A chance discovery ends the trial of Bruce Lehrmann for the alleged rape of Brittany Higgins
The first sign something was amiss in the trial of Bruce Lehrmann came just before 8.30am on Thursday.
A note, sent by staff working for the ACT supreme court chief justice, Lucy McCallum, landed in the inboxes of observers, advising the court would be convening at an unusually early time.
The email set tongues wagging among the press pack that has camped outside the courtroom for nearly a month. Was a juror sick? Were they deadlocked? Did the jury have a question? Had press coverage from the night before caused a problem?
Inside court, there were more signs of the unusual.
Counsel for the prosecution and defence were called from the bar table to speak with McCallum. Those sitting in the court’s public gallery exchanged glances as Lehrmann’s barrister, Steven Whybrow, and junior counsel for the prosecution, Skye Jerome, disappeared through the door towards McCallum’s chambers.
Brittany Higgins and her partner, David Sharaz, were also in the public gallery for the first time during the trial, accompanied by the victims of crime commissioner, Heidi Yates.
The mystery was soon solved. McCallum arrived and quickly told the court that a juror was being investigated for misconduct. The juror was thought to have brought in outside research material into the court, something jurors are told repeatedly not to do.
Everyone, including Higgins and her supporters, were asked to leave the court while McCallum questioned the juror.
The outcome seemed inevitable. McCallum brought the 12 members of the jury in, and advised them someone had brought a research paper on sexual assaults into the jury room, despite repeated directions not to conduct their own inquiries.
She said the court had no choice but to abort the trial.
“I have heard an explanation and it may be that no harm has been done, but that is not a risk that I can take,” she said. “In the circumstances, I have discharged that juror and I have to discharge you all.”
The misconduct had been discovered by chance.
A sheriff’s officer was tidying the jury room and accidentally bumped an evidence box used by jurors to store documents. When the officer went to pick it up, he noticed a title page for a research paper about sexual assault, visible through the box’s clear plastic front.
Showing what McCallum described as “courage, integrity and good sense”, the officer notified the court. The box was not opened but McCallum’s associates used the date and publisher that were visible to track down the relevant paper.
The research brought in by the juror was a discussion of false complaints and sexual assaults, which examined the “unhelpfulness of attempting to quantify the prevalence of false complaints of sexual assault”. The paper included a research-based analysis of the reasons for false complaints and scepticism in the face of true complaints.
The paper, McCallum said, could have been deployed to support an argument for “either side of the central issue” in Lehrmann’s trial.
“At the very least, the fact that the paper was located and taken into the jury room by the juror indicates that it may have influenced that juror’s contribution to the jury’s deliberations,” McCallum said. “The unfairness to both parties is manifest.”
Sign up for our free morning newsletter and afternoon email to get your daily news roundup
Jurors in this trial – and in all trials – were told in no uncertain terms to avoid this very conduct.
Each day, before they went home, they were given an obligatory warning against conducting outside research.
McCallum estimated she told the jury at least 17 times not to conduct their own outside research.
“A good way of testing that is, if you are learning something about this trial and I am not there, then you should not be doing it,” she told the jurors on one of the 17 occasions. “You should only be learning about this trial in this room in my presence.”
The juror responsible cannot be punished in the ACT, whether by fine or other penalty. In NSW, such conduct could amount to a criminal offence.
The decision means the Lehrmann trial ended without an outcome, after almost three weeks of evidence from 29 witnesses, including two former cabinet ministers, and one week of deliberations.
The case had reached this extraordinary crescendo at breakneck speed. It was a marked change of pace from the week prior, filled by days and days of deliberations, some of which passed without so much as a peep from the jurors.
But the chaos of the last minutes of the trial did not stop after McCallum’s decision.
Whybrow emerged from the court building to a media throng. He declined to comment, saying only that the outcome was disappointing.
Then Higgins, fighting back tears with her supporters beside her, issued an emotional statement.
She thanked her supporters but also levelled criticisms against the justice system. Higgins said her life had been “completely scrutinised, open for the world to see”, while making criticisms of the accused’s right to silence.
“This is the reality of how complainants in sexual assault cases are treated,” she said.
“Their lives are torn apart, their friends and families are called to the witness stand and the accused has the legal right to say absolutely nothing.”
The statement, broadcast and published live across multiple mediums, drew an immediate reaction from Lehrmann’s defence.
Whybrow raised concerns that the statement may have been in contempt and referred Higgins’ allegations to police and the court.
The court declined to comment on any consideration of contempt, saying it did not want to engage in public discourse about remarks made by a participant in legal proceedings.
McCallum had earlier made it clear that she would take a dim view of any further publicity that could prejudice the second trial, which, at this stage, is expected in February 2023.
“I would expect that after reporting the outcome of today that reporting of the matter should fall silent so that the accused can have a fair trial and Ms Higgins can have respite from the intense glare of the media that has been pervasive throughout this trial,” she said.
Lehrmann went into the trial with the presumption of innocence.
In sexual offence trials, the ACT courts typically use video recordings of a complainant’s evidence and crossexamination, avoiding the need for them to repeat their evidence in person.
That can change if the defence makes an application for a complainant to be brought back in person.
If the trial runs again, it will again draw in powerful political figures.
The court has already heard allegations that Higgins felt pressured by her then minister, Linda Reynolds, into dropping her police complaint about the alleged rape, something Reynolds strenuously denied. It heard allegations that Michaelia Cash, a former attorney general, knew of the alleged rape far earlier than she says, though that has been denied by Cash.
The case explored new details about the extent to which other ministers, including the office of the then prime minister, Scott Morrison, may have known of Higgins’ allegation in the immediate aftermath of 23 March 2019.
Any retrial will undoubtedly attract further media interest. It’s something Higgins told the court she had wanted to avoid.
“I didn’t want it to turn into a media frenzy,” she said, speaking of her caution in dealing with police in 2019.
“I didn’t want it to turn into this.”