The main findings of the Sofronoff report have been well ventilated.
It made clear, in unequivocal terms, the failings of Shane Drumgold SC, who led the prosecution of Bruce Lehrmann.
Drumgold, the report found, misled a court, attempted to withhold information from the defence, improperly released his “baseless” letter accusing police of supporting Lehrmann’s legal team and lost objectivity, raising questions about whether he should be struck off as a lawyer.
But some of the report’s other important findings have been lost in the noise surrounding its release.
Police acknowledge their understanding of when to charge sexual assault offences is ‘deficient’
A key question in the lead-up to the inquiry was whether Drumgold and police were justified in bringing the prosecution against Lehrmann.
Police, in a June 2021 briefing leaked to the media after a planned retrial of Lehrmann was called off, expressed reservations about the strength of the case, recording that “serious concerns exist as to whether there is sufficient evidence to prove the alleged offence”.
The inquiry found there was sufficient evidence to bring the case and that police were mistaken. That finding reflects neither on the guilt or innocence of Lehrmann, who pleaded not guilty and has consistently denied the allegations.
The inquiry report reveals that police more broadly misunderstood the threshold for when to bring charges against individuals accused of sexual assault. ACT police readily accepted the criticism and pledged to reform its practices.
“ACT Policing accepts that its formal training and governance around the threshold to charge is deficient and would accept and implement recommendations to implement reforms in these areas,” its submission to the inquiry says.
Deterioration in relationship between prosecutors and police based on false assumptions
The inquiry found that the deterioration in the relationship between police and Drumgold began almost immediately after their interactions about the case.
Police, Sofronoff said, had formed the “wrong view” that there was not enough evidence to charge Lehrmann and emphasised this to Drumgold during meetings.
Each side came to hold assumptions about the other. Police were concerned that Drumgold was dismissive of their views and was determined to take the case to trial. Drumgold believed police “were applying the ‘incorrect test’ for charging to ‘outdated’ analysis of evidence to reach wrong conclusions that they maintained ‘too passionately’”.
He then baselessly formed the view that police were trying to kill the case, the inquiry found. That was further cemented in his mind when police mistakenly sent Higgins’ counselling notes to the defence.
Police also wrongly believed that, when Drumgold queried them about missing CCTV footage, that he was questioning their integrity.
Sofronoff found:
Mr Drumgold did not believe malfeasance, but investigators perceived ‘undertones’ of an imputation that they were ‘corrupt or dishonest’ when Mr Drumgold pressed them to verify its whereabouts. This caused such offence that it produced ‘a significant divide between the investigation team and the DPP’.
By the time the trial arrived, police and prosecutors were at “polar ends of an antagonistic relationship”, he found, and Drumgold began to see malignancy in benign interactions between police and the defence.
Police apologised unreservedly to Higgins
In the lead-up to the trial, police investigating Brittany Higgins’ allegations accidentally sent her private counselling notes to Lehrmann’s initial lawyer, John Korn.
Korn says he did not read the notes but Drumgold, concerned the notes had fallen into the hands of the defence, did read them, something he should not have done.
The failings in the handling of Higgins’ counselling notes led Sofronoff to recommend the government consider “whether there should be a prohibition against disclosure of protected confidences at the investigation stage of the criminal process”.
Sofronoff’s report reveals the police have now apologised unreservedly to Higgins for the error.
“ACT Policing accepts that a serious error occurred when Ms Higgins’ counselling notes were inadvertently disclosed to the defence.
“ACT Policing takes this opportunity to apologise to Ms Higgins unreservedly for this significant error,” the force’s submission to the inquiry says.
“ACT Policing acknowledges that the innocent nature of the error does not diminish its gravity generally, or for Ms Higgins specifically.”
The inquiry also found police should not have shown Higgins CCTV footage of the night, obtained from Parliament House, because it may have coloured her evidence at trial. It also should not have conducted a second interview with her.
Despite the mistakes, police were found to have consistently acted in good faith and conducted a thorough investigation.
Heidi Yates was rightly concerned with decency and the ‘wellbeing of her client’
Heidi Yates, the ACT’s victims of crime commissioner, was heavily criticised in some quarters for her decision to support Higgins in court and stand beside her during a speech in which she criticised the justice system.
But the report completely exonerates and praises Yates. It finds that she was acting within her remit and fulfilling her role, and that her decision to stand next to Higgins was made without knowing what she was going to say.
Her attention was upon her duty to Ms Higgins. Her sole purpose at that time, consistently with her statutory duty as well as with human decency, was to ensure, so far as she could, the wellbeing of her client. It was natural and right for her to think and act this way.
The report found that Yates had become a vital support for Higgins during the investigation. Police attempted, at one point, to interview Yates. If she had been made a witness, she would have been unable to support Higgins fully in court.
Sofronoff found the decision to interview Yates was misguided but was wrongly interpreted by Drumgold as a ploy to isolate Higgins.
