Jury in Lehrmann trial retires to consider verdict in Brittany Higgins’ alleged rape

The jury in the trial of Bruce Lehrmann, the staffer accused of raping Brittany Higgins in Parliament House, has retired for the day.

The jury in the trial of Bruce Lehrmann will re-commence its verdict deliberations in the high profile rape case on Thursday.

On Wednesday, the 12 jurors retired to consider the verdict after 29 witnesses and two weeks of evidence in the politically and emotionally charged case. Deliberations ended at 4pm Wednesday, with the group to reconvene in the morning.

It comes as four of the 16 jurors were “voted off the island” by a random ballot, leaving 12 to decide Lehrmann’s fate.

Lehrmann, 27, pleaded not guilty to sexual intercourse with Ms Higgins, without her consent and being reckless to her consent, in the early hours of March 23, 2019.

The court has heard the pair returned to Parliament, just before 2am that night, after drinking with colleagues.

From that point in the evening, their versions of events irreconcilably split.

ACT Director of Public Prosecutions, Shane Drumgold SC, said Lehrmann raped a vulnerable and intoxicated Ms Higgins on the office couch of their boss - Senator Linda Reynolds.

“(Parliament House) was the most convenient place to get the very drunk and very vulnerable complainant alone in the hope she would not resist or not remember,” he told the jury in his closing address on Tuesday.

Mr Drumgold told the jury Lehrmann’s “freudian slip” came in meetings with his bosses days after the alleged rape when he told them he went to Parliament “to drink whiskey”.

He later told police, in a recorded interview with police in 2021, a different account; that he was there for work and said if he wanted to keep drinking he would have “stayed at the bar”.

The prosecutor claimed Lehrmann had lied about his reasons to return to Parliament for work - telling the jury his true purpose was to drink alcohol.

A jury of 12 people has retired to consider their verdict in the trial of Bruce Lehrmann, who is accused of raping Brittany Higgins in parliament house. Picture: NCA NewsWire / Gary Ramage

Lehrmann’s barrister, Steve Whybrow, told the court Lehrmann totally denied having sex with Ms Higgins at all.

In his recorded interview with police, played to the jury, Lehrmann said Ms Higgins went through a door toward the minister’s office and he went to his own desk to tend to documents.

He claimed he did not see Ms Higgins again that night.

Mr Whybrow suggested to the jury Ms Higgins fabricated the story to save her job and, maybe now, has come to believe her own story.

Ms Higgins told the court, in her emotional evidence, that she was raped in no uncertain terms.

“He was physically violating me, he was in my body,” Ms Higgins said.

“I know.”

Chief Justice Lucy McCallum summed up the case and gave the 16 jurors directions, according to the law, on Wednesday morning.

“Both parties have alleged lies by the key protagonist on the other side,” she told them.

She warned the jury against invoking stereotypes or preconceptions about people’s behaviour, but to use their common sense and personal history to assess witnesses.

The judge said journalists had been “practically hanging from the rafters” through the trial but instructed the jury to reach their conclusion despite concerns about how others will think or react to their verdict.

“You’re not answerable in this trial to popular opinion, no matter which way you think it sways, you’re answerable only to the oath or affirmation you took at the beginning of the trial,” she told them.

Justice McCallum explained she could only take a verdict from a jury of 12 people - an extra four people had been added to the jury in case COVID-19 took jurors out of action.

But, for the first time in Justice McCallum’s year of trials, all 16 remained until the end, partly because the trial ran far ahead of schedule.

“If you are one of the four who, as some judges put it, gets voted off the island, please don’t feel like your time has been wasted,” Justice McCallum told the jury, before thanking them for their attention.

Her associate then drew four juror numbers from a white, plastic rotating ballot box and read them out.

The jury went from 16, composed of 10 women and six men, to 12, composed of eight women and four men.

It’s unknown how long the jury will deliberate before returning a verdict.

Judge’s warning on Lehrmann’s ‘fear’

Earlier, Justice McCallum asked the jury to consider the four reasons Bruce Lehrmann gave on why he returned to Parliament House with Brittany Higgins on the night he’s accused of raping her.

