The Australian Federal Police have been ordered to hand over recordings or a transcript of a phone call between Bruce Lehrmann’s lawyer and police, an inquiry into the prosecution of the former Liberal staffer has heard.
On Thursday, the Australian Capital Territory’s Board of Inquiry into the Criminal Justice System held its first public hearing into the matter after it was announced by the Territory’s government in December.
The Board of Inquiry was established to examine the Territory’s framework for progressing criminal investigations following Bruce Lehrmann’s trial over the alleged rape of Brittany Higgins in Parliament House and whether or not the AFP, Department of Public Prosecutions or Victims of Crime Commissioner failed to act in their duties during the investigation and subsequent trial.
A single charge of sex without consent was dropped after the trial was abandoned following juror misconduct.
Mr Lehrmann had pleaded not guilty and continues to strongly deny the allegation.
In an extraordinary revelation, the Inquiry heard Counsel assisting the Inquiry, Erin Longbottom KC, had requested the AFP hand over a recording, if one exists, between Mr Lehrmann’s barrister Steve Whybrow and AFP Detective Superintendent Scott Moller “at a particular time and particular day”.
Walter Sofronoff KC, the commissioner leading the inquiry, said it was “odd” material on the phone call had not yet been handed over.
“While I can see other documents might require collation, a recording or document like that you just ask Detective Moller if the call was recorded and a transcript was made,” he said.
“He should know.”
The Inquiry, the ACT’s equivalent of a Royal Commission, was established to ensure criminal prosecutions are “robust, fair and respect the rights of those involved” after the Territory’s top prosecutor, Shane Drumgold SC, claimed police pressured him to abandon the trial.
Ms Longbottom told the inquiry the Australian Federal Police, who handle investigations in the jurisdiction, had provided limited amounts of material, raising concerns about legislation preventing them from handing over certain documents.
“It’s not lost on counsel assisting there is a large volume of documents to produce,” she said.
“The objective of the directions hearing today is to hopefully obtain some certainty about what material will be provided and when.
“To date there have been issues with the timely production of documents.”
She said the force had not provided specifics on what legislation they were referring to, but referenced a letter from the Australian Government Solicitor’s office saying the issue was being “closely considered”.
Kate Richardson SC, the barrister acting for the AFP, said a document had been sent through at 11.15am – just 45 minutes before the hearing began – which should provide an “amount of certainty” on the position of police.
“It’s actually a very complex task the AFP is undertaking,” she said.
“We’ve certainly taken the approach to be cooperative with the inquiry. It’s just that it’s an overwhelming amount of material.”
As examples, she said CCTV footage collected by police was over 100 gigabytes of material and the full brief of evidence exceeded 100,000 pages.
“It would swamp the Inquiry,” Ms Richardson said.
“If, in fact, it wants all that material we can take on board.”
Walter Sofronoff KC, the commissioner leading the Inquiry, said the response thus far from police made him doubt adequate resources were being provided by the Australian Federal Police and the Australian Government Solicitors office.
“I would like to have, within a very short time period, clear dates when it’s expected I will receive documents from the AFP,” he said.
“The sky doesn’t fall if you’re a day late … but I need certainty.”
He said it would be hard for him to do his job if he didn’t receive the full police brief and the brief on the case that Mr Drumgold received, “so one can cease being anxious that something important is not being overlooked”.