Bruce Lehrmann’s defence barrister Steve Whybrow has revealed he was “p*ssed off” after he was accused of getting cross examination tips during the trial from former Defence Minister Linda Reynolds.
In his first day in the witness box at a board of inquiry, the barrister accused the Director of Public Prosecutions Shane Drumgold of “weaponising” the claim in front of the jury.
It followed revelations that Senator Reynolds was texting the defence barrister during the trial and asking for transcripts when she was a witness – a request Mr Whybrow declined.
Liberal senator Linda Reynolds. Picture: NCA NewsWire / Photox / Ben Appleton
The issue erupted into controversy during the trial after a bruising cross-examination by the DPP where he accused Senator Reynolds of getting her partner to sit in court to listen to Brittany Higgins’ evidence when she was herself a witness.
But Mr Whybrow told the inquiry that Senator Reynolds’ attempts to secure transcripts from him during the trial had been mis-characterised by the DPP Shane Drumgold in the ACT Supreme Court.
“I was pissed off,” he told the inquiry.
He noted that “there is no property in a witness” and said there was nothing improper about his dealing with her.
On Monday October 17, 2022 Mr Whybrow wrote to Mr Drumgold during the trial about the mischaracterisation.
In the email, a furious Mr Whybrow tells the DPP the claims in court he was getting coached were being reported “wildly.”
“In light of your assertions to Senator Reynolds that she was trying to coach the Defence in how to do its job and to give cross examination tips (which I objected to and I believe you withdrew) but is being reported WILDLY,” he wrote.
An explosive email from Steve Whybrow to DPP Shane Drumgold has been dredged up in an inquiry into the trial. Picture: NCA NewsWire/ Dylan Robinson
“I will be seeking Her Honour to direct the jury that there is no property in a witness and there is no suggestion of ANY impropriety in having spoken to a witness.”
Defending his regular contact with Senator Reynolds before and during the trial, Mr Whybrow said it was “unfair and untrue” to suggest she was coaching him and the misinformation played into the “so called political cover up conspiracy.”
While the DPP Shane Drumgold suggested in earlier evidence that he became concerned of a political conspiracy to derail the trial, he later admitted he no longer believed that and thought the counselling records were sent mistakenly.
Mr Whybrow has provided under subpoena his text messages and emails with various police and prosecutors and Senator Reynolds, who was a witness in the case as Ms Higgins’ former employer.
Roadblocks over Moller report
Earlier, Mr Whybrow outlined roadblocks that were put in place to stop him from gaining access to a police report that detailed questions over Ms Higgins’ credibility.
Brittany Higgins. Picture: NCA NewsWire / Gary Ramage
While the DPP Shane Drumgold said they were the subject of a legal privilege claim, Mr Whybrow discovered this was not the case when he “cold called” Detective Superintendent Scott Moller and he told them the police did not have a problem with the defence having access.
Asked if there was anything unusual about his level of engagement with police, Mr Whybrow said there was “a lot of material in the space of potential rabbits to chase down a lot of rabbit holes. ”
“We were not getting a lot of engagement from the DPP in terms of disclosure. So I contacted the police,” he said.
Mr Whybrow also revealed he was “flabbergasted” to learn in the lead up to the trial that the DPP Shane Drumgold had looked at Ms Higgins’ confidential counselling notes to check if there was anything in them that was disclosable to the defence.
The counselling notes were mistakenly provided to Mr Lehrmann’s original defence team, who said they never opened the material.
But the DPP did open the material.
“I was not expecting to be told that the DPP had read them. Now we were in a position where the prosecution had material and we didn’t and we couldn’t,” Mr Whybrow said.
Mr Whybrow said he was ‘flabbergasted’ by the fact that the DPP had read Ms Higgins’ counselling notes. Picture: NCA NewsWire / Martin Ollman
“It’s not an even playing field. The prosecution has information the defence does not.
“Frankly, I was flabbergasted to be told that (the DPP) thought they were entitled to read them to see if they were disclosable,‘’ Mr Whybrow said.
Fiona Brown on “lies”
A former Liberal staffer Fiona Brown was also in contact with Mr Whybrow after the trial.
In a conversation later in December, Ms Brown told Mr Whybrow that some of Ms Higgins’ evidence at the trial was “totally a lie.”
“I had always thought she was the most important witness in this case because she’s the only person that had taken any contemporaneous notes of what had happened,” Mr Whybrow said.
“She was very apprehensive as to whether that’s the right thing to do or not so I gave her an undertaking. I would just look at it and give it to my solicitor. I wouldn’t do anything with it unless she gave me permission to do something more.”
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Mr Whybrow said he was alarmed to learn she had warned the DPP that Ms Higgins had given “false and misleading evidence”.
“The most important thing in this from my perspective was statements made by Miss Higgins are false and misleading. And I would have appreciated the opportunity to have explored that,” he said.