Court hears the 'stupidest thing' Bruce Lehrmann said

Day 10 of the high profile rape trial heard the final submissions from Higgins and Lehrmann's legal teams in Canberra on Tuesday.

Day 10 of the high profile rape trial heard the final submissions from Higgins and Lehrmann's legal teams in Canberra on Tuesday.

Rape accused Bruce Lehrmann’s lawyer has told jurors they can’t “be satisfied beyond a reasonable doubt” that Brittany Higgins knows what happened to her in the office of Linda Reynolds in March 2019 and says ​there is “no DNA and no evidence” to support her allegations of assault. 

Barrister Steve Whybrow said in his closing statement to the ACT Supreme Court that Higgins was an “unreliable” witness who said things that “suited her” and relied on talking points about trauma to cover up inconsistencies in her evidence to the jury​. 

However, in the final day of the high profile ​rape trial before the jury is released to deliberate on its verdict, crown prosecutor Shane Drumgold said Higgins was an “inherently credible witness” and that ​if her allegation was a “fabrication”, she was “quite the actor” who had remained consistent in her story over the past three and a half​3½ years. 

Drumgold said Higgins faced significant “political forces” in the wake of the alleged rape and was right to be scared for her career and to have moved forward carefully in her dealings with police.

Of the 51 witnesses that ​who had been scheduled to give evidence, only 21 appeared. The defence did not call any witnesses.

Whybrow said close examination of statements and accounts given by Higgins, who alleges Lehrmann raped her on the office couch of then cabinet minister Linda Reynolds on March 23, 2019, made the prosecution’s case “totally ­untenable”. 

“That’s the fall-back position every time by Higgins when she’s caught out by something …  I was traumatised ... I couldn’t get out of bed … I was still processing,” he said. 

“They may be entirely valid … or you might consider they’re talking points she’s sprouting every time the going gets tough.”

Brittany Higgins. Photo by Martin Ollman/Getty Images

Whybrow pointed to several ​concessions made by Higgins over the course of her evidence, including the length of time she kept the white dress she wore during the alleged rape in a plastic bag under her bed and when she had a panic attack about the alleged assault. 

“Can you be satisfied beyond a reasonable doubt that it (the rape) did happen, when she said it, how she said it?” he asked.

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

The barrister also pointed to Higgins having told AFP officers,  her former partner Ben Dillaway and then chief-of-staff Linda Reynolds ​and the then chief-of-staff to senator Linda Reynolds, Fiona Brown, that she’d gone to see a doctor when she hadn’t to make her rape allegations “more believable … That was something Higgins told to the police to make it sound more believable that she had been sexually assaulted ...  she said it to Ms Brown to make it more believable that she had been sexually assaulted,” he said​.

“The reason you don’t (go to a doctor) is because you don’t need to. You haven’t had sex with ­anybody.”

Whybrow said a photo of a bruise Higgins said was on her left leg caused by Lehrmann’s knee during the alleged rape was actually on her right leg. 

He said while Higgins said she’d taken a photo after the alleged assault on April 13, 2019, there was no medical evidence supporting whether the bruise would have remained 13 days later. 

“Our contention is it [alleged rape] didn’t happen,” he said. 

Whybrow suggested Higgins was trying to cover up what happened because it “would be pretty embarrassing” to be found passed out in a minister’s suite after “getting hammered”. 

“That’s not good for your CV,” he said.

“Is there a reasonable possibility this complaint is being made because her ‘dream job’ is, from her perspective, in jeopardy?”

Whybrow said the “kind­est” interpretation of Higgins’ actions was that she simply “didn’t know” what happened that night, given her level of inebriation.

“She doesn’t know what happened. You can’t be satisfied beyond reasonable doubt that she knows what happened,” he said.

However, crown prosecutor Shane ​Drumgold said Higgins was an “inherently credible witness” and that ​if her alle­gations had been a “fabrication”, she was “quite the actor” who had managed to fool her own mother while remaining consistent in her story over the past 3½  years.

