The Supreme Court of the Australian Capital Territory (ACT) has dismissed an application by Bruce Lehrmann’s criminal defence team for a permanent stay of proceedings on the basis that the intense and prolonged publicity would make it impossible to find 12 impartial jurors required for a fair trial.
The application was to permanently halt the proceedings, which is different to a temporary stay application which, if successful, would result in a trial being postponed until the impact of the unfair prejudice subsides.
The legal team also applied for a take-down order requiring media outlets to delete reports about the case, as well as a non-publication order prohibiting the media from further publishing reports until the trial is concluded.
However, Chief Justice Lucy McCallum “concluded that all of the relief sought in the application must be refused”.
No provision for a judge alone trial
In the ACT, the law requires sexual assault trials to take place before a jury; so unlike in New South Wales, judge-alone trials are not an option.
Criminal defence lawyers have expressed the view that this can make it more difficult for defendants in the nation’s capital to be judged fairly and impartially when it comes to high-profile sexual cases which have attracted a great deal of adverse publicity.
Mr Lehrmann was charged in 2021 after a police investigation which followed Ms Higgins’ public claims of being sexually assaulted in Parliament House in 2019.
The case was extensively covered in the media, and many are of the view the reporting has been heavily biased towards the complainant, despite her minimal recall of the alleged events.
Ms Higgins has taken to several media platforms to communicate her side of the story, and reporting has raised few questions about the veracity of her claims.
The defendant has always maintained his innocence, asserting that the sexual activity was consensual.
His legal team expressed concerns in court that their client could not possibly achieve a fair trial in circumstances where the reporting has been so unfairly prejudicial – with even the Prime Minister calling for Ms Higgins to be believed and publicly apologising to her; something which could be seen as undermining the presumption of innocence.
The publicity sparked a number of reviews and internal investigations into the culture of Parliament House and its associated workplaces, including a review by Sex Discrimination Commissioner, Kate Jenkins.
It also reignited a wider social conversation about women’s safety at work, as well as the prevalence of sexual harassment in workplaces across Australia.
AFP accused of breaching of the Evidence Act
In recent days, Ms Higgins has made a formal complaint to the AFP after the Director of Public Prosecutions (DPP) made her aware that police officers had unlawfully disclosed information to Mr Lehrmann’s defence team, including counselling notes and video recordings.
The material should have been handed over via the DPP, but was provided directly by police. Some of the material is ‘protected’ under the ACT’s Evidence (Miscellaneous Provision) Act 1991, meaning that a legal team has to specifically apply for access to it.
It’s reported that when police confirmed that the material had been given to the defence team, the DPP wrote to the AFP expressing concerns about the requirement for the material to be retrieved and destroyed as soon as possible.
The AFP contacted the defence lawyers with instructions to delete the files. The defence team says it has not accessed the files but is unable to delete them.
A spokesperson police confirmed “a complaint has recently been received regarding the investigation into an alleged sexual assault that occurred in 2019, but given that the matter it was related to is currently before the courts, it could not provide further comment.
What effect this may have on the trial proceeding is not yet known.
Protections for sexual assault complainants
In 1997, New South Wales became the first jurisdiction in Australia to protect the confidentiality of sexual assault victims’ counselling records in the criminal trial process. This was made law with the passing of the passing of the Evidence Amendment (Confidential Communications) Act.
Sexual Assault Communications Privilege (SACP) was specifically passed for the benefit of complainants in sexual assault cases.
There were several reasons for the introduction of this law, but its primary purpose was to protect complainants from further trauma and distress caused by their records being revealed.
It also aimed to maintain the integrity of the confidentiality of counselling and prevent evidence of past sexual conduct coming before courts, in order to give complainants the confidence and courage to promote the reporting of sexual assault.
The law was criticised at the time by defence lawyers as well as the Law Society and Bar Association of New South Wales, as it made it much more difficult for lawyers to obtain information that could be highly relevant to the determination of guilt or innocence, as well as to present material regarding the complainant’s past sexual conduct that could assist jurors to reach their own conclusions as to whether consent existed at the time of the alleged offence.
Protected communications in sexual assault cases include:
- counselling notes,
- medical/clinical notes,
- mental health records,
- drug and alcohol records
- letters and referrals between health professionals, and
- social worker reports held by Centrelink or Department of Housing.