Presumption of guilt & other travesties in the case against Lehrmann

Andrew L. Urban.

Bruce Lehrmann has had to move away from Canberra, change his appearance and is living in the shadows, broke and looking for work of any kind to survive. He is not on the run from the law, but he may as well be. He has not been convicted of raping Brittany Higgins, but he may as well be. While his accuser has just been paid millions by the Federal Government (taxpayers) in a controversial manner. 

In due course, we may well have reported on the case of Bruce Lehrmann as a wrongful conviction. Accused of rape by fellow Canberra staffer Brittany Higgins, the tortuous history of the case included a Prime Ministerial apology in Parliament even before the case went to court and a (different, post election) Prime Ministerial comment later. Astonishingly, both Prime Ministers’ comments assumed Lehrmann was guilty. (He has maintained his innocence.) And that was just the start in a sequence of events worthy of a gripping courtroom drama, featuring reprehensible coverage (presumption of guilt echoed) by some in the media, legal officials and questionable evidence from the complainant. Some of the latter has been listed in her substack blog by Bettina Arndt, commentator on gender issues, as follows:

The missing undies
Much was made of Higgins’ state of undress, as witnessed by the security guard, which many claimed was a sure sign that she’d been brutally assaulted. But the cross examination revealed she hadn’t bothered to wear any undies for her long evening cavorting around Canberra bars. Her tight, skimpy dress showed “bad lines” if she wore knickers, she said. No panties and a skintight dress which likely ended up bunched around the waist of the drunken girl would make for a very revealing spectacle to greet the security guard’s torch.   

Yet Higgins blatantly lied to Lisa Wilkinson in the prizewinning television interview telling her that Lehrmann had removed her panties. In her last day of cross-examination, she admitted that was a lie. “It was wrong,” she said. This was barely reported – because it is verboten to discuss in a rape trial what “victims” were wearing.

The dress
Higgins claimed she had kept the dress she wore that night for six months under her bed but it came out in court that she’d worn it within weeks of the alleged rape. 

The panic attack
Higgins claimed she was having a panic attack and had spent hours in a bathroom dealing with her anxiety when she was actually at a farewell lunch for her former boss.

The doctors’ visits
Higgins lied to police, to friends, and to the press about attending doctors’ visits in the weeks following the alleged rape. She made multiple appointments she never kept.

The missing text messages
Higgins refused to give police her phone after first reporting the alleged rape. She eventually handed it over, but only after cleaning out messages and photos which did not support her story.

The bruise
She said she had a bruise on her left leg caused by the assault. It was not a bruise but rather a red mark, and was on the wrong leg. Somehow her photograph documenting this was originally missing from her phone but appeared on another phone some months later.  

Memory lapses
After telling her ex-boyfriend about the alleged rape, Higgins initially claimed she had been so drunk she could hardly remember a thing. Soon after she was reporting the assault in great detail, including the exact position of her body, her reactions, his expression, etc.

Briefing journalists
Higgins claimed she was so bombed out on valium that her boyfriend had to distribute her briefing document to journalists, but she turned out to be the one who spilt the beans.

Support from Minister’s office
Higgins claimed to receive no support from Chief of Staff, Fiona Brown, after making the rape allegation. Yet she sent flowers and champagne thanking her boss for her support and advice, saying “You have been absolutely incredible.”

There’s evidence that the various government ministers and other staff provided assurance her job was not at risk, but she gave numerous interviews complaining about the lack of support and fear that the government would get rid of her.

Signing in
Higgins claimed she was too drunk to sign in at security and that Lehrmann had signed for her. Security claimed they saw her sign in.

