What we heard today
Bruce Lehrmann’s lawyers made an application to subpoena Sky News on Tuesday morning over a “secret” recording of Brittany Higgins’s lawyer speaking to Higgins’s fiance, David Sharaz, at a Sydney bar.
Read more on that here:
The court also heard two recordings secretly made by Higgins, and evidence from The Project producer Angus Llewellyn.
Here’s what we heard this afternoon:
Higgins was heard in one of the secret recordings telling Senator Michaelia Cash’s aide Daniel Try that she was having “random panic attacks” after the alleged rape. She also asks if he can find out the name of a journalist who asked a question about the alleged assault.
In another secret recording with Cash and Try, Higgins breaks down in tears, saying she felt everyone in the party had moved on, and she was the only one “keeping a secret and it was exhausting”. She says if it was a stranger she would go to the police, but she felt she couldn’t “because of all the weird party stuff”.
In another recording, Cash tells Higgins she can have another role in Brisbane doing social media, but Higgins replies she just wants to “end my relationship with Parliament House pretty much at this point”.
Lisa Wilkinson’s lawyer Sue Chrysanthou says it is “absolutely clear” from the recording Try knew about the alleged assault.
To read everything we heard this morning, click here.
The trial will continue tomorrow.
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Judge: ‘the more this case goes on the more I think I’m going to be engaged in it in any event right up till Father Christmas comes’
Justice Lee was hearing the separate issue of Lisa Wilkinson’s claim for the Ten Network to pay her legal costs when he remarked on the sprawling nature of the defamation case.
“The more this case goes on the more I think I’m going to be engaged in it in any event right up till Father Christmas comes,” Lee said.
Today saw the case take a new direction when it admitted into evidence a secret audio recording of Higgins’ lawyer talking to Higgins’ fiance David Sharaz.
Counsel for Ten and Wilkinson agreed to defer the case until mid-February 2024.
The court has adjourned until Wednesday morning when Llewellyn will return to the witness box to complete his cross-examination.
Sky News gives court USB of secret recordings of Higgins’ lawyer speaking with her fiance
Sky News Australia has delivered a USB to the court of the so-called secret recordings of Brittany Higgins’ lawyer speaking to Higgins’ fiance, David Sharaz, at a Sydney bar.
The recordings were taken of Leon Zwier and others at the Park Hyatt Lobby Bar on 4 December and reportedly revealed the lawyer discussing how Higgins could respond to questions in cross-examination.
The recordings will be provided to the parties.
Lehrmann’s legal team earlier served the subpoena on Sky News for a copy of the tape “before we can do anything further”.
“We’ve already made contact with a representative who’s prepared to accept service of that subpoena on behalf of that organisation,” silk Steve Whybrow SC told the court.
Whybrow has tendered two stories about a secret tape recording which allege Zwier was secretly recorded discussing the case with Sharaz. The stories were published overnight: one on Sky News’ Sharri Markson’s program and one by Samantha Maiden on news.com.au.
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Lisa Wilkinson’s lawyer says it is ‘clear’ from recording Cash’s aide knew about alleged assault
Sue Chrysanthou, for Lisa Wilkinson, has told the court it “is absolutely clear from the conversation with Mr Try a week before that Mr Try knows” the name of Higgins’ alleged assailant and that he knew it was an assault Higgins was talking about.
Chrysanthou said Try knew “exactly what Ms Higgins is talking about, including the name of the person who she’s accused [and that] Mr Try knows that had happened while she was in Linda Reynolds’ office; that is all absolutely clear from that first conversation.”
Llewellyn is now being cross-examined about the recordings.
Higgins: ‘I feel like I lost control of this entire situation’
Now the court is playing the conversation Higgins secretly recorded with Senator Michaelia Cash and Cash’s aide Daniel Try after Higgins resigned on 5 February 2021.
Higgins breaks down in tears during the conversation and talks about the alleged assault.
The conversation then centres on Higgins’ distress at how the Liberal party handled her allegation of assault in Parliament House.
Higgins said: “… I feel like I lost control of this entire situation and… the only way for me to kind of get a handle on it is to remove myself.”
Higgins said it felt like “everyone in the party [had] sort of moved on. Bruce got to move on with his life and I was the only one kind of keeping a secret and it was exhausting… [and] very stressful”.
Higgins said to Cash and Try that every time someone brings it up with her it’s “this painful thing” and she realises “how wrong it was and it’s just it makes me feel so gross and so disgusting”.
