Legal loophole as Lehrmann rape case dropped

Bruce Lehrmann remains a man in limbo: Prosecutors have abandoned a second trial, but if his accuser’s mental health improves, legal experts say things could change.

Bruce Lehrmann leaves the Magistrates Court in Canberra after the jury failed again to deliver a decision on the case against him. Picture: NCA NewsWire / Gary Ramage

Bruce Lehrmann is technically still in limbo, with laws leaving open the possibility that he could be prosecuted again should Brittany Higgins’ mental condition improve.

Legal experts told The Telegraph that laws would allow for the ACT Director of Public Prosecutions to use “prosecutorial discretion” to make Mr Lehrmann stand trial again.

The most recent attempt at the trial ended without a result when the jury was discharged in October without reaching a verdict.

However, the experts also said it would be unlikely that ACT DPP Shane Drumgold SC would take this step given that it would almost certainly be met with an abuse of process application by Lehrmann’s legal team.

It is not known if Mr Drumgold’s office gave Mr Lehrmann’s legal team an undertaking that the matter would not be prosecuted again in the future.

Bruce Lehrmann, right, won’t face a second trial after the DPP abandoned its prosecution over the alleged sexual assault of Brittany Higgins, left.

“He has prosecutorial discretion and can bring it back,” one senior lawyer told the Telegraph. “If she (Ms Higgins) changes her mind, he can.”

When contacted, a spokeswoman for the ACT DPP said: “The DPP will not be providing any further comment on this matter.”

Lawyers for Mr Lehrmann also declined to comment.

CHARGE DROPPED

Earlier today, the Mr Drumgold’s office confirmed Mr Lehrmann will not face a second trial after the DPP abandoned its prosecution over the alleged sexual assault of Ms Higgins.

Until then, Mr Lehrmann, who had pleaded not guilty, was to front a retrial in February 2023.

Mr Drumgold said while he believed a conviction was still possible, experts had warned a retrial of the case would pose an unacceptable risk to the life of Brittany Higgins.

“In light of the compelling independent medical opinion and balancing all factors, I have made the difficult decision that it is no longer in the public interest to pursue a prosecution at the risk of the complainant’s life,” he said.

Ms Higgins has since confirmed she is receiving mental health treatment in Queensland.

“Brittany is in hospital getting the treatment and support she needs,’’ a friend authorised to speak for Ms Higgins said.

Mr Lehrmann’s first trial was declared a mistrial after an allegation of jury misconduct, following the discovery of an academic paper on the topic of sexual assault in the jury room. In written reasons published later, Ms McCallum revealed two additional documents had been found. They were brought in by the same juror.

Mr Lehrmann was charged with a single charge of sexual intercourse without consent and being reckless to consent.

It was alleged the offence took place inside Linda Reynolds’ ministerial office at Parliament House after a night out drinking with work colleagues in March 2019.

Mr Lehrmann pleaded not guilty and strenuously denied ever having sex with Ms Higgins.