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The secret legal row that raged behind the scenes in the trial of Brittany Higgins’ accused rapist

A secret bid to stop the man accused of raping Brittany Higgins from facing trial can be revealed after the judge lifted a non-publication order.

Bruce Lehrmann tried to quash his high profile jury trial before it began by claiming he had faced damaging publicity. 

But Chief Justice Lucy McCallum told his legal team Ms Higgins had been branded a ‘liar’ and a ‘silly little girl who got drunk’ long before Lehrmann was ever identified, court documents from the ACT Supreme Court in April this year have now revealed.

Lehrmann’s legal team made an application for a permanent stay on his charge – which meant he wanted the case dropped entirely on the basis that the case received too much publicity and he would not be able to get a fair trial.

Failing that, he wanted a temporary stay.

A secret bid to stop the man accused of raping Brittany Higgins (pictured) from ever facing trial can now be revealed after the judge lifted a gagging order silencing the legal row

The chief justice dismissed the submission, but the reason could not be released at the time because they were subject to a non-publication order. However, the court confirmed the order was lifted on Wednesday evening.  

Lehrmann is accused of raping Ms Higgins inside Parliament House after a night out in March 2019.

He pleaded not guilty to sexual intercourse without consent and is being tried in the ACT Supreme Court.

According to published remarks by Justice McCallum on April 29, Lehrmann’s former barrister John Korn argued that Ms Higgins had ‘set out’ to discuss her allegations with the help of the media and the backing of ‘famous people, including the Prime Minister’.

On April 29, Lehrmann's former barrister John Korn argued that Ms Higgins had 'set out' to discuss her allegations with the help of the media and the back of 'famous people, including the Prime Minister' who was at that time, Scott Morrison, pictured.

On April 29, Lehrmann’s former barrister John Korn argued that Ms Higgins had ‘set out’ to discuss her allegations with the help of the media and the back of ‘famous people, including the Prime Minister’ who was at that time, Scott Morrison, pictured.

Bruce Lehrmann (pictured) is accused of raping Ms Higgins inside Parliament House after a night out in March 2019

Bruce Lehrmann (pictured) is accused of raping Ms Higgins inside Parliament House after a night out in March 2019

He was referring to the moment in February this year when then-Prime Minister Scott Morrison issued a landmark apology to victims of sexual harassment and assault in government offices.

Mr Morrison also apologised directly to Ms Higgins for the ‘terrible things’ that happened in parliament.

Mr Korn told the court that Mr Morrison’s apology was ‘particularly egregious as it imputed the accused with guilt of the offence, or at least implicitly assumed the truthfulness of (Ms Higgins)’.

He said the sheer volume of publicity that came from the apology meant it would be ‘impossible to provide a complete catalogue of potentially prejudicial material’.

Furthermore, the moment Ms Higgins spoke at a ‘Women’s March 4 Justice’ on the lawn of Parliament House was also brought up.

The moment Brittany Higgins spoke at a 'Women's March 4 Justice' on the lawn of Parliament House (pictured) was also brought up

The moment Brittany Higgins spoke at a ‘Women’s March 4 Justice’ on the lawn of Parliament House (pictured) was also brought up

According to Mr Korn’s submission, she was ‘unashamedly invoking her own complaint as the truth’ rather than as allegations.

It was also argued that Ms Higgins addressed the National Press Club with former Australian of the Year Grace Tame where they gave what was described at the time as ‘incredibly powerful speeches’.

During that speech, according to the court documents, Ms Higgins said: ‘I was raped on a couch in what I thought was the safest and most secure building in Australia.’ 

The chief justice accepted the complainant’s allegations were treated as truths in some instances where she was publicly supported, and described the case as ‘unique’.

However, she did not accept that the matter was too far gone and rejected Mr Korn’s arguments.

‘Accepting that by far the most part of the publicity assumes the complainant’s truthfulness, I am not persuaded that the matter is beyond rescue,’ she told the court.

‘Certainly not to the extent required to be established in order to obtain a stay.’

Justice McCallum went on to say it was ‘unfortunate’ that Ms Higgins’ credibility had been the subject of public commentary, and pointed out the Lehrmann wasn’t identified when the Liberal staffer went public with her allegations.

‘Outside the supportive forum of the Women’s March 4 Justice movement, she has been branded as a ‘liar’ and ‘a silly little girl who got drunk’. 

Justice McCallum was referring to a comment made by FIVEaa radio host Jeremy Cordeaux in March 2021.

 Mr Korn also tried to argue that empanelling an impartial jury would be an ‘impossibility’ due to the publicity.

However, Justice McCallum said ‘the mere fact that a member of the panel is aware of the pre-trial publicity is not of itself problematic’.

‘The critical concern is for the trial judge to take steps to ensure that each potential juror feels capable of giving impartial consideration to the case.’

The chief justice was ‘not satisfied’ with the arguments for a permanent stay.

Mr Korn also applied for a ‘take-down’ order to be imposed, which means the defence wanted all stories about the case to be removed from the internet.

Brice Lehrman's former barrister John Korn applied for a 'take-down' order to be imposed, which means the defence wanted all stories about the case to be removed from the internet

Brice Lehrman’s former barrister John Korn applied for a ‘take-down’ order to be imposed, which means the defence wanted all stories about the case to be removed from the internet

He also called to ban the media from publishing any information about the accused.

However, Justice McCallum said: ‘To seek instead to regulate media discussion of criminal proceedings by the inexact tool of suppression and non-publication orders is a pious hope, particularly since the advent of the internet and social media.’

She also rejected the notion that the court was ‘condoning a media free for all’.

A jury of 12 have been deliberating on whether Lehrmann is guilty or not for six days.

On Tuesday, they sent Justice McCallum a note to say they were unable to reach a unanimous verdict.

She asked them to go back into the jury room and reconsider, but they asked to be sent some for the day 40 minutes later.

Justice McCallum urged them to ‘relax, hit the gym or walk the dog or whatever you need to do to rest from this arduous task’.

By 4pm on Wednesday, they had not reached a verdict. 

She reminded them that they are ‘all equals in the jury room’, and told them to ask for help if they need it. 

The jury will reconvene at 10am on Thursday.

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