On the first day of a high profile inquiry into how criminal justice agencies handled Brittany Higgins’ rape allegations, the man she accused, Bruce Lehrmann sat at the back of the room.
He sat in silence and took notes as the man who prosecuted his trial, Director of Public Prosecutions Shane Drumgold SC, took to the witness stand.
The first week of the inquiry heard evidence of the fractured relationship between the DPP and police as central figures in the high profile case went under the microscope.
Mr Lehrmann pleaded not guilty to one charge of sexually assaulting Ms Higgins at Parliament House in 2019. The trial was aborted due to jury misconduct.
He has denied the allegation and the DPP declined to pursue a second trial due to concerns of Ms Higgins mental health, dropping the charge.
A POLITICAL CONSPIRACY?
In the days after the trial was aborted, Mr Drumgold penned a scathing letter to the ACT Chief of Police Neil Gaughan.
In it, he alleged he felt pressure not to prosecute and raised concerns about “political and police conduct”. Sent before the second trial was dropped, he asked that police had no further contact with defence or prosecution witnesses.
The letter ultimately sparked the inquiry, which is the territory’s equivalent of a royal commission.
On his third day of questioning, Mr Drumgold repeated his suspicion that police investigating were facing pressure from a government minister to “make the matter go away”.
He made reference to Liberal senators Linda Reynolds – who Ms Higgins and Mr Lehrmann worked for when the alleged incident occurred.
Mr Drumgold said her engagement and the “passion” police showed for Mr Lehrmann to be acquitted elevated his fears of political interference.
However just a day later, he hosed down that claim. The DPP told the inquiry he was wrong to suspect interference and after reading police statements to the inquiry he had concluded a “skills deficit” was more likely to blame.
“Your suspicions about the existence of political interference to prevent the case properly going ahead were mistaken?” inquiry chair Walter Sofronoff KC asked.
“I do accept that,” Mr Drumgold replied.
On Friday, Mr Drumgold was asked why it took until his counsel re-examined him on Thursday, after extensive media coverage, to “make good” his current mindset.
“It was not even within my purview in saying those things that it would be articulated or it would be received as a belief I still have,” Mr Drumgold said.
“I accept I probably should’ve injected the addendum.”
Senator Reynolds has rejected any suggestion she interfered in the case.
BREAKDOWN OF RELATIONSHIP BETWEEN POLICE, DPP
A main source of tension has been an evidence brief prepared by Detective Superintendent Scott Moller.
The report, referred to as the Moller Report, described Ms Higgins as evasive and uncooperative and raised concerns about her credibility and was given directly to defence.
The inquiry heard that Mr Drumgold had a perception that police had “aligned themselves with an acquittal” and that many of their concerns were “not admissible in court”.
He said others, such as Ms Higgins’ reluctance to hand over her phone and allegations she deleted content before giving the device to police, could be led at trial by defence.
Mr Drumgold said it was his perception that police viewed the case as “dead” and were actively looking for evidence to “kill it”.
Evidence tendered to the inquiry revealed that Detective Inspector Marcus Boorman had disclosed privately he would resign if the jury delivered a guilty verdict,
Another officer Trent Madders, Mr Drumgold alleged, said he was “physically ill” when charges were laid.
“If you’re so passionate that you’re going to get physically sick, if your investigation results in charges, how can I have any confidence in that investigation because everything goes to a confirmation bias perspective,’’ Mr Drumgold said.
Mr Drumgold was also questioned about why he sought to prevent the release of the report. He claimed its disclosure could have been “crushing” to Ms Higgins.
The inquiry also heard the DPP read notes from Ms Higgins counselling sessions after they had been incorrectly disclosed to defence.
The sensitive information cannot be seen without consent.
“I had to know what was disclosed … I had to work out what remedy was required,” he told the inquiry.
LISA WILKINSON HITS BACK
The inquiry is also canvassing whether Mr Drumgold effectively warned journalist Lisa Wilkinson in a meeting days before she gave an acceptance speech at the Logies about the impact of increased publicity.
Her victory speech, and the media that followed, led to Chief Justice Lucy McCallum vacating the June 2022 trial date.
Mr Drumgold has repeatedly said he warned Wilkinson that further media attention could give rise to a delay in Mr Lehrmann’s trial.
The former Project host emphatically rejected his claim in a submission to the inquiry.
Another question the inquiry is considering is whether Mr Drumgold did enough to inform the Chief Justice, and defence, that notes taken at the meeting had been amended after the fact.
The inquiry heard this week the notes were changed to include his recollection of the conversation after the award ceremony had taken place.
Mr Drumgold conceded while he viewed the notes as accurate that “in hindsight” he should have alerted the Chief Justice to the change.
Mr Sofronoff said if Ms McCallum had been made aware, she could have called Wilkinson and other witnesses to give their account of the meeting.
“It might have changed Her Honour’s view about the degree of criticism to which she later subjected Ms Wilkinson,” he said.
SHOCK CLAIM ABOUT ROGUE JUROR
Mr Drumgold had initially planned to retry the case after it was aborted last year. He told the inquiry that he’d concluded that 11 of the 12 jurors were inclined to convict Mr Lehrmann.
Asked by his counsel, Mark Tedeschi KC, if the perceived hold out juror was at the one accused of misconduct, Mr Drumgold responded: “Yes, it was”.
Mr Lehrmann’s defence counsel, Steven Whybrow SC, will be questioned when the inquiry returns on Monday.
The inquiry is due to report back to the ACT government by July 31.