Brittany Higgins & Bruce Lehrmann

After the mistrial (juror misconduct) came the no-trial, when the ACT’s Director of Public Prosecutions, Shane Drumgold, SC, announced in public that he would not try the case again, fearing its potential negative impact on Higgins’ mental health. Lawyer and former journalist Andrew Fraser finds “The fact that police are now in the sights of the DPP himself is but one of many serious oddities in the Lehrmann case, including:

  • A complainant who spoke to the media before the police (allowing a man who must be presumed innocent to be subject to blanket reporting and vilification). What chance does Mr Lehrmann have of ever getting a fair run in employment or any other pursuit going forward?
  • A complainant who spoke to the media immediately after the declaration of a mistrial (and who understood that as the matter was still before the court she should have exercised some restraint). This opened the very real prospect of a defamation action against her, for comments about the case and the accused, who, it cannot be repeated enough, bore no onus to prove anything and who had, and must continue to have, the presumption of innocence.
  • The DPP holding a press conference outside the courthouse to announce that Mr Lehrmann won’t be retried (ie, that he remains innocent in the eyes of the law) rather than simply taking the appropriate action in court and withdrawing silently. That press conference was odd not just in that it happened at all, but for much of the content. The DPP referred to the territory’s prosecution guidelines at length. Chief among them are two questions: “Are there reasonable prospects of a conviction?” and “Is prosecution in the public interest?” The Director expressly stated he still believed there were reasonable prospects of a conviction: what is the public to make of that comment about a fellow citizen who is deemed to be innocent? Does anyone else wonder if Mr Lehrmann might have actually preferred to have been prosecuted again so that he could have had the chance to be found not guilty, rather than left in the limbo he has been?
  • The prospect of a malicious prosecution case being mounted on Mr Lehrmann’s behalf has been raised in the media. That is a rare beast, but this is a rare case. In case there be any doubt, every charge sheet and summons in the Territory is embossed in the top right with a reminder that “Proceedings in this matter will be carried on by the Director of Public Prosecutions under the provisions of Section 6 of the Director of Public Prosecutions Act”. Not by the police, by the DPP.
  • Theextraordinary letter from the Director to the head of ACT Policing, in which it is alleged police pressured the Director to not launch the prosecution. It was always his choice. And he went ahead. So, any alleged pressure failed. Yes, the police may have presented a considered view from a number of officers that there were weaknesses in the prosecution case. Sound procedure. Frank and fearless advice. A view was expressed to the Director that there were “serious concerns in relation to the strength and reliability of [the complainant’s] evidence, but also more importantly her mental health” and how a prosecution might affect it. This was the first prosecution, remember. When the Director chose not to go ahead with a retrial, he quoted exactly that reason, the complainant’s mental health. The Director’s letter talks of investigators causing concern by talking to the Lehrmann defence team. There is no property in a witness. The Director expresses concern that defence barrister Steven Whybrow, SC, was able to say to court, in seeking a bail variation, that his team had spoken with the AFP and they had no concerns about Mr Lehrmann as a flight risk. That’s just good lawyering, countering an objection before it’s raised (and such objections are often raised for the first time in “Bail Consideration Forms”, which are dropped by police via the DPP on defenders at the bar table and tendered and which include untested assertions about why accused people should not get bail).

This week saw me agree for the first time ever with the AFP Association: if there is to be an inquiry, it should be into the DPP as well as the police. I agree with Waterford, too, that the AFP hierarchy must not form part of the inquiry. It appears that the Australian Commission for Law Enforcement Integrity will run the inquiry, at the referral of ACT Attorney-General Shane Rattenbury, so that won’t be a problem.

Whether police are in the wrong at all remains an if – but the deeply concerning actions of the complainant and the Director are not in doubt, in my view.

Andrew Fraser is the principal of Fraser Criminal Law and has worked in criminal law in the Canberra region for more than a decade. Before beginning legal practice, Andrew was a journalist for almost 30 years with The Canberra Times and the Sydney Morning Herald, including stints in the Federal Parliamentary Press Gallery.

This article originally appeared on John Menadue’s public policy website Pearls and Irritations.


There is a whole other (disturbing) story about political interference in the awarding of a financial settlement to Higgins, as outlined in The Australian. Among the points in the article, by columnist Janet Albrechtsen and NSW Editor Stephen Rice:

The Albanese government muzzled former Liberal minister Linda Reynolds in her defence against Brittany Higgins’ multimillion-dollar lawsuit, threatening to tear up an agreement to pay her legal fees and any costs awarded unless she agreed not to attend a mediation.

