Bruce Lehrman, a former Liberal staffer accused of allegedly raping Brittany Higgins, also a former Liberal staffer, intends to seek a permanent or temporary stay of proceedings.
Widespread media coverage and other factors could deny Bruce Lehrman a fair trial.
Brittany Higgins accused Bruce Lehrman of raping her in March 2019. She first reported the matter to the police in February 2020, some 11 months later. He was later charged by the police and at his first appearance on 16 September 2021 in the ACT Magistrates Court, defence lawyer John Korn said: “His client absolutely and unequivocally denies that any form of sexual activity took place whatsoever. He will defend the charge.” Bruce Lehrman has pleaded not guilty to the charge and the case is set down for trial in the ACT Supreme Court in June 2022.
Following his first appearance, Bruce Lehrman was named in the media. Of itself, this is not unusual. A courtroom is a public forum and it is in the public interest that what takes place there is open to the public. Unless of course there are suppression orders to keep the accused name and identity out of the media.
Suppression orders are intended to prevent prejudice to the administration of justice and amongst other factors, to ensure a fair trial by protecting juries from prejudicial pre-trial publicity. At first glance, it seems surprising that the defence did not apply for a suppression order, even though Brittany Higgins went public in January 2021 albeit without naming anyone. However, once the trial was underway the jury sworn to decide the matter would soon know the identity of the parties and by putting two-and-two together have recourse to what has been said in the media. In these circumstances, a suppression order would have been otiose.
Stay of Proceedings
A stay of proceedings order essentially is raised when there has been widespread publicity to such the extent to potentially undermines the prospects of a fair trial. In the case here Bruce Lehrman’s defence team, led by David Campbell SC, intends to apply for a stay of proceedings. In essence, the defence applies to the court to exercise its discretionary powers to order the prosecution to cease forthwith. The stay can be temporary to a specific date, permanent or indefinite. If the order is permanent Bruce Lehrman’s life will resume without a trial hanging over his head.
Circumstances for a Stay of Proceedings
In this case, what are the particular circumstances causing Bruce Lehrman’s defence team to apply for a stay of proceedings? The overall situation was summed up by ACT Chief Justice Lucy McCallum. Her Honour said:
“The more this case is ventilated in public forums, the more likely it is that the accused will not have a fair trial and the consequence that must follow is a stay, either permanent or temporary, of the prosecution.”
There have been mass public rallies featuring Brittany Higgins and Grace Tame speaking out about their experiences as victims of sexual assault. The problem is this: in the case of Grace Tame a court has decided that she was sexually assaulted and the offender was found guilty and incarcerated.
On 25 January 2021, Grace Tame was nominated Australian of the Year as an advocate for victims of sexual abuse. In the case of Brittany Higgins however, the matter is still before the court, at the pre-trial stage, and Bruce Lehrman has the presumption of innocence.
Go back to 22 February 2022. In Parliament Prime Minister Scott Morrison issued an apology to Brittany Higgins on behalf of Parliament:
“I am sorry, we are sorry. I am sorry to Ms Higgins for the terrible things that took place here. The place that should have been a place for safety, that turned out to be a nightmare.”
Sex Discrimination Commissioner Kate Jenkins’ review into parliamentary workplace culture:“…painted a toxic picture of sexual harassment and bullying.”
The question is whether Bruce Lehrman will receive a fair trial. It beggar’s belief of course why the defence team didn’t apply to the court for name suppression orders the moment Bruce Lehrman was charged. Further, what happened to the innocent unless proven guilty?
In Western Australia in the District and Supreme courts, the defence or prosecution can seek orders for a judge-alone trial. However, this is not available for indictable Commonwealth matters because of section 80 of the Australian Constitution.
Should a stay of proceedings be unsuccessful Bruce Lehrman will be tried by a jury made up of men and women drawn from the general public in the ACT. The question is can members of the jury put to one side all that has been aired in the media and give Bruce Lehrman a fair trial?