'It's all about what happened on that couch'
The jury in the Bruce Lehrmann rape trial have been given three things they must consider before reaching a verdict.
Day 11 of the high profile rape trial will hear the final submissions from Lehrmann's legal team in Canberra.
The jury in Bruce Lehrmann’s high-profile rape trial has been warned “there’s no blueprint” for how someone might respond to a sexual assault and that securing a $325,000 book deal after the alleged incident does not necessarily impact on Brittany Higgins’ credibility.
ACT Chief Justice Lucy McCallum on Wednesday directed the jury to use “common sense” as they deliberated what the defence described as the “$325,000 question” of whether the former Liberal staffer raped Higgins in their boss’s ministerial office more than three years ago.
Defence barrister Steven Whybrow also told jurors, during his closing argument, there was “no reliable or trustworthy evidence in this case” and that Higgins “doesn’t know what happened” in the early hours of March 23, 2019, when she claims his client raped her.
This comes as the case, originally set down for six weeks, draws to a close after less than 12 days in court. About 20 witnesses were dropped from the witness list, during the second half of the trial, with little notice.
The Australian understands no reason was provided to those witnesses as to why they were no longer being called but that it could be for a range of reasons, including strategy, efficiency and eliminating duplication of evidence.
Throughout the trial, Chief Justice Lucy McCallum repeatedly reminded the crown prosecutor and defence barrister not to canvass evidence that had already been heard. It is also not uncommon for witnesses to be stood down from giving evidence once proceedings are underway.
On day 12 of the trial in the ACT Supreme Court, the defence completed its closing arguments before Justice McCallum spent more than two and half hours instructing the jury on points of law.
Justice McCallum told the jury, as it retired to deliberate its verdict, not to become distracted by issues other than “what happened on the couch” in the office of then-defence industries minister Linda Reynolds in the early hours of March 23, 2019.
“It’s easy to become distracted by other issues but it’s about what happened on that couch,” she said.
She said the case was not about young people’s alcohol consumption, whether Higgins liked her bosses, the #MeToo movement or book deals.
“It’s about what happened on that couch.”
The Chief Justice said the jury should be careful not to make assumptions about how someone would act following an alleged rape or invoke preconceptions or stereotypes about events they had never experienced.
“There’s no blueprint for life and no blueprint for sexual assault and how a young woman might respond to sexual assault,” she said.
Justice McCallum said the jury had to clinically assess the evidence without emotion and arrive at their conclusions fearlessly and impartially.
Judge McCallum She said the prosecution had identified alleged lies by Lehrmann given at various times to explain why he returned to Parliament House with Higgins at 1.40am on March 23, 2019.
These reasons included fetching his apartment keys, collecting documents, preparing question time folders and drinking whiskey.
Justice McCallum noted the prosecution said the different accounts pointed to guilt but she said people could lie for a number of reasons, including fear or panic, and the defence had pointed out there were no keys in the tray when Lehrmann went through Parliament House security.
“The conduct of telling a lie can be explained in other ways, out of panic or to escape some other accusation,” she said.
Justice McCallum told jurors to remember that everyone was entitled to the presumption of innocence and the onus remained on the prosecution to prove guilt.
Therefore, Justice McCallum said, the correct question for jurors to consider was not whether Higgins had made up the allegations of rape.
“The correct legal question is whether the prosecutor has proved the guilt beyond reasonable doubt,” she said.
Justice McCallum said accounts of the alleged rape Higgins gave to others over three and a half years were allowed as evidence to demonstrate a consistency in her claims but told jurors saying something repeatedly did not necessarily mean it was accurate.
She said the jurors would need to assess whether a witness was honest or reliable, noting memory and observations of events could be defective while some events were more likely to be imprinted in memory than others.
Justice McCallum said the principal issue in the trial was whether sexual intercourse took place and – if it had – whether Higgins consented.
She said consent had to be given freely and communicated through words or actions to the other person and a person could not consent if they were unconscious, asleep or too intoxicated.
The jury also needed to consider, Justice McCallum said, Lehrmann’s state of mind and whether he was reckless towards whether Higgins was consenting.
Justice McCallum said Higgins had spent the most time in the witness box of any witness.
