Federal Court of Australia

Lehrmann v Network Ten Pty Limited (Expert Evidence) [2023] FCA 1577

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent be permitted to adduce into evidence the report entitled, “Lip Read Transcription Of Soundless Recorded Speech”, prepared by Mr Tim Reedy on 19 November 2023.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION AND BACKGROUND

1    The first respondent, Network Ten Pty Limited (Network Ten), wishes to call in its case Mr Tim Reedy, who describes himself as a “forensic lipreader”.

2    Mr Reedy was engaged by Network Ten to prepare a transcript of words exchanged between the applicant, Mr Bruce Lehrmann, and Ms Brittany Higgins, at various points in the CCTV footage obtained from “The Dock”, a venue attended by Mr Lehrmann, Ms Higgins and colleagues on the evening of 22 March 2019.

3    Mr Reedy has prepared a report entitled, “Lip Read Transcription Of Soundless Recorded Speech” (Reedy Report).

4    Contrary to the Court’s orders for the timely service of its written evidence, Network Ten served the Reedy Report on Mr Lehrmann’s solicitors on 18 November 2023, four days before the matter was called on for hearing.

5    The Court was informed of Network Ten’s proposed reliance on the Reedy Report at the conclusion of the first day of the hearing. Its late filing was opposed.

6    Despite my concerns as to the delayed service of the proposed expert evidence, in exercising the discretion to allow late evidence to be filed, I was conscious of the overarching purpose of civil litigation in this Court, being the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: s 37M(1) of the Federal Court of Australia Act 1976 (Cth). As Gleeson CJ observed in relation to a cognate provision of the then Supreme Court Rules 1970 (NSW), there is a reason why there is a comma after the word “just”: the Hon Murray Gleeson AC, ‘Managing Justice in the Australian Context’ (Speech, ALRC Conference, 19 May 2000). At the end of the day, my primary role is to ensure there is a just and transparent resolution of this dispute based on all material that is admissible and the parties wish to deploy, provided it does not cause any unfairness, procedural or otherwise, to another party.

7    If there was ever a case where it was important in promoting public confidence in the administration of justice for the controversy to be determined on the substantive merits, it is this one. With this in mind, the next morning, I proposed a draft order to the parties, which I had prepared overnight. As it happened, upon it being provided to the parties, the making of the proposed order was not opposed, and an order was made in the following form (order):

THE COURT NOTES THAT NOTWITHSTANDING THE FIRST RESPONDENT’S LATE SERVICE UPON THE APPLICANT OF PURPORTED OPINION EVIDENCE ON THE TOPIC OF LIPREADING OR VISUAL SPEECH RECOGNITION FROM VIDEO (lipreading) ON 19 NOVEMBER 2023 (Report), AND ITS FAILURE TO FORESHADOW PROPOSED RELIANCE UPON THIS TOPIC OF SPECIALISED KNOWLEDGE AS EFFICIENTLY AS POSSIBLE (CONTRARY TO THE REQIUREMENTS OF s 37N(1) OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 (CTH) (FCA Act)), THE COURT ORDERS:

1.    Pursuant to s 37P(2) of the FCA Act (and subject to any further order, and questions of admissibility of specific evidence):

(a)    the parties be given leave to rely upon opinion evidence on the topic of lipreading although the question of the admissibility of the Report be deferred for later consideration;

(b)    the applicant notify the Court prior to 4:15pm on 29 November 2023 whether he intends to:

(i)    put in issue the admissibility of the whole or any part of the Report;

(ii)    put in issue the accuracy or correctness of any of the opinions contained in the Report; or (iii) adduce further opinion lipreading evidence (further opinion evidence) and, if so, from whom;

(c)    if notification is made in accordance with these Orders of further evidence, by 10:15am on 30 November 2023, the parties specify a joint list of video recordings in Part B of MFI 2 in respect of which they wish to adduce lipreading evidence;

(d)    a videoconference conclave be conducted (Conclave), as soon as practicable after 10:15am on 30 November 2023, by an independent facilitator to be appointed by the Court (Facilitator) between the author of the Report and the proposed expert notified by the applicant (Experts);

