Federal Court of Australia

Lehrmann v Network Ten Pty Limited (Covert Recording) [2023] FCA 1586

ORDERS

THE COURT RULES THAT:

1.    The covert recordings made by Ms Brittany Higgins of:

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

REASONS FOR RULING

(delivered ex tempore, revised from the transcript)

LEE J:

1    During the cross-examination of Ms Brittany Higgins almost two weeks ago, counsel for Mr Bruce Lehrmann, Mr Whybrow SC, sought to play an audio recording of a conversation between Senator Michaelia Cash, Ms Higgins and the Senator’s chief of staff, Mr Daniel Try, on 5 February 2021. It is common ground that the recording was made by Ms Higgins after she had started engaging with Network Ten Pty Limited (Network Ten) to make allegations of rape and obstruction. It is also uncontroversial that it was made secretly and hence without the consent of the other participants.

2    When the tender was proposed, I asked whether the recording was a “covert recording of a telephone … conversation”: T854.18–19. Mr Whybrow confirmed that it was. Discussion then took place as to whether the adduction into evidence of the recording and the playing of the recording could contravene the Listening Devices Act 1992 (ACT) (Listening Devices Act). I directed the parties to reflect upon the matter before making any ruling. It was initially thought the issue may go away (as consent to the tender may be able to be obtained from all participants to the conversation), but for reasons unnecessary to detail, this has not occurred.

3    Today, the issue resurfaced, and it is necessary it be resolved with celerity. The current witness under cross-examination, Mr Angus Llewellyn, has been taken to a series of messages he exchanged with Mr David Sharaz, Ms Higgins’ fiancé, in early 2021. It appears Mr Sharaz sent Mr Llewellyn another covert recording of a telephone conversation between Mr Try and Ms Higgins on 28 January 2021, made by Ms Higgins (first conversation). I will refer to the conversation on 5 February 2021 as the second conversation.

4    Mr Whybrow seeks to play both recordings in open Court, cross-examine upon them, and then tender them in Mr Lehrmann’s case. Senior counsel for Network Ten, Dr Collins KC, has raised with me his concern as to the prohibition in s 10 of the Listening Devices Act, which is in the following terms:

10    Admissibility of evidence obtained using listening devices

(1)    If a private conversation, or a report of a private conversation, has come to the knowledge of a person as a result (direct or indirect) of the use of a listening device in contravention of section 4, or as a result (direct or indirect) of the use of a listening device in circumstances referred to in section 4 (2) (b) or 4 (3)—

(a)    evidence of the conversation; or

(b)    evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person;

may not be given by that person in any civil or criminal proceedings.

(2)    Subsection (1) does not apply—

(a)    if each principal party to the conversation consents to the evidence being given; or

(b)    in proceedings for an offence against this Act; or

(c)    if the listening device was used in the circumstances referred to in section 4 (3) (b) (i)—so as to render any evidence inadmissible for the purpose of protecting the lawful interests of the principal party to the conversation who consented to the use of the device; or

(d)    in proceedings for a defined offence if, subject to subsection (4), a court considers that the evidence should be admitted; or

(e)    if the person referred to in subsection (1) also obtains knowledge of the conversation or report in circumstances other than those referred to in that subsection.

(3)    Subsection (2) (c) does not apply so as to render admissible evidence that has been obtained, directly or indirectly, by the use of a listening device by or on behalf of the Territory.

(4)    In determining whether to admit evidence referred to in subsection (1) in proceedings for a defined offence, the court shall—

(a)    be guided by the public interest, including (if relevant) the public interest in—

(i)    upholding the law; and

(ii)    protecting people from illegal or unfair treatment; and

(iii)    punishing those guilty of offences; and

(b)    have regard to all relevant matters, including—

(i)    the seriousness of the offence in relation to which the evidence is sought to be admitted; and

(ii)    the nature of the relevant contravention of section 4, or of the relevant circumstances referred to in section 4 (2) (b) or 4 (3).

(5)    A court before which evidence referred to in subsection (1) is admitted in proceedings for an offence against this Act, or proceedings for a defined offence, may, at any stage of the proceedings, and from time to time, make an order forbidding the publication of—

(a)    any such evidence; or

(b)    any report of any such evidence; or

(c)    any report of the substance, meaning or purport of any such evidence.

(6)    A person must not engage in conduct that contravenes an order under subsection (5).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

5    I propose to allow the tender of the recordings and permit them to be played in open Court. I have reached the firm conclusion that s 10 is not “picked up” in this federal matter under s 79 of the Judiciary Act 1903 (Cth) (Judiciary Act). In explaining my conclusion, it is necessary briefly to revisit some fundamental principles as to the operation of federal jurisdiction.

6    The “matter” (that is, the justiciable controversy) presently before the Court is wholly within federal jurisdiction. It is trite there is no concurrent federal and territory jurisdiction being exercised.

7    The proceeding is also within the subject matter jurisdiction of this Court because (without seeking to be exhaustive) s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) has the effect of conferring upon this Court original jurisdiction over a proceeding that would fall within the jurisdiction of the Supreme Court of the Australian Capital Territory or the Supreme Court of the Northern Territory: Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451 (at 458 [35], 460 [45] per Robertson J, with whom Bennett and Perram JJ agreed). There is no issue in this proceeding as to whether the relevant publications were published in the Territories.

8    Accordingly, in quelling this controversy in federal jurisdiction, this Court is required to apply the statutory law of the Commonwealth, any “surrogate” federal law picked up by s 79 of the Judiciary Act (in this case, any applicable state and territory laws), and the common law of Australia. For completeness, it is well to set out s 79(1), which provides that:

[t]he laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

9    As a member of the Full Court in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336 (at 413–416 [326]–[338]), I set out in some detail the principles concerning state and territory laws and the exercise of federal jurisdiction. Justices Rares and Wigney agreed with me. I do not propose to repeat that analysis for present purposes.

