What we heard today
After a morning of evidence from two defence witnesses, the afternoon was taken up with legal arguments over whether to admit evidence from a lipreader.
Just a reminder: Bruce Lehrmann is suing Network Ten and journalist Lisa Wilkinson in the federal court over an interview with Brittany Higgins on Ten’s The Project in which she alleged she was raped by a Liberal staffer in Parliament House. Network Ten and Wilkinson are defending the case.
Lehrmann had pleaded not guilty to one charge of sexual intercourse without consent, denying that any sexual activity had occurred, in the criminal trial which was aborted due to juror misconduct.
Here’s what happened this afternoon:
Justice Michael Lee heard legal arguments about the admissibility of evidence from two experts called by the defence, including a lipreading expert based in the UK. The expert watched the CCTV footage from the Dock bar on the night of the alleged assault and is said to be able to interpret what Lehrmann, Higgins and others were saying.
Lehrmann’s legal team argued that the report produced by the lipreading expert is not “wholly or substantially based on specialised knowledge”.
Ultimately Lee ruled the lip reading evidence will be admitted. Lee said he did not believe he will be “misled or confused” by the evidence and reminded the court that the witness will be cross-examined on his report.
To read about what we heard this morning, click here.
The trial will continue on Monday morning.
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Judge allows lipreading evidence to be admitted
After more than two hours of legal argument and deliberation Justice Michael Lee has ruled that the lipreading evidence will be admitted.
Lee said Bruce Lehrmann has already “rejected propositions” put to him in cross-examination based on the opinions of the lipreader.
Lehrmann was earlier in the trial cross-examined about what he said at the Dock bar while CCTV showed him socialising with Brittany Higgins and others.
Network Ten’s barrister, Matt Collins KC, said that at one point at the Dock bar Lehrmann moved three drinks closer to Higgins on the table and said they were “all hers, all hers”.
“You moved them to the edge of the table so that they were close to Ms Higgins,” Collins said.
Lehrmann replied: “No, I disagree with that.”
Collins said Higgins laughed and touched Lehrmann on the arm, saying: “Oh stop, oh stop.”
Lehrmann replied: “I can’t be certain of that, sorry.”
Collins asked: “You were trying to get Ms Higgins drunk.”
Lehrmann: “No I wasn’t.”
Lee said he did not believe he will be “misled or confused” by the evidence and reminded the court that the witness will be cross-examined on his report.
“I hasten to add that my ruling allowing this evidence to be adduced is not to say that ultimately I will regard the evidence as being of great weight,” Lee said.
“This will depend in part upon the conclusions that I draw upon the foreshadowed cross-examination of the expert; and the cogency of the lipreading evidence will have to be assessed.”
“For this reason, I allow the report to be adduced.”
The court has adjourned until 10.15am on Monday.
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Justice Lee delivers ruling on whether to allow lipreading expert
Justice Michael Lee is delivering his ruling on whether to allow a lipreading expert.
He says the man’s report can’t be rejected purely on the basis that it is not a scientific skill. Lee says the man has retained “significant specialised knowledge” through lipreading in order to communicate with people after becoming profoundly deaf at the age of four from illness.
Lee says the report is idiosyncratic in parts but does demonstrate the processes followed to produce a transcript using his specialist knowledge.
“I’m satisfied that the opinions expressed are sufficiently disclosed as to have been substantially based on his specialised knowledge,” Lee says.
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Lipreader who interpreted what Lehrmann said in bar previously worked for media outlets and investigated extramarital affair, court hears
The court has returned from lunch and Justice Michael Lee has continued to hear legal argument about the admissibility of evidence from two experts called by the defence.
One is a lipreading expert based in the UK who has watched the CCTV footage from the Dock and is said to be able to interpret what Bruce Lehrmann, Brittany Higgins and others were saying.
The court has heard that the expert lipreader has been profoundly deaf since the age of four, taught himself to lipread and has worked as a forensic lipreader.
Lehrmann’s legal team has argued that the report produced by the lipreading expert is not “wholly or substantially based on specialised knowledge”.
The lipreader’s experience includes investigative legal health visits, media outlets, private clients with CCTV, including investigating an extramarital affair. His clients include tabloid newspapers and the UK’s National Health Service.
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Lisa Wilkinson seen on break during defamation trial
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Brittany Higgins' $2.45m settlement made one day after mediation in 'highly unusual' move, Michaelia Cash says
Michaelia Cash has accused the prime minister of denying her the right to defend herself before the government paid out Brittany Higgins a personal injury settlement worth $2.45m.
The formerly confidential settlement document was revealed in the federal court on Thursday. In the outline of the particulars of the liability, submitted as part of the settlement by lawyers on behalf of Higgins, it said Cash was informed about Higgins’ allegations in October 2019 after a journalist made inquiries to the then Liberal minister Linda Reynolds about a sexual assault that allegedly occurred in the minister’s office.
Cash told 2CC radio on Friday morning she was directed by the attorney general, Mark Dreyfus, not to participate in the mediation.
She said:
My understanding is that the settlement was made after one day of mediation.
That is highly unusual when you are stepping on the basis of one person’s versions of the event … the commonwealth did not admit liability.
