A member of the investigating team that examined Brittany Higgins’s rape allegation has admitted there is confusion among police about the legal test required to charge a suspect.
Emma Frizzell, a senior constable with the Australian federal police sexual assault and child abuse team (SACAT), appeared before an independent inquiry examining how the ACT justice system handled the high-profile case.
She was involved in investigating Higgins’ allegation that former colleague Bruce Lehrmann raped her in 2019 inside the Parliament House office of then Coalition minister Linda Reynolds.
Lehrmann denies the allegation.
In her statement to the inquiry, Frizzell said she believed the legal test to charge a suspect was having a reasonable belief the evidence supported the prospects of a conviction.
But having watched inquiry hearings for the past few weeks, she realised she was wrong.
“I would concede that I don’t have it right [and] what I’ve written in my statement is not right,” she told the inquiry on Thursday.
Asked if there was still confusion among police about what the legal test to charge a suspect is, Frizzel said: “Yes I would say that there is.”
The director of public prosecutions, Shane Drumgold, previously told the inquiry he was concerned about what officers believed were the standard-of-proof tests required to charge someone.
When asked about the relationship between police and Higgins, Frizzell denied investigators resented the former Liberal party staffer for communicating with them through the ACT victims of crime commissioner Heidi Yates.
But it made it difficult to build a relationship with Higgins, she said.
“It allowed no communication, no contact. You can’t build rapport or a relationship with someone you can’t speak to.”
The inquiry previously heard evidence Yates assisted police, including organising Higgins to provide additional evidence, which was beneficial to the investigation.
But Frizzell said Yates’ involvement meant she could not build the type of relationship she normally would with a complainant.
The inquiry was told by AFP Detective Superintendent Scott Moller that SACAT is used as a “training ground for budding detectives” and many officers were “very young and inexperienced”.
But he said investigators were dedicated and hard-working nonetheless.
Moller said he was proud of his officers for pursuing Lehrmann’s prosecution despite holding personal beliefs there was not enough evidence to charge him.
While he originally thought there was not enough evidence, Moller said his opinion changed when he read advice from Drumgold that the prosecution should go ahead.
But he would not concede that his original view of the case was wrong or that investigators had lost their objectivity.
Lehrmann, who pleaded not guilty to one count of sexual intercourse without consent, has always denied the allegation of rape and no findings have been made against him. He was tried in the ACT supreme court last year but a mistrial was declared after juror misconduct. A planned retrial was abandoned after expert medical advice warned it posed a “significant and unacceptable risk” to Higgins’ mental health and her life.
The inquiry heard this week that the ACT where Higgins reported her alleged rape was the least likely jurisdiction in Australia to lay charges over alleged sexual assaults.
The inquiry was taken to a 2021 report by the Sexual Assault Prevention and Response Steering Committee based on 2020 figures which showed that only 2.8% of sexual assault investigations in the ACT had resulted in charges being laid against an offender after 30 days, compared with the national average of 17.4%.