Ms Higgins reached a confidential settlement with the commonwealth, believed to be worth up to $3m, at the mediation on Tuesday over the former staffer’s claims she was not supported by Senator Reynolds or Liberal Party frontbencher Michaelia Cash after the alleged sexual assault by Bruce Lehrmann in Parliament House.

Senator Reynolds is understood to have been determined to defend herself against Ms Higgins’ allegations but in correspondence obtained by The Australian, the commonwealth’s lawyers told her she could not take part in the mediation. Senator Reynolds was therefore unable to dispute any of Ms Higgins’ allegations about a failure to support her or properly investigate the incident, some of which were contested at Mr Lehrmann’s trial.


The Australian understands Senator Cash was also sent a letter muzzling her and instructing her not to attend the mediation in return for her legal fees being paid by the commonwealth.

Neither Senator Reynolds nor Senator Cash was asked for evidence that contested Ms Higgins’ claims.

The taxpayer-funded settlement was revealed by Ms Higgins’ lawyers in a late-night statement on Tuesday apparently designed to minimise media coverage. Legal sources have expressed astonishment that such a complex and expensive settlement was resolved in a single sitting.

Senator Reynolds said she was unable to comment on the matter. “I did not participate in the mediation and I have not been informed by the department of the outcome,” she said.

Her lawyers, Clayton Utz, in a letter dated December 9, 2022, accused the government of seeking to hamper her ability to defend herself against Ms Higgins’ claims and of not meeting Legal Services Directions.

“We find it difficult to see how, without any further particularisation of the causes of action that Ms Higgins seeks to rely on and any evidence in support of the same, the commonwealth could possibly be satisfied of the criteria for settlement on the basis of legal principle and practice and ‘a meaningful prospect of liability being established’ in accordance with those directions,” they said.



A few points made in his column in The Australian (Dec 16, 2022) by Chris Merritt, VP of the Rule of Law Institute:

On Monday of this week (Dec 12, 2022), the legislation creating the National Anti-Corruption Commission came into effect – just in time for Tuesday’s extraordinary financial settlement between Brittany Higgins and the federal government.
It is difficult to see how the Higgins settlement complies with the longstanding rules governing the way the federal government is supposed to deal with monetary claims.
It might also come within the definition of corruption that has just been approved by parliament at the urging of the Attorney-General, Mark Dreyfus.

If the payout exceeded $100,000 – and remember, reports revealed she was seeking around $3m – the Legal Services Directions state that the government needed to obtain a legal opinion that the settlement is in accord with legal principle and practice.

So does such an opinion exist? If it does, who wrote it and how did the author conclude – based on facts that were not properly tested – that the Higgins claim had a meaningful prospect of success in a court of law?

If no lawyer was willing to provide such an opinion, the rules have a loophole that would still permit a payout – but only if there had been direct involvement by the Attorney-General. First there would need to be a declaration that the Higgins mediation involved “exceptional circumstances” and Dreyfus would then need to agree that the normal criteria for settlements should not apply in this particular case.
So somewhere in the bureaucracy there is either a legal opinion by a courageous lawyer who drew upon untested claims, or a document in which Dreyfus states that the normal rules should not apply to Higgins.

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10 Responses to Presumption of guilt & other travesties in the case against Lehrmann

  1. Father Ted Whalensky says:

    Sorry- I don’t for one minute think there is any doubt whatsoever about what the Power Tripping Justice Pervayers did to one of the few decent persons in the court — maybe the only decent person .-Sue— Vass might be a decent human– “they” got her terrified !– Poor little thing– to be under the thumb of TasCon–The Mates !- The Second Raters ! The Swine with Law Degrees ! ( and no degree of decency) .

  2. LookoutSmithers says:

    The DPP director should probably step down, or be replaced. But for anyone believing that the AFP/ ACT Policing act without bias or political interference in their pursuits should look to cases like David Eastman’s. If that doesn’t cut it for you, the ole Dr Haneef case should. In my own family’s’ dealings with homicide investigators, the victims parents weren’t interviewed on record for 4.5 years. My aunt and uncle had to relive the whole ordeal coupled with the now possibility their kid’s murder was being investigated by simpletons. There are more than a few outstanding serious matters in the ACT yet as a rule, the AFP do not accept criticism at any level.