Let me be very, very clear. It is now up to the prime minister, Anthony Albanese, to explain why his government paid out $2.4m while relying only on one side of the story.
In last year’s criminal trial, Cash denied that she knew of the alleged rape of Higgins more than a year before it became public, saying 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.
The settlement states Higgins is still able to make claims against Reynolds and Cash in relation to the matter, but only in relation to “actions of Senator Reynolds or Senator Cash that do not relate to the performance or non-performance of their ministerial duties; or fines or penalties”.
The particulars of liability outlined by Higgins’ lawyers said she experienced difficulty and ongoing panic attacks entering Parliament House through the same ministerial entrance the night she was allegedly raped. After she informed Cash, the minister “indicated to the claimant that, in effect, she had to ‘suck it up’”.
The $2.4m settlement included $400,000 for “hurt, distress, and humiliation” suffered by Higgins and which arose from alleged conduct during her employment and prior to her termination.
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What we've heard so far
As the court takes a long break for lunch, here is a summary of what we’ve heard so far today.
Just a reminder: Bruce Lehrmann is suing Network Ten and journalist Lisa Wilkinson in the federal court over an interview with Brittany Higgins on Ten’s The Project in which she alleged she was raped by a Liberal staffer in Parliament House. Network Ten and Wilkinson are defending the case.
Lehrmann had pleaded not guilty to one charge of sexual intercourse without consent, denying that any sexual activity had occurred, in the criminal trial which was aborted due to juror misconduct.
This morning we heard from two witnesses for the defence:
• Sarah Harman, an ACT police officer who investigated Higgins’ sexual assault allegation against Lehrmann, said she met with Higgins at a time when she had not yet decided to proceed with a complaint.
• Harman said Higgins told her she was worried about the “replaceable nature of her employment” and the upcoming election. When Higgins later told her she did not want to continue with the complaint at that stage, Harman was asked by her superiors to follow up to ensure “there had been no pressure placed upon her to not proceed”.
• Harman complained about the “incredibly frustrating” pushback she received from Parliament House while trying to access CCTV footage.
• Harman said Higgins was “hysterical” and upset when the AFP warned her there had been a media inquiry to them about the assault, and that it might be raised at Senate estimates.
• A rape crisis counsellor, Catherine Cripps, was next in the witness box. She was present at a “meet and greet” between Higgins and the ACT police, and said Higgins tried to stay composed but was at times in “great distress”.
• Cripps said Higgins said she was desperate to report the alleged rape but she really wanted to keep her job too, and she was in an emotional “tug of war”.
The hearing is due to resume at 2:15pm
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Before the lunch break Justice Lee is hearing legal argument about the admissibility of evidence from two experts called by the defence.
One is a lip-reading expert based in the UK who has watched the CCTV footage from the Dock and interpreted what the subjects were saying.
The other is an expert on sexual assault victims and has written a report about why they might delay reporting and why their recollection may be faulty.
Collins has argued Lee should allow the evidence because it contains up-to-date information about how victims of sexual assault behave.
Lehrmann’s barrister Steve Whybow said it is not relevant because Higgins did not delay her reporting, but in fact reported it after three days.
The court has adjourned until 2.15pm.
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Rape crisis counsellor estimates she had contact with Higgins 100 times
Cripps told the court she had an estimated 100 contacts with Higgins after the meet and greet, in the form of face-to-face counselling, emails and phone consults.
Cripps said that at the face-to-face sessions Higgins said she was desperate to report the alleged rape but she really wanted to keep her job too and she was in an emotional “tug of war”.
“She desperately did want to report but she felt she wanted her job more,” Cripps said.
“Each time I saw her it was about her distress, wanting two different things and they weren’t congruent.
“She said she’d only been in the ACT for six months. She came for this, what she called – and I quote you and it stands out in my memory because it was unusual in counselling – she called it her ‘dream job’.
“And she was here for six months only. This was her dream job.”
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Rape crisis counsellor says Higgins ‘in great distress’ during meeting
A rape crisis counsellor, Catherine Cripps, has told the federal court she attended the Winchester police centre to have a “meet and greet” with Brittany Higgins and the ACT police.
She remained in the room while Higgins talked to two police officers and she was there as an advocate and a support to her wellbeing, she said.
“I was observing Brittany,” Cripps said. “So there was a lot of distress on her behalf. She was very tearful but she tried very hard to remain composed, very hard.
“But there were times that she really couldn’t [compose herself] and just was in great distress or tears just intensely.”
Cripps said when the police officer mentioned the rights of the alleged perpetrator she was extremely distressed.
The other issue which caused her to be even more upset was when she was asked if she wanted to lay a formal charge.
“That really distressed her as well,” Cripps said. “And there was flooding [of tears].”
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Harman says Higgins was ‘hysterical’ when told allegation might be reported in media
Harman said she had contact with Higgins again in October when she was asked to tell her there had been a media inquiry to the AFP about the sexual assault and it may be raised at Senate estimates that week.
The AFP wanted Higgins to know that it may be raised to give her “advance notice that this is something that could come up” and it may be reported in the media, Harman said.
