The Australian Federal Police is refusing to hand over the full brief of evidence in the investigation of Brittany Higgins’ rape allegation to a powerful inquiry investigating police conduct.
A former judge leading the inquiry, Walter Sofronoff KC, detailed the roadblocks the inquiry was running into at a preliminary hearing today where the AFP is represented.
In an extraordinary revelation, the inquiry heard there may also be a police recording of a phone call between barrister Steve Whybrow and AFP Detective Scott Moller.
Mr Whybrow is the barrister for Bruce Lehrmann, the man previously charged in relation to the matter.
A single charge of sex without consent against Mr Lehrmann was dropped by the ACT Department of Prosecutions 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.
While the AFP welcomed the inquiry and has agreed to co-operate, it has raised a number of concerns over handing of key documents.
For example, it has told the inquiry that a full brief of evidence includes a large volume of unedited video and phone records that exceeds 100,000 pages.
The police have told the inquiry it would take a long time to “review the material”.
“Did anyone explain why they are reviewing it rather than handing it over?” Mr Sofronoff said.
Mr Sofronoff also mentioned — twice — during the hearing about items to be produced in relation to the The Telecommunications (Interception and Access) Act 1979.
Brittany Higgins arrives at the ACT Supreme Court in October 2022. Picture: Martin Ollman/Getty Images
The reference could suggest that phone taps may have been involved in the investigation, however there was no further information provided over whether this was the case or who may have been targeted.
The laws set out when eligible Australian law enforcement and security agencies are permitted to obtain warrants to intercept communications, obtain warrants to access stored communications, and authorise the disclosure of data.
Senior counsel assisting Erin Longbottom KC detailed a long list of subpoenas the AFP is resisting or has delayed production of documents.
However, Mr Sofronoff also noted several police officers involved in the investigation “have been very helpful”.
“There is a magnitude of work you are being asked to undertake,” Ms Longbottom said.
“It is critical that we have the timely production of documents. To date there have been issues with the timely production of documents.”
The ACT government announced the probe into the prosecution last year, stressing it would not be about recontesting Ms 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,” ACT Attorney-General Shane Rattenbury said.
The probe will now consider whether or not the AFP, the DPP and the ACT Victims of Crime Commissioner acted in breach of their duties during the investigation.
A charge against Bruce Lehrmann was dropped by the ACT DPP in December. Picture: Gary Ramage/NCA NewsWire
The inquiry was sparked by ACT Director of Public Prosecutions Shane Drumgold’s claim in a letter to the AFP that police had “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.
The inquiry, with the powers of a royal commission, will hold public hearings later this month and publish relevant documents on the inquiry website.
Ms Longbottom is the Queensland barrister who 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.
In his bombshell letter that led to the inquiry, Mr Drumgold wrote to 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.”
ACT Director of Public Prosecutions Shane Drumgold. Picture: ABC News
Mr Gaughan has previously backed public inquiry into the trial of Mr Lehrmann that extends to the conduct of the prosecutor, the police and “the allegation of contempt” over Ms Higgins’ speech outside court at the conclusion of the trial.
Earlier this year, it emerged Mr Lehrmann lodged a formal complaint of professional misconduct targeting Mr 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.”
ACT Chief Minister Andrew Barr and Attorney-General Rattenbury said the inquiry had been devised to “bring sunlight” to allegations raised.
The terms of reference 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.
Brittany Higgins in the Maldives with partner David Sharaz in January. Picture: brittanyhiggins/Instagram
The inquiry is also likely to consider claims that police sent prohibited material including Ms Higgins’ confidential counselling notes to the accused’s original lawyers.
Mr Gaughan outlined his own concerns in a leaked internal email that complained Mr Drumgold released private correspondence to a journalist under freedom of information laws without consulting police.
During the hearing, a lawyer acting for Mr Drumgold suggested that he might claim legal professional privilege over some documents.
“When am I going to know if your client refuses to produce a document or I should say declined to produce a document?” Mr Sofronoff asked.
A lawyer acting for Mr Drumgold said he may be prepared to consider waiving of privilege.
“Well, when is he going to consider it?” Mr Sofronoff said.
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The inquiry heard the DPP’s office had already handed over 137,000 pages of documents.
Kate Richardson SC, the barrister acting for the AFP, said a document had been provided outlining the time frame that the AFP was working towards to hand over outstanding documents.