“Making money by publishing ‘juicy extracts’, using the protection against legal action that follows from the material in those documents becoming evidence, is shameful. It happened,” writes legal columnist HUGH SELBY.

“You’ve gotta to be kidding” was my reaction to the unfolding debacle in the Federal Court late last week as previously unseen documents from the 2022 Canberra criminal Trial Brief in Crown v Bruce Lehrmann were lobbed into evidence, seemingly without a care as to who was named, whose privacy was swept aside, and who was shamed without redress.

Making money by then publishing “juicy extracts”, using the protection against legal action that follows from the material in those documents becoming evidence, is shameful. It happened.

Here are a few of the headings in online weekend media: “Court releases Higgins’ bombshell memoir”, “Excerpts from Brittany Higgins’ unpublished book”, “How Lehrmann v Ten turned into the Taylor Auerbach show”, “Auerbach gives explosive evidence amid colourful day in court”, “One-man wrecking ball bent on revenge leaves reputations bruised, battered”, “No Seven heaven as Taylor tells all” and “Taylor Auerbach took us down a rabbit hole”.

Readers might have thought that Ms Higgins had some part in the release of those extracts from her manuscript. She didn’t.

Readers might also have thought that the openly angry and vengeful Mr Taylor Auerbach was responsible for the “collateral damage” in his evidence, especially the naming of people who were not witnesses. He wasn’t. 

Let me explain both “why not” and “who and what was”.

The issue underlying the “new” evidence this past week was whether, as per Mr Auerbach’s claim, Bruce Lehrmann was the source of various documents to Channel 7’s Spotlight program.

Channel Ten was keen to have Mr Auerbach give evidence because, if accepted, it damaged Mr Lehrmann’s believability. Such damage might be helpful to Channel Ten’s case because the scales might tip in Ms Higgins’ favour. That, in turn, might help Channel Ten’s truth defence. “Mights” are not strong odds.

Channel Ten needed the court’s permission to call Mr Auerbach. In support, many sworn statements (called affidavits) were prepared with numerous, often lengthy attached documents.

It seems that Easter was not a holiday for the lawyers of both Channel Ten and Mr Auerbach. They were flat out. The cost per lawyer was a lot more than public holiday rates in our favourite cafes.

Given the time pressures it seems that careful, rigorous checking of the contents of the attached documents and what was included in Mr Auerbach’s affidavits was overlooked (that’s what I really want to believe happened) – leading to the debacle in court and the later media excesses.

The process for having any witness prepare an affidavit is:

1. Interview the witness to know their story as fully as possible;
2. Draft a written statement that captures that story;
3. Have the witness carefully check that draft so that omissions and errors can be fixed;
4. Keep the corrected, full story on the case file;
5. Apply legal skills to then remove from the statement any and all material that does not comply with the rules of evidence. For example, remove the following: speculation, facts that are not relevant, what other people (other than another witness) have said to the witness unless it is necessary to understand other evidence, material that is more harmful than it is helpful to deciding an issue;
6. Have this edited, shorter statement prepared as an affidavit with numbered paragraphs and indicative headings;
7. Ensure that the witness understands that they are assuring the court/tribunal that the contents of this affidavit are true;
8. Where there are attachments to an affidavit (such as other documents) ensure that there is compliance with the evidence law rules of admissibility. Where there is non-compliance be sure that material cannot be seen/read by deleting or blacking it out. This is called “redaction”; and,
9. Then have the witness properly swear or affirm the affidavit and initial all annexures before an authorised person.

From what was said in court, and in the weekend media extracts, there were necessary redactions in documents such as the Lehrmann criminal defence team’s Master Timeline and the Higgins manuscript that were not done.

The questioning of Mr Auerbach showed that his “story” and any attachments hadn’t been edited for his affidavit as they should have been.

Inadvertent stuff ups happen to us all. Better management of Mr Auerbach’s evidence – likely in less frenetic conditions – would have made him a more attractive witness, notwithstanding the sordid, tawdry events he shared with us. 

Hopefully some well-meant apologies have been delivered over the weekend, or soon will be, to those named who shouldn’t have been.

Which leaves those media who couldn’t hold back. They had the time to consider what they were doing and who would be damaged. They were aware of Justice Michael Lee’s clear comments about the lack of fairness to those unheard. They had the means to edit, to redact, to think through such issues as: “Why would we publish this material?”

If what was to be published was extracts from a book by nearly any Australian of the Year, one could rejoice in the sharing of their story.

Not so with these extracts: thoughts and nasty assertions better left unshared.

When a secret source collides with open justice