“When she couldn’t recall something, she said so … when she didn’t know an answer, she made it plain,” he told the jury.

“Higgins didn’t seem to embellish her account of rape at all, she didn’t say it went for hours but just two to three minutes.”

Drumgold said Higgins faced significant “political forces” in the wake of the alleged rape and was right to be concerned for the continued viability of her political career if she proceeded with a formal complaint. 

“It’s clear to say that this is a young lady who was in the middle of strong political forces and we say she was right to be scared, we say she was right to be cautious and we say she was right to move forward slowly and carefully in handing her life over to police,” he said.

Drumgold pointed to evidence given by Senator Reynolds to the court on Monday, where it was revealed she texted one of Lehrmann’s lawyers asking, “Hi, do you have the daily transcripts?” during Higgins’ evidence before advising the defence counsel to check her former staffer’s text messages. 

Drumgold stressed that  the defence was in no way involved in such “political forces” influencing the case.

He said the case before the jury wasn’t about political parties, ­parliamentary culture or the “#MeToo movement”, but rather “what happened between Higgins and Bruce Lehrmann on a couch in room on Saturday the 23rd of March, 2019”.

While Drumgold said Higgins was a “genuine, upfront and honest” witness whom the jury could be “comfortable” believing, the same was not true for Lehrmann. 

He said Lehrmann told numerous people different reasons for why he went to parliament with Higgins about 1am on Saturday 23 ​March 23, 2019, including that he was going to “drink whisky”, pick up his keys and work on a question time document.

Whybrow in his closing statement showed the jury CCTV vision that captured Lehrmann going through parliamentary security appearing not to have keys with him.

Drumgold, however, said Lehrmann had told numerous people, including security and police, that he had been “requested to pick up documents” and “work on question time documents”.

“Parliament was not sitting the entire week that followed;  this was clearly not true,” Drumgold said.

“We say this (parliament) was the most convenient place to get her (Higgins) alone, not a sudden need to do some work in the middle of the night.”

Drumgold also raised questions over Lehrmann turning the lights of the office off and leaving Higgins alone in the dark before being seen by security ­“hurrying” out the building.

Mr Lehrmann said he left because his Uber ride home had already arrived, which Drumgold said was not strictly true and that ​the Uber was still three minutes away when he exited the building.

The prosecution also argued Lehrmann had an “attraction” to Higgins, harking back to evidence of an alleged incident where he attempted to kiss her weeks prior to March 23 and to comments made to colleagues where he called Higgins “good ­looking”.

Drumgold said nothing that happened in 2021, such as media interviews and book deals, should impact the jury’s view of whether or not the alleged rape in 2019 took place.

“How can something that occurred two years later … make something that happened un­happen?” he said.

Drumgold said the essence of the case was “whether Brittany Higgins made up the allegation of what happened to her on the couch alone with Bruce ­Lehrmann”.

“If she did, it was elaborate,” he said.

“She told everybody … the same story. She has done so consistently for  3½ years.”

He added that there was no way Higgins could have consented to sexual intercourse after having had about 11 drinks and falling asleep on the couch in Senator  Reynolds’ office.

“You cannot consent to something if you’re passed out,” he said.

Whybrow reminded the jury Lehrmann had “no onus to prove anything”.

“That’s very, very important in a case like this where we know there’s already been a fair bit of trial by media,” Whybrow  ​he said.

“We are here for due process, we are here for presumption of innocence.” 

ACT Chief Justice Lucy McCallum is expected to give her summary to the court on Wednesday and then release the jury for its deliberation.

The Oz's live coverage

The prosecution in the trial of Bruce Lehrmann, accused of raping Brittany Higgins, made closing submissions on Tuesday.

The defence, led by barrister Steven Whybrow, then made its case and will continue on Wednesday.

On Monday former cabinet ministers Linda Reynolds and Michaelia Cash were examined in the witness box.  

Lehrmann has pleaded not guilty to sexual intercourse without consent and recklessness as to whether Higgins was consenting during an alleged rape on the ministerial couch of Senator Reynolds.

