“After five days of hearing the senator seems to have plenty of life with her feet planted firmly. So far, no sign in this cross-examination of either a killer blow or a collection of little wounds sufficient to mortally wound her. That leaves the sense of desperation.” Legal columnist HUGH SELBY looks west again at the Reynolds/Higgins defamation clash.

“Weird” is a useful word. It’s enjoying popularity in the US because Tim Walz, Democrat governor of Minnesota, used it to describe the Orange (“I cannot tell a lie”) Presidential candidate and his appeal to tens of millions of voters. 

If something or someone seems “weird” then the observer is both disbelieving of the message and mystified that others are apparently sufficiently gullible, or uncritical, to accept the weirdness. 

There’s some weirdness in the good Senator Linda’s defamation action being run in Perth against fair Brittany (Higgins) and her “knight” David (Sharaz) who, all going well, will be the father of her child.

Let’s look at two examples of weird at work in this case: first, the way in which defamation actions are heard; and, second, the cross-examination of the senator.

Defamation hearings

Senator Linda Reynolds, as a plaintiff, says she was sorely tested, and her reputation sullied, by comments made by Brittany and/or David. Those comments about what happened and didn’t happen in the aftermath of a night out and an “out-of-hours” visit to Parliament House, are all recorded in social media posts, emails, text messages, and interviews in various media. 

David has chosen not to participate in the current court hearing. Brittany’s defences are the truth of her remarks and/or a right to make them in the public interest.

I’ve not seen any report that either David or Brittany dispute that one or both made the comments that have so upset the senator.

Given the apparent, “Yes, I said or wrote those things”, it might seem at first glance a little weird that the senator tells her story and is cross-examined before defendant Brittany shows the “truth” or “public interest”.

After all, if the comments are accepted as having been made, then the hearing could start, not with the plaintiff senator, but with Ms Higgins having to prove her defences on the balance of probabilities.

It would follow that if Ms Higgins could not “prove” either of her defences that the plaintiff senator would not have to give evidence in the liability part of the hearing. She might have to give it later when the court turned to the “how much compensation should be paid” question.

That seemingly logical approach is not followed. Instead, the plaintiff goes first, something for which we should be thankful, as shown in the recent Lehrmann v Channel 10 and Wilkinson case. There, too, the defences were “truth” and “public interest”. 

As plaintiff Mr Lehrmann gave his version, and was tested on it, before the defence gave their versions. He went back for his hat and he and it got shredded. If Mr Lehrmann had not given evidence then the searing findings [eg para 153 of the judgment] as to his “deliberate lies” would not have been made by the trial judge. 

How a plaintiff performs as a witness – when questioned by their own lawyer and then by the defendant’s advocate – influences how the defence will develop their defences. 

If a plaintiff, such as the senator, presents poorly then the task of proving a defence and minimising compensation becomes easier because the problems in the plaintiff’s believability are clear to all. On the other hand, if the plaintiff presents well then the defence task is harder.

Which side is winning from the cross-examination?

Some witnesses are central to a case. Others much less so. Some witnesses must be cross-examined because their account is central. Some don’t need to be cross-examined.

At the end of any cross-examination there is this question: has the cross-examiner’s case got better or worse?

How to cross-examine any witness reflects an assessment of their importance to the case, an assessment of their character traits and communication skills, and then being able as an advocate to draw upon experience and insight to plan the cross-examination method. 

Effective cross-examination is a “case argument” turned into a series of questions. Done well it persuades the decision maker that the cross-examiner’s case is to be preferred to the case being put forward by the opponent.

As a disguised “argument” it usually does not give the target witness the chance to explain because explanations can undermine, even destroy, the argument.

The best cross-examiners create a mood in the courtroom, one that has the listeners (judge, jury, media, public gallery) answering the question even before the target witness opens their mouth.

If, for example, the listeners are thinking, “another lie is coming”, then it doesn’t matter what the witness says. 

The senator has been under cross-examination for about one hearing day, with more to come.

Relying upon the online reporting – because there’s nothing else (see earlier article this week) – the senator has been given many opportunities to explain.

As reported most, but not all, of her answers are plausible. The media reporting does not carry a message of, “liar, liar, senator, your pants are on fire”.

A guideline to asking questions during cross-examination that let the witness explain is to use them only if the cross-examiner is desperate and so looking for a lucky break, or assured of victory and so letting the target “swing in the wind”.

After five days of hearing the senator seems to have plenty of life with her feet planted firmly. So far, no sign in this cross-examination of either a killer blow or a collection of little wounds sufficient to mortally wound her. 

That leaves the sense of desperation. But hope springs eternal and miracles do happen. We know that to be true because who would have imagined not only a Harris-Walz ticket, but a ticket with a chance against the “weird”?

Former barrister Hugh Selby is the CityNews legal columnist. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

Dangerous openings in the ‘saga that won’t die’