“And if this happened in a park with a stranger … I’d go to the police tomorrow and I would get him arrested but because of all the weird party stuff … and the hierarchy and whatever else I felt like I couldn’t and that’s a problem.”
Cash tells Higgins if she wants to keep her job, she can secure her a job in Brisbane doing her social media.
Higgins said no, she just wants to “end my relationship with Parliament House pretty much at this point”.
Higgins said in the ACT criminal trial that she had multiple conversations with Cash about the alleged rape from October 2019, during her employment there.
But Cash said she first learned of the alleged rape almost 18 months later, in February 2021, when Higgins told her “out of the blue” prior to resigning.
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Higgins heard in secret recording asking staffer to find out which journalist knew about alleged assault
The first conversation is between Higgins and Senator Michaelia Cash’s aide Daniel Try.
Higgins says she is having PTSD flashbacks and “random panic attacks” related to the alleged assault by Bruce Lehrmann. In the secretly recorded conversation she asks Try if he can find out the name of the journalist from the Canberra Times who asked a question about the alleged incident.
Higgins says it would help her if she knew who the journalist was.
Try says he will try to find out.
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Telephone conversations secretly recorded by Higgins to be played in court
Justice Lee will allow the tender of the two secretly recorded telephone conversations, despite earlier concerns it may contravene the ACT’s listening devices act.
“On 1 December 2023 Mr Whybrow SC during the course of the cross-examination of Ms Higgins sought to play an audio recording apparently taken on 5 February 2021 between Ms Higgins, Senator Cash and Mr Try,” Lee said.
“When this course was suggested, I asked the question of whether or not this was a ‘covert’ recording of a telephone conversation and discussion took place as to whether or not the playing of the recording could contravene the listening devices act.”
Lee said he would allow the recordings to be used in cross-examination on a limited basis only.
The court will play the two recordings now.
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Court hears arguments on admissibility of two secret phone recordings Higgins made
The first topic after lunch is the admissibility of two secret telephone recordings made by Brittany Higgins in 2021 before the Project broadcast.
Ten barrister Matt Collins has told the court Higgins recorded two conversations secretly: one with her then employer, Senator Michaelia Cash and her staffer Daniel Try, and one with Try.
Lehrmann’s barrister, Matthew Richardson, wants to ask the witness, Angus Llewellyn, about any recordings he was sent.
Lisa Wilkinson’s barrister, Sue Chrysanthou, has objected to the reliance the court can place on the recordings “given those two people [Cash and Try] aren’t coming to give evidence”.
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What we've heard so far this morning
This morning the court has heard from The Project producer Angus Llewellyn – and unrelated orders around a “secret recording” of a conversation between Brittany Higgins’ lawyer and her fiance, David Sharaz.
Bruce Lehrmann is suing Network Ten and Lisa Wilkinson for defamation over an interview with Brittany Higgins broadcast on The Project and online which did not name him but alleged she had been raped by a Liberal staffer in 2019.
Lehrmann has denied raping Higgins and pleaded not guilty to a charge of sexual intercourse without consent. His criminal trial was abandoned due to juror misconduct and the second did not proceed due to prosecutors’ fears for Higgins’ mental health.
Here’s what we’ve heard so far this morning:
Lehrmann’s legal team has told the federal court they will serve a subpoena on Sky News for a copy of a secret tape recording of Higgins’ lawyer Leon Zwier allegedly discussing the defamation case with Sharaz;
Llewellyn told the court he did not include in The Project story any suggestion that Higgins’ phone was hacked by the government, a suggestion which was floated during the five-hour meeting. “I go for stuff-up rather than a conspiracy,” Llewellyn said;
Llewellyn agreed he put the bruise photograph to air without seeing any metadata “but the story didn’t hang on whether we could air that the picture of that photo or not”;
Llewellyn said Higgins had said in a pre-interview that her former boss Fiona Brown “is a terrifying individual”;
The court heard that Sharaz sent Llewellyn a message saying Higgins had been to the police and “we got the officer over the line”. “It’s definitely helpful to have confirmation that an investigation of a very serious allegation happened, and it goes to the gravity of a serious allegation that we’re airing,” Llewellyn said.
Evidence continues this afternoon.
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Court adjourns
After a full morning of cross-examination of The Project producer Angus Llewellyn, the court has adjourned until 2.15pm.
Llewellyn will be back in the witness box after lunch.
