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The court heard Lehrmann texted a friend late on February 15,2021,afterThe Project interview had aired,and said:“I won’t be going to prison.”
The court heard last week that Lehrmann had texted his then-girlfriend that night and said a criminal defence solicitor,Warwick Korn,had told him that “if I’m named tonight then he says I’m up for millions as defamation”.
He said Korn had also told him that criminal proceedings were “off the cards completely” and “I won’t see the light of a courtroom”.
But in his first public comments,Lehrmann gave evidence last week that Korn did not give this advice and he was trying to placate his girlfriend.
“She was incredibly stressed and traumatised,” Lehrmann said last week. “Rome was burning,and I was trying to put on a brave face.”
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Sue Chrysanthou,SC,acting for Wilkinson,told the court last week that she had requested Korn,of Sydney-based firm Korn Tlais Defence Lawyers,give evidence about his advice to Lehrmann because “it’s said that Mr Korn disagrees with what is recorded” and “he doesn’t agree that he told Mr Lehrmann he was clear of any risk of being prosecuted”. Steven Whybrow,SC,acting for Lehrmann,had said Korn was available to give evidence on Thursday.
But on Thursday,Lee asked another barrister acting for Lehrmann,Matthew Richardson,SC:“You’re not calling Mr Korn?”
“No,your honour,” Richardson replied.
Dr Matthew Collins,KC,acting for Ten,said there was a “red-hot contest” about the legal advice Lehrmann received. The judge could infer Korn’s evidence “wouldn’t have assisted” Lehrmann’s case,Collins argued.
Lehrmann’s legal team has argued it was not reasonable for him to file defamation proceedings within the one-year limit because of legal advice he received,pending or existing criminal proceedings,and health concerns including mental health issues.
Lehrmann was named in the media in August 2021 after he was charged with sexual intercourse without consent.
He pleaded not guilty to the charge. His trial was aborted in October last year due to juror misconduct. The charge was later dropped altogether amid concerns about Higgins’ mental health. Lehrmann has always maintained his innocence.
Defamation proceedings may be filed pending criminal proceedings and the parties may ask for a stay to delay the matter being heard until after any criminal process.
But Lehrmann’s barrister,Richardson,submitted that “it’s just not reasonable to commence[defamation] proceedings purely for them to be stayed”.
He said the evidence Lehrmann gave last week about the legal advice he received was “consistent with the actual events” even if it was inconsistent with his text messages.
“Of course he was trying to say to his girlfriend and friends that it would be okay;that he wasn’t going to jail;that he wouldn’t be prosecuted,” Richardson said. “So what?”
Lehrmann told the court that Korn had advised him a defamation lawsuit “could happen” but they would need to await the resolution of any criminal proceedings or investigation.
Richardson said this was “orthodox and hardly surprising advice”.
He referred to a written submission made by Ten and News Corp that Lehrmann’s conflicting claims about Korn’s advice suggested he was a “habitual liar” and said that “our submission is this is unfair to a human being who found himself in that situation”.
The judge will deliver his decision on whether to extend the limitation period at a later date.
Late on Thursday,Lee asked the parties for their estimate of the length of the trial,should he grant the extension. A four-week estimate was offered.
He suggested the latest he could hear the trial this year would be from July 31 because he had a 20-week trial starting in September.
Lee added that his questions should not be regarded as indicative of his position on the limitation period and “one has to prepare for each possible contingency”.
But Richardson said it was “not practical” for Lehrmann’s team to be ready for a trial by that date,and Lee said he would not force the parties to prepare in greater haste than was possible.
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