The ACT Chief Justice Lucy McCallum has released her reasons for allowing contested claims Bruce Lehrmann once tried to “kiss” Brittany Higgins at a Canberra pub to be aired during the trial despite the accused never being given a chance to respond to it in his police interview.
Bruce Lehrmann’s defence barrister opened his case telling jurors that Brittany Higgins “erased” key details from the night of her alleged rape inside Parliament House including the possibility that she may have kissed the accused in a bar called 88mph.
But there was also a second claim of an attempted kiss that Ms Higgins claimed occurred at a Canberra pub called The Kingo that Mr Lehrmann, through his lawyers, denied.
For the first time, the ACT Supreme Court published on Friday the Chief Justice’s reasons for rejecting objections to the jury being told about Ms Higgins’ claim of an attempted kiss.
At issue was the fact she made the claim to police during a second evidence-in-chief interview and after Mr Lehrmann had spoken to police.
“The first question in determining admissibility is always whether the evidence is relevant to an issue in the proceedings,’’ Chief Justice Lucy McCallum said in the October 5 ruling.
“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.”
However, counsel for the accused, Steve Whybrow, noted the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
“It is amenable to an easy remedy which is that the jury can be informed of those two facts: namely, that the allegation was made after the accused was interviewed and that, had he been asked about it by police, he would have denied it. For those reasons, I propose to admit the evidence,’’ Chief Justice McCallum said.
“I rebuffed the kiss mostly out of shock – I wasn’t anticipating it,” Ms Higgins told the trial.
“We didn‘t have an exchange after the attempt. I think he was embarrassed.”
During cross examination, defence barrister Steve Whybrow accused Ms Higgins of making up the claim that his client had tried to kiss her weeks before the alleged rape in 2019.
“I suggest the incident you described did not happen [and there] was no occasion where Mr Lehrmann tried to kiss you,’’ he said.
Mystery kiss on night of alleged incident
On the first day of the trial, Mr Whybrow suggested that Ms Higgins may have omitted some elements of the evening because it didn’t fit with her story.
“She sent a text the next day, without having spoken to anyone, to someone else they knew, that Bruce and Brittany had hooked up that night,’’ Mr Whybrow said in his opening address.
A witness called Lauren Gain would be called to the witness stand, and he said she might say she saw them kissing at the bar called 88pmh.
As it turned out, she didn’t.
When Ms Gain was called to the stand days later, neither the defence nor the prosecutor Shane Drumgold asked her about the possibility of a kiss.
Brittany Higgins told police in an interview played to the court that if the kiss did happen she could not remember it.
Mr Lehrmann said he wouldn’t have done anything beyond flirtation but wasn’t asked directly about the kiss.
Ms Gain told the court in her own evidence that she was very drunk on the night in question.
The kiss had been erased – again – but this time not in Ms Higgins’ memory as the defence barrister suggested, but within the trial itself.
During the trial, Mr Lehrmann’s version of events was put on the public record via a police interview conducted in April, 2021.
The police do not directly ask him about a kiss. But they did ask him if he could remember if they were close or intimate.
“Yeah it’s possible, but would I have acted beyond anything that was a bit flirtatious?” Mr Lehrmann said. “Absolutely not, because I was in a relationship.”
