It was a dramatic day in the Federal Court of Australia on Tuesday, with tapes from Brittany Higgins of secret recordings at the centre of the evidence in the Lehrmann v Network Ten defamation trial.
Stories from News Corp’s Sky News and news.com.au sparked Justice Michael Lee to subpoena a covertly recorded conversation between Brittany Higgins’ lawyer and her partner, David Sharaz, two weekends ago.
Later, the infamous recorded phone call between Brittany Higgins, Senator Michaelia Cash and her then chief-of-staff Daniel Try in February 2021 was finally played before the court, as well as an earlier conversation between Higgins and Try.
In the meantime, The Project producer Angus Llewellyn faced a full day of cross examination from Bruce Lehrmann’s lawyer, Matthew Richardson SC.
Women’s Agenda is covering the Lehrmann v Network Ten defamation trial as it happens, with former Liberal staffer Bruce Lehrmann accusing Lisa Wilkinson and The Project of defamation. The case is in reference to an interview between Wilkinson and Brittany Higgins, who accused Lehrmann of raping her inside Parliament House in March 2019.
Here’s what we learned in Tuesday’s proceedings.
Content warning: This article contains references to rape and sexual assault.
News Corp’s recordings
At the start of the hearing on Tuesday, Lehrmann’s lawyer Steve Whybrow SC tendered two stories from Sky News and news.com.au as evidence.
The stories were in relation to an alleged conversation between Brittany Higgins’ lawyer, Leon Zwier, and Higgins’ partner, David Sharaz.
Brittany Higgins faced four days of cross examination during her time in the witness box. Her period of cross examination fell over the weekend of Saturday 2nd / Sunday 3rd December. Court did not sit on Monday 4th December.
Before court was adjourned on Friday 1st December, Justice Michael Lee reminded Higgins she is “not to discuss” her evidence “given in these proceedings with anyone”.
According to Sky News’ report, on Monday 4th December, the night before her cross-examination recommenced, Zwier, Sharaz and Emma Webster, who is on Higgins’ legal team, were secretly recorded by a third party witness at the Park Hyatt hotel in Sydney.
The person who recorded the conversation is not connected to the case, Sky News reported.
The group were discussing how Higgins should respond to cross-examination questions, the tapes revealed.
There is no indication whether this advice was passed through Zwier, Sharaz or Webster on to Higgins, and Zwier told news.com.au in a statement that the “private conversations” occurred with a “common understanding that Brittany was under cross examination”.
When asked the following day by Steve Whybrow whether she “received any tips on giving evidence this week from anybody”, she said: “No”.
After News Corp broke the story, Whybrow tendered the story as evidence first thing in the morning of Tuesday’s proceedings. Justice Michael Lee issued a subpoena to obtain the full recordings acquired by News Corp, and the tapes were obtained by the Federal Court by Tuesday afternoon.
Angus Llewellyn’s cross examination
The first of the qualified privilege witnesses to enter the witness box was Angus Llewellyn, a producer for Network Ten’s The Project. He produced the interview between journalist Lisa Wilkinson and Brittany Higgins that aired in February 2021.
Llewellyn was there for the infamous five hour long conversation that took place before the video recording on the interview. He was heavily involved in hearing Higgins’ story and her evidence provided to the network.
During the full day of cross-examination, Lehrmann’s lawyer Matthew Richardson SC questioned whether Llewellyn adequately “checked the credibility” of Higgins’ evidence.
While Llewellyn pointed to the importance of Higgins signing a statutory declaration as way of demonstrating Higgins’ credibility, Richardson referred to the image of the bruise, which she provided The Project, to counter this claim.
Richardson: “You knew the one piece of evidence (the picture of the bruise)… could not be verified.”
Llewellyn: “Which is why we had a statutory declaration.”
Higgins told The Project at the time that the bruise was acquired from Bruce Lehrmann raping her on the night of 22 March 2019. However, in court, Higgins has said she may have acquired the bruise from falling down that same night.
The image she gave Llewellyn and Wilkinson was a screenshot of the original image. Higgins, at the time, suggested that her phone may have been hacked by the government to remove evidence from her phone, which is why she screenshotted things, including the image of the bruise, for safekeeping.
However, Lehrmann’s lawyers on Tuesday and previously in court suggested this contributed to the “fabrication” of her narrative.
Richardson: “Did it occur to you at this point how this photo had somehow survived the complete death of her phone?”
Llewellyn: “No, it didn’t occur to me.”
Llewellyn told the court that he wanted to “say to the country” that airing Higgins’ story, with the image of the bruise to support her claims, “was reasonable”.
The other secret tapes
After some debate in court over the last couple of weeks, the secretly recorded conversations between Senator Michaelia Cash, her then chief-of-staff Daniel Try and Brittany Higgins were played before the court.
Higgins said she had recorded these conversations, which took place in early 2021 before The Project interview aired but after the five hour long conversation on January 27th 2021, for her “legal protection”.
The first recording that was played in court was an in-person chat between Higgins and Try on 28th January 2021. An emotional Higgins spoke to Try about “PTSD panic attacks” she had been experiencing.
Daniel Try: “You can always talk to me or the Minister any time about this.”
Higgins told Try she had been “such a team player” about how “the incident” was handled, particularly in the Reynolds’ office. However, she felt like she was being “stonewalled”, particularly as media requests were coming into Parliament House enquiring about an alleged rape in March 2019.
While it upset Higgins, Try reassured her that he and Cash “are really trying to do everything”. Crucially, Try referred to Bruce Lehrmann by name in the course of the conversation surrounding Higgins’ allegations.
Try: “If you wanted it out in the open… myself and the boss would totally support you… It’s completely up to you.”
Next, the court heard a phone call that Higgins had recorded between herself, Try and Michaelia Cash one week later, on 5th February 2021.
Senator Cash opened the conversation with the question: “How’s sort of everything going?”
Higgins explained that she felt “affirmed in the decision” to resign from her position as a media advisor in Senator Cash’s office.
Senator Cash and Try made an offer to Higgins to relocate her to Brisbane, so she could work remotely and stay with her family in Queensland. Senator Cash made it clear to her that she would “never have to come back to Canberra again”.
Higgins declined the offer, citing she could not be connected to politics and felt she needed a “clean break”.
In her evidence in this case, Higgins has said that Senator Cash was aware of the alleged rape since 2019. However, the Senator seemed unaware of the details in this conversation.
Senator Cash: “Can I ask, Brit… what actually happened?”
Higgins went into detail about the alleged assault and explained that it “wasn’t handled right” at the time in Reynolds’ office. She said she was in “fear” of her job and was “really scared”.
Senator Cash: “Oh Brit, we didn’t know anything. You should have told us.”
Lisa Wilkinson’s lawyer Sue Chrysanthou SC told the court that it is “absolutely clear” from these covertly recorded conversations that Daniel Try knew the name of Higgins’ alleged perpetrator and was aware of the situation, despite seeming unaware of the details in the second conversation, one week later.
Court will resume on Wednesday morning.
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PHOTO CREDIT: Instagram @senatormichaeliacash