Lehrmann trial aborted after juror accessed own information

The jury in the Lehrmann trial has been discharged after it was discovered a juror had obtained information outside the evidence presented.

ACT Chief Justice Lucy McCallum said it was unfortunate but indicated she had no option but to abort the trial. A new trial has been scheduled for February 20.

The member of the 12 person jury – which had been deliberating since last Wednesday – had been doing their own research.

McCallum said she had told the jurors at least 17 times not to seek information outside the court.

She said she had told them: “You must not try to undertake your own research”.

Early this week, jurors indicated they had not been able to reach an unanimous verdict, but McCallum urged them to continue to deliberate.

The juror’s material was found during a routine tidying. It was a research paper on the unhelpfulness of trying to quantify the prevalence of false complaints.

Former Liberal staffer Bruce Lehrmann was charged with raping his then colleague Brittany Higgins in the office of then Coalition minister Linda Reynolds shortly before the 2019 election.

Higgins’ sensational allegation, which she made public in the media in early 2021, fuelled a debate about a toxic culture in the Parliament House workplace and created serious and ongoing political problems for then Prime Minister Scott Morrison, who was widely accused of mishandling the fallout.

The trial saw Higgins face extensive questioning from the defence counsel and also heard evidence from Reynolds and another former minister, Michaelia Cash, for whom Higgins worked after leaving the Reynolds office.

Read more: Why was the Brittany Higgins trial delayed, and what is 'contempt of court'? A legal expert's view on the Lisa Wilkinson saga^[1]

Reynolds denied her main concern when she first discussed the incident with Higgins was that if it came out it would harm the government at the imminent election.

The jury also heard from witnesses who were ministerial and parliamentary security staff at the time.

Higgins accused Lehrmann of assaulting her on a couch in the parliamentary office of Reynolds, who was defence industry minister at the time, in March 2019, after a night out drinking in two Canberra bars.

Lehrmann pleaded not guilty to a charge sexual intercourse without consent.

Higgins spoke with police in 2019 but decided not to pursue the matter. In 2021, after giving two media interviews, she went ahead with a complaint.

She told police in February 2021 that she had been drinking with defence industry contractors and staffers, including Lehrmann, at The Dock in Kingston and 88mph on the evening of March 22, 2019.

Read more: The Jenkins review has 28 recommendations to fix parliament's toxic culture – will our leaders listen?^[2]

Higgins and Lehrmann agreed to share an Uber, but he said he “had to pick something up from Parliament House,” she said.

They arrived there at about 1.40am on March 23, and were let in to the Reynolds office by security.

Higgins, who described herself as highly intoxicated, said she fell asleep in Reynolds’ office.

“The next thing I remember is being on the couch as he was raping me,” she said. “I couldn’t get him off me. I was crying throughout the entire process. I said ‘no’ at least half a dozen times, he did not stop.”

Higgins was later found asleep and naked on the couch by a parliamentary security officer.

According to parliamentary security guard Mark Fairweather, Lehrmann left the building at 2:33am. Higgins departed several hours later, putting a jacket from a charity bag of clothes over her white dress.

Read more: Morrison says 'sorry' to Higgins for 'terrible things' that happened^[3]

The court heard Higgins told her former partner, Ben Dillaway, that she’d woken “half naked” in Reynolds office and was “barely lucid”.

“I really don’t think it was consensual at all,” Higgins texted Dillaway on March 26, 2019. Dillaway subsequently said he would speak to someone in the prime minister’s office on her behalf.

In his interview with police after the allegations went public, Lehrmann said the pair had no sexual contact. He described it as “an innocuous sort of night” with colleagues.

Lehrmann said when they entered the ministerial suite he went to his desk while Higgins entered Reynolds’ office. He said he did not see her again before he left.

Lehrmann was quickly dismissed after the late night visit, for “serious misconduct”, with Reynolds citing his entering her ministerial suite for non-work purposes and being dishonest about his reasons (telling security he was there for official business).

Higgins, under cross examination, denied falsifying the allegations because she was worried about losing her job. “I’m not a monster, I would never do something like that,” she told the court.

Read more: In 2021 #MeToo finally made it to #Auspol – what happens next?^[4]

Concluding her evidence – which was broken by an interval of several days when she was “unavailable” – Higgins addressed Lehrmann directly, declaring “nothing was fine after what you did to me, nothing”.

It was revealed during Reynolds’ evidence that the former minister had asked Lehrmann’s legal team for transcripts of Higgins’ evidence and also suggested text messages between Higgins and another of her former staffers, who was friendly with Higgins, “may be revealing”. As well, Reynolds’ partner sat in court during the case.

Reynolds, who had been told her contacts were inappropriate, denied the claim by prosecutor Shane Drumgold that she had been “attempting the coach the cross-examination”.

Summing up at the end of the trial, Drumgold posed five questions he said the jury had to consider: Was Lehrmann attracted to Higgins? Why did he go to parliament house? Did he have sex with Higgins? Did Higgins consent? Was Lehrmann reckless as to whether Higgins consented?

Drumgold described Higgins as an “inherently credible witness”. “When she couldn’t recall something, she said so … when she didn’t know an answer, she made it plain,” he said. She “didn’t seem to embellish her account of rape at all”.

He also said “there were clearly strong political forces at play in the period immediately after the events, through the election and beyond. These forces were at play for the almost two years [Higgins] worked for Senator Cash”.

In his summing up defence barrister Steven Whybrow said “Lehrmann has no onus to prove anything”.

“We can probably sum up this case in the kindest way to Ms Higgins … and just say she doesn’t know what happened,” he told the court. “What we do know for a fact [is] that Ms Higgins passed out, fell asleep in the minister for defence industry private office and is seen by a security guard naked.”

Read more: The missing women of Australian politics — research shows the toll of harassment, abuse and stalking^[5]

He allowed Higgins might now be convinced of what she alleged. “She doesn’t know what happened and she’s reconstructed events to the point she now genuinely believes they’re to be true.

"That doesn’t mean they are true. If she’s convinced herself in the witness box this has happened it might be entirely genuine.”

In her directions to the jurors, McCallum told them: “It’s important that you are satisfied beyond reasonable doubt that the witness is both honest and accurate in the account she has given”. In considering her evidence, “you may like to see whether it’s supported by other evidence”.

Urging them to assess the evidence clinically, McCallum said: “You would have seen the number of journalists in court every day. They’re practically hanging from the rafters.

"You are not answerable in this trial to public opinion no matter which way you think it sways.”

McCallum said there were three questions to be considered: whether sexual intercourse happened, which was the “principal issue”; whether consent was given by Higgins (it can’t be given if a person is unconscious, asleep or too intoxicated), and whether Lehrmann was reckless towards whether Higgins was consenting.

References

1. ^{^} Why was the Brittany Higgins trial delayed, and what is 'contempt of court'? A legal expert's view on the Lisa Wilkinson saga (theconversation.com)
2. ^{^} The Jenkins review has 28 recommendations to fix parliament's toxic culture – will our leaders listen? (theconversation.com)
3. ^{^} Morrison says 'sorry' to Higgins for 'terrible things' that happened (theconversation.com)
4. ^{^} In 2021 #MeToo finally made it to #Auspol – what happens next? (theconversation.com)
5. ^{^} The missing women of Australian politics — research shows the toll of harassment, abuse and stalking (theconversation.com)