Day 18 wrap
Our live coverage of the Bruce Lehrmann defamation trial will continue on Tuesday. Please find our wrap of Monday’s proceedings below.
Brown is now being asked about a meeting she had with Higgins on Thursday 28 March, which we reported earlier, when Brown said Higgins told her “I am responsible for what I drink and my actions”.
Brown said that during this meeting Higgins said she remembered Lehrmann on top of her, and that she said this in a casual manner.
Brown said she was shocked by this, but didn’t understand what Higgins was telling her.
“I did not know what she meant by that,” Brown said.
Brown said she walked over to Higgins at this point and offered her tea or water.
Chrysanthou asked Brown why this wasn’t recorded in her contemporaneous notes from the time. Brown said: “It should have been in my notes.”
“I should have put it in.”
Justice Lee has adjourned for today. The court will resume at 10.15am with Brown in the witness box and no live stream.
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Still on the cleaning of the office, Brown’s affidavit states that Reynolds expressed concern about her office being cleaned shortly after it happened. Brown responded to her by saying it’s “lucky it wasn’t a crime scene”.
She said that when reflecting, years later, using the word lucky was “an unfortunate choice of words”.
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Brown is now being asked about the cleaning of the office where the alleged incident occurred.
She said she spoke with a staffer from the Department of Finance.
Brown spoke about how when staff are known to come in after hours and “make a mess”, cleaners are arranged to come in.
She said that is why cleaning was arranged, and that when she discussed the cleaning with the Department of Finance, the issue of an assault having taken place in the office was not discussed.
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Brown was asked about a further meeting she had with Higgins on Thursday 28 March.
“I asked her if something had happened she didn’t want to have happen,” Brown said.
Brown said Higgins replied: “I am responsible for what I drink and my actions.”
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Brown denies Higgins told her ‘Bruce was on top of me’
Chrysanthou is now asking Brown about her meeting with Higgins on 26 March 2019 at about 1.30pm.
Brown has denied that Higgins told her “Bruce was on top of me” during the meeting, also denying she responded “oh God” to what Higgins told her.
Brown denied that Higgins cried in front of her during the meeting.
“She just had a little bit of water in her eyes,” Brown said, adding that she handed her a tissue as well as a brochure for the EAP (employee assistance program) which is a counselling service available to staff.
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Court takes short break
The court will return with Chrysanthou asking Brown questions about her meeting with Higgins.
She has already been cross-examined about her meeting with Lehrmann on Tuesday 26 March, after a security breach on 23 March in the early hours of a Saturday morning.
The court heard Brown got a call from Barons at about 11.45am, then had a 10-minute meeting with Lehrmann, followed by a meeting with Higgins at about 1.30pm.
The court heard earlier in the trial that Lehrmann packed up his desk and left immediately after his meeting with Brown.
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Brown asked for more detail about talk with Lehrmann
Chrysanthou, for Wilkinson, is asking Brown for more detail about the 10-minute talk she had with Lehrmann about the night in question when he and Higgins entered the ministerial suite.
She said she had asked him if he accessed documents in secure areas when he entered parliament that night, and that he had told her he hadn’t.
Chrysanthou asked Brown if she asked Lehrmann any questions about Higgins being found naked. Brown said “I may have”, but that she didn’t recall. It wasn’t in the notes she made of the meeting.
Chrysanthou asked: “Wasn’t it the most important point?”
Brown responded: “I’m not an investigator, I’m there asking questions put to me by the department of finance. I was limited by that.
“It’s quite possible I mentioned it. I don’t know if I would have said ‘naked’ to him. I’m sorry, it’s been a very traumatic time.”
Justice Lee intervenes at this point, talking to Brown.
“You knew their age, you knew they came back intoxicated, you understood they’d been drinking whisky, and you understood she’d been found naked. Putting those things together, would it be right to say you think it would be more likely than not they had had sex?”
Brown: “I wouldn’t say more likely than not. It was possible.”
