News

The detective superintendent in charge of the investigation into Brittany Higgins’s rape allegations said that pressure to make progress had led to errors in police handling. By Marilyn McMahon.

Top cop fronts Lehrmann inquiry

A police officer in uniform outside a courthouse.
Detective Superintendent Scott Moller arrives at the inquiry on Monday.
Credit: AAP Image / Mick Tsikas

Detective Superintendent Scott Moller was the superintendent in charge of criminal investigations at the time Brittany Higgins initially contacted ACT police and during the subsequent trial of Bruce Lehrmann. On Monday, he became the first officer to appear at the inquiry into the handling of the case.

He was led through his evidence by counsel assisting the inquiry Joshua Jones, and cross-examined by Mark Tedeschi, KC, the lawyer acting for Director of Public Prosecutions Shane Drumgold, SC. Dr Peggy Dwyer, the lawyer acting for the ACT Victims of Crime Commissioner, Heidi Yates, also cross-examined Moller.

Jones led Moller through a preliminary outline of the ACT Policing organisational structure and general decision-making in criminal investigations, before focusing on sexual offences. In response to questioning from Jones, Moller described the victim-centric approach that he said was adopted by ACT Policing for sexual offence complaints. Victims, he said, “dictate … the direction of the investigation, the time … where we are going with it, whether it’s going to continue or not or whether it’s going to stop”.

He told the inquiry “it’s quite common that a complainant comes in, tells us their complaint but doesn’t want to go ahead … wants to have it recorded on the system but doesn’t want to go any further”.

In these circumstances, where a complainant does not want to proceed with an investigation and prosecution, Moller said police will still collect and store perishable evidence in case the complainant later changes their mind and wishes to proceed. This process was followed with Higgins when she initially contacted police in 2019.

However, Moller’s oral evidence and written statement revealed a tension between effective investigation and a victim-centric approach. “We are torn by trying to get the best possible evidence that we can,” Moller said, “and also we are trying to support the complainant through this process.”

This tension was central to the contentious issue of why police conducted a second evidence-in-chief interview with Higgins in May 2021. Moller stated that it was to explore inconsistencies and clarify issues but acknowledged that these interviews could be traumatic for complainants because “they have to relive ... the offending, which is terrible”.

When Jones asked whether Moller accepted that conducting a second interview with Higgins put her mental wellbeing at risk, Moller replied, “Yes. Potentially it could have.”

During cross-examination by Tedeschi the following day, Moller disagreed with the suggestion that the purpose and circumstances of the second interview could have been confronting for Higgins and were not victim-centric.

On Wednesday, evidence became personal when Moller disclosed that he was a victim-survivor of sexual assault, stating, “I lived with that for 45 years and that has driven my desire to work with police and victims.”

A strong theme in Moller’s evidence was the pressure that police were under in this case. In response to questioning by Jones, Moller denied that he or any other officer had been subject to political pressure but identified “external pressure from the media”, “Ms Higgins ... wanting this to proceed” and “internal pressure that … we needed to get this done”. He informed the inquiry, “A number of police that worked for me have been unable to return to work as a result of the stressors in this investigation.”

The pressure to make progress with the case, he said, had been a factor leading to variations to the usual processing of complaints, a fast-tracking that had led police to directly deliver the brief of evidence to Lehrmann’s lawyer instead of via the Office of the Director of Public Prosecutions. It had also caused police to omit a standard internal vetting process. This contributed to one of the most remarkable police actions: the unlawful disclosure of evidence to the defence.

This issue was explored with Moller by Jones, and then on Tuesday through cross-examination by Tedeschi. The focus was on how, contrary to the law that governs these matters in the ACT, police gave a brief of evidence to John Korn, Lehrmann’s original lawyer, that included audiovisual recordings of Higgins’s evidence and her counselling records.

Drumgold had given evidence at an earlier hearing that he had come to accept this was “probably just a mess up” by police, and Moller’s evidence was to the same effect. He told the inquiry the protected material had been mistakenly sent to Korn due to “an administration error”.

The deterioration in the relationship between ACT Policing and the DPP was a key focus of the hearings. This initially centred around different assessments of the strength of the evidence against Lehrmann. June 2021 was a critical period.

In his written statement, Moller described a meeting with Drumgold on June 1 where “it was clear to me that he had already decided on progressing the prosecution even though he had not reviewed the evidence … Mr Drumgold was committed to the trial no matter what the evidence was or how we presented it.”

