The ACT Director of Public Prosecutions Shane Drumgold has accused police investigators of complaining to Bruce Lehrmann’s defence team about their concerns that the DPP was not “impartial” and suggesting that any decision on a retrial over Brittany Higgins rape allegation should be outsourced.
Amid revelations that police did not want to charge Mr Lehrmann, extraordinary new claims have now emerged that police also wanted the DPP to stand aside from any decision of whether to hold a retrial after the first trial was aborted following juror misconduct.
The DPP Shane Drumgold’s complaints about police are contained in a letter that he sent to the AFP police chief Neil Gaughan, on November 1, where he claims the AFP were “aligning” themselves with the defence.
In the correspondence, Mr Drumgold asserts that members of the AFP asked the defence barrister Steve Whybrow to intervene after the first trial was aborted.
“On the discharge of the jury on the 27th of October 2022, defence barrister Steven Whybrow spoke to my junior (REDACTED) and stated that he had a meeting with the investigators and that they had suggested that he contact me and firstly suggest I was not impartial,’’ the DPP’s letter to the AFP states.
“And consequently request that I should outsource the decision as to whether or not to re-run the trial to someone outside the office.”
The document was released by the DPP’s office on December 5 to a journalist under a fast-tracked 48 hour freedom of information request without consulting police.
Mr Whybrow told news.com.au he had “no comment” on Mr Drumgold’s letter, which does not suggest any wrongdoing by the defence.
A former Liberal staffer, Mr Lehrmann has always maintained his innocence and pleaded not guilty and is now considering civil remedies including defamation.
When the ACT Supreme Court held a subsequent hearing on any bail conditions for Mr Lehrmann pending a second trial, his legal team told the Chief Justice Lucy McCallum that they had spoken to police and “they have no concerns at all about Mr. Lehrmann being a flight risk” or needing to surrender his passport.
“This is emblematic of the constant exclusive direct engagement police have had with the defence rather than the prosecution in the lead up and during the trial,’’ the DPP Shane Drumgold wrote.
The Australian Federal Police Commissioner complained last week in a leaked email to police that the DPP’s letter was released without consulting with police as required.
“ACT policing was not consulted in the FOI process. Let me be clear, the allegation the DPP has made against individual ACT policing members is untested,’’ the ACT police chief Neil Gaughan said.
“These allegations are dealt with through the appropriate mechanisms. So I’m unable to comment further.
“Operation Covina has been a challenging case for all involved. I acknowledge the dedication, professionalism and commitment of the officers involved in the investigation.”
The Australian Commission for Law Enforcement Integrity is already examining the police investigation into Ms Higgins’ complaint after bombshell claims some police aligned themselves with Mr Lehrmann’s defence team but the ACT police want a broader inquiry.
At the conclusion of that investigation, the ACT government is understood to be open to holding a judicial inquiry.
In the letter Mr Drumgold wrote to the ACT police chief Neil Gaughan, the DPP outlines a number of serious concerns.
He claims that as early as March 31, 2021, just weeks after Brittany Higgins conducted her first evidence in chief interview that police expressed doubts about charging Mr Lehmann.
The concerns raised were prior to Mr Lehrmann’s own three-hour interview with police in early April 2021.
In the DPP’s extraordinary letter, the DPP claims police cherry-picked evidence and raised claims Ms Higgins deleted material from her phone that was not supported by subsequent evidence at the trial.
He also accuses police of “bullying” Ms Higgins and asks in the letter that police not contact Ms Higgins or other witnesses.
“This includes no further contact with defence or other prosecution witnesses, no contact with the complainant, and prohibiting attendance at court beyond formal evidence if required,” he wrote.
The documents also reveal for the first time that the freedom of information request was lodged by a journalist on Monday, December 5 and approved two days later.