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Lehrmann’s explanation ‘seemed off to me’, Fiona Brown says
Chrysanthou, for Wilkinson, has asked Brown about conducting interviews with Lehrmann and Higgins about what had happened when they entered Parliament House after midnight in March 2019.
Chrysanthou asked Brown if she accepted that she should not have conducted the interviews with the two staff members of Senator Reynolds.
Brown disagreed, saying: “It wasn’t considered assault [at that point in time]”.
“It was a staff matter of people coming in after hours,” Brown said, noting she was asked by the department to talk to the pair.
Then Brown was asked about a discussion with the defence department liaison officer Chris Payne about the incident. She said she had raised with him issues from a security point of view, due to the after-hours access.
Payne has given evidence earlier in the trial.
Brown denied telling Payne she was going to access CCTV footage to get to the bottom of the matter.
Brown is then asked about interviewing Lehrmann about the after-hours access.
“I was puzzled,” she said.
Chrysanthou asked Brown if she thought Lehrmann was lying to her when he said he went back there to drink whisky.
Brown said: “I had no reason to think he was lying. I accepted what everyone said to me.”
However, Brown said of Lehrmann’s explanation: “It seemed off to me. One thought I had was had he come back here to access files. My antenna was up.”
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Brown is now being asked about a phone call with Lauren Barons from the department of finance on 26 March 2019, at about 11.45am.
This is when she claims she learned about the “security breach” – that is, that Higgins and Lehrmann had entered Parliament House in the early hours of the Saturday morning.
Brown said she “was shocked that they were in the building”.
Chrysanthou asks if she had wondered if the two had had sexual intercourse. “It was not unreasonable to have that thought,” Brown said.
Brown said she had not dealt with anything like this before. She said she didn’t have the skills or training to deal with it, which is why she went to the Department of Finance.
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Brown is being asked about an article published in the Australian in June under the headline “Fiona Brown feels betrayed. First by Brittany Higgins. Then by her own party. The forgotten victim in the sorry mess of the Higgins/Lehrmann rape saga breaks her silence.”
Brown is taken to the section of the article about a “security breach”. Brown says there is an inaccuracy in it – she wasn’t “on loan” from the prime minister’s office (PMO) to Reynolds’ office. She said she was working there proper.
The article was written by Janet Albrechtsen and Stephen Rice.
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Brown cross-examined by Sue Chrysanthou
Brown has been asked if she retained her lawyers shortly after The Project episode with Higgins was broadcast with the intention of making a defamation complaint, and Brown said she did.
She was asked if she also retained the lawyers to assist her with a police interview of record she gave on 22 March 2021 and Brown said yes.
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Brown asked about Alex Hawke
Brown has been asked about Alex Hawke’s role as special minister of state and if she knew of the closeness of Hawke’s relationship with the then prime minister, Scott Morrison.
She said she had no direct knowledge, only from what she read in media reports.
Brown also talks about Morrison’s adviser Andrew Carswell asking her to come to Canberra.
“I was asked to come to Canberra so I did the next day,” Brown said.
Asked about the evidence she handed over in relation to the case, she said: “I recall providing the text and WhatsApp messages from Mr Lehrmann and Ms Higgins, a copy of my contemporaneous notes, and a copy of the email from the department.”
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Reporters, given short notice the live stream would be shut down, are flooding into the federal courtroom to see Brown give evidence.
Brown has explained how she began a contract of employment in Linda Reynolds’ office on 15 March 2019, not expecting it to last long, as the expectation was that the Coalition would lose the election.
“I thought we’d lose,” she said.
Within Reynolds’ office, she acknowledged she was responsible for staff, and that “we were all answerable to the minister”.
Brown returned to PM’s office after election, and remained there until her role ended days after the 2022 election loss.
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Justice Lee rejected a request to suppress Brown’s affidavit and to bar media from the court room.
“I think it’s appropriate for the media be in the courtroom because it’s abhorrent against every instinct in my body to exclude, to close courts. And yes, I don’t want too many people here but I’m not going to exclude members of the media from the courtroom,” he said.
Earlier Justice Lee said there was a suggestion on social media that Brown was getting special treatment.