Higgins finished her evidence last Friday and told the ACT Supreme Court while she hadn't been "perfect" she wasn't a "monster" who would fabricate a rape claim to save her career. 

READ MORE: 'I'm not a monster': Higgins rejects claims she made up rape

The Oz was in court

10.32am - AFP checks in on Higgins

Brittany Higgins told a detective she decided of her "own free will" not to make a formal complaint to the Australian Federal Police in 2019. 

ACT Chief Justice Lucy McCallum read the statement of AFP Detective Sergeant Robert Heath to jurors on Tuesday. 

In the statement, Heath said he called Higgins on May 3 in 2019 after being instructed by his superiors to ensure she was not under any duress not to proceed with a formal complaint against Lehrmann. 

"Higgins said she made the choice of her own free will," the court heard. 

Heath said Higgins said she would revisit the decision after the election "when things slowed down" and said "she was definitely not under duress".

10.38am - No more evidence

ACT Chief Justice Lucy McCallum has told the jury there will be no more evidence heard in the trial of Bruce Lehrmann, accused of raping Brittany Higgins. 

This means no more witnesses will be heard. 

Judge McCallum said the prosecution and defence counsels will now make their closing submissions before she summed up the case for the jury. 

10.48am - Case is not about "#MeToo"

Prosecutor Shane Drumgold has begun the crown's closing submission, telling the jury the case against Lehrmann is not about the #MeToo movement or parliamentary culture. 

Drumgold warned jurors not to get distracted by "red herrings" and said the case was not about political parties or movements, workplaces cultures, the experience of women in politics or the appropriateness of book deals. 

"This case is about what happened on a couch in a room," he said. 

Drumgold said Higgins actions in 2021 - such as giving media interviews or securing a book deal - did not change the consistent accounts she gave in the weeks immediately after the alleged rape in 2019.  

11.02am - An issue of consent

Drumgold said Higgins wasn't capable of consenting to sex with Mr Lehrmann because she was unconscious and incapable of consenting. 

He said consent was "freely and voluntarily given" but a female "passed out, asleep or unconscious" was not able to provide consent to sex. 

Drumgold said Lehrmann's purported motivation was putting tabs on Question Time briefs at 1.40am on Saturday March 23 in 2019 despite Question Time not taking place for at least a week. 

11.09am - 

Drumgold said "strong political forces" were at play throughout the election and the two-years Higgins worked at Parliament House and she was right to proceed cautiously with the alleged rape. 

"She was right to be scared she was right to be cautious," he said. 

He said it was "abundantly clear" these forces were still at play following testimony from Senator Linda Reynolds, who the court heard texted defence counsel at the start of Higgins evidence on October 6 asking for a transcript and advising them to check the former staffer's texts with a colleague. 

Drumgold stressed there was no suggestion the defence counsel gave Senator Reynolds the transcript or were "coached".

He said Senator Reynolds' text messages were put "as an issue of credit" of the former cabinet minister. 

11.16am - In party mode at Parliament House

Drumgold said the fact Lehrmann told party officials he'd returned to the office at about 1.40am on March 23 showed "a continuation of partying" instead of switching to work gear mode. 

He said Lehrmann was attracted to Higgins pointing to his comments to fellow Reynolds staffer Nicole Hamer, who earlier told jurors that Lehrmann commented on Higgins being good looking. 

Drumgold said it appeared Lehrmann had signed in both himself and Higgins as they went into Parliament House on March 23. 

11.25am - Alone time

Drumgold said Lehrmann's purported reason of returning to Parliament  - to put tabs on Question Time briefs was "clearly not true". 

He said the real motive of returning to the office with a "very drunk" Higgins was to be alone with her. 

12.04pm - Higgins an 'honest' witness

Drumgold said Higgins had given a "vivid and compelling" description of the alleged rape by Lehrmann and was an "inherently credible witness" who had been genuine, upfront and honest. 

He said Higgins had not wavered during her time in the witness stand and was a "young woman doing her best to recount some very traumatic events". 

