The ACT Director of Public Prosecutions Shane Drumgold has told an inquiry into the handling of Bruce Lehrmann's trial for rape that a police report questioning the credibility of Brittany Higgins contained "irrelevant material".
The inquiry is examining how the case was handled by those involved, including police and prosecutors.
Mr Lehrmann — who was accused of raping Brittany Higgins in a parliamentary office in 2019 — has maintained his innocence and there have been no findings against him.
His trial last year and subsequent plans for a retrial were both abandoned.
Mr Drumgold was on Monday quizzed about whether he sought to prevent the disclosure of an Australian Federal Police report by Detective Superintendent Scott Moller, in which he said police had identified concerns about Ms Higgins's credibility as a complainant.
"Throughout the investigation, Ms Higgins has been evasive, uncooperative, and manipulative," the report said.
"Investigators have serious concerns in relation to the strength and reliability of her evidence."
Mr Drumgold was asked during the inquiry why he wanted the police report to be considered privileged, and not disclosed to Mr Lehrmann's legal team.
"It contained irrelevant material," he said.
"It contained a basic, misguided analysis of the importance of certain evidence and opinions on credibility based on inadmissible evidence."
Brittany Higgins has never responded directly to the issues raised in the inquiry.
Inquiry focuses on meeting between DPP and Lisa Wilkinson
Earlier in the day, the inquiry also heard that journalist Lisa Wilkinson had alleged she'd been treated unfairly by Mr Drumgold.
Documents tendered to the inquiry revealed correspondence between a lawyer for Wilkinson and Mr Drumgold's office in December.
At the time, there were calls in some media reports for Wilkinson to face criminal proceedings for contempt of court over a speech she gave at the Logie Awards a week before Mr Lehrmann's trial was due to begin.
Wilkinson won a Logie award based on an interview she had conducted with Ms Higgins, and her victory speech ultimately prompted a stay of proceedings for Mr Lehrmann's legal team.
This was after a meeting in which Mr Drumgold told Wilkinson that any publicity could lead to a delay, but did not explicitly advise her not to give the speech, because he understood her prospects for victory to be unlikely.
"We are not speech editors ... [I] can advise however that defence can re-institute a stay application in the event of publicity," Mr Drumgold wrote in notes from the meeting.
'I entirely misread the situation': Drumgold
As the inquiry continued on Monday, Mr Drumgold accepted that he did not fully comprehend the potential impact of Wilkinson's speech, should she win.
"In hindsight it was not an unlikely hypothetical … I should have paid closer attention at the time," he told the inquiry.
"I would accept that I entirely misread the situation."
In a letter to Mr Drumgold, presented at the inquiry on Monday, Ms Wilkinson’s lawyer Marlia Saunders outlined why she felt her client had been treated unfairly.
"You have not corrected the record in relation to what occurred during the 15 June, 2022 meeting by clarifying that there was no positive direction ... not to give a speech," she said.
"You've not publicly confirmed that you do not consider Ms Wilkinson's conduct amounting to contempt of court."
Mr Drumgold said it was possible he did not respond to that letter, and accepted that doing so may have displayed an appropriate level of professional courtesy.
But he rejected suggestions that he should have made public commentary of the nature Wilkinson had sought.
"Whatever sympathy I have for Ms Wilkinson, I'm not a publicist," he said.
The inquiry heard that Mr Drumgold told a court the day after the Logies, in June 2022, the notes from the pre-Logies meeting with Wilkinson were all made by a colleague at the time of the meeting five days earlier.
Counsel assisting the inquiry Erin Longbottom KC on Monday put to Mr Drumgold that those statements were knowingly false, and that he had in fact made additional notes following the meeting.
She said he had written notes the day after the Logies — on the same day Mr Lehrmann's lawyers applied for a stay of proceedings — which described issuing a warning to Wilkinson about her speech.
On Monday he denied being deliberately untruthful, but accepted he made an error in not distinguishing between the initial notes and the subsequent addition.
“We were talking about a whole note, I hadn’t broken it down,” he said.
“Yes, I probably should have turned my mind to the chain of who added what where.”
'It was not extraordinary'
Mr Drumgold is the first to take the stand in the inquiry after opening submissions were heard last month.
In answering questions about his prosecution of Mr Lehrmann, Mr Drumgold told the inquiry he had treated the matter in the same way that he had other alleged sexual offence cases.
"From my approach, factually, it was like many other trials that I have done," he said.
"It was not extraordinary in my sense."
During an initial hearing last month, counsel assisting the inquiry Erin Longbottom said the context of Ms Higgins's allegation "seemingly affected" the way the agencies involved handled the matter.
On Monday Mr Drumgold said the context did place extra demands on his role, in terms of ensuring the fairness of a jury.
"I had to keep the publicity out of the courtroom, essentially," he said.
Inquiry to focus on actions of police, prosecution
The ACT government set up the Board of Inquiry after the public release of a letter from Mr Drumgold to police in which he alleged he'd been pressed not to pursue the charge against Mr Lehrmann.
The letter was written after the trial was abandoned but before the decision not to proceed with a retrial.
It became public after the legal proceedings were over.
The charges against Mr Lehrmann, which have now been dropped, were formally laid in August 2021 over the alleged incident in March 2019.
Ms Higgins had initially gone to police soon after the alleged incident but later suspended her complaint until February 2021, when she finally gave a statement to police, after interviews with Wilkinson for the Project and Samantha Maiden for news.com.au, in which Mr Lehrmann was not named.
The inquiry, led by former Queensland judge Walter Sofronoff, will not look into the details of the case but will concentrate on the actions of those running the investigation.
The terms of reference refer to whether any police officer, Mr Drumgold, or ACT Victims of Crime Commissioner Heidi Yates, did anything outside their formal responsibilities before, during and after the prosecution.
Mr Sofronoff has said a key issue will be to decide if the prosecution should have proceeded.
Mr Sofronoff said he would have to consider the two-step threshold for charging and continuing with a prosecution, which relies on whether there is a reasonable chance of success and whether the prosecution is in the public interest.
The inquiry will also consider Mr Drumgold's actions, including his decision to discontinue the case and the circumstances of the public release of the letter from Mr Drumgold to police, which sparked the inquiry.
During the trial, ACT Victims of Crime Commissioner Heidi Yates accompanied Ms Higgins to court each day she appeared.
The inquiry will consider whether her actions, which also included acting as an intermediary with police and prosecutors, were within her responsibilities.
It has not been all plain sailing for the inquiry, which was to have started last month.
It was delayed twice, and the reporting date will now be a month later on July 31.
Mr Lehrmann's lawyer Steve Whybrow is also expected to give evidence.
