Statement to members regarding R v Lehrmann
15 December 2022
Because of concerns that have been widely expressed within the bar regarding the continuing public commentary concerning alleged reservations of some investigating police of the charges in R v Lehrmann being pursued at trial, and public statements made by the ACT’s Director of Public Prosecutions concerning the decision not to retry those charges, the Australian Bar Association is prompted to write to members.
The Australian Bar Association reiterates the observations made by Chief Justice McCallum of the barristers who conducted the trial as having “behaved in an exemplary way in accordance with the finest traditions of the Bar”. The performance of all the barristers involved in the trial was a credit to them and our profession.
A high-profile case of this nature is inevitably drawn into the public sphere, and subject to commentary from within, and outside of the legal profession. Some of that commentary is appropriate, some is inappropriate, and too frequently insufficient regard is given to how any legitimate commentary will affect the humans at the centre of the case.
Inappropriate commentary is a disservice to the universally accepted need to bring to justice more effectively those responsible for acts of sexual violence.
Important institutional safeguards are the reason that it is the decision of police to lay charges, and the decision of prosecutors whether to pursue those charges at a trial. Whether or not it be the case that some investigators had a different view, it was the continuing obligation of the ACT DPP to exercise his discretion whether to pursue the charges laid. Public criticism of the ACT DPP because others allegedly had a different view does not have regard to the importance of the checks and balances and accountability in our criminal justice system that this discretion ensures.
When noting the public statement made by the ACT DPP (both as to its content and manner) as the subject of public criticism, the Australian Bar Association recognises the difficult job performed by DPPs Australia wide. It is not the role of the Australian Bar Association to comment on the conduct of particular advocates, public or private.
The Australian Bar Association wishes to reiterate in the plainest terms that the presumption of innocence in our criminal justice system is absolute. That presumption is not diminished by a decision to retry or not to retry a charge for whatever reason.
Further, on those occasions where a public explanation regarding why a prosecution has taken a certain course is truly necessary, the ordinarily appropriate place for such an explanation by the barrister, whether prosecution or defence counsel, is in court and in the presence of those concerned in the prosecution.
Peter Dunning KC
President, Australian Bar Association