Bruce Lehrmann’s lawyers accused former prime minister Scott Morrison of making a “particularly egregious” remark during his apology to Brittany Higgins which risked prejudicing his chance of a fair trial, according to a newly released judgment.
Lehrmann tried and failed to permanently stay the case against him in April, arguing pretrial publicity had denied him the opportunity of a fair trial.
Lehrmann’s lawyers pointed to, among other things, an apology made by Morrison in parliament in February to those who had experienced sexual harassment, sexual assault or bullying while working in federal parliament.
Morrison used the speech to apologise specifically to Higgins for the “terrible things that took place here”. Higgins was sitting in the public gallery at the time.
The ACT supreme court on Wednesday released its reasons for denying Lehrmann’s application to stay proceedings. The court confirmed the media were free to report on the judgment.
The judgment shows that Lehrmann’s previous lawyers argued that Morrison’s apology to Higgins was “particularly egregious” in terms of prejudice.
“It was submitted that the prime minister’s apology was particularly egregious as it imputed the accused with guilt of the offence or at least implicitly assumed the truthfulness of the complaint,” the ACT chief justice, Lucy McCallum, wrote in her April judgment.
“The accused submitted that the effect has been to elevate the complainant to a status she should not have for the purpose of the accused’s trial. He submitted that the case is unique because the complainant ‘walks into court with an aura about her’ and that the problem this creates is incurable.”
Lehrmann’s lawyers argued that this made it impossible to empanel an impartial jury or ameliorate against the prejudice by giving directions to the jury.
They claimed the “sheer volume of publicity concerning the complainant’s allegations” made it impossible to provide a complete catalogue of potentially prejudicial material.
McCallum said it was not enough simply to show that jurors were aware of pretrial publicity. She said the “critical question” was whether any prejudice that flowed from the pretrial publicity could be “adequately addressed by directions by the trial judge”.
“More accurately … a permanent stay should not be granted unless it can be concluded that nothing the trial judge can do can ameliorate the prejudice,” she said.
The judgment noted that much of the publicity following Higgins’ public allegations had focused on the handling of the complaint.
Much of the publicity assumed the truthfulness of her complaint, McCallum said. But the court also noted that the “commentary has not been all one way”.
“Outside the supportive forum of the Women’s March 4 Justice movement, she has been branded as a ‘liar’ and ‘a silly little girl who got drunk’,” the judge wrote.
“But in any event, accepting that by far the most part of the publicity assumes the complainant’s truthfulness, I am not persuaded that the matter is beyond rescue, certainly not to the extent required to be established in order to obtain a stay.”
McCallum found the “stringent” requirements for a permanent stay had not been met.
“In my assessment, the need to disregard prior awareness of a suggestion or imputation of truthfulness on the part of the complainant is something that could readily be explained to the jury by careful direction,” she said.
She was also not convinced of the need for a temporary stay.
“The case for a temporary stay is not compelling,” she said. “As explained by the director [of public prosecutions] in his submissions, the most damaging material was published at an early stage of the investigation and well before the accused had been named or charged. I am not persuaded that a temporary stay is necessary.”
The jury in Lehrmann’s trial is continuing to deliberate. He has pleaded not guilty to one charge of sexual intercourse without consent.
