Former judge Walter Sofronoff KC finds police were right to charge Bruce Lehrmann but lashed DPP’s conduct

A landmark inquiry into the trial of Bruce Lehrmann has found the prosecution was properly brought but made damning findings.

EXCLUSIVE

A landmark inquiry into the trial of Bruce Lehrmann has found the prosecution was properly brought but made damning findings about the conduct of the Director of Public Prosecutions Shane Drumgold.

Sources who have been briefed on the contents of the report have told news.com.au that Walter Sofronoff KC, a former Supreme Court judge in Queensland, finds that police acted lawfully when they charged Mr Lehrmann.

It also finds that the decision of the Office of the Director of Public Prosecutions to prosecute based on the evidence available was correct.

Bruce Lehrmann outside the ACT Civil and Administrative Tribunal in Canberra. Picture: NCA NewsWire / Martin Ollman

That finding is not a reflection on the guilt or innocence of the former Liberal staffer.

It is a finding on the conduct of the police and the Office of Director of Public Prosecutions.

Mr Lehrmann remains an innocent man under the law as he was never convicted before the trial collapsed following an allegation of juror misconduct.

He always maintained his innocence and told police nothing sexual occurred.

Sofronoff findings on police decision to charge

In his final report, Mr Sofronoff notes that no person before him said the prosecution should not properly have been brought.

The former judge states that he had reviewed the brief in its entirety and has found that the prosecution should have been brought.

During the ACT board of inquiry, chairman Walter Sofronoff reminded lawyers present he was not holding an inquiry into Bruce Lehrmann’s guilt or innocence.

“I’m not interested in how the trial should have concluded. I am not interested in whether Mr Lehrmann is guilty or not guilty. I’m not interested in Miss Higgins,” he said.

“However, I have to deal with the question of whether the charge should have been brought.

“Can I ask if anybody is going to be submitting at the end that I should conclude that Mr Drumgold ought not to have submitted an indictment?’’ Mr Sofronoff asked during a hearing in May.

No barristers present said they planned to suggest that Mr Drumgold should not have presented an indictment.

“Nobody has suggested the contrary. And I don’t read in the police evidence that any witness asserts to the contrary.”

Walter Sofronoff QC. Picture: Tara Croser

The Sofronoff inquiry was established by the ACT government in the wake of the abandoned prosecution of Mr Lehrmann. A single charge of sexual assault was dropped by the DPP late last year.

The Director of Public Prosecutions’ barrister Mark Tedeschi SC also told the inquiry it was reasonable for the police to charge and the DPP to prosecute.

“It was a case that was overwhelmingly in need of charging,’’ Mr Tedeschi told the inquiry.

In making these arguments, he was not making any reflection of the guilt or innocence of the man accused, who maintains his innocence.

Rather, Mr Tedeschi was arguing that the police response was in fact emblematic of a deeper problem in the Australian Federal Police at the time.

Mr Tedeschi said it was only because of the publicity that the DPP reviewed the case and expressed the view that there were grounds to charge.

Brittany Higgins with former boss Steve Ciobo.

Higgins at the Canberra Women’s March 4 Justice in 2021. Picture: Getty

In fact, it was Mr Tedeschi’s submission to the inquiry that this was “to highlight to you, Chairman, how bizarre the police approach was.

“And that this was a classic example of it,’’ he said.

Mr Tedeschi argued the ACT police were undercharging rape complaints and if it wasn’t for the publicity Ms Higgins may have faced a similar fate.

“Had it not been for all the publicity, had it not been that the alleged offence occurred in Parliament House, this matter would have been dealt with like the other – I think it’s 250-something matters that had been, in effect, just ignored by the police.”

The Board of Inquiry report will examine what really went on behind the scenes of the nation’s most high profile rape trial in Australian history and featured weeks of bombshell evidence from the DPP, police and the Victims of Crime Commissioner Heidi Yates.

It was handed to the ACT Government on Monday. The Barr Government has decided against the immediate release of the document, a decision that has been criticised.

Bruce Lehrmann. Picture: NCA NewsWire / Gary Ramage

Lehrmann plots multimillion dollar compo case

The expected finding that the charge and the prosecution was properly brought follows Mr Lehrmann’s public comments that he plans to lodge a multimillion-dollar claim for compensation against the ACT Office of the Director of Public Prosecutions (ODPP).

“I will be guided by the report and call for its release as a matter of urgency,’’ Mr Lehrmann said.

“If it finds the director acted with malice or against his duties as DPP and as an officer of the court, I will be considering a multimillion claim for damages and compensation from the ODPP and the ACT government.”

Ms Higgins secured compensation believed to be worth more than $2m from the Commonwealth last year after arguing the Morrison Government mistreated her during her employment.

The former Liberal staffer Mr Lehrmann, who is now suing the ABC and Channel 10 for defamation, called for the report to be released immediately in the wake of revelations that ACT government may suppress the findings while it mulls the future of Mr Drumgold.

On the weekend, Mr Lehrmann complained on Instagram about the plan to delay the release of Mr Sofronoff’s report.

“Absolute disgrace! I remember someone saying that sunlight is the best disinfectant … The Drumgold protection racket continues. The chief minister should hang his head in shame,’’ he said.

Director of Public Prosecutions Shane Drumgold SC. Picture: NCA NewsWire / Martin Ollman

DPP Shane Drumgold faces damning findings

The report is expected to consider and make findings on grave allegations regarding the conduct of Mr Drumgold during the trial including claims he tried to withhold material from the defence and told the ACT Supreme Courts that notes of meeting with Lisa Wilkinson before her Logies speech were contemporaneous when they were not.

Police made mistakes but not malicious

It will also find that the Australian Federal Police made errors and mistakes but this conduct was not malicious. This includes the decision to hand Ms Higgins private counselling notes to his original defence team and the improper disclosure of a video of an interview with police.

One of the most senior police involved in the investigation of Ms Higgins’ rape allegation admitted during the hearings that providing her private counselling notes to the defence legal team and prosecutors “was a mistake”.

In his first day of evidence, Detective Superintendent Scott Moller also revealed investigators initially didn’t think there was enough evidence to charge Mr Lehrmann, who maintains his innocence.

But he told the inquiry he was subsequently personally convinced by Mr Drumgold that “reasonable suspicion” of a crime was present.

CCTV footage Ms Higgins being signed in at Parliament House Canberra. Pictures: Seven Picture – Seven News Spotlight

The disclosure of the counselling notes is now the subject of a probe by both the Sofronoff inquiry and the Australian Commission for Law Enforcement Integrity.

“Look, we shouldn’t have given them and that’s that, that’s the bottom line we shouldn’t have handed them over,’’ Det Supt Moller said. “And it’s a mistake that we made.”

Police ‘confusion’ over charge test

Police officers who investigated Ms Higgins’ rape allegation also admitted during the inquiry that they did not understand the legal test required to charge a suspect.

Senior Constable Emma Frizzell, who works in the Australian Federal Police sexual assault and child abuse team (SACAT), told the inquiry that she had believed the legal test to charge a suspect was having a reasonable belief the evidence supported the prospects of a conviction.

However, she told the inquiry she now understood she was wrong.

“I would concede that I don’t have it right. What I’ve written in my statement is not right,” Sen Cont Frizzell told the inquiry.

Asked if there was still confusion among police about what the legal test to charge a suspect is, Sen Const. Frizzel said: “Yes I would say that there is.”