Brittany Higgins: Rape trial jury discharged over juror’s act

Bruce Lehrmann will face a retrial after the jury in the trial of the former Liberal staffer accused of raping Brittany Higgins was discharged.

Bruce Lehrmann will face a retrial after the jury was discharged in the trial for the former Liberal staffer accused of raping Brittany Higgins in Parliament House.

Chief Justice Lucy McCallum has set the date for the new trial for February 20, 2023, with conditions for Mr Lehrmann being set out before the court.

He is not allowed to contact Ms Higgins, her partner David Sharaz, parents Kelly Higgins or Matthew Higgins and must advise the AFP of his residential address.

If Mr Lehrmann decides to travel overseas during this time he must also provide his itinerary to the AFP two weeks prior to his travel.

The 12-person jury had, so far, been unable to decide whether Mr Lehrmann is guilty or not guilty of one count of sexual intercourse without consent against Ms Higgins in the early hours of March 23, 2019.

Mr Lehrmann has pleaded not guilty to the charge, which allegedly occurred on a couch in the office of Senator Linda Reynolds.

The judge discharged the jury of eight women and four men in the trial Thursday morning after one juror acted inappropriately.

“It has come to my attention that one of you has, contrary to directions, undertaken research in relation to an issue in the case,” Chief Justice McCallum said.

“That material has entered the jury room which ought not to have.

“I have had an explanation and it may be no harm has been done but that is a risk I can’t take.”

Brittany Higgins with her partner David Sharaz arrived at court for the trial. Picture: NCA NewsWire / Gary Ramage

Chief Justice McCallum told the jury that juror had been discharged and she had made the decision to now discharge the rest of the group as well.

“Sometimes there is a mishap which…results in a miscarriage of a trial. That’s what’s happened here.”

In handing down her orders, Chief Justice McCallum revealed how it came to her attention that research material outside of the evidence provided in the courtroom had entered the jury room.

She said when cleaning the jury room following a day of deliberations, one of the court officers accidentally bumped a folder containing documents onto the floor.

When the officer picked them up he noticed part of the title page of an academic research paper, “the source of which suggested the topic of the paper might be sexual assault”.

The Judge said the content of the research paper included discussion around the unhelpfulness of attempting to quantify the prevalance of false complaints and a deeper analysis around false sexual assault complaints.

“The juror in question this morning gave an explanation, suggesting the document had not been used or relied upon by any juror,” Chief Justice McCallum said.

She said under the circumstances that claim was regarded with some scepticism, which is why the decision was made to discharge the jury.

Bruce Lehrmann has pleaded not guilty to raping Brittany Higgins. Picture: Martin Ollman/Getty Images

Ms Higgins arrived at the ACT Supreme Court this morning as the jury was set to continue deliberations for a sixth day.

On Tuesday afternoon, the group sent a note to ACT Chief Justice Lucy McCallum informing her they hadn’t been able to reach a decision.

“You have told me in a note you are unable to reach a unanimous verdict,” she told the jury.

Chief Justice McCallum said that experience has shown juries can “often reach a verdict if given more time”.

She directed the jury to go back out and continue their deliberations to see whether they can reach a unanimous agreement.

About 10 minutes after the jury were directed to continue their deliberations, the group informed the judge they wished to go home and return tomorrow morning.

“Members of the jury, I have been told you would like to go home now and return tomorrow with fresh minds,” Chief Justice McCallum said.

The court heard the Judge has the power to discharge the jury from giving a verdict but should only do that if after examining one or more of the jurors she is satisfied that they are not likely to agree.

The jury has been deliberating for five days over the charge against Bruce Lehrmann. Picture: NCA NewsWire / Gary Ramage

“That means there is no likelihood of genuine agreement after any further deliberations,” Chief Justice McCallum said.

The jury were told the only expectation of them is that they remain true to their oath and to consider the evidence fairly.

She also reminded the group they have a duty to listen carefully to the arguments of the other jury members.

“You are all equals in the jury room,” she said.

Chief Justice McCallum said members of the jury may take different paths that lead them to the same conclusion.

“I remind you of the direction I gave you in my summing up, your verdict, guilty or not guilty, must be a unanimous one,” she said.

