Judge only trial for Lehrmann defamation case against Network 10, Lisa Wilkinson
Bruce Lehrmann’s defamation suit will be heard in front of a judge only, as Wilkinson’s lawyers raise concerns he leaked sensitive information to various media outlets.
Bruce Lehrmann’s defamation lawsuit against Network Ten and journalist Lisa Wilkinson will be heard in front of a judge only, as the publicity surrounding the matter could “prejudice” a jury, a court has heard.
During a case management hearing between the network, Ms Wilkinson and Mr Lehrmann, Ms Wilkinson’s lawyers suggested Bruce Lehrmann leaked restricted court material to media organisations to wage a “concerted” and “calculated” campaign to discourage witnesses from giving evidence in the defamation trial between the former Liberal staffer, Network Ten and its former star journalist.
Mr Lehrmann’s lawyer rejected the implication that his client leaked the sensitive information to the media, saying there was a “very significant pool of people” who had access to it.
Mr Lehrmann is suing Network Ten and Ms Wilkinson for defamation, accusing them of seeking to exploit Brittany Higgins’ allegations of sexual assault against him for personal and professional gain.
Justice Michael Lee on Friday ruled it would be too difficult to assemble a jury who have not been “exposed to public accounts of evidence” from Mr Lehrmann’s trial over the alleged rape of former Liberal staffer Brittany Higgins.
“Even in recent days there has been further extensive television or newspaper published about events which are at the heart of the … offence,” Justice Lee told the Federal Court.
“Although in ordinary experience, jurors followed directions this is not always the case. Mr. Lehmann‘s own criminal trial is a stark example.”
Justice Lee pointed specifically to the ongoing Sofronoff inquiry, which has been interrogating the role of the ACT Director of Public Prosecutions Shane Drumgold and the Australian Federal Police in the Bruce Lehrmann trial.
He said the ongoing publicity surrounding the inquiry could affect a juror’s ability to remain impartial and could create prejudice.
“Allied with past publicity is ongoing publicity,” Justice Lee said.
“Public hearings conducted by the inquiry comments on May 8 2023 and attracted extensive attention. The inquiry is required to report to the Chief Minister and the Attorney-General by July 31 2023. The entirety of the inquiry will, therefore, be conducted while the Network Ten proceeding is unresolved.
“Further, the trial of the Network Ten proceeding is scheduled to commence within a few months of the conclusion of evidence in the inquiry and the delivery of the inquiry’s findings.
“The publicity attendant upon the inquiry is likely to be fresh in the mind of any juror empanelled.”
Senior silk Sue Chrysanthou, acting for Ms Wilkinson, on Friday suggested Mr Lehrmann, or someone acting on his behalf, leaked text messages between Brittany Higgins and her partner Bruce Lehrmann to members of the media in a deliberate attempt to malign Ms Higgins.
She sought for Justice Michael Lee to allow leave for interrogatories to determine whether Mr Lehrmann leaked the information to the media, suggesting the restricted information being made public might dissuade Ms Higgins or Mr Sharaz from giving evidence at trial and damaging Ms Wilkinson’s case.
“Three parties had access to that document, and one of them is the applicant (Mr Lehrmann),” Ms Chrysanthou told the court. “Given the impact of the release of that material ...is putting that pressure on a witness in the proceedings.”
Justice Lee rejected her request, saying in the absence of a formal application from Ms Chrysanthou, he would not allow leave for interrogatories.
“If you feel that there is an improper campaign that‘s been conducted in order to prevent a witness giving you evidence in support of your justification defence, then make an application,” he said.
“If there‘s not if there’s not an application before me, I don’t propose to take steps really to conduct what amounts to a Royal Commission into this issue.”
Ms Chrysanthou asserted she would likely receive instructions to make a formal application over the matter.
Ms Chrysanthou made a further application to limit evidence given in the defamation hearing to the lawyers involved in the trial, meaning Mr Lehrmann would not be permitted to access the files.
“We‘ve been ordered to give discovery,” Ms Chrysanthou said. “Having regard to the fact that the media appear to be happy to receive documents and use documents in apparent contempt, we’re concerned about who has access to our client’s discovery when discovery is made. And one of our applications today is to limit access to my client’s documents to only the lawyers for the applicant.”
Mr Lehrmann’s barrister Matthew Richardson SC rejected the suggestion only three parties were able to access the text messages, saying: “There is a very, very significant pool of people that could have done this.”
“There is no basis and there is no relevant issue in these proceedings that would justify the order of the interrogatories,” Mr Richardson said.
