Legal affairs columnist HUGH SELBY is uncomfortable with the broadcasting of tapes and publishing of texts that come from an unknown source whose motives – be they altruistic, revenge or monetary – are legally questionable. 

FROM time to time mainstream media plays games with us. This week it played a version of musical chairs. 

You remember: the number of chairs to sit on when the music stops keeps going down so that the number of players who can find a chair, and so stay in the game, also keeps going down.

Finally, there are two players and one chair to decide the winner when the music stops.

The game started last weekend when Channel 7 aired its much-publicised interview with Bruce Lehrmann.

The music was exciting extracts from a multi-hour recording of people from Channel 10’s “The Project”, preparing with Brittany Higgins and her boyfriend, David Sharaz, for the forthcoming Higgins interview with Lisa Wilkinson.

When the music stopped the person sent out was the one who was asking rudely: “How does Channel 7 have a Channel 10 tape?”. That contestant hasn’t been given any airtime since.

The game continued on Monday when a mainstream broadsheet began what was to become by Friday a flood of articles drawing on that Channel 10 recording and, as days went by, other materials, too.

When the music stopped on Monday there were two questions. First, how did that newspaper get a copy of the Channel 10 recording? Second, why did Channel 9’s newspapers pretend that there was no Lehrmann weekend interview on Channel 7?

It was reported on the ABC online on Monday that a Channel 7 person said that Lehrmann had not been paid for his interview.

I have heard a wag’s suggestion that Channel 9 was so peeved that they didn’t get that free story that they couldn’t bear to mention it to their loyal readers.

By later in the week, the mainstream broadsheet was pointing out that the Channel 10 recording had been supplied to Channel 7, the police (AFP), the ACT Office of Public Prosecutions (ODPP), and Lehrmann’s defence.  Whether this is true or not doesn’t matter; the point was that the newspaper could have got the tape from any one of a number of sources and, by the usual implication, it was not about to reveal that source.

By the time the music stopped on Friday night the game and the music were becoming confusing because of reports about a preliminary hearing in Mr Lehrmann’s defamation actions against various media entities. Apparently there has been dissemination of text messages from, it seems, Ms Higgins’ phone.

Sofronoff Inquiry followers will recall that ACT Victims of Crime Commissioner Heidi Yates, successfully persuaded Higgins to give her phone to the police investigators. This followed multiple unsuccessful requests by those investigators.

The police then used specialist software to download the message history from the phone. The download report typically includes when the message was received or sent, to what number or from what number, and the content of the message.

The police sent the report to the ODPP.  Either the police or the ODPP sent the report to the defence team.

Mr Lehrmann’s advocate reportedly told the defamation judge this week that Mr Lehrmann denied sharing the text messages report.

Sofronoff Inquiry followers may also recall that when defence advocate Steven Whybrow SC was giving evidence to the inquiry he was asked questions about the “implied undertaking”.  He had no difficulty answering those questions.

Others, certain media in particular, may have difficulty if they are asked this question: “From what source, and when, did you receive either or both of the Channel 10 ‘Project’ interview preparation recording (shown by Channel 7) and the text message downloads from Ms Higgins’ phone?”

Their difficulty may arise because of the “implied undertaking”, otherwise known as the “Harman undertaking” after a court case with that name.

The principle is that where materials (be they documents, visual images, audio visual records etcetera) are obtained as a result of the compulsory processes of a court, such as a subpoena, there is an implied undertaking or obligation to the court (for our purposes the ACT Supreme Court) that the documents will only be used for the purposes for which they were disclosed, and not be used for any other purpose, unless the court gives leave.

Those with a keen technical interest in the fine details of the ‘rule’ should read NSW Public Defender Richard Pontello SC’s paper here.

So far as I know none of those mainstream reports that are using the Channel 10 recording, or the phone text download, have stated: “We got this material from this legit source”.

Which leads us to speculate as to who would want to provide this material to mainstream media? Was it done for altruistic, revenge or monetary motives?

These big media players have specialist lawyer resources. If any one or more of them had chosen to make an application to the ACT Supreme Court for access to those “criminal trial” materials, I expect that the result would have been shared with us, be that success or failure.

Sure, it’s been an entertaining week, but I have this sense of uneasiness about the proprieties. Did Higgins ever have reason to contemplate that a pre-production interview would be made so public? Likewise, with her mobile phone message records.

Whether Ms Higgins knew it or not, she had an entitlement to expect that any use of those materials outside of the criminal trial would be subject to an application to the court.

The music still plays. The players are few, perhaps two. Regardless of what one thinks about Ms Higgins or Mr Lehrmann we have moved this week to trial by a media that may have unclean hands.  I’m uncomfortable with that. Are you?

Leaked Higgins texts ‘calculated to pressure witnesses’