The chief prosecutor concerned within the Bruce Lehrmann trial grew to become emotional on Wednesday as he advised the inquiry he regretted making a public assertion relating to the discontinuation of the high-profile rape prosecution.
Within the media announcement final December, ACT Director of Public Prosecutions Shane Drumgold SC drew closely on medical data he’d obtained about Brittany Higgins to elucidate why the “ongoing trauma” carried by a retrial was not within the public curiosity, however his perception an inexpensive prospect of conviction nonetheless held.
He additionally stated within the assertion that Higgins had confronted a “degree of non-public assault” he’d not borne witness to in his profession and that she’d achieved so with “bravery, grace and dignity”.
Describing these phrases as “burnt into [his] reminiscence”, Drumgold advised the inquiry his resolution to entrance the media was made within the hope they’d “at the least again off” on Higgins, who at that time was in hospital.
“It was naïve on my half [to think] it could have any profit,” he stated. “I foolishly thought they’d give her a break.”
When requested whether or not he’d turned his thoughts to the likelihood that his phrases may additionally encroach on Lehrmann’s presumption of innocence, he stated “presumably not as a lot as I ought to have”.
The choice to drop the retrial was made one month after Drumgold despatched ACT Chief Police Officer Neil Gaughan an explosive letter detailing issues of unprecedented police interference within the prosecution and searching for Gaughan’s assist for a public inquiry.
Through the listening to on Wednesday, it emerged Drumgold had not canvassed Higgins’ opinion in searching for a public inquiry, although he nonetheless insisted it was the “final thing [he] needed to do”.
“I had a fairly positioned suspicion that there was interference in our jurisdiction in a selected prosecution,” he stated. “I imply, frankly, we appear to be speaking as if I had an choice.”
Earlier, counsel aiding Erin Longbottom KC put it to Drumgold that there have been different channels via which he might have ventilated his issues, together with a criticism to skilled requirements.
Drumgold resisted this suggestion, pointing on the market have been “so many unusual issues that had occurred” through the course of each the investigation and prosecution and he needed to establish “whether or not or not they have been linked”.
Among the many “unusual issues” Drumgold stated he seen was the eagerness with which police had held to the view that the matter mustn’t proceed, the seniority of the police concerned, the early and strange disclosure of the transient of proof to defence counsel (which contained protected counselling notes of Higgins) and the odd conduct of sure witnesses, reminiscent of Liberal Senator Linda Reynolds, through the trial.
When pressed on whether or not he thought there was a political conspiracy concerned, he stated: “I believed there have been sufficient incidences to make it attainable, if not possible.”
The inquiry’s chair Walter Sofronoff put it to Drumgold that one rationalization for the problems he’d recognized was that although the trial was odd in a forensic sense, it had been rendered extraordinary by its backdrop, which comprised Parliament Home, federal politics and the nascent #MeToo motion.
Increasing on this, Sofronoff stated there was little doubt the problems have been associated not directly, however the query was whether or not “they’re associated in some type of malignant method”.
Sofronoff, a former Queensland Supreme Court docket choose, additionally put it to Drumgold that it may very well be that the investigating police merely held backward and stereotypical attitudes in direction of complainants of sexual assault, which might be “an apparent rationalization for his or her antipathy”.
“You’re an informed barrister and a extremely skilled trial lawyer and the fact of forensic apply and the importance [or] lack of significance of the factors made by police, however they don’t know as a result of they’re not educated in regulation,” he stated.
“So wouldn’t you simply assume: ‘they’re urgent this level to me, however that’s solely as a result of they don’t actually know what they’re speaking about’, fairly than ‘there’s a political conspiracy to cease the case’?”
“Doubtlessly,” Drumgold replied. “As I hold saying, all the compounding issues elevated my concern.”
Questions {of professional} and moral judgment as soon as once more loomed massive over the inquiry, with Drumgold questioned over whether or not his letter to Gaughan calling for a public inquiry lacked objectivity.
Within the letter, Drumgold had accused Reynolds of tailoring her proof and making an attempt to teach defence counsel’s cross-examination of Higgins within the trial.
Reynolds, who was Higgins’ former employer, had been referred to as as a prosecution witness however was in the end declared an unfavourable witness at trial, that means her proof may very well be examined by Drumgold underneath cross-examination.
On the time, she denied Drumgold’s assertions, which included the accusation her accomplice was observing the trial from the again of the courtroom and conversing with the defence with an “improper function” — particularly, to assist her tailor her proof.
On Wednesday, Drumgold rejected the suggestion this line of questioning was and not using a sound foundation, mentioning his suspicions have been predicated on “robust circumstantial inference”.
When requested whether or not it was prudent to place his issues about Reynolds in a letter stamped with the imprimatur of his workplace as director of public prosecutions, in mild of the “exceptionally severe” nature of the allegations, he stated: “I didn’t assume I had a selection however to boost these issues.”
The letter, which was despatched when a retrial appeared seemingly, concluded with a request that Gaughan direct all police witnesses to cease participating within the matter “past being referred to as as a prosecution witness”, together with “no additional contact” with the defence.
Through the listening to, Drumgold was requested whether or not these requests ran opposite to the moral prohibition on prosecutors to stop defence counsel from speaking with prosecution witnesses.
In reply, Drumgold stated he was making an attempt to minimise the prospect of political interference infecting the second trial.
“I’m taking a look at an enthusiastic engagement by a senator [Reynolds] and I’m taking a look at unprecedented strain being positioned on me and unprecedented actions, being a lot of police [believed] this matter shouldn’t proceed, and a lot of different components.” he stated.
“We have been fairly assured that the police had misplaced objectivity within the matter — I’d had a yr and a half beginning on 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 through the trial, telling them to keep away from conferring with defence counsel previous to giving proof.
Requested whether or not he noticed any moral drawback with that course, Drumgold reiterated his issues that police have been making an attempt to derail the prosecution.
Sofronoff, nevertheless, put it to Drumgold that even when his issues have been legitimate, and police had expressed views that have been “wrongheaded, unjustified”, it could haven’t any bearing on the trial if those self same views have been relayed to defence, given defence counsel was nonetheless certain to the legal guidelines of proof and ethics: “[Those] views are inadmissible … So how might this upset the trial?”
“All I can reply is what was regarding me on the time, that there’d been a lot uncommon stuff on this trial,” Drumgold answered.
The inquiry additionally heard Lehrmann’s defence barrister Steven Whybrow SC had put it to Drumgold that his objectivity within the matter might have been misplaced.
Whybrow’s issues have been raised within the context of discussions across the implications of a hung jury and the prospects of a retrial.
On a number of events through the listening to, Drumgold advised the inquiry he didn’t consider his issues about potential interference had ever impacted his objectivity.
Lehrmann, for his half, has at all times maintained his innocence.
The listening to continues.
