Justin Quill: No winners in Bruce Lehrmann rape mistrial

The emotional and legal costs of the Bruce Lehrmann rape mistrial will be enormous. An example needs to be made of the juror who let that happen.

The Bruce Lehrmann rape trial – otherwise known as the Brittany Higgins rape trial – was always going to end with a large number of people disappointed.

A guilty verdict would have seen Lehrmann, his supporters and those who thought there was reasonable doubt upset and screaming about fair trials.

A not-guilty verdict and we would have heard from Higgins, her supporters and victims’ rights advocates calling for change to support victims.

It was expected there would be winners and losers from the trial.

No one expected that absolutely everyone would be disappointed in the result. But here we are. No verdict, and not even a concluded trial after the jury was on Thursday sensationally, but correctly discharged and the trial abandoned by the Chief Justice of the ACT Supreme Court, Justice Lucy McCallum.

The trial was abandoned because one of the jurors failed to obey the law or the directions of Justice McCallum and did their own research – bringing into the jury room print outs of that research. It is beyond stupid.

Brittany Higgins walked out of the ACT Supreme Court in tears on Thursday after a mistrial was declared. Picture: Gary Ramage

For the participants, Higgins, Lehrmann, witnesses, police, prosecutors, defence lawyers and court staff including her Honour, this must be infuriating.

Imagine working on the biggest work project of your life, and after many months, on the day it’s due to be presented, it’s lost and you have to go right back to the start – all because someone didn’t want to do the right thing.

Emotional cost aside, the legal costs will enormous – I would guess this juror has cost up to $2 million dollars.

Frankly, the juror should be charged.

Not just because of the cost of their actions – but also because it is important to send a message to future juries that you should not conduct your own research and you should follow the judge’s directions.

Perhaps the only positive out of this is that this insight might get out there and reduce the chances of future juries being abandoned.

It might not seem like a big deal, but that’s because it rarely happens in such high profile cases so we don’t necessarily hear about it.

But in the five years between 2017 and 2021, there were 160 juries discharged in Victoria alone.

Sure not all of them were because of jury misconduct, but it’s clear that having to abandon trials is a critically important issue for our judicial system.

So hopefully public education as a result of the publicity about the case and articles like this one will lessen the instances of juries having to be discharged.

But let’s move on from the mind-blowingly stupid juror mistake.

Bruce Lehrmann’s legal team referred Brittany Higgins – the woman he allegedly raped in Parliament House – to police to determine whether she could be charged with contempt of court. Picture: Gary Ramage

The other big news coming out of the abandonment of the trial was Brittany Higgins’ statement outside Court.

It looked to me like she was delivering a statement prepared in anticipation of a verdict that would then be tinkered depending on whether it was a guilty or not guilty verdict.

Higgins was clearly emotional. As one would expect. Whether you believe the allegations or not, it is undeniable that Higgins would have been under enormous stress since this matter started – especially in recent weeks with the trial running.

But parts of Higgins’ statement outside court caught my attention. At one point Higgins said,

“My life has been publicly scrutinised for the world to see. His was not.”

That is accurate. And later she said, “this is the reality of how complainants in sexual assault cases are treated.”.

This, in my view is not accurate.

You see in sex offence cases such as this, the law throughout Australia – including in the ACT where this trial was conducted – is that you cannot identify the alleged victim unless they consent.

The alleged victim can also usually give evidence in closed court. But here, Brittany Higgins not only consented to being identified, she courted (pardon the pun) the media and sought to be identified.

Brittany Higgins’ delivers a statement outside Court. Picture: Gary Ramage

So while most alleged rape victims are not identified – because the law says they are entitled to anonymity – Higgins was identified in this case for one reason – because she chose to be.

It was clear from her statement outside Court that this case and the trial in particular had taken an enormous toll on Higgins.

That is understandable. And frankly, I would have thought indisputable. That would be so whether the allegations are true or not.

So while I have sympathy for Higgins, it must be remembered when she is calling out the “public scrutiny” she has been subjected to, that scrutiny has only occurred because she permitted it.

Otherwise, Brittany Higgins would be an anonymous alleged rape victim.

We wouldn’t know what she looks like and we wouldn’t know her name.

So while I don’t doubt what Higgins was saying about the toll this case has taken on her, rather than it making me think the “system is broken”, which appears to be the point Higgins was making, in my view it demonstrates the system allowing alleged victims to remain anonymous is appropriate and needed.

The system is definitely not perfect. It’s probably not even very good.

But on this point, the system is spot on.

Alleged victims should have the right to remain anonymous and usually they do.

Brittany just chose to give up that right.

Justin Quill is a Partner with major law firm Thomson Geer, which acts for the Herald Sun