Expert evidence from forensic lip reader admitted in Lehrmann defamation trial

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On 19 December 2023, Lee J admitted evidence adduced by Network Ten from a forensic lip reader. Mr R, a forensic lip reader, had prepared an expert report containing a transcript of what he observed was said by Ms Higgins, Mr Lehrmann and others captured on CCTV footage at The Dock.

Mr Lehrmann had unsuccessfully opposed an application made by Network Ten to rely on Mr R’s evidence. You can read our case update on this interlocutory decision of Lee J here.

Counsel for Mr Lehrmann, Mr Whybrow SC, cross-examined Mr R on his evidence. Mr R was assisted by a lip speaker, Ms Church, to answer the questions put to him.

For the purposes of preparing the transcript contained in his report, Mr R had viewed the CCTV footage on a magnified scale. In what may be a first in an Australian court, and at the request of Justice Lee, 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 s79 of the Evidence Act 1995 (Cth) including:

  • lip reading is an inexact science;
  • Mr R had no prior court experience; and
  • there no way of objectively verifying Mr R’s opinions.

Giving reasons ex tempore, Lee J accepted that lip reading is not perfect but the guide for admissibility under s 79 of the Act is not a “counsel of perfection”.

Mr R was quite frank as to where he was certain and less certain of what was being said. Not having given evidence before, no doubt this was a novel experience for him as it was for Lee J and others. His Honour noted, however, that there is always a first time for giving expert evidence and was satisfied that Mr R was someone who has engaged in a forensic lip reading role extensively since 2010.

While there was merit in Mr Lehrmann’s objection that there is no established criteria against which Mr R’s skills can be judged, that was not fatal to admissibility under s 79. The reliability of Mr R’s opinions was able to be tested on the voire dire. Lee J had no doubt that the evidence is admissible and met the s 79 gateway. The court now has the task of considering whether it should be excluded under s 135.

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