Push for Director of Public Prosecutions Shane Drumgold to go over Lehrmann rape trial

A leading criminal lawyer calls for the resignation of ACT DPP Shane Drumgold and an investigation into the decision to prosecute Bruce Lehrmann.

The charges against Bruce Lehrmann were dropped last week. Picture: Getty Images

A leading Canberra criminal lawyer has called for the resignation of ACT Director of Public Prosecutions Shane Drumgold SC and an investigation by the ACT Integrity Commission into the decision to prosecute Bruce Lehrmann for the rape of Brittany Higgins.

Peter Woodhouse, the managing partner of Aulich lawyers, said an investigation by the Integrity Commission was needed after revelations by The Weekend Australian that police believed there was insufficient evidence to prosecute Mr Lehrmann, but could not stop the DPP from doing so because “there is too much political interference”.

The police reservations about prosecuting Mr Lehrmann were expressed in diary notes made by the ACT Police Manager of Criminal Investigations, Detective Superintendent Scott Moller, and in executive briefing notes made by investigators, which included serious concern for the mental health and ­wellbeing of Ms Higgins.

Last week, Mr Drumgold withdrew the charges against Mr Lehrmann, citing concerns for Ms Higgins’ mental health.

On Sunday, Mr Drumgold was reported to have expressed “serious concern about the potentially unlawful sharing of police material” after publication of the documents by The Australian.

Mr Woodhouse said the Integrity Commission “needs to explore whether Mr Drumgold let his own thirst for media ­attention or own political affiliations cloud what is supposed to be his independent judgment in such matters”.

Shane Drumgold has stood by his belief that there were reasonable prospects of securing a conviction in the Lehrmann case. Picture: Martin Ollman

He said it was “astounding” that Mr Drumgold had announced the decision via press conference and asked whether the DPP was “hoping to get on the front foot and was attempting to pre-emptively cover his backside, knowing this fallout and the exposure of the rift between his office and ACT police was coming”.

At his press conference on Friday, Mr Drumgold stood by his belief that there were reasonable prospects of securing a conviction in the case.

However, according to Mr Woodhouse, “what is abundantly clear is that there does not seem to be anybody in the ACT legal system, outside of Mr Drumgold’s office, who shared that view, including senior ­members of criminal investigations in ACT policing”.

“The DPP in jurisdictions such as ours are supposed to be politically independent.”

Mr Woodhouse notes that Mr Drumgold has tenure until December 2025, designed to allow him to operate without political interference, and can be ­removed from office only in exceptional ­circumstances.

“If Mr Drumgold’s decision to prosecute Mr Lehmann has been influenced in any way by political pressure, his position as ACT DPP is not sustainable and he must ­resign. It appears the ACT system is irreparably broken and there is only one way to quickly fix it and to restore public faith in the ­criminal justice system in the ACT. Shane Drumgold must resign as ACT DPP.

The claims of political interference in the case come from notes Superintendent Moller made of a conversation with his boss, ACT Deputy Chief Police Officer (DCPO) Michael Chew, on June 17 last year while discussing the ­Higgins/Lehrmann sexual assault case.

The Lehrmann charges were withdrawn amid serious concern for the mental health and ­wellbeing of Brittany Higgins. Picture: Gary Ramage

“DCPO (Mr Chew) advised he had a meeting with DPP who stated they will recommend prosecution. DCPO stated ‘if it was my choice I wouldn’t proceed. But it’s not my choice. There is too much political interference.”

At that point in the investigation, more than half of the witness list had yet to be interviewed by police, but it appears the DPP, led by Mr Drumgold, had already ­decided to prosecute.

Some media reports of these developments over the weekend wrongly claimed it was solely the decision of the Australian Federal Police to lay charges in the case.

A statement prepared by Detective Superintendent Moller, obtained by The Australian, reveals that on 30 July 2021, Mr Chew “directed that the investigation move to charge Bruce Lehrmann via summons … he stated that this direction was based on legal advice received from ACT DPP and the Independent Investigational Review conducted”.

Mr Woodhouse told The Australian: “Usually the AFP will initially lay a charge and then eventually the brief would go to the DPP and they would become involved. In more serious matters, the charges are laid after consultation with the DPP. And that’s my understanding of what happened here.

“As in, the DPP reviewed the brief before there was a decision to charge Mr Lehrmann and as I understand in this case, the charge would’ve been laid at the direction of the DPP.”

Aulich lawyers have been in conflict with the Australian ­Federal Police this year after a partner in the firm, Ben Aulich, was charged with conspiracy to launder money.

Mr Aulich has pleaded not guilty. His defence team alleges police used illegal actions and entrapment in the operation that led to the charges against him.

That case is still before the courts.

Other senior legal figures have also been highly critical of Mr Drumgold, including prominent Sydney barrister Gray Connolly, who tweeted that his behaviour was “shameful” and had produced “a catastrophic result” in the case.

Mr Connolly echoed the comments of other lawyers that Mr Drumgold’s public statements on the merits of the case were “entirely improper” and that it was “a sad day for the rule of law”.

“Prosecutors speak in court through the cases they make and not through media re cases they abandon. In any serious first-world jurisdiction, Drumgold’s position would be untenable.”

Mr Connolly described Mr Drumgold as “a DPP (who) trashes centuries of prosecutorial ethics and obligations, by simultaneously withdrawing a criminal prosecution in the court & then try to continue it in the media”.

The barrister said the presumption of innocence should extend all the more strongly to a person against whom charges have been withdrawn by the DPP.

“You cannot – even as the most newly admitted lawyer let alone as a very senior prosecutor – simultaneously withdraw a case from the courts and then also try and run that same case in the media. It is simply horrific.”