Federal Court of Australia Lehrmann v Network Ten Pty Limited (Cross-Examination) (No 2) [2023] FCA 1520 File number: NSD 103 of 2023 Judgment of: LEE J Date of judgment: 5 December 2023 Catchwords: EVIDENCE – relevance objection to question asked of witness under cross-examination – admissibility of credibility evidence proposed to be adduced in cross-examination – whether evidence proposed to be adduced could substantially affect the assessment of the credibility of the witness pursuant to s 103(1) of the Evidence Act 1995 (Cth) – direction given that question be allowed Legislation: Evidence Act 1995 (Cth) Pt 3.7 Div 2, ss 41, 55, 55(1), 55(2)(a), 102, 103, 103(1) Evidence Amendment Act 2008 (Cth) s 3, sch 1, item 46 Cases cited: Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 R v Beattie (1996) 40 NSWLR 155 R v El-Azzi [2004] NSWCCA 455 R v Medich (No 34) [2018] NSWSC 281 R v RPS (unreported, NSW Court of Criminal Appeal, 13 August 1997) R v Slack [2003] NSWCCA 93; (2003) 139 A Crim R 314 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 22 Date of hearing: 5 December 2023 Counsel for the Applicant: Mr S Whybrow SC and Mr M Richardson SC with Mr N Olson and Mr D Helvadjian Solicitor for the Applicant: Mark O'Brien Legal Counsel for the First Respondent: Dr M Collins KC with Mr T Senior Solicitor for the First Respondent: Thomson Geer Lawyers Counsel for the Second Respondent: Ms S Chrysanthou SC with Mr B Dean Solicitor for the Second Respondent: Gillis Delaney Lawyers ORDERS NSD 103 of 2023 BETWEEN: BRUCE LEHRMANN Applicant AND: NETWORK TEN PTY LIMITED ACN 052 515 250 First Respondent LISA WILKINSON Second Respondent order made by: LEE J DATE OF ORDER: 5 DECEMBER 2023 THE COURT DIRECTS THAT: 1. The question put to Ms Higgins in relation to a speech made by Ms Higgins on the steps of the Supreme Court of the Australian Capital Territory on 27 October 2022 immediately following the discharge of the jury in the criminal case brought against Mr Lehrmann and the setting of a new trial date (being the question the subject of the objection of the respondents) be allowed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (delivered ex tempore) LEE J: I THE ISSUE 1 A relevance objection has been raised by senior counsel for Ms Wilkinson, Ms Chrysanthou SC, and joined in by senior counsel for Network Ten, Dr Collins KC, to a question put in cross-examination to Ms Higgins, the first witness called by the respondents in pursuit of their substantial truth defence. 2 The question relates to representations made by Ms Higgins on the steps of the Supreme Court of the Australian Capital Territory on 27 October 2022, immediately following the discharge of the jury for juror misconduct in the criminal case brought against Mr Lehrmann and the setting of a new trial date by the Chief Justice of that Court. 3 Senior counsel for Mr Lehrmann, Mr Whybrow SC, explained the question was the first in a series of questions on the same (or a similar) topic by which he seeks to impugn Ms Higgins' credibility. He explained, in the absence of the witness, that the ultimate proposition he sought to put was that Ms Higgins made false representations in furtherance of a course of conduct directed to ensuring the rape allegation made by her against Mr Lehrmann was tested in civil proceedings, rather than in a further criminal trial. As I understand it, Mr Whybrow seeks to put to Ms Higgins that her conduct in derailing a retrial reflected a consciousness on Ms Higgins' part, first expressed in her initial meeting with Ms Wilkinson and a producer of The Project, Mr Angus Llewellyn (also attended by Ms Higgins' fiancé, Mr David Sharaz) (meeting), "that she thought she would be okay [in sustaining her allegation of rape] on the balance of probabilities but not beyond a reasonable doubt": T882.29–40. 4 The Court received the following material on the voir dire, which Mr Whybrow proposes to take Ms Higgins to if cross-examination is allowed: a video of the speech; an excerpt of an audio recording of the meeting; social media posts by Ms Higgins in which she is said to allude to potential defamation action by Mr Lehrmann; and three news reports, one embedding a video of the then Australian Capital Territory Director of Public Prosecutions (DPP) explaining the decision to abandon the case against Mr Lehrmann on 2 December 2022, and two reporting Mr Lehrmann was considering defamation action in early December 2022. It is unnecessary to canvass this material in any detail save as to note that (to the extent relevant), it demonstrates representations were made by Ms Higgins relevant to her availability as a witness in the context of the termination of the criminal case and prior to the commencement of defamation proceedings. 