The news that the ACT Director of Public Prosecutions would be dropping the rape trial against Bruce Lehrmann shocked the Australian public.
However, to those who have done criminal defence work in their time, it was probably not much of a surprise, except perhaps the reason. While it is to the DPP’s credit that Ms Higgins’ mental health has been paramount in the decision, it probably wasn’t the only reason to drop the prosecution.
To understand why, it is worth a look at the law of unintended consequences.
In short compass that law states that sometimes the outcome of a purposeful action is far removed from the intent behind the action. It applies at several points of the history of this matter.
When the initial trial of Mr Lehrmann – alleged to have raped Brittany Higgins in a Minister’s office – was aborted due to juror misconduct, Ms Higgins addressed the media at some length regarding her experiences in the Australian justice system – and the media spread her words to every corner of the continent. While the media were no doubt driven by a noble desire to highlight the scourge of sexual assault, their enthusiasm also ensured that pretty much every potential juror in a retrial heard her views.
On its own, that may raise issues for defence lawyers, but the ACT Government introduced a complicating factor when it moved with noticeable haste to seek amendment of its Evidence Act. Specifically, that amendment sought to allow previously recorded testimony (such as that of Ms Higgins in the aborted trial of Mr Lehrmann) to be admissible in any retrial.
While there may be general merit to such a move, in the immediate case there were unintended consequences – those being that Ms Higgins would never be cross-examined on her recorded evidence, or her address to the media.
In short, it resulted in a significant possibility that members of any future jury would have heard her post-trial comments, but with no opportunity for Mr Lehrmann’s solicitors to cross-examine her on what most lawyers would concede is potentially extremely prejudicial content.
The result is that, had the retrial remained on foot and the proposed legislation passed, Mr Lehrmann’s lawyers would have almost certainly made an application for a permanent stay on the basis that Mr Lehrmann could not receive a fair trial. That is an application which it would seem the court would find hard to reject.
Thankfully, the understandable and admirable concern the DPP has for Ms Higgin’s mental health has meant that none of this will be necessary. No doubt the ACT sought to relieve the trauma of victims of sexual assault when their assailants are tried, but in this case the Government’s zeal for reform has unintentionally trumped the defendant’s right to the presumption of innocence and a fair trial.
Similarly, the media’s saturation coverage of this case (which was presumably an effort to give a deeply troubling issue appropriate prominence) in its enthusiasm paid little, if any, regard to the presumption of innocence – and none whatsoever to the mental health of the complainant.
Hopefully there are lessons we can take from what can only be described as a tragedy, from any angle. Some of the more prominent ones are:
- When dealing with cases of this nature, practitioners should be wary of the media and its capricious glare, which is at best a two-edged sword.
- The media should take great care when reporting on cases before the court (or about to be before the court) and refrain from judgement of either complainant or accused.
- Governments should be wary of passing legislation in haste, and seek thorough consultation with stakeholders before making laws which affect the operation of our justice system. And
- Lawyers must at all times stand up for the rule of law, due process and the presumption of innocence – these are non-negotiables in our profession.
Given the unquenchable thirst for content all types of media have, and the way many celebrities involve media commentary in their legal matters, it is only natural that some clients may assume that using the media is part and parcel of a good case strategy.
Obviously, that is often not the case, and practitioners should unequivocally warn clients of the pitfalls that course of action can bring. Those seeking further information on this issue should consult Guidance Statement No.32 ‘Solicitors commenting to the media’.
Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre. The views expressed are those of the author.