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Network Ten asked the ACT Director of Public Prosecutions for the brief of evidence in Bruce Lehrmann’s since-abandoned criminal trial as part of its bid to defend a defamation case brought by the former Liberal staffer.
Ten also sought documents from Seven Network, which broadcast an interview with Lehrmann on Sunday.
Bruce Lehrmann was interviewed on the Seven Network’s Spotlight program.Credit: Seven Network
Lehrmann filed defamation proceedings against Ten in February over an interview with his former colleague Brittany Higgins on The Project, broadcast on February 15, 2021. Separate proceedings against News Corp, filed at the same time, have since settled.
He alleged the interview conveyed a series of defamatory meanings, including that he raped Higgins in then-defence industry minister Linda Reynolds’ office in 2019. He denies the rape allegation.
Lehrmann was not named in the broadcast but his lawyers say he was identified via other means.
If the court finds Lehrmann was identified, Ten and its reporter Lisa Wilkinson admit they conveyed the defamatory claims alleged, including the central claim of rape, and will seek to rely chiefly on defences of truth and qualified privilege – a defence relating to publications of public interest where a publisher has acted reasonably.
At a preliminary hearing in Sydney on Friday, lawyers representing the acting director of the ACT DPP and the Seven Network appeared in court to answer subpoenas issued by Ten and produced a series of documents.
The DPP provided the full brief of evidence in Lehrmann’s abandoned criminal trial.
Justice Michael Lee granted all parties access to the material.
Matt Collins, KC, acting for Ten, said during Friday’s hearing that Lehrmann’s interview on Seven made clear that the former Liberal staffer “intends to run a public campaign against Ms Higgins” and was, in his own words, “a man who has nothing to lose”.
Collins said Lehrmann’s interview was broadcast before Lee had ruled on whether a jury would be empanelled in the defamation case.
Sue Chrysanthou, SC, acting for Wilkinson, said there had been an “overwhelming amount of inappropriate media” which put “improper pressure on my client”.
“These media organisations are, it would appear, wholly publishing one side of the story,” Chrysanthou said.
Lee said he did not propose to comment one way or another on those allegations. He said he dealt with applications, “not with complaints”, and the media parties could make an application alleging there had been conduct amounting to an interference with the administration of justice if that was their claim.
“We have a concern that witnesses won’t come,” Chrysanthou said.
Lee said that if no application was made by the media parties he did not propose to “conduct what amounts to a royal commission into this issue”.
Earlier in the hearing, Lee ruled that the Ten proceedings, slated to start on November 20, would not be heard by a jury but “by the ordinary mode of judge alone”.
Lee had raised the prospect in April that a jury might be suited to determining the factual issues in the case.
“All parties to the Network Ten Proceeding are unified in opposing a direction that there be a
trial by jury of either all or some factual issues to be determined,” he said in a judgment delivered on Friday.
“Although relevant, the opposition of the parties is not dispositive.”
But ultimately Lee decided that the significant publicity attaching to the case meant it was not appropriate to empanel a jury.
He said Ten and Wilkinson accepted that a truth defence of the kind raised in this case “might, in a lower profile proceeding, have been appropriately determined by a jury, but this case is different”.
“This last argument is decisive. The difficulties occasioned by the significant publicity in this
case are singular and compelling. It follows the appropriate course in all the circumstances is
to proceed by the usual mode of trial,” Lee said.
Lehrmann was named in the media in August 2021 after he was charged with sexual intercourse without consent.
He pleaded not guilty to the charge. His trial was aborted in October last year due to juror misconduct. The charge was later dropped altogether amid concerns about Higgins’ mental health. Lehrmann has always maintained his innocence.
Lehrmann is also suing the ABC for defamation for broadcasting a National Press Club address last year by Grace Tame and Higgins.
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