Drumgold pointed to Higgins emotional and strong response to defence lawyers when she was cross examined last week and told the court: "He was physically violating me. He was in my body I know." 

Higgins earlier told jurors she was shocked into consciousness by a sharp pain caused by Lehrmann's knee pinning her left leg into the edge of the couch in Senator Reynolds' office. 

She described being jammed into the corner of the couch and said she said through tears "no" about half a dozen times. 

12.20pm - Court asked to reject claims Higgins manufactured assault

Drumgold said suggestions Higgins fabricated rape allegations to save her job and career must be rejected because there's "not a single skerrick of evidence". 

He said there was "not one piece of evidence" Higgins' job was at risk at the time of the alleged rape. 

Drumgold said Higgins then employer Senator Linda Reynolds had access to enough information during a meeting on April 1 in 2019 to realise "something of a sexual nature" had taken place in her office, hence her reference to the Australian Federal Police. 

12.34pm - Hard decisions

Drumgold said Higgins faced a fork in the road after she was allegedly raped in March 2019.

The then political staffer could keep her dream job or she could proceed with the complaint, losing her dream job as a consequence. 

He said Higgins informally spoke to the AFP in the weeks after the alleged assault but later emailed them saying she did not wish to proceed due to her "current workplace demands". 

Drumgold said the email was sent two days after then Prime Minister Scott Morrison called the 2019 election, which was "the complainant's very first election campaign". 

He said Higgins had told police and her bosses she had or was going to see a doctor in the weeks after the alleged rape - which she didn't.

Drumgold pointed to Higgins evidence that seeing a medical practitioner would have been "confronting". 

12.55pm - 'Play along'

Drumgold told the court Higgins was "completely unconscious" when Lehrmann allegedly started penetrating her on the ministerial couch of Senator Linda Reynolds. 

Drumgold said earlier Higgins drank 11 drinks between 4 and a half hours, including sculling one drink, at The Dock in Kingston before she went to the 88mph club with Lehrmann. 

He said Higgins was "told to play along to get through security" and Lehrmann signed her name on forms. 

1.08pm - 'From bubbly to withdrawn'

Drumgold said the emotional state of Higgins was observed to change after the alleged rape, both in the immediate aftermath and years later. 

He pointed to the evidence of her mother, Kelly Higgins, who described to the jury how her daughter went from excited about securing her dream job to becoming distant and losing weight. 

Drumgold also cited the evidence of Higgins' former flatmate, who said Higgins went from bubbly to withdrawn. 

1.19pm - Prosecution ends

Drumgold said Lehrmann had known Higgins for just 20-days before the alleged rape and had no reason to infer "romantic inclinations", pointing to the fact Higgins had rejected a kiss from Lehrmann weeks earlier. 

Drumgold said there was not a "single inconsistency" in Higgins' accounts of what occurred. 

"If this is a fabrication she's also quite the actor," he said, adding Higgins' consistent show of emotions pointed to "being broken". 

Drumgold said if the jury was "satisfied beyond a reasonable doubt Ms Higgins didn't make up the allegation" then they must return a guilty verdict. 

The crown prosecution has now finished their closing submissions.  

2.10pm - Lehrmann has nothing to prove: defence lawyer

Defence counsel Steven Whybrow, representing Bruce Lehrmann, has opened his closing submission by reminding jurors the onus of proof lies with the prosecution.

"Mr Lehrmann has no onus to prove anything," he said. 

Whybrow said his client had already been subject to some extent a "trial by media". 

Whybrow said the prosecution's case was not tenable and said there was no evidence Higgins "had a right to be scared" or that there were political forces at play. 

He said there were numerous instances where  Higgins expressed concern she would lose her "dream job". 

Whybrow said this fear of losing her parliamentary career was part of the motivation behind Higgins' rape allegations. 

2.24pm - Higgins 'doesn't know what happened'

Whybrow says Brittany Higgins "doesn't know what happened" after she entered the ministerial suite of Linda Reynolds at about 2am on Saturday March 23 in 2019. 