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Project producer says David Sharaz told him Higgins had been to police again
Llewellyn is now being asked about what role, if any, The Project played in Higgins reactivating her complaint about the alleged rape with ACT police in 2021.
She had originally made a complaint in 2019 and then decided not to pursue it shortly afterwards.
The court has heard that Higgins’ partner, David Sharaz, sent Llewellyn a message saying Higgins had been to the police and “we got the officer over the line”.
Llewellyn said he didn’t know what Sharaz meant by “over the line” but it could mean the officer was nice.
Richardson said Sharaz also said: “Not sure if that’s helpful?”
Llewellyn: “It’s definitely helpful to have confirmation that an investigation of a very serious allegation happened, and it goes to the gravity of a serious allegation that we’re airing.”
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Higgins told Project producer that Fiona Brown was ‘a terrifying individual’, court hears
Brittany Higgins said in a pre-interview with The Project producer and Lisa Wilkinson that her former boss Fiona Brown “is a terrifying individual”, the federal court has heard.
Llewellyn is being asked about Higgins’ suggestion that Brown, the former chief of staff for Senator Linda Reynolds, may have interfered in her attempts to get another job after she left the senator’s office.
According to records of conversations before the court, Higgins suggested to Llewellyn that Brown may have been responsible for her being offered a job and then for the offer to be downgraded in title and in salary by $20,000.
Richardson: “[Higgins] also suggested Ms Brown is one of these people on a star chamber who took action to reduce her salary and change her job title because of everything this Ms Higgins had done.”
In the conversation Higgins said the “star chamber” was an “independent process where all potential ministerial advisers have to be approved”.
“She’s a terrifying individual, Fiona is on star chamber and we don’t know everyone who’s on star chamber,” Higgins told Llewellyn and Wilkinson, the court heard.
Llewellyn said he didn’t know if that was a credible suggestion by Higgins but it was possibly true.
Richardson: “Mr Llewellyn, I’m just suggesting to you that it became apparent that Ms Higgins had antipathy to Ms Brown, do you agree or disagree?”
Llewellyn: “I don’t know if antipathy is the right word. I think she was concerned she, she felt there was a power imbalance. Which there would be of course.”
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Project producer says he put bruise photo on-air without seeing any metadata
Llewellyn said Wilkinson asked Higgins to take her mobile phone to Vodafone to be examined but he took with “a massive grain of salt the idea that the government can remote-wipe phones, I thought that sounded fanciful”.
Llewellyn said he “didn’t think the government was going to [hack the phone]” and it was a “stuff up, not a hack”.
“Ms Wilkinson thought it was important [to get the phone checked by Vodafone] and I was going to back her up for that,” Llewellyn said.
Richardson put to Llewellyn that it was strange that Higgins’ phone was missing so much material but the bruise photo survived.
Richardson: “I want to suggest to you that the mere fact that [Higgins] had supplied you with a handful of messages and screenshots of emails attached to the timeline and the bruise photograph did not make her claims about the complete death of her phone any less strange.”
Llewellyn: “Ms Higgins provided me with what she thought was relevant. That does not mean that I think things are relevant.”
Llewellyn agreed he put the bruise photograph to air without seeing any metadata “but the story didn’t hang on whether we could air that the picture of that photo or not”.
“It was a very broad story.”
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Judge’s order published
The order made by Justice Lee this morning has been published. It says:
“The applicant [Bruce Lehrmann] be granted leave to serve the subpoena for production on Australian News Channel [Sky News Australia] (subpoena). 2. The time for service of the subpoena be abridged to 11:30am on 12 December 2023. 3. A sealed copy of the subpoena, together with a sealed copy of these orders, be served by email on Australian News Channel Pty Ltd’s legal representative.”
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Project producer says there was ‘no proof’ Higgins’ phone was hacked by the government
Llewellyn is being questioned by Lehrmann’s barrister, Matthew Richardson SC, about a five-hour meeting he attended with Lisa Wilkinson with Brittany Higgins and David Sharaz in January 2021.
The Project’s interview with Higgins aired on February 15 that year.
Llewellyn has told the court he did not include in The Project story any suggestion that Higgins’ phone was hacked by the government, a suggestion which was floated during the five-hour meeting.
“I go for stuff-up rather than a conspiracy,” Llewellyn said.
Llewellyn said The Project team discussed what should be included in the story but it was a rumour and “we had no proof” of allegations Higgins’ phone had been hacked.
There was “nothing we could ascertain about anything”, he said. “So there was no point putting anything in the story that hadn’t been proved.”
