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