The ACT government is considering an independent inquiry into the prosecution of former federal ministerial adviser Bruce Lehrmann for the alleged rape of colleague Brittany Higgins, amid serious concerns about the way the case was handled.
The now-discontinued matter could also be the subject of further legal proceedings, with lawyers for Lehrmann understood to be entertaining the possibility of a malicious prosecution action under civil law.
ACT Attorney-General Shane Rattenbury is known to be troubled by aspects of the handling of the high-profile case, which centred on the allegation that Lehrmann raped Higgins in the Parliament House ministerial office in which both worked, after a drunken night out with colleagues in March 2019. Lehrmann denies any sexual contact occurred. Rattenbury’s office declined to respond to questions this week.
But The Saturday Paper understands Rattenbury is giving serious consideration to an independent inquiry into the handling of the case and is examining possible mechanisms for establishing one.
The moves come after ACT Director of Public Prosecutions Shane Drumgold, SC, privately called for an inquiry, alleging police investigators were biased in favour of the defence. In an extraordinary letter from Drumgold to ACT Chief Police Officer Neil Gaughan, dated November 1 and obtained by Guardian Australia on Thursday under freedom of information laws, Drumgold accuses police of engaging in “a very clear campaign” to pressure him not to prosecute Lehrmann and cherrypicking evidence to suggest weaknesses in the case.
Drumgold alleged investigators engaged in “inappropriate interference”. He said an inquiry was needed into “both political and police conduct”. He also said investigators had bullied Brittany Higgins, prompting changes that required them to contact her through an intermediary.
The letter reveals a deep rift between police and the prosecution in the lead-up to, and during, the court proceedings. Before the letter was made public, at least one Canberra lawyer had begun a public campaign to have Drumgold sacked over his handling of the case.
Both sides in the cancelled case harbour strong objections to the way matters have unfolded since the 2019 rape allegation was made public last year, ranging from the manner in which police dealt with the complainant and her evidence, to how and why the prosecution was run. Across the wider legal community, concerns are also being expressed that the case fell short of expected standards. Some question whether it should have proceeded at all.
The revelation of a possible independent inquiry comes as both ACT Policing and the Australian Federal Police refuse to reveal the status of a complaint Higgins made to ACT Policing eight months ago, after they wrongly provided notes from her personal counselling sessions to Lehrmann’s then lawyer.
Higgins lodged the complaint in late April when it was revealed that a brief of evidence ACT Policing had provided to the defence contained private, non-disclosable material. The brief, sent to lawyer Warwick Korn last year, included two years of Higgins’s confidential counselling notes and the video recordings of her two evidence-in-chief interviews, neither of which were supposed to be provided. Korn insisted at the time that he did not access the brief before it was replaced with the correct version.
A furious Drumgold informed Higgins about the issue in April. He had discovered that not only had exempt material been provided but it had been sent directly to Lehrmann’s lawyer, rather than through the office of the DPP, as required.
The ABC reported the mistake on April 27, along with details of Higgins’s complaint about it, lodged a week earlier under the Evidence (Miscellaneous Provisions) Act 1991. The legislation states that sexual assault counselling notes are protected and require a special application to be disclosed. Drumgold is understood to also have made a complaint.
At the time, police refused to comment, citing the continuing legal proceedings in the rape case. Following Drumgold’s announcement on Friday last week that the case had been discontinued, The Saturday Paper sought an update on the internal police investigation into the complaint. ACT Policing did not respond, instead forwarding the inquiry to the Australian Federal Police, who declined to disclose what, if anything, had resulted from police investigating themselves for the past eight months. The Saturday Paper understands that at time of press, Higgins had received no resolution to her complaint.
Drumgold’s office also declined to comment. Notes that Drumgold made of his email exchanges with ACT Policing’s manager of criminal investigations, Detective Superintendent Scott Moller, at the time indicate he only discovered that police had provided the evidence brief to Korn when the case came up for mention in court on September 16, 2021.
The notes, seen by The Saturday Paper, reveal that Drumgold wrote to Moller the next day reminding him that the brief for the defence was supposed to be provided via his office and seeking assurance that it had not contained the sensitive material.
According to Drumgold’s notes, Moller did not respond for five days. When he did, he confirmed the material had been included. Drumgold wrote back immediately expressing “deep concerns”, demanding police take urgent action to retrieve and destroy the brief and that they obtain statements from those involved in its distribution on how and why it occurred.
The exchange of emails between Drumgold and Moller continued throughout October and November and into the new year, with Moller revealing he had been responsible for providing the brief at the instruction of his boss, Deputy Chief Police Officer Michael Chew. Reasons given included that the DPP had assessed the brief, the investigation had been independently reviewed, there was a desire to move quickly and that the Covid-19 pandemic required efficiency.
Lehrmann’s trial had originally been scheduled for June this year, but was delayed because of potentially prejudicial comments made by journalist Lisa Wilkinson in an acceptance speech at the Logie Awards.
When the trial began in the ACT Supreme Court in October, Lehrmann pleaded not guilty to one count of sexual intercourse without consent. After three weeks of evidence and before the jury had reached a verdict, Chief Justice Lucy McCallum declared a mistrial due to juror misconduct. Research material was found in the jury room that had not been presented in court. A retrial was set down for February 2023. But on December 2, Shane Drumgold discontinued those proceedings, citing concern for Higgins’s mental health.
“Whilst the pursuit of justice is essential for both my office and for the community in general, the safety of a complainant in a sexual assault matter must be paramount,” Drumgold said at a news conference, at which he read a prepared statement but declined to take questions.
