The chief prosecutor involved in the Bruce Lehrmann trial became emotional on Wednesday as he told the inquiry he regretted making a public statement regarding the discontinuation of the high-profile rape prosecution.
In the media announcement last December, ACT Director of Public Prosecutions Shane Drumgold SC drew heavily on medical information he’d received about Brittany Higgins to explain why the “ongoing trauma” carried by a retrial was not in the public interest, notwithstanding his belief a reasonable prospect of conviction still held.
He also said in the statement that Higgins had confronted a “level of personal attack” he’d not borne witness to in his career and that she’d done so with “bravery, grace and dignity”.
Describing those words as “burnt into [his] memory”, Drumgold told the inquiry his decision to front the media was made in the hope they would “at least back off” on Higgins, who at that point was in hospital.
“It was naïve on my part [to think] it would have any benefit,” he said. “I foolishly thought they would give her a break.”
When asked whether he’d turned his mind to the possibility that his words might also encroach on Lehrmann’s presumption of innocence, he said “possibly not as much as I should have”.
The decision to drop the retrial was made one month after Drumgold sent ACT Chief Police Officer Neil Gaughan an explosive letter detailing concerns of unprecedented police interference in the prosecution and seeking Gaughan’s support for a public inquiry.
During the hearing on Wednesday, it emerged Drumgold had not canvassed Higgins’ opinion in seeking a public inquiry, though he nonetheless insisted it was the “last thing [he] wanted to do”.
“I had a reasonably placed suspicion that there was interference in our jurisdiction in a particular prosecution,” he said. “I mean, frankly, we seem to be talking as though I had an option.”
Earlier, counsel assisting Erin Longbottom KC put it to Drumgold that there were other channels through which he could have ventilated his concerns, including a complaint to professional standards.
Drumgold resisted this suggestion, pointing out there were “so many strange things that had occurred” during the course of both the investigation and prosecution and he wanted to ascertain “whether or not they were connected”.
Among the “strange things” Drumgold said he noticed was the passion with which police had held to the view that the matter should not proceed, the seniority of the police involved, the early and unusual disclosure of the brief of evidence to defence counsel (which contained protected counselling notes of Higgins) and the odd conduct of certain witnesses, such as Liberal Senator Linda Reynolds, during the trial.
When pressed on whether he thought there was a political conspiracy involved, he said: “I thought there were enough incidences to make it possible, if not probable.”
The inquiry’s chair Walter Sofronoff put it to Drumgold that one explanation for the issues he’d identified was that though the trial was ordinary in a forensic sense, it had been rendered extraordinary by its backdrop, which comprised Parliament House, federal politics and the nascent #MeToo movement.
Expanding on this, Sofronoff said there was little doubt the issues were related in some way, but the question was whether “they’re related in some kind of malignant manner”.
Sofronoff, a former Queensland Supreme Court judge, also put it to Drumgold that it could be that the investigating police simply held backward and stereotypical attitudes towards complainants of sexual assault, which would be “an obvious explanation for their antipathy”.
“You’re an educated barrister and a highly experienced trial lawyer and you know the reality of forensic practice and the significance [or] lack of significance of the points made by police, but they don’t know because they’re not educated in law,” he said.
“So wouldn’t you just think: ‘they’re pressing this point to me, but that’s only because they don’t really know what they’re talking about’, rather than ‘there’s a political conspiracy to stop the case’?”
“Potentially,” Drumgold replied. “As I keep saying, all of the compounding matters increased my concern.”
Questions of professional and ethical judgment once again loomed large over the inquiry, with Drumgold questioned over whether his letter to Gaughan calling for a public inquiry lacked objectivity.
In the letter, Drumgold had accused Reynolds of tailoring her evidence and attempting to coach defence counsel’s cross-examination of Higgins in the trial.
Reynolds, who was Higgins’ former employer, had been called as a prosecution witness but was ultimately declared an unfavourable witness at trial, meaning her evidence could be tested by Drumgold under cross-examination.
At the time, she denied Drumgold’s assertions, which included the accusation her partner was observing the trial from the back of the courtroom and conversing with the defence with an “improper purpose” — namely, to help her tailor her evidence.
On Wednesday, Drumgold rejected the suggestion this line of questioning was without a sound basis, pointing out his suspicions were predicated on “strong circumstantial inference”.
When asked whether it was prudent to put his concerns about Reynolds in a letter stamped with the imprimatur of his office as director of public prosecutions, in light of the “exceptionally serious” nature of the allegations, he said: “I didn’t think I had a choice but to raise these concerns.”
The letter, which was sent when a retrial seemed likely, concluded with a request that Gaughan direct all police witnesses to stop engaging in the matter “beyond being called as a prosecution witness”, including “no further contact” with the defence.
During the hearing, Drumgold was asked whether those requests ran contrary to the ethical prohibition on prosecutors to prevent defence counsel from communicating with prosecution witnesses.
In answer, Drumgold said he was trying to minimise the prospect of political interference infecting the second trial.
“I’m looking at an enthusiastic engagement by a senator [Reynolds] and I’m looking at unprecedented pressure being placed on me and unprecedented actions, being a number of police [believed] this matter shouldn’t proceed, and a number of other factors.” he said.
“We were quite confident that the police had lost objectivity in the matter — I’d had a year and a half starting at the outset of police passionately telling me to agree with them.”
Drumgold’s request broadly echoed a warning ACT Policing Deputy Commissioner Joanne Cameron had given police witnesses during the trial, telling them to avoid conferring with defence counsel prior to giving evidence.
Asked whether he saw any ethical problem with that direction, Drumgold reiterated his concerns that police were trying to derail the prosecution.
Sofronoff, however, put it to Drumgold that even if his concerns were valid, and police had expressed views that were “wrongheaded, unjustified”, it would have no bearing on the trial if those same views were relayed to defence, given defence counsel was still bound to the laws of evidence and ethics: “[Those] views are inadmissible … So how could this upset the trial?”
“All I can answer is what was concerning me at the time, that there’d been so much unusual stuff in this trial,” Drumgold answered.
The inquiry also heard Lehrmann’s defence barrister Steven Whybrow SC had put it to Drumgold that his objectivity in the matter may have been lost.
Whybrow’s concerns were raised in the context of discussions around the implications of a hung jury and the prospects of a retrial.
On several occasions during the hearing, Drumgold told the inquiry he didn’t believe his concerns about potential interference had ever impacted his objectivity.
Lehrmann, for his part, has always maintained his innocence.
The hearing continues.
