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Can Brittany Higgins win from here? · The Front

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  Speaker 1: the news from the Australian. From the Australian, Here's what's
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  Speaker 1: on the Front. I'm Claire Harvey. It's Thursday, August twenty two.
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  Speaker 1: Politicians will face fines for bad behavior in the workplace
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  Speaker 2: We only have two and a half months, y'all to
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  Speaker 1: And Barack went for Donald Trump.
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  Speaker 3: We do not need four more years a bluster and
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  Speaker 1: Reporting to the Sharpest Analysis twenty four to seven at
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  Speaker 1: the Australian dot Com, dou David Charaz sent an inappropriate
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  Speaker 1: message to the journalists who broke the story of his
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  Speaker 1: wife's alleged rape inside Parliament House. That's the latest evidence
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  Speaker 1: in the defamation trial brought by Senator Linda Reynolds against
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  Speaker 1: her former Liberal staffer Brittany Higgins. The court also heard
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  Speaker 1: Higgins telling Maiden Linda Reynolds avoided her like she was toxic.
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  Speaker 1: In today's episode, our legal expert unpacks the strategy and
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  Speaker 1: the chaos behind the scenes of this big trial. When
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  Speaker 1: Liberal Senator Linda Reynolds brought her defamation action against her
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  Speaker 1: former staff of Brittaney Higgins, she hoped this would finally
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  Speaker 1: be her opportunity to face Higgins in a courtroom and
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  Speaker 1: have a judge determined who was telling the truth. Britney Higgins,
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  Speaker 1: for her part, has made it crystal clear she does
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  Speaker 1: not resile from her view that Linda Reynolds failed her.
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  Speaker 1: In court. On Wednesday, journalist Samantha Maiden gave evidence about
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  Speaker 1: an interview she did with Higgins in January twenty twenty one.
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  Speaker 1: In that interview, Higgins said this about working in Reynolds's
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  Speaker 1: office we've used a voice actor to bring you the
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  Speaker 1: words aired in court.
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  Speaker 4: She avoided me like I was toxic.
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  Speaker 1: She hated me.
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  Speaker 4: She worked her entire life to finally get Minister of
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  Speaker 4: Defense and I was in her office for two weeks.
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  Speaker 4: Some little twitch she doesn't know, just gets assaulted in
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  Speaker 4: her office and she hates it and she hates me.
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  Speaker 4: She still to this day hates having to.
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  Speaker 1: Be around me.
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  Speaker 4: They didn't care about me.
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  Speaker 1: Maidan also gave evidence about a text message she got
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  Speaker 1: from David Charaz after she broke the story of Higgins's
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  Speaker 1: allegations in February twenty twenty one. Again, this is a
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  Speaker 1: voice actor.
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  Speaker 5: What a fucking scoop hah.
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  Speaker 1: Maiden said she thought Sharaz's message was inappropriate. She also
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  Speaker 1: told the Quarter about an interview with Reynolds, where Maiden
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  Speaker 1: said she asked the senator if she believed Higgins was
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  Speaker 1: telling the truth or lying. Maiden said the senator replied,
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  Speaker 1: I don't know. I wasn't in the room. As the
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  Speaker 1: trial unfolds in the WA Supreme Court and the expensive
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  Speaker 1: barrister's square off, Linda Reynolds shows up every day for
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  Speaker 1: the fight she has brought on Brittany Higgins and her
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  Speaker 1: husband David Schaaz have not yet appeared in court to
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  Speaker 1: sit behind their barrister, Rachel Young sc and now Brittaney
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  Speaker 1: Higgins is indicated she won't show up at all. JP
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  Speaker 1: Cashen is a defamation law specialist and a partner with
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  Speaker 1: law firm Thompson Gear. They work with the Australian JP
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  Speaker 1: put this trial in a bit of context for me,
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  Speaker 1: how big is this one when it comes to defamation
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  Speaker 1: law in Australia.
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  Speaker 6: It's big. It's not as lundmark as the case before
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  Speaker 6: Justice Lee was. That case really was landmark in the
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  Speaker 6: sense that it was deciding a rape case on the
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  Speaker 6: civil standard of proof, which we really hadn't seen before.
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  Speaker 6: This one is more run of the mill in terms
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  Speaker 6: of the defamation concepts being applied and being determined. But
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  Speaker 6: obviously the gravity of it is just enormous, given the
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  Speaker 6: players involved, given it's Linda Reynolds and Britney Higgins, and
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  Speaker 6: I think it's one that will go down in history
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  Speaker 6: regardless of what the outcome is.
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  Speaker 1: Thompson Gear works with many major media organizations and some
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  Speaker 1: of JP's colleagues represented Network ten in the Bruce Lemmon
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  Speaker 1: defamation case in the Federal Court earlier this year, but
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  Speaker 1: they're not engaged in the matter presently before the WA
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  Speaker 1: Supreme Court. Linda Reynolds is the plaintiff in this matter,
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  Speaker 1: and she's suing over a series of social media posts
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  Speaker 1: made by Higgins and her now husband, Charraz in early
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  Speaker 1: twenty twenty three. We've used voice actors.