  3. Jerry Fitzsimmons says:

    Andrew, this ‘brief’ all round convinces me more that politically this horrendous matter HAD to be dropped. Think about the ‘illegal paperwork found on the jury’ at the first attempt. Security systems checking jurors at all times! How could this have happened! Then a DPP conviction declaration only for the matter a second time to be dropped. At the time of this declaration it sounded like a ‘not my mea culpa’. Then out comes the revelations of police and political interference.
    Conspiracy theorists must be celebrating in their industry of growth while the two main players in this awful mess must live with the consequences.
    What is the price of justice, I ponder! Sounds like a load or lack of ‘knickers’.😁 Merry Christmas all🎄👍🥃

    • Garry Stannus says:

      Jerry, from the little that I know of you, I think you would appreciate hearing Archie Roach, interviewed … talking of his life as Archie Cox … then as Archie Roach.

      I’m listening to RN, as Archie tells the story of his life. It seems to be on ‘Speaking Out’ (I hope it will play for you, here:

      I met him once, on Gertrude Street. It was early morning and he came over to me, from the corner of Brunswick St. I was still a boy … going to my (first) job, working for Digger Chessels, who lived across the street from the Builders. The Builders was his ‘office’. We’d go in there on payday, after work, and Digger sitting there, would give us our little envelopes of notes, for our week’s work. The others would stand around … there’d be others wider, in the bar. I didn’t know them.

      There was Mick Chambers, our ‘foreman’. Ross, Paul, George and ?, who’d try and snip you for a bit … he’d been paid, but he needed to have an excuse to come and talk to you, get some money off you, have a chat over a beer with you and do it all again next week. We called him Muldoon. He died in the Salvos hostel in town and under his bed’s mattress were all the empty pay packets from Digger. He couldn’t be buried, because no one could identify him … he’d split from his very religious wife years before and lived alone, in the hostel. George eventually went to the morgue and identified him and so – I guess – Muldoon got his burial.

      But I was on Gertrude St, 1969 0r 1970? And walking down to the Builders (Arms) from the Exhibition Buildings. This bloke on the other side of the road spotted me (it was early, still dark?) and greeted me. He was friendly, to me, a stranger. He walked alongside me and I made sure I did not stop. You see, I was a young, white boy who’d grown up thinking that Fitzroy was a bad place. I mean you had your Gore St, and you had the Champion.

      My companion was aboriginal and we had been taught about them. I don’t know who gave those lessons … but I had learnt to have a poor view of these, our first peoples. Books told me, adults told me, school peers told me and there I was, on Gertrude St.

      He seemed taller than me and wanted to chat. He told me this and that and how he’d done boxing and stuff. I listened to ‘Charcoal Lane’ yesterday, when SBS screened Archie Roach’s memorial at the Myer Music Bowl. Yes, I remember some of those places. Archie, as we were walking, had a ‘long neck’ going. It was before the days of casks. He offered it to me and I knocked it back. I suppose it’s fair to say ‘I knocked him back’. I wanted to shake him off, unable to accept such a nice person … who just happened to be black and a drinker.

      In those days, I’d see the ‘winos’ – as they were called – sleeping under the Elm trees in Victoria Parade, as I walked down to school. The trees would help keep the frost off and they be in those gaberdine coats of yesteryear. Actually, they were believed to drink metho.

      Off he went, somewhere before I got to the Builders. I’ve read what he’s written about those days and I know it was him. He came to Tassie a number of times, and my wife, Marie, was with students up at the Elders, and he sang ‘F Troop’ [,vid:SdEc_hPF6nA] and talked.

