Lehrmann v Network Ten Pty Limited (Expert Evidence) [2023] FCA 1577

In this case, the court ruled on the admissibility of an expert report of a forensic lipreader belatedly filed by the respondent.

Background

Network Ten, the first respondent, sought to adduce evidence from a “forensic lipreader”, Mr R, who it engaged to prepare a transcript of words exchanged between the applicant and Ms Brittany Higgins at various points in silent CCTV footage obtained from a venue visited by the applicant, Ms Higgins, and colleagues on 22 March 2019. Mr R had prepared a report entitled “Lip Read Transcription Of Soundless Recorded Speech”.

Network Ten served the report on the applicant’s solicitors four days before the hearing commenced, contrary to the court’s orders for the timely service of its written evidence. Its late filing was opposed by the applicant.

Expert evidence

Delayed service

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 overarching purpose of the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible.

The court emphasised “just”, and stated that its primary role is to ensure there is a just and transparent resolution of this dispute based on all material that is admissible and which the parties wish to deploy, provided it does not cause any unfairness, procedural or otherwise, to another party.

With this, Network Ten was given leave to rely upon Mr R’s expert evidence, although the question of the admissibility of the report was deferred for later consideration. In the same order, Lee J ordered a conclave to be conducted between Mr R and any proposed expert notified by the applicant, for the preparation of a joint lipreading report.

The order was intended to achieve a balance. It allowed for Network Ten to put all material it wished to rely upon and which it contends is probative of the resolution of the substantial truth defence before the court. It also afforded the applicant ample procedural fairness, including a meaningful opportunity to consider the opinion evidence proposed to be adduced by Network Ten, and to obtain the assistance of a similar expert.

On 29 November 2023, the applicant notified the court that he would not engage his own expert lip reader, but intended to put in issue the admissibility of Mr R’s report and, if admitted, to challenge the accuracy and correctness of the opinions expressed by Mr R.

On 8 December 2023, the court heard arguments from both sides as to whether Network Ten should be allowed to adduce Mr R’s report as opinion evidence within the meaning of s 79 of the Evidence Act 1995 (Cth) (the Act).

Admissibility of Mr R’s report

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The applicant directed the following four arguments to the rejection or discretionary exclusion of Mr R’s report:

· Mr R could not be said to have “specialised knowledge based on [his] training, study or experience” within the meaning of s 79(1) of the Act.

· In the alternative, even if Mr R may be said to have “specialised knowledge”, the opinions expressed in his report cannot be seen as “wholly or substantially based on that knowledge” within the meaning of that section.

· Mr R’s report did not set out the “necessary criteria for testing the accuracy of its conclusions”, as held in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

· The probative value of the evidence contained in the Mr R’s report is substantially outweighed by the danger the evidence may be unfairly prejudicial in circumstances where the applicant rejected propositions evidently based upon Mr R’s report under cross-examination, under s 135 of the Act.

Lee J rejected all the above arguments, noting that “specialised knowledge” is a concept of broad compass (Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR). Knowledge, as distinct from belief, which exceeds that held by persons who have not by training, study or experience acquired an understanding of the subject matter is what is required (Honeysett v R [2014] HCA 29; (2014) 253 CLR 122). [17]

The court found Mr R to have specialised knowledge in the field of lipreading, obtained throughout his life experience which has allowed him to pick up dialects and accents, and identify speech. Mr R had been working as a professional “forensic lipreader” since 2010, working on investigative, legal, and media assignments. [18]

While the court acknowledged that Mr R’s report was “prepared… somewhat idiosyncratically in parts”, it held that the processes followed by Mr R and their connection with the application of his specialised knowledge are “tolerably clear”. [22]

Based on the material, Lee J was satisfied that he would likely be in a position to form a rational view as to the bases upon which, and the objective reliability of, Mr R’s opinions. [25]

His Honour said that he was confident in his ability, as the trier of fact, “to avoid any prejudice and, in the fact-finding process generally, to be able to separate the wheat from the chaff”. [36] He also stated that he was confident that he would not be confused or misled by the evidence. [37]

While Mr R’s report was allowed to be adduced into evidence, with the weight to be given to it dependent upon the conclusions to be drawn following his cross-examination by the applicant, among other things. The cogency and relevance of Mr R’s evidence would be assessed together with all the other evidence adduced. [39]

Key takeaways

• An expert report, served late, may be allowed if it will go to the just and transparent resolution of the dispute, and provided it does not cause any unfairness, procedural or otherwise, to another party.
• The concept of “specialised knowledge” as it relates to the application of s 79(1) of the Act is a broad one. Acquiring knowledge involves surpassing mere belief, it requires the possession of a more profound understanding derived from training, study, or experience.
• Idiosyncrasies in the preparation of an expert’s report will not necessarily undermine their opinion, provided that the expert discloses their process of reasoning to show that those opinions are wholly or substantially based on the expert’s specialised knowledge.

 

Read the full decision here.