So, who was leaking the ‘private data’ of Brittany?
Brittany Higgins called out the leaking of “private” contents from her phone for months, taking to social media and other forums to warn of “the dangerous precedent to tolerate a victim’s private data to be weaponised in this manner without any recourse”.
But for nearly a year her complaints fell on deaf ears. As the flood of leaks hit the news stands in the wake of Channel 7’s Spotlight program, few questioned where they came from.
Now that question is centre stage in the Federal Court, where Justice Michael Lee is set to interrogate untested claims that the source was the man she accused of raping her, Bruce Lehrmann – an accusation he denies.
Ex-Spotlight producer Taylor Auerbach claims one of the sources was Mr Lehrmann.
Buried among hundreds of documents annexed to one of Network Ten lawyer Marlia Saunders’ affidavits in the defamation trial is a letter from Higgins’ lawyer, Arnold Bloch Leibler partner Leon Zwier.
He wrote to the acting ACT Director of Public Prosecutions on June 7 last year.
“Our client is suffering from the ongoing publication of her private documents,” Mr Zwier wrote.
“She believes it is part of a deliberate attempt to undermine her credibility.”
Under cross-examination, Mr Lehrmann has previously told the Federal Court he did not give Channel 7 “all information, documents, film, video, photographs, items and assistance reasonably requested” as his contract required but only gave Spotlight an interview. Ms Higgins’ messages had been provided in a brief to Mr Lehrmann and his legal team during the criminal trial, and were also available to the police, the DPP and the Sofronoff Inquiry.
But an extraordinary legal whodunit emerged in the wake of the leak of a six-hour tape of Ten’s Lisa Wilkinson, Ms Higgins, her partner David Sharaz and Ten’s The Project executive producer Angus Llewllyn giving their “unplugged” views on high-profile figures.
It was first broadcast by Channel 7 in June 2023, as part of an interview special with Mr Lehrmann, and includes Ms Wilkinson describing former defence minister Linda Reynolds as “a nobody” and an “idiot”, and saying “who is this f---king woman”.
Separately, thousands of text messages on Ms Higgins’ iPhone have been leaked to Channel 7 and other media outlets.
In the Federal Court in June, Barrister Sue Chrysanthou SC, acting for Ms Wilkinson, and Matt Collins KC, for Network Ten, highlighted a barrage of media stories in preceding days including Ms Higgins’ private texts. They asked for the Federal Court to act to compel Mr Lehrmann to answer questions about whether he was involved in the leaks at a hearing on Thursday before Justice Michael Lee – a request he denied.
“All we seek to do, and it’s relevant to credit and it’s relevant to damages, is ask the applicant (Mr Lehrmann) if he had anything to do with it,’’ Ms Chrysanthou SC said. “That’s the purpose of the interrogatories.
“Someone is engaging in a concerted campaign to produce misleading material to the media in order to impugn the respondents and witnesses that the respondents could call in the defence to these proceedings in November.’’
But Matthew Richardson SC told the court Mr Lehrmann was not involved and Network 10 had “no idea” who was leaking the material.
“In correspondence last night, and in the written submissions provided to your honour, the allegation was made, it was the obvious inference that my client had provided materials to Channel 7 even in breach of his Harman obligations. He absolutely denies that.”
Justice Lee ultimately declined to order the interrogatories in the form proposed.
The trial of Mr Lehrmann was discontinued in December 2022 after juror misconduct, and the sexual assault charges against him were later dropped by the Director of Public Prosecutions. Mr Lehrmann pleaded not guilty in the trial and has always maintained his innocence.
Brittany Higgins has continued to raise the issue, writing on Twitter last year after another article that “this is the third time private images, texts and WhatsApps from my phone have been published”.
“I voluntarily provided this material to the police to help them form the brief of evidence and none of it was tabled in court. Therefore, no journalist should have seen the photo of my diary,’’ she said.
And this. “Reminder – this is my phone data I provided to the AFP to prosecute my rape case,’’ she tweeted in June, 2023.
“None of it was tabled in court. And now, it continues to be leaked to the media without my consent.”
She said that the leaks represented “such a dangerous precedent to tolerate an (alleged) victim’s private data to be weaponised in this manner without any recourse”.
Soon, Justice Lee will rule on the substantive issue in the defamation trial. We don’t yet know the ending of this story.
But it’s fair to assume he will offer sharp criticisms of Bruce Lehrmann, Brittany Higgins and Network 10.
So often, commentators like to argue that nothing good has come from this “mess”.
But along the way it’s taught us so much about how rape trials are conducted in Australia, the culture of Parliament House and, yes, how the sausage is made at Channel 7.
It is a reminder of Immanuel Kant’s powerful observation that the truth, eventually, will out.