Bruce Lehrmann’s lawyers seeking legal advice from police over Brittany Higgins speech after trial

Bruce Lehrmann’s lawyers are seeking urgent legal advice from police over Brittany Higgins speech outside court.

The ACT Supreme Court has responded after Bruce Lehrmann’s lawyers sought urgent legal advice from police over whether Brittany Higgins’ speech outside the ACT Supreme Court could constitute contempt of court.

In response to inquiries about a complaint of contempt, the court issued a statement saying “the court does not engage in public discourse about remarks made by any participant in legal proceedings”.

Mr Lehrmann’s defence barrister Steve Whybrow was seen speaking angrily into his phone at the court after the speech.

In a statement, he confirmed he had referred the matter to police.

“When we left Court this morning, I indicated to the gathered media that given this matter was ongoing and a date of 20 February 2023 had been fixed for any retrial, it would be both inappropriate and irresponsible to make any further comment at this stage.”

“I understand the complainant and other members of her support team were all seated in Court this morning when the Chief Justice discharged the jury and made strong comments about people making statements or comments that could prejudice a fair trial.

“Notwithstanding Her Honour’s admonition, the complainant proceeded to give what appears to have been a pre-prepared speech to the media outside the Court.”

Brittany Higgins made a speech outside the ACT Supreme Court. Picture: NCA NewsWire / Gary Ramage

“We have brought these comments to the attention of the Court and the Australian Federal Police, and it is not appropriate for Mr Lehrmann or his lawyers to make any comment as to whether the complainant’s statements might amount to a contempt of court offences against the ACT Criminal Code.

“I urge all media to show restraint in reporting this matter and in particular in republishing the statements made by the complainant.

“Neither Mr Lehrmann nor his lawyers will be making any further comment on this matter at this stage.”

Bruce Lehrmann and his defence lawyer Steve Whybrow leave the court. Picture: NCA NewsWire / Gary Ramage

Earlier, Brittany Higgins has declared she felt that she was “on trial” in the aborted court proceedings over her alleged rape in a statement outside the ACT supreme court.

After five days of deliberations, the jury in the trial of Bruce Lehrmann was aborted on Thursday following an allegation of juror misconduct.

Mr Lehrmann pleaded not guilty and his lawyer said no sexual intercourse occured.

Surrounded by supporters including her mother Kelly Higgins, friend Emma Webster and partner David Sharaz, she also thanked Canberra’s health workers for saving her life.

“I chose to speak up,’’ Ms Higgins said.

“To speak up and share my experiences with others.

“I told the truth. No matter how uncomfortable or unflattering to the court.”

But she told reporters that the experience had been bruising.

“When I did speak up I never fully understood how asymmetrical the criminal justice system is, but I do now,’’ she said.

“I was required to tell the truth under oath for over a week in the witness stand, I was cross-examined at length.

“I was required to surrender my telephones, my pass words, messages, photos and my data to him.

“My life has been publicly scrutinised, opened for the world to see.”

While some had criticised the media for describing the matter as the Brittany Higgins trial she told reporters that this was accurate.

“Many of you in the media have been called out for labelling the last few weeks the Higgins’ Trial.

“I don’t blame you because it’s very clear who has been on trial,” she said.

She then hit out at how sexual assault complainants are treated in Canberra.

“Their lives are torn apart, their friends and families are called to witness stand.

“In the ACT during 2020, only 16 per cent of sexual offences were reported to police resulted in a charge. Only half of that number again resulted in a conviction. That is to our national shame.”

Ms Higgins did not answer questions over whether she would give evidence at a second trial.

Speaking outside the court, Mr Lehrmann’s lawyers said that it was “disappointing” outcome.

‘Everyone is disappointed at what happened but it would be inappropriate and irresponsible to say anything at this stage,’’ defence barrister Steve Whybrow 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.

Brittany Higgins outside court. Picture: NCA NewsWire / Gary Ramage

“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.”