Lehrmann v Network Ten Pty Limited

1. The first respondent be permitted to adduce into evidence the report entitled, "Lip Read Transcription Of Soundless Recorded Speech", prepared by Mr Tim Reedy on 19 November 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(delivered ex tempore, revised from the transcript)

A INTRODUCTION AND BACKGROUND 1 The first respondent, Network Ten Pty Limited (Network Ten), wishes to call in its case Mr Tim Reedy, who describes himself as a "forensic lipreader". 2 Mr Reedy was engaged by Network Ten to prepare a transcript of words exchanged between the applicant, Mr Bruce Lehrmann, and Ms Brittany Higgins, at various points in the CCTV footage obtained from "The Dock", a venue attended by Mr Lehrmann, Ms Higgins and colleagues on the evening of 22 March 2019. 3 Mr Reedy has prepared a report entitled, "Lip Read Transcription Of Soundless Recorded Speech" (Reedy Report). 4 Contrary to the Court's orders for the timely service of its written evidence, Network Ten served the Reedy Report on Mr Lehrmann's solicitors on 18 November 2023, four days before the matter was called on for hearing. 5 The Court was informed of Network Ten's proposed reliance on the Reedy Report at the conclusion of the first day of the hearing. Its late filing was opposed. 6 Despite my concerns as to the delayed service of the proposed expert evidence, in exercising the discretion to allow late evidence to be filed, I was conscious of the overarching purpose of civil litigation in this Court, being the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: s 37M(1) of the Federal Court of Australia Act 1976 (Cth). As Gleeson CJ observed in relation to a cognate provision of the then Supreme Court Rules 1970 (NSW), there is a reason why there is a comma after the word "just": the Hon Murray Gleeson AC, 'Managing Justice in the Australian Context' (Speech, ALRC Conference, 19 May 2000). At the end of the day, my primary role is to ensure there is a just and transparent resolution of this dispute based on all material that is admissible and the parties wish to deploy, provided it does not cause any unfairness, procedural or otherwise, to another party. 7 If there was ever a case where it was important in promoting public confidence in the administration of justice for the controversy to be determined on the substantive merits, it is this one. With this in mind, the next morning, I proposed a draft order to the parties, which I had prepared overnight. As it happened, upon it being provided to the parties, the making of the proposed order was not opposed, and an order was made in the following form (order): THE COURT NOTES THAT NOTWITHSTANDING THE FIRST RESPONDENT'S LATE SERVICE UPON THE APPLICANT OF PURPORTED OPINION EVIDENCE ON THE TOPIC OF LIPREADING OR VISUAL SPEECH RECOGNITION FROM VIDEO (lipreading) ON 19 NOVEMBER 2023 (Report), AND ITS FAILURE TO FORESHADOW PROPOSED RELIANCE UPON THIS TOPIC OF SPECIALISED KNOWLEDGE AS EFFICIENTLY AS POSSIBLE (CONTRARY TO THE REQIUREMENTS OF s 37N(1) OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 (CTH) (FCA Act)), THE COURT ORDERS: 1. Pursuant to s 37P(2) of the FCA Act (and subject to any further order, and questions of admissibility of specific evidence): (a) the parties be given leave to rely upon opinion evidence on the topic of lipreading although the question of the admissibility of the Report be deferred for later consideration; (b) the applicant notify the Court prior to 4:15pm on 29 November 2023 whether he intends to: (i) put in issue the admissibility of the whole or any part of the Report; (ii) put in issue the accuracy or correctness of any of the opinions contained in the Report; or (iii) adduce further opinion lipreading evidence (further opinion evidence) and, if so, from whom; (c) if notification is made in accordance with these Orders of further evidence, by 10:15am on 30 November 2023, the parties specify a joint list of video recordings in Part B of MFI 2 in respect of which they wish to adduce lipreading evidence; (d) a videoconference conclave be conducted (Conclave), as soon as practicable after 10:15am on 30 November 2023, by an independent facilitator to be appointed by the Court (Facilitator) between the author of the Report and the proposed expert notified by the applicant (Experts); (e) the Conclave be conducted with the aim of preparing a joint lipreading report between the Experts specifying those opinions upon which they agree and those upon which they disagree and, to the extent relevant, short reasons as to the extent of disagreement (Joint Report) prepared without the involvement or intervention of any person other than the Experts and the Facilitator; and provided to the Associate to Justice Lee by the Facilitator prior to 9:00am on 7 December 2023 (with the Joint Report to be thereafter provided to the parties); (f) the parties notify the Court by 10:15am on 8 December 2023 whether: (i) they consent to the tender of the Joint Report; and/or (ii) they wish to adduce any further lay, or expert evidence from one of the Experts, on a topic relating to lipreading; and/or (iii) they wish to cross-examine the Expert not notified by that party with the expectation that if further expert evidence is adduced from the Experts it be received at a concurrent evidence session at a time and mode specified by the Court and notwithstanding that, by the time such a concurrent evidence session is held, the applicant may have otherwise closed his case in chief. (Emphasis in original). 8 My intention in making this order was to achieve a balance: on the one hand, I sought to allow Network Ten to put before the Court all material it wished to rely upon and which it contends is probative to the resolution of the substantial truth defence; on the other hand, I sought to ensure Mr Lehrmann was afforded ample procedural fairness, including a meaningful opportunity to consider the opinion evidence proposed to be adduced by Network Ten, and to obtain the assistance of a similar expert should he so wish. I also reserved for further argument any admissibility or discretionary exclusion questions. 9 I was also conscious that by reason of the delay of Network Ten, this exercise was required to be conducted unexpectedly and, from the perspective of Mr Lehrmann, at the heel of the hunt. Accordingly, I made an order the costs associated with the processes envisaged by the order be payable by Network Ten in the first instance. 10 In accordance with the order, on 29 November 2023, Mr Lehrmann notified the Court he did not propose to engage another lip reader but intended to put in issue the admissibility of the Reedy Report and, if it was admitted, to challenge the accuracy and correctness of the opinions expressed by Mr Reedy. 11 This afternoon, I heard argument and determined that Network Ten should be allowed to adduce the Reedy Report as opinion evidence within the meaning of s 79 of the Evidence Act 1995 (Cth) (EA). My reasons for doing so are as follows.