The federal government is claiming it no longer holds crucial CCTV footage of the night of Brittany Higgins’ alleged rape, telling the federal court it cannot supply it for use in Bruce Lehrmann’s defamation proceedings.
Lawyers for broadcaster Lisa Wilkinson have described the failure to produce the footage as “very concerning” and flagged they intend to question officials from the Department of Parliamentary Services (DPS) about their position.
Lehrmann’s defamation case against Wilkinson and Network Ten appeared in the federal court on Friday morning to hear disputes about various subpoenas for documents ahead of the trial.
Lehrmann is suing the network 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.
Sue Chrysanthou SC, who is acting for Wilkinson, told the court DPS had told the court it had nothing to produce in response to a request for CCTV vision in Parliament House on 23 March 2019, the night of Higgins’ alleged rape.
The footage was used in the aborted criminal proceedings against Lehrmann and was recently aired on Channel Seven’s Spotlight program.
Chrysanthou said she is likely to seek to examine DPS officials about their response to the subpoena.
“We’re very concerned that the Department of Parliamentary Services says it does not have that CCTV footage,” Chrysanthou said.
“It seems to us that CCTV footage of Parliament House on 23 March 2019, having regard to the fact that Ms Higgins complained shortly thereafter, and having regard to the fact that we saw some of that footage broadcast by Channel Seven a few weeks ago, it’s concerning to us that there isn’t full production by Parliament House in relation to that footage and we will be pursuing an application to analyse that response.
“Given the relevance of the footage to the facts in issue between the parties, I anticipate we think there should be some explanation as to why that material hasn’t been produced.”
The court heard subpoenas have also been issued to columnist and author Peter FitzSimons and publisher Penguin Random House for any documents about a mooted book deal with Higgins. The National Press Club and ABC journalist Laura Tingle have also been subpoenaed, the court heard.
The court is likely to adopt a regime of redacting documents to prevent the public airing of private and personal information in connection with the case.
The media defendants have previously raised concern about the widespread leaking and publication of material that was produced during Lehrmann’s criminal proceedings but never tendered in court. They described the leaking as a “calculated” campaign to intimidate witnesses and said it was potentially in contempt of court.
Chrysanthou proposed a regime in which each party prepares a redacted version of material to be filed in the defamation case, to prevent the disclosure of personal and private information.
Justice Michael Lee agreed and described the proposal as “eminently sensible”.
The court will return in 10 days to consider issues around the subpoenas to Penguin, the DPS and Tingle.