She said Lehrmann had a right not to give evidence and was not required to give an interview with the Australian Federal Police, which he did on April 19, 2021. “The decision not to give evidence cannot be used against him anyway,” she said.
Justice McCallum said the decision not to take the stand was not an admission of guilt and the onus of proof never shifted from the prosecution to the defence. “The accused must be found not guilty if the burden of proof hasn’t been met,” she said.
Before the judge’s warning, Lehrmann’s barrister assured the jurors “you will have reasonable doubt” because Higgins evidence was “not reliable or honest”.
“The $64,000 question – or perhaps, in Higgins's case, the $325,000 question – is ‘do you accept beyond reasonable doubt that he was there and sexually assaulted her?’.”
Whybrow said that Higgins didn’t go to a doctor or make a police complaint following the alleged rape.
“We get to end of 2020, start of 2021, and she talks to (journalist) Samantha Maiden, talks to The Project, talks to police, gets a book deal for $325,000, this is a big story,” he said.
“There are at least 325,000 reasons why this case is now important to her from her perspective.”
Whybrow said Higgins's evidence contained manipulation, deception, lies or was “less than frank” and asked jurors if they could be “satisfied beyond reasonable doubt” that her version of events was accurate.
“Is she that good of an actor? Who knows,” he said.
“We have these things called con artists because demeanour is difficult to pick up on sometimes.
“I’m not suggesting Higgins's demeanour or the way she reacted in that witness box was an act. I don’t know.
“You, ladies and gentleman, saw it, the way she presented in the first part of her evidence. When she came back she was more combative and aggressive.
“She doesn’t know what happened and she has reconstructed events to the point she now genuinely believes them to be true. It doesn’t mean they are true. It doesn’t mean that what she’s telling you happened.”
Whybrow said that Lehrmann’s demeanour and “the way he answered questions” during his police interview told another story.
“About how his life came crashing down out of the blue over a night he had not thought of since,” he said.
“They were powerful and compelling genuine statements.
“This (rape) did not happen.”
Whybrow urged the jury to consider whether Higgins was a “reliable historian” and whether her account was sufficiently reliable to convict Lehrmann of this charge.
Whybrow said instead of contemporaneous evidence of the alleged rape, there were “contemporaneous lies”.
He said there was no DNA and no evidence other than Higgins's statements and observations of her demeanour over the last three and a half years.
“There’s no contemporaneous medical complaint, there is in fact contemporaneous lies,” he said.
Whybrow said that on April 8, 2019 the police told Higgins not to delete any photos from the night of the alleged assault but she did so anyway.
“Police extracted 8000 photos from that night and the bruise photo was not one of them,” he said.
He said there was no reference to the bruise in any of her communications until January 2021.
“That bruise was the equivalent to going to the doctor in 2019,” he said.
“It’s something she made up to make it sound more believable.”
He said the bruise photograph is a “very important piece of evidence”.
“If you form a view that she may have fabricated that … it goes to forming a view beyond reasonable doubt,” he said.
“She’s someone you can’t rely upon as being honest, reliable, credible or she just doesn’t know.”
Whybrow said the crown’s assertion that Higgins did not proceed with a police complaint out of fear of losing her “dream job” was false.
“There is not one skerrick of evidence to suggest that her job was remotely at risk,” he said.
Whybrow said the crown’s own case – that Higgins feared losing her dream job – “demonstrated the motive” for her to make up the allegation.
Whybrow He also disputed Higgins's remarks in the witness box that she wasn’t expecting as much media attention as her allegations garnered.
Higgins told jurors she expected to participate in just one print and television interview before retreating into anonymity but the story had snowballed.
Whybrow said Higgins’s comments to the AFP when she resumed a formal complaint were made after the media interviews with Lisa Wilkinson and Samantha Maiden, and after she had planned out chapters for her book, for which she received a $325,000 deal brokered by Wilkinson’s husband, Peter FitzSimons.
He said there were no political forces at play in the case of the former ministerial staffer and said Fiona Brown - then chief-of-staff to Linda Reynolds - broke down in tears in the witness box because Higgins had “thrown her to the wolves”.
He said Brown had tried to help Higgins and had an “entirely human reaction” to being falsely accused of something she had not done.
