AFP, DPP told to produce material for Board of Inquiry into Lehrmann rape case

The AFP has been publicly reprimanded for refusing to hand over crucial material to the inquiry into the handling of Bruce Lehrmann’s discontinued alleged rape case.

Bruce Lehrmann is attempting to sue two media organisations for defamation. Picture: NCA NewsWire/ Flavio Brancaleone

The Australian Federal Police has been reprimanded for failing to hand over “crucial” material to the board of inquiry into the handling of Bruce Lehrmann’s dropped rape charge.

Just weeks out from the first public hearing, Walter Sofronoff KC, who is conducting the ­inquiry, has directed the AFP and the ACT’s Director of Public Prosecutions to produce material ­requested in subpoenas or explain their legal basis for withholding it.

“I have to complete this ­inquiry by June 30 and I can’t if I don’t know when crucial documents are coming,” he said.

At an urgent directions hearing in the ACT Magistrates Court on Thursday, Mr Sofronoff said the AFP had made only partial production of documents and he was yet to receive the full brief of evidence provided to DPP Shane Drumgold and Mr Lehrmann’s lawyers in relation to Brittany Higgins’ rape allegation. “You’d expect they would contain similar documents but there might be differences and the differences could be significant,” he said.

Counsel assisting Erin Longbottom KC said there was “no ­detail as to what issues they’re grappling with” or what statutes the AFP is concerned about.

But the AFP’s barrister, Katherine Richardson KC, said the agency was working through “large volumes of sensitive ­material” which legislation might prohibit it from producing. “It’s a very complex task that AFP is undertaking,” she said,

The court heard the AFP wants to review its material – ­including more than 100GB of ­unedited video footage and more than 100,000 pages of phone records – before producing it.

“The approach taken by the AFP is … somebody is going to ­review the video recordings that were included in the brief and ­decide whether any part of it is useful to me or not and withhold what is considered not useful to me,” Mr Sofronoff said. “Have I read that correctly?”

Walter Sofronoff KC, who is conducting the inquiry, has directed the AFP and DPP to produce the materials. Picture: Jack Tran

Ms Richardson said the video footage “would swamp the ­inquiry”.

Mr Sofronoff said he needed the full brief that the AFP provided Mr Drumgold and Mr Lehrmann’s lawyers.

“AFP produced their brief pretty quickly to (Mr Lehrmann’s original defence lawyer) Mr Korn and they produced it promptly to Mr Drumgold, and now it’s been two months and I still don’t have the documents,” he said.

Ms Richardson said there were “some constraints to producing the entire amount”, including that the brief contained material ­obtained with warrants.

The court earlier heard that the AFP, as a commonwealth ­entity, was not legally obligated to comply with the inquiry’s subpoenas but was willing to co-operate fully. Ms Richardson said the agency was committed to “voluntarily” assisting the inquiry and would produce the material sought in “the next short period”.

Mr Sofronoff set a deadline of April 11 for the AFP to “identify in writing any basis on which it contends that documents requested cannot lawfully be produced”.

Brittany Higgins with her partner David Sharaz and mother Kelly. Picture: NCA NewsWire / Gary Ramage

The inquiry also intends to ­resolve claims of privilege by that date after lawyer Ian Denham “flagged” that his client, Mr Drumgold, was considering claiming legal professional privilege over some of the 137,000 documents captured by his subpoena.

“A large number of documents have been brought into existence for the purpose of criminal proceedings,” he said. “My client wishes to, and will, participate in this inquiry in the fullest way possible, and if that involves ­waiver of privilege he wants to consider that.”

Mr Sofronoff asked when Mr Drumgold ­intended to make those decisions. “When the focus on this ­inquiry becomes clearer,” Mr Denham said. Mr Sofronoff replied: “It doesn’t work that way. I’m going to create a deadline.

“I’m not for a moment saying he doesn’t have a proper claim, but I need to know what it is so we can engage on it and deal with it one way or another.”

The inquiry is also seeking audio recordings or transcripts of phone calls between Mr Lehrmann’s defence barrister, Steven Whybrow SC, and Detective Superintendent Scott Moller who reportedly believed there was ­insufficient evidence to prosecute Mr Lehrmann.