31 October 2022

UPDATED: Prosecution will run alleged rape trial of Bruce Lehrmann again

| Albert McKnight

Bruce Lehrmann approaches court in October 2022. Photo: Claire Fenwicke.

CONTENT WARNING: This article discusses an alleged sexual assault.

UPDATED, 31 October, 4:30 pm: The ACT’s top prosecutor has announced he will run another trial against the man accused of raping Brittany Higgins in Parliament House after the first ended in a mistrial.

The first ACT Supreme Court trial of Bruce Lehrmann ended with its jurors being discharged while in the midst of their deliberations last week. But on Monday (31 October), ACT Director of Public Prosecutions Shane Drumgold SC confirmed his office would proceed with a retrial.

“I confirm that we have made the decision that the retrial of DPP v Lehrmann will commence 20 February 2023,” he said.

Mr Lehrmann’s first trial had unexpectedly ended in a mistrial last week after a juror brought an academic document on sexual assault into the jury room despite Chief Justice Lucy McCallum giving jurors at least 17 warnings not to do their own research.

After discharging the jury, the Chief Justice said she had learnt the same juror had also been in possession of an extra two academic articles on sexual assault.

Brittany Higgins (left) leaves court after Bruce Lehrmann’s trial was declared a mistrial. Photo: Albert McKnight.

27 October, 5 pm: After the jury was discharged this morning, Bruce Lehrmann’s barrister, Steven Whybrow, released a statement outside court noting that as the matter was ongoing any further comment at this stage would be “inappropriate and irresponsible”.

Brittany Higgins also spoke to media in which she thanked her family, partner, friends and the DPP team. She also made some comments regarding the case which Mr Lehrmann’s lawyers brought to the attention of the court and the AFP.

“I urge all media to show restraint in reporting this matter and in particular in republishing the statements made by the complainant,” Mr Whybrow said.

A statement from the Supreme Court said the conduct of the juror who had the document which resulted in the case being aborted did not constitute an offence in the ACT so they would not be fined or charged.

Brittany Higgins and Bruce Lehrmann arrive at the ACT Supreme Court for the start of the trial. Photos: Michelle Kroll/Albert McKnight.

27 October, 11:15 am: Brittany Higgins was spotted leaving the court in tears this morning due to an unexpected development in the trial of her alleged rapist, Bruce Lehrmann, which has resulted in a mistrial.

Mr Lehrmann was accused of raping Ms Higgins in Parliament House on 23 March 2019 and sat through 12 days of an ACT Supreme Court trial this month.

Jurors began deliberating last week but were called into court on Thursday morning (27 October) where they were discharged by Chief Justice Lucy McCallum.

She said one juror had brought information into the jury room which had not been provided during the trial, even though she had given the jury at least 17 warnings not to undertake their own research.

Sheriff officers had been tidying the room when they accidentally bumped the juror’s document folder onto the floor. When they picked it up to put it back, they saw the title page of an academic paper on sexual assault.

Investigations discovered this paper was a discussion on the unhelpfulness of attempting to quantify the prevalence of false complaints of sexual assault.

Chief Justice McCallum said the juror claimed they did not use the document in their deliberations, but due to the circumstances, she had to regard that with some scepticism.

She said the discovery of the article, and the fact it had been brought into the jury room, was what resulted in the discharge of the jury, calling the development “unexpected and unfortunate”.

Mr Lehrmann was granted bail and a new date was set for the next trial. If it is to proceed, it could commence on 20 February 2023.

Jurors had begun deliberating on 19 October and had been urged to continue their debate after sending a note saying they were “unable to reach a unanimous verdict” on Tuesday (25 October).

They had heard that on 22 March 2019, the then-24-year-old Ms Higgins went out in Canberra for work drinks, first meeting up with Mr Lehrmann and others at The Dock in Kingston, then the two later went to 88mph in Civic along with Lauren Gain and Austin Wenke.

Afterwards, Ms Higgins and Mr Lehrmann caught an Uber back to Parliament House.

“I made an indication I had to go to Parliament House to get my keys. I said I’m already going there, do you want to share an Uber,” Mr Lehrmann told police.

Ms Higgins thought he said he needed to get paperwork. When asking security to be let into the building, he was recorded saying: “Hey mate, Bruce Lehrmann here with Minister Linda Reynolds. I’m here to pick up some documents. I’ve forgotten my pass”.

Brittany Higgins

Brittany Higgins after she faced her second day of cross-examination at the ACT Supreme Court. Photo: Albert McKnight.

They checked into the security desk at 1:40 am on 23 March 2019 and guard Nikola Lee Anderson walked them to Ms Reynolds’ office at 1:48 am.

