Evidence from police and DPP witnesses at the Sofronoff Inquiry into how the justice system handled Brittany Higgins' rape allegations has revealed a shambolic trail of errors. Paul Begley asks if these were stumbles under pressure or professional incompetence.
WHEN Detective Superintendent Scott Moller of the Australian Federal Police, (ACT branch) gave evidence during week three of the Board of Inquiry into the ACT Criminal Justice System, he made much of the extraordinary pressure and stress his investigating team members were under in the Bruce Lehrmann matter during 2021 and 2022.
Moller cited instances of team members needing to drop off and take sick leave over pressures being brought to bear on their investigation.
Hearing that, it was difficult not to recall the first week of the Inquiry when the ACT Director of Public Prosecutions, Shane Drumgold SC, gave evidence in sessions that continued for five days. In turn, Drumgold was questioned by the counsel assisting the Inquiry, Erin Longbottom KC, by his own counsel, Mark Tedeschi KC, by the Australian Federal Police counsel, Kate Richardson KC, and by Lisa Wilkinson's counsel Sue Chrysanthou SC.
Taking a hands-on approach, the inquiry board chair, Walter Sofronoff KC, intervened regularly to seek clarification on the questions asked of Drumgold and the answers he gave.
One thing that became clear before Mr Sofronoff called off the cross-examining of Drumgold, noting it was on the verge of being excessive, was that the DPP was less than perfect. He had stumbled on more than one occasion. Had it been a horserace over jumps, The Australian newspaper and SkyNews would have called him out of the race having fallen, with headlines accusing Drumgold of "withholding crucial documents", making "extraordinary backdowns" and "admitting failings".
For his part, Drumgold admitted, as a duty to the court, he should have taken Lisa Wilkinson's request for advice on her speech more seriously. He also conceded error about his accusation that Federal politicians were conspiring with the AFP, investigating matters related to the case to ensure Lehrmann did not face charges and he withdrew it. What looked like a conspiracy to him at the time, on reflection, he said he now saw as police "skill deficits".
The police were not up to date with the law on corroboration in sex cases, he said, and they arrived too early at a conclusion not to press charges on Lehrmann because some of them were driven by passion rather than a cool head - a reference, in particular, to the officer leading the investigation, Detective Inspector Marcus Boorman.
In regard to Tedeschi's attempts to introduce evidence that the ACT Police were increasingly "undercharging", Sofronoff was not keen to delve into the general background of that material but he thought it useful to know that "undercharging" meant they were not merely reducing the severity of the charges laid in sex cases, but were increasingly not taking them to trial at all.
Moller made much of the pressure and distress that his team of investigators were under dealing with the Lehrmann matter, but had trouble naming the sources of that pressure when pressed by Tedeschi. By contrast, the pressures on Drumgold were significant leading up to the trial, during the course of it and, subsequently, such that they led to his calls for the Inquiry of which he is a key witness.
During the early stages of the police investigation, Drumgold arrived at the perception that the investigating police opposed Lehrmann being charged. The police focused their opposition initially on the extent to which the complainant (Higgins) was open to attacks by the defence, with the answers bolstering their position that the prospects of a conviction were not good.
Senior Constable Emma Prizell conceded a number of things in giving her evidence, including having come to the realisation that the police threshold for charging an accused person was whether there were reasonable grounds for suspicion, rather than the higher test of whether there was a reasonable prospect of conviction.
Lehrmann was a beneficiary of that misconception, which appeared to be shared by Scott Moller in his executive briefing to Commander Michael Chew about making a decision on whether to charge. The written Moller briefing focused in its entirety on weaknesses in the Higgins case without mentioning the implausibility of the Lehrmann defence case. Mr Lehrmann has always denied the rape allegation of Ms Higgins.
That said, there were unanswered inconsistencies on why, after midnight, Lehrmann organised an Uber to take Higgins back to Senator Reynolds' office with him, but then left her there naked and intoxicated when he departed alone. Lehrmann gave conflicting explanations about going to Parliament House to drink whisky, collect documents, or make corrections to a speech that had no urgency attached to it.