He said Higgins and Bruce Lehrmann, his client, did not have sex and said the jury could not be satisfied beyond a reasonable doubt that the allegation occurred. 

“You cannot be satisfied she actually knows what happened," he said. 

Whybrow pointed to Higgins evidence where said she was relying on accounts given by security guards and said her memory became hazy because of her level of intoxication. 

2.37pm - Higgins' processing trauma were just 'talking points'

Whybrow has suggested that Higgins' explanation for her at times patchy recall  - that she's processing trauma - are "talking points she's sprouting" when facing hard questions. 

He said nothing happened between Lehrmann and Higgins in Senator Reynolds' office.

He questioned how Lehrmann was meant to know she remained in the office and hadn't already left. 

2.45pm - Embarrassing scenes

Whybrow said "it would be pretty embarrassing" to wake up in a state of undress in Parliament House after a night out drinking, especially if one's dream job was to work in politics. 

He said it wouldn't be "good for your CV" and said Higgins tried to find out if she would be caught because she was scared of losing her job. 

Whybrow said evidence given by parliamentary cleaner Carlos Ramos - that the bathroom was clean and there was no sign of a party  - showed nothing untoward had happened in Senator Reynolds' office on March 23 in 2019. 

3.11pm - Drinking at the office the 'stupidest thing' to say

Whybrow said Lehrmann's world fell apart when allegations against him were published. 

He said Lehrmann's explanation he went back to the office to drink more whiskey was probably true and had he raped Higgins as alleged "it would be stupidest thing you could say" if trying to conceal an alleged assault. 

Other explanations for Lehrmann returning to the office - given by others throughout the trial - with Higgins including collecting his keys, fetching documents and preparing Question Time briefs. 

Whybrow said if there was footage of Lehrmann "showing any flirtatious or amorous intention towards Ms Higgins" at the 88mph club in Civic it would have made its way into the CCTV compilation shown to the court. 

3.22pm - Lehrmann assumed as Higgins' 'keeper'

Whybrow said Lehrmann said he went left and Higgins went right when they entered the ministerial suite of Senator Reynolds on March 23 in 2019.

He said there was an assumption Lehrmann was Higgins' keeper, which he said got into the "presumption argument". 

Whybrow said Lehrmann had gone to his "own little fiefdom" of three desks and worked on Question Time briefs, missing six phone calls from his then girlfriend. 

He then left Parliament House. 

Whybrow said there was no evidence to suggest Lehrmann was aware Higgins was found naked on Senator Reynolds' couch later on March 23. 

3.35pm - Doctor appointment was a 'lie'

Whybrow has accused Higgins of lying about seeing a doctor to "make it more believable" she had been allegedly sexually assaulted. 

He said Higgins told Fiona Brown, then chief-of-staff to Senator Reynolds, and her former partner Ben Dillaway to strengthen her accusations. 

Whybrow said Higgins said there was "no right or wrong way to act" if they'd suffered trauma but told the jury that did not prohibit the examination of their account. 

Whybrow said Higgins was in the "embarrassing" and "humiliating" situation of having been found passed out naked at work. 

He said Higgins was asked to re-sign the ministerial code of conduct by Brown because the then chief of staff was worried about her. 

3.52pm - Higgins prepared to 'say anything'

Whybrow has described Higgins as "unreliable" and someone "who says things to suit her".

He outlined a number of instances Higgins has forced to concede she'd given wrong evidence on including the length of time a white dress was kept in a plastic bag under her bed and a three-hour long panic attack on a day she later conceded she'd been having a valedictory lunch for [former politician] Steven Ciobo.

"The person [Higgins] bringing the allegation is prepared to just say anything," he said.

Whybrow said a dossier and timeline prepared for the Australian Federal Police was actually for the media. 

3.59pm - The defence rests

Defence counsel Stephen Whybrow has finished his closing statement.

The trial will resume on Wednesday in the ACT Supreme Court at 10am.

The Oz will be in court.