Inside the last-minute bid to reopen the Bruce Lehrmann defamation trial

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It was the dramatic moment when Bruce Lehrmann was grilled by Lisa Wilkinson’s barrister Sue Chrysanthou SC in his defamation trial over whether he had provided “all information, documents, film, video, photographs” reasonably requested by Seven’s Spotlight program in exchange for paying his rent for a year.

The terms were disclosed to the Federal Court after Channel 7 was subpoenaed in Mr Lehrmann’s defamation trial and provided the confidential legal agreement.

“Could you please turn to volume 11? That’s the agreement I was just asking you about?’’ Ms Chrysanthou SC asked.

“In addition to giving the interviews, you also agreed to give all information, documents, film, video, photographs, items and assistance?”

“Yes,’’ Mr Lehrmann replied.

“And did you do so?’’ she asked.

“No, I just gave an interview,’’ he replied.

But before he could continue, Justice Michael Lee intervened, asking “sorry, why is this relevant?”

“We’ve got an objective theory of contract. We know what the contract says,’’ Justice Lee said.

Ms Chrysanthou was stopped in her tracks.

“Thank you, your Honour. Can I mark the contract for identification?”

The relevance of that cross examination could well have been what documents – if any – did Mr Lehrmann provide to the Spotlight program.

Mr Lehrmann has, via his legal team, previously rejected the “outrageous” suggestion.

The matter may be relevant to Channel Ten’s legal team because it could go to credibility.

Any suggestion Mr Lehrmann was the source of the leaks could go to his credibility as a witness and may be relevant with regard to any damages.

Auerbach can offer no evidence in what occurred when Brittany Higgins and Bruce Lehrmann went back to Parliament House. At it’s highest it goes to his credibility as a witness.

Justice Lee has three options in response.

He may find the material is not relevant and proceed to a judgment on Thursday.

He may to choose to allow the affidavit and seek written submissions in response from Mr Lehrmann’s legal team.

The third option is to call Bruce Lehrmann and Taylor Auerbach to give evidence, a trial within the trial as to whether he leaked material or not.

Matthew Richardson SC told the court in June that he was instructed that Mr Lehrmann was not involved and Ten had “no idea” who was leaking the material.

“In correspondence last night, and in the written submissions provided to your honour, the allegation was made, it was the obvious inference that my client had provided materials to Seven even in breach of his Harman obligations. He absolutely denies that. It is a grave and serious allegation. It’s aggravating the damages, in this case,” Mr Richardson said.

Justice Lee ultimately declined to order the interrogatories in the form proposed.

Ms Chrysanthou SC said the Seven broadcast was an attempt to target Wilkinson and her producer and “to paint them as villains”.

The Spotlight program

The Spotlight program that aired in June, 2023, was a powerful piece of television, complete with CCTV that was never released by Justice Lucy McCallum in the criminal trial.

In casting its narrative around Brittany Higgins, using thousands of text messages and even audio recordings provided to police by Ms Higgins and Channel Ten as part of the criminal trial.

On Tuesday, Justice Lee will hear legal arguments over whether or not to consider an affidavit prepared by ex-Spotlight producer Taylor Auerbach, detailing his claims of how some of those documents came into the program’s possession.

It is expected he will claim that one of the sources was Mr Lehrmann.

News.com.au does not suggest that Mr Lehrmann has provided the documents to the Seven Network, only that Auerbach, the producer on the program, claims that he did in a sworn affidavit. The claims have not been tested, nor has the affidavit been read into evidence.

The contract itself states the following would be provided in a written agreement signed by the Spotlight program’s executive producer.

“All information, documents, film, video, photographs, Items and assistance reasonably requested by Seven …. which Seven may record, broadcast, exhibit, communicate and otherwise use under the terms of this Agreement (’Seven Exclusive’),’’ the document states,

“The parties agree that Seven will own all copyright and may edit, copy, broadcast, publish, adapt or deal with the material ….at its sole direction, in all existing and future media worldwide in perpetuity.”

When lawyers grilled him on the contents, Justice Lee asked Ms Chrysanthou to “cut to the chase”.

“And it was part of the agreement, wasn’t it, that you were paid for 12 months of accommodation by Channel 7?’’ she asked.

“That’s the only part of the – yes, that’s what I get,’’ Mr Lehrmann replied.

“For filming in those places, yes.”

“What do you mean ‘for filming in those places’?’’ he was asked.

“Well, there was a section of the first broadcast, I recall, that was filmed in the place I was in at the time.”

The barrister said she just wanted to check, “does that invoice represent the payment of the consideration referred to in the agreement you entered into with Channel 7?”

Mr Lehrmann replied, “I don’t know.”

“You don’t know how much you were paid? You don’t know how much was paid by Channel 7 for your accommodation for 12 months?”

“Network Seven handles the accommodation arrangements,’’ Mr Lehrmann said in response.

A form of ‘public violation’

Brittany Higgins has described the ongoing publication of her private text messages provided to various parties as part of legal processes, including police, prosecutors and Bruce Lehrmann’s defence team during the trial, as “a form of public violation”.

“You can continue to leak every text message, WhatsApp, and emails from my phone,’’ she said.

“Yes, it’s embarrassing. It is such an intimate (and ongoing) form of public violation + humiliation.

“However I refuse to be intimidated or retreat into myself. So, see you in the defamation trial come October.”

She also said this.

“Stop publishing the private contents of my phone,’’ she said on social media.

“I took a photo of an old page in my diary on the 7th of July 2021.

“It is now being referenced in an article in The Australian. This is the third time private images, texts and WhatsApps from my phone have been published by this particular news outlet.

“I voluntarily provided this material to the police to help them form the brief of evidence and none of it was tabled in court.

“Therefore, no journalist should have seen the photo of my diary.”

Ms Higgins said the fact it had leaked and was published was distressing.

“I entrusted police with my private information for the sole purpose that it could aid their investigation into my sexual assault, nothing else,’’ she said.

The Federal Court had previously heard suggestions that Brittany Higgins’ text messages being leaked to the media may be a deliberate effort to influence a defamation case.

High-profile defamation barrister Sue Chrysanthou SC, who is representing Channel 10’s Lisa Wilkinson, told the Federal Court that an “orchestrated campaign” appeared to be underway to influence the proceedings.

“The publicity of the last few days could only have been calculated to put pressure on witnesses not to co-operate,” Ms Chrysanthou said.

She suggested in court that Mr Lehrmann be asked if he was involved in leaking the text messages to the media.

“We’ve made inquiries of all other parties,” she said.

But Mr Lehrmann’s barrister, Matthew Richardson SC, said his client “absolutely denies” the suggestion he was involved in leaking evidence which he described as a “grave and serious allegation”.