No winners in troubled Brittany Higgins alleged rape case
The trial that examined the alleged rape of the former Liberal Party staffer took on a momentum of its own that proved impossible to control.
Three and a half years ago Brittany Higgins, then 25, woke naked and disorientated on the office couch of her then boss Senator Linda Reynolds after a night out drinking with colleagues.
Ms Higgins would allege she was raped by her then colleague Bruce Lehrmann, also a ministerial staffer.
First to her former partner, then to her chief-of-staff, then to police but stopping short of making a formal complaint, claiming she feared for her career in the insular world of politics.
About two years after the alleged rape Ms Higgins would take her story to the press, something she said was in part prompted by allegations against then attorney-general Christian Porter published after the alleged victim’s death.
But the Porter allegations broke about 11 days after Ms Higgins’ story was published on February 26 in 2021.
Earlier the story of former Liberal staffer Rachelle Miller, who had an affair with then frontbencher Alan Tudge, was broadcast on the ABC investigative program 4 Corners.
Ms Higgins’ story was first published on February 15 in 2021, first on news.com.au and then on Network 10’s The Project.
Less than a month after Ms Higgins’ story went live, The Project co-host Lisa Wilkinson walked the former staffer onstage before thousands who’d gathered for March 4 Justice, co-ordinated protests across the country against gendered violence triggered in part by Ms Higgins’ allegations.
Dressed in white, the former staffer told the crowd the system was broken and said she’d gone public with her allegations of rape because she felt staying silent would have made her complicit.
“I came forward with my story to hopefully protect other women,” Ms Higgins said.
Ms Higgins and Wilkinson embraced.
A couple of days later Wilkinson’s husband, nine columnist Peter FitzSimons, secured a $325,000 book deal for the former staffer.
Wilkinson won a Logie for her interview with Ms Higgins and Samantha Maiden from news.com.au won the prestigious Gold Walkley for a series of stories on the alleged rape.
Prior to the story’s publication, Ms Higgins, her partner David Sharaz, Wilkinson and a producer for The Project held a strategy meeting on January 27 to discuss when was the best time to publish the story.
Ms Higgins told the court that Wilkinson and Maiden ultimately decided when the story would break.
“They both had sort of exclusive rights and they were fighting over when it would be released and who did what and who got the exclusive drop so that come Walkleys [Walkley Awards] time, who could claim what,” she told the court, later clarifying she did believe Wilkinson and Maiden genuinely cared about the issue of the treatment of women.
Ms Higgins gave a formal interview to police on February 24 in 2021 – nine days after the story broke – and Mr Lehrmann was formally charged about six months later in August.
He pleaded not guilty to charges of sexual intercourse without consent and recklessness towards whether Ms Higgins was consenting. He denies any sexual intercourse occurred.
The trial was initially delayed after Wilkinson – then listed to appear as a witness in the Lehrmann trial – made a victory speech upon winning a Logie for her interview with Ms Higgins on July 19, eight days before the trial was due to start.
Judge Lucy McCallum said the “distinction between an allegation and the fact of guilt has been lost” as she vacated the original trial start date with “gritted teeth”.
Wilkinson and Maiden were ultimately dropped as witnesses for reasons that were not given.
The trial of Mr Lehrmann, who pleaded not guilty to charges of sexual intercourse without consent and recklenessness towards whether Ms Higgins was consenting, began on October 4.
Opening the trial, Justice McCallum said the case had taken on momentum of its own, becoming a cause célèbre.
There were 11 days of evidence and Ms Higgins appeared in the witness box on October 5, 6 and 7 and then October 15 after being unavailable to appear for several days.
She cried each time, brought to tears as she gave evidence on the alleged rape or as Mr Lehrmann’s lawyers attacked her credibility and accused her of fabricating the allegations.
The most intimate details of her life were dissected over the trial, including relationships with former partners, her emotions and her decision to not wear underwear under a white dress on the evening of the alleged rape.
Ms Higgins told the court she began taking valium after the story broke, unable to cope as the story snowballed.
Barrister Steven Whybrow SC, representing Mr Lehrmann during the trial, accused her of being a liar who had fabricated the rape allegation.
Her partner David Sharaz handled the barrage of calls from journalists and at one point passed on a dossier and timeline prepared for police to journalists, a decision he came to regret as the material spread through the press gallery.
Ms Higgins told the court she had only imagined giving one print and one television interview but later conceded she had passed the dossier on once herself.
Only one account of Mr Lehrmann’s version is on the public record. He did not appear as a witness and has declined media interviews.
In an interview with the AFP on April 19 in 2021, Mr Lehrmann said when the allegations were published, his world was rocked, his career was over and he contemplated suicide.
Mr Lehrmann said he had hardly thought about what he described as an innocuous night out drinking with colleagues, something that happened regularly in Canberra, before the story was published almost two-years later.
“I was ready to go,” Mr Lehrmann told AFP detectives Marcus Boorman and Emma Frizzell.
“That week I wound up everything [to] just kind of go. My single mum was going to be OK, she can get my super.”
