Reflections on the Lehrmann trial: Part 2 – Procedural fairness in the cross-examination of witnesses

• it would be ‘just’ to limit the cross-examination of a witness subject to them being questioned by more than one counsel; and
• an exception to credibility evidence being inadmissible had been satisfied.

Importantly, Lee J stressed the importance of cross-examination not being repetitive, oppressive, or diverging from a ‘clear pathway’ of obtaining direct and relevant responses from a witness.

Duplicity of questions

In Lehrmann v Network Ten Pty Limited (Cross-Examination) [2023] FCA 1477, Lee J warned against the duplicity and bifurcation of questions put to witnesses.

During the trial, issues were raised in relation to the cross-examination of the applicant, Mr Lehrmann, who had brought proceedings against the two respondents, Network Ten and journalist, Ms Wilkinson. Senior counsel for Mr Lehrmann, Mr Whybrow SC, was invited to indicate whether he wished to lead evidence in chief in relation to either: all issues joined on the pleadings; or only those issues upon Mr Lehrmann bore the onus. The former course was adopted. Dr Collins KC for Network Ten proceeded with his cross-examination of Mr Lehrmann on the basis that Mr Lehrmann had given his evidence in chief on all issues in the case. Ms Chrysanthou SC for Ms Wilkinson stated that it was her intention to also cross-examine Mr Lehrmann.  Justice Lee directed that a note be provided explaining the basis upon which it was asserted that cross-examination by more than one counsel should occur.

Before considering the suggested bases for such further cross-examination, Lee J considered the relevant procedural principles and conventions, as follows:

• There is no unfettered right to cross examine a witness at common law or since the passage of the Evidence Act 1995 (Cth) (EA) (see Pt 2.1 Div 3);^[1]
• The only actual “right” is the right to have a fair trial. It is the duty of the trial judge to ensure that all parties have a fair trial. In carrying out their duties the trial judge must so exercise his discretion in and about the examination and cross-examination of witnesses that a fair trial is assured;^[2]
• Ordinarily, where two or more parties are in the same interest, the trial judge’s discretion will be properly exercised if not more than one counsel is permitted to cross-examine, at least on the same subject matter;^[3]
• The rule is for the protection of the witness (against potential oppression) – “If this rule were not adhered to, a witness might be subject to the examination or cross-examination of as many barristers as were retained for the plaintiff or defendant, much time would be wasted, and great confusion would be introduced into proceedings at Nisi Prius”;^[4]
• However, one reasonable exception to the common law rule arises from the changing nature of litigation, with a common feature now being for counsel on one side of the record to split their trial preparation on a topic-by-topic basis.^[5]

Despite these common law rules of practice, the starting point is now the EA and in particular sections 26-28 which relevantly concern the Court’s control over questioning of witnesses, parties who may question witnesses, and order of examination in chief, cross-examination and re-examination.  Lee J stated that properly analysed, the question was best expressed as follows (at [12]):

“notwithstanding counsel for Ms Wilkinson “may” question Mr Lehrmann (s 27) and that any re-examination should not occur until after both respondents who “wish” to cross-examine Mr Lehrmann have done so (s 28), should the Court order there be no, or only limited cross-examination, on the basis that to do so would be “just” (s 26)?”

To determine the answer, Lee J had regard to the common law principles and conventions outlined above, as well as the further necessary considerations pursuant to the s 192(2) of the EA:

• the extent to which the direction would be likely unduly to add to, or shorten, the length of the hearing;
• the extent to which the direction would be unfair to a party or to a witness;
• the importance of the relevant evidence; and
• the nature of the proceeding.

Counsel for Ms Wilkinson pointed to four matters which were said to militate against making a direction there be no or limited cross-examination of Mr Lehrmann by her:^[6]

• First, the fairest course was to allow Network Ten and Ms Wilkinson to divide the cross-examination with an intention that there be “no duplication of subject matter”.Whereas Dr Collins KC had focussed on the substantial truth defence, Ms Chrysanthou SC’s proposed cross-examination would concern other issues, including identification, common law qualified privilege; s 30 of the Defamation Act 2005 (NSW), and damages (including aggravated damages);
• Secondly, Mr Lehrmann had engaged two senior counsel and two junior counsel, whereas Network Ten and Ms Wilkinson had engaged two senior counsel and two junior counsel between them. Mr Lehrmann’s counsel had divided issues as between them, and it was only fair to permit Network Ten and Ms Wilkinson to do the same;
• Thirdly, Ms Wilkinson wished to advance her individual interests and was entitled to separate representation for several reasons; and
• Fourthly, there were key differences between Network Ten’s pleadings and Ms Wilkinson’s pleadings and Ms Wilkinson principally proposed to cross-examine Mr Lehrmann on matters which Network Ten could not.

Mr Lehrmann’s position was that he did not object to any cross-examination by Ms Chrysanthou SC, provided it was limited to factual matters relevant to interests other than those of Network Ten.  Mr Lehrmann did however object to any duplicative cross-examination on the same topics and the bifurcation of cross-examination between counsel in relation to common defence issues.^[7]

Although Lee J accepted “that where litigation is complex and one cross-examination may need to canvass discrete topics, there may be sound reasons for bifurcation of the cross-examination”, this was not a legally or factually complex case by the standards of modern litigation, nor was there a significant volume of documentary material.^[8] His Honour considered that “the primary reason why multiple cross-examination should occur is if there is a legitimate difference in the interests of the cross-examining parties or some other reason which, taken together with all other relevant considerations, outweighs concerns as to fairness attending two cross-examinations conducted by senior silks, both of which will almost certainly involve credit attacks”.^[9]

Dealing with each of the four matters specifically addressed in Ms Wilkinson’s submissions, Lee J considered:^[10]

• Network Ten and Ms Wilkinson had an identical interest on the vast bulk of issues forming the basis of the defence, and particularly the evidence of Mr Lehrmann. In the absence of elaboration, it was not easy to identify precisely what factual topics ought to be the subject of cross-examination by Ms Chrysanthou SC which would not be a proper subject of cross-examination by Dr Collins KC;
• the problem is the unfairness occasioned by cross-examination, not the mere fact each respondent had engaged fewer counsel than Mr Lehrmann;
• despite Ms Wilkinson having a recognised interest in advancing her own viewpoint, including asking questions of any witness in circumstances where it was necessary for her counsel to do so, this did not extend to duplicative cross-examination;
• the ‘key differences’ between Network Ten’s case and Ms Wilkinson’s case were not elaborated upon other than general reference to differences in the pleadings which were relatively minor.

