Finding Bruce Lehrmann's account of the Parliament House rape allegation "implausible" would not make Brittany Higgins' version of events "more persuasive", lawyers have argued.
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"It might remove a barrier to the acceptance of particular aspects of Ms Higgins' version of events," Mr Lehrmann's legal team told the Federal Court's Justice Michael Lee through documents.
"But it would not make inevitable the conclusion that it is more probable than not that Mr Lehrmann raped her."
The comments were revealed on Friday afternoon when closing submissions in reply by lawyers for Mr Lehrmann, Lisa Wilkinson and Network Ten were uploaded to the court's online file.
Mr Lehrmann is suing the high-profile journalist and the television network over a February 2021 story on The Project, which revealed Ms Higgins' claims of being raped in a ministerial office two years earlier.
Justice Lee has reserved his decision following a month-long defamation trial held in Sydney, where Mr Lehrmann argued being identified and "publicly maligned" as a rapist, throughout December of last year.
In the recently published documents, Mr Lehrmann's lawyers accepted the court may reject his account of what took place in the early hours of March 23, 2019, including that any sex had taken place.
Earlier this month, they submitted their client should still receive "substantial damages" in the civil action if that was the case.
The lawyers say, however, the former Liberal staffer's starkly different versions of what took place that night do not account for all possibilities "which present themselves on the facts as a matter of common sense".
"Mr Lehrmann denied that any sexual activity at all took place, whereas Ms Higgins alleged that he had intercourse with her whilst she was unconscious and that it was rape," the document states.
"Between those two poles lies a range of possibilities, including various permutations of consensual sexual activity (anything from kissing or touching to sexual intercourse).
"Or sex which was at law not consensual but which Mr Lehrmann believed was consensual."
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The court, the lawyers added, could also entertain the possibility that no sexual contact occurred despite a prior intention to engage in "such activities".
"As a matter of ordinary human experience they naturally arise as possibilities and they must be considered," the lawyers said.
Mr Lehrmann has always denied any sexual activity took place that night, that he tried to kiss Ms Higgins a week prior, and that the pair were seen "pashing" at a nightclub hours prior to the alleged assault.
Rejecting that version of events, the man's lawyers argued, only removes "one of the proffered hypotheses".
No findings have been made against Mr Lehrmann.
His criminal trial was aborted in 2022 due to juror misconduct, with the charge levelled at him later discontinued over concerns for Ms Higgins' mental health.
- Support is available for those who may be distressed. Phone Lifeline 13 11 14; Canberra Rape Crisis Centre 6247 2525.
Tim Piccione
Tim is a journalist with the Canberra Times covering the ACT courts. He came to the nation's capital via the Daily Advertiser in Wagga. Contact: tim.piccione@canberratimes.com.au.
Tim is a journalist with the Canberra Times covering the ACT courts. He came to the nation's capital via the Daily Advertiser in Wagga. Contact: tim.piccione@canberratimes.com.au.