5 I also took the step of seeking express confirmation from Mr Whybrow that on the material presently in his possession, he considers he has a reasonable basis to put the proposition that Ms Higgins made a series of false representations in an attempt to avoid a further criminal trial and procure what she perceived was a more favourable forum for the adjudication of the truth of her allegations of rape: T879.46–880.1. Mr Whybrow confirmed that he considered he had such a basis. II RULING 6 In considering a relevance objection, the starting point, of course, is s 55 of the Evidence Act 1995 (Cth) (EA). It is trite that evidence is not irrelevant only because it relates to the credibility of a witness (s 55(2)(a)). 7 Section 102 of the EA provides that credibility evidence about a witness is inadmissible, subject to the exceptions in Pt 3.7 Div 2. Relevantly, s 103 provides as follows: 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred. 8 As noted above, although the objection was perforce addressed to one question, and the present ruling is determinative of that objection, all parties sensibly proceeded on the basis that it was worth obtaining a general "ruling" on what might be described as the topic proposed to be explored by Mr Whybrow to stop further interruption of the cross-examination. 9 Hence, the relevant question for present purposes is whether the evidence proposed to be sought to be adduced by Mr Lehrmann in cross-examination is admissible on the basis it "could substantially affect the assessment of the credibility" of Ms Higgins pursuant to s 103(1) of the EA. 10 The current formulation of s 103 took effect in January 2009: see s 3 and sch 1, item 46 of the Evidence Amendment Act 2008 (Cth). 11 The previous iteration of s 103(1) had provided that the credibility rule did not apply to evidence adduced in cross-examination where "the evidence has substantial probative value." The section was amended in order to give effect to the definition given by courts to "substantive probative value", captured by Hunt CJ at CL (with whom Gleeson CJ and Hidden J agreed) in R v RPS (unreported, NSW Court of Criminal Appeal, 13 August 1997) (see also Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 (at 71–72 [86] per Sackville J, with whom Whitlam and Mansfield JJ agreed)): Section 103 of the Evidence Act limits cross-examination as to credit to adducing evidence which has 'substantial probative value'. The 'probative value' of evidence is defined in the s 3 Dictionary as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue', but both the context in which that phrase appears and the subject matter of s 103 indicate that that definition does not apply. That is made clear by the terms of subs (2), which demonstrate that the evidence must have probative value in relation to the credit of the witness. Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness. Such an interpretation accords with the intention of the Law Reform Commission. The addition of the word 'substantial' nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue. That limitation is an important one. (Citations omitted; emphasis added). 12 Hence three matters may be immediately observed as to s 103(1): first, the admissibility assessment is not directed to whether the evidence is itself substantially probative as to the evaluation of the existence of a fact in issue (contrary to some oral submissions made on behalf of the respondents); secondly, the word "substantially" must be given content; and thirdly, the use of the word "could" (not "would" or "must") is important – its use demonstrates that the admissibility assessment is directed to the capacity of the evidence substantially to affect the witness' credibility, and not to the question of whether such credibility is, in fact, substantially affected: see R v Medich (No 34) [2018] NSWSC 281 (at [12] per Bellew J). Connected to this capacity point is the notion that the issue must be resolved on the assumption that the witness will respond affirmatively to the questions asked (that is, unfavourably to the apparent credit of the witness): see R v Beattie (1996) 40 NSWLR 155 (at 163 per James J, with whom Grove J and Hamilton AJ agreed). 13 Having noted this, for evidence to have a substantial effect on the credibility of a witness, it must have the potential to have a "real" or "significant" bearing on the assessment of the witness' credibility, particularly in relation to the evidence the witness has given: R v El-Azzi [2004] NSWCCA 455 (at [183] per Simpson J). It must be directed to whether the oath of the witness is to be believed: R v Slack [2003] NSWCCA 93; (2003) 139 A Crim R 314 (at 323–324 [31]–[35] per Sheller JA, with whom Wood CJ at CL and Smart AJ agreed). 14 It goes without saying that if admitted or established, lies told by a witness, particularly in support of so serious a topic as the witness' capacity to give evidence in a criminal trial, have the capacity to affect the ability of the Court to assess whether the witness is to be believed. If established, it is the fact of the making the false representations on a serious topic that is material to credit. 15 In the present case, this credit attack might commence by confronting the witness and securing her consent to one or a series of propositions as to the making of representations which, on their face, may be equally explicable by reference to different and benign motives. 