‘Frustrating’ move before Higgins verdict
The jury will only be allowed to deliberate on the trial for the man accused of raping Ms Higgins once a “frustrating” task is completed.
At the start of the trial, 16 jury members were empanelled but they were informed that only 12 will be allowed to deliberate at the end of the trial.
Chief Justice Lucy McCallum said this is to allow for instances where jury members may become sick or find themselves in a situation where they can no longer be part of the jury.
“At the end of my summing up, I’ll have to reduce your number by four,” she said.
Chief Justice McCallum said she understood this would be “frustrating” for them but it “is the law”.
She told the court this is the first trial she has presided over this year where she has not lost a juror.
“You have proved to be particularly resilient and here we are with too many of you and I am afraid I am going to have to discharge four of you,” she said.
The four will be chosen randomly once the judge finishes giving her directions to the jury.”
Jury told not to let ‘sympathy or predudice’ sway judgement
The jury has been told that “no one can tell you how to decide this case”, with Chief Justice McCallum saying it is up to them to come to a joint decision.
She pointed out that it is the job of both the defence and prosecution “to persuade” and what they say about the evidence is “not in itself evidence”.
The onus is not on the accused to prove his innocence, instead it is for the prosecutor to establish his guilt beyond reasonable doubt, the court heard.
This does not mean the prosecution has to prove the truth of every statement made by every witness beyond reasonable doubt, the judge said.
“Nor does it mean you have to find in favour of the prosecutor on each and every fact,” she said.
Chief Justice McCallum highlighted that the phrase was beyond reasonable doubt, not “beyond any doubt”.
The jury was also told they might consider the nature of human memory and whether some events might be imprinted on a person’s memory more than others.
As an example, Chief Justice McCallum said she certainly remembers “where I was the last time the Swans won the premiership.”
She told the jury they must not let “sympathy or prejudice” sway their judgement.
Jury ‘can’t use Lehrmann decision’ against him
Chief Justice McCallum has spoken about Mr Lehrmann’s decision not to go into the witness box and provide evidence in the case against him.
The jury heard he is entitled to call or give evidence but “there is no obligation to do so” and the onus is still on the prosecution to prove his guilt beyond reasonable doubt.
“He is entitled to say nothing and make the prosecutor prove his guilt to that high standard,” the judge said.
“The accused’s decision not to give evidence cannot be used against him in any way.”
Although he did not give evidence on the witness stand, the jury was shown a recorded interview he conducted with police in 2021.
“The accused did not have to participate in a recorded interview, he could have exercised his right to remain silent,” Chief Justice McCallum said.
She said the fact he agreed to be interviewed does not mean he has taken on any burden of proof and he is still entitled to the benefit of reasonable doubt.
$325k question in Higgins case
The jury has been asked to consider the “$325,000 question” in the trial for the man accused of raping Higgins.
Whybrow has made a reference to Higgins’ book deal, which Lisa Wilkinson’s husband, Peter FitzSimons, helped her to secure.
He told the jury the big question they need to consider, “or in Higgins’ case, the $325,000 question”, is whether they accept Lehrmann went into minister’s office and sexually assaulted her.
Whybrow questioned how Lehrmann was meant to know that Higgins was in there and hadn’t already left.
The jury were directed to Lehrmann’s police interview where he told the officers he didn’t feel like he needed to be responsible for Higgins.
Referring to Higgins going to the media with her allegations in 2021, Whybrow noted once again that she now has a $325,000 book deal.
“This is a big story,” he said.
“I am not here to tell you or prove why she goes back to the police.
“There are 325,000 reasons, at least now, why this case is important from her perspective.”
Whybrow asked the jury if they accepted what Higgins says happened in 2019 “beyond reasonable doubt”.
He suggested that when the media request about the night in question came through in October 2019, Higgins was “stressed”.
“She did then go to the doctor for anxiety,” he said, adding that she also made disclosures about her allegations to people in Senator Michaelia Cash’s office.
