Brittany Higgins has been grilled on why she delivered a speech on the steps of the ACT Supreme Court Bruce Lehrmann’s rape trial after the judge delivered a general warning to remain “silent”.
The rape trial collapsed in late 2022 after an allegation of juror misconduct.
At the time, Chief Justice Lucy Callum told the media she expected reporting on the case “should fall silent” to allow for “a fair trial, if there is to be [a new trial]”.
In the Federal Court on Friday, Mr Whybrow asked: “You were there the day the jury was discharged.”
“And you were there when Chief Justice McCallum set a new trial date of 20 February?”
Ms Higgins replied that she was “not sure if I was still in the room when that happened.”
Mr Whybrow then asked Ms Higgins, “you were made aware before you left the building, that a new trial date had been set.”
“I don’t recall specifically, but probably,’’ she replied.
Mr Whybrow then asked if she was “aware therefore, it was a criminal matter before the courts where people shouldn’t comment.”
“I don’t know. I was pretty distraught at the time. I’m not sure if it went into that level of granular detail,’’ Ms Higgins said.
“This is not a level of granular detail. You walked outside and gave a speech to the gathered media, didn’t you?,’’ Mr Whybrow said.
“I did,’’ Ms Higgins replied.
“You said a number of things, I suggest, that had the capacity to adversely undermine the fairness of any future trial,’’ Mr Whybrow said.
As he continued the cross examination, Lisa Wilkinson’s barrister Sue Chrysanthou objected on “relevance.”
Justice Michael Lee then asked Ms Higgins to step aside while he discussed the objection and said he would take submissions and decide whether it was relevant next week.
The trial resumes on Tuesday.
Wilkinson calls Albo ‘dead duck’ in recording
Brittany Higgins and Lisa Wilkinson war-gamed which prominent politicians and media figures could propel the rape allegation in Parliament in a five-hour recording describing Anthony Albanese as a “dead duck”.
In an extract of the recording that was played to the Federal Court on Friday, several politicians were named including Mr Albanese, now Finance Minister Katy Gallagher and Tanya Plibersek.
The pre-interview for The Project was recorded by producer Angus Llewellyn on January 27, 2021 prior to the taped interview that was recorded later and broadcast on February 15.
In that interview, Ms Higgins alleged she was raped in Parliament House by Bruce Lehrmann. Mr Lehrmann has denied the allegation and is suing Channel 10 and Lisa Wilkinson for defamation.
In an extract of audio played to the Federal Court during Ms Higgins’s cross examination on Friday, David Sharaz can be heard discussing why he wanted the story to break during a sitting week in Parliament when questions could be asked about how the government supported Ms Higgins.
Ms Wilkinson suggested Mr Albanese could be helpful, but then suggested he was “a bit of a dead duck at the moment”.
“Well, he’s in a car crash, leave him alone,” Mr Sharaz responded. “He got a lot of coverage out of that.”
Ms Wilkinson then suggested “Tanya Plibersek, definitely”, to which Mr Sharaz said: “Yeah”.
Mr Sharaz, who is Ms Higgins’ fiance, had proposed breaking the story in a parliamentary sitting week so that “they have to answer questions at question time, it’s a mess for them”.
Ms Higgins said it would mean “they’re all stuck in Parliament House with it”.
Mr Sharaz told the group: “I’ve got a friend in Labor, Katy Gallagher on the Labor side, who will probe and continue it going.”
Mr Lehrmann’s barrister Steven Whybrow SC asked Ms Higgins: “Are you seriously contending to His Honour that one of your motivations for this story was not to cause political damage to the Liberal Party?”
Ms Higgins insisted it was “not about the Liberal Party.”
In the recording, Ms Higgins also said she had “no idea” who had tipped off a journalist from The Canberra Times in 2019 about an alleged rape.
At the time there were concerns the issue might be raised in Senate estimates.
That tip off led to Senator Linda Reynolds’ office tipping off Senator Michaelia Cash’s office and her chief of staff Daniel Try.
However, both Mr Try and Senator Cash insisted at the criminal trial they were never told it was an alleged rape. Ms Higgins disputes this.
‘It did exist’: Higgins grilled over bruise again
Brittany Higgins has been grilled again on when she took a photo of a bruise she told the Federal Court that she initially believed was sustained during her alleged assault.
Ms Higgins has told the Federal Court this week that she now accepts it could have also been sustained when she fell while she was drunk.
During the defamation trial on Friday, Mr Whybrow SC asked Ms Higgins if she gave false evidence in Mr Lehrmann’s criminal trial in when she told the jury the bruise was as a result of the rape.
“It was put to you that it was a recent invention,” Mr Whybrow said.
“That’s incorrect,’’ Ms Higgins replied.
Mr Whybrow asked a series of questions over why she didn’t have the original photo.
