During 12 days of evidence, from 29 witnesses, the trial of Bruce Lehrmann has been, as rape trials are generally, about she-said, he-said, but mostly about what she said.
Accused of having sex with former junior colleague Brittany Higgins without her consent, and being reckless as to whether she consented, Lehrmann elected not to give evidence, beyond a police interview conducted voluntarily last year and played in court.
In his closing arguments, Lehrmann’s counsel, Steve Whybrow, reminded those in the ACT Supreme Court that this was his right. “It is not about whether I have convinced you that she made this up,” Whybrow said. “Mr Lehrmann has no onus to prove anything.”
Chief Justice Lucy McCallum reinforced that point in directions to the jury on Wednesday afternoon, shortly before they retired to decide: “It is the prosecutor who bears the onus of proving the charge beyond reasonable doubt.”
She told the jury they were accountable to the law, not public opinion, even though journalists were almost “swinging from the rafters” in the court.
Higgins alleged Lehrmann raped her on a couch in the Parliament House ministerial office of their then boss, Senator Linda Reynolds, in the early hours of Saturday, March 23, 2019, after a drunken night out with colleagues.
Lehrmann pleaded not guilty. His lawyers said sexual intercourse did not occur. Whybrow reminded the court there was no DNA evidence to prove anything different.
Chief Justice McCallum told the jurors: “You are expected to use your common sense … your understanding of human nature and your ability to judge people … You are entitled to have regard to your understanding and experience of the nature of memory.”
She reminded them that a person who was heavily intoxicated, unconscious, or asleep could not legally consent.
No witnesses were called by the defence, a point Whybrow enlisted in his closing argument. “There were no witnesses,” the defence counsel said. “It did not happen.”
That made Higgins’s testimony – and credibility – crucial. Whybrow argued that everything turned on “accepting beyond reasonable doubt… the truth, the accuracy of what Brittany Higgins told you in her evidence”.
He accused Higgins of lying. The prosecutor accused Lehrmann of the same.
So it became her word, which was interrogated in court, against his, which was not, marshalled alongside arguments about what may have motivated each of them to say and do what they did, and the evidence of the circumstances. Those circumstances included the events of the night in question and what has happened in the three years since, including Higgins’s two-year delay in formalising her complaint with police, and a $325,000 book deal.
“There is no blueprint for life,” Justice McCallum counselled, “and no blueprint for a sexual assault and how a young woman may respond to a sexual assault.”
On March 22, 2019, Higgins and Lehrmann and a larger group had Friday night drinks at The Dock, a lakeside bar in the Canberra suburb of Kingston. CCTV vision showed Higgins had 11 drinks in four-and-a-half hours, two of which Lehrmann was seen buying. Two years later, in his police interview, Lehrmann would call it an “innocuous” night and the level of drinking “nothing out of the ordinary”.
Just before midnight, the group disbanded. Higgins and Lehrmann went on to a nightclub, 88mph, with a pair of fellow staffers. There they had more drinks, including shots. Nobody remembers how many. The nightclub’s camera vision was not available. Higgins said she fell over as they left and Lehrmann helped her up. He told police he never saw her fall.
On what began as a shared ride home, Lehrmann said he needed to stop at their Parliament House office. In the police interview, he rated his own intoxication level at seven out of 10, Higgins’s about the same.
CCTV vision showed Higgins taking off her stiletto heels to pass through the security scanner. Unable to put them back on without overbalancing, she carried them, trotting to catch up with Lehrmann and the guard with the office keys. The vision showed she was smiling. She would describe her condition to police in 2021 as “very drunk”.
Lehrmann told police that when they entered the suite, he turned left and went to his desk and that she turned right, towards the offices of the chief of staff and the minister. He did not know why.
Higgins said she sat on a window ledge and ended up passing out on the minister’s couch but doesn’t remember how she got there. She said she woke to find Lehrmann on top of her and inside her. Higgins said she told him repeatedly to stop but he did not, and that when he was finished, he got up and “maybe got dressed”. She recalled there was a moment when he looked at her silently and she at him, and then he left.
The CCTV vision shows they entered the building at 1.41am. Lehrmann told police that after entering the ministerial suite, he did not see Higgins again that night and did not check on her before he left.
He told them Higgins had said she also needed to go back to parliament. She told the court: “There was no reason for me to pop back into Parliament House at 2am.”
Lehrmann told police he had suggested sharing an Uber: “I thought I was being a gentleman.”
