The defence for the man accused of raping Brittany Higgins will push to be given a document outlining what it says are “discrepancies” in her account ahead of an October trial.
The ACT supreme court has listed a trial of up to seven weeks to begin on 4 October after the case was delayed in June due to concerns public commentary could prejudice potential jurors.
Bruce Lehrmann has pleaded not guilty to sexually assaulting the former Liberal staffer Higgins at Parliament House in Canberra in 2019.
On Friday, one of Lehrmann’s counsel, Andrew Berger, revealed in a pre-trial hearing that the defence was seeking a document outlining Higgins’ version of events to police from 2019 onwards and “subsequent discrepancies”.
The document was originally described as available on request from the director of public prosecutions (DPP) but, when Lehrmann’s defence asked for it, the DPP objected on the grounds it was privileged material that related to communications between lawyer and client.
The DPP said the document was “inadvertently” not marked as privileged, but Berger submitted it “doesn’t properly attract privilege” because the reason the Australian federal police supplied it to the DPP was different to the “dominant purpose for its creation”.
Berger indicated Lehrmann’s team would subpoena the AFP for the document, giving the police an opportunity to claim privilege over it.
The chief justice, Lucy McCallum, warned she didn’t want the pre-trial issues to “kibosh the hearing date”, approving a plan to “flush out the claim for privilege” to be considered at a further hearing on Wednesday.
The court also heard on Friday that Lehrmann’s team would consult a barrister appointed by the DPP about what material from a Cellebrite report on the content of Higgins’ phone might be disclosable.
McCallum observed that the purported relevance of the material in the report appeared to signal the defence was “chasing cross-examination points” relating to witness credibility. She said some of these appeared minor and this could signal “a very long trial”.
McCallum said this was a “concern” to her, likening the breadth of material sought to chasing rabbits down holes.
“There are a lot of rabbits in the middle of London Circuit,” she quipped, evoking the Canberra roundabout that sits within view of the court.
“My primary function is to ensure Mr Lehrmann and the crown have a fair trial. But secondarily, I’m not going to let cross-examination go up hill and down dale for weeks and weeks.”
Another of Lehrmann’s counsel, Steve Whybrow, assured the court it was not the defendant’s intention to pursue every potential credit point but submitted “there is a body of material we need to examine the complainant about”.
Whybrow also assured the court the material would not lead to a further application to delay the trial, submitting this was “not something we seek to do at all”.
The case returns for a further pre-trial mention on Wednesday 21 September.
In June McCallum ruled “regrettably and with gritted teeth” to vacate the trial, which was set to begin in late June, due to comments by journalist Lisa Wilkinson and broadcasters Amanda Keller and Brendan Jones.
