Liberal Senator Linda Reynolds had commenced her evidence in the ACT Supreme Court on Monday when the line of questioning by the Director of Public Prosecutions Shane Drumgold took a sharp turn.
Shortly afterwards, she would be accused of offering “cross-examination tips” to the defence lawyer for the accused Bruce Lehrmann.
Mr Lehrmann is accused of sexually assaulting former Liberal staffer Brittany Higgins in Senator Linda Reynolds’ office in the early hours of March 23, 2019.
Mr Lehrmann has pleaded not guilty to one charge of sexual intercourse without consent.
The former Defence Minister had walked into court that afternoon wearing a coral pink blazer and swore an oath on the Bible.
“Have you attempted to inform yourself of the evidence of Ms Higgins in this trial?” Mr Drumgold asked Ms Reynolds.
“Only what I have seen in the media,” she replied.
“Listen to the question,” Mr Drumgold then asked.
“Have you attempted to obtain the evidence of Ms Higgins in this trial?”
“No. Do you mean recently?” Ms Reynolds said.
She then suggested the prosecutor needed to be clearer.
“Well, let me ask it this way,” he replied. “You have sought the transcripts of Ms Higgins’s evidence in this trial, haven’t you?”
“Yes,” Ms Reynolds replied.
“Because I was – I was curious to know what had been said but I was advised by my lawyer that that wasn’t appropriate.”
Texts to the defence lawyer
Mr Drumgold then told the court that Ms Reynolds “wrote to my friend”, defence barrister Steve Whybrow.
“You wrote an SMS to my friend asking him to send transcripts to your lawyer at the conclusion – at the commencement of Ms Higgins’ cross-examination, didn’t you?” he said.
“Yes, but I was advised that it was not appropriate. I hadn’t realised it wasn’t appropriate because I haven’t been in this situation before, so my lawyer made it very clear that it wasn’t appropriate,” she replied.
Partner in courtroom listening to evidence
Mr Drumgold then put it to Ms Reynolds that she had arranged for “your husband to sit in the back of the court, didn’t you?”
“No, he’s not my husband, but my partner has been here in the court, yes,” she replied.
“And he’s been talking to you about the evidence that Ms Higgins gave, hasn’t he?” Mr Drumgold said.
“No, he has not. My lawyer was very – my lawyer was very clear and I have been in Rwanda for the last week. I came back early to testify today.”
Mr Drumgold noted that during Ms Higgins’s evidence, “You’re in Rwanda?”
“Yes,” she replied.
“And your partner lives in Perth? And your partner finds himself in the back of the court listening to Ms Higgins’ evidence.
“And two hours into Ms Higgins’s cross-examination you texted my friend asking him to send your lawyer transcripts of the trial?
“Yes,” she replied.
At one point, Mr Lehrmann’s barrister Steve Whybrow objected and said, “This is getting well beyond any rational unfavourable evidence.”
“It is. I am aware of the test and I am going to extend the leave,” Chief Justice Lucy McCallum said.
Senator asked defence lawyer for Higgins evidence
Mr Drumgold said to Ms Reynolds: “I’m going to put this to you directly that at our time 4.27pm on Thursday, 6 October, you were aware that Ms Higgins had just started her cross-examination. Were you aware of that? At 4.27pm on Thursday, 6 October, you sent a text to the defence lawyer saying, ‘Hi, do you have the daily transcripts? If so, are you able to provide my lawyer?’”
Mr Drumgold said: “I am suggesting that your lawyer had no interest in these transcripts, it was you that had interest in these transcripts and that message is to say, ‘Can you send them to my lawyer,’ with a clear understanding that your lawyer would pass them on to you.”
“Yes, I did ask for them. But, again, it was explained to me that it wasn‘t appropriate to make that request. So they were not sent.”
The Senator conceded she probably was aware that Ms Higgins’ cross-examination had commenced because it was reported.
“Then you sent a text one minute later, ‘Also, if you have text messages between Brittany and Nicky, they may be revealing?’” Mr Drumgold said.
“Yes,” she replied.
