Months after Brittany Higgins participated in a recorded interview with police about her rape allegation, investigators requested she speak to them again.
An inquiry into how criminal justice agencies handled the case has heard police wanted to put inconsistencies in her evidence to her.
Police were grilled this week about how and why the interview took place and were asked whether a conversation which occurred on the same day had added to the breakdown of the relationship between the investigation team and Ms Higgins.
Bruce Lehrmann pleaded not guilty to one charge of sexually assaulting his former colleague at Parliament House in 2019, before the trial was aborted due to jury misconduct.
Mr Lehrmann has continually denied the allegation and the Director of Public Prosecutions declined to pursue a second trial due to concerns over Ms Higgins’ mental health and dropped the charge.
THE INTERVIEW
More than a week after Ms Higgins’ allegation had been published on news.com.au and aired on The Project in February 2021, the former Liberal staffer sat down for her first recorded interview with police.
In the ACT, in an attempt to reduce the harm in reporting an alleged sexual assault, a recording of the victim’s formal statement to police forms what is called the evidence in chief interview (EICI).
Typically, as was remarked later by defence barrister Steven Whybrow SC in his written statement, only one interview takes place.
But by the end of April, the inquiry heard police had grown concerned about inconsistencies in Ms Higgins’ version of events and wanted to clarify them.
Detective Superintendent Scott Moller gave evidence that after some difficulties getting in contact with Ms Higgins, Victims of Crime Commissioner (VCC) Heidi Yates had helped secure a second interview for May 26, 2021.
The inquiry heard the second EICI took place just two days before a report on the investigation was due to be submitted to the superintendent’s superior, then Deputy Chief Police Officer Michael Chew.
The brief would be compiled with other review documents for Mr Chew to make a decision whether to forward the complaint to the Director of Public Prosecutions, Shane Drumgold SC, for legal advice.
Counsel assisting Joshua Jones questioned Superintendent Moller about the value of the interview.
“In fairness to you, one new line of inquiry is exposed at the end of that interview … But otherwise, when you say ‘clarify’, really what the investigators are doing is putting inconsistencies (forward) and seeking Ms Higgins’ clarification on them,” he said.
“But isn’t the point here that the time of interviewing Ms Higgins was two days prior to a report being given to the commander seeking a decision from (Mr Chew) as to whether the matter should progress or not?”
“The second EICI, in fact, produced very little value to the investigation.”
Superintendent Moller said the timing was “not as important as the thoroughness of the evidence” and that investigators had to balance the view of “supporting and protecting the victim” and the obligation “to collect the most through evidence”.
“You accept, do you, that doing a second EICI with Ms Higgins put her wellbeing at risk?” Mr Jones asked.
“Potentially it could have, yes,” the senior police officer responded.
The DPP told the inquiry he held concerns a second interview would be “traumatic” on Ms Higgins. He said any inconsistencies should be left for defence to ask Ms Higgins at trial.
Mr Drumgold complained to the inquiry the second EICI “looked to me more like a defence cross-examination than evidence-in-chief”.
The inquiry also heard defence barrister Steven Whybrow made a similar comment to one of the officers involved, Senior Constable Emma Frizzell.
“I have to say, you did a better job in that second interview of cross-examining Ms Higgins than I ever could,” he said, according to his written statement.
Appearing before the inquiry, he walked back his cross-examination claim: “I didn’t consider she had cross-examined, but the effect of that second interview, I considered, was devastating (to the) credibility of the complainant.”
THE CONVERSATION
At the conclusion of the interview, Ms Higgins was advised by Detective Trent Madders and Ms Frizzell that other police officers wanted to have a chat with her.
In her statement to the inquiry, Ms Yates said Detective Inspector Marcus Boorman, Detective Superintendent Scott Moller and Detective Sergeant Gareth Saunders entered, taking the total number of police officers in the room to five.
The inquiry heard both Ms Higgins and VCC Ms Yates, who attended as her support person, were seated on a “low couch” at the time. Ms Yates took “brief notes” of what was said, the inquiry was told.
“This is your choice. You’re doing the process, ” Superintendent Moller said in a “harsh tone”, according to the VCC.
“We will prepare the brief. It then goes to the DPP. And at this point, it’s taken out of police hands. Once the charge is laid, it’s out of your hands. If the matter proceeds, it may be very difficult and your welfare is key.
“Things are going to get much harder from here.
“There should not be any further contact with the media. You’ve got to stop talking to the media.
“If you’re speaking to the media and this can’t go ahead, it will all be for nothing.”
Under cross-examination, Superintendent Moller said he could not recall the conversation in that detail, but he “absolutely” agreed he repeated his warning against speaking in the media.
But he did not agree that he spoke to her in a harsh tone. The senior police officer said it would be counter to the force’s “victim-centric approach”.
“I don’t accept that,” he said.
Mark Tedeschi KC, acting for the DPP, suggested the conversation taking place with five police officers around her just moments after being questioned about inconsistencies in her evidence could have been “confronting” for Ms Higgins.
“I disagree with you,” Superintendent Moller responded.
A month later, the Superintendent emailed Ms Yates and Ms Higgins to provide a status update on the case. He asked if he could speak to her again.
When Ms Higgins responded, she asked for him to only contact her through her lawyer.
“I’d prefer any information be relayed through my lawyer. Our last conversation was quite distressing and any way we can mitigate any unnecessary protracted conversations would be preferable,” she said in an email tendered to the inquiry.
“In turn, I’ll continue to respect your overt preference for my ongoing media silence.”