Tim Clarke: Jury in trial of Brittany Higgins’ alleged rapist Bruce Lehrmann warned like any other

It is the consistent warning that every juror in every court in the land will hear before they even hear any evidence.

Listen only to the evidence. Consider only the evidence. And use only the evidence to come to a verdict.

Anything else – media reports, social media chatter, personal research – should not and cannot be part of the process. Because it can’t be tested. It can’t be scrutinised.

And in the case of social media in particular it can so often be biased, or bluster — or just plain garbage.

Judges make the warning every day. Jurors heed it every day.

And in the case of R vs Lehrmann, ACT Chief Justice Lucy McCallum could not have been clearer — telling the jurors outside research of any form was “absolutely forbidden”.

And yet sometimes jurors just can’t help themselves. They are human, they become invested. And ironically that investment – that desire to make the right decision – leads them to make the wrong one.

The trial of R vs Lehrmann was always going to be hard. Hard for the accused, hard for the alleged victim Brittany Higgins, and hard for the jurors – who obviously took their role very seriously.

As they should.

But now it is going to be even harder. Hard for the accused to get a fair trial, given the publicity. Hard for Ms Higgins to have to wait for another day in court – while her life is picked through in public.

And spectacularly hard for any potential juror to try and put aside what they will inevitably know, and concentrate just on the evidence that will now have to be presented again.

But that is what will have to happen, if the retrial is to go ahead as scheduled next year.

That may be a big if.

Mr Lehrmann’s lawyers have already tried and failed to have the case pushed off the books because of all the comment that has gone before.

Even a speech former Prime Minister Scott Morrison gave in parliament – where he apologised to Ms Higgins “for the terrible things that took place here” – was used in an argument to have the case stayed.

After the events of Thursday, they may well decide to try and run those arguments again – armed with even more material they will say makes their argument stronger because a fair trial is even more unlikely than before

And Justice McCallum will more than likely be the one to hear that argument if it is made, and make a decision.

There is no indication whether that application will be made.

But after aborting the Lehrmann trial on Thursday, Justice McCallum was already anticipating what problems may lie ahead.

She said the trial being aborted was “unexpected and unfortunate”.

She said she hoped Ms Higgins and Mr Lehrmann could have some “respite from the intense glare of the media that has been pervasive throughout this trial.”

And she told the gathered media she expected reporting on the case “should fall silent”.

A warning she will surely hope is heeded more strictly than the one she gave the jury which she ultimately had to send away.