“In light of the compelling independent medical opinion and balancing all factors, I have made the difficult decision that it is no longer a public interest to pursue a prosecution at the risk of the complainant’s life. This has left me no option but to file a notice declining to proceed with the retrial of this matter, which I’ve done this morning. This brings the prosecution to an end.”
In the week since Drumgold announced he was withdrawing the charge, a flurry of leaks and reports of legal threats have filled the national media. Following the collapse of the criminal proceedings, both Lehrmann and Higgins are pursuing civil legal action.
Higgins is preparing to lodge a workplace compensation claim for up to $3 million against the Commonwealth, representing her former employers, the then ministers Linda Reynolds and Michaelia Cash. She alleges that while working for Reynolds, in whose office the incident allegedly occurred, and Cash, for whom she worked subsequently, she was subjected to sexual harassment and discrimination, disability discrimination and victimisation. She is also alleging negligence. Foreshadowed, but not lodged formally at time of press, Higgins’s claim is expected to seek damages for past and future economic loss and to cover past and future out-of-pocket expenses linked to the alleged impact on her employment. It is not clear whether the Commonwealth will seek to defend the claim, once it is lodged, or move directly to a mediated settlement.
Lehrmann has engaged top defamation lawyer Mark O’Brien to review the media reporting and other public commentary of the past two years with a view to bringing defamation proceedings against a range of organisations and individuals. Wilkinson is understood to be among those whose public comments are being examined, along with Higgins herself over remarks she made outside court on the day the mistrial was declared.
In a statement published on Twitter on Wednesday, Higgins said: “Following recent developments, I feel the need to make it clear if required I am willing to defend the truth as a witness in any potential civil cases brought about by Mr Lehrmann.”
Less clear is whether Lehrmann will pursue action for malicious prosecution, a civil proceeding that is extremely rare. Malicious prosecution requires a plaintiff to prove there was malice in the manner of a prosecution, not merely poor process, incompetence or unfairness – something that is notoriously difficult to sustain.
But the possibility the defence might consider mounting such a case emerged last weekend, after The Australian reported the leaked contents of what it said were diary notes from Superintendent Moller. The newspaper said Moller and his boss, Michael Chew, had opposed charging Lehrmann, believing there was insufficient evidence to achieve a conviction. The newspaper quoted the diary notes, which it said were from June 17 last year, as suggesting Chew had expressed serious reservations about proceeding to prosecution.
“If it was my choice I wouldn’t proceed,” the notes reportedly quoted Chew as saying. “But it’s not my choice. There is too much political interference.” It appears the notes did not elaborate on what was meant by “political interference”. Moller’s notes reported himself as replying: “That’s disappointing given I think there is insufficient evidence.”
The newspaper reported that on June 18, the day after the comments were made, Moller forwarded a copy of the interim brief of evidence to another senior officer, Commander Andrew Smith, for review. Smith was not part of the investigating team. The Australian reported that the result of that review was not known.
But separate notes Shane Drumgold made of his exchanges with Moller, in which Moller said the brief had been independently reviewed, would seem to suggest the review did not elicit serious reservations about proceeding.
The newspaper said Chew’s observations were made after a meeting with Drumgold, who had indicated he planned to prosecute. Drumgold said last week that he made his decision after reviewing the evidence on June 21, 2021.
The newspaper also cited details of a separate executive briefing on June 9, 2021, in which police investigators had reportedly expressed “serious concerns in relation to the strength and reliability” of Higgins’s evidence but “more importantly her mental health and how any future prosecution may affect her wellbeing”.
This week, The Saturday Paper asked Lehrmann’s barrister, Steven Whybrow, whether his client was considering a malicious-prosecution case against the DPP. He replied that he had “no comment”.
In bringing such a case, Lehrmann would need to argue that the DPP was acting outside the two tests that form the basis for a decision to prosecute.
In bringing a criminal charge, a prosecutor must determine both that there is a reasonable prospect of securing a conviction and that prosecution is in the public interest. Drumgold said last week this was the conclusion he came to last year.
On December 2 this year, he said his view had changed after receiving two medical opinions suggesting that pursuing a retrial would pose a genuine threat to Brittany Higgins’s life. Higgins is in hospital receiving mental health treatment. She has been hospitalised several times in the two years since she made her allegation against Lehrmann public.
Three weeks ago, it emerged that the ACT government was seeking to urgently amend the law to allow video recordings of rape complainants’ evidence to be used during a retrial if their evidence in the original trial had been given in person, in court. The DPP had alerted the government to the fact that, as it stood, ACT law prevented such video testimony being used in a retrial. Drumgold argued that this situation inflicted an “unintended penalty for witnesses, particularly sexual assault complainants who choose to give evidence in the courtroom”.
But the ACT Legislative Assembly is not due to begin its 2023 sittings until February 7 and the proposed legal amendment would likely be sent to a committee for examination before it could go to a parliamentary vote. The Lehrmann retrial was due to begin on February 20.
In discontinuing the case last week, Drumgold was effectively conceding the change could not be made in time to protect Higgins from what he had been advised was the serious risk of harm.
“I have recently received compelling evidence from two independent medical experts that the ongoing trauma associated with this prosecution presents a significant and unacceptable risk to the life of the complainant,” Drumgold said.
“The evidence makes it clear that this is not limited to the harm of giving evidence in a witness box, rather applies whether or not the complainant is required to enter a witness box during a retrial.”
Drumgold went on to praise Higgins for the way she had conducted herself. Lehrmann’s lawyers are now considering whether those comments also warrant a defamation suit.
This article was first published in the print edition of The Saturday Paper on December 10, 2022 as "Exclusive: Inquiry likely into Lehrmann prosecution".
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