‘Right to be scared’: Brittany Higgins and the harsh realities about justice and power

On the third day of the trial of Bruce Lehrmann, Brittany Higgins wept. In full view of a packed courtroom, Higgins was watching the last recorded moments before she was allegedly raped on a couch in the office of the defence industry minister at the time, Linda Reynolds.

The CCTV system at one of parliament’s many checkpoints showed a young woman, intoxicated, struggling to put her shoes back on after passing through the security gate about 1.30am on 23 March 2019.

On the screen, Higgins appeared to offer an almost apologetic smile, seemingly embarrassed for the delay she was causing as Lehrmann, a fellow political staffer, waited ahead of her.

The camera appears to capture a hint of what her friends and family say they all remembered of Higgins from that time – a young woman full of life who, having found herself in the heart of the nation’s power at just 25, now had the world at her feet.

In the witness box, the contrast was stark.

Higgins, in obvious distress, fought back tears as she watched those fleeting moments, which were played to the ACT supreme court over and over again.

On Friday, as he announced he would not seek a retrial of Lehrmann, who has consistently maintained his innocence, the director of public prosecutions, Shane Drumgold, gave some insight into what Higgins had faced throughout the justice process.

“During the investigation and trial, as a sexual assault complainant, Ms Higgins has faced a level of personal attack that I have not seen in over 20 years of doing this work,” he said. “She’s done so with bravery, grace and dignity, and it is my hope that this will now stop.”

The strain was such that independent medical evidence suggested there was a “significant and unacceptable risk to the life of the complainant” if a second trial was pursued.

“While the pursuit of justice is essential for my office and for the community in general, the safety of a complainant in a sexual assault matter must be paramount.”

The decision means Lehrmann, who pleaded not guilty to one charge of sexual intercourse without consent, retains the presumption of innocence. With no prospect of a retrial, he remains innocent of any alleged rape of Higgins.

On Friday Higgins was in hospital, receiving treatment and support. Her close friend Emma Webster said Higgins had faced a “difficult and unrelenting” two years.

“While it’s disappointing the trial has ended this way, Brittany’s health and safety must always come first,” she said.

Suppression orders were also lifted allowing media to report that Higgins had suffered a mental health crisis during her evidence, prompting a lengthy absence while she received treatment.

Lehrmann is understood to be taking some time to process the latest developments. He has not made an official statement, but a friend told the Guardian he would be seeking advice on “legal remedies” in coming days.

Unique insight into power

The proximity to power of Higgins’ allegation guaranteed the trial would garner attention.

In the words of the trial judge, Lucy McCallum, journalists were “practically hanging off the rafters” in the public gallery.

While the nation was transfixed on the Lehrmann case, three unrelated trials were running in neighbouring courtrooms of the ACT supreme court.

All involved sexual offences against women.

In one, a young woman was found to have been sexually assaulted in a local nightclub. In another, a sex worker was found to have been raped at her workplace in the industrial suburb of Mitchell.

Another man faced court next door to plead guilty to raping a sex worker after robbing her at knifepoint in a Canberra unit.

Such cases now account for the bulk of the workload for local prosecutors.

The ACT’s chief crown prosecutor, Anthony Williamson SC, told the Guardian that more and more cases were now proceeding to trial, a factor his office attributes to recent royal commissions and inquiries examining law enforcement’s handling of sexual crimes.

“On average, about 60% of the trials listed in the ACT during a criminal trial listing period involved allegations of sexual offending,” he said.

The Lehrmann case, with its high public profile, has made two things clear.

It has clearly shown the impact the justice system can have on complainants. It has also provided – perhaps more than any other trial in recent memory – a window into how powerful institutions react when confronted with such allegations.

It gave insight into the experience of those who challenge them – like the young woman captured on parliament’s CCTV system – who say they are chewed up and spat out in the process.

Brittany Higgins arrives at the ACT supreme court during the trial of Bruce Lehrmann. Photograph: Lukas Coch/AAP

The court had heard that Higgins felt she faced an invidious choice, something Drumgold had told the jury was a “fork in the road”.

She said she could make a complaint, risk catastrophic media coverage for her minister and party in the lead-up to an election and put her career in jeopardy.

Or she could stay silent, compartmentalise her trauma and carry on as if everything was fine, the court heard.

Drumgold spoke of the “strong political forces” swirling around her as she considered her options.

“We say she was right to be scared,” he told the jury in his closing submissions.

