Bruce Lehrmann’s defence lawyer has told an inquiry he was concerned the ACT’s top prosecutor had “aligned” himself with Brittany Higgins by the time he dropped the charges against the former Liberal staffer.
Giving evidence to an inquiry into how the criminal justice system handled the high profile case, Steven Whybrow SC repeated his frustration over the Director of Public Prosecutions’ remarks.
“I was concerned (DPP Shane Drumgold) had aligned himself with Ms Higgins,” he said.
Mr Drumgold’s counsel, Mark Tedeschi KC, told the inquiry the DPP’s comments were reasonable and in line with expectations the community be well informed about why a case had been discontinued.
But the defence barrister gave evidence that he asked Mr Drumgold on two occasions to give him advance warning of what he was going to say.
“What he said was … his personal subjective view,” Mr Whybrow said on Monday.
Mr Whybrow raised concerns about the DPP’s comments. Picture: NCA NewsWire / Martin OllmanMr Whybrow told the inquiry he believed the DPP had “aligned” with Brittany Higgins. Picture: NCA NewsWire / Gary Ramage
“I still maintain he did not need to say that in order to properly explain to the community the reasons why there was not going to be a retrial.”
Mr Whybrow has previously said the December 2 announcement, in which Mr Drumgold said he believed there was a reasonable prospect of convicting Mr Lehrmann and expressed support for Miss Higgins, gave the view his client was “really guilty”.
Last week, the DPP became emotional as he expressed regret for the comments and conceded he “possibly” didn’t consider the effect the statement would have on Mr Lehrmann “as much as (he) should have”.
Mr Lehrmann pleaded not guilty to one charge of sexually assaulting his former colleague before the trial was aborted due to jury misconduct.
Mr Lehrmann has continually denied the allegation and the DPP declined to pursue a second trial due to concerns over Ms Higgins’ mental health and dropped the charges.
The DPP expressed regret over his comments last week. Picture: NCA NewsWire / Martin Ollman
DPP “HOSTILE” TOWARDS POLICE
A major flashpoint in the inquiry has been the breakdown of the relationship between the DPP and police.
Mr Whybrow was asked about his perception of the relationship on his second day in the witness box.
He gave evidence that he was aware one officer, detective inspector Marcus Boorman, was unhappy with “various aspects of the trial”.
“I don’t know about the word ‘resentment’ … I don’t mean that (police) were loving and kind,” Mr Whybrow said.
“I meant my impression was that it was Mr Drumgold who was hostile towards the police.”
The inquiry also canvassed a conversation between the two lead prosecutors, recounted in Mr Whybrow’s statement to the inquiry, in which Mr Drumgold declared police investigating were “boofheads”.
It was put to Mr Whybrow that the comment was made on a “counsel to counsel” basis and should have been kept confidential.
“I thought that it was a pejorative comment that I didn’t understand was confidential,” he said.
“I thought it was an outburst by the (DPP) in the context of other things he’d said to the jury.”
The DPP’s opinion of the police was not admissible in evidence and could not have played a part in the trial, but Mr Whybrow told the inquiry he included the comment after being asked to give a “truthful” account of what occurred in proceedings.
The charge against Mr Lehrmann was dropped last year. Picture: NCA NewsWire / Gary Ramage
ROGUE JUROR “SORRY”
The juror who caused the mistrial told the judge they were “deeply sorry” before offering to take responsibility for the matter.
CT Supreme Court Chief Justice Lucy McCallum discharged the jury after five days of deliberations in the three-week trial because of one of them had brought in research about the frequency of false complaints of sexual assault.
“I am deeply sorry for this,” the juror who has not been identified said in a transcript tendered to the inquiry.
“I’m willing to take responsibility for that, Your Honour, if you feel that that’s appropriate.”
“I brought it in to show where the clarification came from and we agreed that it shouldn’t be – because it was research, that it shouldn’t be discussed. We have not discussed it.”
“Can I just say I give you my sincere apologies. I wasn’t aware that … doing this was … in any sense a wrongdoing. I was just purely doing – finding out what it meant, certain words, and in case I mentioned it to the jury, I want to make sure that I wasn’t inventing anything.
“No one has read it, no one knows anything about it.”
Ms Higgins outside of the Supreme Court on the day the trial was aborted Picture: NCA NewsWire / Gary Ramage
Ms McCallum told the juror it would be an offence to disclose the deliberations of the jury room.
“I would prefer to you preserve your anonymity.”
It is the first time the exchange between the rogue juror and the chief justice have been made public. The questioning took place in a closed court at the conclusion of the 2022 trial.
The misconduct was discovered during a routine tidying of the jury room by the sheriffs officers when one of the three accidentally knocked the jurors document folder onto the floor.
Last week the ACT Director of Public Prosecutions Shane Drumgold SC told the inquiry he had been able to convince all but one juror of Mr Lehrmann’s guilt.
He said he was of the view that the juror was the same person who brought the unauthorised material into the jury room.
Mr Lehrmann and his barrister Steve Whybrow SC. Picture: NCA NewsWire / Gary Ramage
POLICE OFFICER’S COFFEE CONFESSION
The inquiry heard Mr Lehrmann’s barrister met Detective inspector Marcus Boorman in October last year, when the jury had retired to deliberate on the outcome of the former Liberal staffers trial.
He told the Detective about enquiries made by journalist Janet Albrechtsen and gave him the “heads up” that police could soon be fielding questions about the investigative review.
Texts exchanged by the pair, which have been tendered to the inquiry, appear to show Mr Whybrow attempting to assist the journalist in her enquiries.
Text messages between Steven Whybrow and DI Marcus Boorman.Text messages between Steven Whybrow and DI Marcus Boorman.
In one text to the Detective, the defence lawyer wrote: “If we get a result, I might say some things.”
They met again at the Cupping Room coffee shop a few days later, the inquiry heard.
Mr Whybrow gave evidence he noticed the police officer was “anxious, agitated and concerned not to be seen speaking together in direct line of sight of the ODPP”.
The defence lawyer said Det Insp Boorman told him he believed Bruce Lehrmann was innocent.
He swore to resign from the police force if the jury found the former political staffer guilty of raping Ms Higgins, the inquiry was told.
FURIOUS TEXTS SENT OVER DOCUMENT LEAK
The revelations come as text messages between Mr Whybrow and prosecutor Skye Jerome, which had been fired off after an evidence brief compiled by police was leaked to the media, were tendered to the inquiry.
Ms Jerome slammed the leak was “outrageous” and asked Mr Whybrow if he was the media’s source.
Text messages between Skye Jerome and Steven Whybrow.
The police document, known as the Moller report, was published by The Weekend Australian newspaper less than a day after the DPP announced it would discontinue the prosecution on December 2.
Mr Whybrow said he had “no idea” where it came from and noted he didn’t have a subscription to the paper in question. Mr Jerome responded by screenshotting the article and sending it to the defence lawyer.
“Wow. Thanks for sending! F*ck!,” Mr Whybrow replied.