Together with the factors in s 192(2) of the EA, these matters pointed strongly in the direction of doing what one could to prevent any duplicative cross-examination and avoiding bifurcating the cross-examination between two counsel. As a result (and also in the interest of ensuring efficiency), Lee J ordered that any cross-examination by Ms Chrysanthou SC be limited to “factual matters relating to topics not covered during cross-examination of the applicant by senior counsel for the first respondent, and in respect of which it is contended by the second respondent that she has a different interest in the conduct of the defence of this proceeding to that of the first respondent”.^[11]  Justice Lee noted that there may be “ambiguity as to the precise metes and bounds of the factual issues in respect of which Ms Chrysanthou should be permitted to ask questions” and that “to the extent there is any residual confusion, it is best dealt with on a question-by-question basis”.^[12]

Cross-examination on credit

In Lehrmann v Network Ten Pty Limited (Cross-Examination) (No 2) [2023] FCA 1520, Dr Collins KC and Ms Chrysanthou SC raised a relevance objection to a question put in cross-examination to Ms Higgins, who had been called by the respondents in pursuit of their substantial truth defence. Mr Whybrow SC’s question related to representations made by Ms Higgins on the steps of the Supreme Court of the Australian Capital Territory on 27 October 2022 immediately following the discharge of the jury for juror misconduct in the criminal case brought against Mr Lehrmann (27 October 2022 speech). Mr Whybrow SC explained that he had sought to ask a series of questions to impugn Ms Higgins’ credibility, i.e. to put to Ms Higgins that she had made a series of false representations in an attempt to avoid a further criminal trial and procure what she had perceived was a more favourable forum for the adjudication of the truth on her allegations on sexual assault (on a balance of probabilities, but not a beyond a reasonable doubt).^[13]

Justice Lee observed that the starting point was s 55 of the EA: “it is trite that evidence is not irrelevant only because it relates to the credibility of a witness (s 55(2)(a))”.^[14] Although s 102 of the EA provides that credibility evidence about a witness is inadmissible, s 103(1) of the EA provides an exception that the credibility rule “does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness”.

Therefore, the question considered by the Court was whether the evidence proposed to be sought to be adduced by Mr Lehrmann in cross-examination was admissible, on the basis that it “could substantially affect the assessment of the credibility” of Ms Higgins pursuant to s 103(1) of the EA.^[15] Justice Lee explained that “for evidence to have a substantial effect on the credibility of a witness, it must have the potential to have a “real” or “significant” bearing on the assessment of the witness’ credibility”.^[16] In this case, if admitted or established, lies told by a witness would indeed have the capacity to affect the ability of the Court to assess whether the witness is to be believed.^[17] Citing R v Beattie, his Honour clarified that “the fact that the witness might [be] unlikely to make any such admission d[oes] not affect the admissibility of the questions”.^[18]

Justice Lee noted that “the Tigris and Euphrates of the truth defence is a sharp contest of credit between two people over what happened behind closed doors”.^[19] As a result, his Honour confirmed that just like Dr Collins KC, Mr Whybrow SC was entitled to seek to impugn the credibility of the witness he was cross-examining within proper limits.^[20] For clarity, Lee J confirmed that the limits imposed on Ms Chrysanthou SC engaging in a “tag team” cross-examination of Mr Lehrmann did “not have anything to do with Ms Wilkinson’s right to object to questions being asked to witnesses” (called by the Respondents), i.e. Ms Higgins.^[21] For the reasons above, Lee J directed that the question put to Ms Higgins relating to the 27 October 2022 speech be allowed.

Stay tuned for article three!

[1] Lehrmann v Network Ten Pty Limited (Cross-Examination) [2023] FCA 1477 at [7].

[2] As observed by Young J (as his Honour was then) in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, 22-23.

[3] NMFM Property Pty Ltd v Citibank Ltd (No 8) [1999] FCA 266; (1999) 161 ALR 581 (at 584–585 [16]) (Lindgren J).

[4] As explained by the Full Court (comprising Finkelstein, Siopis and Katzmann JJ) in Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125; (2010) 188 FCR 140 (at 148 [44]).

[5] Ibid at [45].

[6]Lehrmann v Network Ten Pty Limited (Cross-Examination) [2023] FCA 1477 [14]-[18].

[7] Ibid [19].

[8] Ibid [21].

[9] Ibid [23].

[10] Ibid [26]-[29].

[11] Ibid [19] and order 1 of the Orders made by Lee J on 27 November 2023.  

[12] Ibid [31]-[33].

[13] Lehrmann v Network Ten Pty Limited (Cross-Examination) (No. 2) [2023] FCA 1520 [3], [5].

[14] Ibid [6].

[15] Ibid [9].

[16] Ibid [13]. See also R v RPS (unreported, NSW Court of Criminal Appeal, 13 August 1997), per Hunt CK).

[17] Ibid [14].

[18] Ibid [17].

[19] Ibid [20].

[20] Ibid.

[21] Ibid [22].