(e)    the Conclave be conducted with the aim of preparing a joint lipreading report between the Experts specifying those opinions upon which they agree and those upon which they disagree and, to the extent relevant, short reasons as to the extent of disagreement (Joint Report) prepared without the involvement or intervention of any person other than the Experts and the Facilitator; and provided to the Associate to Justice Lee by the Facilitator prior to 9:00am on 7 December 2023 (with the Joint Report to be thereafter provided to the parties);

(f)    the parties notify the Court by 10:15am on 8 December 2023 whether:

(i)    they consent to the tender of the Joint Report; and/or

(ii)    they wish to adduce any further lay, or expert evidence from one of the Experts, on a topic relating to lipreading; and/or

(iii)    they wish to cross-examine the Expert not notified by that party with the expectation that if further expert evidence is adduced from the Experts it be received at a concurrent evidence session at a time and mode specified by the Court and notwithstanding that, by the time such a concurrent evidence session is held, the applicant may have otherwise closed his case in chief.

(Emphasis in original).

8    My intention in making this order was to achieve a balance: on the one hand, I sought to allow Network Ten to put before the Court all material it wished to rely upon and which it contends is probative to the resolution of the substantial truth defence; on the other hand, I sought to ensure Mr Lehrmann was afforded ample procedural fairness, including a meaningful opportunity to consider the opinion evidence proposed to be adduced by Network Ten, and to obtain the assistance of a similar expert should he so wish. I also reserved for further argument any admissibility or discretionary exclusion questions.

9    I was also conscious that by reason of the delay of Network Ten, this exercise was required to be conducted unexpectedly and, from the perspective of Mr Lehrmann, at the heel of the hunt. Accordingly, I made an order the costs associated with the processes envisaged by the order be payable by Network Ten in the first instance.

10    In accordance with the order, on 29 November 2023, Mr Lehrmann notified the Court he did not propose to engage another lip reader but intended to put in issue the admissibility of the Reedy Report and, if it was admitted, to challenge the accuracy and correctness of the opinions expressed by Mr Reedy.

11    This afternoon, I heard argument and determined that Network Ten should be allowed to adduce the Reedy Report as opinion evidence within the meaning of s 79 of the Evidence Act 1995 (Cth) (EA). My reasons for doing so are as follows.

B    SECTION 79 OF THE EVIDENCE ACT

12    It is well at the outset to say something generally, but briefly, as to the operation of s 79 of the EA. Of course, s 76(1) provides that “[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”. An exception to the “opinion rule” exists for “expert opinion” or “opinions based on specialised knowledge” and is set out in s 79.

13    As a starting point, two conditions must be met for an opinion to be admissible under s 79 of the EA: first, the witness must have “specialised knowledge based on a person’s training, knowledge and experience”; and secondly, the opinion must be “wholly or substantially based on that knowledge”: McNickle v Huntsman Chemical Company Australia Pty Ltd (Additional Expert Conclave) [2022] FCA 1596 (at [15]).

14    It is important that consideration of these two stages is not elided and, more generally, that attention be given to the “factual basis rules” governing admissibility of opinion evidence. As I explained in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336 (at 458 [500]–[501]):

500    The High Court warned in Dasreef (at [37]) that the admissibility of opinion evidence is not to be determined by focussing on statements made in decided cases divorced from the context in which those statements were made, but rather upon the requirements of the Evidence Act. Hence the proper focus is on whether it can be said that the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and in relation to which the opinion is “wholly or substantially based”, applies to the facts assumed or observed in the particular case so as to produce the relevant opinion. By reference to the judgment of Heydon J in Dasreef, John Dixon J in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99 (at [98]) identified three “factual basis rules” which apply under s 79, being: (1) are the facts and assumptions on which the expert’s opinion is founded disclosed (assumption identification rule)? (2) is there evidence admitted, or to be admitted before the end of the tendering party’s case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value (proof of assumptions rule)? and (3) is there a statement of reasoning showing how the facts and assumptions relate to the opinion stated to reveal that that opinion is based on the expert’s specialised knowledge (statement of reasoning rule)?

