Brittany Higgins’ protected evidence – including her psychological counselling notes – were unlawfully disclosed by police to Bruce Lehrmann’s original defence lawyers in September last year.
News.com.au has obtained documents outlining how the disclosure infuriated the Director of Public Prosecutions Shane Drumgold who demanded the police retrieve the information urgently.
“This issue is quite serious, the counselling notes and other sensitive information of a rape complainant have been unlawfully given to counsel for an alleged rapist,’’ the DPP wrote in October 2021.
It followed a fight between prosecutors and police over whether there was enough evidence to prosecute and police complaints the case was “political”.
The matter was never disclosed to the jury, but was outlined in police documents subpoenaed by the defence after a legal tussle with the DPP.
Bruce Lehrmann has always maintained his innocence and pleaded not guilty.
The second trial was abandoned on Friday after the DPP announced the sexual assault charge against Mr Lehrmann would be dropped, due to an “unacceptable risk to the life of the complainant.
The prohibited material disclosed to the defence, which also included Ms Higgins videotaped record of interview with police, was sent to Mr Lehrmann’s original defence lawyers, not his current defence barrister Steve Whybrow.
Mr Lehrmann was charged in August, 2021, with the AFP raising concerns over any prosecution in June, 2021.
The unauthorised disclosure to Mr Lehrmann’s defence team by police occurred in September 2021.
Contacted by news.com.au about the complaint over the police sending the material to the defence, the AFP said the matter remains “under investigation”.
Documents outline DPP’s fury over disclosure
The unauthorised disclosure of Ms Higgins counselling notes and videotaped evidence sparked a tense exchange of correspondence between the Director of Public Prosecutions Shane Drumgold and ACT Police Manager of Criminal Investigations, Detective Superintendent Scott Moller last year.
On October 11, 2021, the DPP wrote to Superintendent Moller complaining that the defence team’s claim they had not opened the material was “incomplete and highly concerning.”
“Noting he is still in possession of highly sensitive and protected information, is he going to return the memory stick to the AFP,’’ the DPP asked in respect of the defence counsel.
“It appears the least the AFP could do is send someone over to collect it. And my suggestion is that if and when you get it back you have the metadata examined to ensure sensitive documents have not been accessed or copied.”
“In conversation with me last week, (the defence lawyer) he stated he had copied the content onto a hard drive and did not know how to delete it.”
Senior cop believed insufficient evidence to prosecute
The Weekend Australian reports today Detective Superintendent Moller, the most senior cop on the Brittany Higgins case, also believed there was insufficient evidence to prosecute Bruce Lehrmann.
He advised investigators “have serious concerns in relation to the strength of (Ms Higgins’) evidence but also more importantly her mental health and how any future prosecution may affect her wellbeing”.
The material was never disclosed to the jury but was provided to Mr Lehrmann’s defence team on subpoena in the lead up to the trial.
The briefing, dated June 9, 2021, states that “there is limited corroborative evidence of sexual intercourse taking place or consent being withdrawn or not provided”.
Superintendent Moller also made notes of a conversation with his boss, ACT Deputy Chief Police Officer Michael Chew, on June 17 last year.
“DCPO [Mr Chew] advised he had a meeting with DPP who stated they will recommend prosecution,” the notes state.
“DCPO stated ‘if it was my choice I wouldn’t proceed. But it’s not my choice. There is too much political interference’. I said: ‘That’s disappointing given I think there is insufficient evidence.”