Federal Court of Australia Lehrmann v Network Ten Pty Limited (Expert Evidence) (No 2) [2023] FCA 1647 File number: NSD 103 of 2023 Judgment of: LEE J Date of judgment: 19 December 2023 Date of publication of reasons: 20 December 2023 Catchwords: EVIDENCE – whether lipreading evidence tendered on the voir dire should be permitted to be tendered in the trial – where lipreader assisted by "lipspeaker" in witness box – distinction between admissibility of evidence and weight to be given to evidence – evidence on voir dire admitted in trial Legislation: Evidence Act 1995 (Cth) ss 11(1), 31(3), 79, 135, 192(2) Cases cited: Australian Securities and Investments Commission v Rich [2004] NSWSC 1062; (2004) 213 ALR 338 BrisConnections Finance Pty Ltd v Arup Pty Ltd [2017] FCA 1268; (2017) 252 FCR 450 Brown v Commissioner of Taxation [2002] FCA 318; (2002) 119 FCR 269 Casley-Smith v F S Evans & Sons Pty Ltd (No 2) (1988) 49 SASR 332 Ex parte Whitelock; Re Mackenzie [1971] 2 NSWLR 534 Lehrmann v Network Ten Pty Limited (Expert Evidence) [2023] FCA 1577 R v Amo [1963] P & NGLR 22 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 18 Date of hearing: 19 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 RULING 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: 19 DECEMBER 2023 THE COURT RULES THAT: 1. The lipspeaking evidence adduced on the voir dire be admitted as evidence in the trial. 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 In Lehrmann v Network Ten Pty Limited (Expert Evidence) [2023] FCA 1577, I gave reasons for a ruling made on 8 December 2023 that Network Ten Pty Limited (Network Ten) be permitted to adduce into evidence the report entitled, "Lip Read Transcription Of Soundless Recorded Speech", prepared by Mr Tim Reedy, a "forensic lipreader" (Reedy Report). 2 Following the delivery of those reasons, it was disclosed to the Court that if Mr Reedy was to give evidence, it would be necessary for him to be assisted by a qualified "lipspeaker". It was proposed a lipspeaker stand in eyeshot of Mr Reedy, so that Mr Reedy could look at the lipspeaker while the lipspeaker repeated words said in real time and identified the person speaking by gesturing towards them. 3 I should pause here to note Network Ten initially made an application for Mr Reedy to give evidence remotely. What has occurred this afternoon has fortified my view that acceding to such an application would have been inappropriate. The experience of being in the same room and seeing Mr Reedy give evidence with the assistance of a lipspeaker, Ms Eileen Church, has been instructive and important in assessing his evidence. 4 On my own motion, I considered that notwithstanding my earlier ruling, Mr Reedy should give evidence on the voir dire. Given my previous ruling was made without it being drawn to my attention that Mr Reedy would require the assistance of a lipspeaker, I exercised a discretion not to exclude otherwise admissible evidence on the grounds set out in s 135 of the Evidence Act 1995 (Cth) (EA) on incomplete facts. I could not exclude the possibility that this fact may be material to the assessment of the probative value of his evidence (an assessment required to be undertaken in the course of licitly exercising the discretion). 5 Mr Reedy gave an affirmation and using my powers under ss 11(1) and 31(3) of the EA, I also arranged for the administration of an affirmation by the lipspeaker (in much the same way as one would swear or affirm an interpreter). Two reports prepared by Mr Reedy were tendered and evidence was adduced in chief about the role of the lipspeaker. Mr Reedy was then cross-examined. 6 At the conclusion of the evidence given on the voir dire, senior counsel for Network Ten, Dr Collins KC, sought to tender the evidence on the voir dire as evidence in the trial. This was because I made it plain that it was necessary for the evidence on the voir dire to be re-tendered in the trial if reference is later to be made to it in determining the substantive facts in issue. 7 Although, as I explained in BrisConnections Finance Pty Ltd v Arup Pty Ltd [2017] FCA 1268; (2017) 252 FCR 450 (at 469 [73]), the view has been expressed that evidence given on the voir dire in a civil case heard by a judge alone may be taken into account on the issues arising at the trial itself (see R v Amo [1963] P & NGLR 22 (per Mann CJ); Ex parte Whitelock; Re Mackenzie [1971] 2 NSWLR 534 (at 540 per Meares J) and Casley-Smith v F S Evans & Sons Pty Ltd (No 2) (1988) 49 SASR 332 (at 335 per Olsson J)), at the very least, this position is not entirely settled: see the Full Court's observations in Brown v Commissioner of Taxation [2002] FCA 318; (2002) 119 FCR 269 (at 291–292 [92] per Sackville and Finn JJ) and Australian Securities and Investments Commission v Rich [2004] NSWSC 1062; (2004) 213 ALR 338 (at 341–345 [23]–[49] per Austin J). Indeed, I consider the correct view, given the terms and structure of the EA, is that unless the voir dire evidence is tendered in a judge alone trial, it is not admitted into evidence in the substantive hearing (and hence there is no difference to the position where the triers of fact are a jury). 