Channel 10’s Lisa Wilkinson and Brittany Higgins tape set to spark legal war

Channel 10 and Lisa Wilkinson are preparing to go to war over the leaking of a secret recording with Brittany Higgins where they bag political leaders.

Channel 10 and Lisa Wilkinson are preparing to go to war over the unprecedented leaking of Brittany Higgins’ private text messages and a secret recording of them bagging political leaders.

An extraordinary legal whodunit has emerged in the wake of the leak of a six-hour tape of Ms Wilkinson, Ms Higgins, her partner David Sharaz and executive producer Angus Llewllyn giving their “unplugged” views on high profile figures.

It includes Ms Wilkinson describing former Defence Minister Linda Reynolds as “a nobody” and an “idiot”, and saying “who is this f***king woman.”

It also records the group war gaming the story and suggesting Anthony Albanese would “definitely” raise the issue in question time. Ms Wilkinson has subsequently confirmed she never contacted him to do so.

Channel 10 and Lisa Wilkinson are preparing to go to war over the unprecedented leaking of Brittany Higgins’ pivate texts and a secret recording. Picture: Seven

Bruce Lehrmann and Brittany Higgins seen at Parliament House together. Picture: 7 Spotlight

Brittany Higgins and Lisa Wilkinson together in March last year. Picture: Lisa Maree Williams/Getty Images

Separately, thousands of text messages on Brittany Higgins’ iPhone have been leaked to media outlets and Ms Higgins believes that some of the material is from her iCloud records that were handed over to police.

Even hours of the CCTV of the night in question has now been broadcast by Channel 7 during a TV special interview with Mr Lehrmann.

It was never released by the ACT Supreme Court during the trial although parts of it were played to the jury.

The leaked texts include private discussions with Ms Wilkinson’s husband Peter FitzSimons over a $325,000 book deal and Mr Sharaz describing Prime Minister Scott Morrison as “c***t.”

But now questions have emerged over the leak of the audio that has Australia’s media and legal industry talking because it was never heard by the jury or tendered in evidence.

It was originally obtained when Channel 10 was subpoenaed in the criminal trial and was never made available as part of a Board of Inquiry into the trial.

Lawyers acting for Channel 10 are now trying to determine who had access to the material – a large group which is said to include police, lawyers, the director of public prosecutions and potentially third parties.

Ms Higgins being interviewed by Ms Wilkinson on The Project.

The matter is expected to be raised when Channel 10 and Bruce Lehrmann’s lawyers face off at a case management hearing in the Federal Court over the defamation case.

Any lawyer who obtained the leaked material through the criminal trial or the board of inquiry would be precluded from providing it to others under what is know as the Harman’s principle.

The rule in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (Harman) precludes a litigant from making collateral use of documents obtained through the court’s compulsory processes such as subpoenas.

The rule states: “[w]here one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence”.

Mr Lehrmann is suing over the original Channel 10 report that did not name him in relation to Ms Higgins rape allegation. He was never convicted and maintains his innocence.

According to the Daily Mail, which has obtained the audio, it records that Ms Higgins drank a mimosa and Mr Sharaz a gin and tonic as they discussed the forthcoming episode.

Defamation lawyers ‘never had access’

The legal firm acting for Bruce Lehrmann in his defamation action – Mark O’Brien Legal – insist they never had access to the material that was leaked to the media.

The six-hour audiotape was provided by Channel 10 under subpoena during the criminal trial and never played to the jury.

The explosive audio was recorded by the producer Angus Llewllyn on his mobile phone during a pre-interview discussion at a Sydney hotel on January 27, 2021.

“We have not had access to the phone and audiotape you refer to,’’ solicitor Paul Svilans told news.com.au.

“In fact, we are at present actually seeking access to the audiotape for the purpose of the defamation proceedings for the reason that we don’t have it.”

The legal firm acting for Bruce Lehrmann in his defamation action say they never had access to the recording. Picture: NCA NewsWire / Gary Ramage

Criminal barrister Steve Whybrow said it was “kept secure”

Barrister Steve Whybrow SC, who represented Mr Lehrmann at the criminal trial did have access but said it was kept secure at all times.

In fact, he refused to hand it over to Mark O’Brien Legal in the defamation action where he is instructed to appear as senior counsel.

“I can categorically assure you that I, my co counsel and my Chambers have absolutely kept any material received in R v Lehrmann secure,’’ Mr Whybrow told news.com.au.

“I have not (and have taken the view that I could not) even provide my solicitors in the defamation actions any material that was not already deployed in the criminal trial.”

Mr Lehrmann (centre) and his defence lawyer Steve Whybrow (left) during the criminal trial. Picture: NCA NewsWire / Gary Ramage

DPP expects all parties to comply with ‘lawful obligations’

The Director of Public Prosecutions Shane Drumgold remains on leave after he gave evidence to the Board of Inquiry investigating the investigation and trial of Mr Lehrmann.

The acting DPP Anthony Williamson SC said the DPP does not ‘control’ or ‘manage’ disclosed information but expects all parties to comply with their lawful obligations.

“Whilst the Board of Inquiry I has conducted public hearings, I understand its investigative process has, for the most part, been conducted in secret,’’ Mr Williamson told news.com.au.

“I understand that coercive powers under the Inquiries Act 1991 (ACT) have been exercised, examinations have been conducted in secret, and non-publication/suppression orders have been made in relation to various aspects of the proceeding and given to various witnesses.

“The BOI is a statutorily independent process and therefore is not subject to the control or direction of the DPP, nor (unsurprisingly) has the BOI consulted with the DPP about its processes and investigation. I am not in a position to comment on what material the BOI may, or may not, have had access to.

“Similarly, I am not in a position to provide a running commentary on who had access to what material.

“As you would appreciate, the DPP provides disclosure in accordance with its lawful obligations. The DPP does not ‘control’ or ‘manage’ disclosed material once provided to the defence. We expect all parties to comply with their lawful obligations in relation to disclosed material.”

The Board of Inquiry led by Walter Sofronoff SC was contacted by news.com.au for comment and did not respond.

The Australian Federal Police were contacted before the publication of this story and said they had “no comment” on the leak of the complainants private text messages provided during the criminal investigation.

News.com.au does not suggest either party was involved in the leak only that it was originally in the possession of the police, the DPP and lawyers and was ultimately provided to the media, by persons unknown.

Originally published as Channel 10’s Lisa Wilkinson and Brittany Higgins tape set to spark legal war