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‘System failure’: Lawyers respond to abandoned 2nd Lehrmann trial

The decision by the ACT DPP to drop the sexual assault charge against former political staffer Bruce Lehrmann means there may “forever be a cloud hanging over the proceedings”. Here, lawyers reflect on what the decision not to proceed says about the criminal justice system and what reform may be needed — with one saying that “what we subject rape complainants to in the name of justice [is] medieval, not much removed from dunking suspected witches in the river to see if they’ll float”.

user iconJerome Doraisamy 02 December 2022 The Bar
‘System failure’: Lawyers respond to abandoned 2nd Lehrmann trial
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Earlier today (Friday, 2 December), ACT Director of Public Prosecutions Shane Drumgold announced that the charge of sexual intercourse without consent against Mr Lehrmann would be dropped, citing an “unacceptable risk to the life of the complainant”.

Mr Lehrmann had been accused of raping former fellow staffer Brittany Higgins in early 2019, in the office of then-defence minister Linda Reynolds, at Parliament House. He had pleaded not guilty and has strenuously denied that any sexual activity occurred.

In the first trial, conducted earlier this year, the jury was discharged following the uncovering of misconduct by a juror. The second trial, which was due to commence in February, will now not proceed.

 
 

In a statement to reporters, Mr Drumgold said: “I have recently received compelling evidence from two independent medical experts that the ongoing trauma associated with this prosecution presents a significant and unacceptable risk to the life of the complainant.

“The evidence makes it clear that this is not limited to the harm of giving evidence in a witness box, rather applies whether or not the complainant is required to enter a witness box during a retrial.

“I have made the difficult decision that it is no longer in the public interest to pursue a prosecution at the risk of the complainant’s life.

“This has left me no option but to file a notice declining to proceed with the retrial of this matter, which I have done this morning. This brings the prosecution to an end.”

Mr Drumgold also noted that, as a complainant, Ms Higgins has “faced a level of personal attack that I have not seen in over 20 years of doing this work”.

Perception of ‘no outcome at all’

In conversation with Lawyers Weekly, Armstrong Legal practice director of criminal law Trudie Cameron said that the outcome “will be perceived by many to be no outcome at all”.

“At law, the prosecution will declare there be no further proceedings against Mr Lehrmann. He will continue to be presumed innocent and will not be convicted of this crime. We can expect that the court of public opinion will have something else to say — as it no doubt would, even if there had been a verdict reached and regardless of what that verdict was,” she said.

In NSW, Ms Cameron explained by way of example, the legislature has provided for the evidence of complainants in sexual assault matters to be recorded and replayed in subsequent trials.

It is unfortunate, she said, that it is not the same in the ACT.

“Such would have likely allowed for Mr Lehrmann to be retried without Ms Higgins needing to give evidence again (at all, or at least not in relation to matters she has previously given evidence about). No doubt this will soon be remedied; however, many will wonder why it hadn’t been already,” she noted.

“The intense media reporting and public scrutiny of this matter has no doubt exacerbated the toll the trial has taken. It appears probable that it is one of a number of contributing factors in the decision not to proceed to a retrial.

“This is a particularly unusual case in this respect, as ordinarily, such would not occur with the operation of suppression and non-publication orders to prevent the identity of complainants being revealed and reported on.”

A ‘forever cloud’ hanging over the parties

Executive Legal head of litigation Jahan Kalantar added that while the decision by prosecutors not to proceed will “no doubt” come as a relief to Mr Lehrmann, it will “also be a cause of deep distress” for both him and Ms Higgins.

“Given the way the first trial terminated, both parties would no doubt feel that there will forever be a cloud hanging over the proceedings, with neither having their version vindicated by a properly instructed jury,” he posited.

“Often, prosecutors must make difficult decisions like this one, and ultimately, it is a complex balancing exercise.”

The decision to abandon the second trial also showcased, Mr Kalantar went on, that the legal system “does not exist in a vacuum” and that matters such as political forces, the fourth estate and general public sentiment play a huge role in what advocates need to think about and consider in their legal analysis.

“The court took every step it could to protect the rights of the accused while allowing the complainant to put forward her allegations. This case showed how even diligence from the bench and both sides can still lead to an outcome which is hard for all to bear,” he said.

Merit in proposed legislative changes

It is “always regrettable”, J Sutton Associates director Andrew Tiedt mused, when a criminal allegation cannot be resolved on its merits.

“This is yet another reason why there is significant merit in the proposed changes to amend the law to allow evidence given in court by a complainant to be recorded and replayed at any potential future trial,” he suggested.

“There cannot be any doubt that the giving of evidence in a criminal trial is traumatic for any complainant. Indeed, I am sure that it is traumatic for any participant in the criminal process, including complainants, eyewitnesses, complaint witnesses, and defendants.

“Given the facilities already exist, it seems to me that consideration should be given to recording all evidence given in all trials, to deal with exactly the current scenario.”

A ‘medieval’ system

Marque Lawyers managing partner Michael Bradley — who recently appeared onstage with former Australian of the Year Grace Tame to discuss how and why sexual assault law is “broken and wrong” — said that we have to ask ourselves why we persist with a system “which produces such perverse outcomes”.

“I’m not talking about the question of guilt or innocence in a particular case, but what we subject rape complainants to in the name of justice. It’s medieval, not much removed from dunking suspected witches in the river to see if they’ll float,” he argued.

“Despite the increased focus on sexual violence in the past few years causing a huge increase in the reporting rate, the system response hasn’t changed, and it still routinely fails survivors.

“I called this ‘system failure’ in my book, deliberately because it is the very definition of a system that has failed. We have to come up with something better than this; the urgency is only accelerating.”

‘Huge toll faced by complainants’

The “huge toll faced by complainants” in sexual assault prosecutions has been “underscored” by these proceedings, the Global Institute for Women’s Leadership (GIWL) said in a statement posted on social media.

“There is a clear need for ongoing law reform and practical changes in both the criminal justice system and the laws, processes and institutions that prohibit workplace harassment and ensure safe, respectful workplaces,” GIWL wrote.

Ms Higgins is a member of GWIL, and the institute’s founder and chair is former prime minister Julia Gillard.

“The personal price [that Ms Higgins] has paid has been astronomical. We cannot continue to expect individuals to pay such a price in the pursuit of justice, let alone systemic change,” the statement noted.