Bruce Lehrmann’s defamation lawsuit against Channel 10 and Lisa Wilkinson will be decided by a judge and not a jury after the Federal Court found there was the risk of prejudice due to the amount of publicity surrounding the case.
Mr Lehrmann is suing Network 10, journalist Ms Wilkinson and the ABC for defamation over their reporting of a sexual assault allegation made by Brittany Higgins in 2019.
Mr Lehrmann has alleged that Wilkinson’s interview with Ms Higgins, which was broadcast on February 15, 2021, conveyed a series of defamatory meanings, including that he raped Ms Higgins in then defence industry minister Linda Reynolds’ office in 2019.
In their defence filed with the Federal Court, Ten said it would rely on defences of truth and qualified privilege.
Mr Lehrmann stood trial in the ACT Supreme Court last year after pleading not guilty to sexually assaulting Ms Higgins, but the trial was aborted due to juror misconduct.
The charges were subsequently dropped by the Director of Public Prosecutions and Mr Lehrmann has continued to deny the allegation.
Justice Michael Lee on Friday morning ruled that the Channel 10 trial should be decided by a jury rather than a judge.
“Even in recent days there has been further extensive television and newspaper publicity about events which are at the heart of the truth defence,” Justice Lee said.
“Again, although in ordinary experience, jurors followed directions, this is not always the case. Mr Lehmann’s own criminal trial is a stark example.
“I’m not confident, in the circumstances, the trial of the Network 10 matter proceeding by jury could be conducted without an appreciable risk of prejudice.”
Justice Lee said recent stories about the matter were “singular” and “compelling” reasons for the matter to proceed by a trial in front of a judge.
Justice Lee noted publicity surrounding the matter as a result of the Sofronoff inquiry.
In his first recorded interview with Channel 7’s Spotlight on Sunday, Mr Lehrmann denied raping his former colleague.
Wilkinson has retained her own legal team led by high-profile defamation barrister Sue Chrysanthou SC and has previously filed her defence.
Mr Lehrmann in May dropped defamation action against News Life Media and news.com.au journalist Samantha Maiden after a notice of discontinuance was filed with the Federal Court.
The other defendants remain in the case.
Justice Michael Lee in April ruled that Mr Lehrmann would be allowed to file the lawsuit outside the one-year deadline.
The defamation lawsuits against the ABC and Network 10 remain active after Justice Lee granted the extension of time.
In April, Mr Lehrmann filed documents revealing he is suing the ABC over its live broadcast of Ms Higgins’ address to the National Press Club on February 9, 2022.
He claims broadcasting the address implied he had raped Ms Higgins on a couch at Parliament House in March 2019. He was not named in the speech.
On Friday, in answer to a subpoena, the ACT Director of Public Prosecutions handed over its full brief of evidence to the parties.
As well, Ms Chrysanthou attacked recent media coverage of the matter, describing it as “overwhelming” and “inappropriate”.
She said it could potentially influence witnesses not to give evidence during the trial.
During the Spotlight program, an excerpt of audiotapes of a meeting between Wilkinson, Channel 10 producer Angus Llewellyn, Ms Higgins and her boyfriend David Sharaz were aired.
Portions were also played on Sky News, with Ms Chrysanthou describing them as a “concerted campaign” to impugn Wilkinson and potential witnesses ahead of a trial in November.
“We have concerns that witnesses won’t come,” Ms Chrysanthou said.
She asked Justice Lee to allow her clint to issue interrogatories so that she could ask Mr Lehrmann whether the material, which was not played during the ACT Supreme Court trial, was leaked by him or someone acting on his behalf.
Mr Lehrmann’s barrister Matthew Richardson SC told the court that his client “absolutely denies that”.
“They have no idea, they are fishing around in the dark,” he said, adding there was a significant pool of people who could have provided the material to the media.
Justice Lee refused to make the orders sought, saying he was not going to conduct a “royal commission” into the matter.
“It seems to me that properly analysed, the interrogatories at the moment are sought to be used for fishing,” Justice Lee said.