Bruce Lehrmann’s criminal barrister John Korn warned the ACT’s top prosecutor he should try to stop Brittany Higgins from speaking at the National Press Club in a heated phone call just days before the event.
Documents released by the board of inquiry into the prosecution of Mr Lehrmann reveal that a furious Mr Korn called Director of Public Prosecutions Shane Drumgold in the days leading up to the event.
Mr Lehrmann maintains his innocence and was never convicted. A trial ended with the jury discharged over an allegation of juror misconduct.
A statement prepared by Mr Korn was published by the inquiry among hundreds of pages of documents and new witness statements.
“There is a matter which has long concerned me in relation to what I believe was a serious dereliction or serious lack of judgment on the part of the Director, in the terms of counselling, advising or preventing Ms Higgins from ever taking to the podium at an event at the Press Club, in Canberra,” Mr Korn said.
“I understood that she was to speak on the Wednesday. On the Monday of that week, I rang the Director Mr Drumgold to speak with him about that.”
Mr Korn said he made a record of the conversation “very shortly after our call took place”, and it is in the following terms:
KORN: Good morning, Mr Director, it’s John Korn.
DRUMGOLD: Good morning, John.
KORN: Mr Director, does the Director’s Office consider that it would be appropriate to invite Ms Higgins not to speak on the podium this week?
DRUMGOLD: No, why would we do that?
KORN: Mr Director, from what I understand, she will be standing on the podium speaking as a survivor of sexual assault, for a matter which has not yet been determined to have taken place, in circumstances where my client denies that any sexual intercourse ever took place.
DRUMGOLD: Oh no no no, that’s not the way I see it.
Mr Korn said the last remark “was said in a mocking tone that I thought was very inappropriate, so I responded in a somewhat inappropriate way”.
KORN: Mr Director, I don’t give a f**k how you see it, but every right-minded person in Australia, including me, would see it that way and she should not speak on that podium from that perspective. So I ask you, once again, to consider whether you would invite Ms Higgins not to speak.
DRUMGOLD: No, I don’t propose to do that. She has been appropriately warned not to give any details of the offence.
Mr Korn said he “then terminated the call”.
“In light of the massive amount of publicity that the Lehrmann/Higgins matter had generated and the very active role that Ms Higgins had taken in going on the media both in print and on TV, and in light of the fact that a trial was to take place commencing on 6 June 2022, I believe that the Director had an absolute responsibility to ensure a fair trial,” Mr Korn said.
“A fair trial meant, fair to Ms Higgins, fair to Mr Lehrmann and most of all, fair to the Australian community.
“With the greatest of respect to Ms Higgins, her active media campaign had already trashed the concept of a fair trial and allowing her to go on the podium as a survivor of a sexual assault with the trial coming up is something that the Director had a responsibility to try and actively prevent.
“Even if he was unsuccessful, as the first law officer of the ACT, representing the community, he had a prime obligation to try and do what he could to ensure a fair trial for all.”
In his submission, Mr Korn also details the dispute over material that the AFP handed over which is now the subject of a police integrity inquiry.
The brief handed over by the AFP improperly included Ms Higgins private counselling notes and a video of her evidence in chief interview.
Mr Korn said he never opened the offending material and handed the digital document back to police when asked.
“I do not remember the entirety of the conversation, but I remember beyond any doubt that I told [police] that apart from opening one of the blue folders on the USB, the Statements Folder, that I had not opened, viewed, downloaded or printed any material contained on that USB.”
During the hearings this week, Mr Drumgold disclosed that he did read the counselling notes obtained by police.
Mr Drumgold said he was attempting to understand the extent of the breach and was deeply concerned that “this event would be the straw that broke the camel’s back and [Ms Higgins] would not be able to engage in the criminal justice process”, given that she had “raised concerns that information was being deliberately disseminated by police”.
He conceded that this was a mistake.