Lee said if someone is “having serious, unchallenged medical health issues” he is not going to be “responsible for unnecessarily exacerbating people’s mental health issues”.
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Fiona Brown sworn in as witness
The live stream has stopped but Guardian Australia has a reporter, Elias Visontay, in the court room.
Chrysanthou told the court earlier that aspects of Brown’s affidavit must be tested by cross-examination.
Justice Lee has closed the court to all but counsel and accredited media in the interests of open justice.
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Justice Lee has denied a request by Brown’s lawyers to bar accredited media from attending the court in person.
He has however agreed to shut down the federal court’s YouTube live stream for the evidence from Brown.
The court will resume at 4.30pm with counsel and media only in attendance, and will be recorded but not played on the live stream.
Justice Lee said Brown is not getting special treatment but he does not want to be responsible for someone’s mental health being adversely affected if they have a serious medical condition.
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Court briefly adjourned
Justice Lee has briefly adjourned the court while Brown considers his offer of a private hearing this afternoon in the federal court, even if it means sitting late.
He said while the medical evidence of Brown’s mental health is “concerning” it does not, on balance, reach a level where the subpoena should be discharged.
“If there are ways of mitigating against it [harm], I think part of the mitigation exercise is trying to minimise any further mental health damage to the witness,” Lee said.
“So, as I say, this is a new unique situation in that medical evidence has not been adduced in respect of any other witness.”
Lee has said he believes in treating all witnesses equally.
Chrysanthou has told the court that seven months ago Brown was interviewed by the Australian for six hours about the same topics.
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Brown’s lawyer has argued that Brown will suffer “significant adverse consequences” from giving the evidence in the federal court.
Justice Lee said he has read the material provided and said he has looked at it closely. He says the medical evidence is “quite strong” but doesn’t rise to the level of being unable to answer questions.
Lee said the experts say Brown “will suffer very significant difficulties” and is at risk from panic attacks.
Lee has asked the parties whether Brown could instead give evidence around a conference table – like in a deposition – rather than in open court.
Lee has offered to get it over with quickly and take her evidence in private this afternoon.
Chrysanthou has agreed for Brown to give her evidence via her affidavit alone but does want her to be cross-examined and will take two hours.
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Fiona Brown’s lawyers ask for her subpoena to be discharged due to medical condition
The court is now hearing an application from Fiona Brown, who has been called to give evidence at the trial.
Brown was the chief of staff to Senator Linda Reynolds at the time Higgins was employed.
Her lawyers are asking for her subpoena to be discharged, and rely on two medical reports from her doctors. They say an appearance will harm her medical condition.
Justice Lee has made an interim order that the medical reports be suppressed while the submission is heard.
Lisa Wilkinson’s silk, Sue Chrysanthou SC, has tendered an article by Janet Albrechtsen and Stephen Rice from the Australian.
The article is an interview the newspaper did with Brown over six hours in June.
Brown “engaged on these precise topics a few months ago with Janet Albrechtsen and Stephen Rice”, Chrysanthou said.
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A forensic toxicologist, Dr Michael Robertson, who was engaged by Ten is now under cross-examination by Lehrmann’s barrister, Steve Whybrow.
In his expert report Robertson said a woman of Higgins’ weight of around 60kg who drunk 13 vodka-based drinks would probably have had a blood alcohol concentration at 2.15am of about 0.23%.
Robertson has been asked to review the CCTV footage from the Dock and from Parliament House.
He agrees with Whybrow that Higgins was not showing overt signs of ataxia or poor muscle coordination. He agrees that she bent over to take her shoes off at the security desk.
Updated
Meakin has been excused and the executive producer of The Project, Christopher Bendall, is now in the witness box.
Bendall said he did not read the timeline which Higgins gave to The Project nor did he listen to the audio of the five-hour pre-interview between Wilkinson, Llewellyn, Higgins and her fiance, David Sharaz.
He said he did not watch the two-hour raw camera tapes of the Higgins interview or read the transcript.
Bendall said he relied on producer Angus Llewellyn to verify the bruise photograph and he “didn’t question it”.
