Tue Apr 18

Why is there an inquiry into the Bruce Lehrmann trial? Legal experts explain

Written by: Ben Livings, Associate Professor of Criminal Law and Evidence, University of South Australia

There’s yet another twist in the Bruce Lehrmann saga. On Monday, opening statements were delivered in an inquiry into the prosecution of Lehrmann over the alleged rape of Brittany Higgins.

Lehrmann has always maintained his innocence, pleading not guilty to a charge of sexual intercourse without consent.

The inquiry will investigate the handling of the case by Australian Capital Territory authorities. It will start hearing evidence on May 1.

The first trial was abandoned ^[1] by the judge in October 2022 due to juror misconduct. A second trial did not proceed due to prosecutors’ fears for Higgins’ mental health.

This investigation is separate to the ongoing defamation cases ^[2] Lehrmann is pursuing against a range of media outlets.

Also on Monday, trial judge and ACT Chief Justice Lucy McCallum announced ^[3] she would be maintaining a suppression order that keeps secret some elements of the case involving Higgins. McCallum said “I have no doubt that any further exacerbation of the level of media attention directed to her carries a risk to her life”.

‘Inappropriate interference’

It’s been revealed that in November 2022, the ACT director of public prosecutions (DPP), Shane Drumgold, raised concerns ^[5] about the conduct of police and their interference in his handling of the prosecution.

The Office of the DPP is an independent statutory authority created by parliament. It prosecutes criminal cases in the ACT, operating free from government influence. That is, free from the parliament and the executive, which includes police ministers and police commissioners.

In other words, the DPP is to remain above politics, and stick entirely to principles of law, and agreed prosecutorial guidelines.

The letter emerged following a freedom of information request from The Guardian. In it, Drumgold alleged ^[6] there had been “inappropriate interference” by police in the case, namely that he had been pressured not to continue the prosecution.

The inquiry will investigate Drumgold’s allegations. It will try to determine whether any matters extraneous to the trial, and the attempted retrial, interfered with the fairness of the process, or disrespected the rights of those involved.

Former Queensland solicitor-general Walter Sofronoff has been appointed to head the inquiry. He said he will report back to the government by the end of June.

ACT Director of Public Prosecutions, Shane Drumgold, alleged police had inappropriately interfered in the case. Lukas Coch/AAP

The task ahead

Sofronoff has quite the task ahead of him. Into this mix come a number of players, themes and factual disagreements.

For starters, there is the essential pillar of prosecution independence that prevents the government of the day (and their police) deciding who is to be prosecuted and under what circumstances. Section 20 of the Director of Public Prosecutions Act 1990 (ACT) allows the Attorney-General to “give directions or furnish guidelines” to the DPP, but these are to be “of a general nature and shall not refer to a particular case”. The decision as to whether to proceed with a prosecution remains with the DPP.

The prosecution policy of the ACT will also come under scrutiny. That is, the discretionary guidelines given to the DPP by legislation in relation to their choice to prosecute.

The role of Victims of Crime Commissioner Heidi Yates in the entire episode is likely to be examined ^[7]. The role of this commissioner is to act as a victim advocate, and Yates was a prominent supporter of Higgins, appearing at numerous court hearings alongside her ^[8].

More than one politician was drawn into the matter, albeit with marked reluctance. Media celebrities weighed in. Criminologists pointed to the very low rate of guilty verdicts in prosecutions alleging sexual improprieties.

All of these players may fall under the scrutiny of Sofronoff as he tries to determine what influence may have been exerted by these diverse factors in the interactions between the police and the DPP.

Sofronoff is likely to want to know more about the fact that police disclosed a brief of evidence ^[10] to Lehrmann’s defence lawyers, which included sensitive information such as Higgins’ counselling notes. This occurred before Lehrmann had entered a plea.

He may wish to examine the appropriateness of an apparent close engagement during the trial between the investigating officers and Lehrmann’s legal team. Sofronoff will be assisted by his reference to more than 140,000 pages of documentation ^[11].

Rarely has there been such an “after the event” examination of the way a prosecution has been conducted. In many respects, the trial is being heard all over again.