Juror took three forbidden documents into jury room in Bruce Lehrmann case

A new bombshell revelation has emerged regarding the conduct of the juror whose act triggered a mistrial in the Bruce Lehrmann case.

The juror who triggered a mistrial in the trial of Bruce Lehrmann took more than one forbidden document into the jury room.

But they will face no consequences because the ACT, unlike other jurisdictions, does not impose fines or jail time for juror misconduct.

In a footnote to a written judgment released by the Chief Justice of the ACT Supreme Court Lucy McCallum, it has been revealed that after the juror was discharged that court sheriffs found two additional documents that should not have been in the jury room.

The juror was questioned by the Chief Justice in closed court on Thursday with the media excluded, to ensure there was no breach of laws that prohibit the identity of the juror.

What the court sheriff found in the jury room

The Chief Justice told the ACT Supreme Court on Thursday that it was an “inadvertent” discovery by sheriff officers of the court.

“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,’’ she said.

“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.

A statement given by Brittany Higgins outside of a Canberra courtroom was referred to the Australian Federal Police and the ACT Supreme Court by Bruce Lehrmann.

“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.”

Two additional documents found

Following the discharge of the jury, the Chief Justice said she was informed by the Sheriff’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,’’ she said.

Bruce Lehrmann pictured leaving the Magistrates Court in Canberra. Picture: NCA NewsWire/Gary Ramage

“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 about ‘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.

The mistrial prompted outrage. picture: David Gray/AFP

“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 NSW, 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.

Brittany Higgins alleged that former conservative staffer Bruce Lehrmann raped her on a couch inside the parliamentary office of a government minister following a night of heavy drinking in March 2019. Picture: David Gray/AFP

“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.”

Regrettable but necessary

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.”