Australia’s national anti-corruption watchdog has launched a probe into whether police “attempted to pervert the course of justice” by forwarding protected information about Brittany Higgins to the defence team during the aborted rape trial and pressuring her not to proceed with the matter.
The prohibited material disclosed to the defence, which included private psychological counselling notes and Ms Higgins’ videotaped record of interview with police, was never opened by the defence according to the barrister it was sent to in 2021.
News.com.au has confirmed however that the Australian Commission for Law Enforcement Integrity (ACLEI) probe will consider whether or not Australian Federal Police members attempted to pervert the course of justice by forwarding protected information contained in a brief of evidence.
Secondly, the anti-corruption watchdog is investigating whether AFP members attempted to pervert the course of justice by pressuring Ms Higgins not to proceed with the matter.
The third referral to the agency was by Ms Higgins’ lawyer, Leon Zwier. This relates to the potential leaking of documents and photographs by AFP members to the media.
This is also now under formal investigation and is being handled by a separate investigation team.
Mr Lehrmann, a former Liberal staffer, was charged in relation to the sexual assault allegation but the trial collapsed following juror misconduct and the charge was dropped by the DPP.
Since he was charged in August 2021, Mr Lehrmann has maintained his innocence.
A separate investigation into the decision to prosecute and the conduct of police is being led by Walter Sofronoff KC.
AFP union slams ‘smears’
The Australian Federal Police Association, which represents ACT police officers, has described the allegations under investigation as “smears”.
Contacted by news.com.au, the AFP said: “This is a matter for ACLEI. It would not be appropriate for the AFP to comment further.”
The ACLEI works to provide independent assurance about the integrity of Australian government law enforcement agencies.
It can investigate allegations of corruption, gather and analyse intelligence and data, provide corruption prevention advice and support.
The ACLEI is currently transitioning to become part of the new anti-corruption watchdog, the National Anti-Corruption Commission.
“Private contents” of diary leaked
In February, Ms Higgins lashed out after the “private contents” of her diary were leaked to the media months after the material was sent to police to investigate her sexual assault allegation.
It followed the publication in The Australian newspaper of Ms Higgins’ private and confidential communications, including her SMS exchanges with a friend, Ben Dillaway, and her partner David Sharaz, and extracts taken from a photograph of her personal diary entries of July 7, 2021.
“Stop publishing the private contents of my phone,’’ Ms Higgins said.
“I took a photo of an old page in my diary on the 7th of July 2021.
“It is now being referenced in an article in The Australian. This is the third time private images, texts and WhatsApps from my phone have been published by this particular news outlet.
“I voluntarily provided this material to the police to help them form the brief of evidence and none of it was tabled in court.
“Therefore, no journalist should have seen the photo of my diary. I entrusted police with my private information for the sole purpose that it could aid their investigation into my sexual assault, nothing else.”
Bombshell letter
The initial referral to the corruption watchdog followed a bombshell letter sent by the Director of Public Prosecutions, Shane Drumgold SC, to chief police officer Neil Gaughan in November.
In the letter, released under Freedom of Information legislation, Mr Drumgold alleged police officers engaged in a “very clear campaign to pressure” him not to prosecute.
“Key AFP members have had a strong desire for this matter not to proceed to charge,” Mr Drumgold alleged.
“Then when charges resulted, the [investigators’] interests have clearly aligned with the successful defence of this matter rather than its prosecution.”
Leak of counselling notes
The unauthorised disclosure of Ms Higgins’ counselling notes and videotaped evidence sparked a tense exchange of correspondence between Mr Drumgold and the police in 2021.
News.com.au obtained documents last year outlining how the disclosure infuriated Mr 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,’’ the DPP wrote in October 2021.
“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.”
Ms Higgins lodged a complaint over the unlawful disclosure in April 2022.
The prohibited material was sent to Mr Lehrmann’s original defence lawyers, not his current defence barrister, Steve Whybrow.
Mr Lehrmann’s original legal team emailed the AFP in early October, 2021 confirming that “in terms of the USB stick that you served on me (at the time of service of the Court Attendance notice), I have NOT viewed, downloaded or printed, any of the material contained on that USB stick”.
The second trial was abandoned last year 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”.