The leaking of private material linked to Brittany Higgins is to be raised in the federal court on Friday during a hearing of the defamation case brought by Bruce Lehrmann against several media outlets.
An audio recording of Higgins, her partner David Sharaz and two Network 10 journalists, along with text messages sent from Higgins to various parties, have been published by multiple outlets over several weeks.
The source of the material remains unclear, but several people with knowledge of the case confirmed to the Guardian Australia that it was included in evidence provided to parties including lawyers for Lehrmann, the ACT office of the director of public prosecutions, and investigating officers as part of Lehrmann’s criminal case. Third parties external to the investigation and court case could also have had access to the material.
The ACT supreme court has not provided media access to the text messages nor the audio recording that was broadcast, multiple sources confirmed. The ACT supreme court chief justice declined to comment on the ongoing leaks.
The material was also not circulated as part of the ACT board of inquiry, which is set to hand down a final report by the end of July, Guardian Australia has confirmed.
The audio recording was published by the Seven Network, which also declined to comment. It included Higgins, Sharaz, then-Project presenter Lisa Wilkinson and a producer, Angus Llewellyn, speaking in January 2021, before Higgins’ interview with Wilkinson was broadcast.
The recording outlines Sharaz claiming he is close with Labor senator Katy Gallagher, the group gossiping about Coalition MPs, and provides details about Higgins’ thinking in relation to making her complaint public.
In the Project interview, broadcast several weeks later, Higgins detailed allegations of being raped in parliament house, but did not name Lehrmann.
Lehrmann faced a criminal trial in the ACT supreme court last year over the rape allegation made by Higgins, a former colleague.
The trial was discontinued because of juror misconduct, and a retrial ruled out because of the potential effect on the mental health of Higgins.
Lehrmann has always maintained his innocence.
A lawyer in Lehrmann’s defamation case, Paul Svilans, did not respond to a request for comment from the Guardian, but told news.com.au that they did not have the material.
“We have not had access to the phone and audiotape you refer to,’’ Svilans told news.com.au.
“In fact, we are at present actually seeking access to the audiotape for the purpose of the defamation proceedings for the reason that we don’t have it.”
The defamation case Lehrmann is pursuing against Network 10 and the ABC is set down for a case management hearing on Friday, and Guardian Australia believes concerns about the use of this material will be raised before Justice Michael Lee.
The leak of the audio recording came after text messages reportedly taken from Higgins’ phone were reported for several weeks in the Australian and Daily Mail.
Stories based on the text messages have focused, among other things, on conversations Higgins had to secure a book deal, Higgins and Sharaz’s plan to work with Labor politicians after the rape allegations were published, and comments Sharaz made about former prime minister Scott Morrison, who he called disparaging names.
The Australian did not respond to a request for comment about the leaks. Daily Mail Australia editor Barclay Crawford said the publication “does not discuss – or reveal – its sources”.
ACT policing declined to comment. Two inquiries, by the Australian federal police, and by the Australian Commission for Law Enforcement Integrity, into whether officers improperly disclosed information relating to the case, remain ongoing.
Barrister Steve Whybrow, who represented Lehrmann at the criminal trial, told news.com.au the material was kept secure at all times. Lawyers representing Higgins declined to comment.
Media law barrister Matt Lewis, who was speaking generally rather than about the Higgins leaks, said that lawyers who obtained material produced under a compulsive process, such as a subpoena, during a court proceeding were precluded from providing it to others under what is known as the Harman principle.
“If that document is then leaked, which sometimes happens, to members of the media, than ordinarily [the media’s] in-house legal counsel would have their antenna go off like a Christmas tree, because that would usually mean you were unable to publish that, unless it was really in the public interest to do so,” Lewis said.
“You run the risk of a contempt of court, if you publish information which is otherwise confidential.”
There is no suggestion any of the outlets who published the leaked material have committed contempt. Nor does Guardian Australia suggest any party leaked the material.
Dr Denis Muller, a University of Melbourne media ethics expert, said the repeated reporting of leaked material despite the abandonment of the legal proceedings, because of concerns about Higgins’ mental health, was a “very dangerous development”.
He said the ongoing reporting meant “what we now seem to be having is a genuine case of trial by media”.
There appeared no public interest in the reporting of the material, he said, and there appeared several reasons why the reporting should cease, including that it was occurring outside the legal process, and the impact the reporting would have on Higgins.
“The complainants are already in a position where giving over anything … is a matter that requires a great deal of trust on their part that the material will not be misused,” Muller said.
“I think it’s absolutely the case that an already difficult climate for people claiming sexual assault is being made even more difficult.”
