Sofronoff inquiry: Shane Drumgold took ‘stab’ at Bruce Lehrmann, says Steven Whybrow

Bruce Lehrmann’s defence barrister has accused ACT chief prosecutor of taking a ‘pejorative stab’ at his client and abandoning impartiality, the Sofronoff inquiry has heard.

Bruce Lerhmann’s barrister Steven Whybrow arrives a the Sofronoff inquiry on Tuesday. Picture: NCA NewsWire / Martin Ollman

Bruce Lehrmann’s defence barrister has accused ACT chief prosecutor Shane Drumgold of taking a “pejorative stab” at his client and abandoning impartiality to align himself with former ministerial staffer Brittany Higgins, the ­Sofronoff inquiry has heard.

Steven Whybrow, SC, told the seventh day of the inquiry probing the investigation into the ­attempted prosecution of Mr Lehrmann that he told police the decision to run a second possible trial against his client should not be made by Mr Drumgold.

In other developments on Tuesday, the inquiry released the transcript of a secret Supreme Court hearing over why the high-profile rape trial was sensationally aborted late last year that revealed the juror who brought prohibited material into the jury room had been deeply apologetic.

Evidence also emerged of a heated text message exchange ­between Mr Whybrow and prosecutor Skye Jerome after The Weekend Australian last year published a police review of evidence that included discrepancies in Ms Higgins’ account and concerns over her credibility.

On Tuesday, Mr Whybrow told the inquiry Mr Drumgold was not required to say he believed he had a reasonable chance of convicting Mr Lehrmann for the alleged rape of Ms Higgins when announcing he would not pursue a retrial due to concern for the former ministerial staffer’s mental health.

“I felt like it was a pejorative stab at Mr Lehrmann unnecessarily,” he said.

Mark Tedeschi, KC, who is representing Mr Drumgold, said the landmark Royal Commission into Institutional Responses to Child Sexual Abuse recommended directors of public prosecutions explain their decisions to lower the risk of communities ­losing faith.

Mr Whybrow said he understood Mr Drumgold’s concern for Ms Higgins and said he had held similar concerns for the welfare of Mr Lehrmann.

Prosecutors Shane Drumgold and Skye Jerome during the rape trial in Canberra in October 2022. Picture: AAP

“Both the complainant and the accused have been subjected to extraordinarily hateful, uninformed and terrible comments on various platforms,” he said.

When Mr Tedeschi asked Mr Whybrow whether it was clear Mr Drumgold had considerable sympathy for Ms Higgins, he responded: “I was concerned he had aligned himself with Ms Higgins.”

Ms Higgins alleged Mr Lehrmann raped her on the couch in the ministerial office of their then boss Senator Linda Reynolds in the early hours of March 23, 2019, after a night out drinking with ­colleagues.

The trial was aborted after a juror was found to have brought outside material into the jury room, and Mr Drumgold said on December 2 he would not pursue a second trial citing concern for Ms Higgins’ mental health.

The day after a mistrial was declared, Mr Whybrow said he told prosecutor Skye Jerome he’d mentioned to police that the decision to run a second trial against Mr Lehrmann should be “outsourced”. Mr Whybrow said Mr Drumgold called him later that day seeking to clarify his comments to Ms Jerome. “I was quite short with him,” said Mr Whybrow. “I told him it was none of his business and hung up.”

 

In the text exchange between Mr Whybrow and Ms Jerome, the prosecutor asked Mr Whybrow “Who leaked the documents to The Australian?”, before later ­texting: “Quoting all the police advices. Outrageous.”

Mr Whybrow responded: “Firewalled. None of us. 100%.”

The document, known as the Moller report, included discrepancies in Ms Higgins’ evidence and suggested pol­ice didn’t think there was enough evidence to prosecute Mr Lehrmann.

The report, authored by Detective Superintendent Scott Moller, also said police had concerns about Ms Higgins’ credibility but could not stop the DPP from proceeding with the charge because there was “too much political interference”.

Mr Whybrow doubled down under cross-examination by Mr Tedeschi, saying there was no evidence of political forces influencing the case even if Ms Higgins had perceived a cover-up.

Mr Whybrow said both Senator Reynolds and her former chief-of-staff Fiona Brown had denied improperly handling Ms Higgins’ allegations and reiterated Mr Drumgold should not have referenced political forces in his closing address to the jury. “That might have been Ms Higgins’ perception, but when witnesses were called about this, they all categorically denied it,” he said.

On Tuesday, Mr Whybrow said credibility issues with sexual assault complainants was not uncommon but credibility was not one-dimensional and there had been a number of inconsistencies in the evidence of Ms Higgins.

“It’s hard to think of any cases where there were so many things that the complainant had said which were able to be demonstrated to be wrong or inconsistent or in some times said knowing that (they) were wrong but for a reason,” he said.

Earlier, Mr Tedeschi claimed AFP officers resented Mr Drumgold for establishing a committee to probe sexual assault investigations. “They (AFP) knew (Mr Drumgold had) been responsible for this committee being set up and they were resentful,” he said.