When the board of inquiry into the aborted prosecution of former federal Liberal ministerial adviser Bruce Lehrmann convened this week, the ACT’s police chief was sitting in the public gallery.
Counsel for the Australian Federal Police (AFP) Katherine Richardson, SC, drew attention to his presence to demonstrate exactly how engaged the police are with the inquiry into their own and others’ conduct in relation to Lehrmann’s trial late last year for the alleged 2019 rape of his then colleague Brittany Higgins. Lehrmann denies the rape claim.
“I note that chief police officer Mr Neil Gaughan is present at the hearing today as a sign of the very great seriousness with which the AFP and ACT Policing take the work of this inquiry,” Richardson told the inquiry’s chairperson, retired Queensland Court of Appeal judge Walter Sofronoff, KC, on Monday. Sofronoff would, she said, be “aware of the very great and ongoing assistance that the AFP has provided”.
The comments belied the strained relations between police and the inquiry, which developed almost immediately after it was established earlier this year. The tensions arose from a jurisdictional conflict between ACT and federal law, which meant that despite assurances of co-operation, key documents were delayed or withheld.
The public inquiry is a potentially uncomfortable exercise for those whose roles within the justice system have significant aspects normally hidden from public view. For this kind of inquiry to examine the inner workings of a criminal prosecution is highly unusual.
It is set to train a spotlight on relations between police and prosecutors, the handling of alleged sex offences, the role of official victim support and the controversial intersection between law enforcement and politics.
It will look inside the legal system and put interrogators on the stand. People who normally ask the questions will have to answer for their conduct and face judgement on whether or not it was proper.
The jurisdictional challenge arises from the way policing is delivered in the nation’s capital territory.
The ACT government effectively buys policing services from the AFP via ACT Policing, which operates as a business unit within the federal agency.
Federal agencies are exempt from the powers to compel evidence in the ACT Inquiries Act, under which this board of inquiry has been established.
This means the territory’s equivalent of a royal commission cannot compel ACT police to comply with subpoenas demanding documents, statements and testimony.
ACT Policing asserted this position strenuously in a letter to the inquiry from its legal representatives at the office of the Australian Government Solicitor (AGS), dated February 10, four days after the first of two subpoenas was issued. The letter was among a raft of correspondence tendered in evidence, along with the subpoenas, at last month’s preliminary hearing.
In it, ACT Policing said federal legislation prevents it from providing some documents, including Brittany Higgins’s confidential counselling notes – notes the police wrongly gave to Lehrmann’s legal team without authorisation, ahead of his trial.
One of the inquiry’s lines of investigation is how police came to transfer those private notes to lawyers for the man Higgins had accused of rape, something acknowledged later as inappropriate. Another is why police conducted two evidence-in-chief interviews with her, not just one as usual.
Other documents were also held back, at least initially.
“A small amount of the information gathered during the investigation was obtained under legislation authorising the collection and use of information via warrants and other means, and which limit the further use and disclosure of that information to limited prescribed circumstances,” the AGS told the inquiry in a March 27 letter.
The letter listed surveillance and tax legislation, the Crimes Act and two health laws – the National Health Act and the National Health Insurance Act. It also said section 60A of the Australian Federal Police Act precluded it from handing over Higgins’s counselling notes and the contents of her iCloud account.
“The AFP also considers that certain information provided to it by consent from Ms Higgins for the limited purpose of use in the investigation cannot be provided to the Board voluntarily under s 60A(2)(f),” the letter said. “This includes Ms Higgins’ iCloud records and Ms Higgins’ counselling records which have been redacted as personal information.”
It is not clear whether this impasse has since been resolved. The Saturday Paper asked the inquiry to clarify, but was told the board of inquiry “will not comment on the documents that it has received”.
ACT Policing also declined to say whether the documents had since been provided. “The AFP is working diligently to ensure it provides material requested by the board of inquiry to the full extent permissible by law and in a timely manner,” a spokesperson said.
The inquiry will examine the roles of the police who investigated Higgins’s rape allegation and prepared the brief of evidence, along with the actions undertaken by the Director of Public Prosecutions, Shane Drumgold, and his office in mounting and ending the prosecution, and the Victims of Crime Commissioner, Heidi Yates, who accompanied Higgins to court. Allegations that police engaged too closely with the defence during the criminal trial in October last year will likely also see Lehrmann’s barrister, Steven Whybrow, SC, called.
Counsel assisting the inquiry, Erin Longbottom, KC, indicated on Monday that issues had been raised about how the DPP responded to the defence being given those notes, and his decision not to disclose additional evidence provided by the chief of staff for whom Higgins and Lehrmann were working when the alleged offence occurred, after she had given evidence at the trial.
Chairperson Walter Sofronoff indicated this week that he will need to examine two key issues. In deciding if decisions to prosecute and discontinue were properly made, he would need to establish the principles underpinning such decisions. There is no standard legislated test for this across Australia and little case law because such decisions are not subject to judicial review.
He would also need to examine the implications of having a commissioner whose legislated job is to assist victims, with a “victim” defined as “a person who suffers harm because of an offence”. Sofronoff noted that the commissioner may have to determine who was a victim before an offence was proved, and this could see the role that was adjacent to the justice system clash with it.
Bruce Lehrmann faced trial in the ACT Supreme Court in October last year, charged with having sex with Brittany Higgins without her consent in the Parliament House ministerial office in which they both worked, after a night out drinking with colleagues in March 2019.