About three months after Mr Lehrmann was charged, Ms Higgins and Ms Tame together graced the cover of Marie Claire for the magazine’s women of the year edition.
Ms Higgins told the magazine that most women have or know someone with a story similar to hers and said change had to come from the top down.
“I encourage women to feel empowered to speak up, call out bad behaviour and share your truth with the confidence of knowing you have a generation of women ready, willing and able to support you,” she said.
Ms Higgins told the jury she chose not to proceed with a formal complaint because it was made clear to her it would jeopardise her job and the upcoming 2019 election.
This account was disputed by Linda Reynolds, who on Ms Higgins’ first day in the witness box texted the defence counsel asking for transcripts and advising them to check her former staffer’s texts.
Senator Michaelia Cash, Ms Higgins’ employer after Senator Reynolds, and her chief-of-staff Daniel Try told the court she didn’t treat Ms Higgins’ complaint as a political problem and said they offered her another job.
Ms Higgins claims her allegation was mishandled and she was treated as a political problem by the Liberal Party, triggering a number of inquiries, including an independent investigation led by Sex Discrimination Commissioner Kate Jenkins that found one in three staffers working in parliament had experienced sexual harassment.
The Jenkins review found a “culture of “bullying, sexual harassment and sexual assault” and made 28 recommendations including the government making a statement of acknowledgment and establishing a leadership taskforce.
On February 8 this year, then prime minister Scott Morrison directly apologised to Ms Higgins in parliament and thanked the former staffer for her role in shedding light on the issues faced by parliamentary employees, particularly women.
“I am sorry to Ms Higgins for the terrible things that took place here … but she had the courage to speak, and so here we are,” he said.
A day later on February 9, Ms Higgins spoke alongside Ms Tame – who has also become a champion for victims of sexual assault over the past two years – at the National Press Club.
Ms Higgins said she recognised the significance of Mr Morrison’s apology.
“I felt an enormous moment of grief, obviously,” she said.
“I was quite emotional, and upset. But I recognise the significance and the importance of it.”
Under ACT law, charges of sexual intercourse without consent must be tried by a jury.
Mr Lehrmann sought a stay on proceedings due to the publicity around the case and said Mr Morrison’s apology was “particularly egregious as it imputed the accused with guilt of the offence or at least implicitly assumed the truthfulness of the complaint”.
The evening before the alleged rape on March 22 in 2019, Ms Higgins was drinking at The Dock in Kingston with Lauren Gain, then a communications adviser to the defence department, and industry contractors.
The evening was caught on CCTV.
Ms Higgins is tanned, her brown hair flowing and she wears a long white dress and black heels as she drinks, the group crowded around the table.
Mr Lehrmann had a steak and a beer with Austin Wenke, then a media adviser to Peter Dutton, at the nearby Kingston Hotel before meeting the others at The Dock.
Ms Higgins had 11 drinks at The Dock, skolling the last one.
Mr Lehrmann said he wasn’t “carrying on” because he was conscious he was drinking with officials from other departments.
When The Dock closed at about 11pm, Mr Lehrmann said he suggested he, Ms Higgins, Ms Gain and Mr Wenke go to the 88mph club in Civic because he liked ’80s music.
Ms Higgins said she was the drunkest she had ever been.
Mr Lehrmann said he had a boogie at the 88mph club and got close to Ms Higgins but nothing beyond a little flirtatious because he had a girlfriend.
Ms Higgins started drinking shots and said she fell over at least once, falling forward on stairs.
She scraped her knee. Mr Lehrmann helped her to her feet.
Mr Lehrmann said Mr Wenke and Ms Gain got close and left the club together.
He said he suggested he and Ms Higgins share an Uber home via work because he needed to get his keys from Parliament House and because he was trying to be a gentleman.
He said Ms Higgins said she also needed to collect something but he did not ask what.
Ms Higgins did not mention needing to collect something in her evidence and said she did not question Mr Lehrmann.
The pair arrived at the rear entrance at Parliament House at about 1.40am and buzzed security because neither had their work passes.
Mr Lehrmann said at this point Ms Higgins seemed fine and said they were both moderately drunk, putting their intoxication levels at seven.
Ms Higgins said she was “obliterated” by alcohol and remembers signing in but when she saw the form it was not her handwriting.
Parliament House security manager Mark Fairweather told the jurors he could smell alcohol on Ms Higgins and Mr Lehrmann when they passed through security.
Mr Fairweather said Mr Lehrmann must have signed Ms Higgins into Parliament House.
CCTV footage played to the court showed Mr Lehrmann and Ms Higgins passing through security and putting their belongings through the scanner.
Mr Lehrmann does not put keys in the scanner box.
Ms Higgins, passes through the security scanner twice before removing her black heels and walking through a third time.
She struggles to put her shoes back on as Mr Lehrmann, arms folded, watches her from the corridor entrance before walking off.
Ms Higgins gives up and follows Mr Lehrmann barefoot on the blue carpet to the door to Senator Reynolds’ office, which is opened by a security guard at about 1.48am.
