Ten has win on lip-reader’s report in Lehrmann defamation case

Network Ten has had a tactical win in its defamation fight with former federal Liberal staffer Bruce Lehrmann after a Federal Court judge allowed it to tender a lip-reader’s report analysing CCTV footage of Lehrmann and Brittany Higgins in the hours before she alleges he raped her in Parliament House.

In a decision on Friday, Justice Michael Lee ruled the report of UK-based Tim Reedy, who became profoundly deaf as a child, was admissible as part of Ten’s defence to the defamation action brought against the network and journalist Lisa Wilkinson by Lehrmann over an interview with Higgins aired in February 2021. He rejected a bid by Lehrmann’s legal team to exclude the report.

Bruce Lehrmann outside the Federal Court in Sydney on Friday.Credit: Kate Geraghty

However, Lee emphasised that his ruling “is not to say that ultimately I will regard the evidence as being of great weight”, and the expert had yet to be cross-examined by Lehrmann’s barrister.

The court has heard that Reedy analysed CCTV footage of Higgins and Lehrmann drinking with colleagues at The Dock hotel in Canberra on Friday, March 22, 2019. Higgins alleges Lehrmann raped her in the early hours of March 23 in the office of their boss, the then-Liberal industry defence minister Linda Reynolds.

CCTV showing Bruce Lehrmann and Brittany Higgins at The Dock in Canberra on March 22, 2019.Credit: Spotlight, Channel Seven

Lehrmann has told the court the alleged assault “did not happen” and there was no sexual contact between the pair.

Delivering his decision on the lip-reader’s report, Lee said: “This is not an expert opinion of great complexity. It involves someone with specialised knowledge looking intently at a video.”

Lee said he believed he was in a position from reading the report “to form a rational view as to the bases on which Mr Reedy has formed his opinions” and assess their reliability.

“I do not believe I will be misled or confused by the evidence,” Lee said.

The judge said it was clear Reedy had “significant specialised knowledge” based on his experience as a person who had been required to lip-read in order to communicate with the world.

‘Pushback’ on CCTV

Earlier on Friday, a police officer assigned to the investigation into the alleged sexual assault told the court that she had “never encountered such pushback on obtaining CCTV” as when she was seeking footage from inside parliament.

ACT Policing’s Detective Senior Constable Sarah Harman said she conducted a “meet and greet” with Higgins on April 8, 2019, at Winchester Police Centre in Canberra. This was not a formal interview.

Harman said she encountered difficulties in obtaining footage from inside Parliament House and it was “incredibly frustrating for me”.

ACT Policing’s Detective Senior Constable Sarah Harman outside the Federal Court on Friday.Credit: Kate Geraghty

“I hadn’t had any investigations involving Parliament House … but I had never encountered such pushback on obtaining CCTV before,” she said.

Harman said that at one stage an Australian Federal Police agent based in Parliament House had given her “a summary of what she had viewed within that footage, but it was said to me that … it wouldn’t be viewed again, or able to be viewed, until after an election”.

“I think the [May 2019] election was called some weeks following my meeting with her,” Harman said.

She said she asked for the footage after the election “and I did escalate that through my management … and where that went from there I couldn’t tell you”.

Judge calls for ‘precision’

After this evidence, Justice Lee raised with the parties the need for “precision” in articulating the powers of the AFP, parliament’s presiding officers and the government in relation to security in Parliament House.

He said the presiding officers – the speaker of the lower house and president of the senate – were responsible for security in parliamentary precincts, not the executive government, and they had “exclusive jurisdiction”. This meant the AFP needed the presiding officers’ consent to conduct investigations, make arrests or execute any process in parliament.

Steven Whybrow, SC, acting for Lehrmann, agreed and tendered a document setting out an AFP request to the presiding officers relating to the CCTV footage, which he said was “consistent with everything Your Honour said”. Whybrow said it was “approved on the 11th of April”.

“It’s got nothing to do with the executive government,” Lee said.

“No,” Whybrow said.

Whybrow submitted that the correspondence with the AFP and the presiding officers would “put to bed” any suggestion the footage was “denied or withheld”.

Sue Chrysanthou, SC, acting for Wilkinson, responded later on Friday that a document dated April 9 referring to the AFP request, signed by the presiding officers, noted there “was consultation in relation to that approval to view the footage, and the minister for defence industry and the chief of staff … were consulted”.

Lee replied: “Yes, but that’s what presiding officers do every day. If you want to make submissions about this you can ... but I’m very conscious that there’s got to be some accuracy when it comes to understanding what the law and practice of the parliament is.”

Police investigation

A photo of the white dress Brittany Higgins wore on the night of the alleged assault, tendered in evidence in Bruce Lehrmann’s Federal Court defamation case.Credit: Federal Court of Australia

Harman said she had asked Higgins about the clothing she was wearing on the night in question and Higgins had told her that her dress was in a bag under her bed.

The court has heard that Higgins ultimately decided not to proceed immediately with a police investigation in 2019, but it was re-enlivened in 2021.

Rape crisis counsellor Kathryn Cripps gave evidence later on Friday that she met Higgins at the police centre on April 8, 2019, and that Higgins “tried very hard to remain composed” but “flooded” with tears when police “mentioned the rights” of the alleged perpetrator.

The defamation suit

Lehrmann is suing Ten and its journalist Lisa Wilkinson over an interview with Higgins, aired on The Project on February 15, 2021, that he alleges defames him by suggesting he is guilty of raping Higgins in Parliament House in 2019.

Lisa Wilkinson and her barrister Sue Chrysanthou, SC, outside the Federal Court in Sydney on Friday.Credit: Kate Geraghty

He was not named in Ten’s broadcast and a preliminary issue in the case is whether he was identified via other means.

If the court finds he was identified, Ten and Wilkinson are seeking to rely on a range of defences including truth, which would require the court to be satisfied to the civil standard – on the balance of probabilities – that he raped Higgins. In a criminal trial, a prosecutor must prove an accused’s guilt beyond reasonable doubt.

Sexual assault charge dropped

Lehrmann’s ACT Supreme Court trial for sexual assault was aborted last year due to juror misconduct. The charge against Lehrmann was later dropped altogether owing to concerns about Higgins’ mental health.

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