Bendall said it was “entirely appropriate” that he, as executive producer, was not across the material gathered since 20 January from Higgins and Sharaz.
He said he relied on Llewellyn and Meakin to alert him to any material issues.
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Meakin back in witness box
Matthew Richardson SC, for Lehrmann, is taking Meakin through emails between Ten executives leading up to the broadcast.
Whybrow has asked Meakin whether he read an email from the ACT police on 15 February saying that the CCTV footage of the night Lehrmann and Higgins entered Parliament House had been secured.
He agreed that the information from the police confirmed what the Department of Parliamentary Services (DPS) said about the CCTV footage being available.
Meakin: “It seems to confirm that yes.”
Meakin said he is not aware of the dates around when Higgins had spoken to police or visited the police or had withdrawn her police complaint.
Whybrow: “I want to suggest to you at any rate that the dates that the DPS provided did not appear to suggest that there have been any undue delay or problems in the provision of the footage. Do you agree or disagree?”
Meakin: “Well, I think the argument turns on whether it was made available to the Belconnen detectives or whether it was made available to the internal police at Parliament House.”
Meakin agrees that he knew that the CCTV footage had been stored for a possible investigation.
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Meakin agrees that the email provided by Scott Morrison’s adviser Andrew Carswell from the PMO “contradicted” the story Higgins was telling The Project.
One email forwarded by Carswell to The Project was a friendly exchange between Fiona Brown and Higgins. Higgins said: “I wanted to say this in person, but I can’t overstate how much I valued your support and advice throughout this period. You’ve been absolutely incredible and I’m so appreciative.”
Asked whether The Project should have followed up with Higgins about the apparent contradiction, Meakin said: “Well, I suppose in retrospect, we could have done a lot of things, but I think Angus did a good job.”
The court has adjourned for lunch and will resume with Peter Meakin at 2pm.
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Meakin said he knew federal government spokesperson Andrew Carswell had spoken to Llewellyn and sent an email with claims that challenged what Higgins said about not being supported in going to the police to report her alleged rape.
He said he knew the government was challenging Higgins’ version of events but that part of the statement was on background which was “not the most reliable source of information in my view”.
Whybrow reminded Meakin that the introduction to The Project interview included the line “a young woman forced to choose between her career and the pursuit of justice”.
The news executive said he thought the introduction to the program implied “that we’re believing her story more than the government’s”.
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Meakin agreed that The Project was “going further” towards identifying Lehrmann than Samantha Maiden’s article in news.com.au which was published first.
He said The Project was relying on Maiden’s article to promote the program that evening and that the promotion could improve ratings.
Meakin said he knew Maiden was not going to name the alleged perpetrator and neither was The Project. However, The Project was going to say he worked for Linda Reynolds and that he had followed her from the portfolio of home affairs to her then portfolio of defence industries.
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Meakin is now being asked about discussions around the “appropriate time” to send a request for comment email to Lehrmann.
Whybrow asked if Meakin knew how old Lehrmann was in 2021 when The Project gave him from Friday afternoon to Monday morning to respond.
“I don’t think I was aware of his age,” Meakin said.
Meakin agreed that he “relied on the judgment” of Llewellyn and others at Ten when it came to how long to give Lehrmann to respond to the allegations.
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Former Nine and Seven news executive Peter Meakin is in the witness box. Meakin was an editorial consultant for Ten at the time the Project broadcast the Higgins interview.
He was previously the head of news and current affairs at Nine for three decades, leading high-rating programs Sunday, 60 Minutes and A Current Affair.
Meakin said he has never spoken to Higgins personally and he did not watch the two-hour raw camera tapes.
In an email to Project producer Angus Llewellyn read to the court, Meakin raised some concerns he had about Higgins’ “change of heart” about Linda Reynolds’ reaction to her disclosure.
Bruce Lehrmann’s barrister, Steve Whybrow SC, said Higgins “moved from saying initially kind words” about Reynolds to saying she was “uncomfortable” with her.
