263 An application was then made by Ms Brown to be relieved from compliance with the subpoenas. I set aside the Network Ten subpoena (as I was informed that Network Ten did not now propose to call Ms Brown in their case). Despite initially pressing the application to set aside the subpoena issued on the application of Mr Lehrmann, after I indicated I would make some accommodations to meet the problems identified in medical evidence put before the Court on behalf of Ms Brown, the application was not pressed.
264 The respondents contend it is important not to overstate the significance of Ms Brown's evidence because her management of the allegations in March 2019 is "simply not in issue, save to the extent that it has a bearing on the assessment of Ms Higgins' credit in relation to the allegation of rape". They do, however, embrace Ms Brown's evidence insofar as:
- (1) she gave evidence as to her interactions with Mr Lehrmann from 26 March to 5 April 2019, which evidence "proves that he lied about various significant matters at the time and to this court";
- (2) she documented that Mr Lehrmann said: (a) when asked about what else he did in the office, that he "didn't wish to get into that" (T2052.4–5); he "chatted" with Ms Higgins and they went into the "outer office" or the "general area"–being the support staff area (T2051.31–38); and (c) that Ms Higgins was "fine" when he left (T2054.21–29); and
- (3) that there was never any risk to Ms Higgins' job (T2157.17–20).
265 The submission is also made that whether Ms Higgins told Ms Brown that she remembered Mr Lehrmann being "on top of me" (T2096.30–31) at their first (as Ms Higgins asserts) or second meeting (as Ms Brown asserts) is "immaterial", because Ms Brown's account favours Network Ten as "Mr Lehrmann's case theory that Ms Higgins said she had been sexually assaulted at the first meeting to save her job, falls apart".
266 Despite all this, Network Ten says the evidence of Ms Brown "has to be treated with some caution" because: (a) she made "selective" and not literally contemporaneous notes; (b) Ms Brown professed recollection of matters not recorded in her notes (T2031.6–10); (c) she had a "general tendency to understate the obvious significance of what she had learned about the incident" and it is "difficult to accept her evidence" that sexual intercourse or a sexual assault had been committed and it was something that could "not be ruled in, and could not be ruled
