The jury in the rape trial of Bruce Lehrmann was yesterday discharged without having reached a verdict, due to misconduct by a juror.
Mr Lehrmann, an ex-Liberal Party staffer, was accused of raping his then-colleague Brittany Higgins at Parliament House in Canberra after a night out drinking in March 2019.
He pleaded not guilty and said no sexual activity occurred between the pair.
The jury in his trial had been about to enter its seventh day of deliberations when an academic paper relating to false rape accusations was discovered by chance.
The court heard a security officer had been tidying up the jury room when papers were accidentally knocked onto the floor.
The contents of the papers raised concerns for the sheriff's officer who reported their discovery to ACT Chief Justice Lucy McCallum and, ultimately, resulted in a mistrial.
In NSW, what the juror did would amount to an offence, but there is no such offence in the ACT so they have not been charged or fined.
So, what are the rules for jurors in the ACT?
Who was the juror?
We have no idea who the juror who acquired the forbidden research paper was, and that's the point.
It is a crime to identify jurors in Australia. In fact, they are not even allowed to identify themselves as being part of a particular trial.
The secrecy of this law is designed to shield individuals from being contacted, influenced, tracked down or called out over a matter.
In Mr Lehrmann's rape trial, what we do know is that anyone on the ACT electoral roll could have been summoned to be a jury member.
Earlier this month, a group of Canberrans were called to the ACT Supreme Court before that random selection of people was whittled down to a jury of 16 for the trial — and then finally a jury of 12 for deliberations.
Anyone called to the court for jury duty who had been convicted of certain crimes would have been disqualified and others may have been granted exemptions to not be part of the jury.
The prosecution and defence also challenged certain individuals, though they do not have to explain their challenges.
Associate professor of law at Monash University Jacqui Horan has researched the role of jurors in Australia extensively.
She said, in Australia, jurors tended to be "earnest" and "educated" and that it was crucial they were afforded "privacy to make decisions in secret."
"But this is very different in America, for example, where some jurors have had book deals signed to give their version of what happened in that jury room before the deliberations have even started," she said.
And, Associate Professor Horan said, once empanelled and ready to play an important part in the justice process, jurors were bound by a number of very important rules.
Can jurors conduct more research?
As demonstrated in yesterday's mistrial, jurors must not conduct independent research.
Chief Justice McCallum told the court she had repeatedly warned the jury they were not to be detectives.
Instead, a juror's knowledge of a case should be restricted to what they have been told and shown in court.
"That's because it's not fair if the barristers and judge do not know what the jury is including in making its decision," Associate Professor Horan explained.
However, she said there had always been a glaring pitfall in the process: human nature.
"It's instinctive for people to do their own research. [The jury] knows it's a really important decision and they want to get it right," Associate Professor Horan said.
"It's also super intimidating for jurors to ask [the judge] questions.
"So, they look for things such as the definition of 'beyond reasonable doubt' to find out what it means.
"And if they have the choice of asking a question and feeling really nervous about it or just doing it at home on the fly, you can imagine what they're going to choose.
"But what they need to do is channel that question back to the judge."
Associate Professor Horan recalled that there was a judge in NSW who used to say:
"I am your Google. Ask me the question, not Google."
The correct way for a jury to be inquisitive is to write a question down on paper and hand it to a sheriff's officer who will deliver it to the judge.
The judge then answers it in open court, ensuring everyone has the same information. Jurors can do this without revealing which of the 12 they are.
The ACT Jury Handbook had this to say:
"You must not make any enquiries or conduct any research of your own on matters relating to the trial. Do not make searches online or visit any place relevant to the case. While you are on the jury, you should minimise your use of social media such as Facebook."
Jurors are also told to dob in their peers if they think someone is doing extracurricular study.
But, while the court urges jurors not to do their own research, it has become increasingly difficult since the development of not just search engines but social media in particular.
Courts usually try to mitigate the situation, rather than ban social media use entirely.
And there are extra safeguards in place if a juror stumbles across a story about a trial online, including that media outlets are only allowed to report what was said in court, in the presence of the jury.
Can jurors talk about the case?
Do not tell your partner. Do not tell your best friend. Do not tell a stranger on the street.
To ensure that evidence heard by jurors in court is not contaminated by outside opinions, jurors must keep their lips sealed.
They cannot discuss the matter or reveal any deliberations.
Associate Professor Horan said it was not all bad though, because there was one group of people jurors could talk to (and in the trial of Bruce Lehrmann, those conversations spanned several days).
"You can't talk to anybody other than your fellow jurors," she said.
"So, you've got 11 people to talk at length about the case and they've all heard the same thing.
"But, if a juror speaks to somebody else involved in the case or perhaps somebody approaches them … that's forbidden in Australia, for good reason, because it can bring a person's own interests into the courtroom."
Ultimately, the jury's task in the rape trial of Mr Lehrmann was to deliver its verdict – to decide whether he was guilty or not guilty of the alleged rape of Ms Higgins.
They were required to reach a unanimous verdict.
But, that was never able to happen.
Chief Justice McCallum has granted Mr Lehrmann bail until February 20, 2023, when a new trial has been scheduled and will run in front of a whole new jury.