501    These “factual basis rules” are fundamental and reflect the essential basis upon which an expert opinion is of any utility … it is worth having regard to the reasons of Spigelman CJ (with whom Giles and Ipp JJA agreed) in Australian Securities and Investments Commission v Rich (2005) 218 ALR 764, which contains a detailed analysis of the underlying basis as to why such rules exist. As part of that analysis, Spigelman CJ made reference to the reasoning in HG v The Queen (1999) 197 CLR 414, including the statement by Gleeson CJ (at [41]), that expert evidence:

… required identification of the facts [the expert] was assuming to be true, so that they could be measured against the evidence; and … demonstration or examination of the scientific basis of the conclusion.

(Spigelman CJ’s emphasis.)

(Emphasis in original).

C    THE ARGUMENTS ADVANCED BY MR LEHRMANN

15    Having noted these general matters, the present focus must be on the grounds of objection raised in this case not, as noted above, on general statements as to admissibility divorced from context. In this case, junior counsel for Mr Lehrmann, Mr Olson, developed four arguments directed to the rejection or discretionary exclusion of the Reedy Report.

16    First, it was contended that Mr Reedy cannot be said to have “specialised knowledge based on [his] training, study or experience” within the meaning of s 79(1) of the EA.

17    I do not accept this argument. It is plain beyond peradventure that “specialised knowledge” is a concept of broad compass: see Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 (at 137–138 [629] per Giles JA). Indeed, in Honeysett v R [2014] HCA 29; (2014) 253 CLR 122 (at 131 [23]), French CJ, Kiefel, Bell, Gageler and Keane JJ explained that “specialised knowledge” may be “of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience”. What is required is knowledge, as distinct from belief, which exceeds that held by persons who have not by training, study or experience acquired an understanding of the subject matter: Honeysett (at 131 [23] per French CJ, Kiefel, Bell, Gageler and Keane JJ).

18    It is readily apparent that Mr Reedy has specialised knowledge in the field of lipreading, obtained over the course of a life where he has been required to lipread to communicate with the world. Mr Reedy was able to hear when very young, but contracted meningitis at the age of four and became profoundly deaf. He began wearing a hearing aid and taught himself to lipread as a small child, starting with vowels, monosyllables, polysyllables and then learned spoken sentences. This experience allowed him to pick up dialects, accents and, I infer, identify speech. Since 2010, Mr Reedy has been working as a professional “forensic lipreader”, and has worked on investigative, legal and media assignments.

19    It would be contrary to authority and the terms of s 79 of the EA to adopt a restrictive view of “specialised knowledge”. I accept, for the purposes of the admissibility argument, that Mr Reedy has specialised knowledge based upon his experience in the field of lipreading, including forensic lipreading.

20    The second argument pursued by Mr Olson proceeds in the alternative. Even if Mr Reedy may be said to have “specialised knowledge”, the opinions expressed in the Reedy Report cannot be seen as “wholly or substantially based on that knowledge” within the meaning of s 79(1) of the EA. It is said to be not evident how Mr Reedy has applied his specialised knowledge to produce the opinion propounded, and that it is equally open to conclude the conclusions reached in the Reedy Report are based upon “guesswork”. Relatedly, Mr Olson submits that on its face, the Reedy Report does not reveal the level of surety with which Mr Reedy states his various conclusions.

21    Of course, a failure to disclose a process of reasoning which demonstrates that the opinions are substantially based on the specialised knowledge is highly problematical, not only so far as admissibility is concerned, but also in relation to the weight to be given to the evidence: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (at 743–744 [85] per Heydon J). Put another way, in accordance with the statement of reasoning rule, the Court cannot be presented with mere ipse dicit (“he says it himself”): see Makita (at 745 [87] per Heydon J).

22    While it is true the Reedy Report is prepared, if I may say so with respect, somewhat idiosyncratically in parts, the processes followed by Mr Reedy and their connexion with the application of his specialised knowledge are tolerably clear. Mr Reedy discloses his method and how he reached his conclusions. Although on its face no indication is given in the served Reedy Report as to his various graduations of surety as to his interpretation of the various aspects of the recording, I received, on the voir dire, an affidavit of the solicitor on the record for Network Ten containing a “key”, prepared by Mr Reedy, which distinguishes between those parts of the Report where Mr Reedy is not certain of the words spoken; where he cannot differentiate between two or more words; where words cannot be lipread; and other notes. I am satisfied, on the face of the Reedy Report and in view of this further material, that the opinions expressed are sufficiently substantially based upon Mr Reedy’s specialised knowledge and the differences in the confidence of the opinions expressed can be understood.

