The inquiry into Bruce Lehrmann’s prosecution over the alleged rape of Brittany Higgins has raised further questions about the conduct of ACT Director of Public Prosecutions Shane Drumgold, who on Tuesday was accused of displaying a “cavalier attitude” towards his ethical and legal obligations as a prosecutor.
The charge, levelled by counsel assisting, Erin Longbottom KC, arose in the context of revelations regarding actions Drumgold took to “remedy” the highly unusual move by police to provide Lehrmann’s lawyers with the brief of evidence days after he was charged in August 2021.
Usually, briefs of evidence are provided only to defence by the prosecution, which vets the material in accordance with its disclosure obligations.
Drumgold told the inquiry that shortly after learning of the disclosure, he was informed the brief — not unlike the version prepared for his office — had unlawfully included a series of protected documents including, most notably, Higgins’ counselling notes.
According to Drumgold, the police asked Higgins to “sign a document” to allow them to obtain the material, even though the request ran contrary to the Victims of Crime Act.
“This is deeply concerning,” Drumgold said in an email to Detective Superintendent Scott Moller at the time. “Can you please advise as a matter of urgency what is being done to correct the situation?”
Correspondence from Moller to Drumgold some days later revealed that Lehrmann’s barrister, Warwick Korn, had not accessed the protected material and had undertaken to destroy it. Under questioning, Drumgold said the same assurance was relayed by Korn to him in a phone call around the same time.
Notwithstanding this, and despite being on notice Higgins’ counselling notes were a protected confidence, Drumgold conceded he had read the document, though only after first denying the possibility.
“Didn’t it occur to you that this might be a breach of statute?” asked the inquiry’s head Walter Sofronoff KC. “Why the double standard? Did it ever occur to you that the documents had been wrongly disclosed to your office as well?”
In response, Drumgold said his “major concern” was that the documents “were in the hands of defence” and he was focused on the extent of “damage” which might flow from that.
When pressed on why it was necessary to read the document to make that judgment, Drumgold segued to the “possibility” the police were trying to undermine the trial and concerns about (undefined) “inconsistencies”.
This prompted Sofronoff, a former Queensland Supreme Court judge, to interject, telling Drumgold that the relevant harm to Higgins revolved solely around the risk the counselling notes would be read: “I want to put it to you that nobody in your office had to read the documents. What do you say to that?”
He eventually rebuked Drumgold, saying: “Please don’t evade my question.”
It was later pointed out to the chief prosecutor that by reading Higgins’ counselling notes he’d potentially exposed himself to evidence that could negatively bear upon her credibility, with the consequence he may have jeopardised his duty to ensure a fair trial. This was because Drumgold might have gleaned information from the counselling notes that was at odds with her testimony but which nonetheless couldn’t be provided to the defence due to the statutory prohibition in place.
Citing concerns Lehrmann’s defence barrister Steven Whybrow SC had raised to this effect, Drumgold was asked whether he should have recused himself as prosecutor from the trial. He said he thought the tenor of the inquiry’s discussion was “overstating” the significance of his actions.
“I perused the counselling notes to determine the urgency of which they had to be returned,” he said. “I saw nothing in the communication that gave rise to a conflict [of duty].”
Drumgold did, however, admit he “possibly” shouldn’t have read the counselling notes and that in doing so he’d “potentially” breached the Victims of Crimes Act — but he qualified this with the observation that it was easy to see these things within the confines of the “sterile environment of an inquiry”.
Misleading the court
Earlier in the day, the inquiry heard that Drumgold had misled the Supreme Court for a second time by falsely suggesting or implying a police document critical of Higgins’ credibility was privileged in order to suppress its release to the defence.
He’d done so by relying on an affidavit of a junior lawyer in his team, Mitchell Greig, which implied ACT Policing had claimed legal professional privilege over the eponymously named “Moller report”. However no such privilege had been claimed by police, and the only person pressing for non-disclosure was Drumgold.
In the witness box, Drumgold suggested that the inquiry was at risk of “overstating” his involvement in the preparation of Greig’s affidavit, which prompted Longbottom to show Drumgold an email sent by him to Greig instructing him on the words, verbatim, Greig should include in his affidavit.
“You must accept [that your submissions to the court have] the capacity to mislead,” Longbottom said, to which Drumgold replied: “Well, I don’t know, unintentionally [misleading].”
Sofronoff then said: “Instead of being candid with her honour, you read this affidavit [which falsely gave the impression] there is information from police that justifies a claim for privilege. I’m putting it to you that it was wrong to use this affidavit.”
As it happens, the Moller report was later disclosed to the defence by AFP Legal, which had informed Drumgold that there existed no basis upon which it could claim privilege.
When pressed on his opposition to disclosing the report to the defence, Drumgold said he didn’t believe the document was relevant to the trial and that it plainly exhibited “a strong bias towards the defence”.
“Essentially, it says a senior police officer, through a stereotype bias analysis, has particular conclusions about a complainant. In my view, it was not even admissible [evidence],” he said. This was challenged by Sofronoff, who pointed out the document “doesn’t have to be admissible to be disclosable”.
“You keep saying, ‘Well, it’s not admissible.’ Do you only disclose admissible evidence?” he said.
Allegation of police corruption
Drumgold later told the inquiry he had been alarmed at the extent to which the police, through documents such as the Moller report, had attempted to sway his decision to prosecute Lehrmann.
Describing those documents as a series of unreliable “gotcha moments” that might not even be admissible, he said he was “very taken aback” by the “passionately held” position of ACT Policing.
“The first meeting was very unusual,” he said. “I perceived it as ‘We’ve got this history — here’s a couple of gotcha points [and] of course you’ll agree.’ It’s not the meeting that I thought I was going into.”
The written submissions Drumgold tendered to the inquiry expand on these claims, and include accusations police had engaged in “unsophisticated corruption” in an attempt to derail the prosecution.
Lehrmann, who attended the first day of public hearings on Monday, has always maintained his innocence.
The inquiry continues.
