Chief Justice Lucy McCallum recounted 17 of her own warnings to the jury during the trial of Bruce Lehrmann not to do their own research, nor bring anything to their deliberations that was not presented as evidence in court.
But on Thursday morning, she was forced to declare a mistrial after one juror was found to have brought an academic paper on sexual assault secretly into the jury room.
“The discovery of the article … necessitates the discharge of the jury,” McCallum told the court. “This is both an unexpected and unfortunate outcome in this trial.”
The ACT Supreme Court had heard 12 days of evidence and the jury had spent five days deliberating on whether or not former federal ministerial adviser Lehrmann had raped fellow staffer Brittany Higgins in their then boss’s office at Parliament House in 2019 after a drunken Friday night out with colleagues. Lehrmann pleaded not guilty.
On Tuesday, the jurors reported that they could not reach a unanimous verdict as required under ACT law. The judge sent them back to try again. Reconvening unexpectedly at 9.45am on Thursday, Justice McCallum revealed she had received information about “possible misconduct” by one juror.
She closed the court for 10 minutes and then explained the situation publicly, with the jury present.
One of the court sheriffs had been tidying the jury room after jurors departed on Wednesday afternoon when he accidentally knocked a folder of papers onto the floor. Each juror has a folder for documents provided during the trial but this one contained an extra document – an academic research paper on false complaints in rape trials and their impact on genuine complaints.
McCallum said the paper could “sensibly be deployed on either side of the central issue in this case” and it was unclear if it had featured in deliberations.
But it had been brought in against the rules and against her explicit and repeated instructions. It was “beyond question” that the conduct necessitated that the trial be aborted.
She said she had identified and discharged the juror and had no choice but to discharge the rest as well. She praised the sheriffs for their diligence and thanked the jury for their efforts, warning them not to reveal their deliberations. “If you do so, you will be committing an offence.”
She also praised counsel on both sides as having conducted themselves “with the utmost integrity, honesty and, perhaps most importantly, fearlessness”.
Bruce Lehrmann was bailed and ordered not to contact Brittany Higgins or her family, and to notify police of any change of address and provide an itinerary for any overseas travel, two weeks ahead.
Outside court, Lehrmann’s lawyer, Steven Whybrow, said: “Obviously everyone is disappointed by what happened.” He declined to comment further.
Higgins, who was also in court when the mistrial was declared, then made a statement.
“I was required to surrender my telephones, my passwords, messages, photos and data…” she said. “My life has been publicly scrutinised, open for the world to see. His has not.”
Later on Thursday, Whybrow referred Higgins’ full prepared statement – only part of which is reported here – to both the court and the Australian Federal Police for consideration as a possible contempt of court.
A retrial is provisionally set to begin on February 20 next year.
This article was first published in the print edition of The Saturday Paper on October 29, 2022 as "Lehrmann trial derailed".
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