The inquiry into Bruce Lehrmann’s prosecution over the alleged rape of Brittany Higgins has raised additional questions concerning the conduct of ACT Director of Public Prosecutions Shane Drumgold, who on Tuesday was accused of displaying a “cavalier perspective” in the direction of his moral and authorized obligations as a prosecutor.
The cost, levelled by counsel aiding, Erin Longbottom KC, arose within the context of revelations relating to actions Drumgold took to “treatment” the extremely uncommon transfer by police to offer Lehrmann’s legal professionals with the temporary of proof days after he was charged in August 2021.
Often, briefs of proof are supplied solely to defence by the prosecution, which vets the fabric in accordance with its disclosure obligations.
Drumgold informed the inquiry that shortly after studying of the disclosure, he was knowledgeable the temporary — not in contrast to the model ready for his workplace — had unlawfully included a collection of protected paperwork together with, most notably, Higgins’ counselling notes.
In keeping with Drumgold, the police requested Higgins to “signal a doc” to permit them to acquire the fabric, though the request ran opposite to the Victims of Crime Act.
“That is deeply regarding,” Drumgold mentioned in an e mail to Detective Superintendent Scott Moller on the time. “Are you able to please advise as a matter of urgency what’s being performed to right the scenario?”
Correspondence from Moller to Drumgold some days later revealed that Lehrmann’s barrister, Warwick Korn, had not accessed the protected materials and had undertaken to destroy it. Beneath questioning, Drumgold mentioned the identical assurance was relayed by Korn to him in a cellphone name across the similar time.
However this, and regardless of being on discover Higgins’ counselling notes had been a protected confidence, Drumgold conceded he had learn the doc, although solely after first denying the chance.
“Didn’t it happen to you that this could be a breach of statute?” requested the inquiry’s head Walter Sofronoff KC. “Why the double commonplace? Did it ever happen to you that the paperwork had been wrongly disclosed to your workplace as nicely?”
In response, Drumgold mentioned his “main concern” was that the paperwork “had been within the palms of defence” and he was targeted on the extent of “harm” which could circulation from that.
When pressed on why it was essential to learn the doc to make that judgment, Drumgold segued to the “chance” the police had been making an attempt to undermine the trial and issues about (undefined) “inconsistencies”.
This prompted Sofronoff, a former Queensland Supreme Court docket choose, to interject, telling Drumgold that the related hurt to Higgins revolved solely across the threat the counselling notes could be learn: “I wish to put it to you that no one in your workplace needed to learn the paperwork. What do you say to that?”
He ultimately rebuked Drumgold, saying: “Please don’t evade my query.”
It was later identified to the chief prosecutor that by studying Higgins’ counselling notes he’d probably uncovered himself to proof that might negatively bear upon her credibility, with the consequence he could have jeopardised his obligation to make sure a good trial. This was as a result of Drumgold may need gleaned data from the counselling notes that was at odds along with her testimony however which nonetheless couldn’t be supplied to the defence as a result of statutory prohibition in place.
Citing issues Lehrmann’s defence barrister Steven Whybrow SC had raised to this impact, Drumgold was requested whether or not he ought to have recused himself as prosecutor from the trial. He mentioned he thought the tenor of the inquiry’s dialogue was “overstating” the importance of his actions.
“I perused the counselling notes to find out the urgency of which they needed to be returned,” he mentioned. “I noticed nothing within the communication that gave rise to a battle [of duty].”
Drumgold did, nonetheless, admit he “presumably” shouldn’t have learn the counselling notes and that in doing so he’d “probably” breached the Victims of Crimes Act — however he certified this with the commentary that it was simple to see this stuff inside the confines of the “sterile surroundings of an inquiry”.
Deceptive the courtroom
Earlier within the day, the inquiry heard that Drumgold had misled the Supreme Court docket for a second time by falsely suggesting or implying a police doc essential of Higgins’ credibility was privileged in an effort to suppress its launch to the defence.
He’d performed so by counting on an affidavit of a junior lawyer in his crew, Mitchell Greig, which implied ACT Policing had claimed authorized skilled privilege over the eponymously named “Moller report”. Nonetheless no such privilege had been claimed by police, and the one particular person urgent for non-disclosure was Drumgold.
Within the witness field, Drumgold instructed that the inquiry was liable to “overstating” his involvement within the preparation of Greig’s affidavit, which prompted Longbottom to point out Drumgold an e mail despatched by him to Greig instructing him on the phrases, verbatim, Greig ought to embody in his affidavit.
“You will need to settle for [that your submissions to the court have] the capability to mislead,” Longbottom mentioned, to which Drumgold replied: “Properly, I don’t know, unintentionally [misleading].”
Sofronoff then mentioned: “As a substitute of being candid along with her honour, you learn this affidavit [which falsely gave the impression] there’s data from police that justifies a declare for privilege. I’m placing it to you that it was flawed to make use of this affidavit.”
Because it occurs, the Moller report was later disclosed to the defence by AFP Authorized, which had knowledgeable Drumgold that there existed no foundation upon which it might declare privilege.
When pressed on his opposition to disclosing the report back to the defence, Drumgold mentioned he didn’t consider the doc was related to the trial and that it plainly exhibited “a robust bias in the direction of the defence”.
“Basically, it says a senior police officer, by a stereotype bias evaluation, has specific conclusions a couple of complainant. For my part, it was not even admissible [evidence],” he mentioned. This was challenged by Sofronoff, who identified the doc “doesn’t need to be admissible to be disclosable”.
“You retain saying, ‘Properly, it’s not admissible.’ Do you solely disclose admissible proof?” he mentioned.
Allegation of police corruption
Drumgold later informed the inquiry he had been alarmed on the extent to which the police, by paperwork such because the Moller report, had tried to sway his resolution to prosecute Lehrmann.
Describing these paperwork as a collection of unreliable “gotcha moments” which may not even be admissible, he mentioned he was “very bowled over” by the “passionately held” place of ACT Policing.
“The primary assembly was very uncommon,” he mentioned. “I perceived it as ‘We’ve obtained this historical past — right here’s a few gotcha factors [and] in fact you’ll agree.’ It’s not the assembly that I assumed I used to be going into.”
The written submissions Drumgold tendered to the inquiry broaden on these claims, and embody accusations police had engaged in “unsophisticated corruption” in an try to derail the prosecution.
Lehrmann, who attended the primary day of public hearings on Monday, has at all times maintained his innocence.
The inquiry continues.
