Brittany Higgins: What happens next after Bruce Lehrmann mistrial?

A date has been set aside for a retrial of the man accused of raping Brittany Higgins, but one legal expert argues it may never go ahead.

The jury deliberated for five days behind closed doors after hearing 12 days of evidence in the trial of Bruce Lehrmann who is accused of sexually assaulting his then-colleague in Parliament House in March, 2019. He has pleaded not guilty.

But on Thursday, Justice Lucy McCallum discharged the jury without a verdict after one juror was found in the jury room to have information that was not presented as evidence in court.

Brittany Higgins outside the ACT Supreme Court.
An upset Brittany Higgins told media outside court on Thursday 'this is the reality of how complainants in sexual assault cases are treated'. Source: AAP

While a new trial has since been listed for February 20 next year, it may not necessarily go ahead.

The chances of a retrial

Jacqui Horan, Associate Professor from Monash University's Faculty of Law, says it’s up to the Director of Public Prosecutions to decide whether they have enough evidence to go ahead with the second trial.

It’s a decision that could be made at any point within the next four months, and may be dependent on Ms Higgins' willingness to go through another trial.

“It’s a big ask to ask somebody to go through that the first time, let alone a second time,” she said.

“Who knows what she [Ms Higgins] will do. I’m sure she doesn’t even know herself at this stage.”

While Professor Horan adds that there is a potential alternative to giving evidence in court a second time.

“Sometimes in cases like this when giving evidence is distressing, they might use the video evidence from the trial before and show that to the jury, rather than having to put witnesses through the same trauma again,” she said.

After five days of jury deliberations into Mr Lehrmann’s case, Professor Horan says a retrial was very likely to be called anyway, with the ACT requiring all jurors to return a unanimous verdict.

“In those rare occasions where people don’t reach agreement, then the usual process is that it will go on for a retrial.”

Bruce Lehrmann walking outside the Law Courts of the ACT.
During the 12-day trial, accused rapist Bruce Lehrmann was not required to give evidence. Source: AAP

She claims that rape trials, where “one word is against the other,” are “not really designed for our criminal justice system.”

“With normal charges like murder and assault, there’s a whole lot of evidence that supports the victim’s case,” she said.

“There’s injuries to the body, there’s weapons, there’s people watching.

“This is why rape trials don’t really fit into that system of trial very neatly and that’s why we’re having such problems with this ‘one word against the other’ when you’ve got beyond reasonable doubt.

“It is a very high hurdle to get over. So it’s a really tough job for jurors.”

Juror misconduct a chargeable offence in some states

Professor Horan says she can understand the circumstances that have led to a juror doing their own research.

“Jurors are keen to do the right thing, they will go to great lengths to do the right thing, but if they don't feel like they're getting what they need, then they will go and do research,” she said.

Associate Professor Jacqui Horan from Monash University's Faculty of Law.
Associate Professor Jacqui Horan from Monash University's Faculty of Law says there is a chance the retrial won't go ahead. Source: Monash University

“They're sending somebody potentially to jail. They want to do what they've been taught in school and thoroughly research a decision before they make that decision.

“So it's completely understandable that an earnest juror would do what this juror has done.”

However in some states and territories, Professor Horan warns that it is an offence.

“In some jurisdictions you can be up for being charged,” she said. “Sometimes you can face serious consequences if you do something like that.’

However, The Law Society of the ACT told Yahoo News Australia it is not aware of any offence in the Juries Act 1967 (ACT) comparable to those offences under the equivalent NSW and Victorian legislation.

"It is our understanding that no juror in the ACT has even been charged for behaviour amounting to jury misconduct," it said.

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