Drumgold said he still holds the view of reasonable prospect of conviction based on evidence, but “whilst the pursuit of justice is essential for both my office and for the community in general, the safety of a complainant in a sexual assault matter must be paramount”.
He paid tribute to Higgins as he concluded his brief statement, saying that “during the investigation and trial as a sexual assault complainant, [Brittany] Higgins has faced a level of personal attack that I have not seen in over 20 years of doing this work. She has done so with bravery, grace and dignity and it is my hope that this will now stop and Ms Higgins will be allowed to heal.”
Higgins’ friend Emma Webster released a statement after the announcement, which said: “Brittany is in hospital getting the treatment and support she needs.
“The last couple of years have been difficult and unrelenting. While it’s disappointing the trial has ended this way, Brittany’s health and safety must always come first.
“Brittany is extremely grateful for all the support she has received, particularly from our mental health care workers.”
No statement is expected from Lehrmann at this stage.
The first trial was cut short on October 27 after 12 days of hearing evidence and submissions in the ACT Supreme Court and five days of deliberations, because of juror misconduct.
Chief Justice Lucy McCallum said at the time that she had disbanded the jury after learning one member had undertaken their own research, which they brought into the jury room. She then urged the media against reporting any further on the case before the next trial, adding she expected “the matter would fall silent”.
Higgins then stood outside the ACT Supreme Court and described the justice system as “asymmetrical”, saying it made her feel as if she was the person on trial.
“I was required to tell the truth under oath for over a week in the witness stand; I was cross-examined at length. He [Lehrmann] was afforded the choice of staying silent in court, head down in a notebook, completely detached,” Higgins told reporters.
“I was required to surrender my telephones, my passwords, messages, photos and my data to him. He was not required to produce his telephone, his passwords, messages, photos or his data.”
This had prompted Lehrmann’s lawyer Steven Whybrow to refer Higgins’ speech to the court and the Australian Federal Police. “Notwithstanding her honour’s admonition, the complainant proceeded to give what appears to have been a pre-prepared speech to the media outside the court,” the statement said.
McCallum warned the jury at the outset of the trial the case had become a “cause celebre” and asked any “party faithful” to reconsider whether they should serve.
The story first broke after Higgins went public with her allegations in early 2021 in two interviews with news.com.au and The Project.
After Higgins then went to the police, she told them she felt “trapped, not human” after she said she woke to discover Lehrmann raping her. She said she was crying and telling him to stop while jammed against the armrest of the couch. “He raped me. He was in there, he was physically violating me. He was in my body,” Higgins said under cross-examination in court.
In a dramatic moment during the first trial, Higgins pointed at Lehrmann from the witness box to say “nothing was fine after what you did to me, nothing”.
Whybrow had told the jury during his opening address the Australian public had been “sold a pup”, and the national uproar over the allegations was the epitome of the adage “never let the truth get in the way of a good story”.
Drumgold described Higgins in court as a young woman in the middle of “strong political forces” in the lead-up and aftermath of the 2019 election, saying she had a right to be scared of reporting her alleged sexual assault to police.
In the lead-up to the trial, Lehrmann’s former lawyer David Campbell accused former prime minister Scott Morrison of egregious conduct by apologising to Brittany Higgins in parliament at the beginning of this year, a move he said implied his client’s guilt and the accuser’s truthfulness and put the prospect of a fair trial at risk.
Morrison apologised to Higgins in the House of Representatives on February 8 “for the terrible things that took place here”. Responding to the first recommendation of the review into parliamentary workplace culture, he said that parliament should have been a place of safety but “turned out to be a nightmare”.
The territory’s Attorney-General Shane Rattenbury is considering allowing recorded evidence from a first trial to be used in a subsequent trial in a bid to stop witnesses from being required to give in-person evidence a second time.
Drumgold wrote to Rattenbury about the omission in current laws just days after Lehrmann’s first trial was aborted.
He said there appears no rational reason to treat differently witnesses who give evidence in court compared with via video-link.
“In other words, there appears to be a structural cost to a witness choosing to give evidence in a courtroom,” he wrote.
“The recording of evidence ensures that vulnerable witnesses are not re-traumatised in a subsequent proceeding, where possible.”
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