Brittany Higgins has told the federal court the suggestion by an AFP officer that she might have been drugged on the night she was allegedly raped should have been raised in the defamation trial.
Higgins filed a seven-page submission to the court on Tuesday after being invited by Justice Michael Lee last week to make final submissions concerning her credit before the judgment in Bruce Lehrmann’s defamation case against Network Ten and Lisa Wilkinson is handed down on Monday.
Higgins said she was not a party to the proceedings and was at a distinct disadvantage to be making submissions at this late stage.
However, any question about her evidence should take into account the possibility she may have been drugged on top of her trauma, the submission said.
“An unwavering, consistent and clear account of Mr Lehrmann’s rape of Ms Higgins has been given by her on multiple occasions, over many years, including under close forensic questioning,” her legal team said.
If minor details of her reconstructed memory were wrong, it does not in any way reflect adversely upon her honesty, they argued.
“In the context of a serious challenge to the honesty and accuracy of Ms Higgins’ account of the events of the night in question, the potential that her perceptive and recollective abilities may have been affected other than by alcohol and trauma is an issue that she would have wished to explore,” the submission said.
The suggestion she was drugged was raised by the AFP in a document tendered by former Seven producer Taylor Auerbach last week. Auerbach said he got the document from Lehrmann.
An AFP note in the document – which was a master chronology prepared by Lehrmann’s lawyers – said: “I also have concerns from info I heard that this may have happened before or could happen again. (I was referring to info that alleged victim may have been drugged). Paul [Sherring] – we need to speak to a range of people. Security staff cleaners may have info.”
Higgins’ submission said “different forensic choices [could] have been made if Ms Higgins was a party, which may have had a significant bearing on questions of Ms Higgins’ credit, is not merely theoretical”.
Higgins claims she was raped on the 23 March 2019 in Parliament House. Lehrmann maintains his innocence, and at his criminal trial in 2022 pleaded not guilty to one charge of sexual intercourse without consent, denying that any sexual activity had occurred.
After his criminal trial was aborted in December 2022, prosecutors dropped charges against Lehrmann for the alleged rape of Higgins, saying a retrial would pose an “unacceptable risk” to her health.
The submission says that Lehrmann’s attacks on Higgins that she is dishonest should be “decisively rejected”.
“Ms Higgins gave powerful evidence explaining her conflicted and traumatised response in the period following her rape,” the submission said. “It is entirely consistent with contemporary understanding of the reaction of victims of sexual assault.”
Any inconsistencies – including the state of her white dress after the alleged rape, whether Lehrmann sent her an email afterwards or not and whether she fell over at the 88mph nightclub – are all minor issues and should be dismissed, the submission said.
Her mistakes were more than understandable given the fact that she was more intoxicated than she ever had been and highly traumatised after the rape, the submissions said.
In a separate submission published late on Tuesday, lawyers for Auerbach said Lehrmann’s silence about matters raised at the last minute hearing on Thursday and Friday was “deafening”.
In the former Spotlight producer’s submission, he said it was open to Lehrmann to respond to the evidence he gave last week but he had failed to do so.
Auerbach’s evidence given over two days last week was that Lehrmann entered into an agreement with Seven to provide it with materials for publication in exchange for financial benefit. Seven paid his rent for 12 months to the tune of $104,000 for the exclusive interview.
“He could have easily responded to Mr Auerbach’s evidence if he had any response to make,” the submission said. “His silence was deafening such that the Court should find that his evidence could not have assisted him. Further, that Mr Auerbach’s evidence was truthful and should be accepted.”
• Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). In the UK, Rape Crisis offers support on 0808 500 2222. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
