Inside the unheard battle to delay the Bruce Lehrmann rape trial

Details of how an unheard battle was fought in an attempt to permanently delay Bruce Lehrmann’s rape trial have been revealed.

Bruce Lehrmann sought to halt proceedings in his high-profile rape trial months before the case began, claiming an “egregious” speech from Scott Morrison painted him as a guilty man.

The ACT Supreme Court dismissed the application in April but the Chief Justice’s reasons could not be published until now. Chief Justice Lucy McCallum on Wednesday lifted a non-publication order over her judgment and the court confirmed the reasons could be published.

Mr Lehrmann is accused of raping former colleague Brittany Higgins in Linda Reynolds’ ministerial office at Parliament House after a night out drinking with work colleagues in March 2019.

He has pleaded not guilty to sexual intercourse without her consent and being reckless to her consent.

In April, Mr Lehrmann’s lawyers asked for a permanent stay on his charges, and if that failed, a temporary stay.

Brittany Higgins has accused Bruce Lehrmann of sexually assaulting her inside Parliament House. Picture: NCA NewsWire / Gary Ramage

Mr Lehrmann’s legal team tried to have the case permanently stayed earlier this year. Picture: NCA NewsWire / Gary Ramage

Mr Lehrmann’s lawyers argued that it would be impossible for the court to find 12 impartial jurors because of the publicity surrounding the case.

In their submission, they argued that it was a case of “accuser vs accused” in which Ms Higgins (as the accuser) set out to discuss the allegations “with the support and assistance of the media and the backing of famous people” including the then Prime Minister.

At the time of the application, Mr Morrison had just months before handed down a historic apology to victims of sexual harassment and assault in parliamentary workplaces.

Mr Morrison apologised directly to Ms Higgins – who was in the public gallery – for the “terrible things” which took place in parliament.

At the time, Mr Lehrmann was represented by high-profile barrister John Korn.

He argued Mr Morrison’s apology was “particularly egregious as it imputed the accused with guilt of the offence”.

“Or at least implicitly assumed the truthfulness of (Ms Higgins),” the judgment, released on Wednesday afternoon, said.

The defence submitted the effect elevated Ms Higgins to a “status she should not have for the purpose of the accused’s trial”.

“He submitted that the case is unique because the complainant ‘walks into Court with an aura about her’ and that the problem this creates is incurable.”

Prime Minister Scott Morrison’s official apology to victims of sexual harassment, bullying and violence in the building in Parliament House was cited as a key reason in the application to halt the trial. Picture: NCA Newswire/Gary Ramage

Chief Justice Lucy McCallum said it could be accepted that the case against Mr Lehrmann was “unique or at least unusual” due to its high profile nature.

But, as was reported at the time, she rejected all of the accused’s arguments.

Justice McCallum said Mr Lehrmann had sought orders directed at publishers of certain articles requiring them to “take down any such material they had published”.

More problematically, he seeks an order restraining “any media outlet from publishing any material of and concerning the accused and/or the complainant that relates to or refers to directly or indirectly the present criminal proceedings or any part of the subject matter to which those proceedings relate” (order 4 sought in the application).

In those circumstances, by application dated 18 March 2022, the accused seeks a permanent stay of the prosecution and, in the alternative, an order postponing or delaying the trial (orders one and two sought in the application).

The accused also seeks orders implicitly directed to various media entities as publishers of certain articles identified in the evidence requiring those entities (un-named and not joined as respondents to the application) to “take down any such material they have published or caused to be published” (order 3 sought in the application).

“The mere fact that a member of the panel is aware of the pre-trial publicity is not of itself problematic,” Ms McCallum said.

The chief justice said she was “not satisfied” with Mr Lehrmann’s argument for a permanent stay.

“I am not persuaded that the matter is beyond rescue, certainly not to the extent required to be established in order to obtain a stay.”

In the April application, Mr Korn also applied for a take-down order to be imposed on media outlets which had run coverage about the case.

The defence also wanted the media to be banned from publishing any material about the accused of the complainant.

In her judgment, Ms McCallum rejected the argument the court was “condoning a media ‘free for all’ should they not agree.

“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.

A jury of eight women and four men has been locked in deliberations since last Wednesday.

In her opening directions to potential jurors Ms McCallum noted the trial was somewhat of a “cause célèbre” due to its high-profile nature.

“I'm asking you to consider your own state of mind (with) the issues that will arise in this case and honestly consider if you can be impartial and give a true verdict according to the evidence.”