Nicky is a reference to Nicole Hamer, a witness in the trial and a former press secretary to Ms Reynolds.
The Senator said she did not have the texts.
“Well, what were you trying to do then? You‘re instructing the defence lawyer two hours into the cross-examination?” Mr Drumgold said.
“So you are injecting yourself by trying to assist him in his cross-examination?”
Earlier, Ms Reynolds said she first learned there had been a security incident in the office on Tuesday, March 26, 2019, from her chief of staff Fiona Brown and that she was “shocked” by the revelation.
Ms Reynolds said she was told that there was a security breach and “two staff had come into my ministerial office after hours”.
When asked what Ms Brown told her over several subsequent conversations, Ms Reynolds said only that Brittany Higgins “couldn’t remember what happened, and – but Ms Brown became concerned by Ms Higgins’ demeanour, because she was getting upset”.
In previous evidence, Ms Brown told the court that she had told Ms Reynolds that Brittany Higgins had told her she remembered waking up and Mr Lehrmann being on top of her.
“And I said, ‘Oh. Oh my god,” Ms Brown told the court.
Asked if she had conveyed that to Ms Reynolds before the April 1 meeting with Ms Higgins she replied: “Yes.”
Higgins tells Ms Reynolds she ‘got dressed’ the next morning
Ms Reynolds said Ms Higgins told her on April 1, 2019, that she was very drunk on the night of the alleged incident and she couldn’t remember what had happened that night.
“But in the course of saying that, she did mention to me that she woke up the next morning and got – I can’t remember the exact words, but mentioned that she got dressed,” she said.
“And it was at that point – she was also a little more distressed – and it was at that point that I thought, ‘I’m not the right person to be talking [to]’. You know, if you’ve got somebody who can’t remember what happened and she was getting dressed and she’s distressed.
“So that’s when I said to her that, you know, as her boss – and I’m not a trained counsellor and I’m not the person to be having this conversation with. So I suggested to her that I knew we had AFP in the building and that here in the ACT they’re community policing, so I suggested to her that she might rather have this conversation with somebody more qualified and that she should talk to the AFP.”
Michaelia Cash and ‘political suicide’
Earlier, former Liberal cabinet minister Michaelia Cash was questioned by the prosecution over Ms Higgins’ claims that she had revealed her sexual assault allegations to the Senator prior to February 5, 2021.
She told the court she did not know there was a “sexual element” to the situation until February 2021.
Crown prosecutor Shane Drumgold asked Ms Cash whether it could potentially be “politically embarrassing” to the government if the sexual assault allegations were made public.
“Absolutely not,” she responded.
“I don’t know how it could be politically embarrassing. It would be something that needed to be attended to.”
Ms Cash was then asked by Mr Drumgold if she was aware of the term “plausible deniability”.
She asked this question to be put into context and then told the crown prosecutor: “I don’t understand what you are trying to ask me.”
Mr Lehrmann’s lawyer, Steven Whybrow, then suggested to Ms Cash it would be “political suicide” to try to cover up the sexual assault of a staff member.
“Correct. Hence my confusion with the previous line of questioning,” she said.
Michaelia Cash’s chief of staff appears as witness
Ms Cash’s former chief of staff Daniel Try also appeared as a witness on Monday.
He agreed that one of the duties of a political chief of staff was to protect against political fallout but he noted that at the time he did not know about Ms Higgins’s alleged sexual assault until early 2021.
“This was an event I didn’t have any knowledge of at that time,” he said.
It was in October 2019 that he got a call from then-defence minister Linda Reynolds that there was a media inquiry from The Canberra Times.
“Linda Reynolds called me – she basically said she was about to send someone around from her office to talk to Brittany because there had been a media inquiry about an incident that happened in Linda’s office when Brittany worked for her,” he said.
“It really came out of the blue.
“You usually don’t have a minister from another office calling you directly.”
Mr Try said that Ms Reynolds said the incident was not her fault “but didn’t explain what it was or that it was a sexual assault.
“Didn’t go into detail but said it wasn’t Brittany’s fault, basically. Looking back it seems she was careful not to go into detail,” he said.