The ACT Director of Public Prosecutions on Friday handed over a brief of evidence from the abandoned rape trial of Mr Lehrmann to Network Ten. A representative of the DPP told the Federal Court the DPP had no objections to giving the evidence to the network, and delivered it on two USB sticks.
Network Ten was also granted access to documents from the Seven Network regarding its interview with Mr Lehrmann which aired on Sunday night.
Throughout Friday’s case management hearing, specific reference was made to the Spotlight program , featuring an interview with Mr Lehrmann, CCTV footage from the night of the alleged rape and audio recordings from a five-hour long lunch prior to Ms Higgins’ interview with Ms Wilkinson on The Project.
Matt Collins KC, acting for Network Ten, told the Federal Court of the “inherent tendency of this sort of publicity” having the effect of discouraging witnesses.
“The publicity of the last few days, in our respectful submission, can only have been calculated to put pressure on witnesses not to cooperate with the respondents in the preparation of evidence for the case and in giving evidence in the case,” he said.
“What Mr Lehrmann has said (in the Spotlight program) is he intends to run a public campaign against Ms Higgins and through them no doubt the respondents (Network 10 and Lisa Wilkinson) in the media.
“He says he’s a man who‘s got nothing to lose. He says he’s acting contrary to legal advice and there’s more to come.”
Dr Collins requested Justice Michael Lee to allow leave for interrogatories to determine how the pre-interview audio and text correspondence between Ms Higgins and her partner David Sharaz were leaked to outlets such as Channel 7 and Sky News.
Friday‘s copies of The Australian and The Daily Telegraph, both which featured stories regarding Mr Lehrmann and Ms Higgins were tendered into evidence by Ms Chrysanthou.
Ms Chrysanthou supported Dr Collins’ request, saying there had been “an overwhelming amount of inappropriate media, from my perspective, directed to my client, and to witnesses who she may call.”
Ms Chrysanthou suggested the leaked audio may dissuade The Project producer Angus Llewellyn from giving evidence, as he was featured in the recording of Ms Wilkinson’s pre-interview with Ms Higgins, along with Ms Higgins’ partner David Sharaz.
In the audio, Mr Llewellyn can be heard mocking the Liberal party for their lack of diversity, and joking that The Project would only need to approach Mr Lehrmann 10 minutes before airing its interview with Ms Higgins.
“These media organisations, it would appear, are only publishing one side of the story.” Ms Chrysanthou said.
“For example, the Spotlight program. Producing for an hour and a half broadcast - which appeared to have been prepared over months - Mr Lehrmann’s version, together with excerpts from a five hour audio recording of my client, Ms Higgins, Mr Sharaz and Mr Llewelyn, all of whom are potential witnesses in these proceedings. And highly edited sophisticated excerpts to paint them as villains in the preparation of the broadcast, which is a key issue in these proceedings.
“It was a deliberate attack on my client‘s professionalism as a journalist.”
Ms Chrysanthou said there was “no attempt” from Channel 7 to contact Ms Wilkinson prior to the Spotlight program going to air, which she said inferred the network had “no interest in our client’s version, and the whole purpose of the broadcast was just to impugn her.”
Further, she accused Channel 7 of not coming to Ms Wilkinson for comment prior to the program airing because it would have led to an injunction application in the ACT Supreme Court to prevent the audio recordings being played publicly.
“It seems to us that someone is engaging in a concerted campaign to produce misleading material to the media in order to impugn the respondents and witnesses that the respondents could call in the defence to these proceedings in November,” Ms Chrysanthou said.
Justice Lee on Friday indicated it will likely hear Mr Lehrmann’s Network Ten defamation matter at the same time as Mr Lehrmann’s defamation case against the ABC.
Mr Lehrmann is suing the ABC over its broadcast of an address by Ms Higgins and former Australian of the Year Grace Tame, through which he claims the national broadcaster deliberately tried to prejudice his rape trial.
Justice Lee said there was “significant public interest in determining” both proceedings as quickly as possible, and said if he heard both cases in November he could “try and get a judgement out ... very promptly.”
Dr Collins, who is acting on behalf of the ABC as well as Network Ten, opposed Justice Lee’s suggestion. He argued that changes to Australian defamation law made in 2021 meant Mr Lehrmann had to prove the ABC had caused him “serious harm” - a principle that is not relevant to the Network Ten case, because the incident occurred before the law was changed.
Justice Lee made orders for the ABC to ready itself for the same trial period as Network Ten, but said he would make a final determination on the issue after seeing what evidence the ABC presents prior to trial.
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