'Impressive' forensic lip-reader evidence ultimately unnecessary
In Lehrmann v Network Ten Pty Limited (Expert Evidence) [2023] FCA 1577, the court ruled on the admissibility of an expert report of a forensic lipreader, Mr R, belatedly filed by the respondent Network Ten (i.e., four days before the hearing commenced). 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.
For the purposes of preparing the transcript contained in his report, Mr R had viewed the CCTV footage on a magnified scale. In Lehrmann v Network Ten Pty Limited (Expert Evidence) (No 2) [2023] FCA 1647, in what may be a first in an Australian court, and at the request of Lee J, 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 s 79 of the Evidence Act 1995 (Cth). Lee J held that the evidence is admissible and met the s 79 gateway.
In a recent decision, Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369, the court eventually did not place weight upon Mr R's evidence.
While Lee J acknowledged that Mr R was "an impressive and accomplished man who did his best to assist the Court", it was held that there was no need for the court to form definitive views about his evidence.[333]
The court mentioned that in not placing weight on Mr R's evidence, it was mindful of the limitations on the process of lipreading from videos, and that the lipreading evidence may have been affected by the fact that when Mr R viewed the video, he "saw that the man was encouraging her, enticing her to drink everything that was on the table". [335]
Lee J, after considering the interactions captured by the relevant CCTV footage closely and repeatedly, has formed his own views from observations as to the nature of the interactions and communications between Mr Lehrmann and Ms Higgins, which he said emerged clearly from many reviews of the recording.[334] As such, he is in as good a position as Mr R to assess whether this is a fair characterisation of what occurred.[335]
Read the full decision here.
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