Brittany Higgins raises the question of whether she was drugged on night of alleged rape


Brittany Higgins has raised the question of whether she may have been drugged on the night she alleges she was raped, in a submission to Bruce Lehrmann’s defamation case.

Justice Michael Lee will hand down his judgment in the matter on Monday, April 15 after he has considered the additional material raised in recent hearings and Ms Higgins’ legal submissions.

The final submissions, published by the Federal Court on Tuesday, flag a number of issues Ms Higgins now says she would have raised if she had been a party to the case and not a witness.

The AFP raised concerns in 2019 that Ms Higgins may have been drugged.

Her new submissions include material raised in a master chronology prepared by Mr Lehrmann’s legal team regarding April 4, 2019, a few days after Ms Higgins first spoke to police.

“The trial judge noted the reception into evidence of a document entitled, ‘master chronology’ which is an annexure to the affidavit of Taylor Auerbach,” Ms Higgins’ submission states.

“There is an entry that appears to be a record made by a senior AFP officer (Leanne Cross) of a meeting with the Minister (Linda) Reynolds and Fiona Brown on the 4th of April 2019.

“That record states, ‘I also have concerns from info I heard that this may have happened before and it could happen again.’ (I was referring to info that the alleged victim may have been drugged.)”

The Assistant Commissioner Leanne Close records in her notes, “we need to speak to a range of people. Security staff cleaners may have info.”

“As far as (Brittany Higgins) is aware the potential that Ms Higgins was drugged is not an issue that has been raised or explored in these proceedings,’’ her legal submission states.

“And while there is evidence now that there was ‘info’ that Ms Higgins was drugged, and that the concerns expressed in that note…the basis upon which the concerns were held was not explored.

“In the context of a serious challenge to the honesty and accuracy of Ms Higgins’ account of the events of the night in question, the potential that her perceptive and recollective abilities may have been affected other than by alcohol and trauma is an issue that she would have wished to explore.”

News.com.au does not suggest that Ms Higgins was drugged, only that the concern was raised by the AFP and her legal team claim that she would have raised it as an issue if she was a party to the case.

Justice Lee invited Ms Higgins to respond to attacks on her “credit” in the case on April 5, with Ms Higgins’ legal team, led by Nicholas Owens SC, lodging a five-page response with the Federal Court.

AFP ‘concerns the alleged victim may have been drugged’

The master chronology document was prepared by Mr Lehrmann’s legal team to assist in the criminal trial. It has now been admitted into evidence in the defamation trial.

The document refers to Assistant Commissioner Leanne Close, and her notes that Defence Minister Linda Reynolds met with her on April 4, 2019, advising Minister Reynolds “of allegations of sexual assault”.

“I also have concerns from info I heard that this may have happened before or could happen again (referring to information that alleged victim may have been drugged),” Assistant Commissioner Close wrote.

“Paul – we need to speak to a range of people. Security staff cleaners may have info.”

The metadata

According to a submission to the Federal Court defamation proceedings by Channel 10, metadata on the document, which former producer for Channel 7’s Spotlight Taylor Auerbach claims he obtained from Mr Lehrmann, shows the last changes to the document were by his barristers Steve Whybrow SC and Ben Jullienne.

Mr Lehrmann denies providing any document to Channel 7 – which will not reveal its sources.

Mr Whybrow and his legal team have denied any involvement or knowledge in how Channel 7 obtained the material and news.com.au does not suggest in any way that they were involved.

‘It’s about Brittany! On my couch there!’

The master chronology records on March 29, 2019, that Fiona Brown claimed that “Linda called – directed me to go to AFP and report the incident on her behalf, I refused. We discussed, she insisted, I refused. I said ‘you can’t, it is morally and ethically wrong. It is up to the person/victim, disempowering etc’. Heated.”

The document also records Assistant Commissioner Leanne Close’s notes of a meeting with Senator Reynolds on April 4

“I thanked her for her time. She said ‘what’s it about?’ I said there’s been an allegation of a sexual assault by a female member of her office against a male member. She said ‘I thought that’s what it would be about’,” the notes states.

“Can I bring in Fiona, my chief of staff who has specific details?” Minister Reynolds asked, according to the note referring to Fiona Brown, who is then said to have entered the minister’s office.

“Min Reynolds (said) ‘it’s about Brittany!’” the note continues. “We became aware on Tuesday that this had happened on Saturday night – on my couch there! (Minister pointed to the couch in her office).”

Senator Reynolds has denied knowing before the April 1 meeting of any rape allegation or that the incident allegedly occurred in her office.

