Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/76

 :(1) made false representations as to what had occurred following the incident to Ms Maiden and the Project team and thereafter more generally;


 * (2) asserted definitively that she retained contemporaneous evidence of the rape that she knew bolstered her credibility and rely upon it when (on the most generous view of it) it ought to have been apparent to her – as she recognised at this trial – there was an infirm basis for doing so;


 * (3) selectively curated material on her phone prior to giving it to the AFP; and


 * (4) sometimes told untruths when it suited her.

259 In summary, and after having had the opportunity of observing Ms Higgins' demeanour closely over approximately four and a half days and comparing her testimony to other documentary and oral evidence I accept as being cogent, it would be fair to describe her as a complex and, in several respects, unsatisfactory witness. Nuance is required in evaluating her evidence and any contentious or uncorroborated aspect needs to be scrutinised warily.

F.3Ms Brown

260 Both Mr Lehrmann and Network Ten subpoenaed Ms Brown to give evidence and foreshadowed calling her in their case. I have not, of course, seen any outline of anticipated evidence served, but assume Network Ten wished to lead evidence relevant to the termination of Mr Lehrmann and about the falsity of what he said about his reasons for going to Parliament House and what he did while he was there.

261 Prior to trial, my Associate received a communication from the solicitors from all parties asking me, in effect, to give them an advance ruling on the tender of various documents and, if I allowed them to be adduced, foreshadowed that the parties "would not call upon their subpoenas".

262 As I explained through my Associate, this was misconceived on at least four bases. First, no application had been made for an advance ruling in accordance with s 192A EA and, in the circumstances, I was not disposed to give notice until a document of the type indicated was tendered; secondly, as I had already explained, I wanted all relevant matters to be dealt with in open court; thirdly, a subpoena ad testificandum is an order, in terms, requiring a third party to appear before the Court at a specified time and place, and the order remains in force until set aside by the Court; and fourthly, if an application to set aside the subpoena was to be made, it should be made on proper evidence, in an orthodox way and determined in Court. Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369