When cross-examined by Tedeschi about this meeting, Moller described Drumgold as “dismissive” of the views of the investigative team. Police continued to believe that the threshold for charging had not been reached. Questioned by Jones about whether, prior to police briefing the DPP on June 21, 2021, Moller believed “that the evidence was insufficient to substantiate a charge against Mr Lehrmann”, Moller responded, “Yes, that’s right.”

He stated that other police investigators shared this view. Further questioning by Jones had Moller agree that by the end of the month, after receiving advice from the DPP that there were reasonable prospects of conviction, he had changed his mind and “decided to go ahead” with proceeding against Lehrmann. He then personally swore up the summons that went to Lehrmann because he didn’t want to make his officers “do something they didn’t want to do … they didn’t believe in”.

Tedeschi questioned Moller about another matter of dispute between the DPP and police: the existence of CCTV footage of Higgins and Lehrmann at a pedestrian gate outside Parliament House around the time of the alleged rape.

In his written statement, Moller described police making detailed attempts to find non-existent footage and how this had distracted them from their other investigative work on the case. Moller wrote that “undertones” of “corrupt or dishonest behaviour” in relation to the recording “caused a significant divide between the investigation team and the DPP”.

The lingering negative effect of this was evident in Moller’s response to Tedeschi’s questioning on the matter. He told the inquiry it was “another unfair accusation directed at police”.

Further evidence of the deterioration in the relationship between police and the DPP was evident when Tedeschi asked Moller whether he had advocated that ACT Policing obtain independent legal advice, separate from the advice provided by the DPP, in relation to the prosecution of Lehrmann. Moller acknowledged this and, when asked about his motivation, said: “I felt, in certainly the briefings I’d had, that Mr Drumgold had lost objectivity.”

Tedeschi later raised questions about whether Moller himself showed bias after the discontinuance of the trial in December 2022, when Moller “liked” a LinkedIn post that was positive towards Lehrmann. Although Moller rejected Tedeschi’s suggestion of bias, he admitted, “In hindsight, I probably shouldn’t have liked the comment.”

The trial was aborted after jury misconduct and then discontinued out of concern for Higgins’s mental health. Lehrmann maintains he is innocent.

One possible divergence between ACT Policing and the Office of the DPP that might have contributed to the deteriorating relationship but was relatively unexplored was whether police were more constrained in their progressing of sexual assault matters than the attitudes and practices that prevailed in the ODPP.

Tedeschi tried to explore this by questioning Moller about statistics that showed a relatively low rate of finalisation of sexual assault cases by ACT police, a phenomenon known as “undercharging”. The lawyer acting for the Australian Federal Police, Katherine Richardson, SC, objected to the relevance of this information on the grounds that Lehrmann had been charged. The line of questioning was ended after the chair identified difficulties with Tedeschi’s questioning and the research on which it was based.

A further matter that was considered at the inquiry was Moller’s relationship with the Victims of Crime Commissioner, Heidi Yates. Counsel assisting the inquiry described Yates as “providing a supportperson role and conduit and communication between Ms Higgins and the police”. However, Moller thought this arrangement made communication with Higgins “cumbersome”. In his written statement, Moller expressed frustration with the commissioner, whom he believed “was more interested in Ms Higgins pushing the ‘#metoo’ movement rather than being committed to the upcoming trial”.

Under cross-examination by Peggy Dwyer, the lawyer acting for Yates, Moller significantly modified these views. He acknowledged he now recognised that Yates “was assisting police”. He also agreed with Dwyer that his experience with the hierarchical, rank-based structure of police may have contributed to the way he criticised Yates for her “operational role” with Higgins. Moller accepted that Yates was concerned with broader matters relating to sexual assault than the legal proceedings.

The further controversial issue of whether it had been necessary for police to interview Yates and make her a witness was raised by Tedeschi, who noted this could limit Yates’s ability to act as a support person for Higgins in court. Moller rejected the suggestion that the interview had been conducted for an improper purpose.

Moller’s final evidence to the inquiry was given in response to a question from the chair. Walter Sofronoff, KC, asked Moller what he would say about a loss of objectivity by police in this matter. Moller responded that police “did not lose their objectivity”. He said that although police had deeply held views about what they believed was a lack of evidence to proceed against Lehrmann, they had “pushed forward against their own beliefs” and “were committed to the process”.

The inquiry continues.

This article was first published in the print edition of The Saturday Paper on May 27, 2023 as "Top cop fronts inquiry".

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