Reynolds vs Higgins Day 12: Brittany Higgins will not give evidence

Brittany Higgins will not be called to give evidence in the Linda Reynolds defamation trial, it has been revealed this afternoon.

In a bombshell application by her legal team on Monday, Rachael Young SC said there were several reasons the former staffer would not be coming back from France to attend the trial next week — including her ongoing health issues.

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

That condition was set to be detailed in medical reports to be filed with the court today. But they are set to remain confidential.

The revelation means the high-stakes trial is likely to finish early, possibly next week.

Ms Reynolds’ barrister Martin Bennett said the withdrawal of Ms Higgins as a witness had been something he had contemplated. But he still said it was disappointing.

“What my client wants is not for people to talk about their truth. She wants the truth — established and adjudicated by a judge. This was to be her word against Higgins. Now Higgins isn’t coming,” he said.

“I’m sure what Senator Reynolds will be unhappy about is the contest now will not be her word against Miss Higgins.

“It’ll be always the question of whether Miss Higgins says: ‘If I was well enough, I could have come and answered these allegations.’

“Now that’s unsatisfactory. Linda Reynolds has waited years to vindicate her reputation, and this is the day.”

That news came as lawyers for Brittany Higgins have accepted that Fiona Brown — the former chief of staff for Linda Reynolds — is not fit enough to give evidence in the high-stakes defamation trial continuing in Perth.

But they are also battling to have some of her evidence given in other courts thrown out of the WA Supreme Court because they won’t be able to cross-examine her on crucial elements of her account of that time.

Ms Brown was the WA Senator’s right-hand woman in 2019, at the time when Ms Higgins first raised her allegation that she had been raped in the Defence Minister’s office in Parliament House.

She instantly became one of the figures at the eye of the storm, and has remained so throughout the criminal trial of Bruce Lehrmann, and his subsequent defamation claim against Network Ten and Lisa Wilkinson.

That was the last time Ms Brown gave public evidence about the Higgins scandal. Despite medical evidence that her mental health had been shredded by the allegations against her conduct.

She had been slated to reprise that evidence in Ms Reynolds’ defamation claim against social media posts made by Ms Higgins in 2022 and 2023.

But confidential medical reports and certificates have firmly stated she is not fit to do so.

And on Monday, Ms Higgins’ lawyer Rachael Young said they would now not insist she give evidence in person.

“The defendant accepts that Ms Brown is unfit by reason of her mental condition, to attend or to give evidence as a witness,” Ms Young said.

“The defendant has no desire to cause Ms Brown any distress or any elevated risk of harm by her being caused to give evidence.

“And based on (the medical reports), we support and indeed embrace the excuse all of Ms Brown from giving evidence in these proceedings.”

In place of evidence in person, it is proposed Ms Brown’s evidence in the Lehrmann defamation case — including an affidavit put before the Federal Court — being used in Ms Reynolds’ case.

But the Higgins legal team some of that evidence should be discounted because it would have been challenged – and now could not be.

In earlier evidence, one of the most connected WA Liberals has said Linda Reynolds would have struggled to secure another nomination to stand for the Senate again, because of serious “reservations” about her handling of the Brittany Higgins firestorm.

The defamation case brought by Senator Reynolds against Ms Higgins moved into a third week on Monday, with her doctors, colleagues and others due to give evidence as her case draws to a close.

One of those called was WA Liberal elder Jeremy Buxton, the chair of the selection committee in the State.

And in his evidence, he testified that despite her experience and seniority, the long-time Senator and former defence minister may have struggled to win another place on a Liberal Senate ticket at the next election.

“Linda Reynolds has been a well-regarded senator, but I think it is very likely that … there would be a feeling among a considerable number of delegates that Senator Reynolds had mishandled the situation in her office,” Mr Buxton said.

“That she may have been unethical in a cover-up, and I think she may well have been judged a little more harshly as a female senator, that she did not adequately support a young female staff member.”

Mr Buxton said even if all the allegations were not believed, the Senator may have still struggled to win another endorsement.

“There would be a very considerable reservation, putting her at a disadvantage to other colleagues who … didn’t have to answer those sorts of questions,” he said.

“On the position on the ticket she would have been struggling, I think, to get the third position.”

Earlier this year, Ms Reynolds announced she was not running in the next general election, despite evidence that she was being urged to by some.

Others close to her, including her best friend, told the court they had pleaded with her to walk away, for the sake of her health.

In other evidence, Dr Anthony Di Dio — one of Canberra’s leading doctors who counts Prime Ministers among his patients — has told a court how he was called to urgently treat Senator Linda Reynolds at the height of the Higgins allegations.

Dr Di Dio, a GP for more than 30 years, was the medical professional called on in February 2021 after the WA senator suffered a near collapse on the Senate floor after days of intense questioning over Ms Higgins’ allegation of rape.

And in evidence in Ms Reynolds’ defamation case against Ms Higgins, Dr Dio was asked about his first consultation with her at Parliament House, which he said he remembered as an “awful, acute period”.

“I was concerned about the high level of anxiety and the profound effect that that was having on Senator Reynolds’s work” Dr Di Dio said.

“At the time, she obviously was doing important work and was incapable of attending, which was causing her a lot of emotional distress.

“I felt that she required the input of a psychiatrist to assess the diagnosis.”

During the two weeks of the trial so far, Ms Reynolds and many witnesses have told of their fears for her life, due to heart issues which the senator said were exacerbated by the stresses of the Higgins’ allegations.

Under cross-examination, Dr Di Dio was taken to notes he had made closer to the time when Ms Higgins uploaded the social media posts — in 2022 and 2023 — which Ms Reynolds now sues on.

And in them, he noted consistently how her health — physical and mental — was improving.

“There’s no doubt that the senator was far better in 2022 than she had been during the awful acute period,” he said.

“She was still on a significant amount of medication for her mental health. There was a consistent pattern in the records of her being stable and consistent in self-care, and looking after herself.”

The doctor noted in another consultation that she told him she was “suing Brittany and David to take control back”.

And the doctor agreed he did not note any concerns over the senator’s mental health then.

Senator Reynolds is suing Ms Higgins and her 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.

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 with 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 Rachel 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.