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  Speaker 4: This is from a current Australian senator who continues to
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  Speaker 4: harass me through the media and in the parliament. My
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  Speaker 4: former boss, who has publicly apologized for mishandling my rape allegation,
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  Speaker 4: who has had to apologize publicly after defending me in
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  Speaker 4: the workplace, who had a whole bunch of questionable conduct
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  Speaker 4: during my rape trial. She was suing my fiance for
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  Speaker 4: a tweet. This has been going on for years now.
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  Speaker 4: It is time to stop.
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  Speaker 5: There is a very real chance Linda Reynolds will be
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  Speaker 5: called to court this year to answer questions on her
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  Speaker 5: involvement in Brittany Higgins. Feeling pressured by her office not
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  Speaker 5: to continue with a complaint to police, she uploads this
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  Speaker 5: to her official website.
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  Speaker 1: Linda Reynolds sc Martin Bennett, when he opened her case,
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  Speaker 1: really outlined quite what seemed to me quite an ambitious case.
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  Speaker 1: They're arguing that there was a conspiracy between Brittany Higgins
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  Speaker 1: and her husband David Chiraz to allege that Linda Reynolds
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  Speaker 1: had failed in her duty of care to Britney Higgins.
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  Speaker 1: That seemed to me jp bigger than just alleging that
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  Speaker 1: Brittney Higgins had said something that wasn't true. What did
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  Speaker 1: you make of that way of framing Linda Reynolds's case.
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  Speaker 6: Yeah, it's interesting. I mean, it is only part of
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  Speaker 6: the case. So the first thing that she has to
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  Speaker 6: do to win the case, Renolds, is to prove that
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  Speaker 6: Brittany said something and that it wasn't true, and that
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  Speaker 6: there's no public interest basis for saying it. The conspiracy
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  Speaker 6: argument really comes in on the public interest side of things.
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  Speaker 6: So she's really trying to head off an argument by
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  Speaker 6: Brittany that everything she said was part of an important
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  Speaker 6: political discussion and that therefore it should be protected from
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  Speaker 6: the laws of defamation. And what Reynolds is trying to
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  Speaker 6: do is to say, no, no, no, this wasn't some
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  Speaker 6: legitimate discussion of a public interest matter. This was actually
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  Speaker 6: a private conspiracy between you and David Chiraz to try
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  Speaker 6: and get a political gain, and so she's really using
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  Speaker 6: it to head off that side of the case, and
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  Speaker 6: she also is trying to use it to increase any
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  Speaker 6: damages that she might be able to get by saying
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  Speaker 6: that they acted maliciously and unreasonably. So sort of only
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  Speaker 6: half of the case, but obviously a very important part
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  Speaker 6: of it.
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  Speaker 1: Now we're used to talking and you and I talk
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  Speaker 1: about these things a lot cases where we might be
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  Speaker 1: trying to defend our journalism, and one of the defenses
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  Speaker 1: that's available to us as a publisher is qualified privilege,
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  Speaker 1: which involves demonstrating that our journalism was reasonable, we made
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  Speaker 1: reasonable attempts to contact the person we were writing about
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  Speaker 1: and so on. Britney Higgins doesn't have that available to her,
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  Speaker 1: or does she.
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  Speaker 6: She does have it available to her, Yeah, she does.
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  Speaker 6: Because qualified privileges are very interesting defense. It's rarely successful
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  Speaker 6: for defamation defendants. It's basically aimed at protecting certain types
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  Speaker 6: of speech and saying that that speech should be protected
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  Speaker 6: from the usual defamation laws. If a parliamentarian stands up
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  Speaker 6: in the floor of Parliament says something, the media can
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  Speaker 6: report what they said and that's protected in the same
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  Speaker 6: way this week Peter Dutton was accused of being racist,
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  Speaker 6: and everyone reported on that everyone's protected because we're engaging
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  Speaker 6: in that important aspect of public discussion about what happened
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  Speaker 6: on the floor of Parliament. To win on qualified privilege,
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  Speaker 6: Britney would have to run a very similar argument to
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  Speaker 6: say that this is an important issue of public interest.
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  Speaker 6: It related to rape, it related to rape in parliament House,
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  Speaker 6: it related to the treatment of her by a sitting
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  Speaker 6: member of Parliament, and it's such an important public interest
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  Speaker 6: discussion that she doesn't have to prove it's true. She
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  Speaker 6: just has to prove that what she said was reasonable
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  Speaker 6: in the circumstances, and she's relying on that.
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  Speaker 1: Coming up. Could the absence of Brittney Higgins and David
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  Speaker 1: Charaz hurt their defense. That's after the break before this trial,
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  Speaker 1: David Charaz indicated he no longer had the money or
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  Speaker 1: energy to fight Linda Reynolds anymore. Britney Higgins has told
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  Speaker 1: the court via her senior council Rachel Young sc that
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  Speaker 1: she's unwell and won't be attending court to give evidence
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  Speaker 1: as expected.
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  Speaker 5: JP.
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  Speaker 1: I've never heard of anything like that before in a
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  Speaker 1: lot of years of covering court matters, have you.