As with Drumgold's admissions of error, to this untrained eye, Prizell's unceremonious manner of making concessions under questioning enhanced her credibility. Mr Sofronoff is a capable chair who inspires confidence and he will determine matters of witness reliability in due course, but it would surprise me if he doesn't decide that Prizell and Drumgold are both witnesses who, on balance, are less than perfect but reliable.
Drumgold said that police visibly appeared to side with the defence during the trial, a perception that AFP Commander Joanne Cameron lamented in strongly worded statements to her people at the time, warning them to exercise caution about the perception of police contacting Lehrmann's defence lawyers.
Crown witness, Senator Linda Reynolds, was reprimanded during the trial for coaching the defence lawyer, Steven Whybrow SC. Lehrmann was a staff member fired from his position as a senior adviser in Reynolds' office in 2019, purportedly for opaque reasons related to a "breach of security".
Higgins was also sent to Western Australia where she was effectively sidelined during the 2019 Federal Election campaign - and subsequently.
In Western Australia, Higgins was then under the employ of Senator Michaelia Cash. Cash gave evidence during the trial that she had not been told about the rape allegation made by her new staffer. When asked about the notion of "plausible deniability", Cash, who was Attorney General at the time, said she didn't understand what the question was about.
Drumgold was also beset by events that threatened to derail the Lehrmann trial once the decision had been made to take the matter to court, despite what appears to have been considerable pressure from AFP Police to prevent that from happening.
Channel 10 The Project host Lisa Wilkinson made a speech after winning a Logie award on 19 June 2022 in which she praised Brittany Higgins' courage in such glowing terms that the trial judge, Lucy McCallum, decided it was instrumental in her decision to delay the trial date from June to October 2022 to allow the jury time to forget the speech.
That speech compounded an earlier prejudicial statement given under parliamentary privilege on 7 February 2022, when then-Prime Minister Scott Morrison apologised to Higgins for "the terrible things that took place here", following which Lehrmann's lawyers immediately called for a permanent stay to his trial, a submission rejected by McCallum.
Given Morrison's track record for deviousness, it would not have been surprising to learn that his intention in making that blatantly prejudicial statement was to abort a trial that had every likelihood of causing him grief, were it to result in a conviction of the accused. Morrison had insisted he knew nothing about the 2019 rape allegation until February 2021- a denial his former colleague and Prime Minister Malcolm Turnbull said was "very, very, very hard to believe".
Judge McCallum made it clear before the trial began that tendency evidence was inadmissible and also demanded of publishers that stories be taken down about sexual harassment allegations by other women who had worked with Lehrmann. The Judge was only interested in the jury hearing about what allegedly happened in the early hours of 23 March 2019 in the Defence Minister's office and told the jury, on numerous occasions, that they must put all other considerations out of their minds and focus on what they heard in court. Jury members knew also that all 12 of them must agree on a verdict because that is the practice in the ACT.
Drumgold told the Inquiry that he had been observing the jury members during the trial and had come to the view that 11 of them were inclined to convict. He informed the Inquiry that he engaged in that practice because he was a lawyer and that the juror he had identified as unlikely to convict was the same juror who had engaged in misconduct, causing the trial to be aborted.
We will never know whether that was an accurate assessment by Drumgold because jurors will not be called on to give evidence at the Inquiry. But in an Inquiry after the 1991 perjury trial of Joh Bjelke-Petersen ended with a hung jury, it became known that the jury foreman, Luke Shaw, was a "friend-of-Joh" partisan.
The combination of events within the ACT justice system, combined with happenings outside the system in the media and the Parliament, led Drumgold to allege that a conspiracy had been underway to ensure Lehrmann did not get charged and once he was charged, that the trial did not end with a conviction.
While the DPP withdrew that allegation, there appears to have been a great deal of energy exerted to assist Lehrmann. Thanks to a rogue juror, like the Joh trial, the Lehrmann matter will not go to a retrial.
And the result is in many ways the worst of all worlds. Lehrmann has not been acquitted but is suing far and wide for defamation, settling one such action yesterday with News Life Media, a division of Murdoch's media empire. And Brittany Higgins, like many other complainants in rape cases, is left to lick her wounds and suffer the devastation of an unresolved case that health concerns prevent her from pursuing any further.
Paul Begley has worked for many years in public affairs roles, until recently as General Manager of Government and Media Relations with the Australian HR Institute. You can follow Paul on Twitter @yelgeb.