Inside, Ms Higgins said she fell asleep on a lounge and alleged she woke up to Mr Lehrmann raping her.

“I was crying throughout the entire process. I said ‘no’ at least half a dozen times,” jurors heard her say at the start of the trial.

“Eventually he stopped, it finished … and he looked at me and he left. I couldn’t get up off the couch and passed out until the next day.”

Mr Lehrmann was filmed walking back past the security desk at 2:33 am.

“He was on the phone, he wasn’t paying attention,” guard Mark Fairweather said of when Mr Lehrmann left.

“I wanted to ask him about the lady and I said, ‘Are you coming back?’ and he just replied hastily, ‘No’, and flicked the pass onto my desk.”

Bruce Lehrmann leaving court

Bruce Lehrmann (left) leaves court last Thursday with his barrister, Steven Whybrow, after the first day of jury deliberations. Photo: Albert McKnight.

Ms Anderson was asked to do a welfare check on Ms Higgins at about 4:15 am.

“I opened the door and I found Ms Higgins,” she said.

“Ms Higgins was lying on her back, completely naked on that lounge.”

Ms Anderson said she thought the door made a noise when she opened it and Ms Higgins opened her eyes, looked at her, then rolled over into the foetal position. She did not leave the building until 10:01 am.

Mr Lehrmann said his intoxication on the night was “moderate”, while Ms Higgins said hers was “very high”.

On 26 March 2019, Mr Lehrmann met with Ms Reynolds’ chief of staff Fiona Brown where she asked him to explain why he had gone back to the office late at night.

“He said that he went back to the office to drink some whiskey, and I questioned that. I said, ‘that’s a bit unusual to me’. He said, ‘people do that all the time’,” she said.

Linda Reynolds getting into a car

Senator Linda Reynolds leaves court under the gaze of reporters and cameras after her testimony. Photo: Albert McKnight.

Ms Brown said on 28 March 2019, Ms Higgins told her: “I remember him on top of me”.

Ms Higgins met with Senator Reynolds a few days later on 1 April, then the Australian Federal Police the same day and told officers about the alleged rape, but she also said she didn’t want to report it officially.

Both Ms Higgins’ mother and her housemate noticed a change in her around that time.

Then in 2021, Ms Higgins resigned from her job as a media adviser with Senator Michaelia Cash on 29 January, spoke to The Project’s Lisa Wilkinson on 2 February, told police she wanted to reactivate her previous rape complaint on 4 February, then The Project and News Corp published their stories on her allegations on 15 February.

Ms Higgins was interviewed by police on 24 February, was offered $325,000 to write a book about her alleged experience in March. She was then was interviewed again by police on 26 May.

Woman leaving court

Kelly Higgins, who is Brittany Higgins’ mother, leaves court after testifying in Bruce Lehrmann’s trial. Photo: Albert McKnight.

ACT Policing announced Mr Lehrmann had been charged in August 2021 and his case first appeared in court that September.

The trial was delayed earlier in 2022 after a speech made by Ms Wilkinson at the Logies before starting on 4 October. It ran for two weeks in a courtroom that was nearly packed every day with both journalist and members of the public.

In court, Ms Higgins called Mr Lehrmann “territorial” when discussing the culture in Parliament and during cross-examination said she felt her job was “on the line” after her meeting with Ms Reynolds on 1 April 2019.

For his part, Mr Lehrmann said he “didn’t know her very well”.

Ms Reynolds gave explosive testimony when she appeared before the jury, in which she admitted trying to get transcripts of Ms Higgins’ evidence after the trial began.

Mr Lehrmann had pleaded not guilty and told police he didn’t see Ms Higgins again after they entered Ms Reynolds’ ministerial suite.

A forensic biologist didn’t find any semen on the dress Ms Higgins had worn that night and Mr Lehrmann’s barrister, Steven Whybrow, had argued his client hadn’t had sex with her.

Brittany Higgins (centre) spoke to the media before leaving on Thursday. Photo: Albert McKnight.

During the trial’s closing addresses, Mr Whybrow said there had been a “trial by media” and pointed to Ms Higgins’ intoxication that night.

“She doesn’t know what happened … you cannot be satisfied, I submit to you, that she knows what happened,” he told jurors.

Mr Whybrow said while there was “no template” on how someone would react following an assault, he argued Ms Higgins had used “the effects of trauma” as an excuse each time she was “caught out”.

“[It’s] a talking point she’s spouting every time things get tough,” he claimed.

Mr Lehrmann had pleaded not guilty to a charge of sexual intercourse without consent.

Ms Higgins spoke to media outside the courthouse after the jury was discharged, in which she thanked her family, partner, friends and the DPP team.

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