Sky News subpoenaed over bombshell recording of Brittany Higgins’ lawyer with David Sharaz
The bombshell recordings of Brittany Higgins’ lawyer in conversation with her fiance will be handed over to Bruce Lehrmann’s legal team.
Bruce Lehrmann’s barrister Steve Whybrow will subpoeana Sky News for the bombshell tape of Brittany Higgins’ lawyer discussing her cross examination.
Ms Higgins’ lawyer Leon Zwier was secretly recorded last week at a Sydney bar discussing with her fiancee David Sharaz how she could answer cross examination questions about her secret $2.4 million payout.
Justice Michael Lee confirmed on Tuesday morning that he had received notification that Mr Lehrmann’s legal team planned to seek a copy of the audio published by the media outlet of the conversation.
However, he also indicated there may be legal arguments under the Surveillance Devices Act 2007 with regard to whether or not the audio was legally obtained.
“There’s a prohibition, of course, on using any device to record a private conversation,” he said.
Mr Whybrow said he wished to issue a quick service subpoena to Sky News for a copy of the tape “before we can do anything further”.
Channel 10’s barrister Matt Collins KC and Lisa Wilkinson’s barrister Sue Chrysanthou SC both complained that Mr Whybrow had contacted Justice Lee’s chambers about the matter without informing them and Justice Lee reminded parties that he preferred all discussions to occur in open court.
Mr Zwier has strongly denied that he was coaching his client through her fiancee David Sharaz – which is strictly prohibited during cross examination.
In audio obtained by Sky News’ Sharri Markson, the pair are heard talking with Ms Higgins’ friend Emma Webster at the Park Hyatt hotel in Sydney at 9.30pm last Monday - the night before her testimony.
An unknown person sitting at a nearby table secretly recorded the conversation and it was later obtained by Sky News.
The witness was not connected with the case, according to the media outlet, and the group did not speak quietly enough to avoid being overheard.
The discussion caught on tape included how privilege could apply to answers given in court and what Justice Lee thought of Ms Higgins.
“She should say, privilege, your honour, I’m told by my lawyer I don’t have to discuss legal advice, that’s what she should say,” Mr Zwier said at one point.
“She doesn’t have to waive legal professional privilege.
“All she has to say is I was so enraged, I was just so enraged … I didn’t know if I’d be well enough or not well enough, it was just a gut reaction.
“It’s not about money, she should just say it’s not about money.”
News.com.au does not suggest that Mr Zwier intended his advice to be passed onto Ms Higgins and there is no evidence to suggest that Mr Sharaz did so.
Witnesses are given strict instructions during cross examination that they are not to discuss their evidence with any other person.
Mr Zwier told news.com.au in a statement that his remarks were not intended to be passed on to Ms Higgins.
“All my private conversations with David Sharaz and Emma Webster were on the common understanding that Brittany was under cross examination and no one was to talk with her about the substance of her evidence or the manner in which she was giving it,” he said.
Justice Lee issued a warning to Ms Higgins during her cross examination, and to Mr Lehrmann too, when they took breaks, instructing them not to discuss their evidence during cross examination.
“If you could please be back here on Tuesday at 10.10am. And I just remind you, over the course of that break, you are not to discuss your evidence given in these proceedings with anyone,” he said.
Mr Whybrow asked Ms Higgins at the commencement of the hearing if she had “received any tips on giving evidence this week? From anybody?”
“No,” she replied. On the tape, Mr Zwier discusses with Mr Sharaz how long answers should be.
“Listen to the question and keep your answers short,” Mr Zwier said. “But be careful. She can’t be a different person in the witness box.”
Sharaz replied: “No, no, I know. She compartmentalises” and Zwier responds “She’s not traumatised. She’s not sobbing. She’s not crying.”
Sharaz said that “when she talks about her actual rape she does (cry and become emotional), and surely (the judge) can see that”.
“When she’s giving her defence it comes across as so deliberate,” to which Sharaz responds: “It was deliberate because if she was going to blow-up her life … and change the parliament, she wanted to make sure it landed.”
During the bar chat, Mr Zwier also reads aloud the medical report that was presented to the DPP before he discontinued the case, after opening his laptop at the bar.
The report was used by the ACT Director of Public Prosecutions Shane Drumgold announced he wouldn’t proceed with a retrial of the rape charges based on Ms Higgins mental health concerns. News.com.au has asked Mr Zwier for comment on whether or not the recording is accurate and he wrote the report.
Mr Sharaz has been contacted for comment.