Director of Public Prosecutions v Lehrmann (No 4)
[2022] ACTSC 282
•5 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Lehrmann (No 4) |
Citation: | [2022] ACTSC 282 |
Hearing Date: | 5 October 2022 |
DecisionDate: | 5 October 2022 |
Before: | McCallum CJ |
Decision: | Ruling on objections to the complainant’s second evidence-in-chief interview with police: admit the evidence of the accused’s attempt on an earlier occasion to kiss the complainant; exclude question and answer 287. |
Catchwords: | CRIMINAL LAW — EVIDENCE — Admissibility of evidence — Whether the probative value of the evidence outweighs the danger of unfair prejudice — Where the danger of unfair prejudice is amenable to an easy remedy — Where evidence not relevant to any issue in the proceedings — Where evidence is second-hand hearsay |
Legislation Cited: | Evidence Act 2011 (ACT), s 137 |
Parties: | ACT Director of Public Prosecutions (DPP) Bruce Lehrmann (Accused) |
Representation: | Counsel S Drumgold SC w S Jerome (DPP) S Whybrow w K Musgrove and B Jullienne (Accused) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law (Accused) | |
File Number: | SCC 264 of 2021 |
McCALLUM CJ:
The accused is being tried for one offence of engaging in sexual intercourse without consent, being reckless as to whether the complainant was consenting. The trial has reached the point where the record of evidence-in-chief taken by police from the complainant is currently being played to the jury.
There were two such interviews; the second has yet to be put before the jury. The accused has objected to the final part of the second interview from question 276 as follows:
FRIZZELL:
Q276: Is there anything that you recall or thought that might be worth noting?
A: Yeah, there was one thing I missed, um, at the start, but I just – it was a throw-away detail, um, I figured. In my first sort of week and a bit, um, Bruce made a pass at me and tried to kiss me.
MADDERS:
Q277: Okay.
A: Um, after an event, um, and I didn’t really think about it at all that much because I kind of rebuffed it and moved on. Um, but yeah, I thought it was worthwhile noting because I realised I hadn’t told you that before.
Q278: Yep. What – do you remember the event?
A: No, it was during a sitting week, we’d all sort of go out for sort of a team dinner, um, I assumed it would have been a Wednesday, I remember it was at the Kingo. Um, and yeah, he made a pass at me and I didn’t think it was a big deal at the time.
Q279: Mm-hmm.
A: Um, and I just rebuffed him so I wasn’t interested.
Q280: Okay. And when you say, “made a pass”, what do you mean?
A: He tried to kiss me.
Q281: Okay.
A: Um, and it was fine, um, he just kind of took it and left, um, and we never really talked about it again.
Q282: Okay. Do you remember who else was there?
A: It would have been the Reynolds team, so, it would have been the full team as well, so including the electorate staff. Um, so, it would have been, you know, Nikki Hamer again. Jesse Wotton again. Um, Michelle Lewis, who was one of the other electorate staffers. It was – we all used to kind of do dinners on a Wednesday, it was like a team building thing.
Q283: Okay. Oh, yeah.
A: Yeah.
Q284: Would it be possible it’s that first interaction you had with him at the Kingston Hotel?
A: It wasn’t that time, but we’d known each other at that point when he tried to make the pass, and I just ignored it and, you know, people to take to take shots whenever, um, but he tried and I said, “No.”
Q285: Okay. And was that the Kingston Hotel was it?
A: Again, yeah.
…
FRIZZELL”
Q295: Could you tell me more about – so, you said that Bruce made a pass at you and he tried to kiss you.
A: Mm-hmm, yep.
Q296: Could you tell me more about what happened or your recollection of it?
A: Yeah. Um, I was leaving, he was leaving, he was about to get into a taxi and he tried to kiss me and I kind of was shocked by it. I’d just broken up with Ben. Um, and you know, I just kind of politely rebuffed him and we never really talked about it again.
Q297: Was there - who was with you at the time that that happened?
A: No one, it was just the two of us, we were both leaving, um, and yeah.
Q298: Okay. Was there any conversation had?
A: No, not really. I just said, “Oh, I’m not…”. And he kind of got it very quickly.
Q299: Yep
A: Um, and yeah, we never spoke about it again.
Q300: How – in terms of how he tried to kiss you, could you tell me more about that?
A: Um, I remember I was kind of shocked, because he kind of like just leant forward into my face. Um, but at the same time, I’d had other people in politics make passes at me before, so, it wasn’t – it wasn’t a massive deal at the time, which is why it was negligible that I kind of didn’t even originally think of it all that much. Um, but yeah, yeah, he leant in and I was shocked and I was kind of like, “No.” Um, and he didn’t seem to argue with that and he didn’t seem angry by it, he was just kind of in his zone and he left immediately after. Um, yeah.
…
FRIZZELL:
Q304: Bruce trying to kiss you, had you told anyone about that?
A: I don’t think so. Um, it just – it didn’t feel like a big deal at the time.
Q305: Yep.
A: Um, yeah, and I – I – yeah, at that point I didn’t mind him, because I didn’t want to embarrass him, I don’t think. Like it was just – I don’t know, ah, a mixed signal type thing and I was like, “Oh, okay. It must have been something I did.” Um, and yeah, it was – I don’t think I talked about it. There might have been something in my phone, I’m not sure, but I don’t think I would have done that.
The first question in determining admissibility is always whether the evidence is relevant to an issue in the proceedings. In my opinion, evidence that the accused “made a pass” at the complainant and tried to kiss her some weeks before the alleged sexual assault is plainly relevant in that it is capable of demonstrating his interest in her.
The question then is whether the evidence is liable to be excluded under any of the exclusionary rules. Counsel for the accused, Mr Whybrow, has referred to s 137 of the Evidence Act 2011 (ACT), which provides:
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Mr Whybrow submitted that the unfair prejudice derives from the fact that the statement was made to police after the accused had been interviewed. The significance of that timing is that the allegation stands as one as to which the accused has had no opportunity to put his position before the jury in interview form. Plainly, it would cause some unfairness if the accused was unable to put his position in relation to that particular allegation before the jury. However, first, as submitted by the Director of Public Prosecutions, that is not the same as concluding that the evidence poses a danger of unfair prejudice within the meaning of s 137. Secondly, if there is some unfairness in proceeding in that way, it is amenable to an easy remedy which is that the jury can be informed of those two facts: namely, that the allegation was made after the accused was interviewed and that, had he been asked about it by police, he would have denied it. For those reasons, I propose to admit the evidence.
Separately, there is an objection to the answer to question 287. The answer reads:
But I just knew that there were, like, issues starting to be raised and that was brought to my attention when, um, Fiona talked to me about the bullying, him bossing me around unduly in the office and a lot of people noticing.
The reference to “Fiona” may be taken to be a reference to Fiona Brown, the person in charge of Minister Reynolds' office at the time of the allegations who dealt with the aftermath of a security breach consisting in the accused and the complainant entering Australian Parliament House after hours without good reason. In my view, that answer should be excluded. It is doubtful whether it is admissible, firstly, because it is second-hand hearsay and, secondly, because it does not seem to me to relate to any issue in the proceedings. Accordingly, that answer will be excluded.
| I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 22 November 2022 |
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