DPP believed the jury in Bruce Lehrmann trial was set to convict but was derailed by rogue juror

An inquiry has heard the ACT’s chief prosecutor believed the jury in the trial of Bruce Lehrmann was derailed by a rogue juror.

ACT Director of Public Prosecutions Shane Drumgold has told an inquiry that he believed the jury in the trial of Bruce Lehrmann was set to convict but was derailed by a rogue juror who brought material into the jury room.

In extraordinary evidence to a board of inquiry hearing today, Mr Drumgold revealed that he believed the single juror that was holding out was the same juror who derailed the trial.

“The rest of the jury, you thought, your impression was the rest of the jury were inclined to convict. Is that right?” lawyer Mark Tedeschi asked.

“That was a conclusion that I had reached,’’ Mr Drumgold said.

“And you also gave evidence that the jury was eventually discharged for the misconduct of a juror. Is that the same juror that you perceived had been holding out?,’’ Mr Tedeschi asked.

“Yes it was,’’ Mr Drumgold replied.

Last year, Chief Justice Lucy McCallum declared a mistrial following allegations a juror undertook research that did not relate to evidence in trial.

The jury was discharged. They were still deliberating and had not reached a verdict.

It is usually an offence to discuss the deliberations of the jury but under the ACT Jury Act officials can give evidence to boards of inquiry and royal commissions as has occurred in this instance.

‘Kill it’: Cops in firing lane over Higgins case

Earlier, Mr Drumgold accused police of wanting to “kill” the investigation of Brittany Higgins’ rape claim, telling an inquiry one cop claimed he felt “physically sick” when Bruce Lehrmann was charged.

The inquiry has also separately heard another senior cop Marcus Boorman secretly met with Mr Lehrmann’s defence barrister and told him he would “resign” if the jury came back with a guilty verdict.

“If you’re so passionate that you’re going to get physically sick, if your investigation results in charges, how can I have any competence, how can I have any confidence in that investigation?,’’ Mr Drumgold told the inquiry

“These were key people in an investigation. These people ran the investigation. They engaged with the complainant.

Mr Drumgold said that the police had engaged in “sterotypes” about rape complaintaints.

“Their analysis of evidence in documents like the Moller Report display stereotypes analysis, by the way a complainant would behave,” he testified.

“For example, thinking a genuine complainant would never go to the media. Or a genuine complainant would run off and report it and tell everyone immediately.

“These sort of stereotypical beliefs that there is a standard way a sexual assault victim would behave.”

ACT DPP Shane Drumgold at the inquiry today. Picture: NCA NewsWire/Dylan Robinson

Mr Drumgold earlier told the inquiry he initially thought police had improperly sent Ms Higgins’ psychological counselling note to the defence as “deliberate act”.

But he told the inquiry he now believes it was “just a mess up” and was not a deliberate decision by police.

In his fourth day in the witness stand, Mr Drumgold outlined his mounting concerns about the conduct of the police who he believed wanted to “kill it” and the breakdown of his relationship with the detectives working on the case.

He also revealed that prosecutors had concerns about the test police were applying when deciding when to charge and believed it was leading to low rates of prosecutions that went well beyond Ms Higgins’ case.

Former Liberal staffer Bruce Lehrmann was charged in relation to the matter in August, 2021. He pleaded not guilty and maintains his innocence.

During a hearing on Thursday, Mr Drumgold’s barrister Mark Tedeschi asked Mr Drumgold about his concerns that police had improperly served material in an evidence brief to police that should not have been provided.

Drumgold has accused of police wanting to “kill” the investigation of Brittany Higgins’ rape claim, an inquiry has heard today. Picture: NCA NewsWire/ Dylan Robinson

This included Ms Higgins’ private psychological counselling notes which cannot be provided to the police or the DPP and a video of a record of interview instead of a transcript.

“Concerning the service of Ms Higgins as counselling notes on the defence you’ve stated that in your view, at the time, you thought that it was a deliberate attempt to undermine the prosecution?’’ Mr Tedeschi said.

“I wanted to ask you, what were the factors that influenced you in coming to that conclusion?”

“At the time that those counselling notes were served on the defence it was really a range of issues,’’ Mr Drumgold replied.

A series of earlier meetings with police caused other concerns.

“So the meeting is not logically about ‘how I can strengthen a case, we actually want to get evidence to weaken the case’ that that was the nature of the conversation,’’ he said.

Mr Drumgold said the police seemed to be saying, ‘we’ve got these text messages and we’re really concerned about these’.

“So, the interpretation that I was placing on it was, ‘we’ve got these text messages, she hasn’t handed a phone over, she’s gone to the media’, our clear view is, ‘this is dead. Let’s get some evidence to kill it’.”

Kate Richardson SC acting for the AFP objected to the evidence and complained it included “highly salacious inferences and vibes”.

The disclosure is now the subject of an Australian Commission for Law Enforcement Integrity.

“What was the next factor that convinced you that this was a deliberate act on the part of the police?’’ Mr Tedeschi said.

Brittany Higgins. Picture: NCA NewsWire/Gary Ramage

He was also concerned about the involvement of very senior police in the decision to serve the brief that included the counselling notes on the defence.

“You’d never seen it in all your time as a prosecutor?’’ Mr Tedschi asked.

“That’s correct. I’ve never seen it,’’ Mr Drumgold replied.

However, when asked to detail his current state of mind about the improper disclosures to the defence, Mr Drumgold said he now believed having read the police witness statements to the inquiry that it was “just a mess up”.

Phone fight

Mr Drumgold said that an early issue that resulted in tension between police and Ms Higgins was her reluctance to hand over her mobile phone for forensic examination.

“I think what they were assuming was that anybody who is genuinely a complainant would hand over their phone freely,’’ Mr Drumgold said.

“But to my mind, there were many reasons why someone who was a complainant might not hand over her phone freely because of fear that there was material on there that might, particularly in this case find its way into the public domain”.

Mr Drumgold said the reasons for her reluctance to hand over her phone were raised at the trial and included the fact that under sensitive disclosure protocols the Home Affairs Minister Peter Dutton had received briefings when she approached police again in 2021.

Deleted text messages

Mr Drumgold said if there was any evidence of material being deleted from her phone that it was properly raised at the trial.

He added there were rational reasons why someone might not want to hand a phone over.

“There might be intimate things on a phone that people might not want to hand over,’’ he said.

“Someone might be hesitant to hand over intimate things.”

Media contact

Mr Drumgold rejected claims that Ms Higgins went to the media before she went to police.

While this claim had been repeatedly raised in the media, the DPP said it was not true because she had gone to police first in 2019.

“Going to the media first is not an accurate description,’’ Mr Drumgold said.

“The complainant had been to police first in 2019.”

Mr Drumgold said Ms Higgins speaking to the media before the trial was “not ideal” but did not in his mind damage her credibility.

Asked if she provided an explanation for this, Mr Drumgold said she was concerned about “powerful people”.

“She felt that making a complaint of this nature, my paraphrasing, was that she would be set upon by powerful people and she wanted to have some exposure prior to doing that.”