Meakin said he was aware he raised the query but he doesn’t know what happened after that.
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O’Connor has been excused after being cross-examined by Lehrmann’s barrister Whybrow about his communications with Higgins.
Earlier, Justice Lee said he would rule at 3pm on the matter of Fiona Brown’s evidence.
Brown’s legal team has asked that the former chief of staff be given special treatment due to poor health.
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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 live stream is a contempt of court.
Queensland MP says he thought it was unusual Scott Morrison’s principal private secretary called Higgins
O’Connor said he had many conversations with Higgins in person, via text and on the phone over 12 months in the aftermath of the alleged rape.
He said she talked about reporting it to the police and she was “certainly concerned about the implications of that”.
O’Connor said his very clear recollection was that Higgins said senior people in the Liberal party “checked in on her” and she thought they were pressuring her not to go public.
“She felt that there was a desire to make sure that she didn’t go public with this story, particularly in the lead-up to the election [and] that people were checking in on her,” O’Connor told the court.
O’Connor said the name that stuck in his mind was Yaron Finkelstein because he thought it was unusual for someone so senior to call Higgins. Finkelstein was then prime minister Scott Morrison’s principal private secretary.
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Queensland state MP says Brittany Higgins told him Bruce Lehrmann ‘had raped her’
O’Connor is the LNP member for Bonney on the Gold Coast. He received a text message from Higgins on 29 March 2019 saying she had a “super fucked up thing” happen to her and he called her.
O’Connor told the court: “She told me that he [Lehrmann] had taken her back to Parliament House and that had raped her.
“I absolutely remember the word rape. That’s not something that you forget. And she absolutely did say that. He had taken her back to Parliament House; something under the guise of having to drop in there or something.”
O’Connor said he had previously been a federal MP’s staffer and he believed it was very unusual to go to Parliament House in the early hours of a Saturday morning.
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Queensland MP Samuel O’Connor takes witness stand
The next witness is Queensland MP Samuel O’Connor, a politician who knew Brittany Higgins before she moved to Canberra to work for the Liberal party in late 2018.
The admissibility of O’Connor’s affidavit is being discussed by the parties before he enters the witness box.
Bruce Lehrmann’s barrister Steve Whybrow SC has raised objections to sections of the affidavit on the grounds Higgins has not been questioned on the contents.
Justice Lee has made an order that he is going to allow the contents of the affidavit.
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Justice Michael Lee has made an order for Google to provide the subscriber identity of a YouTube account Feminism Debunked which has allegedly uploaded several videos using material from the live stream of the federal court hearing.
The account holder will be required to show cause as to why proceedings should not be instituted against them for contempt of court, Lee said on Monday morning.
The public is allowed to watch the proceedings on YouTube in the interests of open justice but they are not allowed to record the live stream.
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Final week of defamation trial begins
Lisa Wilkinson’s colleagues at Ten, including veteran media executive Peter Meakin, will give evidence today as the final week of the Bruce Lehrmann defamation trial begins.
Wilkinson and Ten are co-respondents in the trial brought by Lehrmann who says he was defamed by a rape allegation made by Brittany Higgins on The Project. Lehrmann was not named but says he was identifiable.
The Project’s executive producer, Christopher Bendall, will also be questioned about the editorial decision-making process behind the Higgins interview after Wilkinson told the court she was not responsible for the final product.
“At that point, it had been taken to a point where others more senior than me were making those sorts of big decisions,” Wilkinson said last week.
Queensland MP Sam O’Connor, who worked with Higgins earlier in her career, is also due in the witness box as is a toxicologist who will talk about the effects of Higgins’ intoxication.
Higgins’ former boss Fiona Brown, who was chief of staff to Senator Linda Reynolds, is also expected to give evidence today with Justice Michael Lee still to rule on whether the YouTube livestream will be disabled when she is in the witness box.
Lehrmann has denied raping Higgins and previously pleaded not guilty to a charge of sexual intercourse without consent. His criminal trial was abandoned due to juror misconduct and a second trial did not proceed due to prosecutors’ fears for Higgins’ mental health.
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