Higgins had told the court Brown made her feel like an election problem.
Whybrow said her evidence was peppered with caveats of “maybe”, “potentially” and “kind of”.
After the defence’s closing remarks and the judge’s directions, four jurors – chosen through a random ballot process – were discharged from jury duty after being thanked for their participation.
The slimmed-down panel, consisting of four men and eight women, retired at 3pm on Wednesday (Wednesday) to decide if Lehrmann is guilty of sexual intercourse without consent and recklessness as to whether Higgins was consenting.
Lehrmann’s gaze went from ACT Chief Justice Lucy McCallum to the jury as they left the courtroom, one by one, to begin their deliberations.
At 4pm, the jurors were dismissed for the day and will return at 10am on Thursday.
There is no limit on how long the jury may consider its verdict but it must be unanimous.
The Oz's live coverage from court
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 half3½ 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.
The case continues in the ACT Supreme Court today.
The Oz in court
10.22am - Bruise was 'made up'
Steven Whybrow, representing Bruce Lehrmann, has accused Brittany Higgins of "making up" a bruise she said was sustained during the alleged rape on the couch of then cabinet minister Linda Reynolds on March 23 in 2019.
Whybrow, finishing the closing statement of the defence on Wednesday, said Higgins presented the bruise to The Project host Lisa Wilkinson to make her allegations "more believable".
"It’s something she made up to make it more believable," he said.
"She turns up to Lisa Wilkinson and shows her the photo of the bruise."
Whybrow said jurors could not accept beyond a reasonable doubt Higgins evidence, saying she was not reliable or honest or possibly didn't know what had happened.
10.29am - Higgins 'believes' things to be true
Whybrow said it was possible Higgins had convinced herself the allegations of rape were true after reconstructing the event in her head.
"She doesn't know what happened and she's reconstructed events to the point she now genuinely believes they're to be true," he said.
"That doesn't mean they are true. If she's convinced herself in the witness box this has happened it might be entirely genuine."
10.32am - Not expecting the attention
Whybrow has attacked Higgins comments in the witness box that she wasn't expecting as much media attention as her allegations garnered.
Higgins told jurors she expected to only complete one print and television interview before the story snowballed.
Whybrow said Higgins comments to the AFP when she resumed a formal complaint were made after the interview and after she had planned out chapters for her book, for which she received a $325,000 offer secured by columnist Peter FitzSimons.
Whybrow said Higgins has built a "concatenation" of things she's been told to reconstruct the events of March 22 and 23 in 2019.
He said he wasn't criticising Higgins honesty but just that she didn't have a "genuine recollection" of what had happened.
10.46am - The money in the middle
Whybrow has told jurors the "$325,000 question" is whether they accept beyond a reasonable doubt allegations Lehrmann raped Ms Higgins.
He said Lehrmann did not follow Higgins into the office and didn't feel responsible for her.
Whybrow said jurors needed to consider the reliability of Higgins and whether she can "recall what happened".
11am - No evidence just 'lies'
Whybrow says instead of contemporaneous evidence of the alleged rape there are "contemporaneous lies" Higgins told about visiting a doctor.
He said there was no DNA and no evidence other than Ms Higgins' statements and observations of her demeanour over the last three and a half years.
"There's no contemporaneous medical complaint, there is in fact contemporaneous lies," he said.
"There’s no photo of a bruise and we've had in my submission a rational, plausible and reasonable explanation as to why she might raise a false complaint."
Whybrow reiterated Higgins was concerned about preserving her career in politics after being found naked on her then boss' couch.
11.21am - No evidence, no 'political forces at play'
Whybrow has finished his final statement by reminding jurors his client is entitled to the presumption of innocence and said there was no evidence that breached the standard of beyond reasonable doubt.
He said there were no political forces at play in the case of the former ministerial staffer and said Fiona Brown - then chief-of-staff to Linda Reynolds - broke down in tears in the witness box because Higgins had "thrown her to the wolves".
He said Brown had tried to help Higgins and had an "entirely human reaction" to being falsely accused of something she had not done.
Previously Higgins has told the court Brown made her feel like an election problem.
Whybrow said Higgins had consented to her former partner Ben Dillaway contacting the office of the Prime Minister on her behalf to seek support.
