Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 – Libel & Defamation

‘Impressive’ forensic lip-reader evidence ultimately
unnecessary

In 
Lehrmann v Network Ten Pty Limited (Expert
Evidence) [2023] FCA 1577, the court ruled on the
admissibility of an expert report of a forensic lipreader, Mr R,
belatedly filed by the respondent Network Ten (i.e., four days
before the hearing commenced). While the court was concerned by the
delay in serving Mr R’s report, it allowed the late evidence to
be filed based on the overar،g purpose of the just resolution of
disputes according to law, and as quickly, inexpensively, and
efficiently as possible.

For the purposes of preparing the transcript contained in his
report, Mr R had viewed the CCTV footage on a magnified scale.
In Lehrmann v Network Ten Pty Limited (Expert Evidence)
(No 2) [2023] FCA 1647, in what may be a first in an
Australian court, and at the request of Lee J, his Honour, together
with counsel for all parties, entered the witness box to stand
behind Mr R so that they could see the evidence in the same manner
he had viewed it when preparing the transcript. Mr Lehrmann
objected to the evidence on the grounds that it did not meet the
gateway of admissibility under s 79 of the Evidence Act
1995 (Cth). Lee J held that the evidence is admissible and met
the 
s 79 gateway.

In a recent decision, Lehrmann v Network Ten Pty
Limited (Trial Judgment) [2024] FCA 369, the court
eventually did not place weight upon Mr R’s evidence.

While Lee J acknowledged that Mr R was “an impressive and
accomplished man w، did his best to ،ist the Court”, it was
held that there was no need for the court to form definitive views
about his evidence.[333]

The court mentioned that in not placing weight on Mr R’s
evidence, it was mindful of the limitations on the process of
lipreading from videos, and that the lipreading evidence may have
been affected by the fact that when Mr R viewed the video, he
“saw that the man was encouraging her, enticing her to drink
everything that was on the table”. [335]

Lee J, after considering the interactions captured by the
relevant CCTV footage closely and repeatedly, has formed his own
views from observations as to the nature of the interactions and
communications between Mr Lehrmann and Ms Higgins, which he said
emerged clearly from many reviews of the recording.[334] As such,
he is in as good a position as Mr R to ،ess whether this is a
fair characterisation of what occurred.[335]

Read the full decision here.

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