Lawyers for Network Ten and Lisa Wilkinson have made explosive allegations that a “calculated” and “concerted” media campaign using restricted court material is being waged to pressure and dissuade witnesses from giving evidence in the defamation trial brought by Bruce Lehrmann.
Sue Chrysanthou SC, counsel for Wilkinson, and Matt Collins KC, counsel for Network Ten, on Friday complained of a significant amount of publicity on Channel Seven and in News Corp publications in recent days.
They complained the coverage relied on material that had been produced under compulsory orders during Lehrmann’s criminal trial, but was never tendered, which would be against rules governing the sharing of such material.
The subject material included a copy of the contents of Brittany Higgins’ phone, recordings of police interviews with important witnesses, and a recording of the five-hour pre-interview meeting between Higgins, David Sharaz, Wilkinson, and producer Angus Llewellyn.
Chrysanthou said the publicity had put improper pressure on Wilkinson.
She said it was clear that someone was engaged in a concerted campaign and accused media outlets of “dishonestly” editing the five-hour tape.
“[The] publicity has been to such an extent that it tends to and has had the effect of ... putting improper pressure on my client, overwhelmingly so,” she said.
“Now these media organisations are, it would appear, wholly publishing one side of the story.”
She described the Channel Seven Spotlight program – which featured an interview with Lehrmann interspersed with excerpts of the audio recording featuring Wilkinson, Sharaz, and Higgins – as “a deliberate attack on my client’s professionalism as a journalist”.
“There was no attempt to approach my client prior to broadcast to ask her questions about what was happening in that recording,” she said.
“We’ve written to Channel Seven about this and we have said that this has led us to infer that you had no interest in our client’s version and the whole purpose of the broadcast was just to impugn her, but also to infer you didn’t want us to know you had this audio recording because that would have led to an injunction application in [ACT supreme court chief justice] McCallum’s court.”
Chrysanthou also alleged the public campaign was designed to malign Higgins, a likely witness, and was having a significant impact on her.
She said there were real concerns that the publicity would mean “witnesses won’t come”.
“There is material from this police brief and material produced on subpoena in this criminal trial that is being distributed to the media. There is no doubt about that,” she said. “It wasn’t tendered in court and it seems to us to be an orchestrated campaign.”
Collins said Lehrmann had signalled publicly during his interview with the Spotlight program that he intended to run a public campaign against Higgins and the respondents in the media. He said the publicity was such that it was having the effect of putting pressure on witnesses who would be giving evidence in the defamation trial.
“This is a trial coming before Your Honour in a few short months. The publicity of the last few days can only have been calculated to put pressure on witnesses not to give evidence,” he said.
Justice Michael Lee suggested that such matters were better heard by the ACT supreme court, through contempt of court proceedings.
The parties asked the federal court to allow them to put questions to Lehrmann to ascertain whether he was responsible.
Lehrmann’s counsel Matthew Richardson SC rejected the “grave” allegation. They said Lehrmann denied involvement and the allegations from the media were “aggravating damages” in the defamation case.
“They have no idea, they are fishing around in the dark,” he said.
Richardson also rejected the suggestion that there were only three parties who had access to some of the restricted material.
“There is a very, very significant pool of people who could have done it, that’s the point,” he said.
He said an “infinite” amount of media coverage remained online that suggested Lehrmann’s guilt of the allegation.
Lee rejected the attempt to have questions put to Lehrmann. He described the interrogation attempt as “fishing”.
“I’m not going to give leave at this stage to administer interrogatories in the form that’s been provided,” he said.
Chrysanthou signalled a further application would be made on the issue.
Lehrmann is suing Ten and Wilkinson over their initial reporting of Higgins’ rape allegations, which he denies. The rape trial was aborted due to juror misconduct and a second trial was abandoned due to concerns about the risk it posed to Higgins’ life.
He has also commenced proceedings against the ABC for broadcasting a live address by Higgins to the national press club.
Earlier, the court ruled against having a jury trial, citing the significant publicity around the case and the difficulties in guarding against prejudice.
The court also heard that Channel Seven and ACT prosecutors had handed over documents under subpoena for the purposes of the defamation proceedings.
