Citizens around the nation have been spellbound as they watch claims in court about how the sausage of tabloid television is manufactured. So far we’ve found lots of unhealthy fat and sawdust in the ingredients.
According to the evidence from the man of the hour – the former Seven Spotlight producer Taylor Auerbach – if Bruce Lehrmann needs golf, big steaks, massages, hookers, mind-altering powders and free accommodation, then that’s what Bruce gets so that Seven can have a show. The allegations about paying for drugs, sex workers and massages have been firmly rejected by Seven.
With all the excitement, it’s easy to lose sight of what’s going on. The Lehrmann defamation trial was reopened at the 11th hour in order for the people he is suing (Network Ten and Lisa Wilkinson, the star of The Project) to bring new evidence about what they allege amounts to an abuse of process – an “outrageous contempt of court” and alleged intimidation of Brittany Higgins as a witness, and if true, for the court to consider what it says about Lehrmann’s credibility.
Auerbach contends it was Lehrmann who provided material to the Spotlight producers that had been assembled by the police in Canberra as part of the preparation for his criminal trial on a charge of rape – all of which dissipated after a juror conducted extramural research. Lehrmann has always maintained his innocence and denies any sexual activity took place between the pair at all.
The material allegedly included audio recordings and rough cuts of footage from Higgins’ interview with The Project; extracts from a book she was in the process of writing; and thousands of pages of intimate and personal text messages with her former boyfriend. Some of this material also mysteriously turned up in the Murdoch press although the source of this remains unknown.
Lehrmann has denied providing Seven with any such material. Taylor Auerbach alleges in his evidence to the court that Lerhmann’s claims that all he provided to Seven was “an interview” is a lie.
To say Lehrmann leaked things that were out of bounds is such a terrible accusation that when it was first raised by Ten’s lawyers last year, Lehrmann’s people flagged that they would seek aggravated damages from the judge.
For lawyers, the rule is that documents produced under subpoena or otherwise compelled by court orders cannot be used for collateral, ulterior or unrelated purposes. This is referred to as the implied Harman undertaking, which in recent days has been on many lips.
For journalists, the requirements are different. The Spotlight people say that the previously unknown material associated with Brittany Higgins came from a confidential source whose identity is – nobly and in the best tradition – being protected by Channel Seven’s finest.
After all, journalists rely on sources who provide access to documents, images, audio, and other clandestine material that was not destined for public exposure. This is how, frequently, the public is informed of important news that otherwise might be kept under wraps.
But the courts want to protect their patch and the Harman undertaking is partly designed to encourage parties to produce all material relevant to a criminal or civil process.
Certainly, judges want to discourage material compelled to be produced for trials – even if it is not used – turning up as entertainment in the media. Network Ten contends that only a tiny proportion of the compellable material was used in Lehrmann’s rape trial, so the rest should be entirely off limits.
Most of the celebrated cases dealing with the “implied undertaking” concern the flow of protected information finding its way into the media.
Harriet Harman KC, for whom the undertaking is named, has been a Labour member of the House of Commons since 1982 – the year before the House of Lords dismissed her appeal against a finding of contempt of court.
At the time she was pinged she was a lawyer working for the National Council of Civil Liberties and acting for a client called Mr Williams, who had been banged up in one of her majesty’s prisons, where he spent six months in a harsh “control unit”, allegedly because he was disruptive.
He sued the Home Office for false imprisonment and prior to the hearing he was granted discovery of a massive pile of Home Office documents. Harman, as his lawyer, agreed that they “should not be used for any other purpose than the case in hand”. However, in a nice twist, at the trial 800 pages of the government’s documents were read in open court, with the judge declaring most of it inadmissible.
Subsequently, Harriet allowed David Leigh from the Guardian to inspect the files with a view to writing a story about the prison’s control unit. She thought that was all above board because the material had been read aloud in open court.
The cruel machinery of the Home Office proved otherwise and prosecuted her for contempt. The finding of guilty stretched all the way to the House of Lords, which showed no mercy.
Here was a woman not prepared to take lying down what a group of men sitting on a woolsack thought. She went to the European Commission of Human Rights, complaining that the decisions of the English courts interfered with her freedom of expression and freedom to provide information. Further, she said she had been found guilty of an offence that did not exist at the relevant time.
The hardheads at the Home Office started to back off and proposed a compromise – a new law that would provide there would be no contempt of court for documents disclosed that were read in open court and then provided to someone else. The government paid Harriet’s costs of £36,320.
In Australia, the high court cranked up the language, insisting that the “implied undertaking” is a substantial legal obligation. This was the Luna Park case, known as Hearne v Street, where neighbours complained of noise from music, loudspeaker announcements and “the screams and shrieks of patrons using the rides offered”.
The Luna Park people had given affidavits from some of the complaining residents to the Daily Telegraph, described in the judgment as “a mass circulation newspaper” – as though no one had ever heard of it. The material was duly sent up in an article about disrupted violin lessons and trapped Chinese herbal medicine fumes.
The high court was unhappy about this and upheld orders for contempt.
In another case, a solicitor called Mr Smith allowed Nine’s A Current Affair to film him viewing CCTV footage that had been supplied by the Carnival cruise company as part of a case brought by a gentleman who had been wrongly accused of exposing himself to young girls on the Carnival Spirit.
Smith said that Harman slipped his mind. Nonetheless, he was slapped with a fine and costs and, even more despairingly, A Current Affair ended up not running the footage.
Judge Judith Gibson, in a NSW district court case, suggested that it might be inappropriate for a litigant to sue in defamation where a Harman breach has occurred.
One friendly observer suggested that Auerbach and Lehrmann bring to mind the Highwayman’s case, from the first half of the 18th century. Two robbers disagreed over how to split the loot and asked a court to resolve the dispute. The order from the judge was that they both be hanged.
Richard Ackland writes at 500Words.com.au
