Brittany Higgins’s elusive iCloud password delayed police completing brief of evidence for DPP
The investigation into Brittany Higgins’ rape allegation faced repeated delays because police could not access her cloud drives, which detectives believed contained potentially crucial evidence including emails and photos.
The investigation into Brittany Higgins’ rape allegation faced repeated delays because police could not access her cloud drives, which detectives believed contained potentially crucial evidence including emails and photos.
New documents released by the Board of Inquiry into the ACT’s criminal justice system reveal that senior detectives were desperate to access Ms Higgins’ iCloud account as they worked to complete their brief of evidence for the Director of Public Prosecutions in mid-2021. But after finally gaining access, weeks later, the material they sought was not there.
Files notes made by ACT Victims of Crime Commissioner Heidi Yates, tendered to the inquiry, also reveal that Ms Yates requested Finance Minister Katy Gallagher’s former adviser Emma Webster be allowed to act as a second support person for Ms Higgins at court during Bruce Lehrmann’s trial in October.
Exhibits published by the inquiry reveal repeated attempts by police to obtain photos Ms Higgins took on the night of the alleged rape, as well as emails between her and Mr Lehrmann.
On June 3, 2021, Detective Inspector Marcus Boorman emailed Ms Yates seeking access to Ms Higgins’ iCloud account.
“Following up from our recent engagement with Brittany on 26 May 2021, investigators require the following to assist the investigation,” he wrote.
“Brittany’s iCloud password, as discussed with her when we last met. The passwords Brittany provided on the day are incorrect, and Brittany did mention they may be old ones or similar.
“Investigators require access and as such request Brittany provide us with current passwords.”
Ms Yates then called Mr Sharaz to pass on the request to Ms Higgins before forwarding the detective’s email.
On June 8, Ms Yates emailed Inspector Boorman, who was the crime manager of ACT Policing’s Major Crime unit, saying she hoped to provide him with an update soon. “Brittany is willing to provide this, she is just in the process of ascertaining the correct password,” Ms Yates wrote.
Mr Sharaz then texted Ms Yates, saying: “Britt concerned about providing an iCloud password. Concerned re privacy.”
Ms Yates texted Ms Higgins asking if she would like to discuss her concerns but received no response. On June 10, Mr Sharaz called Ms Yates but the notes made of their call have been redacted. She then tries to call Ms Higgins who does not answer, before calling Inspector Boorman.
“Don’t want to presume what she’s thinking, but in effort to try and move things forward, conscious that one possibility is that she’s feeling stuck,” Ms Yates says.
“Doesn’t want to stand in the way of the investigation, but is hesitant about handing over iCloud password in terms of the significant personal material available – including material about loved ones.
“Bulk of this material won’t be relevant to investigations.”
Ms Yates then tries to negotiate with the senior cop “whether there’s any other way for us to go about this” that will help police “get the info they need” while protecting Ms Higgins’s privacy.
Ms Yates then exchanged calls and texts with Ms Higgins and Mr Sharaz. The content of these communications has been redacted.
On June 14, 2021 Boorman emailed Ms Yates saying that police needed full access to Ms Higgins’ iCloud account.
“From the outset of the investigation Brittany was informed of the investigation process and that these types of investigations can be quite invasive and this is unavoidable in sexual assault investigations,” he wrote.
“In addition I have been advise investigators explained to Brittany a number of times
that any delay in accessing data or undertaking mobile phone examinations has the potential to decrease the evidentiary value in these matters; however, it is the right of any victim to decide whether or not they will permit police to undertake any such examinations.
“I have conversed with the investigation team regarding how or what we may do to alleviate Brittany’s privacy concerns and unfortunately investigators require full access to all electronic data for the purpose of identifying relevant evidence in relation to a matter and again any restriction in access has the potential to inhibit the investigation and /or investigation outcome.”
Insp Boorman said police were “at a significant point in the investigation process” and that they required a response, in writing, as soon as possible.
A couple of days later Ms Yates emailed Boorman telling him that Ms Higgins was seeking legal advice about providing her iCloud password to police.
“To confirm, I understand Ms Higgins is anxious to ensure your team can access the information they need, but also that any reasonable privacy measures that can be put in place are considered, noting she has had the phone/iCloud account for much of her adult life, and that the account includes substantial information that is not relevant to the current investigation,” she wrote.
“I have been advised this morning that Ms Higgins has sought the advice of lawyer Mr Leon Zwier … who would like to speak with you this morning on behalf of Ms Higgins in relation to identifying a way forward.”
In the following week there was constant communication between Ms Yates and Mr Sharaz, which has all been redacted.
On June 21 Ms Yates recorded notes from a phone call with Mr Sharaz during which she told him that the timeframe for the police providing their brief of evidence to the DPP “will depend on settlement of iCloud issue”.
“If iCloud material is sourced quite quickly – may only be another week or so before remainder of brief is provided,” she wrote.
On July 27 Ms Higgins provided police with the correct password to her iCloud account via email.
A police officer investigating Ms Higgins’ rape claim, Senior Constable Emma Frizzell, last month told the Sofronoff inquiry that investigators could never obtain crucial photos Ms Higgins took the night she alleges Mr Lehrmann raped her because, by the time police accessed her iCloud account, they were gone.
Supt Moller also told the inquiry that they wanted to obtain Ms Higgins showed the detectives a photo of a “drink at a bar which she alleged was taken on the night of the alleged incident”.
Supt Moller said it was significant to the investigation because the metadata attached to the photo could give important information.
“Unfortunately, we were not able to retrieve that photo by any other means after she had shown us so the only people that had seen that photo were myself, Marcus Boorman and Ms Yates,” he said.
Hundreds of communications between Mr Sharaz and Ms Yates, contained in exhibits tendered at the inquiry, have been redacted for reasons which are unclear.
The documents also reveal that in September Ms Yates asked the DPP to make an application for Ms Higgins to have Ms Webster in the courtroom whilst the complainant was giving evidence.
“As you are aware, Ms Higgins has requested that I attend as a support person, in my professional capacity as the Victims of Crime Commissioner,” Ms Yates wrote.
“Ms Higgins also requests the support of Ms Emma Webster who is a long-term friend.”
Sarah Pitney from the ODPP told Ms Yates that would not be possible.
“Unfortunately in light of previous exchanges between Ms Webster and Brittany contained in the Cellebrite report, counsel is of the view that Ms Webster may not be an appropriate support person,” she wrote.
“Of course, Ms Webster would still be welcome to attend with David and provide support throughout the day outside of the courtroom.”
Ms Webster, a top Labor Party operative and lobbyist, accompanied Higgins to court each day that she attended Mr Lehrmann’s trial.
The 29-year-old’s trial was sensationally aborted in October due to juror misconduct and immediately listed for a retrial in February, before being abandoned altogether. Mr Lehrmann maintains that he is innocent.
The Board of Inquiry’s public hearings into the handling of Ms Higgins’s rape allegation and Mr Lehrmann’s prosecution have been adjourned. The findings of its chair, Walter Sofronoff KC, are due on July 31.
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