Bruce Lehrmann’s former lawyer accused then-prime minister Scott Morrison of egregious conduct by apologising to Brittany Higgins in parliament, a move he said implied his client’s guilt and the accuser’s truthfulness and put the prospect of a fair trial at risk.
Morrison apologised to Higgins in the House of Representatives on February 8 “for the terrible things that took place here”. Responding to the first recommendation of the review into parliamentary workplace culture, he said that parliament should have been a place of safety but “turned out to be a nightmare”.
Brittany Higgins watches as Scott Morrison apologises to her in the House of Representatives.Credit:
The apology was among the reasons Lehrmann, a former ministerial staffer, applied in April to have his trial halted indefinitely as his legal team argued he would be unable to get a fair hearing due to the overwhelming publicity.
Lehrmann has pleaded not guilty to sexually assaulting Higgins in a parliamentary office in the early hours of March 23, 2019 after a night out drinking with colleagues. He denies ever having sex with Higgins.
The contents and outcome of his unsuccessful stay application before ACT Supreme Court Chief Justice Lucy McCallum had been suppressed until Wednesday afternoon when the court lifted the non-publication order, while the jury continued deliberating in Lehrmann’s criminal trial after five days.
In her published remarks, McCallum said it was submitted by Lehrmann’s then-barrister David Campbell SC that Morrison’s apology “was particularly egregious as it imputed the accused with guilt of the offence or at least implicitly assumed the truthfulness of the complaint”.
“The accused submitted that the effect has been to elevate the complainant to a status she should not have for the purpose of the accused’s trial,” McCallum said in her April 29 judgment. “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.”
She said Lehrmann’s barrister also submitted that the “vice of the pre-trial publicity here is its ‘enhancement’ of the complainant”.
“He submitted that this is a case of ‘accuser v accused’ in which the accuser (the complainant) has set out to discuss her accusation with the support and assistance of the media and the backing of famous people including the prime minister,” McCallum said.
In her decision, McCallum said the discourse after Higgins went public with her story in early 2021 “generally proceeded on the premise that the complaint was true” and cited sexual assault survivor advocate Grace Tame publicly recognising Higgins as a “survivor”, and crowd members at the March 4 Justice yelling to Higgins “we believe you”.
In refusing the application, McCallum said a jury member being aware of pre-trial publicity “is not of itself problematic.”
She said the court relied on the members of the jury panel to come forward in response to remarks made by the judge before the jury was empanelled.
“Examples may be brought to mind of trials in which most if not all members of the panel summoned for the purpose of selecting a jury were likely to have had some awareness of the notoriety of the case, such as the trial of Cardinal Pell and the trial of Robert Hughes of Hey, Dad! fame,” she said.
She said the critical concern was for the trial judge to take steps to ensure that each potential juror felt capable of giving impartial consideration to the case.
“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.
Before the commencement of the trial, the judge asked the “party faithful” to consider whether they could impartially judge the facts of the case, and at the end of the evidence, she warned them they were not beholden to public opinion.
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