In Mr Lehrmann’s version, he went left towards his desk while Ms Higgins went right towards the ministerial office. He said this was the last time he saw her.
Mr Lehrmann said he then worked on question time folders, missing six phone calls from his then girlfriend before leaving the office without checking on Ms Higgins or saying goodbye.
“There was nothing in my mind that said I need to be looking after her,” he said.
CCTV footage showed Mr Lehrmann passing back through the security scanner and leaving the building at 2.33am.
Mr Lehrmann has given a number of reasons to different people for returning to Parliament House with Ms Higgins, including getting his keys, fetching documents and drinking whiskey.
The couch where Ms Higgins alleges Mr Lehrmann raped her is a leather two-seater lounge next to an Australian flag in front of the minister’s desk.
She alleged she was woken by a sharp pain in her left leg mid rape to find Mr Lehrmann grunting and sweating on top of her.
Ms Higgins said her head was jammed into the right corner between the headrest and the armrest as she stared out the window looking over the Prime Minister’s courtyard.
She alleged she cried “no” about half a dozen times, telling the court she felt like a “prop”, her legs “spread open” by Mr Lehrmann’s knees.
When Mr Lehrmann finished there was a brief moment of eye contact before he left, Ms Higgins said, and she was unsure whether he used a condom.
At 4.15am Parliament House security guard Nikola Anderson performed a welfare check on Ms Higgins and found her naked on the couch in Senator Reynolds’ office.
She said Ms Higgins opened her eyes, looked at her and then rolled into the “foetal position” facing the ministerial desk.
Ms Higgins said she woke at about 8am on Saturday. She said she burst into tears, ate most of a box of Roses chocolates before vomiting in the ministerial toilet.
Ms Higgins eventually composed herself, combing her hair and grabbing a jacket from donations for goodwill before catching an Uber home.
She first disclosed the alleged rape to her former partner Ben Dillaway on March 26 about three days later.
“From that date forward, from when she made the revelation, a light had turned off in her,” Mr Dillaway told the jury.
“She was a broken, shattered person I would say.”
On Thursday, March 28 Ms Higgins told her then chief-of-staff Fiona Brown that she remembered Mr Lehrmann “being on top of her”.
“I said, ‘Oh. Oh my god,” Ms Brown said.
“I said, ‘Are you all right? Has – has something happened you didn’t want to have happen?’
“And she just sort of looks at me and sort of goes like this, with her – so I can’t say the word, but she’s shaking her head as a ‘no’.”
A department liaison officer from Defence working in Senator Reynolds’ office at the time, Christopher Payne, said he remembered Ms Higgins became visibly upset and began crying when she spoke to him about the alleged rape days after it happened.
When Mr Payne asked Ms Higgins if Mr Lehrmann had raped her, she replied, “I could not have consented. It would have been like f--king a log”.
Kelly Higgins said her daughter became distant and lost weight and disclosed the alleged rape at a dinner in Brisbane in November 2019.
“She was almost unfamiliar in her character,” she said.
“Like, she was just so frozen in what had happened to her.”
Ms Higgins washed the white dress in the two years between the alleged rape and making a formal complaint.
Australian Federal Police senior forensic biologist Jennifer Stone said she found no semen on the cocktail dress and that washing an item makes it “substantially harder to locate any semen on an item if it had been there”.
On Ms Higgins’ last day in the witness box on October 15, Mr Lehrmann’s barrister Steven Whybrow accused her of being a liar who fabricated the rape claim to preserve her “dream job” after committing a security breach and being found in an “embarrassing state” in her boss’s ministerial office.
A defiant Ms Higgins replied she “wasn’t perfect” in her handling of the alleged assault but that she was “not a monster” who would make up a story like this to save her promising political career.
Addressing Mr Lehrmann from the witness box, Ms Higgins told her alleged rapist “nothing was fine after what you did to me”.
Ms Higgins conceded she had made mistakes in her evidence and lied to police about going to a doctor after the alleged rape.
These included the length of time she kept the white dress she wore on the evening of the alleged rape in a plastic bag, when she last wore the dress, on which leg a photo of a bruise she alleged was sustained during the rape and the circumstances of a visit from her dad.
Ms Higgins admitted misleading Wilkinson about Mr Lehrmann removing her underwear, which she said she hadn’t worn because it would have shown under her dress – saying she had been embarrassed.
“All airs and graces are gone,” she said. “My dignity has left the building a long time ago and I wasn’t wearing underwear and that is the truth.”
After a trial of three and a half weeks, ACT Supreme Court Chief Justice McCallum aborted the trial on October 27.
A security guard had discovered one of the jurors had brought in outside research, which is misconduct, on the prevalence of false rape accusation, s after accidentally knocking over a plastic folder and glancing at the title of the paper.
That day Ms Higgins told reporters outside she chose to speak against rape and injustice and she had told the truth, no matter how uncomfortable and unflattering.
“My life has been publicly scrutinised,” she said. “His has not.”
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