A senior cop says there was ‘evidentiary support’ to suggest Brittany Higgins had sexual contact with her alleged rapist Bruce Lehrmann because the former staffer was found ‘in the complete nude’, an inquiry has heard.
Senior Constable Emma Frizzell was questioned by Mark Tedeschi KC, the lawyer acting for the ACT Director of Public Prosecutions Shane Drumgold SC, during a Board of Inquiry on Thursday.
The inquiry is investigating the actions of police and prosecutors before, during and after the hearing in the ACT Supreme Court in October last year.
Mr Lehrmann had pleaded not guilty to raping Ms Higgins in Parliament House in 2019. He continues to maintain his innocence.
On Thursday, Mr Tedeschi said to Constable Frizzell: ‘Ms Higgins was seen in the complete nude in the minister’s office, asleep.’
Senior Constable Emma Frizzell (pictured outside the inquiry on Thursday) was questioned by Mark Tedeschi KC, the lawyer acting for the ACT DPP Shane Drumgold SC
‘A Parliament House officer comes into the office at about two or 2.30 in the morning and sees her in the complete nude asleep. Ms Higgins wakes up briefly and goes back to sleep.’
Sen Constable Frizzell said: ‘I recall.’
Mr Tedeschi then asked if she thought that was evidence of corroboration between Ms Higgins’ allegation and the security guard’s testimony: ‘Do you agree that’s some evidentiary support that sexual intercourse took place?’
‘Yes,’ she replied.
Sen Constable Frizzell also agreed there was evidence that Ms Higgins was intoxicated when she arrived at Parliament House on the evening she was allegedly assaulted – supporting the second element needed to charge Mr Lehrmann, being that there was a lack of capacity to consent.
However, Sen Constable Frizzell said the third element needed to charge Mr Lehrmann was absent, which was a reasonable suspicion that he knew she did not consent to sexual intercourse.
Mr Lehrmann told police he went to Parliament House with Ms Higgins on the evening in question, but said they both went into separate rooms once inside the ministerial suite.
He said he caught an Uber home alone a short time later.
Brittany Higgins (left) accused Bruce Lehrmann of raping her in Parliament House. He denies the allegations
Mr Tedeschi told the inquiry Mr Lehrmann gave four different reasons for why he had gone to Parliament House with Ms Higgins.
‘Do you agree that that’s some supportive evidence of either a knowledge of lack of consent or knowledge of recklessness?’ he asked.
Sen Constable Frizzell said: ‘No’.
Later on Thursday, Sen Constable Frizzell was quizzed about why she wanted to interview the Victims of Crime Commissioner Heidi Yates, who was Ms Higgins’ support person and facilitated relations between her and police.
The constable said she wanted to ask Ms Yates to confirm the existence of a photo taken on the night of the alleged assault, which she believed showed Ms Higgins in the background and holding a drink.
The photo had been deleted from Ms Higgins’ phone, and was not on her Google Drive or iCloud account, or in an extraction of her phone.
Sen Constable Frizzell said Detective Inspector Marcus Boorman and Detective Superintendent Scott Moller said they had seen the photo, but she wanted to ask Ms Yates because she was a third party who was not involved in the prosecution.
She was then accused of wanting to interview Ms Yates to force her to step down from her role as Ms Higgins’ support person.
Mr Tedeschi asked: ‘Where you tying to get some evidence about Ms Higgins’ presence in a bar?’
Bruce Lehrmann (pictured) had pleaded not guilty to raping Brittany Higgins
Sen Constable Frizzell replied: ‘Yes and there were images that were no longer there that had been there.’
Mr Tedeschi continued: ‘Why did you want further evidence of a photo of a drink?’
Sen Constable Frizzell: ‘It was that Ms Yates was independent of the investigation.’
Mr Tedeschi: ‘What possible thing could a drink have to play in the prosecution of Mr Lehrmann?
Sen Constable Frizzell: ‘It’s the corroborating of evidence, but when I did downloads there was no image. Ms Yates is corroborating there was evidence.’
Mr Tedeschi: ‘Did you want to interview Ms Yates with the possible view that it might make it more difficult for her to be a support person for Ms Higgins?’
Sen Constable Frizzell: ‘No, absolutely not. I didn’t believe it would remove her ability to be the support person.’
The inquiry will continue on Friday.
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