Brittany Higgins ‘naked and asleep’ on sofa not enough to charge Bruce Lehrmann with rape, Sofronoff inquiry told

The Liberal staffer being found undressed and asleep in Parliament House was not sufficient evidence for Bruce Lehrmann to be charged with rape, officer testifies.

Policewoman Emma Frizzell speaking on Day 11 of public hearings of the Australian Capital Territory’s Board of Inquiry into the Criminal Justice System, at the ACT Civil and Administrative Tribunal Canberra

A police officer investigating Brittany Higgins’ rape allegations has told the Sofronoff inquiry that investigators had not established all three legal requirements necessary to charge Bruce Lehrmann with sexual assault.

In evidence to the Board of Inquiry into the ACT’s criminal justice system on Thursday, Senior Constable Emma Frizzell rejected a suggestion by Mark Tedeschi KC, who is representing ACT ­Director of Public Prosecutions Shane Drumgold, that the first ­requirement was satisfied, namely, that there was “corroboration” that intercourse took place.

Constable Frizzell agreed, however, Ms Higgins was found naked and asleep in Senator Linda Reynolds’ office in Parliament House and that this was “some evidentiary support” of the fact intercourse took place.

Mr Tedeschi asked her: “Ms Higgins was seen in the complete nude in the minister’s office, asleep and then a Parliament House officer comes into the office at about 2.30 in the morning and sees her in the complete nude asleep.

“Ms Higgins wakes up very briefly and then basically rolls over and goes back to sleep. Do you agree that that is some evidentiary support of the fact that sexual intercourse took place?

Constable Frizzell: “Yes.”

ACT chief prosecutor Shane Drumgold is pictured outside the ACT Civil and Administrative Tribunal in Canberra. Picture: NCA NewsWire / Martin Ollman

The police officer also agreed that evidence that Ms Higgins was heavily intoxicated when she arrived at Parliament House supported a second element needed to charge Mr Lehrmann, being a lack of capacity to consent.

However, she said she did not believe that Mr Lehrmann’s different explanations of why he had gone to Parliament House gave rise to the third element necessary, namely a reasonable suspicion that he knew she had not consented to sexual intercourse.

Mr Tedeschi said Mr Lehrmann had provided four different reasons for why he had gone to Parliament House with Ms Higgins on the morning of March 23, 2019. “Do you agree that’s some supportive evidence of either a knowledge of lack of consent or knowledge of recklessness?” he asked the witness.

Constable Frizzell: “No”.

She said she held personal concerns about Ms Higgins’ evidence and her views remained unchanged after receiving the DPP’s advice that Mr Lehrmann should be charged.

“Whatever my thoughts were, were irrelevant. The decision to charge was not my role. My role was to corroborate and investigate this matter,” she said.

However, she acknowledged there was confusion among police about the legal test required to charge a suspect.

Barrister Mark Tedeschi KC arrives at the inquiry in Canberra . Picture: NCA NewsWire / Martin Ollman

In her statement to the inquiry, Constable Frizzell said the test was a reasonable belief the evidence supported the prospects of a conviction, but on Thursday she agreed that the standard was lower and that the question of reasonable prospects of conviction was one for the DPP.

Constable Frizzell also told the 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.

She said that she sought to interview Victims of Crime Commissioner Heidi Yates because Ms Yates had seen the photos police were chasing.

This week, the inquiry heard that Detective Superintendent Scott Moller and Detective Inspector Marcus Boorman met with Ms Yates and Ms Higgins in July 2021 to update the complainant on their investigation and ­obtain her mobile phone.

Mr Tedeschi asked if police wanted to interview Ms Yates to disqualify her from being Ms Higgins’ support person.

“No, absolutely not,” she said. “We believed that she wouldn’t have to stand aside as being a ­support person. It just may delay her ability to be within the court during the trial.”