David Sharaz reveals Brittany Higgins is ‘terrified she’ll go to prison’ at dinner with lawyers
At a late-night meeting between Brittany Higgins’s lawyer Leon Zwier, David Sharaz and her longtime supporter Emma Webster, the former Liberal staffer’s bizarre fear came out.
At a late-night meeting in a hotel bar last month between Brittany Higgins’s lawyer Leon Zwier, her partner David Sharaz and her longtime supporter and ex-Katy Gallagher staffer Emma Webster, the former Liberal staffer’s bizarre fear came out.
“She’s terrified she’ll go to prison,” Mr Sharaz said to Mr Zwier.
The meeting at Sydney’s Park Hyatt lobby bar on Monday, December 4, has already caused a headache for Ms Higgins and the defence of her star interviewer Lisa Wilkinson, who along with Network Ten is being sued for defamation by the man Ms Higgins accused of raping her, Bruce Lehrmann.
With the criminal trial aborted more than a year ago, and Mr Lehrmann denying that sex took place, the drama turned to defamation, with the five-week trial in the Federal Court in Sydney becoming a de facto retrial of the rape allegation.
Mr Sharaz raised his fiance’s fear of prison just as she prepared to resume cross-examination the following day. On the previous Friday afternoon, before she left the stand, judge Michael Lee had warned Ms Higgins not to discuss her testimony with anyone. “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.”
That Monday evening, Mr Zwier was caught on tape, initially revealed by Sky News, telling Mr Sharaz how Ms Higgins – at the time under cross-examination – should field questions while in the witness box. He also reassured Mr Sharaz that Ms Higgins’ fear was unfounded. “She’s not going to go to prison,” Mr Zwier said.
It would be contrary to the solicitor conduct rules for Mr Zwier to give this advice directly to Ms Higgins while under cross-examination, or to Mr Sharaz if he knew it would be passed on to Ms Higgins by her partner.
The Weekend Australian is not suggesting Mr Zwier intended his comments to be passed onto Ms Higgins, nor that his comments were passed onto Ms Higgins, and there is no evidence that Mr Sharaz or Ms Webster gave her any subsequent instruction.
“I do not propose to comment on an unverified recording unlawfully made,” Mr Zwier told The Weekend Australian.
When the recording initially surfaced, he told Sky News: “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.”
Ms Higgins and Mr Sharaz were approached for comment via their lawyer.
It is only now that Mr Sharaz’s comments have come to light.
Why might the young woman who became the face of the #MeToo movement in Australia have been concerned she would go to prison? Was it an irrational fear? Was there something arising out of her $2.445m settlement with the commonwealth in late 2022 that potentially concerned Ms Higgins?
It was no secret that her old boss, Liberal senator Linda Reynolds, was considering referring the government’s handling of the payment to the newly created National Anti-Corruption Commission. Within days of the lobby meeting, the NACC revealed it was examining Senator Reynolds’ referral to them.
The Weekend Australian is not suggesting Ms Higgins or her lawyers have committed any crimes, or that there was a rational basis for the concerns Mr Sharaz was referring to that Monday night.
It is not unreasonable to wonder why Mr Sharaz raised her concern with Ms Higgins’ Melbourne lawyer.
The comment about Ms Higgins fearing prison arose during a discussion between Mr Zwier and Mr Sharaz the night before the former Liberal staffer told Justice Michael Lee that the commonwealth had agreed to pay her $2.3m for claims she made about being mistreated by Senator Reynolds, her then chief of staff Fiona Brown and senator Michaelia Cash.
She said she received $1.9m in the bank, after paying taxes and lawyers fees.
Ms Higgins also told Justice Lee that the commonwealth admitted liability.
“The commonwealth admitted that they breached their duty of care and that they didn’t go through proper processes, so that’s actually why they settled with me,” Ms Higgins told the court on Tuesday, December 5.
However, the deed of settlement, tendered just a few days later, showed the commonwealth did not admit liability, and the final amount settled was $2.445m.
Lawyers have described the size and circumstances of the commonwealth payment to the young former staffer as unusual.
Senator Reynolds, Ms Brown and Senator Cash – all the subject of serious allegations by Ms Higgins in her multimillion-dollar claim that was never filed in a court – were excluded by Attorney-General Mark Dreyfus from contesting the claims, and being part of the mediation. All three women deny attempting to cover up Ms Higgins’s rape allegations or mistreating her in the workplace.
The controversial payment was signed off by the Department of Finance during a one-day mediation only five days after then ACT director of public prosecutions Shane Drumgold decided not to proceed with a second trial due to Ms Higgins’ mental health.
Grilled in the Senate last year about her role, Finance Minister Katy Gallagher said it “didn’t cross her desk”.
The couple made a well-publicised departure from the country to start a new life in France a few weeks after Mr Sharaz raised Ms Higgins’ apparent concerns about going to jail.
On Monday, December 4, the Federal Court had taken a break from the defamation case, brought by Mr Lehrmann over an interview with Ms Higgins by Wilkinson on The Project in 2021, detailing accusations that he had raped her on March 23, 2019, but not naming him as the alleged attacker.
