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The Jury in the rape trial of Bruce Lehrman has been discharged and left without delivering a verdict following a juror’s misconduct, prompting a retrial.

The jury was discharged after a member of the court staff discovered a juror’s research paper in the juror’s document that was not used as evidence in the court proceedings in direct breach of the Judge’s directions. The research paper was discovered when it had fallen onto the floor.

This wasn’t the first issue that arose in the trial. Just after more than four days of jury deliberations, the jury of 12 told the court that it could not agree on a unanimous verdict. Chief Justice Lucy McCallum then encouraged the jury panel to continue working on a decision.

The former political advisor Bruce Lehrman was accused of raping his previous colleague, Britany Higgins, in Parliament House in 2019 following a night out drinking.

Ms Higgins claimed to be substantially intoxicated from alcohol when the pair entered Parliament House where the alleged rape occurred.

In a police interview played as evidence to the jury, Ms Higgins said she had fallen asleep in Minister Reynolds’ office before waking to find Mr Lehrmann allegedly raping her.

Consent is an essential requirement for lawful sexual intercourse or sexual act between two or more adults in New South Wales. The meaning of consent is the free and voluntary agreement to sexual activity at the time of the sexual activity. The law treats a person who has no capacity to consent or is so drug or alcohol effected that he or she is incapable of consenting, as no consent. This is part of the new affirmative consent laws reflected in section 61HJ Crimes Act 1900 (NSW).

What is the age of consent in Australia? Anyone under the age of 16 is considered incapable of providing consent in NSW, Queensland, Victoria, Western Australia, Northern Territory and the Australian Capital Territory.

Under the 61I of the Crimes Act 1900, “sexual intercourse” is a crime with a maximum punishment of between 14 years to life in prison, dependent on the type of rape and the age of the victim.

The 27-year-old pleaded not guilty to the charges contesting any claims of sexual intercourse without consent between the two of them.

The high-profile nature of the case and allegations facilitated Australia’s “Me Too Movement” sparking widespread protests and discussion of the well-being of women in a toxic workplace and Australian politics.

There had been 12 days of the trial and 5 days of the verdict deliberation before the jury compiled of eight women and four men were discharged in the ACT Supreme Court.


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Juror Misconduct Laws

It is a crime attracting $5,500 fine and/or 2 years imprisonment with a criminal conviction for a juror in a criminal trial to make an inquiry for the purposes of obtaining information about an accused person facing the charges, or any matters relevant to the trial, except in the proper exercise of the juror’s functions as a juror. This prohibits jurors from conducting their own research on the alleged victim, alleged offender, witnesses in the case or any other information to explain why a witness or alleged victim might lie unless the information has been fairly admitted into evidence through the criminal trial. This applies in New South Wales and reflected in section 68C of the Jury Act 1977 (NSW).

There is no such provision in the Australian Capital Territory where this trial was being held.

Jurors are only allowed to rely on and hear evidence that is admitted into evidence in court, and they must not conduct research on the internet. This is to ensure that any consideration the juror give is based on credible evidence to secure fairness in the interest of justice.

Any research done outside the court undermines the rights of the accused to a fair trial and procedural fairness.

Interestingly, before the discovery of the Juror’s research paper, the jury had informed the court they were “unable to reach a unanimous verdict.” Chief Justice Lucy McCallum encouraged them to continue deliberations to try to come to a unanimous decision.


How the Misconduct was Discovered

“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 of the juror’s document holders onto the floor,” said Chief Justice Lucy McCallum.

The security officer noticed the paper’s title and showed “courage, integrity and good sense” in reporting it to the authorities, Justice McCallum described.

The document contained academic research on sexual assault related to how often false rape accusations were made, which was not evidence included in the trial.

Chief Justice said she warned all the Jurors “at least 17 times” during the course of the trial to not undertake research of any kind and to rely exclusively on the evidence heard in court.

“You must not try to undertake your own research,” Chief Justice said.

After becoming aware of the juror’s misconduct, the Chief Justice said she had no choice but to dismiss the jury.

“This may come as a frustration to you after the hard work you all put in, and I want to convey my extreme gratitude,” she said to the Jury.

Justice McCallum explained that the juror suggested that the academic, research paper had not been used or relied on by the jury in their discussions however in the circumstances it was necessary to regard that evidence with some “scepticism”.

Brittany Higgins has responded to the events in an emotional speech outside the Supreme Court.

She extended her thanks to her supporters and expressed that her life experiences had been “completely scrutinised and open for the world to see” after going public with her claims.


When is the Retrial?

The Retrial is scheduled for February 20, 2023, and Mr Lehrmann has been granted bail by the Judge.

Justice McCallum has suggested for the media to discontinue reporting on the case as it impairs the fairness of Mr Lehrmann’s trial.

By Alyssa Maschmedt and Jimmy Singh.

Published on 31/10/2022

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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