A powerful inquiry into the conduct of the police investigation and the prosecution during the trial of Bruce Lehrmann plans to hold public hearings and has issued subpoenas to the police, prosecutors and the ACT Bar Association for key documents.
The inquiry was sparked by the ACT Director of Public Prosecution Shane Drumgold’s claim in a letter to the AFP that police “clearly aligned with the successful defence of this matter rather than its prosecution”.
However, the circumstances of the release of the letter under freedom of information laws will also be probed by the inquiry and a subpoena has been issued to the ACT information commissioner to examine the processes that resulted in the letter being released.
News.com.au has confirmed for the first time that the inquiry, with the powers of a royal commission, does intend to hold public hearings in coming months and publish relevant documents on the inquiry website.
A charge against Bruce Lehrmann was dropped after the first trial collapsed. Picture: Gary Ramage/NCA NewsWire
Led by Walter Sofronoff KC, the inquiry has also now appointed counsel assisting to conduct the inquiry.
The senior counsel assisting is the Queensland barrister Erin Longbottom KC who has recently appeared in the Royal Commission into Defence and Veteran Suicide.
The junior counsel assisting is Joshua Jones, who was counsel assisting in the DNA inquiry led by Mr Sofronoff KC.
A single charge of sex without consent against Bruce Lehrmann was dropped by the DPP in December after the first trial collapsed as a result of juror misconduct.
Mr Lehrmann pleaded not guilty to the charge and has strongly denied the allegation since he was charged in August, 2021.
The probe will now consider whether or not the Australian Federal Police, the Director of Public Prosecutions and the ACT Victims of Crime Commissioner acted in breach of their duties during the investigation of Brittany Higgins’ rape allegation.
ACT Director of Public Prosecutions Shane Drumgold SC. Picture: Martin Ollman/NCA NewsWire
It follows the release of a bombshell letter from the Director of Prosecutions Shane Drumgold, who wrote to the ACT police chief Neil Gaughan, after the collapse of the trial outlining a number of serious concerns.
“There has now been over one-and-a-half years of consistent and inappropriate interference by investigators, firstly directed towards my independence with a very clear campaign to pressure me to agree with the investigators’ desire not to charge, then during the conduct of this trial itself, and finally attempting to influence any decision on a retrial,’’ Mr Drumgold said.
“Then when charges resulted, the [investigators’] interests have clearly aligned with the successful defence of this matter rather than its prosecution.”
The ACT Police chief Neil Gaughan has previously backed public inquiry into the trial of Bruce Lehrmann that extends to the conduct of the prosecutor, the police and “the allegation of contempt” over Brittany Higgins’ speech outside court at the conclusion of the trial.
Brittany Higgins arrives to give evidence on the third day of the trial. Picture: Martin Ollman/Getty Images
This month, it emerged Mr Lehrman lodged a formal complaint of professional misconduct targeting the Director of Public Prosecutions Shane Drumgold with the ACT Bar Association.
The allegations are contained in a leaked letter that was sent to the ACT Bar Association on December 9, that is likely to be captured by the subpoenas issued to date and referred to the inquiry.
“By doing so, he is bringing into disrepute his own office, the fine work and reputation of the Australian Federal Police and your members,’’ Mr Lehrmann wrote.
“His public behaviour continues to smear my name and the presumption of innocence that is a cornerstone of our justice system and that demands him to uphold.
“I am innocent of the charge pursued against me by The Director. I have always, strongly maintained my innocence.”
Speaking at a press conference in Canberra this month, the ACT Chief Minister Andrew Barr and Attorney General Shane Rattenbury said the inquiry had been devised to “bring sunlight” to allegations raised.
Mr Rattenbury said the government would not dictate how the inquiry was conducted but had signalled that they wanted it done in a manner that provides public confidence.
Walter Sofronoff will lead the inquiry. Picture: Tertius Pickard/NCA NewsWire
The terms of reference have now been finalised, and include:
— Whether any police officers failed to act in accordance with their duties or acted in breach of their duties in their conduct of the investigation of the allegations of Ms. Brittany Higgins concerning Mr Bruce Lehrmann.
— It will also examine their dealings with the Director of Public Prosecutions in relation to his duty to decide whether to commence, to continue and to discontinue criminal proceedings against Mr Lehrmann in relation to those allegations.
— Police dealings with the legal representatives for Mr Lehrmann before, during or after the trial in the matter of R v Lehrmann; in their provision of information to any persons in relation to the matter of R v Lehrmann.
— If any police officers so acted, their reasons and motives for their actions.
— Whether the Director of Public Prosecutions failed to act in accordance with his duties or acted in breach of his duties in making his decisions to commence, to continue and to discontinue criminal proceedings against Mr Lehrmann.
— If the Director of Public Prosecutions so acted, his reasons and motives for his actions.
— The circumstances around, and decisions which led to the public release of the ACT Director of Public Prosecutions’ letter to the Chief Police Officer of ACT Policing dated 1 November 2022.
— Whether the Victims of Crime Commissioner acted in accordance with the relevant statutory framework in terms of support provided to the complainant in the matter of R v Lehrmann.
— Any matter reasonably incidental to any of the above matters.
Queensland barrister Erin Longbottom KC. Picture: Supplied
The ACT Government announced the probe last year stressing it would not be about recontesting Brittany Higgins rape allegation but the conduct of criminal justice agencies.
“It is important to remember that this will not be a retrial of the case, it will focus on whether the criminal justice officials involved performed their duties with appropriate rigour, impartiality, and independence,’’ the ACT Attorney-General Shane Rattenbury said.
The inquiry is also likely to consider claims that police sent prohibited material including Brittany Higgins’ confidential counselling notes to the accused’s original lawyers.
The AFP Deputy Commissioner Neil Gaughan outlined his own concerns in a leaked internal email that complained the ACT Director of Public Prosecutions Shane Drumgold released private correspondence to a journalist under freedom of information laws without consulting police.
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“I welcome a public inquiry into all aspects of the matter including, (but not limited) to the actions of police, the prosecution and defence, issues leading to delays in the trial, issues leading to the subsequent mistrial, the decision not to proceed and the associated allegations of contempt of court,’’ the ACT police chief Neil Gaughan said in the email to staff.
The Board of Inquiry will report to the Chief Minister by June 30, 2023.