11.31am - The defence rests, jury to be culled
ACT Chief Justice Lucy McCallum is now giving her directions on the law to the jury and will summarise the case.
As there are 16 jurors, Justice McCallum will have to cull four members of the jury before they retire to consider the verdict.
The four jurors will be chosen through a random ballot process.
11.42am - Judge recaps trial
Justice McCallum said everyone is entitled to a presumption of innocence and that the onus never shifts from the prosecution to the defence.
She said the correct question is not on whether Higgins made up the allegation but whether the prosecution has proved guilt beyond reasonable doubt.
McCallum said Drumgold, for the prosecution, and Whybrow, for the defence, had very different styles and reminded the jury the lawyers were advocates for either side of the case.
11.47am - Jury urged to use commonsense
Justice McCallum has told the jury they are expected to use their commonsense as they evaluate their evidence and use their understanding of human nature and their ability to judge people.
She said jurors should not reject the entirety of a witness's evidence if they reject one part.
McCallum said jurors will need to assess whether a witness is honest or reliable and said memory and observation of events could be defective.
She said some events were more likely to be imprinted on the memory than others and jurors against invoking stereotypes or preconceptions about events they've never experienced.
12.09pm - The three elements of the case
Justice McCallum said the law in the trial of Bruce Lehrmann was quite straight forward and concerned the "factual issue" of whether alleged rape happened.
McCallum broke the alleged offence down into separate elements.
The first is whether sexual intercourse happened, which she said was the "principal issue" in the trial.
The second is whether Higgins consented.
Judge McCallum said under law, consent was given freely and communicated to other person, whether verbally or physically.
She said a person does not consent if they are unconscious, asleep or too intoxicated.
McCallum said if you accepted Higgins' version of events she was unable to consent as she awoke during the alleged rape before saying no several times.
She said the third element of the offence is whether Lehrmann was reckless towards whether Higgins was consenting, which concerned his state of mind at the time of the alleged rape.
12.16pm - Lehrmann's choices
Justice McCallum has told jurors Lehrmann's decision not to enter the witness box cannot be read as an admission of guilt.
She said Lehrmann was entitled to say nothing and was not required to give an interview with the Australian Federal Police in 2021.
McCallum said Lehrmann must be found not guilty if the burden of proof had not been met.
12.46pm - Higgins showed 'consistency'
Justice McCallum says accounts Higgins gave of the alleged rape to others have been allowed to show consistency in her claims.
But she told the jury that the fact Higgins has said something doesn't necessarily mean it was accurate.
She said the jury should be careful about making assumptions about how someone would act following an alleged rape.
"There's no blueprint for life and no blue print for sexual assault and how a young woman might respond to sexual assault," she said.
1.11pm - Jurors asked whether Lehrmann lied 'deliberately'
Reasons given by Lehrmann to various people heard throughout the trial including to collect his keys, to fetch documents, work on Question Time briefs and drink whiskey.
She asked jurors to consider reasons Lehrmann may have lied including panic or fear of another accusation.
2.15pm - That dress and the bruise
ACT Chief Justice Lucy McCallum is going over the reasons Lehrmann gave for returning to Parliament House with Higgins and to whom he gave them.
McCallum said Higgins was a witness to the alleged assault, despite what the defence counsel has said, and said the 27-year-old had spent the most time in the witness box of any witness.
The judge is now going over the defence's statement concerning the credibility of Higgins including the bruise and the white dress.
2.56pm - Jury is downsized
Four members of the jury have been removed through random ballot, bringing the number to 12.
2.59pm - The jury is retired to decide
The jury has retired to deliberate on whether Lehrmann is guilty or not guilty of sexual intercourse without consent and recklessness as to whether Higgins was consenting.
Lehrmann's gaze went from Justice McCallum to the jury as they left the court room one by one.
4.01pm - No verdict
The jury has been adjourned, meaning no verdict will be reached today.
They will return on Thursday.
Meghan Markle’s favourite face gym is opening in Australia, Greta Thunberg publishes Andrew Tate’s contact details
All the news that's fit to mint.
Emily Ratajkowski joins the competitive world of online dating, Nick Kyrgios quits at the last minute
All the news that's fit to mint.