The failure to disclose material to the defence, the potential for bias in the enforcement process and the pressure to prosecute allegations of sexual offences despite the tenuous nature of the evidence are issues at the forefront of the Inquiry into the failed prosecution of Bruce Lehrmann.
About the Inquiry
Unless you've avoided mainstream and social media since the start of 2021, then you'll know the history.
But for the sake of completeness, here's the brief timeline of events: in February 2021, Brittany Higgins made public allegations that she was sexually assaulted in Parliament house – one of the most highly monitored, most secure buildings in Australia – by a former colleague, who at the time remained anonymous.
At the time, the allegations ignited a highly charged national #metoo uprising and a fierce national debate about women's rights to safety in the workplace. A number of internal inquiries were undertaken into the ‘toxic' workplace culture of Parliament House, and politics generally.
In August the same year, Bruce Lehrmann was charged with sexual intercourse without consent (the equivalent charge in New South Wales is sexual assault.)
He pleaded not guilty in September and has always maintained his innocence.
When the trial was finally cleared to proceed in October 2022 – after allegations of media interference, and contempt of court, it was abandoned without a verdict after a juror engaged in misconduct by bringing research papers into the jury deliberation room despite being directed by the judge on numerous occasions not to consider material other than the evidence admitted during the trial.
Serious allegations by the ACT Chief Prosecutor
A few weeks later, the ACT's chief prosecutor, Shane Drumgold, decided not to proceed with a second trial, citing concerns about Brittany Higgins' mental health after she had spent 18 months under intense public scrutiny and at the centre of relentless media attention.
Shortly afterwards, Mr Drumgold asked for an investigation into the way the case was handled – from the moment police initiated investigations, through the pre-trial preparation phase up to, and including the trial.
At that time, Mr Drumgold made very serious allegations about the way the Australian Federal Police handled the investigation, including ‘pressuring' him not to continue with the prosecution of Bruce Lehrmann as they were of the view the evidence against him was both insufficient and inconsistent.
In written submissions to the Board of Inquiry, Drumgold also accused police of engaging in “unsophisticated corruption” in an attempt to derail the prosecution.
The Board of Inquiry, led by former Queensland Judge Walter Sofronoff SC, assisted by Erin Longbottom KC, is now underway.
It is investigating the conduct of prosecutors, as well as police.
Prosecutor's actions questioned
Mr Drumgold has been the first to provide evidence to the Inquiry.
For anyone not familiar with the way the prosecution process works in respect of serious criminal cases in higher courts, the Office of the Director of Public Prosecutions is supposed to work closely with police officers while at the same time making independent decisions regarding whether or not to continue with a prosecution, as well as the specific charges to prosecute if it is determined the case will go ahead.
However, Mr Drumgold has cited several instances when he believed the AFP was working against his team, rather than with it. The prosecutor went so far as to claim the AFP were ‘aligned with the defence'.
Having said that, Mr Drumgold has also been confronted by the Inquiry about whether he also demonstrated a “cavalier attitude” towards his ethical and legal obligations as a prosecutor and whether he fell short of the duties of his role.
Among other things, this relates to the fact he read confidential counselling notes relating to Ms Higgins and was in possession of a dossier of materials which suggested the complainant's version of the events was not credible, as well as that there were separate occasions where she had engaged in impermissible and inappropriate conduct inside Parliament House.
The latter-mentioned documents, contained in a file known as the “Moller Report”, were compiled by a senior police detective who came to the view after reviewing the statements and other relevant material in the case that Ms Higgins was not a credible witness.
The document was reportedly not given to the defence , which meant they may have been denied the opportunity to investigate the matters and use the results of their inquiries to potentially challenge the credibility of Ms Higgins at trial.
Right to a fair trial
As the Inquiry goes on, it is painstakingly clear that these decisions, made in the course of Shane Drumgold's working day, could potentially have had highly significant implications for the justice process.
Mr Drumgold has repeatedly stated his concern for the wellbeing of Ms Higgins, and that has led to accusations of a lack of impartiality as evidenced by, among other things, his alleged failure to serve potentially relevant materials on the defence – which may well have denied the defendant a fair trial.
The Inquiry is only just getting started – hearings will continue over the next several weeks, with a final report expected to be delivered in July. Criminal defence lawyer Warwick Korn, representatives from the AFP, and other key personnel are yet to take the evidence stand.
The Inquiry will also examine the role of the victims of crime commissioner, and the framework for juror misconduct. The Australian Commission for Law Enforcement Integrity is also already examining the police investigation, following a complaint made by Ms Higgins when police sent her counselling notes and other sensitive information to Mr Lehrmann's legal team.
Both inquiries will deliver recommendations for reform.
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