The sensational decision on Friday to abandon the trial of a man accused of raping Brittany Higgins in Parliament House three years ago leaves us with two clear lessons – and a hope they are heeded.
ACT Director of Public Prosecutions Shane Drumgold SC dramatically dropped the case against Bruce Lehrmann, accused of raping Ms Higgins in the parliamentary office of then defence industry minister Linda Reynolds after a night out drinking with colleagues in March 2019.
Mr Lehrmann had pleaded not guilty to sexual intercourse without consent.
A trial of Mr Lehrmann ended in the ACT Supreme Court in October after a juror accessed research material that had not been introduced in evidence.
A re-trial was ordered and had been set down for February 20 next year. That trial will no longer go ahead.
On Friday, Mr Drumgold announced that as far as the law was concerned, the entire matter is now over.
Ms Higgins’ ordeal
His reasons were simple and give an insight into the ordeal already faced by Ms Higgins, which undoubtedly would have been repeated.
The ACT prosecution policy (which is not unlike all such policies around the country) makes it very clear (in this case, section 2.9) that a prosecution should not proceed if there is potential harm to anyone, and, in this case specifically, a key witness.
Ms Higgins’ medical specialists had prepared reports sent to the DPP that indicated a February re-trial would potentially be harmful to her health. She would have had to repeat all of her evidence in front of a new jury and would have been cross-examined in the same way.
Note, too, that Mr Lehrmann chose not to give evidence in his trial (which he was entitled to do under the law) and was therefore not subjected to cross-examination.
There is no doubt that he would have made the same choice again. This imbalance would have weighed, once again, heavily on Ms Higgins’ mind.
And on the subject of her evidence, recall also that Ms Higgins had made a contentious statement on the steps of the court after the October trial had been abandoned (namely that she, as the complainant, had seemed to be the one on trial).
There may have been further examination of that statement by the defence team in pleading a case ahead of the re-trial that their client could no longer get a fair trial.
Clear lessons
There are two clear lessons here.
The first is that the ACT needs to introduce majority verdicts in line with most other Australian jurisdictions.
Whomever in the jury (and there may have been more than one) was holding out in the Lehrmann trial in October remained unmoved from their position for five days. A majority verdict might have broken that impasse.
Of course, we will never know how far from uniformity the jury was. Nor will we ever know whether the majority was for or against guilt or innocence (and unanimity is required for both verdicts). That is because it is an offence in Australia to reveal the deliberations between jurors in a jury room.
But while the DPP was of the view (as he needed to be under prosecution policy) that a guilty verdict was very possible, there may have been some thought in Mr Drumgold’s mind that a hung jury may have occurred this coming February, adding to the pressure on him not to put Ms Higgins in the same position again for the same outcome.
In South Australia there have been majority verdicts (10 or 11 out of 12 jurors after four hours of deliberations, except in murder trials) since 1927 and they have worked successfully for almost a century. The ACT should legislate for that change now.
Media’s role
The second lesson is for the media’s attention.
This case (and the justice outcomes sought by it) was very poorly served by some sections of the media.
Mr Drumgold, in his remarks on Friday, highlighted how Ms Higgins’ mental health was pushed to the limit by the media’s hounding of her over the course of the last three and a half years.
Mr Lehrmann, too, has had to face the slings and arrows of public opinion, egged on by luminaries in the popular press, including Logie-winning Lisa Wilkinson in June this year.
In her acceptance speech, Ms Wilkinson thanked Ms Higgins for trusting her and The Project team with her story, and for changing the national conversation around allegations of sexual abuse.
Justice McCallum said, in response:
“What concerns me most about this recent round is that the distinction between an allegation and a finding of guilt has been completely obliterated …The implicit premise of [the speech] is to celebrate the truthfulness of the story [Ms Wilkinson] exposed.”
Where do we go from here? Nowhere. The matter is now closed.
One can only hope that all parties can get on with their lives and those who reflect on the experience will resolve not to repeat the mistakes that were made.
Rick Sarre is Emeritus Professor of Law and Criminal Justice at the University of South Australia and an Adjunct with UniSA: Justice and Society. He was formerly the Dean of Law at the UniSA Law School.
