On Wednesday, the Western Australian supreme court ruled Brittany Higgins had defamed her ex-boss Linda Reynolds when she accused the former Liberal senator of mishandling her rape allegation.
The state supreme court judge Paul Tottle ruled the former defence minister’s reputation was damaged by a 2022 social media post from Higgins’ partner David Sharaz, which Higgins responded to, and an Instagram story published by Higgins in July 2023.
The judgment marks the end of a long legal battle stemming from Higgins’ decision to go public with allegations she was raped in a ministerial suite in Parliament House by a former colleague, Bruce Lehrmann.
Wednesday’s 360-page ruling followed five weeks of evidence, which covered a five-year period from the alleged rape in 2019 to the trial’s start in August 2024.
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The verdict also comes more than a year after a federal court judge ruled against Lehrmann in his defamation case against Network Ten and Lisa Wilkinson for airing Higgins’ sexual assault allegations against him.
Lehrmann denied the rape allegations and pleaded not guilty at his criminal trial in the Australian Capital Territory supreme court, which was aborted. Prosecutors did not seek a retrial due to concerns about Higgins’ mental health.
Justice Michael Lee found that Lehrmann had raped Higgins, on the balance of probabilities, on the minister’s couch in Parliament House in March 2019. Lehrmann is appealing against the verdict.
Here are five things we learned from the court’s ruling.
Reynolds was ‘honest’ but ‘impressionistic’
Reynolds was in the witness box for five days to deliver her account of the events.
In determining her reliability as a witness, Tottle said the former senator’s role as a politician meant she produced “long answers in which she focused on the point she wished to put across rather than answering the question, either directly or in some instances at all”.
“This approach was frustrating because it necessitated the same question being asked several times,” Tottle said.
“It was also counterproductive so far as the plaintiff was concerned because it created the impression she was being unnecessarily defensive and, at times, evasive.”
He added that her recollections of events were at times “impressionistic” and influenced by a “desire to defend her conduct”.
Ultimately, Tottle said he found Reynolds to be an “honest” witness “determined to ensure her account of events was heard”.
Higgins’ trauma taken into account but judge set ‘feelings of sympathy’ aside
Tottle acknowledged Higgins was the “victim of one of the most serious crimes known to the law” and that her trauma could have a “disruptive effect” on her memory.
He also noted she likely “projected an impression of confidence and resilience in 2019 and 2020 which masked the emotional and psychological distress she was suffering”.
Higgins did not appear as a witness in the trial so Tottle said he had to rely on evidence and statements tendered in other areas. While Tottle said he took a “generous approach” to his assessment of Higgins’ reliability as a witness, he said her evidence had to be looked at “entirely dispassionately”.
“While the defendant’s evidence must be evaluated in the context of the trauma she has suffered, her evidence must be evaluated entirely dispassionately,” Tottle wrote in his ruling.
“Feelings of sympathy for the victim of a very serious crime must be set aside.”
Tottle wrote that Higgins’ account of events “was distorted by her need for events to conform to her view about how she was treated by the Liberal party and specifically how she was treated by the plaintiff and Ms Brown”.
“The existence of a cover-up was a vital part of the defendant’s story. I have concluded the defendant was dishonest in aspects of the account given by her of the alleged cover up.”
Reynolds’ texts with former Lehrmann lawyer ‘inconsequential’
Texts were tendered in court between Reynolds and Lehrmann’s then barrister, Steven Whybrow SC, in the lead-up to Lehrmann’s 2022 criminal trial in the ACT.
The text messages showed Reynolds offered Whybrow the names of staffers he should speak to while he was preparing for the criminal trial.
One message to Whybrow from Reynolds suggested speaking to a former staffer, who could “shed light on Brittany’s activities in Perth and also how she came to be with Bruce on that night”.
Higgins’ lawyer, Rachael Young SC, alleged the 21 text messages sent between the two showed Reynolds had not acted impartially toward both parties involved in Lehrmann’s criminal trial.
During the defamation trial, Reynolds was asked about why she suggested to Whybrow that Higgins was trying to imitate Kate Middleton in her clothing choices. Reynolds said Higgins had a “predilection for expensive clothes”, including a jacket the former senator alleged Higgins had stole. Reynolds acknowledged it was “a little bit catty”.
Tottle ruled these text messages were ultimately “inconsequential” as evidence of Reynolds’ impartiality.
“As was implicitly recognised by the plaintiff, sending these photographs did not reflect well on her,” Tottle wrote.
“The epithet ‘catty’ was apt. That said, a sense of proportion is required, her conduct was a manifestation of human frailty at a time of great stress. It was inconsequential”
Judge ‘confident’ Reynolds had no knowledge of alleged rape on couch in meeting with Higgins
The court heard handwritten notes from AFP assistant commissioner, Leanne Close, written on 4 April 2019 suggested Reynolds may have been aware of Higgins’ alleged rape on 1 April 2019, when Reynolds had a meeting with Higgins in the room it allegedly took place.
Close noted Reynolds brought her then chief of staff, Fiona Brown, into the office to begin the meeting. She noted the minister said: “It’s about Brittany – we became aware on Tuesday that this had happened on Saturday night – on my couch there.” Close said Reynolds pointed toward the couch in her office where the rape allegedly occurred.
Tottle said the inconsistencies could have occurred as Close’s notes were written after the meeting with Reynolds and Brown. He added he had “reservations about the accuracy of the notes” given they were recorded direct quotes.
“They are reservations borne out of general experience of the frailty of the powers of human recollection,” he said.
Tottle concluded: “Further, and for the reasons I have already given, had Ms Brown and [Reynolds] known (or indeed suspected) [Higgins] had been the victim of a sexual assault in the private office, I am confident they would not have held the meeting with her on 1 April 2019 in that office,” he wrote.
Reynolds’ decision to leak confidential letter ‘not unreasonable’
The court heard Reynolds leaked confidential letters outlining the proposed terms of Higgins’ personal injury settlement to Janet Albrechtsen, a columnist at the Australian.
Reynolds told the court she sent the confidential documents to Albrechtsen because she was “incredibly angry”, believed the attorney general, Mark Dreyfus, was “stitching” her up, and wanted the public to know.
Reynolds denied all accusations by Young that her intention, or even the effect of actions, was to undermine Higgins’ rape allegation.
Tottle found Reynolds’ reasons for challenging Higgins’ claims during the settlement were “soundly based” and it was “not unreasonable” for her to question her exclusion from the settlement meeting in a public arena.
“The propositions may be contestable but it cannot be said the plaintiff was not justified in raising them,” he wrote.
“The defendant’s claim relied heavily on her allegations against Ms Brown and the plaintiff and many of those allegations were challenged by the plaintiff.”