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The Project producer Angus Llewellyn gives evidence
The Project producer Angus Llewellyn, the first of the qualified privilege witnesses for the defence, is now in the witness box. Llewellyn is expected to be in the witness box for most of the day. Lisa Wilkinson is in the public gallery and will be giving evidence after Llewellyn has finished.
Llewellyn, who produced the interview Higgins did with Wilkinson, is answering questions about Higgins’ multiple devices and which messages and photographs she said were retained and which ones were wiped.
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Judge enters News Corp stories into evidence
Justice Lee has entered the two News Corp stories into evidence. They are: “Exclusive tapes revealed: Secret audio captures Higgins’ lawyer giving advice to her fiancé in middle of crucial cross-examination”; and “Bombshell secret recording captures Brittany Higgins’ lawyer on tape discussing trial with David Sharaz” as Exhibits A and B on the application for the issue of a subpoena.
One story was aired last night on Sky News Australia and the other was published last night by news.com.au.
The court heard that the audio and the transcript should be delivered to the federal court by 4.15pm at the latest, but Sky News should endeavour to get it to the court earlier if possible.
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Judge orders Sky News to produce alleged secret recording of Brittany Higgins' lawyer
Bruce Lehrmann’s legal team has told the federal court they will serve a subpoena on Sky News for a copy of the tape “before we can do anything further”.
“We’ve already made contact with a representative who’s prepared to accept service of that subpoena on behalf of that organisation,” silk Steve Whybrow SC told the court.
Whybrow has tendered two stories about a secret tape recording which alleges Higgins’ lawyer, Leon Zwier, was secretly recorded discussing the case with her fiance, David Sharaz, which were published overnight: one on Sky News’ Sharri Markson’s program and one by Samantha Maiden on news.com.au.
Lee has ordered that the tape and a transcript if it exists be submitted to the court by 4.15pm today.
Lee said Sky News should supply the court with “a copy of any audio recording of a conversation that took place in the Park Hyatt lobby bar on 4th December 2023 between Mr Leon Zwier and any other person as published by Sky News Australia”.
Separately, Justice Michael Lee has ordered that images of the court proceedings which have been published on X should be removed immediately.
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Federal court continues to livestream the case
This blog will cover major developments during the day. In the interests of open justice and due to significant public interest, the federal court is livestreaming this case.
You can watch the Bruce Lehrmann defamation trial live stream on YouTube here.
What we can expect today
We are heading into the home straight of the defamation case which Bruce Lehrmann has brought against Network Ten and journalist Lisa Wilkinson over an interview with Brittany Higgins on Ten’s The Project.
Legal sources say Justice Michael Lee is likely to address a report in News Corp publications on Tuesday which alleges Higgins’ lawyer Leon Zwier was secretly recorded discussing the case with her fiance, David Sharaz.
Lehrmann’s legal team may call for a subpoena for the entire tape, Guardian Australia understands.
The tape may be relevant because a week ago Higgins told the court that no one gave her tips about her evidence, and also because the judge made a direction that she not speak to anyone about her evidence during cross examination.
The trial is expected to finish next week after being extended beyond the original finish date of Thursday 14 December.
Network Ten’s barrister, Dr Matt Collins KC, said on Monday that he has finished calling the truth witnesses, with the exception of two expert witnesses: the toxicologist and the lip reader.
Today we are expected to hear from the first of the qualified privilege witnesses, Project producer Angus Llewellyn.
Ten journalist Lisa Wilkinson, the second defendant, is expected to be in the witness box tomorrow.
Llewellyn and Wilkinson are part of a qualified privilege defence brought against Lehrmann’s case in which he is seeking significant damages over the February 2021 interview with Higgins.
Collins said the qualified privilege witnesses will be finished by the end of the week and next Monday will hear from the expert witnesses who both have to be flown to Sydney.
Under a qualified privilege defence, Ten and Wilkinson have to show they behaved reasonably and had a public interest in broadcasting certain statements and their audience had an interest in being informed of those matters.
The evidence of Llewellyn and Wilkinson is directly relevant to that defence.
In her The Project interview Higgins alleged she was raped by a Liberal staffer in Parliament House in March 2019 – but Lehrmann was not named.
Lehrmann has denied raping Higgins and pleaded not guilty to a charge of sexual intercourse without consent. His criminal trial was abandoned due to juror misconduct and the second did not proceed due to prosecutors’ fears for Higgins’ mental health.
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