Three weeks of evidence and several days of jury deliberations ended in the trial being aborted due to juror misconduct. Initially rescheduled for February this year, it was abandoned in December when ACT DPP Drumgold discontinued prosecution out of concern for Higgins’s mental health. Lehrmann had pleaded not guilty and maintains his innocence. No findings have been made against him and subsequently he has sought to launch civil defamation proceedings in the Federal Court against three media organisations. Justice Michael Lee will determine on April 28 whether the first of these, against the Ten Network, News Corporation and journalists Lisa Wilkinson and Samantha Maiden, can proceed. A defamation application against the Australian Broadcasting Corporation has also been lodged.
Separate from this, the ACT government established the public inquiry in February following a blistering letter Drumgold wrote to police chief Neil Gaughan in November, accusing police of acting inappropriately and of seeking to undermine what had become a highly politically charged case.
This week, the second directions hearing of Sofronoff’s inquiry heard that Drumgold’s letter had urged Gaughan to order police to remove themselves from the case, other than being called as prosecution witnesses at trial. It sought Gaughan’s support for a public inquiry, once the trial was over.
Gaughan had agreed but asked that any inquiry also consider the actions of the prosecution and defence, issues leading to trial delays and the eventual mistrial, and the DPP’s decision to discontinue.
The criminal trial was delayed for several months after journalist Lisa Wilkinson made a speech at the Logie Awards ceremony that referred to Higgins’s allegations. Wilkinson is legally represented at the public inquiry.
Some other media reporting is also in focus. A series of reports in The Australian quoted from what appeared to be leaked police notes accusing Drumgold of pursuing a prosecution that had little chance of success. One of The Australian’s reports detailing an email from Gaughan to staff, and raising questions about the DPP’s release of his November 1 letter under freedom of information law, has been tendered as an exhibit. The inquiry will examine how information was transmitted throughout the case, to and from whom, and why.
Counsel assisting, Erin Longbottom, also stressed on Monday that the inquiry would not be examining Higgins’s allegations against Lehrmann but matters associated with the investigation and prosecution. She told the inquiry that Drumgold’s November letter contended that, before the case proceeded to trial, police had “cherrypicked” evidence to suggest it was weak, provided “blatant misrepresentations” and made “an overt attempt to apply pressure”. He had also alleged that “a number of disturbing events occurred” during the trial itself, including police having constant direct contact with the defence, rather than the prosecution.
Longbottom emphasised the importance of public confidence in the criminal justice system and in police and prosecutors performing their duties properly and impartially and upholding the right to a fair trial.
“A collaborative working relationship between those charged with a duty to investigate crime and those charged with a duty to prosecute crime is essential to any well-functioning criminal justice system,” she said.
In her opening remarks on Monday, Longbottom described circumstances she said had affected the investigation of Higgins’s allegations and decision to prosecute. She recalled the intense media and public interest, partly because the allegations centred on Parliament House.
“But those events were also taking place at the time of intense public discussion about sexual violence against women in light of the Me Too movement and, specifically in the ACT, media reports of low rates of sexual assault trials and convictions despite increases in reports to victim services and police,” she said.
That context “seemingly affected” the actions of police, the DPP and the Victims of Crime Commissioner, she said. It also “brought into question” the threshold for laying the sexual assault charge and continuing the prosecution and the significance of the complainant’s credit.
“You will hear evidence that, from the outset, engagement between the DPP and ACT Policing in this matter was beset by tension,” Longbottom told Sofronoff.
Before its initial directions hearing on March 30, the inquiry had already generated tension of its own, over whether or not police would provide all evidence being sought.
Despite insisting it was not obliged to comply, ACT Policing vowed in correspondence to co-operate because such co-operation fell “properly within its functions” under the AFP Act. But it also emphasised it was doing so “voluntarily” and would be “as forthcoming as the law allows”.
The letter did not please Sofronoff, who disagreed initially that ACT Policing could not be compelled. At the first directions hearing, he changed his view and acknowledged the jurisdictional problem. But Sofronoff rejected the AFP’s insistence that ACT Policing would co-operate “voluntarily”, pointing to its own concession about its proper functions.
“The AFP regards itself as under a statutory obligation, imposed by its own statute, to do that which is conducive, and that is to provide me with the information that I ask for,” he said.
As of Monday, the inquiry had received 143,000 documents. At the March 30 hearing, some information had still not been forthcoming, including the original brief of evidence police provided to DPP Drumgold. Sofronoff challenged the police’s insistence that it should vet the huge volume of material, particularly unedited CCTV footage, to avoid the inquiry being swamped.
He noted his terms of reference required him to investigate whether any police had failed in their duties, including in considering whether or not Lehrmann should be charged, and the same in relation to the DPP.
“So it would be a little hard for me to look into that if I don’t have the police brief and the brief that Mr Drumgold received from police,” he said.
Sofronoff expressed frustration at the lack of clarity around which documents police said could not be provided under various federal laws.
“While sitting here at the moment, I have no idea why something would be prohibited and whether it’s rightly prohibited – about which I can’t make a judgement – and whether it’s worth the trouble to take it any further, because I don’t know what the document is,” he said on March 30.
Winding up Monday’s subsequent 45-minute hearing, Sofronoff thanked all parties for their assistance. He also alluded to the tensions.
“I’m very, very grateful,” Sofronoff said of the co-operation. “And even if we send correspondence that might sound testy – a little testy – well, we get testy correspondence from you, too.”
Sofronoff will begin hearing public evidence on May 1.
This article was first published in the print edition of The Saturday Paper on April 22, 2023 as "Tensions with police emerge in Lehrmann inquiry".
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