NACC investigating leaked documents as Bruce Lehrmann defamation trial reopens

Space-Separated Links


A fresh tranche of documents tendered in the reopened Bruce Lehrmann defamation case has confirmed the national anti-corruption watchdog was asked by police to investigate how sensitive documents wound up in the media, including whether any officers engaged in misconduct.

The revelation comes as Network Ten won its eleventh hour bid to reopen Mr Lehrmann’s case against the network and journalist Lisa Wilkinson, after Ten sought to rely on new material in defence of the proceedings.

Former Seven Network producer Taylor Auerbach, who worked on the network’s Spotlight program, claims in affidavits filed with the court that Mr Lehrmann had provided him with more than 2300 pages of texts between Brittany Higgins and her former boyfriend, in breach of a legal practice known as the Harman undertaking.

The material was in an electronic brief of evidence during the abandoned rape trial brought against Mr Lehrmann by Ms Higgins, which was not tendered in court.

The e-brief also included a five-hour audio recording of a meeting between Ms Higgins, her now-fiance David Sharaz, Ms Wilkinson, and senior Network Ten producer Angus Llewellyn, which was supplied to the Australian Federal Police under subpoena but never used in the 2022 trial.

On Tuesday, Ten’s barrister Matt Collins told the court that the material was confidential and “subject to an implied undertaking that it not be used for any purpose other than the proceedings in which Mr Lehrmann was the accused”.

During the defamation trial, Mr Lehrmann denied providing any material to Spotlight other than his interviews, which Network Ten will now seek to prove is a falsehood on the basis of Mr Auerbach’s affidavit evidence.

Ahead of the hearings, a tranche of documents was uploaded to the Federal Court on Wednesday.

The Australian Commission for Law Enforcement Integrity were last year tasked with investigating how the documents not tendered in the rape trial had wound up leaked to the media, including whether the AFP were involved.

The new documents, made public by the Federal Court, contain correspondence between Network Ten’s legal team and the ACT police, Director of Public Prosecution, and the territory’s chief justice, revealing the network’s concerns Mr Lehrmann might have breached the undertaking in the wake of the Spotlight episodes.

On June 5 last year, Ten’s lawyer Marlia Saunders wrote to Andrew Bailey, Commander Investigations at ACT Policing, asking for confirmation the Australian Federal Police had not provided the audio recording; rough cut footage off Ms Wilkinson and Ms Higgins’ interview; and a draft of Ms Higgins’ manuscript which was produced under a subpoena during the criminal proceedings to the Seven Network.

It took almost six months for Commander Bailey to write back.

On November 3, he told Ms Saunders the AFP had referred the matter to the National Anti-Corruption Commission who were “leading an ongoing investigation regarding whether any AFP members may have been involved in this conduct”.

A spokesperson for the NACC on Wednesday said the commission was continuing on with investigations commenced by the now-defunct ACLEI.

“To provide any further information could prejudice operational activities, or the rights of individuals involved,” the spokesperson said.

Seven said in a statement on Tuesday after the court hearing that it “strongly rejected the false and misleading claims” in the affidavits and said it would not give up who the source of the sensitive material was.

“Seven has never revealed its source or sources and has no intention of doing so. Seven notes Mr Lehrmann’s court testimony last year that he was not the source,” a Seven spokesperson said.

Ms Saunders also contacted the ACT’s acting DPP, Anthony Williamson on June 6 citing her concerns about the leaked documents.

In his response, published to the Federal Court public file, Mr Williamson said it appeared there “had been a breach” of the Harman undertaking” but it was “not clear … who exactly breached the undertaking, and the circumstances surrounding that breach”.

According to the documents, Mr Williamson said “one reasonably available inference is that Mr Lehrmann provided the material to Channel 7 in breach of the undertaking. But that, of course, is not the only reasonably available inference”.

“It also remains reasonably possible that any number of other people who had access to the documents could have breached it,” he wrote.

Mr Williamson said at the time he did not propose to commence any proceedings because a Harman undertaking breach did not give rise to criminal proceedings, it was Network’s Ten prerogative to commence proceedings, and because he did not have a brief of evidence.

“I am prepared to reconsider my position if further evidence becomes available,” he said.

A spokesperson for the DPP confirmed on Wednesday that no such evidence had ever been presented to the Director.

The judgment in Mr Lehrmann’s defamation case was originally set down for Thursday.

Justice Michael Lee has said he is prepared for the court to sit as late as possible on Friday to complete the evidence before the weekend.

Justice Lee remained optimistic that he would be able to consider the new evidence over the weekend.