What the Chief Justice said the reasons for aborting the trial

After a trial that ran for 12 days and following five days of deliberation by the jury, the Chief Justice Lucy McCallum said it had“regrettably been necessary to discharge, first, one of the jurors and then the balance of the jury.”

“At the time they were discharged, the jury was still deliberating following my giving them a Black direction on Tuesday afternoon,’’ she said.

“Instead, the jury has been discharged because I have received cogent evidence that at least one juror has had access to research material that was not provided to the jury during the trial.”

What the court sheriff found in the jury room

The Chief Justice said she wished to record her gratitude “for the courage, integrity and good sense displayed by the Sheriff’s officers who inadvertently made this discovery.”

“I have heard evidence this morning that, during routine tidying of the jury room by three Sheriff’s officers after the conclusion of proceedings yesterday, one of the officers accidentally bumped one juror’s document folder onto the floor. The jurors’ document folders are plastic boxes with a clear front.

“When the officer picked up the box to replace it on the chair from which it fell, he noticed part of the title page of an academic research paper, the source of which suggested that the topic of the paper might be sexual assault.

“The matter was promptly brought to my attention. The juror’s document box was not opened. However, by searching the date and publisher of the paper (which were visible through the cover), my associates were able to identify what appeared to be the article in question. The identity of the paper found by my associates has been confirmed in evidence this morning by the juror in question to be the paper in their document box.

“The subject matter of the paper is indeed sexual assault. Specifically, it is a discussion of the unhelpfulness of attempting to quantify the prevalence of false complaints of sexual assault and a deeper, research-based analysis of the reasons for both false complaints and scepticism in the face of true complaints.”

Following the discharge of the jury, the Chief Justice said she was informed by the Sherriff’s officers that the same juror was also in possession of two additional academic articles on the topic of sexual assault.

“It is neither possible nor helpful to speculate as to the use to which this information might have been put in the jury room, if any.

“The juror in question has this morning given an explanation that the document was not used or relied upon by any juror.

“However, it is appropriate in the circumstances to approach that evidence with some scepticism. At the very least, the fact that the paper was located and taken into the jury room by the juror indicates that it may have influenced that juror’s contribution to the jury’s deliberations.

“The unfairness to both parties is manifest.”

17 warnings given to the jury re ‘research’

During the course of the trial, the Chief Justice said on her calculation, the jury must have been given at least 17, and possibly more, warnings or directions as to the prohibition on undertaking any research or inquiries of their own.

“In my opening remarks to the jury, I said: Sometimes it happens in jury trials that jurors become curious about a matter. They might think that they might learn more if they went to visit the place where something is alleged to have happened, or consider - sometimes jurors have been reported to have tried to re-enact various things to see if something could happen the way someone said.

“And you will appreciate from what I have said to you that that is absolutely forbidden, members of the jury.

“You mustn’t try to undertake your own inquiries or try to re-enact any aspect of the offence or consider any external evidence about the consumption of alcohol or about any matter that might arise during the trial. You must rest exclusively on the evidence you hear in this courtroom.

“In any event, it is now beyond dispute that the research article made its way into the jury room. A review of the article reveals that it could be deployed to support either side of the central issue in this case, which was whether an act of sexual intercourse

was proved beyond reasonable doubt.

“The discovery of the article and the fact that it was brought into the jury room, of itself, necessitated the discharge of the whole jury.

Juror will not face any charges

The Chief Justice noted that in New South Wales, this conduct would amount to an offence.

“There is no such offence in the Australian Capital Territory, but it is beyond question that the conduct of the juror is such as to abort the trial. Both counsel for the prosecution and for the accused agreed with my decision in that respect. It should go without saying that this outcome is both unexpected and unfortunate,’’ she said.

“Before leaving this topic, I want to record my gratitude to all counsel who appeared in

the matter for the exemplary way in which they conducted themselves.

“The role of counsel in criminal trials, particularly defence counsel, is sometimes poorly understood. In this trial, all counsel have conducted themselves with the utmost integrity, fairness, honesty and, perhaps most importantly, fearlessness. They are to be commended, not criticised, for doing so.

“For those reasons, the orders I have made this morning are to discharge the individual

juror pursuant to s 8 of the Juries Act 1967 (ACT) and to discharge the balance of the

jury.”