“At that time, potentially, in case this gets out of hand you might think,” he said, asking whether Higgins was trying to have some “receipts” on her side if needed.
FitzSimons spoke to Higgins about the possibility of helping secure her a book deal in March 2021, with the former Liberal staffer receiving confirmation a publisher was interested on the 16th of that month.
This was after she had gone public with her allegations and followed her first recorded interview with police.
Rape accused’s ‘life came crashing down’
The court has heard that Lehrmann’s life “came crashing down out of the blue” over a night he had “never thought of again”.
In his police interview, Lehrmann spoke about finding out about the allegations through his boss and how he was “ready to go”, alluding to self-harm.
“I suggest that was a powerful and compelling and genuine statement consistent with what he told police at the start of his interview that this ‘did not happen’,” Whybrow said.
He reminded the jury that his client is entitled to the “presumption of innocence” until they are satisfied beyond reasonable doubt that he is guilty.
Whybrow said there is no DNA evidence and no contemporaneous medical complaint, adding there was “contemporaneous lies” about medical appointments made.
‘Con artist’: Higgins accused of ‘reconstructing’ night of rape
Whybrow has suggested Brittany Higgins “made up” the account of a bruise after her alleged sexual assault to make her account more believable.
In his closing arguments, 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 Higgins.
Instead, he suggested she may have “convinced herself” she was raped when that was not the case.
“We have these things called con artists because demeanour is a difficult thing to pick up on sometimes,” Whybrow said.
He told the court it is possible to think someone is being genuine but later find out “they were conning you”.
He said he was not suggesting Higgins’ demeanour or the way she acted in the witness box “was an act”, but said there was certainly “a difference between the way she presented herself” in the first and last part of her evidence.
Higgins was absent from court for four days last week, returning on Friday to complete her cross examination.
“When she came back she was a bit more combative and aggressive in responding,” Whybrow said.
He suggested it was “reasonably possible” that the former Liberal staffer actually didn’t know what happened because she had “reconstructed events to the point where she now genuinely believes them to be true”.
“That doesn’t mean they are true,” Whybrow told the court.
‘I misspoke’: Accused rapist’s lawyer backtracks
Whybrow, has told the court that he “misspoke” during his closing argument yesterday.
“I misspoke yesterday in a couple of ways,” Whybrow told the court, drawing the jury’s attention to comments he made about whether the rape could have happened in the way Higgins suggested.
The defence’s case is that Lehrmann did not enter the minister’s private office on the night of the alleged assault and did not see Higgins again after they went their separate ways after entering the suite.
Yesterday, Whybrow suggested the jury could consider whether it was even possible for the assault to occur in the way Higgins described.
Today, he told the court it was “not something he should have put” to them because he did not put that suggestion to Higgins during the cross-examination.
Whybrow also brought up a comment he made yesterday where he said Higgins said this was a “job she would die for”.
What Higgins actually said was a job that she cared about more than her own life, which Whybrow said he conflated with it being a job she would die for.
On Tuesday, Drumgold warned the jury not to get “distracted by side issues or red herrings”.
He said the case against Lehrmann was not about political parties, workplace cultures or whether Parliament House responded to reports of a security breach appropriately.
“It is certainly not about the experiences of other women in Parliament. And it’s not about the MeToo movement,” he said.
“This case is about what happened on a couch in a room on Saturday the 23rd of March 2019.”
He said Higgins was a credible witness and would have to be “quite the actor” if her claims were fabricated.
Whybrow told the jury that Higgins was “prepared to say anything” when airing her allegations against his client.
The defence said that no sex occurred between the pair and that the jury “can’t be satisfied beyond reasonable doubt” Higgins knows what happened on the night of the alleged assault.
Higgins’ fear of losing her “dream job” after being found in a state of undress at her workplace was an “explanation for what she did”, Whybrow told the court.
The trial continues.
