payne’s desk?”
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Ten’s barrister says Lehrmann’s evidence should be treated with ‘extreme suspicion’
Collins said Lehmann’s demeanour in the witness box was “combative and defensive” and Justice Lee should “approach the entirety of his evidence with extreme suspicion” and reject it unless there was corroborating evidence.
In contrast, Collins asked the judge to accept Higgins’ “powerful” account of what happened inside the ministerial suite and to find that sexual intercourse took place.
He said Lehrmann and Higgins were not “there to play Scrabble – there’s a limited universe of things that plausibly happened during that 40 minutes”.
“And even if your honour were in some doubt about the question of consent, we’d say your honour ought to feel an active persuasion, and having regard to facts … that sexual intercourse took place.”
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Collins says if Justice Lee was persuaded there was sexual intercourse in Parliament House that night “then what has happened in this trial is monstrous – absolutely monstrous”.
It was monstrous because Lehrmann brought a defamation case on a “fundamentally false premise” and “allowed the complainant to be cross-examined on that false premise over days freed from the constraints that might protect her in a criminal trial”, the barrister said on Thursday.
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Lehrmann lied to get into Parliament House, court hears
Three sets of slides set out the facts, the source of the facts (that is the evidence before the court) and then Lehrmann’s response.
One of the facts is that Higgins “had no reason to be going to Parliament House at two o’clock in the morning on Saturday 23 March 2019”.
“We invite your honour to reach that conclusion as a matter of obvious inference from the fact that she was a junior staffer who had been in the office for about three weeks as a junior media advisor,” Collins said.
Lehrmann has denied Higgins had no reason to go to the office.
Another fact, the court heard, was that Lehrmann lied to get into Parliament House and that he lied about having alcohol in his office.
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Ten’s barrister focuses on Lehrmann’s response to ‘objective evidence’
Collins is using slides to show the judge what he says are the facts of the case and Lehrmann’s response to them.
On the slides are: Lehrmann was attracted to Higgins, Lehrmann purchased two drinks for Higgins at The Dock venue, Lehrmann spent substantial time with Higgins at The Dock, Lehrmann encouraged Higgins to drink including to skoll a drink, Lehrmann touched and “pashed” Higgins at the 88mph venue.
Collins said Lehrmann had given more than one “bizarre denial in the face of the objective evidence on the CCTV footage”.
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Ten’s barrister says he will show court Lehrmann ‘a fundamentally dishonest man’
Network Ten’s barrister Matt Collins SC has begun with an outline of his defences, telling Justice Lee the detailed written submissions will be long.
Collins said “successful attacks” had been made in cross-examination on the credit of both Lehrmann and Higgins but “we would submit that the success of those attacks was qualitatively different”.
Collins told the court he would show that Lehrmann was “revealed to be a fundamentally dishonest man who was prepared to say or do anything he perceived to advance his interests”.
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Justice Lee orders Lehrmann’s legal team to upload Fiona Brown’s redacted affidavit
The Daily Mail and the Australian have published parts of Fiona Brown’s unredacted affidavit which are “highly critical” of Brittany Higgins, the federal court has heard.
Lisa Wilkinson’s barrister Sue Chrysanthou SC has told Justice Michael Lee it is inappropriate for parts of the unredacted affidavit – that were not part of the heard evidence – to be made public.
Chrysanthou:
More unsatisfactory is someone has given the unredacted version of the affidavit to the Daily Mail and the Australian and they have done articles attacking Ms Higgins on the basis of the final paragraph, most of which you will recall was not read, and I just wish to raise, your honour, the fact that it’s not a fair report of proceedings to be handed an affidavit, large portions of which were not read by my learned friend Mr Whybrow, and then to write articles about that material that was not in evidence.
Chrysanthou said the redacted affidavit had not yet been published by the court.
Lee has ordered Lehrmann’s legal team to immediately upload the redacted affidavit to the federal court website and scolded them for not doing it earlier.
Lehrmann’s barrister Steve Whybrow SC apologised and said he thought Lehrmann’s solicitors were doing it.
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Welcome to live coverage of day 20 of Bruce Lehrmann's defamation trial
Bruce Lehrmann’s legal team is expected to make its closing arguments today in the federal court on day 20 of the high-profile defamation trial he brought against Network Ten and Lisa Wilkinson.
His barrister Matthew Richardson SC has argued that Brittany Higgins was canonised by Ten and Wilkinson when she alleged she had been raped by a colleague in Parliament House in Canberra.
“There were no eyewitnesses, no audiovisual recording, no audio recording, no admissions, just two competing versions” of what happened when Lehrmann and Higgins entered the building in the early hours in March 2019, Richardson said when the trial began a month ago.
“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 Ten and Lisa Wilkinson and The Project.”
Ten and Wilkinson are relying on the defences of truth and qualified privilege.
They argue the imputation that Lehrmann raped Higgins is substantially true and because defamation proceedings are civil matters, rather than criminal, the standard of proof is different.
Under the qualified privilege defence, Ten and Wilkinson must prove the program was in the public interest and they acted reasonably.
Their legal teams argued in the openings that Lehrmann was not named in Ten’s program and it focussed on the handling of the incident by the government.
Justice Michael Lee has extended the trial until Friday and has predicted the court may have to sit longer days to finish submissions. There will be no more witnesses.
Lehrmann maintains his innocence and pleaded not guilty to one charge of sexual intercourse without consent – denying that any sexual activity had occurred.
In December, prosecutors dropped charges against Lehrmann for the alleged rape of Higgins, saying a retrial would pose an “unacceptable risk” to her health.
Wilkinson and Lehrmann have been in court on most days, sitting on opposite sides of courtroom 22A.
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