10    It suffices to note, as I explained in Herron v HarperCollins (at 416 [338]), three matters which may be said to be foundational. First, state and territory Parliaments lack the power to regulate the exercise of federal jurisdiction or command a federal court in the exercise of its jurisdiction. Secondly, in determining whether a state or territory law purports to regulate the issue of federal jurisdiction, it is relevant to ask whether the impugned law operates independently of anything done by a court. Thirdly, the categories of laws identified in s 79(1) of the Judiciary Act, such as whether a law is a law of evidence, are of assistance in identifying whether a state or territory law purports to regulate the exercise of federal jurisdiction.

11    As a starting point, the relevant question is whether, if picked up, s 10 of the Listening Devices Act purports to regulate the exercise of federal jurisdiction. The simple answer is it does, as is evident from the text of the provision, which concerns the admissibility of evidence of the conversation or of evidence obtained as a direct consequence of the conversation coming to the knowledge of a person giving evidence.

12    The question then arises: does the Constitution or a law of the Commonwealth “otherwise provide” within the meaning of s 79(1) of the Judiciary Act? Again, in Herron v HarperCollins (at 418–420 [347]–[364]), I set out the proper approach to this analysis.

13    Put simply, s 10 of the Listening Devices Act is directly and logically inconsistent with s 56(1) of the Evidence Act 1995 (Cth) (EA). So much is evident from the terms of ss 55 and 56 of the EA, taken together, which provide as follows:

55    Relevant evidence

(1)    The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)    In particular, evidence is not taken to be irrelevant only because it relates only to:

(a)    the credibility of a witness; or

(b)    the admissibility of other evidence; or

(c)    a failure to adduce evidence.

56    Relevant evidence to be admissible

(1)    Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)    Evidence that is not relevant in the proceeding is not admissible.

14    There is no dispute about relevance and the applicable law of the Commonwealth says that the two recordings (or, more accurately, the representations contained in the two recordings) are admissible because the representations contained in them could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. Section 10, if applicable, would, among other things, deal with issues of admissibility and use differently from the applicable law of the Commonwealth.

15    Therefore, s 10 of the Listening Devices Act is deprived of any direct operation in this Court, as a federal court exercising the judicial power of the Commonwealth by reason of the general incapacity of a territory law to affect the exercise of federal jurisdiction. As I reflected in Herron v HarperCollins (at 422 [373]), “[i]t is only via s 79(1) of the Judiciary Act (and as federal law)” that a provision such as s 10 of the Listening Devices Act can be given any operation in federal jurisdiction; “[i]f a Commonwealth law has otherwise provided, that is the end of the matter.”

16    I will, therefore, admit the recordings, subject to a qualification upon their use.

17    In the conversations, as one might expect, representations are made by Senator Cash and Mr Try, neither of whom, as I understand it, are to be called as witnesses in this proceeding. Ms Chrysanthou SC, who appears for Ms Lisa Wilkinson, submits that admitting this evidence as evidence of the underlying truth of the representations made by Senator Cash and Mr Try, in circumstances where they cannot be tested, may visit an unfairness on Ms Wilkinson.

18    As I understand the position, Mr Whybrow (who has carriage of the substantial truth defence for Mr Lehrmann and is not in Court at present) wishes to tender the recordings “in relation to the credit of Ms Higgins”. It is not in dispute that they are relevant for that very generally expressed purpose.

19    In these circumstances, it is appropriate to make a limitation under s 136 of the EA that insofar as the recordings contain representations of Senator Cash and Mr Try, the use of the evidence be limited such that the recordings are not evidence of the underlying truth of the representations made by Senator Cash and Mr Try.

20    I am conscious that Mr Whybrow is not here as I deliver these ex tempore reasons. In the event I have misapprehended his position, he may raise the matter again in open Court.

21    Accordingly, I admit the recordings of the first and second conversations and make the limitation on use identified.

22    Since the delivery of my reasons orally yesterday afternoon, and publication of my revised reasons this morning, cross-examination of Mr Llewellyn has taken place on the recordings, and it has occurred to me it is necessary to be far more specific as to the metes and bounds of the s 136 limitation. This is important for several reasons including that it has now become apparent that the current witness listened to both the recordings prior to the publication of the impugned matters. Some of the representations made are clearly relevant to assessing Mr Llewellyn’s state of mind (to the extent that state of mind, actual and attributed, bears upon the evaluation of the qualified privilege defence).

23    I went some way yesterday afternoon in clarifying, on the transcript, the s 136 limitation, but it is worth making the position even clearer in these reasons so there is no ambiguity.

24    The representations of Senator Cash and Mr Try in the recordings can be used only as evidence of: (a) the making of the representations; (b) the fact they were made in a convert recording (and hence the objective likelihood the representations were, or were not, made candidly); and (c) their objectively assessed consistency (or otherwise) with any other representations said to have been made by Senator Cash and Mr Try to Ms Higgins at an earlier time and assessing the likelihood any such earlier representations were made in the terms alleged by Ms Higgins (both at the time of the making of the convert recordings and now). They may also be used in the Court’s assessment of whether to accept the evidence given by Ms Higgins as her subjective views as to the motivation for, and truth of, the representations made in the recordings by Senator Cash and Mr Try, and more generally, as to the overall credit of Ms Higgins as a witness.

25    Given the greater specificity in these reasons, I will give any party liberty to address me today on any variation to the s 136 limitation (as detailed in [24] above) in the event they wish to be heard.

Associate:

Dated:    13 December 2023