“Why couldn’t you have just forwarded or air-dropped the photo that was on your phone rather than a screenshot?” Mr Whybrow asked.
“Maybe I accidentally did it, I’m not sure,’’ she said.
Ms Higgins said the photo was in her WhatsApp messages. She told the Federal Court she took a screenshot and sent it to the Channel Ten producer.
“Were you trying to send something that wouldn’t have any metadata?,’’ Mr Whybrow asked.
“No,’’ Ms Higgins replied.
“My mind wasn’t thinking about metadata and all that kind of stuff. I was just sending him a photo of the bruise.”
Justice Lee then asked Ms Higgins some questions about the photo.
“Can you explain to me in your own words why, Given the importance of that photograph, you wouldn’t have saved it?,’’ Justice Michael Lee asked.
“I just thought it was safe on my WhatsApp. I didn’t realise that not everything was backing up and so I thought there was a copy out there that I sent to Angus Llewellyn, so I wasn’t really worried about it when I changed devices and then when I swapped it, the original was gone and I didn’t realise that what I say,’’ Ms Higgins said.
Mr Whybrow said he wanted to suggest to Ms Higgins that there was “no evidence that this photo was in existence before the start of 2021.”
“It did exist. I took it around the time of the assault,’’ Ms Higgins said.
Higgins ‘adored’ Michaelia Cash
Ms Higgins said she “adored” Senator Cash and found her very supportive. But she insisted she did know about the alleged rape in 2019.
“Michaelia Cash has testified that they had no knowledge of a sexual assault,’’ she told the Federal Court on Friday.
“So now with the benefit of hindsight, I look back and consider those calls potentially checking in, as opposed to actually looking after my welfare,’’ Ms Higgins said.
“At the time I perceived it to be support, and I adored Michaelia Cash, but with the benefit of hindsight yes, now I look back at it in a different light now that she denies ever knowing.”
Mr Whybrow again put it to Ms Higgins it was “not true” she told Senator Cash about a rape.
Ms Higgins denied this.
“I went to them about my panic attacks,’’ she said.
“I went to them when I was concerned about Bruce (Lehrmann) having a staff pass and in 2020 I spoke to Michaelia Cash about it extensively. She was a really good support for me and when I worked for her. I was really close to her and she was wonderful. She was really supportive about this.”
Higgins denies regarding bosses as ‘villains’
Brittany Higgins has denied regarding Linda Reynolds or her chief of staff Fiona Brown as “villains” or that she wanted to bring down the Liberal government with her rape allegation.
Mr Whybrow asked her if her evidence was that she had “no intention of affecting the outcome of the election”.
“No, I didn’t,’’ Ms Higgins replied. “At the time, when I came forward, I was angry at the way that my rights had been handled.
“But I didn’t think that anything I said would be consequential enough to impact the election. I didn’t have that big of an ego to think that I could change the course of an election, and I still don’t.
“I was angry about the culture of Parliament House and I was hurt by the Liberal Party, but I was still a Liberal.”
Ms Higgins said that her former boss, Fiona Brown, was “just following instructions” after the alleged assault.
“Fiona Brown was just following instructions. I’ve never blamed her and I don’t blame her,” she said.
“Linda Reynolds avoided me and in my view, did not meet her duty of care. I felt unsupported. I felt unsupported by both of them, but I don’t count them as villains in this story.
“They didn’t do the right thing by me. I was really isolated after my rape, they weren’t around, but I don’t think they’re necessarily bad people.”
‘Gaslighting’ of Brittany Higgins
Earlier, Ms Higgins was grilled about what her fiance David Sharaz told police in the lead up to The Project interview airing.
Mr Sharaz told police during a “meet and greet” that his fiancee was subject to workplace “emotional abuse and gaslighting”, the court has heard.
The conversation occurred at the Belconnen police station in Canberra on February 6, 2021, in the days leading up to the The Project interview going to air on February 15.
“Yes, I’ve definitely said words to that effect before, but I don’t recall specifically if that’s what David said,” Ms Higgins said
Ms Higgins previously agreed she was warned by police against speaking to the media.
Timeline ‘incorrect’
Ms Higgins has told the Federal Court that a timeline she provided to news.com.au and The Project ahead of her interview with Lisa Wilkinson had dates and times wrong.
Mr Whybrow questioned on Friday about why Ms Higgins had the date wrong on the day she signed a code of conduct document for political staffers.
“I remember signing the ministerial code of conduct. I recalled Fiona Brown referencing the ministerial code of conduct in the first meeting, and therefore I made an assumption,” said Ms Higgins. “That was incorrect.”
Mr Whybrow also asked her why she attributed certain words to Senator Linda Reynolds and claimed she said she felt “physically ill” when learning about the alleged rape.
Ms Higgins admitted those words may not have been used.
“Once again I can’t say that those are the exact words said under oath. I can’t,” Ms Higgins said. “I think that was the tone.”