      There you go, Jerry: Archie Roach … he had a lovely nature. I hope you can listen to that ‘Speaking Out’ broadcast that I linked earlier:

      • Jerry Fitzsimmons says:

        Thanks Garry. I once sat in the corner, the bench in the Builders having a drink hoping that Archie might come in and after I left I walked along Gertrude Street to town. Years later I caught up with Archie and Ruby. I’ll send you this wonderful photo if I can dig up your email. Been a while but let me take this opportunity to wish both you and Marie a very Merry Christmas.👍🥃Slainte

  4. Don Wakeling says:

    The summary of Higgin’s lies that have been ,either admitted or exposed, are staggering. In the face of the cross examination , how could the DPP make a public statement that he still believed that their case could be sustained? And publicly brand the (the, former) accused a rapist. The DPP should be dismissed from office , his debasement of the former accused is a total atrocity.
    What basis, in fact, one wonders, was there to have fear for the mental health of Ms Higgins? Watching her ( clearly prepared) press statement after the trial was aborted, she spoke with clarity, confidence and not the slightest falter.

  5. Pappa says:

    A disgusting travesty of Justice and revelation of a Justice System incapable of meting out presumption of innocence to an Accused against which the Accuser lacked proof of any kind to validate the alleged harm done to them or justify their claimed victimhood.
    The EAJS In-Justice Cohort & Police, acted to make the Accused their victim and that of the Accuser.
    We the people first need to wake up and realise that those we have empowered to arrest & judge us have made US the one’s to have to carry the burden of their corruption and incompetence as Jurors at Trials while they make outlandish incomes at Taxpayer expense
    They and THE SYSTEM must be VOTED OUT OF EXISTENCE and replaced in entirety with an entirely new methodology of Policing and Judicial practice.
    NO SEPARATION OF POWERS and every citizen equally answerable for their actions.
    The time is NOW for a PUBLIC Commission…..Royal one’s are run by the same cohort we need to rid of !

    • Father Ted Whalensky says:

      Darryl Beamish ($450 thousand verses 3million) was sentenced to death by an Amateurish ( they often are ) Jury fooled by a Professional Confession Getter- shades of KGB- (was made Police Commissioner)- any idiot can get the guilty convicted–takes a scurrilously fabricating screen play writer and friends -The DPP/ screen play reading judge/ stacked jury/lying witnesses and never forget the scientific forensically lying friends of the police–planted evidence- disappeared dna material) SNF. This hard, dedicated work will
      get an obviously Innocent person on the end of a government rope-must have caused a seething disappointment to not see Darryl kicking and swinging-in “the wild flower state” . Here is the point relative to the 3 million cash largesse- Darryl Beamish did 15 years in a typical stinking mongrel WA prison- then after 50 years was awarded 450 thousand.– EXCUSE ME WHILE I PUKE ! The standard compensation for wrongful conviction– 1million per year minimum. Darryl Beamish should have been paid 15 million–the dear Policeyman connived to have him swinging– no doubt the lovely Policeyman would have been looking on with a satisfied smurk–as with little Ray Bailey– 3million for what ! I was molested when 9 by a dear policeyman– all I got were threats–shut your effing mouth ! When I think about what that bit of police privilege did to my brother– observed him destroyed by a sinking pig The Queensland Police had a couple of women ( and 2 young daughters) murdered to stop them testifying– back to the point– whats this 3 million justification ? The putrid Queensland Justice System is working on the idea of no compensation for the wrongfully convicted innocent man Steven Fennell—3 million for what’s her name–nothing for what the mongrels did to Steven Fennell –they are going to try- for 6 years in a Queensland Lovely Prison–6 million would be fair ! What’s her name gets 3 million for a doubtful —

      • Father Ted Whalensky says:

        Surely it’s bleeding obvious– the need for a jury to have a NOT PROVEN option–Your Honour ( mate). We don’t know–Unlike in the SNF verdict–That stinking can of worms (and disappearing blue DNA Vass face cloth). There are times where it is bloody risky to say– Guilty- Not Guilty–“Dont bloody know”-would be the truth !

  6. John S says:

    Shane Drumgold must be replaced as ACT DPP, but hopefully with one not as inclined to be a zealot in the face of an unwinnable case that’s not even in the interests of justice for the alleged victim.

    Who would have known more about such cases? The DPP (a bureaucrat) or the AFP (who deal with many cases all the time)? It seems to be bloody-mindedness to say the least, if not just plain over the top zealotism (for ulterior motives perhaps).

    It could now sadly make more genuine looking cases get dismissed perhaps for fear of them going the same way. Not political? Who is he kidding? Not me!

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