The ACT’s attorney general, Shane Rattenbury, says his government will “carefully” consider comments about its jury misconduct laws after the chief justice was left unable to punish the juror who caused the Bruce Lehrmann trial to be aborted.
The ACT supreme court was hamstrung in its ability to punish the juror who brought outside research material on sexual assaults into the Lehrmann trial, forcing it to be aborted on Thursday.
The juror brought three separate papers on sexual assault into the jury room, despite repeated and clear instructions by the chief justice, Lucy McCallum, not to do so.
McCallum said the conduct “would amount to an offence” in New South Wales. The NSW offence allows fines for jurors and states that they “must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror”.
A similar offence does not exist in the ACT, McCallum said.
“There is no such offence in the Australian Capital Territory, but it is beyond question that the conduct of the juror is such as to abort the trial,” she said. “Both counsel for the prosecution and for the accused agreed with my decision in that respect.”
“It should go without saying that this outcome is both unexpected and unfortunate.”
Rattenbury told Guardian Australia the government would consider how to respond to the chief justice’s comments and the broader public debate about the ACT’s jury system.
“The ACT government notes the commentary about the jury system, and will consider these matters carefully,” he said. “It would be inappropriate to comment on this matter further while the court case is ongoing.”
Guardian Australia understands that commentary includes McCallum’s comments about the ACT’s jury misconduct laws.
The Lehrmann trial heard from more than two dozen witnesses, including two former cabinet ministers, across almost three weeks.
The jury deliberated for an extensive period and indicated earlier this week that it could not reach a unanimous verdict. Jurors were told to try again on Tuesday and took another full day of deliberations on Wednesday before the misconduct was discovered.
Initially, a sheriff’s officer found a single research paper on sexual assault during routine tidying of the jury room.
The officer brought it to the attention of the court, earning praise for his courage, and the juror was interrogated by McCallum. The chief justice then decided that the only option was to discharge the juror and the 11 remaining members of the jury.
The decision to abort the trial now means Lehrmann faces a potential retrial in February 2023.
That retrial can be conducted without Brittany Higgins, who alleges she was raped by Lehrmann in Parliament House in 2019, coming back in-person for evidence and cross-examination.
Instead, a video recording of her evidence during the first trial can be used. The defence can apply to have her brought back in-person in certain circumstances.
Lehrmann denied the allegation that he raped Higgins on 23 March 2019 and pleaded not guilty to one charge of sexual intercourse without consent.
After discharging the jury, McCallum warned the media it should publish no prejudicial information about the case before the retrial and “fall silent” after reporting Thursday’s outcome.
