“I have never found that one person who is knowledgeable in the law is a better judge of evidence than a dozen fellow citizens working together,” writes retired barrister HUGH SELBY.

AFTER the jury was discharged in the Lehrmann trial some key problems in our ACT approach to jury trials are now all too clear. 

We can disagree about their relative priorities on a list of “must fix”, but their being on that list is certain.

We should be thankful that a court officer found the offending article in the jury room of the Lehrmann trial before there was a jury verdict. 

Had there been a verdict, the required follow up from the “after-the-event” discovery is tedious, time consuming, expensive and of uncertain result.

The trial judge told the jurors some 17 times to keep to the evidence given in the courtroom. One or more didn’t. Are you surprised? 

We want intelligent, focused jurors, but the court system wants to treat them like sheep. Telling people not to do something that they want to do is a waste of time. When the people can’t change, the system is the problem. It needs to change.

There is a related glaring contradiction. Appellate courts routinely assert that jurors follow the instructions given by trial judges. There is no good evidence to support this claim, but it’s trotted out repeatedly. 

This case provides 17 disproving instances, but woe betide the eager advocate who tries to mention that inconvenient truth on an appeal.

Once upon a time, jurors could be asked about what happened in the jury room. The system survived. Then, in response to a very few instances of media nonsense, our politicians chose to outlaw all such useful information. 

Why is it useful? Suppose that we could be told that the jury was split 11 to 1 and which way that split went. 

Such information would be useful when the prosecution decides if there should be another trial. The same information, if there is to be another trial, will help the defence team decide if the accused needs to give evidence or not.

The problem of an 11-to-1, or even a 10-to-2, split has been solved elsewhere in Australia by allowing such a verdict, instead of requiring 12 united voices. 

There’s nothing magical about 12; it’s just an historical artefact. But not in the ACT, where we can’t even know the numbers on each side. Wilful ignorance does not inspire confidence.

Let’s turn to the cost of this aborted trial. Twelve days of hearing, 29 inconvenienced witnesses, extra jurors, lawyers on both sides, court staff – the whole lot thrown away. That’s our money, taxpayers’ funds. 

If Mr Lehrmann was not on Legal Aid then there’s at least a new small car in his money up the chimney, with nothing to show for it.

The end of this trial was not caused by Mr Lehrmann or his lawyers. Outside the ACT there are laws which would give Mr Lehrmann at least some contribution from public funds towards his expenses, but not here. That is so unfair.

While on the topic of unfairness, with the prospect of a February retrial, how many readers know that Ms Higgins will not give evidence again? The new jury will get to see only the audio-visual record of all her evidence.

Politicians decided it would be unfair to require victims to give evidence a second time. Note the assumption that the complainant is a victim – which is the issue upon which the Lehrmann/Higgins trial turned: she says there was sex. He says there was none.

No such generosity is given to the accused. Many accused in Australian sexual offence trials are found “not guilty”, but no one gives a damn about the stress imposed upon them by unsubstantiated or fabricated complaint, be it for one trial or one or more retrials. Mr Lehrmann, be he innocent or guilty, has many stressful nights ahead.

There is a related problem here in the ACT. If between now and the new trial the defence were to come across a gold nugget of evidence that they would like to question Ms Higgins about, they will likely be refused permission to have her recalled. 

The threshold tests for recalling a complainant are deliberately skewed to prevent such new questioning. 

For example, here in the ACT clear evidence of destruction of evidence followed by lying to police and to a trial court, is not enough to have a complainant brought back to court. 

All of these problems could be fixed if there was a will by politicians and lawyers to address them purposefully. I see no signs of relevant “let’s improve our jury trials” activity. The chances of any such change before a new trial in the Lehrmann matter are nil.

Please do not think that the writer is against jury trials. There are some people who argue we should replace our jury trials with judge-alone trials. I am not one of them. 

I have never found that one person who is knowledgeable in the law is a better judge of evidence than a dozen fellow citizens working together.

Hugh Selby is a recently retired barrister who enjoyed appearing in criminal jury trials and teaching about them.