23    The third argument, closely related to the second, is that the Reedy Report does not set out the “necessary … criteria for testing the accuracy of its conclusions”: Makita (at 745 [87] per Heydon J); R v Tang [2006] NSWCCA 167; (2006) 65 NSWLR 681 (at 715 [153] per Spigelman CJ).

24    Of course, it is necessary for an expert to furnish the tribunal of fact with the necessary criteria for testing the accuracy of the conclusions expressed. In the end, I will be required to form an independent judgment by applying the relevant criteria to the facts proved and forming a view, one way or the other, as to whether Mr Reedy’s views are intelligible, convincing, and tested: R v Tang (at 715 [153] per Spigelman CJ).

25    There is no cause for concern in the present circumstances. Importantly, the Reedy Report does not furnish opinions of great complexity. Its preparation involved someone with specialised knowledge looking at video footage intently (and repeatedly) in an effort to form views as to the words spoken by persons in the video. It is not a dense expert report as one often sees prepared in relation to matters such as the insolvency of a company, or an abstruse scientific discipline. I am satisfied based on the material before me that I am likely to be in a position to form a rational view as to the bases upon which Mr Reedy has formed his opinion, and then to assess the objective reliability of his opinions.

26    I should note there was some discussion during submissions as to the inherent unreliability of lipreading evidence. The subtext seemed to be that counsel for Mr Lehrmann was suggesting that it would be novel and brave to receive such evidence (in the Sir Humphrey Appleby sense). But it stands to reason that some experiences grounding specialised knowledge can be unusual; it is also evident that novelty is not a barrier to admissibility. In any event, even if it mattered, admission of such opinion evidence is not unique.

27    Both parties took me to the decision of the Court of Appeal in R v Luttrell [2004] EWCA Crim 1344; [2004] 2 Cr App R 31, where Rose LJ (Vice-President), Andrew Smith and Fulford LJJ observed (at 540 [38]):

… we are entirely satisfied that lip-reading evidence as to the contents of a videoed conversation is capable of passing the ordinary tests of relevance and reliability and therefore being potentially admissible in evidence. Lip-reading is a well recognised skill and lip-reading from video footage is no more than an application of that skill. It may increase the difficulty of the task, as may the speaker’s facial features and the angle of the observation, but the nature of the skill remains the same … It does not of course follow that, in every case where lip-reading evidence is tendered, it will be admissible. The decision in each case is likely to be highly fact sensitive. For example, a video may be of such poor quality or the view of the speaker’s face so poor that no reliable interpretation is possible. There may also be cases where the interpreting witness is not sufficiently skilled. A judge may properly take into account: whether consistency with extrinsic facts confirms or inconsistency casts doubt on the reliability of an interpretation; whether information provided to the lip-reader might have coloured the reading; and whether the probative effect of the evidence depends on the interpretation of a single word or phrase or on the whole thrust of the conversation. In the light of such considerations, (which are not intended to be exhaustive) a judge may well rule on the voir dire that any lip-reading evidence proffered should not be admitted before the jury. As to the skill of such a witness, we have been told that there are presently only four witnesses in this country (including Miss Rees and Miss Hadfield) who undertake this kind of forensic work. As and when new witnesses appear, it will be entirely appropriate, when they first give evidence, for their expertise to be challenged and tested by reference, in appropriate cases, to disclosed material bearing on their skill or lack of it. But, so far as Miss Rees and Miss Hadfield are concerned, if they give evidence in future cases, we would not expect a trial judge to permit extensive trawling through their past ‘‘successes’’ and ‘‘failures’’. As we have indicated, the material before us establishes conclusively that Miss Rees is one of the very best lip-readers. And, although her background and experience differs, nothing in this case leads us to believe that Miss Hadfield is other than skilled for the purpose of giving lip-reading evidence.

