ACT Chief Justice Lucy McCallum’s remarks could ‘undermine rule of law’: barristers

Barristers are up in arms over comments from ACT Chief Justice Lucy McCallum, with one questioning whether she is ‘a judge or a law-reforming politician’.

ACT Chief Justice Lucy McCallum. Picture: Canberra Times

Canberra barristers are up in arms at ACT Chief Justice Lucy McCallum’s comments that the fair trial process was an “intractable problem”, saying her remarks could undermine the presumption of innocence and disintegrate the public’s confidence in the rule of law.

The Australian understands a group of senior lawyers and barristers is preparing a letter to Chief Justice McCallum expressing concern about the comments, which were made in an exclusive interview with The Canberra Times announcing an inaugural sexual assault list for the territory.

In the interview, Chief Justice McCallum said the courts could “do more” to strike a balance between conducting fair trials and evidence testing.

“There’s an intractable problem in that our overriding task and function is to ensure an ­accused person has a fair trial,” she said.

Chief Justice McCallum said the courts had not properly stopped defence barristers from asking “misleading, confusing, offensive, annoying, harassing, humiliating or repetitive” questions during cross-examination, because “we’re all scared of not giving an accused a fair trial”.

She also said the “messaging” for rape complainants in the territory was “we are entitled to think you might be lying until you prove that you’re not”.

Her comments have shocked many members of the Bar, with concerned barristers banding together to object. “Why would you use the phrase ‘intractable problem’?” one barrister, who requested anonymity, said.

“It’s not a problem. It’s the principle of the whole justice system. A fair trial is not an ‘intractable problem’, it’s an essential mechanism that’s relied upon to ensure justice is done.”

“Is she a judge or a law-reforming politician?” another senior barrister said.

The ACT Bar Association’s criminal law committee has been receiving letters raising concerns about Chief Justice McCallum’s comments, including from barrister Steven Whybrow SC, who represented former Liberal staffer Bruce Lehrmann in his criminal rape trial and failed defamation action against Network Ten.

“I am concerned there is a slow creep occurring where to even publicly suggest such things as a presumption of innocence for all persons charged with criminal offences but particularly sexual offences is to risk criticism, abuse and ostracism,” he said.

Steven Whybrow, right, with former Liberal staffer Bruce Lehrmann. Picture: NCA NewsWire / Gary Ramage

Mr Whybrow has relocated to Perth since the Lehrmann trial was aborted in late 2022 because of juror misconduct, but called on the ACT Bar to take action against Chief Justice McCallum.

“The Bar needs to proactively express its concerns about some of the extra judicial comments made by the Chief Justice, defend its members in relation to the implied suggestions that they regularly ask complainants improper questions and reiterate that whilst the Bar recognises and appreciates the stress and trauma placed on all those that find themselves caught up in (cases) and will constructively engage with all proposals to lessen that stress and trauma, this cannot come at the expense of, or with some diminution of, the foundations of the rule of law,” he said.

Mr Whybrow also told committee members that after he was interviewed on Seven’s Spotlight program in August last year criticising the handling of Mr Lehrmann’s rape trial by then-director of public prosecutions Shane Drumgold, he received a letter from Chief Justice McCallum denouncing his media appearance.

“Shortly after that interview went to air, I received a personal email from the Chief Justice on 17 August, 2023, that (amongst other things) cautioned me that ‘when a comment is published that concerns or could be construed to concern the conduct of the court, the court cannot respond’,” he wrote.

Mr Whybrow’s submission noted that “the court (or at least its Chief Justice) now seems to have no difficulty in making very public statements suggesting some institutional and underlying unfairness in sexual assault trials and foreshadowing that at least in this jurisdiction a significant reining in as to how barristers may be able to cross-examine a complainant in future sexual assault trials.”

Another submission to the criminal law committee from a concerned barrister said there “seems to be some emerging ‘prevailing wisdom’ that if a complainant in a sex-offence pro­ceed­ing gives a different version of events each time they recount what they say happened to them, this can be readily dismissed as some kind of ‘trauma response’ and should not be taken to suggest that they are either lying or un­reliable in their account.”