Jury retires in trial of Brittany Higgins' accused rapist

A jury consisting of eight women and four men have retired to consider the verdict in the case of Brittany Higgins’ accused rapist Bruce Lehrmann – with the judge asking them to consider three key questions.

ACT Supreme Court Chief Justice Lucy McCallum told the jury on Wednesday that they must consider whether Bruce Lehrmann had sex with the ex-staffer at all, whether it was consensual, and whether Mr Lehrmann was reckless over whether she consented.

Lehrmann, Ms Higgins’s former colleague, has pleaded not guilty to one count of sexually assaulting Ms Higgins at Parliament House following a drunken night out in March 2019.

The jury were directed to retire shortly before 3pm on Wednesday, and had not reached a verdict by the end of the day.

They were told the verdict must be unanimous.

The judge told jurors to consider three elements: Whether the accused had sexual intercourse with the complainant, whether sexual intercourse occurred without the consent of the complainant, and if the accused was reckless as to whether Ms Higgins consented to the sexual intercourse.

Recklessness, she said, is about Lehrmann’s state of mind and addresses whether he failed to consider that the complainant might not consent.

‘Consent to a sexual act means informed agreement to the sexual act that is given freely and voluntarily and is communicated to the other person,’ she told the court.

‘A person does not consent if they are unconscious or asleep.They are incapable of consenting if they are incapacitated, or intoxicated.’

Justice McCallum said: ‘If you accept the intercourse did happen, you would have to accept that she did not consent.’

She also told the jury to disregard the fact that Lehrmann did not sit in the witness box, and said it cannot be used ‘as an admission of guilt’.

‘It cannot be used an admission of guilt.You can’t use that fact to fill any gaps. It cannot assist the prosecution case.’

The judge pointed out that Lehrmann did not have to participate in a record of interview with police on April 19, 2021. He could have maintained his right to silence, but he chose to give his version of events.

Justice McCallum said the 12 jurors must ‘determine whether the accused is guilty beyond reasonable doubt’.

She also urged them not to invoke stereotypes to determine the way a person may behave.

The judge’s comments come after Lehrmann’s lawyer Steven Whybrow wrapped up his closing address to an ACT Supreme Court jury earlier this morning. 

Whybrow claimed there were ‘325,000 reasons why this case is important from (Ms Higgins’s) perspective’ – in a reference to the book deal she was offered after going public with her allegations.

‘I’m not here to prove why she goes back to police and initiates this (investigation) again,’ Mr Whybrow said. 

‘I’m not sure why.But there are 325,000 reasons why this case is important from her perspective.’

While speaking about Ms Higgins’s earlier evidence to the jury, Mr Whybrow invoked ‘con artists’ – saying ‘we have these things called con artists because demeanour is hard to pick up sometimes’.

Mr Whybrow said he wasn’t suggesting what Ms Higgins’ behaviour in the witness box was an act, telling the jury: ‘You all saw it.’

He argued: ‘She doesn’t know what happened and she has reconstructed events to the point that she now genuinely believes them to be true. That doesn’t mean that they are true.’

Of her book deal – which the trial heard Lisa Wilkinson’s husband Peter FitzSimons organised for her – Mr Whybrow argued, ‘She secured a publishing book deal and had planned out chapters’ before she completed her interview with (detective) Emma Frizzell.

‘That could be somewhat inconsistent with a person who thought The Project would air and she would go back to anonymity.’   

Lehrmann has pleaded not guilty to a single charge of sexual intercourse without consent and has undergone a three-week criminal trial in the ACT Supreme Court.

Mr Whybrow also criticised the ‘reliability’ of her evidence.

‘There is no other evidence in this case.There is no evidence other than Ms Higgins and her subsequent statements, demeanour, may assist you in assessing what she says,’ he suggested to the jury.

‘There is no DNA evidence, there’s no contemporaneous medial complaint. There is, in fact, There are contemporaneous lies about the medical complaint.’

‘There’s not photos of a bruise.We’ve made, in my submission, a rational, plausible and reasonable explanation as to why in 2019 she might raise a false complaint and withdraw it and not go to a doctor until it comes up in October 2019.’

He referred to the moment where Ms Higgins went to the doctor in October 2019 ‘for anxiety’, and it was then that she told some people in Michaelia Cash’s office.

‘Are they disclosures relating to the enquiry?Are they disclosures to put some receipts on her side?,’ he asked.

During his earlier closing arguments late on Tuesday, Lehrmann’s lawyer Steven Whybrow claimed to the jury that Ms Higgins ‘fabricates’ information and places blame on others when ‘what’s going on doesn’t suit her’.

‘You have to pull every tooth before you get the truth,’ he said.

He suggested that Ms Higgins not attending a doctor’s appointment was ‘a big deal’ because ‘she didn’t need to – she didn’t have sex with anyone’.

‘She tells two police officers, her on-off boyfriend and her boss that she is going to a doctor the next day. 

