Lawyers for accused rapist Bruce Lehrmann have told the court Brittany Higgins has been “caught out” making up evidence, including about a bruise she says she sustained during the alleged attack, and has possibly “reconstructed events to the point that she now genuinely believes them”.
The ACT supreme court trial of Lehrmann is now in its closing stages, and defence barrister Steven Whybrow finished his closing submissions to the jury on Wednesday morning.
The judge, chief justice Lucy McCallum, will sum up the case to the jury before they begin their deliberations on Wednesday afternoon.
Lehrmann is accused of raping Higgins on a couch in the office of their then minister, Linda Reynolds, after returning to parliament following a night of drinking in Canberra bars in March 2019. He has pleaded not guilty to sexual intercourse without consent.
On Tuesday, prosecutor Shane Drumgold SC told the court Higgins had presented as a genuine, honest and credible witness, whose allegations about the rape had remained consistent in her complaints to colleagues, friends, family, police and the court in the three years since the alleged rape.
But Whybrow on Wednesday continued to present the jury with a series of examples that he said called Higgins’ credibility into question. He pointed to a photograph of a bruise, which Higgins said in a statutory declaration was taken in the aftermath of the rape in 2019.
Police examinations of her phone could not locate the image or any reference to it in texts until 2021. Whybrow said Higgins had also made no mention of the bruise to police during interviews in 2019.
The court has also previously heard that Higgins told police that she had been to see a doctor in the south of Canberra within two weeks of the rape and was awaiting test results. Police could find no record of her attending such an appointment.
“I put it to you, I suggest that that bruise was the equivalent of going to the doctor in 2019,” Whybrow said. “It’s something she made up to make it sound more believable. She turns up to Lisa Wilkinson, with here’s a photo of a bruise ... not corroborated by a single mention to anyone anywhere.”
Whybrow asked the jury, in assessing Higgins’ credibility, to consider how they might react to the demeanour of a “con artist”. Such a person might appear genuine and believable, “because demeanour is hard to pick up sometimes”.
He said he was not suggesting that Higgins’ demeanour or the way she reacted in the witness box “was an act”. But he said she was “a bit more combative and aggressive in responding” when she returned to conclude her cross-examination late last week, after being unavailable for several days.
“In my submission, it’s reasonably possible that she doesn’t know what happened and she has reconstructed events to the point that she now genuinely believes them to be true,” he said. “That doesn’t mean they are true. If she’s convinced herself that this happened, her demeanour in the witness box might be entirely genuine, but it doesn’t mean what she’s telling you actually happened.”
On Tuesday, the prosecution pointed to issues with Lehrmann’s own credibility. Drumgold pointed to the multiple reasons Lehrmann gave for the early morning visit to parliament with Higgins on 23 March 2019 that appeared at odds with other witness testimony.
Lehrmann told parliament security he had been “instructed” to pick up documents, before telling Reynolds he had never implied he was acting under her authority when entering the building after 1.30am.
His chief-of-staff Fiona Brown says Lehrmann told her that he was there to “drink whisky”. He later told police he was there to pick up his keys and work on some question time briefs.
Drumgold said the true reason for the visit was that he had either wanted to continue partying after a night out at Canberra bars, or that parliament was the easiest way to get Higgins alone.
“[It was] most convenient place to get the then very drunk and vulnerable complainant alone … possibly with the hope that she would either not resist or not remember,” Drumgold said.
Drumgold urged the jury to consider the evidence of those who knew Higgins closely, who say they witnessed a marked change in her demeanour in the aftermath of the alleged rape.
“If this is a fabrication, she’s also quite the actor,” he said. “She appears to have supported it with consistent performances of emotion, ranging from being upset, being extremely upset and being broken.”
The defence has suggested that Higgins made up the allegations after being found in Reynolds’ office naked by parliament security. The incident, on the defence’s case, left her fearing for her dream job. Once her job was secure, the defence says, she told police in 2019 that she was no longer interested in pursuing the complaint.
Whybrow suggested Higgins was motivated by a book deal when she reinstated her complaint in 2021. The advance on the book deal was worth $325,000, the court has heard.
“I’m not here again to tell you or to prove why she goes back to the police and initiates this again in 2021,” Whybrow said. “But, it’s a trite line, there is 325,000 reasons now why.”
Whybrow said there was no reliable evidence that had been presented by the prosecution to prove the alleged rape occurred.
There was no DNA evidence and no contemporaneous medical appointment, he said.
“There is no evidence other than Ms Higgins and the extent to which her subsequent statements, demeanour to other people, assists you in accepting what she says.
“We’ve had, in my submission, a reasonable, plausible explanation as to why in 2019 she might have raised a false complaint, and then not go through with it.”
The trial continues.