In his closing address, Crown prosecutor Shane Drumgold relied on four reasons, three of which he said are lies, Mr Lehrmann gave for entering Parliament House in the early hours of 23 March 2019.

Bruce Lehrmann arrives at the ACT Supreme Court in Canberra. Picture: NCA NewsWire / Ben Appleton

Reasons given by the accused to various people, including police and his former chief of staff Fiona Brown, include to collect his keys, work on question time briefs, and drink whiskey.

Addressing the jury, Ms McCallum asked them to consider other reasons Mr Lehrmann could have lied, including out of panic or fear.

Justice McCallum told the jury Mr Lehrmann could have “feared the truth might implicate him in the commission of the offence for which he now stands trial”.

She said a person may have another reason to lie apart from suggesting their guilt.

She told the jury a lie must be “deliberately told” and it must be relevant to the offence the prosecution alleges were committed.

The chief justice also addressed Mr Lehrmann’s decision to not testify during the trial, informing the jury to not use it against him.

“The accused’s decision not to give evidence cannot be used against him in any way,” she said.

After the jury is excused, Justice McCallum said the group must decide if they believed beyond reasonable doubt that if sexual intercourse occurred, if Mr Lehrmann obtained consent, and whether he was reckless to whether she consented.

‘Con artist’: Defence questions Higgins claims

In his closing argument, Mr Lehrmann’s lawyer asked the jury to consider whether Ms Higgins may be a “con artist” during his closing argument in the high profile rape case.

On Wednesday, defence counsel Steve Whybrow quoted the prosecutor's closing Shane Drumgold said Ms Higgins would have to be “quite the actor” to make such emotional and consistent claims for three years.

“Well this is why we have these things called con artists, because demeanour is a difficult thing to pick up on sometimes,” Mr Whybrow said.

Bruce Lehrmann’s legal team have likened Brittany Higgins’ allegations of rape to those of a con artist as the trial comes to a close. Picture: NCA NewsWire / Gary Ramage

Bruce Lehrmann has pleaded not guilty to sexual intercourse without consent and being reckless to consent.. Picture: NCA NewsWire / Ben Appleton

“I’m not suggesting Ms Higgins’ demeanour, or the way she reacted in that witness box, was an act.

“She doesn't know what happened and she has reconstructed events to the point she now genuinely believes them to be true – it doesn’t mean they are true.”

He asked the jury to consider the shift in the complainant’s demeanour when Ms Higgins returned for her second session in the witness stand.

“It was different … she was a bit more combative and aggressive,” Mr Whybrow said.

“She has convinced herself that this has happened. Her demeanour in the witness box could be genuine. But it doesn't mean what she said happened.”

Mr Lehrmann has faced a 12-day trial. Picture: NCA NewsWire / Gary Ramage

Mr Whybrow also pointed to a photo of a bruise the prosecution presented to the court that Ms Higgins said she took on 03 April 2019.

But during the trial, the court was told there was no metadata to suggest the photo was taken that day.

In his closing argument, Mr Whybrow accused Ms Higgins of making up the bruise to make her story “more believable” ahead of a television interview with The Project host Lisa Wilkinson.

“It is not corroborated in any evidence anywhere,” he said.

“Can you be satisfied beyond reasonable doubt what she says is accurate?”

Mr Whybrow said the jury needed to answer one important question in the case – drawing their attention to Ms Higgins’ evidence when she told a court media personality Peter FitzSimons approached her with a six-figure book offer around the time she went public.

“In Ms Higgins’ case the $325,000 question is; do you accept, beyond reasonable doubt, what she said happened – that he went in (to the office) and sexually assaulted her?” he said.

Mr Whybrow reminded them Lehrmann denies having sex with her, and denied to police he saw Ms Higgins after she went through a door toward Senator Reynolds‘ office that evening.

It comes after Mr Drumgold gave his closing address to the jury on Tuesday, in which he said Ms Higgins had been a “credible” witness who “did not falter” in her evidence.

The trial continues.