Asked later in the same interview why he left the office without her, and without checking, Lehrmann said: “There’s no agreement to be leaving together.”
The court heard he called another Uber and left the building alone at 2.33am. His lawyer said his visible haste was to ensure he did not miss his ride.
A security guard who went later to check on Higgins reported finding her completely naked on the couch. Higgins said when she woke in the morning, her dress was scrunched up around her waist. The judge noted the dim lighting, saying the key point was that by both accounts, she was naked from the waist down.
Higgins was questioned about her underwear and told the court she had not worn any, because her white, close-fitting, strappy cocktail dress would reveal underwear lines. The defence said she originally told a journalist Lehrmann removed her underpants. She also said she had been “wrong” about how long she stored the dress under her bed before deciding to wash and wear it one more time. After she told the court six months, the defence produced a photograph of her wearing it just weeks later.
Higgins spoke to police within days of the alleged incident. A federal election was called three weeks later. In her “dream job” as a media adviser to a federal minister, she said she felt pressured by her chief of staff and their boss to choose between formalising a complaint and staying employed, a choice they deny asking her to make. She opted not to take it further.
The election on May 18, 2019, saw the government returned, and she took a new job with minister Michaelia Cash, but said she struggled with trauma and stress from the alleged assault. In February last year, almost two years after the alleged incident, she quit and went back to police. Against their advice, she gave interviews to two media organisations before she undertook her two police interviews. The rape allegation exploded in public on February 15 last year, and she accepted the book deal.
This week, as she was giving evidence, Linda Reynolds faced questioning over sending a text message to the defence barrister asking for transcripts of Higgins’s cross-examination, two hours after it had begun and before her own testimony. A minute later, she had texted again, suggesting he might find messages between Higgins and another staff member “revealing”. Whybrow rejected both her request and suggestion, reporting the messages to the prosecution and the judge.
The prosecutor accused her of trying to give the defence “tips”. Reynolds said she had not realised her actions were inappropriate.
Reynolds’ partner was in court for Higgins’s testimony, the court heard. The former minister insisted he had told her nothing of it ahead of her own.
Both Reynolds and Cash denied it would have been politically embarrassing had it become public that two Liberal staffers were embroiled in a rape allegation on the eve of an election.
“Absolutely not,” Cash told the prosecutor. “I don’t know how it could be politically embarrassing.”
Cash and Higgins differed on when Cash knew there was an allegation of a sexual assault. Cash says it was not until February 5, 2021 – six days after Higgins resigned, and 10 days before her allegations became public. Higgins says it was in 2019.
In his closing arguments, Crown prosecutor Shane Drumgold said Higgins had been completely consistent over three years on what she said had happened that night.
“If this is a fabrication,” he told the jury, “she appears to be quite the actor.”
Drumgold said the case was not about “political parties or workplace cultures” nor whether young people should drink as much as they had on that night. It was not about “whether Brittany Higgins likes Linda Reynolds” nor whether the response to the alleged incident at Parliament House had been appropriate. “It is not about the experiences of other women, or the Me Too movement.”
It was, he said, about one thing: “what happened in a room, on a couch”.
Drumgold told the court Lehrmann had been attracted to Higgins – she said he had tried to kiss her in the weeks prior to the alleged incident and she had rejected him – and had manoeuvred to get a drunk, vulnerable young woman alone.
Steve Whybrow, for Lehrmann, said it was difficult to judge the demeanour of “con artists” and that Higgins had fabricated a story about an assault to save her job, fearing sanction for coming into Parliament House late at night, unapproved and drunk. Summing up his case, Whybrow said: “She just doesn’t know what happened.” On why she went back to police after two years, he said: “There are 325,000 reasons.”
The court heard Lehrmann gave four different reasons for going to Parliament House that night. He told his chief of staff, Fiona Brown, and another senior ministerial staffer that the pair went to parliament to drink whisky.
But he was recorded on an intercom telling parliamentary guards they had been “requested” to pick up documents. It was demonstrably untrue, and he then denied saying that, in a letter to his boss. Having left highly confidential Defence documents unsecured on his desk weeks earlier, Lehrmann was terminated.
Two years later, he told police he went back to parliament to get his keys – an explanation supported, his counsel said, by the CCTV vision showing him emptying his pockets on arrival with no keys visible. He also told police he wanted to work on question time briefs, following useful conversations with Defence types earlier in the evening.
At time of press, the jury had not delivered a verdict.
This article was first published in the print edition of The Saturday Paper on October 22, 2022 as "Final testimony".
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