Bruce Lehrmann’s defence barrister has rejected a suggestion police aligned themselves with Lehrmann’s defence in the high-profile rape trial, despite conceding the preparation of an unusual police summary and analysis of the evidence assisted the defence in material ways.
When questioned under cross-examination on Tuesday, Steven Whybrow SC told the inquiry into the handling of Lehrmann’s case he hadn’t observed anything on the part of police to indicate antagonism towards the prosecution, instead suggesting the converse appeared to be true.
“My impression was the opposite,” Whybrow said. “I mean, my impression was that it was [ACT director of public prosecutions Shane Drumgold] who was hostile towards police.”
Whybrow’s evidence was given in the context of a submission by Drumgold’s lawyer, Mark Tedeschi KC, that police would have “ignored” Brittany Higgins’ rape complaint, as they had “250-something” others, were it not for the publicity and backdrop of Parliament House.
It also followed evidence Whybrow had given on Monday, where he wouldn’t be drawn on whether the controversial Moller report — a lengthy police document detailing perceived discrepancies in Higgins’ account — necessarily reflected the personal views of Detective Superintendent Scott Moller, who authored the document.
When pressed on whether the document was almost exclusively negative about Higgins, Whybrow said, “[Off] the top of my head, I can’t say,” before eventually conceding the document was “very one-sided” and was “useful in relation to a number of forensic decisions [the defence] made” during the trial.
“Have you ever, as a defence counsel, been provided with a document like that previously?” asked Tedeschi, to which Whybrow said: “I can’t recall a document like that.” He also agreed it was “much more common” for police to pursue lines of inquiry that assist the prosecution case rather than the defence.
On Monday, Whybrow had given detailed evidence on the significance carried by the Moller report and his concerns at the prosecution’s reluctance to disclose it to the defence on the footing it was privileged. The inquiry was told that Whybrow, in his bid to obtain the document, had taken the highly unusual the step of phoning Moller directly, despite being informed by lawyers for the Australian Federal Police (AFP) that he should direct his inquiries to the DPP.
In a file note of that conversation, where he states that Moller told him the report wasn’t privileged, Whybrow says he expressly praised the efforts of police to assist Lehrmann’s case: “I [told Moller] I had nothing but praise for the efforts of the AFP and the lengths they have gone to. I said I suspect the trial will be blood bath [sic] and then when its [sic] over it wont [sic] be the end of it and there will undoubtedly be inquiries afterwards as to how and why it was able to get this far.”
In a separate file note of a conversation with another investigating officer, Senior Constable Emma Frizzell, before the trial, Whybrow says he told Frizzell she had “cross-examined” Higgins in a police interview better than he could have. When Tedeschi put it to Whybrow that it’s “not the function” of police to assist the defence case, the inquiry’s chair Walter Sofronoff KC interjected.
“That’s a redundant question, with respect, because obviously it’s not their function to prepare analyses that are helpful to the defence and hand them over,” he said, before reminding the inquiry it’s not concerned with Lehrmann’s guilt or innocence.
Whybrow separately downplayed the significance that might attach to the delivery of Higgins’ protected counselling notes to the defence by the senior police officer who had unlawfully obtained them.
“Sometimes mistakes happen,” he said, pointing out his primary concern at the time centred on the DPP’s decision to read the confidential material, contrary to statute. “Frankly, I was flabbergasted,” he told the inquiry on Monday, noting it had possibly endangered a fair trial because it was potentially relevant information to which the defence was not privy.
When cross-examined, however, Whybrow conceded the defence knew it could have applied for leave from the court to read the document but that it had decided against that. He also agreed the defence, if so concerned at Drumgold’s ability to impartially conduct a fair trial after having read the counselling notes, could have asked him to recuse himself — but did not.
It was similarly put to Whybrow during cross-examination that in the event of a hung jury, it remained open to the defence to press for a discontinuation or to file a no-bill — options Whybrow agreed he’d not taken despite his reservations about the strength of the prosecution’s case.
On Tuesday, the inquiry learnt that it was Whybrow who approached the police, and not the other way around, about concerns regarding Drumgold’s impartiality during the trial.
This ran contrary to an allegation contained in Drumgold’s extraordinary November 2022 letter to ACT chief police officer Neil Gaughan, where he states police had asked defence to request that the DPP remove himself from involvement in a decision about a potential retrial.
When questioned, Whybrow initially agreed he’d raised these concerns with police before approaching the prosecution team, though when pressed on how police responded, he altered his answer.
“I do recall raising it with [Drumgold’s junior] Ms Jerome, and so potentially — potentially — I did raise it with police, yes,” he said, adding that he’d “hung up” on Drumgold when he called him about the conversation: “I told him it was none of his business.”
The appropriateness of Drumgold’s references to potential political interference during the trial was also ventilated as Whybrow gave evidence, with Whybrow calling Drumgold’s accusations that Senator Linda Reynolds was assisting the defence an “appalling mischaracterisation” of events.
“I don’t hold a candle for Senator Reynolds, but [Drumgold’s suggestions of political interference] were unfair and, as far as I was aware, untrue,” he said on Monday. “I was pissed off. I was angry and I wrote this email to [Drumgold] about what I considered was improper conduct.”
Under cross-examination, Whybrow held to those views, though he accepted Drumgold had questioned Reynolds, a prosecution witness, about potential interference within the parameters set by Chief Justice Lucy McCallum. He disagreed, however, that Drumgold was entitled to tell the community that the prosecution, after the trial was aborted, had been discontinued not due to any perceived weakness in the prosecution case but due to concerns about Higgins’ health.
“I want to suggest to you that the community was entitled to know the decision [to discontinue] was not based on some view of the evidence in the trial,” Tedeschi said.
In response, Whybrow said it was a “pejorative stab at Mr Lehrmann” which had hung a question mark over his presumption of innocence.
When Tedeschi put it to Whybrow that Drumgold had considerable sympathy for Higgins, Whybrow said, “I was concerned he’d aligned himself with Ms Higgins,” noting that both Lehrmann and Higgins had been subjected to “extraordinarily hateful, uninformed and terrible comments” during the trial.
Lehrmann has always maintained his innocence.
Hearings will resume on Monday.
