A judge described evidence alleging Bruce Lehrmann previously “made a pass” at Brittany Higgins as “plainly relevant” to allegations that he raped her in Parliament House weeks later, a newly released judgment shows.
Chief justice Lucy McCallum on Friday released a judgment made during the high-profile Lehrmann trial following objections from Lehrmann’s defence, which argued against the admissibility of evidence about an alleged prior attempt to kiss Higgins.
Lehrmann has consistently maintained his innocence and pleaded not guilty to one charge of sexual intercourse without consent, saying no sexual activity occurred with Higgins, a fellow political staffer. The trial against him collapsed in October due to juror misconduct, leaving him with the presumption of innocence.
During the trial, the defence objected to the jury hearing evidence, given by Higgins to police, that alleged Lehrmann had “made a pass at me and tried to kiss me”.
Higgins alleged to police that the incident had happened during a sitting week at the Kingston hotel, a Canberra pub, in 2019, weeks before the night of the alleged rape.
She said she rebuffed him.
“I was leaving, he was leaving,” she told police. “He was about to get into a taxi and he tried to kiss me and I kind of was shocked by it. I’d just broken up with Ben [Dillaway]. Um, and you know, I just kind of politely rebuffed him and we never really talked about it again.”
The evidence was given during a second police interview with Higgins. It occurred after Lehrmann himself had already been interviewed by police, leaving police unable to ask him about it.
Lehrmann’s barrister argued this meant the evidence of the alleged kiss should not be placed before the jury. He argued that its probative value was far outweighed by the danger of unfair prejudice to his client, because Lehrmann had no chance to put his position about the allegation to the jury in interview form.
McCallum ruled against him.
“In my opinion, evidence that the accused ‘made a pass’ at the complainant and tried to kiss her some weeks before the alleged sexual assault is plainly relevant in that it is capable of demonstrating his interest in her,” she ruled.
She said the unfairness could be dealt with by “an easy remedy”. That remedy was to inform the jury of the fact that the allegation was made after Lehrmann’s interview, and that, had he been asked about it, he would have denied it.
The evidence was put before the jury.
Lehrmann’s barrister, Steven Whybrow, then suggested to Higgins during her cross-examination that it never happened.
“I suggest to you that the incident you’ve described did not happen,” he said. “There was no occasion when Mr Lehrmann tried to kiss you.”
Higgins replied: “It’s incorrect.”
Whybrow continued: “OK, and I want to suggest to you there were no sitting weeks at all during the period 2 March to 26 March 2019. Do you accept that?”
Higgins responded: “I’m not sure off the top of my head. I just know we went to the Kingo and he made an attempt to kiss me before he left.”
During the trial, a separate suggestion was made that Higgins and Lehrmann may have kissed on the night of the alleged rape, during the night of drinking that preceded their visit to Parliament House.
During his opening address to the jury and in his cross-examination, Whybrow said Higgins had “erased” key details from the night, including the fact a witness said they saw her and Lehrmann kissing.
He anticipated evidence of the alleged kiss might come from a witness who was with them on the night, Lauren Gain.
Gain did not give any evidence about seeing a kiss. She said her memory of the night was not good. She did remember Higgins falling over at one point in the nightclub.
“And I remember – yes, I remember her walking back towards us and I remember her falling down on the way back towards us,” Gain said. “I remember her pulling herself back up onto the couch.”
Lehrmann said he and Higgins had been close at the nightclub, but said he could not remember if there had been anything more intimate.
“Yeah it’s possible, but would I have acted beyond anything that was a bit flirtatious?” he said. “Absolutely not, because I was in a relationship.”