Defamation trial between senator Linda Reynolds and Brittany Higgins enters third week

Lawyers for Brittany Higgins have told a court they will no longer call her to the stand in the defamation case brought against her by Senator Linda Reynolds, declaring she is not medically fit to give evidence.

Ms Higgins’ barrister, Rachael Young SC, said they did not need to call her into the proceedings for her to win the case, and Ms Higgins’ medical state, similar to that of Senator Reynolds’ former chief of staff Fiona Brown, would mean she could be excused from giving evidence.

“The first is, we’re not obliged to go into oral evidence,” Ms Young said.

“The second is ... we don’t think we need to call Miss Higgins to satisfy your honour as to the defendant being successful in these proceedings,” Ms Young said.

“The third is a matter of Ms Higgins’ medical state.”

Confidential medical reports were handed to the court on behalf of Ms Higgins.

Ms Higgins, who is currently pregnant, was due to travel to Perth from her home in France and give evidence for five days next week.

Senior counsel for Ms Brown, Dominique Hogan-Doran, provided the court last week a confidential report and medical certificate requesting that Ms Brown be excused from giving evidence in person.

On Monday, lawyers argued whether written evidence prepared by Ms Brown in the Lehrmann trial was sufficient to use as evidence so she would not have to attend in person.

But Ms Young raised concerns that some statements made could not be cross-examined and they would be deprived of testing her recollection.

She argued that some statements in the affidavit should be given less weight or be inadmissible.

‘THESE THINGS HAPPEN IN TRIALS’

Senator Reynolds’ lawyer Martin Bennett said they had considered Ms Higgins might not give evidence in the defamation trial.

He told reporters outside of court he would read the medical reports that were submitted to the court to see the extent of Ms Higgins’ medical condition.

“It is what it is,” he said.

“What my client wants is not for people to talk about their truth, she wants the truth established and adjudicated by a judge.

“She cannot raise it under parliamentary privilege in parliament because there is no way in hell you can test what she says against what Ms Higgins claims is her treatment.

“It is her word against Ms Higgins now, Ms Higgins isn’t coming.”

Mr Bennett said he would see if Ms Higgins’ barrister Rachael Young would accept material that went before Justice Lee, that he did not believe, about the coverup.

“We will wait and see what happens in the next few days,” he said.

Mr Bennett said neither Ms Higgins or Mr Sharaz, who are living in France, would be giving evidence.

“We plead they are co-conspirators and they are joined in a plan to attack Senator Reynolds but neither of them will give evidence,” he said.

“If a person does not give evidence on their own behalf, a court can draw an inference that is adverse to them.

“I will read the evidence and see how it goes.

“What the senator will be unhappy about, is that the contest now will not be her word against Ms Higgins’. (There will) always be the question, if Ms Higgins was well enough she could have answered these allegations.

“Linda Reynolds has waited years to vindicate her reputation.

“These things happen in trials.”

Senator Reynolds is suing her former staffer and Ms Higgins’ husband David Sharaz over a number of social media posts the pair made in 2022 and 2023.

The posts were critical of Senator Reynolds’ handling of Ms Higgins’ allegation she was raped in Parliament House in 2019 by her then colleague Mr Lehrmann.

He was charged with rape and faced trial in 2022, but the trial was aborted due to juror misconduct.

The charge was dropped and Mr Lehrmann continues to maintain his innocence.

Mr Lehrmann lost a subsequent civil defamation case in April this year when the Federal Court determined, on the balance of probabilities, that Mr Lehrmann had raped Ms Higgins at Parliament House. He is appealing this decision.

SENATOR MAY HAVE STRUGGLED IN NEXT ELECTION

Selection committee of Liberal Party WA chairman Jeremy Buxton told the court earlier on Monday that when a senator made themselves a story it usually went against them, and the Senator would have “struggled” to get her name on the ballot for the next election.

Mr Buxton was giving evidence about whether allegations made by Ms Higgins could have potentially jeopardised the senator from running again for the Liberal Party.

He said even if the issue was not a criminal matter, if serving members were seen to have messed up it worked against them.

He said there were cases in the past where senators had been demoted within the Liberal Party in WA.

Mr Buxton told the court while he did not discuss the matter with his Liberal Party colleagues, he said there could have been an adverse feeling among some of them.

He said some people may have judged the senator more harshly as a woman who did not support a young female colleague.

“It would have put her at a disadvantage to other colleagues who did not have to answer those questions,” he said.

“She would have been struggling to get the third position (on the ballot paper).”

SENATOR’S HEALTH IMPROVED IN 2022

Senator Reynolds’ GP in Canberra, Dr Antonio Di Dio, gave evidence in the senator’s defamation case which has now entered its third week.

Dr Di Dio first saw Senator Reynolds at Parliament House on February 23, 2021, saying she was very anxious and stressed.

“I was asked to see her because of her acute anxiety,” he said.

Dr Di Dio said the senator was experiencing chest pain so he arranged an urgent referral to Canberra Hospital.

He said there was some concern that she would be seen with urgency so he arranged for a local cardiologist to see her.

When he saw her again five days later, her blood pressure had returned to normal, he told the court.

He also referred her to a clinical psychologist and psychiatrist because he was concerned about her high levels of anxiety and the profound effect it was having on her at the time.

He said it was causing her great distress.

While being questioned by defence lawyer Kate Pedersen, Dr Dio said the senator’s mental health improved in 2022.

Dr Di Dio told the court there was no doubt the senator was far better than the “awful acute period from when we first met”.

“She was still on a significant amount of medication, but there are notes in the record that she was stable and self-caring and looking after herself,” he said.

Dr Di Dio said reports he received about the senator’s heart condition after she was hospitalised would not be enough to tell if you a person was at risk of dying.

HUGE CALL LOOMS ON FIONA BROWN EVIDENCE

On Monday, Justice Tottle will decide if the senator’s former chief of staff Fiona Brown will have to give evidence during the trial in person.

Ms Brown’s senior counsel Dominique Hogan-Doran provided the court last week a confidential report and medical certificate requesting that Ms Brown be excused from giving evidence in court.

It is anticipated Ms Brown may be able to give her evidence in the form of a written statement.

Ms Higgins’ lawyer Rachael Young said they had no difficulty with the order being proposed by Ms Brown and did not want to cause her distress by calling her to court to give evidence.

She said as long as what they had been told by Ms Brown’s lawyers was consistent and accurate with what was provided to the court then they would not oppose Ms Brown being released.

Senator Reynolds’ lawyer Martin Bennett said he did not anticipate an argument and agreed a suppression order should be imposed.

He also told the court they may move through the witness list earlier than expected which could result in Ms Higgins giving her evidence earlier than August 26.

But that is likely to be opposed by her defence team and Justice Tottle who said it might be difficult for her logistically.

The trial continues.