28    Although I am dealing with admissibility pursuant to the provisions of the EA and not the common law, I agree generally with their Lordships’ comments as to the nature of lipreading being a well-recognised skill and that lipreading from video footage is no more than an application of that specialised knowledge. I have no basis on the material before me for concluding the task performed is somehow inherently unreliable.

29    It is unclear to me whether Mr Reedy, who is an Englishman, was one of the four witnesses to which their Lordships referred. I have not had the benefit on receiving on the voir dire any evidence bearing upon an assessment of Mr Reedy’s skills and qualifications (beyond the information provided in the Reedy Report itself). But the main argument of Mr Lehrmann was not focussed on bespoke difficulties with Mr Reedy’s experience in particular, but to difficulties with the lipreading opinion evidence generally. In the end, Mr Reedy can be cross-examined, including as to his individual ability: admissibility is one thing, and weight quite another.

30    I cannot pass from this reference to Mr Reedy being an Englishman without addressing a further argument advanced by Mr Olson, namely that Mr Reedy may struggle to decipher Antipodean speech patterns. It is not self-evident to me that this will be a problem, but the proof of the pudding will be in the eating. Again, this may adequately be tested in cross-examination, and may be relevant to the ultimate weight I can place upon his opinions.

31    The fourth and final argument is distinct from admissibility, and concerns discretionary exclusion pursuant to s 135 of the EA. Section 135 provides as follows:

135    General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a)    be unfairly prejudicial to a party; or

(b)    be misleading or confusing; or

(c)    cause or result in undue waste of time.

32    Mr Olson called in aid all limbs of s 135, but primarily submitted the probative value of the evidence contained in the Reedy Report is substantially outweighed by the danger the evidence may be unfairly prejudicial in circumstances where Mr Lehrmann rejected propositions evidently based upon the Reedy Report under cross-examination: see, for example, T272.34–273.30.

33    Section 135 requires the probative value of the proposed evidence to be weighed against the dangers listed in the provision. The starting point is to form an assessment as to probative value. It is unnecessary to record my reasons in any detail as to probative value for present purposes: it suffices to note that if the opinion evidence is ultimately accepted and given weight, I consider the evidence to have not insubstantial probative value as to the assessment of the credit of Mr Lehrmann (an assessment which is material to the consideration of the justification defence).

34    What then must be recalled is that the dangers must substantially outweigh the probative value of the evidence for it to be excluded: see Stephen Odgers, Uniform Evidence Law (18th ed, Lawbook Co, 2023) (at [135-90]). Hence, I must be positively persuaded exclusion is justified in the circumstances.

35    As to the risk of unfair prejudice, the Australian Law Reform Commission explained in its report Evidence (Interim) (Report 26, 1985) (at 644) that:

By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.

36    It has been said it would be an unusual judge who would admit the possibility of being unfairly prejudiced by evidence: R v BD (1997) 94 A Crim R 131 (at 139 per Hunt CJ at CL); Stephen Odgers, Uniform Evidence Law (3rd ed, LBC Information Services, 1998) (at 443). The “danger” referred to would, of course, have had some greater potential significance in a jury trial. Needless to say, I am confident in my ability, as the trier of fact, to avoid any prejudice and, in the fact-finding process generally, to be able to separate the wheat from the chaff.

37    I am also confident I will not be confused or misled by the evidence (135(b)). Furthermore, the incremental time in dealing with this matter, given the potential relevance of the evidence, could not be described as undue in the circumstances (s 135(c)). For completeness, I note that in exercising the general discretion to exclude evidence, as is evident from the above, I have had regard to all s 192(2) EA matters to the extent relevant.

D    CONCLUSION AND ORDERS

38    For the foregoing reasons, I will allow the Reedy Report to be adduced into evidence.

39    I hasten to add that the mere fact I have allowed this evidence to be adduced says nothing about the weight I ultimately will give to it. This will depend upon the conclusions I draw following the foreshadowed cross-examination of Mr Reedy, among other things. The cogency and relevance of Mr Reedy’s evidence will, in the end, be assessed together with all the other evidence adduced.

Associate:

Dated:    12 December 2023