Brittany Higgins rape case: Bruce Lehrmann’s application to halt trial dismissed

A last-minute application was today made in light of “fresh material” relating to the Brittany Higgins case before a significant decision in court.

Lawyers for the man accused of raping Brittany Higgins made a last-minute application to delay Friday’s judgment on whether a jury trial could proceed fairly “in light of new material” but were unsuccessful, it can be revealed.

In a major development after 4pm, ACT Chief Justice Lucy McCallum ruled that Bruce Lehrmann’s trial would go ahead as scheduled on June 6 before a jury, dismissing an application made by his legal team to permanently halt or delay the proceedings due to the high level of publicity it had received.

But before she handed down her judgment in the ACT Supreme Court – in which she also dismissed applications to make the media take down certain material and restrict further publication on matters relating to the trial – the court was told there was “new material” that had come to light.

There is a non-publication order on what this is.

“However, it can be said openly that the material touches on issues relating to this trial and includes trenchant criticism of the AFP and the administration of justice in criminal proceedings concerning allegations of sexual assault,” Chief Justice McCallum said.

Bruce Lehrmann will face a trial in June.

She rejected an application made by Mr Lehrmann’s lawyers to delay handing down her judgment in light of it.

Chief Justice McCallum said there was an option for them to put in a further application to stay the trial based on the fresh material.

She then revealed she would dismiss the application to permanently stop or alternatively delay Mr Lehrmann’s trial – meaning it will go ahead as scheduled.

She also dismissed the defence’s application for a take-down order directed at the media and their request for an injunction to restrain publication on matters relating to Ms Higgins or Mr Lehrmann and the trial.

In parts of her judgment that are not subject to non-publication orders, Chief Justice McCallum noted the “considerable amount of public attention” the case had attracted.

“For a variety of reasons the matter has attracted a considerable amount of public attention,” she said.

“The accused contends that the nature of the publicity is such that, absent the possibility of proceeding by judge alone, a fair trial is now impossible.”

She said there were two “discrete but related aspects” to that concern.

“First the accused contends that the scope of the publicity is such that it will be impossible for the court to find 12 impartial jurors,” Chief Justice McCallum said.

“Secondly, he contends that the damaging publicity is of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against the unfair consequences of that publicity.”

Chief Justice McCallum said the application for the injunction on the media reporting was “problematic”.

“Even if the relief sought were granted, it would not result in the cleansing of the internet of all material concerning the complainant’s allegations, as the accused himself accepts,” she said.

But she said the court was not condoning a media “free for all” because journalists were restricted in what they could write ahead of trial anyway.

“The question is one of the appropriate method of regulation,” she said.

“The country has robust contempt laws of which the media may be taken to be aware.

“To seek instead to regulate media discussion of criminal proceedings by the inexact tool of suppression and non-publication orders is a pious hope, particularly since the advent of the internet and social media.”

She said restraining the publishing of material in this way would be “difficult to enforce”.

“It is not even clear to me to whom it is directed,” she said.

Chief Justice McCallum said she was also not persuaded that the material that remained on the internet was the kind that could not be addressed by giving an appropriate direction to a jury.

Mr Lehrmann has pleaded not guilty to one count of sexual intercourse without consent against Ms Higgins in Parliament House.

Originally published as Brittany Higgins rape case: Bruce Lehrmann’s application to halt trial dismissed