8 In any event, the tender was opposed by senior counsel for Mr Lehrmann, Mr Whybrow SC. Importantly, that objection was an "all or nothing" argument; if the evidence was admitted, it was not submitted a specific limitation should be placed upon any part of it, or that it should be received only in part. 9 While Mr Whybrow did not refer to s 135 of the EA and solely focussed his submissions on admissibility pursuant to s 79 of the EA, in reality, given the previous argument, I took it that Mr Whybrow's submissions went both to questions of admissibility and discretionary exclusion. 10 Mr Whybrow called in aid four matters: first, that lipreading is an inexact science; secondly, that this was Mr Reedy's first experience of giving evidence before a court; thirdly, that there is a want of research undertaken by Mr Reedy or the application of bespoke technology to produce his opinions; and fourthly, there is said to be no way of objectively verifying Mr Reedy's opinions. It is said that taken together, the foregoing matters occasion unfairness upon Mr Lehrmann, as he is unable meaningfully to interrogate the evidence given. 11 It is appropriate to deal at the outset with what was, initially, of concern: that the reliability of the lipreading evidence would be materially affected by the fact Mr Reedy required the assistance of Ms Church in giving his viva voce evidence. This concern was assuaged by the experience of observing the dynamic between Mr Reedy and Ms Church. It became clear that forensic lipreading, and the skills associated with the task, differ substantially from the skill of capturing all that is said in a courtroom environment, in real time, particularly when there are numerous interlocutors to the lipreader located in different parts of the room. 12 Ms Church was able to provide easy to follow, relayed speech for the benefit of Mr Reedy, in real time. While I have no doubt Mr Reedy would have been able to pick up on what was conveyed to him without the assistance of Ms Church, the process would have been cumbrous, lengthy, and somewhat disjointed. This is particularly important because Mr Reedy is, of course, profoundly deaf and it would not be possible for him to ascertain who was speaking to him if the person was beyond his ken. 13 I will turn now to the matters raised by Mr Whybrow, which can be dealt with briefly. 14 As to the first, I accept lipreading is not an inherently precise science. But the admissibility of expert evidence does not depend upon establishing a level of absolute precision in an area of specialised knowledge, and it would be erroneous to adopt a counsel of perfection. One must take areas of specialised knowledge as one finds them. The weight and eventual probative value of the evidence, or parts of the evidence, is quite another thing. Mr Reedy was quite frank about those aspects of the relevant CCTV footage where he could provide some exactitude, and others where he was less certain of what was being said. 15 The second and third matters are best dealt with together. I understand Mr Reedy has not given evidence before. Today would have been a novel experience for him, as it has been for all those present in the court room. There is, however, a first time for everything. I am satisfied Mr Reedy is someone who has had an extensive career in forensic lipreading since 2010, and the Reedy Report is the product of the practices developed by Mr Reedy over time in applying his specialised knowledge acquired through his experience. He gave further evidence of those practices today. 16 Fourthly, there is merit in Mr Whybrow's objection that there is no established criterion or criteria against which Mr Reedy's skills are to be judged. At the risk of repetition, however, this is not fatal to admissibility under s 79 of the EA. For the reasons explained in Lehrmann v Network Ten Pty Limited (Expert Evidence), I have determined the Reedy Report is admissible. The real question at this stage is whether I should exercise my general discretion to exclude the evidence pursuant to s 135 of the EA. This requires me to assess the probative value of the evidence, and then ascertain whether it is substantially outweighed by the danger that the evidence might, relevantly, be unfairly prejudicial to a party, or misleading or confusing (while having regard to the factors in s 192(2) of the EA). 17 In the end, the cross-examination and the arguments raised by Mr Whybrow are matters which will need to be considered carefully when I assess the weight of the evidence, including my personal observations and assessments of the interactions captured by the relevant CCTV footage. 18 Accordingly, I accept the tender of the Reedy Report, the draft report and accompanying testamentary material on the voir dire and admit it as evidence in the trial. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate: Dated: 20 December 2023