Relations between ACT Police and prosecutors were “beset by tension from the outset”, an ACT Board of Inquiry into the prosecution of Bruce Lehrmann has heard.
The inquiry has been charged with investigating the inter-agency handling of the case brought against the former political staffer in August 2021 over the alleged sexual assault of Brittany Higgins, after chief prosecutor Shane Drumgold wrote to the ACT Police chief in November last year saying he felt pressured not to lay charges.
Lehrmann pleaded not guilty to one count of sexual intercourse without consent and has maintained his innocence. His trial collapsed last year as a result of juror misconduct, and a retrial was abandoned by Drumgold for fears of risking Higgins’ mental health.
“It is important to emphasise that this is not an inquiry into the allegations made by Ms Higgins against Mr Lehrmann,” Erin Longbottom, counsel assisting the inquiry, told the inquiry at its first public hearing on Monday.
“It is only concerned with the way in which each of the criminal justice agencies involved fulfilled their duties in the investigation and prosecution of those allegations, as well as in the course of providing support to Ms Higgins in that proceeding.”
The inquiry’s chair, former Queensland judge Walter Sofronoff KC, will be left to deliberate whether the agencies involved — the Department of Public Prosecutions (DPP) and ACT Police — failed to uphold their duties in handling the case.
Longbottom told the inquiry that “from the early stages” of the recommenced investigation, members of the DPP met to discuss the matter following Higgins’ interview with Lisa Wilkinson on Network Ten’s The Project.
“But you will hear evidence that, from the outset, engagement between the DPP and ACT Police in this matter was beset by tension,” she said. The parties involved in the meetings have “different perceptions” of what occurred, and there were a number of conflicts, she said.
The points of conflict are as follows:
- Whether it was proper for ACT Policing to conduct a second evidence in chief interview with Ms Higgins, as they did on May 26 2021.
- Confusion about whether Lehrmann should be charged and how matters affecting the credibility of Higgins were to be treated by police when deciding whether to charge Mr Lehrmann once he was charged on August 6 2021, and by the DPP when deciding whether to present an indictment.
- The delivery of the brief of evidence to lawyers for Mr Lehrmann once he was charged on August 6 2021, but before he entered into a plea.
- The “apparent close engagement” between the investigating officers of the ACT Police and lawyers for Lehrmann during the trial, which led to some distrust between police and the DPP.
Longbottom suggested that the case drew intense public interest because the alleged offence took place at Parliament House, and because the case unfolded before the backdrop of “intense public discussion” about sexual violence against women in light of the #MeToo movement.
“That context seemingly affected police charged with the responsibility of investigating the allegations made against Mr Lehrmann as well as the DPP and the Victims of Crime Commissioner, who had the statutory function of providing Ms Higgins with support,” Longbottom told the inquiry.
“That context also brought into question the threshold for charging and continuing the prosecution of an allegation of sexual intercourse without consent and the significance of the credit of the complainant in those decisions.
“The public expects police officers to exercise their considerable power to investigate crime and charge people with offences strictly in accordance with their duties. The public expects that prosecutors will act impartially in accordance with their obligations to uphold the right to a fair trial.”
In his letter last year, Drumgold alleged that “key AFP members have had a strong desire for this matter not to proceed to charge”, and that he had become the target of a “very clear campaign” aimed to pressure him to “agree with the investigators’ desire” not to charge.
Longbottom said she expects hearings to begin on May 1, with witnesses from the DPP including Drumgold.
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