Legal columnist HUGH SELBLY offers background to TV Channel Ten’s surprise application in the Bruce Lehrmann defamation case to bring “new evidence” before Federal Court Justice Lee at 5pm on Tuesday.

There is material here that some readers will find tedious. Other readers will find it titillating. 

Yet others will read it because the twists and turns in the B2 (not bananas) story become ever more curious, just as it seems that there is nothing left in the Brittany Higgins and Bruce et al bunch to peel away.

Easter was unexpectedly spiced up by news of Channel Ten’s last ditch application in the defamation trial that, for pointless entertainment, rivals the Johnny Depp and Amber Heard 2022 trial.

By “pointless” I mean that leaving aside the complex legal issues of liability and any damages, the value of this story does not rival Gaza, the Ukraine, the Lebanon, starvation in Africa, the vulnerability of Australian bees, how to deal with cane toads and fire ants, how we are responding to climate change, and so many other stories of real consequence to large numbers of humans.

His honour will hear the application after regular court hours. No doubt his usual mien of judicial detachment will be shown, if there is public access. Such access cannot be assumed as there may be grounds for a closed court.

It had been his intention to hand down his decision this week: whether he still can will depend upon what is revealed on Tuesday evening.

What have we been told and what might follow?

Relying on mainstream media (because we have nothing else) we know that TV Channel 7’s Spotlight program obtained two items of interest from which it shared excerpts with viewers in 2023: the Parliament House security footage that showed a seemingly well co-ordinated Brittany entering the building; and, footage of a pre-production meeting at Channel Ten’s The Project attended by Brittany, her partner, and others. 

Channel 7 has not revealed how it obtained those items. It has been claimed that both items were obtained in time for Bruce’s criminal trial (the Canberra trial in late 2022, which ended in no verdict and was followed by DPP Drumgold’s announcement that there would be no second trial) by the issue of subpoenas. These are documents issued by a Court Registry, at the request of a party, requiring the supply of documents, the attendance of named witnesses, or both. 

We haven’t been told who issued those subpoenas; however, it was likely Bruce’s defence team, because if the prosecution had issued those subpoenas then they would be required to disclose the materialto the defence. Had that happened then – given the security video – the prosecution could hardly have claimed that Brittany was much “under the weather” that night.

When a party to litigation obtains material by a subpoena it can use that material only for the hearing for which it was obtained. This is known as the “Harman undertaking”; and it follows that if Bruce’s defence team (note: it is his lawyers, not Bruce, to whom the material is delivered) obtained those two items then it could only be used at the criminal trial.

There has been no suggestion that Channel 7’s Spotlight obtained the item from the defence legal team.

To date there has been no suggestion that Bruce was able to/did copy the material in his lawyers’ possession.

Mainstream media has reported that Bruce has said on oath that he did not supply either of these items to Channel 7’s Spotlight. 

However, Taylor Auerbach, who was on the Spotlight team at the time of the Bruce story has, allegedly, made a sworn statement that it was Bruce who provided those items.

Telling a lie or lies on oath – if it can be proved – is the crime known as perjury. It leads to imprisonment; however, prosecutions are few because proof is elusive.

The NSW Crimes Act, section 327 provides:

(1) Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years…

Presumably Channel Ten believes that Mr Auerbach’s evidence – which might include what he claims to remember, but also text messages or emails (note: we don’t yet know what his evidence is) – will further damage Bruce’s believability (called credibility in litigation).

Just what Justice Lee has decided about Bruce’s credibility AND how that assessment bears on his decision about who wins and who loses, and how much – if anything – is to be paid in damages was to be revealed on Thursday.

To claim that accepting Mr Auerbach’s version would necessarily further damage Bruce’s credibility is to speculate about Justice Lee’s assessment of that credibility. It’s pointless to do so.

If, however, the application to lead this evidence is refused, or it is allowed but found to be of little value, then Channel Ten has spun the wheel of fate and sealed its own.

Judgment looms in Lehrmann defamation case