“I guess [we wanted] to get on the front foot [so she could] hear it from police before that happened,” Harman said.
Harman said Higgins was “hysterical” when given the news, asked how they found out and was so upset she was “very difficult to understand”.
“Obviously I had concerns about her welfare during that call because she was hysterical,” Harman said. “I didn’t quite expect that reaction from her.”
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Harman says she received ‘push back’ from Parliament House about accessing CCTV footage
Harman said after Higgins sent her an email saying she did not want to continue with the complaint at that stage, Harman was asked by her superiors to follow up to ensure “there had been no pressure placed upon her to not proceed [with the complaint]”.
Harman said the ACT victim liaison officer was tasked with finding out whether Higgins “did make that decision for herself”.
“That email that she sent to me wasn’t out of the ordinary or wasn’t a shock to me that she changed her mind,” Harman said.
Harman said the investigation of the CCTV footage did continue but it was “incredibly frustrating” how much “push back” she received from Parliament House about accessing the CCTV.
“It was frustrating … I never encountered such pushback on obtaining CCTV. and it was incredibly frustrating for me.”
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Harman says Higgins told her she was worried about ‘replaceable nature of her employment’
Harman is now reading from her notes taken at that meet and greet session with Higgins at Belconnen. “She told me sexual intercourse had taken place without her consent,” Harman said. “I asked her if any protection had been worn and she said no.
“I didn’t go into the specific details of [the alleged assault] because that is something that I would do in an evidence-in-chief interview, rather than getting someone to retell a version of events multiple times.”
The court heard Higgins told Harman she was worried about the “replaceable nature of her employment” and the upcoming election; and she had only worked for Senator Linda Reynolds for six months whereas Lehrmann was “well connected”.
“It was a theme I recall from throughout that conversation: the replaceable nature of her employment and the upcoming election,” Harman said.
Higgins also told Harman she was friends with Lehrmann on social media but had since blocked him.
Harman said Higgins told her the white pencil dress she wore on the night of the alleged incident was under her bed in a bag.
Asked what Higgins’ demeanour was like when she met with police on that day Harman said: “She was meeting with the police [and ] I think that experience in itself makes some people quite anxious. She was articulate, coherent. She was upset but she wasn’t crying … there was nothing out of the ordinary though in her demeanour that struck … me to make any notes.
“She was willing to hear the information they gave her… and was happy to be speaking to someone about it and getting some information to make decisions.”
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Harman says she contacted the Dock and met with Higgins
Harman has been asked to refer to her official Australian federal police (AFP) diary for the relevant dates.
“I recall making inquiries in relation to closed circuit television at [Canberra bar] the Dock,” Harman said.
Harman said she was told Higgins attended the Dock on the Kingston foreshore between 6.30pm and 10.30pm and she called the bar and asked if the CCTV footage from the night was available, and was told that it was.
She said she called Higgins and introduced herself and arranged to pick her up from Parliament House at 5pm and take her back to the Winchester police centre in Belconnen.
At the “meet and greet” session, she said Higgins was given information about what services were available to her as an alleged rape victim and told what a rape investigation involved, including speaking to witnesses, collecting evidence from the crime scene, and what court processes might involve.
“I did not ask her to recount in detail as I already had an understanding of what was alleged,” Harman said, but she did ask her about any “perishable evidence” because that was urgent to collect.
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Detective senior constable Sarah Harman gives evidence
The first defence witness on Friday morning is detective senior constable Sarah Harman, an ACT police officer who investigated Brittany Higgins’ sexual assault allegation against Lehrmann.
Harman said her job is to meet complainants of adult sexual assault and take statements and collect evidence.
On Thursday 4 April 2019 she was allocated the allegation by Higgins that she had been sexually assaulted by Lehrmann in Parliament House on 22 March, Harman told the court.
She was asked to meet with Higgins and was told she might not want to proceed with the complaint at that time but she wanted more information.
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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.
The judge has made a ruling that recording the stream is a contempt of court.
What's coming up today
It’s day 12 of the defamation trial brought by Bruce Lehrmann against Network Ten and Lisa Wilkinson. The defence will be calling a number of witnesses today, including detective senior constable Sarah Harman, an ACT police officer who investigated Brittany Higgins’ sexual assault allegation against Lehrmann, and rape crisis counsellor Catherine Cripps.
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.
Senator Linda Reynolds’s former chief of staff Fiona Brown has asked to be excused from giving evidence at the defamation trial due to her “vulnerable” mental health, and we may get a decision from Justice Michael Lee on that.
At the end of an extended sitting day yesterday the federal court published Higgins’ $2.445m settlement agreement with the commonwealth, with some redactions to protect her privacy.
The document detailed Higgins’ personal injury claim settlement, including $400,000 for hurt, distress and humiliation suffered by Higgins, arising from alleged conduct occurring during her employment, prior to the termination of that employment, and in no way connected to the termination.
That was in addition to $1,480,000 paid in respect of Higgins’ loss of earning capacity, $220,000 in medical expenses, $100,000 for past and future domestic assistance and $245,000 for legal costs.
There were no admissions of liability by any of the parties to the settlement.
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