The Harman Undertaking
A most disturbing revelation, with profound repercussions for victims of rape and sexual assault, was made by former Channel Seven Spotlight producer Taylor Auerbach in his evidence in the defamation action brought by Bruce Lehrmann against Channel Ten and Lisa Wilkinson.
Lehrmann is alleged to have raped staffer Brittany Higgins in the parliament house office of then Defence Minister Linda Reynolds, in March 2019. His criminal trial was aborted due to juror misconduct.
Auerbach alleged that Lehrmann supplied Seven with privileged material given by Ms Higgins to the AFP, material that was not used in his criminal trial. It is also alleged that Lehrmann airdropped the entire police E-brief to Auerbach, while the two were on a golfing trip.
According to a News.com report:
“Network 10’s barrister Dr Matt Collins has told the court that Bruce Lehrmann breached legal principles by providing Seven with documents from his ACT Supreme Court trial.
Mr Auerbach, in an affidavit tendered to the court, said Mr Lehrmann provided him with the AFP “statement of facts” from Mr Lehrmann’s criminal trial.”
The police statement of facts was provided to the defendant and his lawyers by the AFP, as is customary. Lehrmann and his legal team were then obliged by their responsibilities to the Harman Undertaking to use the documents “only for the purposes for which they were disclosed, and not for collateral or ulterior purposes.”
In short, the text messages, phone records and diary extracts supplied by Ms Higgins to the AFP, included in the brief of evidence and not used in the trial, should never have been released to the media. To do so was to breach the Harman Undertaking.
In theory such a breach can lead to a charge of contempt of court and, if you are a lawyer, a complaint to the Legal Services Commission.
As Ms Higgins stated in late July 2023, she provided the material to the AFP to assist in the prosecution of her alleged rapist:
“Reminder – this is my phone data I provided to the AFP to prosecute my rape case.
“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.”
Mr Auerbach alleged in April 2024 that Mr Lehrmann was responsible for supplying the privileged material to Seven. It is unclear who first released the privileged information to Janet Albrechtsen of The Australian in the middle of 2023.
It is important to note here that Mr Lehrmann has consistently and vigorously denied the rape allegations and denied that he is the source of the information from the police brief.
It’s telling that while there’s been a steady leak of evidence not used in Lehrmann’s criminal trial, there has been a remarkable lack of protest about the leak of that privileged material and the breach of the Harman Undertaking the leaking represents. There’s no shortage of salacious coverage of the content of the leaks, but considerably less commentary on the illegality of the act of leaking them.
Unless penalties are imposed on those who abuse their privileged access to police evidence such breaches will continue, to the detriment of victims, particularly in rape and sexual assault cases. As things stand, a complainant would do well to hurl her phone into the nearest body of water rather than give it to investigating police for inclusion in a brief to which her alleged perpetrator has access.
It seems an entirely untenable situation and one that can only be addressed if there is the legal and political will to address it. There is a clear framework in place for the prosecution of offenders, however, so far, nobody seems particularly interested in using it.
So when in September 2023 I was informed that the police brief of evidence in the Lehrmann Toowoomba matter had been obtained by an individual with no standing in that matter, who did not meet the criteria for access to that brief under Queensland law, I decided to do something about it.
Bruce Lehrmann was charged with of with two counts of raping a woman in Toowoomba, Queensland in 2021, shortly after he appeared in court in the ACT on charges of allegedly raping Brittany Higgins. Witnesses in the Toowoomba matter will be cross examined by Lehrmann’s counsel in a committal hearing in June 2024.
The individual who obtained the Toowoomba police brief relayed chunks of information from the brief to two other individuals, who, without knowledge of the other’s involvement, passed on the information to me. Both parties named the same individual as their source.
I have of course no evidence of who leaked the brief, and no knowledge of the intentions of the individual who benefitted from the leak. However, I was and remain sufficiently horrified by this breach occurring for the second time in two separate matters concerning the same accused person, that I decided to take whatever action I could.
On September 14, 2023, I lodged a complaint with the Queensland Crime and Corruption Commission about the leak of the Toowoomba police brief to the individual.
On 26 October 2023, the Daily Mail published an article headlined: “Full details of rape accusations against Bruce Lehrmann after meeting alleged victim at a Toowoomba strip club – and when she came forward.”
Journalist Kylie Stevens attributes as her source a court brief she states was “obtained exclusively by The Australian“:
“According to a court brief obtained exclusively by The Australian newspaper [paywalled], the pair used cocaine during the night.’
The Australian headline is upfront about its source:
Cocaine, unprotected sex: Police brief reveals new charges.
Details of allegations against former Liberal staffer Bruce Lehrmann can be revealed…”
Journalist Samantha Maiden also wrote a piece for News.com on October 26, detailing some of the police allegations without naming a source.
On 2 November 2023, I updated my complaint to the Queensland CCC to include these three articles.
Several weeks later, the Queensland CCC advised me that they would not be pursuing my complaint.
I’ve now decided to make the complaint again, in the light of current evidence provided by Mr Auerbach and concerns expressed by Dr Collins at the breaching of the Harman Undertaking in Lehrmann’s first trial. It appears that the Undertaking may have already been breached in the Toowoomba matter, before it has even come to trial.
We are talking about what is supposed to be a fundamental protection for victims of rape and sexual assault who choose to make a complaint to police, being used by the perpetrator, or someone who has privileged access to the police brief, to intimidate, harass, and humiliate complainants. It is astounding that this abuse of the legal system has not received anything like the attention it deserves. It is one more obstacle in a field filled with obstacles that can and do deter women from seeking justice after enduring rape and sexual assault.
Why are authorities such as the Queensland Crime and Corruption Commission, and the relevant body in the ACT, failing to investigate these leaks?
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