Mon Aug 7

New report into Lehrmann prosecution mires case in yet more controversy

Written by Jude McCulloch, Emeritus Professor Monash University, Monash University

The ACT government on Monday officially released the report ^[1] from the inquiry into the prosecution of former Liberal staffer Bruce Lehrmann over the alleged rape of Brittany Higgins in Parliament House in 2019. Lehrmann has consistently denied the allegation.

The inquiry is only one of at least seven legal proceedings linked to the high-profile, politically-charged case.

The report’s findings have been reported in the media for several days after the inquiry’s chair, former Queensland judge Walter Sofronoff, provided ^[2] the report under embargo to selected media without the knowledge of the ACT government. One journalist received the report before ^[3] it was handed to Chief Minister Andrew Barr.

The ACT government said it’s considering charging ^[4] Sofonoff in relation to releasing the report to journalists ahead of the embargo.

What did the report find?

The report makes “several serious findings of misconduct” against former Director of Public Prosecutions Shane Drumgold.

Despite this, the report found the prosecution was properly brought – in other words, that the decision to prosecute was appropriate. This is significant because whether there was sufficient evidence to charge Lehrmann was a central issue of tension between the police and Drumgold.

The negative findings against Drumgold include that he:

publicly released the controversial letter he sent to the ACT police chief after receiving a freedom of information request, without consulting with the ACT police chief about its release
failed in his duty of disclosure to the defence by not providing it with an executive briefing note by Detective Superintendent Scott Moller, who led the police investigation into Higgins’ allegations, and Detective Inspector Boorman’s evidence analysis
improperly questioned Liberal Senator Linda Reynolds. It was found, among other things, that it was improper to put to Reynolds that she was politically invested in the outcome of the trial
made public statements of support in relation to Higgins in the wake of the aborted trial that were inappropriate because they “gave rise to a reasonable inference that Mr Drumgold was stating his opinion that he thought that Mr Lehrmann was guilty”
“knowingly lied” to the chief justice in the lead-up to the trial about the extent of the warning he gave journalist Lisa Wilkinson about a speech she planned to give at the Logies, if she won an award for her reporting relating to Higgins. On winning a Logie, the speech she gave, and its ability to prejudice Lerhmann’s right to a fair trial, led to proceedings being temporarily halted.

The report ^[5] makes no such negative findings against the police. However, Sofronoff does state:

although I think that police investigators accomplished a thorough investigation, I have found that they made some mistakes. None of these mistakes actually affected the substance of the investigation and none of them prejudiced the case. Some of them caused unnecessary pain to Ms Higgins and others.

Likewise, the report finds the victims of crime commissioner acted appropriately, and her support of Higgins didn’t undermine Lehrmann’s presumption of innocence.

The report makes ten recommendations. Significant among these are:

the formulation of a policy to define the “threshold to charge” and the “considerations which should inform a police officer’s application of the threshold to a given case”
that the Office of Director of Public Prosecutions and the ACT police review the Collaborative Agreement between the two agencies, with a view to including a complaints mechanism between the agencies
that the government enact legislation to codify the scope and content of the obligation of disclosure owed by the prosecution in criminal proceedings
update policy to provide a process for recording retrial decisions.

Why was the inquiry established?

The inquiry was established last year after a public airing of conflict between ACT police and Director of Public Prosecutions Shane Drumgold regarding the Lehrmann case.

Drumgold criticised ^[6] police attitudes as backwards in their response to Higgins, while detectives believed Drumgold was hostile towards them.

Lehrmann was tried on one count of sexual intercourse without consent in the ACT Supreme Court in October 2022. After all evidence had been heard, and a week into jury deliberations, a mistrial ^[7] was declared due to juror misconduct.

The charges against Lehrmann were subsequently dropped because of fears about the detrimental impact of a second trial on Higgins’ mental health.

The inquiry’s terms of reference ^[8] gave it a broad remit, including investigating whether police or the director of public prosecutions had breached their duties.

It finds Drumgold breached his duties on multiple occasions. These breaches were partly seen to be motivated by a loss of objectivity in that Drumgold was concerned to protect Higgins.

Drumgold maintained, for example, that his motivation for withholding the Moller report from the defence was that it would have been crushing to Higgins to the extent that it may have meant she was unable to participate in the trial.

Drumgold, who has now resigned, rejects many of the findings ^[10], maintaining:

While I acknowledge I made mistakes, I strongly dispute that I engaged in deliberate or underhanded conduct in the trial or that I was dishonest

In my mind, the handling of the case was reflective of the chronic problem in Australia with the way our legal institutions deal with allegations of sexual violence.

Rape myths and the criminal justice system

In all criminal trials, victims are witnesses rather than parties to the action. As such, they have no legal advocate in court. The prosecutor formally acts for the community, not the victim.

The inquiry’s terms of reference were broad enough to consider the experience of Brittany Higgins specifically. For example, there has been a steady leak ^[11] of Higgins’ private communications, which weren’t part of the public trial process.

The inquiry heard little evidence about the source of the leaks. This is despite the likelihood that such leaks would undermine confidence in the criminal justice system and are deeply distressing to Higgins.

Higgins endured days of brutal cross examination, as is common in sexual assault cases. But the inquiry commented on what, to a lay person, might seem rather technical points in relation to the questioning of Senator Linda Reynolds.

A 2021 report ^[12] showed the ACT laid charges over alleged sexual assaults at a rate six times lower than the national average.

The inquiry heard that few in the ACT’s sexual assault and child abuse team had sexual assault training, including its most senior officer. It also heard the unit included many junior and inexperienced members ^[13] because it was used as a training ground.

Public confidence in the criminal justice system

In setting up the inquiry, the ACT government acknowledged “the need for public confidence in the criminal justice system”.

Chief Police Officer for the ACT Neil Gaughan told police colleagues last week that the preemptive publication of the inquiry report would affect the community’s confidence in the justice system ^[15].

Indeed the report, and particularly the early publication of its findings in the media, have wrought further damage to the criminal justice system, brought more harm to those involved, and will most likely undermine confidence in the system.