As the group chatted, nearby an unrelated witness who just happened to be present at the public venue, recorded their conversation. The witness has no connection to the matter.
The week before, Mr Lehrmann’s barrister Steven Whybrow SC had indicated he would pursue questioning over whether Ms Higgins intentionally made a speech on the courthouse steps after Mr Lehrmann’s criminal trial was aborted to botch any potential retrial.
Justice Lee had taken the weekend to determine whether he would allow it.
In the audio Mr Zwier can be heard saying: “If she’s asked, did you get legal advice about that, ‘yes’. What was the advice? She should say, ‘privilege’.
“You know, ‘your honour, I am told by my lawyer I don’t have to discuss legal advice’ – that’s what she should say. ‘I’ve been told by my lawyer not to discuss the legal advice’.”
Mr Sharaz responded, asking: “Let’s say, let’s say the judge rules out that line of questioning. She’s still got a whole day of questioning. What’s (Whybrow) going to talk about?”
Mr Zwier replied: “He goes to the book inconsistencies.”
Ms Higgins had signed a $325,000 book deal with Penguin Random House facilitated by Wilkinson’s husband and Sydney Morning Herald columnist Peter FitzSimons.
The week before the Park Hyatt meeting, Ms Higgins had admitted in court that portions of a draft chapter were incorrect, after Mr Whybrow pointed to inconsistencies between the book, written in April 2021, and evidence she had given in Mr Lehrmann’s criminal trial last year.
“I would have fact checked it against my actual police evidence and then I would have made it correct, but I acknowledge them in this form, (the draft book) is not right,” Ms Higgins told Justice Lee.
Mr Zwier also told the group that night at the Park Hyatt lobby bar that Mr Whybrow could ask about the settlement. “Be very wary around this,” said the Arnold Bloch Leibler partner.
Mr Zwier, who was often captured on cameras walking into court with Ms Higgins during both the criminal trial and the defamation trial, said: “The terms are confidential. If she wants to talk about. It’s confidential. If the judge says, she might say she’ll get some legal advice on it.”
The details of Ms Higgins’ settlement with the commonwealth were eventually revealed after Ms Higgins was asked about it in court the next day.
The NACC is now examining the complaint by Senator Reynolds claiming Mr Dreyfus, Senator Gallagher, and Prime Minister Anthony Albanese had a potential conflict of interest based on their previous public statements about the matter.
“This raises further questions about the fairness, transparency and impartiality of the entire process,” Senator Reynolds said last December.
Meanwhile, Senator Reynolds has brought a defamation case against Ms Higgins over an Instagram post in which Ms Higgins claimed her ex-boss “continues to harass me through the media and in the parliament”.
On December 19, when Ms Higgins departed for France, lawyers acting for Senator Reynolds wrote to Mr Zwier saying they were considering an application for freezing orders.
The case, along with a separate defamation matter against Mr Sharaz over two tweets that he posted last year, are scheduled for mediation in March.
During the Park Hyatt meeting, Mr Zwier was heard telling the group that he, not a doctor, drafted Ms Higgins’ medical report that detailed her anxiety and suicide attempt.
After opening his laptop at the bar, he read aloud the medical report, according to Sky News. “Yeah I gave him the draft, I wrote it,” Mr Zwier said.
He said “let me brief you” before reading a statement from doctors that he received on October 9. That medical report was used by Mr Drumgold when announcing he wouldn’t proceed with a retrial of the rape charges against Mr Lehrmann because of Ms Higgins’ poor mental health.
Ten days later, Ms Higgins and the commonwealth settled her personal injury claim.
The group speculated about what Justice Lee might think of Ms Higgins, and discussed how she was an unemotional witness unless speaking about the rape allegation. After Mr Sharaz said Ms Higgins “compartmentalises”, Mr Zwier responded: “She’s not traumatised … She’s not sobbing … She’s not crying.”
Mr Sharaz said: “When she talks about her actually rape she does (become emotional). Surely (Justice Lee) can see that?”
Mr Zwier said: “When she’s giving her defence it comes across as so deliberate.”
Mr Sharaz replied: “It was deliberate because if she was going to blow up her life … and change the parliament, she wanted to make sure it landed.”
Towards the end of the trial, Justice Lee made it clear he believed there were inconsistencies across both Ms Higgins’ and Mr Lehrmann’s evidence.
“One of the challenges in his case seems to me that the two principal witnesses have real credit issues,” the judge told the court. “And various parts of each witness’s evidence simply can’t be accepted, it seems to me.”
Back at the Park Hyatt bar, the group discussed the inconsistencies, ultimately deciding that, although both had lied, Ms Higgins’ inaccuracies were “around the periphery”’,’ while Lehrmann’s were “at the heart” of the case.
While the secret recording from the Park Hyatt bar was subpoenaed after the Sky News reports broke, with time running out, Mr Lehrmann’s legal team chose not to make any application in relation to it, or recall Ms Higgins to question her about it.
However, Justice Lee left the door open for the tape to be further interrogated in the future.
“The question is what, if anything, occurs in relation to (the tape),” he said. “But that’s not a matter relevant to the determination of the facts in these proceedings.”
