Police are reviewing the leaking of Brittany Higgins’ personal phone records to the Spotlight program in the wake of a Federal Court finding that her alleged rapist Bruce Lehrmann was responsible, Australian Federal Police Commissioner Reece Kershaw has revealed.
Speaking at the national press club on Wednesday, Commissioner Kershaw said that no decision had yet been made as to whether it would proceed to an investigation.
“I’ve seen reports of that. We are reviewing that material and that case as we speak,” Commissioner Kershaw said.
Asked if it was under investigation or whether police are considering whether to investigate, he indicated it remained at a very preliminary stage.
“For us, it wouldn’t – without me getting technical – it is not an investigation, but reviewing the material to see if there is a threshold for an investigation. Does that make sense?,” Commissioner Kershaw said.
News.com.au contacted the AFP regarding the issue on April 23 and the media unit provided the following response.
“We had a complaint from Channel 10’s legal representation,” a spokesman said.
“That was considered at the time and not progressed. It is a matter for a presiding court to determine whether a particular contempt is civil or criminal in nature.”
This month, Justice Michael Lee found that the “inescapable conclusion” was that law student Mr Lehrmann leaked confidential court documents obtained during his criminal trial, including Ms Higgins’ private text messages, to Seven’s Spotlight program.
Mr Lehrmann has denied leaking the material and is yet to make any statement in relation to the judgment.
The AFP has previously referred the matter to the Australian Commission for Law Enforcement Integrity (ACLEI) which has now merged with the National Anti-Corruption Commission to rule out any police involvement in the leaks.
But despite her complaints, to date no action has been taken in relation to the leaking of the material.
During the Sofronoff inquiry into the trial, the commission chair Walter Sofronoff and counsel assisting Erin Longbottom KC and Joshua Jones, never asked any questions of police or others about the leaks and where they might have come from.
In his 326-page written judgment, Justice Lee said that there is evidence to support his findings that, at least in one instance, it was Mr Lehrmann.
“In the absence of any other explanation, the inescapable conclusion is that Mr Lehrmann provided access to (Spotlight EP Mark) Llewellyn to take the relevant photographs, and thus wrongly provided him with access to the information contained in the FitzSimons messages,” Justice Lee said.
“His representations and evidence to the contrary were false to his knowledge on a serious matter, and this conclusion fortifies my assessment as to his general credit.”
In terms of the legal situation in the ACT, a spokesman for the ACT Justice Department told news.com.au that the only person who could make a complaint were “parties” to the criminal trial – that is the DPP or Mr Lehrmann’s lawyers.
Ms Higgins as the complainant was not a party and as such she does not have any power to personally demand a charge of contempt be investigated.
“In the ACT, the Harman Principle, as summarised by the High Court in Hearne v Street, is enshrined in Rule 673 of the Court Procedures Rules 2006,” a spokesman said.
“This Rule restricts the improper use of a disclosed document and provides that, if the person, without reasonable excuse, contravenes the Rule, the person may be dealt with for contempt of court.
“An application for contempt can be made by the parties to the proceedings.
“Under the Director of Public Prosecutions Act 1990, a decision to prosecute a charge of contempt of court lies with the ACT Director of Public Prosecutions, who is an independent statutory office holder.
“Consistent with the Director of Public Prosecutions Act 1990 and the ACT Prosecution Policy, the Director of Public Prosecutions has discretion to consider a wide range of factors to determine whether to prosecute a case.
“Questions in relation to actions taken by the Australian Federal Police should be directed to them.”
Ex-Spotlight producer Taylor Auerbach’s evidence on how Spotlight obtained material provided the first concrete claims that Mr Lehrmann was the source of the material.
Only a portion of Mr Auerbach’s claims were accepted by Justice Lee.
“As is well known, and as was explained by the High Court in Hearne v Street, where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose than that for which it was given unless it is received into evidence,” Justice Lee said.
“After the first Spotlight program, the broadcast of material apparently subject to the Hearne v Street obligation caused much perturbation on the part of the respondents (Channel 10).
“Following demands for an explanation, upon instructions, Mr Lehrmann’s solicitors repeatedly denied he breached the Hearne v Street obligation.
“His senior counsel, again no doubt acting on express instructions, did the same before me on 9 June 2023.
“Consistently with the instructions provided to his lawyers, Mr Lehrmann gave evidence during the trial to the effect that he did not give documents to the Seven Network, he just gave an interview.”
Justice Lee said any ramifications to flow from this would be handled elsewhere.
“As I explained at the trial, I am not some sort of roving law enforcement official, and if any issue concerning an alleged breach of the Hearne v Street obligation is to be pursued in relation to anyone, it will not be by me, and it will not be by this Court,’’ he said.
“My role is more limited: it is to ascertain whether Mr Lehrmann made (or caused to be made) false representations as to this topic. I am comfortably satisfied he did.”
Justice Lee said that Mr Lehrmann elected not to give evidence on leaks of Brittany Higgins phone
“Although it is fair to remark the evidence tends to support the contentions as to misuse made by Network Ten, and it is also true Mr Lehrmann elected not to lead evidence to refute Mr Auerbach’s evidence despite having the opportunity to do so, I do not consider it necessary to reach any conclusion as to the Dillaway Messages or the MC, given the state of satisfaction I have reached as to the matter to which I will now turn,’’ he said.