As much as it has ever left the headlines, the rape allegations made by Brittany Higgins against Bruce Lehrmann have resurfaced repeatedly in recent weeks as multiple stories based on “leaked” text messages from her phone were published.
Why is the case back in the headlines?
On Sunday, Seven broadcast the first extended interview with Lehrmann, which contained other material that had not previously been published. This included audio of a lunch Higgins had with her partner David Sharaz and Network Ten journalists Lisa Wilkinson and Angus Llewellyn in early 2021.
On Friday, there was a federal court directions hearing for Lehrmann’s defamation cases against Network Ten and the ABC. Last Thursday the ACT board of inquiry, which is investigating the handling of the Lehrmann case, heard from its last witness.
Lehrmann is suing Ten and Wilkinson over their initial reporting of Higgins’ rape allegations, which he denies. He is suing the ABC for broadcasting a speech Higgins made at the National Press Club. The rape trial was aborted due to juror misconduct and a second trial was abandoned over concerns about the risk it posed to Higgins’ life.
Where is the “leaked” material coming from?
The material is believed to have originated from evidence gathered during Lehrmann’s criminal trial.
Higgins and Lehrmann both had their phones downloaded as part of the police investigation and this material then formed part of the evidence provided to lawyers for Lehrmann and for the Director of Public Prosecutions prior to the case being heard in the ACT supreme court. Police officers, and possibly other parties, also had access to this material at that time.
The “leaked” material used in recent stories was not used as evidence during the trial, nor did the court grant the media access to it.
Who is leaking it?
The source of the leaked material is not known. Lawyers for Lehrmann have denied he is responsible, and the judge presiding over his defamation case denied an application by lawyers for Ten, the ABC and Wilkinson to have Lehrmann interrogated over the leaks.
Lehrmann’s counsel Matthew Richardson SC says many people had access to the material, and that his opposing counsel had no proof who was responsible for leaking it.
“They have no idea, they are fishing around in the dark,” he said.
“There is a very, very significant pool of people who could have done it, that’s the point.”
Are there possible legal ramifications of the leaked material being published?
Sue Chrysanthou SC, counsel for Wilkinson, and Matt Collins KC, counsel for Network Ten, said on Friday that the stories on Channel Seven and in News Corp publications in recent days relied on material that had been produced under compulsory orders during Lehrmann’s criminal trial. As this material was not tendered in court, the lawyers argued, its use in news stories would be against rules governing the sharing of such material. Chrysanthou described the use as an “apparent contempt”.
The subject material included a copy of the contents of Higgins’ phone, recordings of police interviews with important witnesses, and a recording of the five-hour pre-interview meeting between Higgins, Sharaz, Wilkinson, and Llewellyn.
Federal court justice Michael Lee, who is presiding over the defamation cases, suggested on Friday that concerns about the use of this evidence was better heard by the ACT supreme court, through contempt of court proceedings.
The federal court heard that Leon Zwier, a lawyer for Higgins, wrote to the ACT DPP urging them to raise the media reporting of the “leaked” material with the ACT supreme court. Lawyers for the Network Ten also wrote to the ACT chief justice’s associate with similar concerns on Wednesday.
A spokesperson for the ACT supreme court chief justice has declined to comment to Guardian Australia about the leaks.
On Thursday, the Guardian asked Seven, the Australian, and Daily Mail Australia about stories it had published that relied on “leaked” material. Seven declined to comment, the Australian did not respond, and the Daily Mail Australia said it did not discuss its sources.
What is Labor minister Katy Gallagher accused of?
One story that relied on “leaked” text messages appeared to show Gallagher knew about Higgins’ rape allegations before they were made public.
The Coalition argued the texts demonstrated Gallagher may have misled parliament when she told Senate estimates on 4 June 2021 that “no one had any knowledge” of the rape allegations before stories regarding the allegations aired on 15 February 2021.
Text messages published by the Australian suggest that on 11 February 2021, Sharaz texted Higgins saying: “Katy Gallagher messaged me. She’s angry and wants to help. She’s got the context. Says they knew something was wrong because they fired Bruce and not you. They avoided a scandal.”
The prime minister, Anthony Albanese, told Seven on Friday that he did not believe Gallagher had misled parliament.
What happens from here?
The defamation cases remain ongoing. Chrysanthou, for Wilkinson, signalled a further application would be made on the issue of leaked material being published, but the nature of that application is unclear.
She argued the ongoing publication was endangering the welfare of possible witnesses in the case, including Higgins, who she said may be too unwell to appear, even if compelled, should the negative reporting continue.
It is yet to be seen if the ACT supreme court will react to either the letter sent on behalf of Network Ten or other concerns raised about the apparent use of evidence from the criminal case.
The ACT board of inquiry is set to finalise its report at the end of July. While its terms of reference included that it could inquire into whether any police officers improperly provided “information to any persons” in relation to the Lehrmann criminal case, and into “any matter reasonably incidental” to this, it has heard little evidence from witnesses about improper leaks.
This does not mean the issue will not feature in the final report, as more than 20 people who provided statements to the inquiry including investigating police officers and lawyers from the office of the Director of Public Prosecutions have included information in their statements about any interactions they had with the media.
