‘No evidence’: Court hears allegations of Brittany Higgins ‘lies’

Bruce Lehrmann cannot be found guilty of raping Brittany Higgins when there is “no DNA, no evidence”, a court has been told.

Bruce Lehrmann cannot be found guilty of the rape of Brittany Higgins when there is “no DNA, no evidence” to support the allegation and the complainant is “unreliable” a court has been told.

In his closing submissions in the ACT Supreme Court trial, defence lawyer Steve Whybrow has told the court that “reasonable doubt” means that his client should not be convicted.

Mr Whybrow raised a range of inconsistencies, including telling Lisa Wilkinson who asked her if she was wearing “panties” before the alleged rape that she was when in fact she was not wearing underwear that night.

He also cited different statements she had raised about whether or not she had gone to the doctor and whether she had ever worn the dress again after the alleged assault.

“It goes to whether or not you can convict this man of something she says he did,’’ he said.

“No DNA, no evidence. She is someone who is unreliable. Are you satisfied beyond a reasonable doubt ?”.

However, Mr Whybrow said that Ms Higgins’ “lies” did not just stop there.

“She doesn’t get that people might keep receipts,’’ he said.

“That Fiona Brown might take notes. That doctors might keep records.”

Brittany ‘doesn’t know what happened’

Prosecutor Shane Drumgold has offered a new theory to explain how Ms Higgins sustained a bruise on the night of her alleged rape telling the court it could have been sustained when she fell over in the bar.

In his closing address to the jury the Director of Public Prosecutions Shane Drumgold said there may be an explanation for the bruise that doesn’t involve the alleged rape.

A photograph of bruising on Brittany Higgins’ leg, which she told the court that she assumed was sustained during the assault is “a fabrication,’’ a lawyer for the accused Steve Whybrow has previously told the ACT Supreme Court.

During cross examination of Ms Higgins last Friday, Bruce Lehrmann’s lawyer Steve Whybrow, suggested to her that there was no reference to the bruise photo found in an examination of her phone devices, until 2021 when she provided it to journalists.

Brittany Higgins says she sustained a bruise on her leg on the night of her alleged rape.

He suggested to Ms Higgins that there was no reference to the bruise photo found in an examination of her phone devices, until 2021.

“I suggest that the photograph of the bruise and your assertion that it was an injury sustained during this assault is a fabrication?” Mr Whybrow said.

Higgins responded: “OK sure, I reject you completely.”

DPP offers new theory on bruise mystery

Mr Drumgold suggested to the jury that there may be another explanation for the bruise.

“It may have been sustained from a fall at 88mp/h for all we know,’’ he told the court.

Ms Higgins previously told the court she was so drunk she fell over onto the stairs as she was leaving and Mr Lehrmann helped her up.

Brittany Higgins: I am not a monster

During cross examination, Mr Whybrow previously put to Ms Higgins that she was embarrassed after being found naked by security and then did what she felt was necessary to make people believe she had been assaulted.

“I’m not a monster. I would never do something like that,” she replied.

Brittany Higgins leaving court in Canberra earlier this week. Picture: NCA NewsWire / Gary Ramage

“You’re asserting to me that I have completely fabricated this just to keep a job.

“He was in there. He was physically violating me. He was in my body. I know,” she told the court.

Brittany Higgins did not mention bruise to police on April 1, 2019

During cross examination last week, Mr Whybrow put it to Ms Higgins that she had not mentioned the bruise to the police when she first spoke to them on April 1, 2019.

Her initial meeting with police was two days before she says the photo was taken around April 3, 2019.

Ms Higgins told the court she remembered being asked to keep photos by police later and so she kept a photo of the bruise.

Mr Whybrow said that when she spoke to two AFP officers on April 1, the first she spoke, she did not mention the bruise.

“You didn’t say anything about having a big bruise on your leg, did you?,’’ he asked.

“Not that I recall to the police. Not at that point, no,’’ Ms Higgins replied.