‘I put it to her squarely – the reason was to get them to believe that she had been sexually assaulted,’ he told the jury.

‘You don’t actually go, because you don’t need to, because it hadn’t happened.’ 

Mr Whybrow also referred to claims Ms Higgins made under cross-examination about the period immediately after she went public with her allegations.

On February 15, 2021, two media stories dropped – one was an purchase tramadol 100mg online story published by News Corp, the other was a TV interview with Lisa Wilkinson on The Project.

Ms Higgins told the court in the first week of the trial that she thought she would do one written interview and one TV interview, before going back to university and getting on with her life as normal.

However, she told the court she was inundated with media requests – to the point where she had to take valium to cope – and said her boyfriend, David Sharaz, sent a timeline of her allegations to two journalists.

The court previously heard Mr Sharaz regretted his actions because his ‘trust was breached’ and the ‘whole press gallery’ ended up with the timeline. 

Mr Whybrow told the court on Tuesday that Sharaz had gone ‘under the bus’. ‘David Sharaz now goes under the bus to say he sent it out in those circumstances.’ 

Under cross-examination, Ms Higgins also told the court the media frenzy was ‘not about me or my story’, but more about two journalists arguing over ‘who got the exclusive’ and who would win journalism awards.

She said Wilkinson was ‘furious’ because The Project interview went to air on a Monday, and she didn’t normally work on Mondays. 

In court on Tuesday, Mr Whybrow said that was another example of Ms Higgins ‘throwing other people under the bus where something is happening that might not suit her.’

Earlier in his closing statement, Mr Whybrow referred the jury to Ms Higgins’ initial insistence she had kept the dress she was allegedly raped in under her bed for about six months before washing it. 

She later admitted she was mistaken about that period of time when shown in court a picture of her wearing the dress about two months after the night in question.

‘When she speaks to [police officer] Emma Frizzell on February 6, 2021, she asks about the dress and she says, “I’ve washed it once but I haven’t worn it”,’ he said.

‘But she knows she’s worn it again, and she knows she’s worn it again because she recalls or she’s seen a photograph of her wearing it again.

‘This is a central plank as to whether you accept her evidence beyond reasonable doubt or whether she’s said the first thing that comes to her head.

‘Can you convict this man for something she says he did?There’s no DNA, no medical evidence, and she says things to suit her.’

Mr Whybrow will conclude his closing remarks on Wednesday morning, before the jury retires to deliberate on a verdict.  

During Crown prosecutor Shane Drumgold’s closing statements earlier on Tuesday,  he told the jury Lehrmann took Ms Higgins back to Parliament House on the night he allegedly raped her because ‘it was the most convenient place to get her drunk and confused’.

He suggested that was the answer to one of the key questions jury members had to consider – why did Lehrmann and Ms Higgins go to Parliament House that night?

He said the jury also must consider whether they believed Lehrmann and Ms Higgins had sex – and whether it was consensual – as well as whether he was attracted to the alleged victim and if he was ‘reckless’ regarding her consent.

‘[The case is not about] whether young people, whatever gender, have the right to drink what they choose or to be safe.Or whether Ms Higgins likes Linda Reynolds, or about whether parliament house responded adequately,’ he said. 

‘This case is certainly not about the experience of other women in parliament or the “Me Too” movement, media interviews or book deals.’

Mr Drumgold said the case was about ‘what happened on a couch in a room’ on March 23, 2019 – between when Ms Higgins and Lehrmann entered parliament at 1.41am and when the accused left alone at 2.31am.

He told the jury Lehrmann gave various reasons for going back to Parliament House  on the night of the alleged rape, but said he rejected all reasons – ‘except possibly to drink alcohol and get the drunk and vulnerable complainant alone in a room’. 

‘It was the most convenient place to get her drunk and confused…in the hope she would not resist and not remember,’ he said. 

Mr Drumgold questioned why Lehrmann would have left his keys, documents and security pass at work before going out to drinks on a Friday night, knowing he would only have to go back and get them late at night. 

‘Lehrmann said he had to go to Parliament House to get his keys which, in his words, was “normal practice”.He added he would just leave them on his desk so wouldn’t have a lot of things in his pockets,’ he told the jury.

‘Ask yourself, how would he then grab his keys if he left his pass there? He agreed he didn’t have his pass on him – it would force him to sign in to get his keys just to go home.’ 

He also questioned why Lehrmann would go back to parliament to put tabs on a Question Time brief when Question Time was not due to take place the following week – ‘why not wait until Monday?’

Mr Drumgold said Lehrmann claimed in his record of interview with federal police that there was no alcohol in the office because Ms Reynolds was new in the defence portfolio and it was not yet set up. 

However, his former colleague Nicole Hamar told the court last week she worked with Lehrmann in Home Affairs and he had a sizeable amount of alcohol in his office. 

The prosecution said it was ‘unlikely he would throw out a substantial amount of alcohol because he moved offices’.