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  Speaker 6: It doesn't happen very often. Usually that will get figured
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  Speaker 6: out much earlier in the piece. Someone will roll over
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  Speaker 6: in an early mediation or a plentiful figure out they
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  Speaker 6: don't have any money, and they'll get judgment against them
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  Speaker 6: pretty early. I think here it's quite unique because you
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  Speaker 6: have Brittany obviously proceeding with the case and David not.
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  Speaker 1: So the question I'm wondering JPS, are we seeing some
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  Speaker 1: sort of acts of tactical genius here by Rachel youngesc
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  Speaker 1: and not bringing these two people to court, or has
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  Speaker 1: she lost control of her clients?
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  Speaker 6: I doubt it's a huge tactical play. Mostly, you want
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  Speaker 6: to put on as much evidence as you can. You
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  Speaker 6: know your case is generally stronger the more evidence you
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  Speaker 6: put on. So I suspect if they felt that they
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  Speaker 6: could call Brittany, they would. We know that she wasn't
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  Speaker 6: fit and able to give evidence in the second criminal trial.
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  Speaker 6: We know that she's now pregnant and she has to
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  Speaker 6: travel her health is obviously there's a lot at stake there,
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  Speaker 6: So I'm certainly willing to accept at face value that
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  Speaker 6: she's not able to give evidence. But I think the
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  Speaker 6: case would be stronger with her. That doesn't mean to
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  Speaker 6: say that they couldn't win the case without Brittany.
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  Speaker 1: Yeah, what are the implications for a defendant if they
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  Speaker 1: just decline to give evidence.
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  Speaker 6: It's worth noting that Rachel Young handed up a confidential
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  Speaker 6: medical report, which we haven't seen but we understand outlines
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  Speaker 6: some very serious medical issues that Brittany's experiencing. That is
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  Speaker 6: probably aimed at a submission that Brittany should not be
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  Speaker 6: punished for not appearing to give evidence. In many cases,
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  Speaker 6: if you choose not to put evidence on that can
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  Speaker 6: be held against you, a court can draw an adverse
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  Speaker 6: inference against you and say, well, you could have put
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  Speaker 6: that evidence on, you've chosen not to. I'm going to
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  Speaker 6: assume that that wouldn't have helped you, or it might
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  Speaker 6: have been bad for you. But if there's a good
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  Speaker 6: reason for a witness not appearing, then the court won't
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  Speaker 6: hold those adverse inferences against you, And I suspect that
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  Speaker 6: that what that submission is aimed at. At the end
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  Speaker 6: of the trial, they will presumably say that shouldn't be
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  Speaker 6: held against Britney.
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  Speaker 1: Yeah, so would you expect to see Rachel Young then
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  Speaker 1: putting on submissions including basically Britney Higgins's opinion or memories
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  Speaker 1: recollections of what she would have said if she had
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  Speaker 1: been in court to give evidence.
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  Speaker 6: If you don't make a witness available for cross examination,
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  Speaker 6: it's very difficult to rely on their evidence. But in
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  Speaker 6: this case, there's a lot of other satellite evidence that
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  Speaker 6: they can rely on. We know there's a lot of contemporaries,
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  Speaker 6: text messages and WhatsApps, and there's other witnesses who interacted
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  Speaker 6: with Brittany at the time. I think they intend to
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  Speaker 6: call an AFP assistant commissioner who interacted with Brittany. I
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  Speaker 6: think journalist Samantha Maiden is going to be called, and
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  Speaker 6: there might well be others. So they can still establish
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  Speaker 6: their case about what Brittany was feeling, what she was
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  Speaker 6: experiencing around the time of the rape allegations, and all
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  Speaker 6: of that is legitimate evidence. They'll be missing that extra
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  Speaker 6: piece of Britney giving her first hand accounts of it,
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  Speaker 6: but they still have have other evidence to fill those gaps.
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  Speaker 6: It's amazing how a case can change based on one
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  Speaker 6: witness doing really well or one witness doing really badly.
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  Speaker 6: So I think for me, the jury is out, so
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  Speaker 6: to speak, until we see that evidence.
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  Speaker 1: One of the issues at this trial has been a
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  Speaker 1: so called protective trust that Brittaney Higgins created after winning
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  Speaker 1: a two point four million dollar payout from the Commonwealth.
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  Speaker 1: I ask JP if that will limit Linda Reynold's opportunity
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  Speaker 1: to get any damages if indeed she does win.
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  Speaker 6: I suspect they would be able to get their hands
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  Speaker 6: on the money one way or another. It's been very public.
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  Speaker 6: The fact that she's received that money and shifting it
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  Speaker 6: around will not usually be enough to prevent you from
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  Speaker 6: having to pay the damages award. So I think Brittany
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  Speaker 6: would be very much feeling that she's at financial risk
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  Speaker 6: as a result of this case.
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  Speaker 1: John Paul Cashion is a partner with Thompson Gear. The
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  Speaker 1: Australian is in court every day of this blockbuster defamation trial.
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  Speaker 1: You can read our in depth reporting and analysis anytime
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  Speaker 1: at The Australian dot com dot au