Ms Higgins’ invitation

Ms Higgins was invited by Justice Lee to make submissions concerning findings that Mr Lehrmann’s legal team had invited the court to make on her credibility as a witness.

“The fundamental attack made by Mr Lehrmann on Ms Higgins is, of course, that she is dishonest,” Ms Higgins’ legal submission states.

“That attack should be decisively rejected. There are three broad reasons why that is so.

“First, much of the conduct that Mr Lehrmann contends is dishonest is in fact entirely consistent with Ms Higgins having been raped.

“It supports, rather than undermines, her credit.”

Missed doctor’s appointment

Barrister Nicholas Owens SC argues in the submissions that Ms Higgins’ conduct “in asking Ms Brown for a day off to go to a doctor’s appointment on but never actually going to the doctor” is consistent with being raped.

“Ms Higgins gave powerful evidence explaining her conflicted and traumatised response in the period following her rape,” the submission states.

“It is entirely consistent with contemporary understanding of the reaction of victims of sexual assault.

“Far from being evidence of dishonesty, this (and similar examples relied upon by Mr Lehrmann) is evidence entirely consistent with Ms Higgins having been raped.

Emails with Bruce Lehrmann

The submission also addresses her “incorrect statement that she did not receive any emails from Mr Lehrmann before work on the Monday after the weekend of the incident”.

“To suggest that a rape victim is dishonest because they did not recall such a trifling matter in the immediate aftermath of their rape, is to ignore both the trauma caused by the rape, and ordinary human experience of memory in relation to minor details,” the submission states.

“One thing that emerged very clearly from Ms Higgins’ evidence was her preparedness to accept that something she genuinely thought had happened, did not happen in light of objective evidence (for example, she did just that in relation to the submission concerning the dress made at [28(g)] of the Applicant’s written submissions – a mistake which is rendered even more benign by the notorious difficulty of recalling the precise quantum of the passage of time).

“To the extent that peripheral details of her reconstructed memory were wrong, it does not in any way reflect adversely upon her honesty (and her willingness to accept such matters indeed stands very much to her credit).”

Dishonesty

The legal submission argues that the balance of Mr Lehrmann’s submissions alleging dishonesty rarely rise any higher than the observance of an inconsistency in the account given by Ms Higgins at different points in time.

“There is, of course, a world of difference between an inconsistency (if such be found) and dishonesty,” the submission states.

“In Ms Higgins’ submission, none of the asserted inconsistencies in her evidence rise above the level of detail that human memory, and especially the memory of a victim of a traumatic assault, would be expected to exhibit some variance of recall in relation to.

“An unwavering, consistent and clear account of Mr Lehrmann’s rape of Ms Higgins has been given by her on multiple occasions, over many years, including under close forensic questioning.”

Brittany Higgins’ $2.4 million compo payout

Ms Higgins’ legal team also addresses her controversial compensation payout in submissions to Justice Lee.

During the defamation trial, Justice Lee asked some pointed questions about whether the Commonwealth had admitted liability.

Ms Higgins told the Federal Court that the Commonwealth did admit to a breach of duty of care. But the deed showed the money was paid out on a “no admissions” basis, which is often the case in such settlements.

“It is known that the mediation leading to the execution of the Deed occurred very shortly after the conclusion of Mr Lehrmann’s aborted criminal trial,’’ the submission states.

“The detail of Ms Higgins’ health, including mental health, during and after that trial has not been explored in evidence in these proceedings, but it is known that she was hospitalised.

“It may be inferred that her knowledge of the evidence in the criminal trial other than her own was limited by the nature of her participation, and her health and treatment.

“Ms Higgins is not a lawyer, and should not be presumed to comprehend or be familiar with a complex formal document in the same way that a lawyer is or would be.”

In his own submissions, Mr Lehrmann quotes from a line in the deed that states, “without invitation or agreement with the Claimant, Mr Lehrmann then directed the taxi to stop at Parliament House alleging that he wanted to retrieve something from his office.”

“True it is that she said that, not having her wits about her by reason of her extreme intoxication, she ‘just went along with it’,” Ms Higgins’ submission states.

“That is a very long way from voluntary agreement. What she is describing is a lack of resistance. In any event, whether on a close parsing of the two statements there is an inconsistency, it could never be one capable of indicating dishonesty.

“Above all else, though, it is submitted that the Court must bear steadily in mind the well-known impact of trauma (and sexual assault in particular) on both the conduct and the memory of victims.

“For the Court to treat the credit attacks made against Ms Higgins as a reason to disbelieve her about her rape would be to use a consequence of that rape as a basis to deny its occurrence”



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