Bruce Lehrmann’s Defence claims Brittany Higgins made up bruise in closing arguments

Defence barrister Steve Whybrow has suggested Brittany Higgins “made up” the account of a bruise after her alleged sexual assault to make her account more believable to Lisa Wilkinson.

In his closing arguments, Mr Whybrow said the bruise was “important evidence” and he also suggested that “con artists” can be convincing but stopped short of suggesting he was extending that term to Ms Higgins.

Instead, he suggested she may have “convinced herself” she was raped when that was not the case.

Bruce Lehrmann was charged with one count of sexual intercourse without consent on August 6, 2021.

He has pleaded not guilty and told police in an interview played to the court that it simply “never happened”.

“It’s something she made up to make it more believable,” Mr Whybrow said.

“She turns up to Lisa Wilkinson and shows her the photo of the bruise.”

Defence: Bruise ‘important evidence’

Ms Higgins has given evidence to the court that the image of a bruise was taken on April 3, 2019.

“It was so many days after the event,’’ Mr Whybrow said.

“That’s important evidence.”

Deleted images

He told the jury that police had told her not to delete images in 2019 but she subsequently had deleted images.

“There were 8000 photos extracted from the phone. That photo wasn’t one of them,’’ he said.

“I put it to you, I suggest that bruise. It’s something that she made up to make it more believable.”

On Tuesday, prosecutor Shane Drumgold said the bruise may have been as a result of falling over in the bar and not the alleged sexual assault.

“Yesterday the learned prosecutor gently walked away from the bruise,’’ Mr Whybrow said.

But Mr Whybrow noted the prosecution had relied on the photo as evidence.

‘Manipulation and lies’

He suggested to the jury that it was open to them to find there may have been manipulation or lies in Ms Higgins’ account.

“It’s going to a serious question: can you be satisfied that what she’s said is accurate,’’ he said.

“It may just be she doesn’t know herself.

“We have these things called con artists because demeanour is a difficult thing sometimes.”

Mr Whybrow also suggested that after Ms Higgins returned to court after she was unavailable her demeanour changed.

“When she came back I would suggest she was a bit more combative and aggressive.

“She has convinced herself this has happened. It doesn’t mean that what she is telling you actually happened.”

Bruise cross examination

During cross examination of Ms Higgins on Friday, Mr Whybrow suggested to her that there was no reference to the bruise photo found in an examination of her phone devices, until 2021 when she provided it to journalists.

“I suggest that the photograph of the bruise and your assertion that it was an injury sustained during this assault is a fabrication?” Mr Whybrow said.

Higgins responded: “OK sure, I reject you completely.”

A digital forensic expert tasked by police with examining Ms Higgins’ phone has told the court that there is no mention of the bruise in her text messages until February 2021.

Peter Reid, who examined Ms Higgins’ phone said there was no metadata on the photo to firmly date the image, which he said sometimes occurred when images were uploaded to Google, or WhatsApp or other apps it removed metadata.

The prosecution asked Mr Reid about the download of material which he said he did “to the best of my ability.”

“We don’t known what we don’t know,” he said.

On the 27th of July, shortly before Mr Lehrmann was charged on August 6, Mr Reid examined the Google account and the bruise photograph.

“Was metadata lacking?” the prosecutor Skye Jerome asked.

“Yes,” Mr Reid replied.

Court told Brittany Higgins was reluctant to hand over phone

Ms Higgins conducted her first evidence in chief interview with AFP officers on February 24, 2021 in Queensland.

Senior constable Emma Frizzell told the court that Ms Higgins did not hand her phone to police until May 26, 2021, despite being asked for it in February of that year.

Ms Higgins has told the court that the reason why she was reluctant to hand over the mobile phone on February 24, 2021 was because on that same day she conducted the police interview she learned something about the “information flow” between police and Parliament House that upset her.

“Ms Higgins had referred to a media article or something that was in the media that morning in relation to Minister Dutton,’’ Ms Frizell told the court.

“As a result of that she was concerned about the information flow.”

Peter Dutton revelation ‘terrified’ Brittany Higgins

Ms Higgins told the court on October 7 she was “terrified” after discovering contact with police was ultimately reported back to then Home Affairs Minister Peter Dutton before the story broke.

In his closing address on Tuesday, prosecutor Shane Drumgold said she was “right to be scared”.

She discovered this on February 24, the same day she spoke to police and was supposed to hand over the phones.

“Before I had given a formal statement to police there is a provision that any politically sensitive, I don’t know, potential court cases, like politically sensitive matters that are within the remit of police gets reported to the home affairs minister,’’ she said.

“Peter Dutton came out and said that he had the baseline information of my complaint before I even gave an evidence-in-chief interview. I know how information flows within the ministerial wing. I was very, very scared.

“So I was seeking legal advice to know my rights because I was terrified.”

Three months later, the AFP conducted a second police interview in Canberra on May 26.

At that meeting she agreed to hand her mobile phone to the police to download all of the messages and photographs on the device.

Police then examined Ms Higgins phone on July 9.

On July 14, Ms Higgins provided two further phones.

The court was told Ms Higgins did not mention the bruise to police on April 1, 2019

Mr Whybrow said that when she spoke to two AFP officers on April 1, the first she spoke, she did not mention the bruise.

“You didn’t say anything about having a big bruise on your leg, did you?,’’ he asked.

“Not that I recall to police. Not at that point, no,’’ Ms Higgins replied.

When she spoke to Detective Harman on April 8, Mr Whybrow said he wanted to “suggest you didn’t make any reference then to you having had a big bruise on your leg?.”

Ms Higgins said she believed she did and that he asked her to keep any relevant photographs although conceded he did not specifically ask her to retain the bruise photo because, Mr Whybrow suggested, it was not mentioned.

“I want to suggest that there is no reference, you didn’t make any reference to anybody else before January 2021 to having suffered a bruise on your leg?

“I don’t believe that’s true. I don’t know who I would have particularly disclosed it to, but I think when I was relaying the events of the assault I think it would have come up.”

During cross examination, Mr Whybrow noted that while she had given evidence it was taken around five days later, if she took it on April 3, 2019, it would have been about 12 or 13 days after what you say happened on the night of the 22nd?

“Yes. I just remember it being Budget week and the actual date itself I don’t really recall specifically,’ she replied.

Lost WhatsApp messages

During cross examination, Ms Higgins also said she had lost some material when she was handing back government devices.

She had not deleted images she said for an improper purpose.

“No, no, I lost all of my WhatsApps when I transitioned my phone so I lost all of my WhatsApps from essentially like when I transitioned my phone and handed back all over my devices to the government because I don’t own my devices,’’ she said.

“I didn’t realise I hadn’t backed up my WhatsApp so I had no qualms with this. I am not ashamed of any of these communications.

“But I don’t have them anymore.”

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