“ I’ve been questioned about it each way, upside-down now, and now I’ve got a much clearer picture about what happened,” she said.
AFP interactions
Brittany Higgins was also grilled on what the AFP said to her in October, 2019 when they warned her there might be questions at Senate Estimates in relation to the alleged rape.
At the time, The Canberra Times had approached Senator Reynolds office following an anonymous tip off but did not know Ms Higgins name.
Mr Whybrow repeatedly asked Ms Higgins if the AFP had contacted her to assure her she would not be named.
But Ms Higgins insisted she was concerned about being named and that the AFP could not assure her the media might not name her.
She also insisted she wasn’t sure what the AFP might say if the issue came up at Senate estimates.
“They never gave me oversight about what they planned to say,” Ms Higgins said. “I never had that level of detail or access.”
Justice Lee asked Ms Higgins if it wasn’t the case that the AFP were telling her this as a courtesy and why that raised concerns about the AFP.
Ms Higgins said she was worried about the information flow between the AFP and ministerial offices about her alleged rape.
Higgins grilled over white dress decision
Brittany Higgins has been grilled on why she cleaned the white dress she alleges she was raped in and took it to Perth before wearing it again after telling police it was stored under her bed.
Mr Whybrow asked Ms Higgins about a photograph taken of her wearing the dress on May 16, 2019.
The photograph captures Ms Higgins wearing the dress and sitting next to Senator Linda Reynolds at an event in Perth during the election campaign.
The alleged rape occurred in the early hours of March 23, 2019 in Defence Industry Minister Linda Reynolds’ personal suite.
“Do you have any recollection of your thought processes in wearing the dress that you say you were sexually assaulted in to the birthday party of the person you say for the last several weeks had been isolating you and treating you poorly?,’” Mr Whybrow said.
Ms Higgins replied that she was trying to “reclaim” the dress from memories of the alleged rape.
“Yeah, of course. It was my favourite dress. I used to wear it all the time and I guess I was trying to reclaim it,’’ she said.
“I’ve done that with a lot of, even my court clothes for example. Sometimes you can kind of shake off the association from an article and try and make it yours again. And in this instance, I thought I could.
“I couldn’t. So I never wore it after this event.”
“But it was my favourite dress and I thought maybe I could disassociate it from the night.”
Mr Whybrow asked if she had texted an ex boyfriend, Ben Dillaway, who she was trying to rekindle a relationship with.
“We were rekindling things. I was trying to be flirty, I guess,’’ she said.
Mr Whybrow put it to Ms Higgins she had exchanged thousands of messages during the first half of 2019 with Mr Dillaway. They included a selfie of her wearing the white dress on the night of a dinner with Senator Reynolds.
“I want to suggest that you took those photos and sent them because you hadn’t been sexually assaulted in that dress,’’ Mr Whybrow said.
“I understand that that’s what you’re putting to me, you are incorrect,’’ Ms Higgins replied.
He also asked her about why she decided to pack the dress when she left Canberra just weeks after the alleged rape to relocate to Perth.
Wilkinson to launch cross-claim with employer
Justice Michael Lee has cleared the way for Lisa Wilkinson to launch a cross claim to resolve a dispute with her employer Channel 10 over $700,000 in legal fees.
Ms Wilkinson launched proceedings in the Supreme Court against her employer earlier this year over legal bills related to the defamation suit, in which both are named as respondents.
“I’ll give leave to the second respondent, Lisa Wilkinson, to file and serve by 4pm on December 14, 2023 a notice of cross claim,’’ Justice Lee said.
The disagreement centres around whether the bill should be settled immediately and whether it was “reasonable” for Ms Wilkinson to hire legal help outside Channel 10’s lawyers.
Michael Elliott SC, representing Ms Wilkinson, has previously told the NSW Supreme Court the TV personality was allegedly “relying” on advice from the network’s own lawyers when she hired outside help.
“We expressed concerns whether the lawyers acting for Network 10 could properly act for us (Ms Wilkinson) because they had acted against our interest in relation to this dispute,” he said.
Ms Wilkinson is being represented at the trial by high-profile defamation lawyer Sue Chrysanthou SC and Anthony Jefferies instead of using Channel 10’s retained law firm.
According to documents filed in the NSW Supreme Court, Ms Wilkinson claims the nationwide broadcaster is refusing to pay two legal invoices worth $353,538 and $370,017.
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Channel 10 stated in court documents that since February it had repeatedly told Ms Wilkinson that private “separate legal representation … was unnecessary, and not in her best interests.”
Channel 10’s lawyer, Ian Pike, argued that in moving the case the judge presiding over the defamation trial, Justice Michael Lee, could rule on whether the outside legal help was “reasonable”.
“What we said to Ms Wilkinson is that if you wish to maintain separate representation, that is up to you, but we will not be paying for it,” he said.
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