Lehrmann’s defence said there was no evidence of any political forces working to suppress the complaint.

It suggested Higgins had fabricated the allegations, fearing she would lose her job after being discovered naked in the minister’s office, and highlighted inconsistencies and flaws in her evidence.

But Higgins said she was put under pressure from the start, during early meetings with her superiors, including one with Reynolds and her chief of staff, Fiona Brown, in the office where Higgins’ alleged rape occurred.

“My interpretation of that was that if I raised it with police, there were going to be problems and they wanted to be involved or informed,” she told the court. “But just by having the meeting in the room, it all seemed really off and my interpretation of that was a bit of a scare tactic or an intimidation tactic, whether it was intentional or not.”

Drumgold asked: “And what problems did you – was it your perception that they were communicating to you?”

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Higgins: “That this could theoretically be perceived in the broader public sense as a political problem for the Liberal party with women.”

Both Brown and Reynolds denied putting any pressure on Higgins not to pursue the complaint. They also disputed the timing Higgins gave of when they were made aware of her rape.

In the background, after an initial discussion with Higgins on 1 April 2019, police were preparing for a potential investigation.

One of their first actions was to attempt to obtain CCTV recordings from Parliament House. They say they met resistance.

The government refused to hand over the vision until a formal complaint had been made. Police were forced to make requests every six months to ensure that the footage was not wiped.

Higgins, meanwhile, was disclosing her allegation that she had been raped to colleagues, friends and family. Prosecutors told the court she gave a consistent and unfaltering account of what she said had happened.

The defence said she began complaining only after she realised her job was on the line.

Even then, she said, the politics at play gave her pause during her conversations, including to those she deemed close, such as Ben Dillaway.

The pair had dated and continued to speak often, including during the day after her alleged rape. But he was also a Liberal staffer, she said, with connections to the office of Scott Morrison.

“I didn’t entirely trust him, that it wouldn’t get back to one of his best friends, which is Julian Leembruggen, who was in the prime minister’s office,” she said.

The court heard Dillaway, concerned at Higgins’ mental state, eventually sought out Leembruggen, 11 days after the alleged rape. Leembruggen was not called to give evidence.

‘Systemic culture’

When Higgins decided to speak to the media, she said she did so for one reason.

“[It] was about this culture, the systemic culture in Parliament House that was so rife, is so rife and continues to be rife,” she told the court. There are a dozen stories like mine.”

Drumgold asked: “So you wanted to bring out the issues of behaviour in Parliament House?”

Higgins: “And how they keep these sorts of things silent. That’s what I really was fundamentally going to the media for.”

In that vein, Higgins said she had to record conversations with two powerful people within Parliament House – her new minister, Michaelia Cash, and Cash’s chief of staff, Daniel Try, to try to prove they knew about the allegation as early as October 2019.

Both have disputed any such knowledge.

“I was trying to give [the recordings] to as many people as possible, to have them just so that they existed, because it’s my word against a cabinet minister’s and it’s – the disparity between those two powers is ridiculous,” she said.

Higgins resigned in early 2021 and decided to reinstate her complaint with police.

Even then, having removed herself from Parliament House, she said she was still terrified about whether political figures would be able to access details of her complaint.

This, Higgins said, caused her to take a cautious approach to dealing with police, including wiping material from her phone before handing it over.

“I was pretty terrified on the basis that that week I found out the moment I had re-engaged with police … that politically sensitive matters that are within the remit of police gets reported to the home affairs minister,” she said. “Peter Dutton [the home affairs minister at the time] 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.”

In his closing address, Drumgold said the trial had made it “abundantly clear” that the political forces swirling around Higgins were still at play, more than three years after that night at Parliament House.

Reynolds, the court heard, had been texting the defence barrister for Lehrmann, Steven Whybrow, asking him for transcripts and pointing him towards texts between Higgins and another of her former staffers that she said would be revealing.

Reynolds denied allegations she was “politically invested” in the outcome and was trying to inject herself into proceedings, that she had discussed the evidence with her partner, or that she was attempting to “coach” the defence during their cross-examination of Higgins.

Cash also denied political motives while claiming she had no knowledge of the rape complaint in October 2019.

“Absolutely not … I don’t know how it could be politically embarrassing,” she said.

Well before the events of Friday, Higgins had told the court that she had wanted to avoid the kind of media attention that had been attached to her trial.

“I didn’t want it to turn into a media frenzy,” she said, speaking of her caution in dealing with police in 2019. “I didn’t want it to turn into this.”