When she spoke to Detective Harman on April 8, Mr Whybrow said he wanted to “suggest you didn’t make any reference then to you having had a big bruise on your leg?.”

Ms Higgins said she believed she did and that he asked her to keep any relevant photographs although conceded he did not specifically ask her to retain the bruise photo because, Mr Whybrow suggested, it was not mentioned.

“I want to suggest that there is no reference, you didn’t make any reference to anybody else before January 2021 to having suffered a bruise on your leg?

“I don’t believe that’s true. I don’t know who I would have particularly disclosed it to, but I think when I was relaying the events of the assault I think it would have come up.”

During cross examination, Mr Whybrow noted that while she had given evidence it was taken around 5 days later, if she took it on April 3, 2019, it would have been about 12 or 13 days after what you say happened on the night of the 22nd?

“Yes. I just remember it being Budget week and the actual date itself I don’t really recall specifically,’ she replied.

Bruce Lehrmann arrives at court with his solicitor Rachel Fisher. He is accused of the sexual assault of former Liberal staffer Brittany Higgins. Picture: NCA NewsWire / Photox / Ben Appleton

‘She doesn’t know what happened’

Ms Higgins “doesn’t know” what happened to her on the night she claims she was raped, Defence barrister Steve Whybrow has told the jury.

“You can probably sum up this case in the kindest way to Ms Higgins...and say she doesn’t know. She doesn’t know what happened,’’ Mr Whybrow said.

“She talks about what the guard saw..because she has reconstructed and it is my submission to you that she doesn’t know what happened.”

Mr Whybrow dismissed the prosecutor’s submission that a bruise she sustained could have been caused by falling over and not the alleged assault.

“You will remember right at the beginning, she got the wrong leg,’’ he said.

“They didn’t tender (the bruise photo) because she may have fallen down on 88MPH.

“It was tendered because she said sustained when her legs were ‘spread open on the lounge’.”

Mr Whybrow told the jury that they may notice he didn’t ask questions about how the sex may have happened as she describes being wedged in a lounge in Defence Industry Minister Linda Reynolds’ office.

“(But) ask yourself is that even reasonably possible. Is that even possible the way she said it happened,’’ he said.

“We have this suggestion at the start of the case that she took a photograph of the bruise.

She also signed a statutory declaration in 2021 that the bruise photo was taken on April 3, 2019.

“If she absolutely lied about that in a statutory declaration in 2021,” Mr Whybrow said it was reasonable to question her claims about 2019.

Lost WhatsApp messages

During cross examination, Ms Higgins also said she had lost some material when she was handing back government devices.

“No, no, I lost all of my WhatsApps when I transitioned my phone so I lost all of my WhatsApps from essentially like when I transitioned my

phone and handed back all over my devices to the government because I don’t own my devices,’’ she said.

“I didn’t realise I hadn’t backed up my WhatsApp so I had no qualms with this. I am not ashamed of any of these communications.

“But I don’t have them anymore.”

Digital expert examines phone for bruise photo

A digital forensic expert tasked by police with examining Brittany Higgins’ phone has told the court that there is no mention of the bruise in her text messages until February 2021.

Peter Reid, who examined Ms Higgins phone said there was no metadata on the photo to firmly date the image, which he said sometimes occurred when images were uploaded to Google, or WhatsApp or other apps it removed metadata.

The prosecution asked Mr Reid about the download of material which he said he did “to the best of my ability.”

“We don’t know what we don’t know,” he said.

On the 27th of July, shortly before Mr Lehrmann was charged on August 6, Mr Reid examined the Google account and the bruise photograph.

“Was metadata lacking?,” the prosecutor Skye Jerome asked.

“Yes,” Mr Reid replied.

During cross examination, barrister Steve Whybrow asked if there was any reference to a bruise in text messages or whether he found the original image.

“You did not find that photograph in the 8000 images?,” he asked.

Mr Reid said it was only on the Google download.

He was then asked about any text messages mentioning a bruise.

“Is it the case that there is no reference to any bruise until 2021?”.

Mr Reid confirmed this was the case.