Mistrials and tribulations

Bruce Lehrmann’s legal proceedings cast doubt on whether the justice system can deliver real truth

Between defamation appeals, counter applications for security payments and hearings on new sexual assault charges, it’s easy to forget how Bruce Lehrmann’s legal journey began.

On 27 October 2022, Chief Justice Lucy McCallum, who was overseeing Lehrmann’s criminal trial, discharged the jury. This brought the trial to an end. By then the jury had been deliberating for five days, after twelve days of evidence. As it happened, there would be no retrial.

The day before the jury was sent home, a court officer was tidying the jury room when he stumbled on an academic paper among one juror’s documents. As the Chief Justice later explained, the paper concerned attempts “to quantify the prevalence of false complaints of sexual assault,” and “the reasons for both false complaints and scepticism in the face of true complaints.”

Her Honour accepted that this article “could be deployed to support either side of the central issue in this case, which was whether an act of sexual intercourse was proved beyond reasonable doubt.” Nevertheless, she concluded that the article’s presence in the jury room “necessitated the discharge of the whole jury.” So much followed from the principle that a jury’s only source of information about the people and issues in a trial must be the trial itself.

The rationale for that principle is clear enough. A jury’s verdict determines when the state can use its most serious power, apart from waging war: the imposition of criminal punishment. It goes without saying that a verdict must be reached the right way.

But the fact remains that a juror’s apparently good-faith attempt to inform themselves meant Lehrmann’s trial came to nothing. That seems jarring; all the more so in an age where each of us has an ocean of information on hand, one we dip in and out of instinctively as we move through the world.

Since then, what the Chief Justice described as the “central issue” – in short, what Bruce Lehrmann did to Brittany Higgins – has been revisited only indirectly and by a lone judge. That judge, Justice Michael Lee, found that Network Ten did not defame Lehrmann because its implication that he sexually assaulted Higgins was, more likely than not, substantially true. On most accounts the judgment is well-reasoned. But it is in the end the reasoning of one man, whom most of us know nothing about, concerned not with informing the public but adjudicating a defamation claim. If the appeal goes ahead, the judges who decide it will be principally concerned with even more abstract legal questions.

There’s the rub. At the heart of these proceedings is an alleged sexual assault perpetrated at Parliament House – the very heart of our body politic – at the height of a moment of national soul-searching and truth-telling about the persistent scourge of male violence, the abuse of power and the weaponisation of shame.

Yet more than anything, Lehrmann’s legal proceedings have demonstrated that the courts aren’t in the business of truth-telling – at least not the kind of truths we long for as a society. Many people, especially women, have identified with aspects of Higgins’ experience. While we know little as yet about the charges Lehrmann faces in Queensland, these proceedings too may raise important questions. It’s natural to look to our institutions for clarity and direction, but as it is, the legal system will always leave us wanting on that front. So to whom, or what, do we turn? When the response from our politicians has, as ever, been more performance than substance, and the bulwark of journalism seems less sturdy than ever, that question is not easily answered.

John Maloney is a barrister, teacher, podcaster and writer.

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