Brittany Higgins called out the leaking of “private” contents from her phone for months, taking to social media and other forums to warn of “the dangerous precedent to tolerate a victim’s private data to be weaponised in this manner without any recourse”.
But for nearly a year her complaints fell on deaf ears.
As the flood of leaks hit the newstands in the wake of Spotlight’s program, few questioned where they came from.
Now that question is centre-stage in the Federal Court, where Justice Lee is set to interrogate untested claims that the person who leaked the messages was the man she accused of raping her – Bruce Lehrmann – an accusation he denies.
Ex-Spotlight producer Taylor Auerbach has come forward to claim one of the sources was Mr Lehrmann.
“Reminder – this is my phone data I provided to the AFP to prosecute my rape case,’’ Ms Higgins tweeted in June, 2023.
“None of it was tabled in court.
“And now, it continues to be leaked to the media without my consent.”
She said that the leaks represented “such a dangerous precedent to tolerate a victim’s private data to be weaponised in this manner without any recourse”.
Buried among hundreds of documents annexed to one of Channel Ten lawyer Marlia Saunders’ affidavits, is a letter from Ms Higgins’ lawyer, Arnold Bloch Leibler partner Leon Zwier, first reported by The Sydney Morning Herald.
He wrote to the acting ACT Director of Public Prosecutions on June 7 last year.
“Our client is suffering from the ongoing publication of her private documents,” Mr Zwier wrote.
“She believes it is part of a deliberate attempt to undermine her credibility. Also at risk is the confidence in the capacity of the ACT criminal justice system to secure documents containing sensitive personal information about victims of sexual assault.”
Under cross-examination, Mr Lehrmann has previously told the Federal Court that he did not give Channel 7 “all information, documents, film, video, photographs, items and assistance reasonably requested” as his contract required but only gave Spotlight an interview.
Ms Higgins’ messages had been provided in a brief to Mr Lehrmann and his legal team during the criminal trial, and were also available to the police, the DPP and the Sofronoff Inquiry.
But an extraordinary legal whodunit emerged in the wake of the leak of a six-hour tape of Ms Wilkinson, Ms Higgins, her partner David Sharaz and executive producer Angus Llewllyn giving their “unplugged” views on high profile figures on Spotlight.
It was first broadcast by Channel 7 in June, 2023, as part of an interview special with Mr Lehrmann and includes Ms Wilkinson describing former Defence Minister Linda Reynolds as “a nobody” and an “idiot”, and saying “who is this f***king woman.”
Separately, thousands of text messages on Ms Higgins’ iPhone were leaked to Channel 7 and other media outlets.
The material was not presented during the trial and was leaked by persons unknown to Channel 7, The Daily Mail, Sky News and The Australian newspaper.
In the Federal Court in June, Barrister Sue Chrysanthou SC, acting for Ms Wilkinson and Dr Matt Collins KC for Channel Ten, highlighted the barrage of media stories in recent days including Ms Higgins’ private texts.
They asked for the Federal Court to act to compel Mr Lehrmann to answer questions about whether he was involved in the leaks at a hearing before Justice Michael Lee – a request he denied.
“All we seek to do, and it’s relevant to credit and it’s relevant to damages, is ask the applicant (Mr Lehrmann) if he had anything to do with it,’’ Ms Chrysanthou SC said.
“That’s the purpose of the interrogatories.”
“Someone is engaging in a concerted campaign to produce misleading material to the media in order to impugn the respondents and witnesses that the respondents could call in the defence to these proceedings in November,’’ Ms Chrysanthou added.
But Matthew Richardson SC told the court Mr Lehrmann was not involved and Channel 10 had “no idea” who was leaking the material.
“In correspondence last night, and in the written submissions provided to your honour, the allegation was made, it was the obvious inference that my client had provided materials to Channel 7 even in breach of his Harman obligations. He absolutely denies that. It is a grave and serious allegation. It’s aggravating the damages, in this case.”
Justice Lee ultimately declined to order the interrogatories in the form proposed.
Ms Chrysanthou SC said the Channel 7 broadcast was an attempt to target Wilkinson.
The trial of Mr Lehrmann was discontinued last year after juror misconduct, and the sexual assault charges against him were later dropped by the Director of Public Prosecutions. Mr Lehrmann pleaded not guilty in the trial and has always maintained his innocence.
Ms Higgins has continued to raise the issue, writing on Twitter last year after another article that “this is the third time private images, texts and WhatsApps from my phone have been published.”
“I voluntarily provided this material to the police to help them form the brief of evidence and none of it was tabled in court. Therefore, no journalist should have seen the photo of my diary,’’ she said.
“Stop publishing the private contents of my phone. I entrusted police with my private information for the sole purpose that it could aid their investigation into my sexual assault, nothing else.”