The jury in Bruce Lehrmann’s trial for the alleged rape of Brittany Higgins was sensationally discharged on Thursday, after a juror was discovered to have conducted outside research on the case and brought external material into the jury room.
A full week after the jury began deliberating in the case, the ACT chief justice, Lucy McCallum, told the court she had no choice but to abort the trial, after a sheriff’s officer found a research paper on sexual assault among the possessions of one of the 12 jurors.
“It has come to my attention that one of you, contrary to directions, has undertaken research in relation to issues in the case and that material has entered the jury room that ought not to have,” she told the jury.
“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. In the circumstances, I have discharged that juror and I have to discharge you all.”
What happened?
McCallum told the court on Thursday morning that the previous afternoon, as sheriff’s officers cleaned the jury room, one of them “accidentally bumped” the document folder of one of the jurors.
The documents fell on to the floor and the officer noticed the title page of an academic paper “the source of which suggested the topic of the paper might be sexual assault”.
The officer told the court, and McCallum’s associate identified the paper in question.
She told the court the paper was about the “unhelpfulness of attempting to quantify the prevalence of false complaints [in sexual assault cases] and a deeper analysis for the reasons for false complaints and scepticism in the face of true complaints”.
McCallum closed the court to examine the juror on Thursday morning.
When the hearing resumed, she said the juror had told her the document “had not been used or relied upon by any juror”.
But, she said, it was “appropriate to regard that … with some scepticism.”
The document, she said, could “sensibly be deployed on either side of the central issue in this case”.
She said she was left with no choice but to discharge the individual juror, and then the rest of the jury.
Why does it matter?
In jury trials, jurors are forbidden from making inquiries about the case outside the evidence heard in the courtroom.
In discharging the jury, McCallum pointed out that she had warned the jurors about the prohibition on at least 17 occasions during the trial.
On the opening day, for example, she told jurors that any form of outside research about the case was “absolutely forbidden”.
It was vital for a fair hearing, she said on the opening day, that jurors “rely exclusively on the evidence you hear in this courtroom”.
“You must completely put out of your mind anything you think you know about this case or the parties involved,” she said at the time, noting the significant media attention it had garnered.
On Thursday she pointed out that in NSW, a juror who seeks outside information about a case may face criminal charges.
There was “no such offence in the ACT”, she said, but the “conduct of the juror is such as to abort the trial”.
“It should go without saying this is both an unexpected and unfortunate outcome in this trial,” she told the court.
What happens next?
McCallum set down a provisional date for a second trial, 20 February 2023. She noted, though, that was subject to whether a second trial “is to proceed”.
McCallum told the media she expected reporting on the case “should fall silent” after Thursday to allow for “a fair trial … if there is to be [a new trial]”.
It has yet to be confirmed if a second trial will proceed.
But after comments made by Higgins later on Thursday, Lehrmann’s lawyers said they had asked both the court and the Australian Federal Police to consider whether she “might” have committed contempt of court.
In a lengthy and emotional statement made outside the court, Higgins levelled criticism against the justice system.
She said her life had been “completely scrutinised, open for the world to see”, while criticising the judicial system which gave Lehrmann the right to silence.
Shortly after those comments, Lehrmann’s barrister, Steven Whybrow, said he had “brought these comments to the attention of the court and the Australian federal police, and it is not appropriate for Mr Lehrmann or his lawyers to make any comment as to whether the complainant’s statements might amount to a contempt of court or offences against the ACT Criminal Code”.
Whybrow noted that in her closing remarks on Thursday McCallum had made “strong comments about people making statements or comments that could prejudice a fair trial”.
Contempt of court can relate to actions which may interfere with or undermine the authority or performance of the courts, or which interfere with the right of an accused to a fair trial.
