R v Lehrmann (No 3) - [2022] ACTSC 145

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Lehrmann (No 3)
Citation:	[2022] ACTSC 145
Hearing Dates:	20 – 21 June 2022
DecisionDate:	21 June 2022
Before:	McCallum CJ
Decision:	(1) Vacate the trial date of 27 June 2022; (2) Stand the matter over for mention before McCallum CJ on 23 June 2022 at 9:30am.
Catchwords:	CRIMINAL PROCEDURE – Stay of proceedings – Application for temporary stay of criminal proceedings– Significant pre-trial publicity – Whether of such a nature as to prevent a fair trial – Where application for temporary stay has been previously refused – Whether there has been a significant change in circumstances – Where pre-trial publicity concerns the character of the complainant – Whether steps able to be taken by the trial judge in the conduct of the trial to relieve against its unfair consequences - Where pre-trial publicity is of such intensity and proximity to trial, and had such capacity to obliterate distinction between untested allegation and a fact accepted by jury, that prejudice cannot be remedied CRIME – Accused facing trial for sexual intercourse without consent – Significant pre-trial publicity and commentary including speech by witness on live television endorsing the complainant’s credibility and claimed status as a victim – Whether possible to empanel an impartial jury – Whether prejudice able to be addressed by directions by the trial judge
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 4750(3) Crimes Act 1900 (ACT), s 54(1)
Cases Cited:	R v Lehrmann (No 2) [2022] ACTSC 92
Parties:	The Queen (Crown) Bruce Lehrmann ( Accused)
Representation:	Counsel S Drumgold SC, S Jerome ( Crown) S Whybrow, K Musgrove, B Jullienne ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Kamy Saeedi Law ( Accused)
File Number(s):	SCC 264 of 2021

McCallum CJ:

The accused in these proceedings is charged with an offence of engaging in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). The allegation is of a kind not unfamiliar to the courts, save for the fact that the place where the offence is alleged to have occurred is on the couch in the office of a Senator in Australian Parliament House.

The case has, accordingly, attracted a level of attention in the media and among prominent Australian personalities that, while not unprecedented (even within my own judicial experience), is certainly extreme. Extensive media reporting of allegations of criminal conduct is not a mischief in itself. On the contrary, it is appropriate to recognise that the media play an important role in drawing attention to allegations of criminal or other misconduct and any shortcomings in the treatment of such allegations.

What is a potential mischief is the capacity for media reporting of such issues to spread in such a way as to interfere with the fair and proper determination of any related matter before the Court. That danger is particularly acute in the case of pending criminal proceedings.

It is trite, but apparently requires restatement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lehrmann (No 3)

Details

AGLC: R v Lehrmann (No 3) [2022] ACTSC 145
Case: [2022] ACTSC 145
Decision Date: 21 June 2022

CaseChat Overview and Summary

The applicant, Mr Bruce Lehrmann, was facing trial for an offence of sexual intercourse without consent. He applied for a temporary stay of the criminal proceedings on the basis that significant pre-trial publicity, including a speech by a witness on live television endorsing the credibility of the complainant and her status as a victim, had the potential to prevent a fair trial. The application was made in the High Court of Australia, following a refusal of a similar application in the Federal Court of Australia. The court was required to determine whether there had been a significant change in circumstances, whether the pre-trial publicity was of such a nature as to prevent a fair trial, and whether the prejudice could be remedied by directions from the trial judge.

The court found that the publicity was of such intensity and proximity to the trial that it had the capacity to obliterate the distinction between an untested allegation and a fact accepted by the jury. The court noted that the speech by the witness had the potential to influence the jury, and that it was unlikely that any directions from the trial judge would be able to remedy the prejudice caused by the publicity. The court also found that there had been a significant change in circumstances, as the publicity had increased in intensity and proximity to the trial. As a result, the court granted the application for a temporary stay of the proceedings.

The court vacated the trial date of 27 June 2022 and stood the matter over for mention before McCallum Chief Justice on 23 June 2022 at 9:30am. The court emphasised that the stay was temporary and that the matter would be mentioned again to determine whether the trial could proceed or whether further steps needed to be taken to ensure a fair trial for the applicant. The court also noted that the decision was based on the specific circumstances of the case, and that it did not set a precedent for other cases with similar issues.

Orders

Orders of the court

(1) Vacate the trial date of 27 June 2022;

(2) Stand the matter over for mention before McCallum CJ on 23 June 2022 at 9:30am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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