16 The respondents submitted "an immediate and obvious problem" with the proposed questions is a "disconnect" between any representations about Ms Higgins' health as disclosed in the medical reports provided to the DPP (which, it was asserted by the DPP, caused a decision to be made not to pursue a retrial) and any statements made by Ms Higgins about her own health and ability to proceed: T884.5–11. It is also said "it is unclear how far" a proposition Ms Higgins "somehow misled and fooled the authors of the medical reports and the DPP" could properly be advanced. 17 But even if I was to accept the respondents' assertion that it is unlikely I will be persuaded Ms Higgins made any false representation in furtherance of the suggested motive, or any false representation materially contributed to the DPP's decision, one should not be too ready to stop cross-examination as to credit. The focus is on the suggestion the witness lied on a serious topic. Mr Whybrow is an experienced member of the inner bar, aware of the limits of proper cross-examination, and I ought not presume to know what is in counsel's brief. Further, as was said in R v Beattie (at 163 per James J, with whom Grove J and Hamilton AJ agreed), "the fact that the witness might [be] unlikely to make any such admission d[oes] not affect the admissibility of the questions". 18 A further point was made by the respondents that went beyond a relevance objection. The cross-examination of the current witness is about to continue for a third full day. It is anticipated the length of the cross-examination will exceed that of the applicant when it is completed. Objections have been raised as to the repetitiveness of the questioning, and it is said Mr Whybrow is not entitled to "endlessly cross-examine on every (apparent) credit point he has conceived". 19 In response to this submission, it suffices at present to note four matters. First, I have been cognisant during the cross-examination of all witnesses of the stress it is likely to occasion and have encouraged breaks to be taken where necessary. Secondly, and in response to objections raised, I have been conscious to move the cross-examination along where I consider it is becoming repetitive. It also should be noted it was the Court that first raised the issue of repetitive questioning and s 41 of the EA: T771.34–35. Thirdly, and connected to the last point, one must keep in mind, however, that the length of cross-examination is affected by the way in which a witness answers questions (that is, non-responsive answers cause necessary repetition until a direct response is procured). Fourthly, I have been and remain aware of my duty to prevent the process of cross-examination becoming oppressive which, in the light of the terms of s 41 of the EA, goes beyond the Court merely responding to objections made by the respondents and extends to ensuring improper cross-examination is disallowed. Indeed, the mandatory duty of the Court under s 41 is brought into sharp focus in a case such as this, which presents challenges as to subject matter (especially for this witness) and public scrutiny of the witnesses. 20 To adapt a comment I made earlier in this case, the Tigris and Euphrates of the truth defence is a sharp contest of credit between two people over what happened behind closed doors. Just like Dr Collins, Mr Whybrow is entitled to seek to impugn the credibility of the witness he is cross-examining within proper limits. Although it is fair to say it has not moved along at the speed of summer lightning, this is not entirely due to the mode of questioning adopted by the cross-examiner, and I do not consider the cross-examination has strayed beyond proper limits. 21 While the respondents are strictly correct in pointing to the logical distance between ex post facto representations as to the availability of Ms Higgins to give evidence and the detailed and competing accounts given as to what occurred early one Saturday morning, this is not the relevant admissibility test. The line of questioning proposed based on alleged previous false representations made for an allegedly malign purpose has the capacity to procure evidence substantially relevant to the assessment of Ms Higgins' credit. I propose to permit it, at least until Ms Higgins' answers demonstrate to my satisfaction that no evidence of substantial probative value as to credit will emerge. Of course, nothing about this ruling prevents the respondents later objecting if they consider the questioning on this topic, as it is conducted, becomes oppressive or otherwise offends s 41 of the EA. 22 To clear up any confusion, it may be worth noting that the limits I imposed on Ms Chrysanthou engaging in a "tag team" cross-examination of Mr Lehrmann do not, of course, have anything to do with Ms Wilkinson's right, through her senior counsel, to object to questions being asked of witnesses called in the case of the respondents. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate: Dated: 5 December 2023