A senior police officer who investigated the alleged rape of Brittany Higgins told Bruce Lehrmann’s lawyer he would resign if a jury found Lehrmann guilty, the lawyer claims.
Steven Whybrow SC said in a statement provided to an independent inquiry into Lehrmann’s prosecution that he met with detective inspector Marcus Boorman in October 2022, while the jury was deliberating in Lehrmann’s case.
The inquiry was established by the ACT government after it said there had been a “number of complaints and allegations” about the trial.
Boorman had texted Whybrow asking to meet for a coffee on 25 October, Whybrow said in the statement, six days after the jury had retired to consider its verdict.
“When I saw him, he appeared to me to be anxious and agitated and concerned we not be seen speaking together in direct line of sight of the ODPP [office of the director of public prosecutions],” Whybrow said in the statement.
“DI Boorman indicated to me that he was quite distressed about this prosecution and considered that Mr Lehrmann was innocent.
“He made several other comments along these lines and I recall he said words to the effect ‘if the jury comes back with a guilty verdict, I’m resigning’.”
Whybrow said in his statement that he “had never before had a conversation with a police officer who had indicated that they were going to resign because they had been ordered to prosecute someone they considered was innocent”.
He also noted that Boorman had told him several days earlier words to the effect of “I have no confidence the DPP will let me know” when a jury returned a verdict in the case, which Whybrow said in his experience the DPP would usually do.
Whybrow is yet to give evidence before the inquiry, but is expected to do so in the coming days.
The inquiry earlier heard evidence that notes from meetings between Higgins and a counsellor were given to Lehrmann’s legal team by police in a move that a prosecutor Shane Drumgold SC feared was an attempt to “derail” the case.
Drumgold, the ACT director of public prosecutions and first witness at the inquiry, on Tuesday said he was shocked to learn in September 2021 that police had provided a brief of evidence to Lehrmann’s lawyers only days after Lehrmann was charged, although he later learned they had not read any of the material and had undertaken not to look at it.
He then learned the brief contained notes from meetings Higgins had with counsellors, including at the Canberra Rape Crisis Centre, as well as the unredacted contact information of Higgins and witnesses and video records of Higgins’s police interviews.
On 22 September 2021, Drumgold wrote to detective superintendent Scott Moller, who was investigating the case, that the release of the information was “deeply concerning”.
He asked Moller to “advise as a matter of urgency” what was being done to correct the situation, and suggested Lehrmann’s then-lawyer John Korn be contacted to have the brief returned, and that Higgins be informed of what had happened.
Drumgold had previously received a report by Moller that he said contained “gratuitous stereotyping of credibility” and showed a “strong bias”, as well as “pejorative comments” in relation to Higgins.
He said he was concerned the decision to provide the brief, and material which should not have been provided, may have been deliberate in the context of a “highly vulnerable” Higgins as an “attempt to derail the prosecution”.
Moller later advised Drumgold via email that Korn had not read any of the material.
Walter Sofronoff KC, who is presiding over the inquiry, said an IT analysis later confirmed that a USB device provided to Korn which contained the material had not been accessed.
Drumgold was questioned by Sofronoff and counsel assisting Erin Longbottom KC about why the counselling notes were obtained by police at all, and why he felt he had to read them.
Drumgold said he was attempting to understand the extent of the breach, as he feared “this event would be the straw that broke the camel’s back and [Higgins] would not be able to engage in the criminal justice process”, particularly as she had already “raised concerns that information was being deliberately disseminated by police”.
When pressed as to why he felt this meant he could seemingly breach his statutory obligations as a prosecutor by reading the counselling material, Drumgold said: “Would someone different to me have made different decisions at that time? I’m hearing yes.”
Drumgold had been questioned earlier on Tuesday about his decision not to disclose certain documents produced by police investigating Higgins’s complaint to Lehrmann’s lawyers.
One of those documents was prepared by Moller in June 2021.
Drumgold said he felt it was not relevant to disclose it, but also felt it would be potentially seriously harmful to the case and “crushing” to Higgins.
But Drumgold conceded he “clearly” made an error in deciding that another document provided by the Australian federal police should not be disclosed to Lehrmann’s team.
That document was a review of the investigation completed after the Moller report.
Lehrmann has consistently denied allegations that he raped Higgins – a colleague and fellow political staffer – in the office of then defence industry minister Linda Reynolds in March 2019.
He pleaded not guilty to one charge of sexual intercourse without consent, denying that any sexual activity had occurred.
A first trial was abandoned after a juror brought in outside research papers on sexual assault and in December 2022 Drumgold announced that a planned retrial would not go ahead because of fears about Higgins’s health.
The hearing continues.
