DPP Shane Drumgold worried police opinions would ‘crush’ Brittany Higgins
The DPP admits he didn’t want a document containing a police officer’s ‘pejorative’ opinions about Brittany Higgins to ‘fall into the hands’ of Bruce Lehrmann’s lawyers.
ACT chief prosecutor Shane Drumgold did not want a document containing a senior police officer’s “gratuitous stereotyping” of Brittany Higgins’ credibility to fall into the hands of Bruce Lehrmann’s lawyers because of the “crushing” impact it would have on her.
In a dramatic second day of testimony to the Sofronoff inquiry, the Director of Public Prosecutions conceded he may have “unintentionally” misled the ACT Supreme Court over an affidavit seeking to prevent the so-called Moller Report being given to Mr Lehrmann’s defence team.
The report contained details about Ms Higgins’ allegations she had been raped by Mr Lehrmann, including discrepancies in her statements to investigators.
But Mr Drumgold claimed his fears about the document’s impact on Ms Higgins were not the reason he told a court it was covered by legal professional privilege and not disclosed to the defence.
“Because essentially, it says a senior police officer – through a stereotype bias analysis – has drawn particular conclusions about a complainant. I mean it’s potentially terribly harmful to a complainant,” he said.
“I had some concerns that this would be crushing to the complainant.”
Mr Drumgold said he believed an Australian Federal Police investigative review document – the Moller Report – was subject to a claim of legal professional privilege because it was created for the dominant purpose of receiving legal advice from him.
But Mr Drumgold acknowledged he had claimed the reports were privileged without having seen them and without checking with detective superintendent Scott Moller, who wrote them.
Mr Drumgold appeared in court to oppose a defence application to disclose the Moller Report, relying on an affidavit sworn by a junior lawyer in his office, Mitchell Greig, that the document had been included on a disclosure certificate in error because it should have been the subject of legal professional privilege. But Mr Greig did not state the source of the information in his affidavit.
Counsel assisting, Erin Longbottom KC, asked Mr Drumgold: “Could it be that there was no source for that information – you simply told Mr Greig to include it in his affidavit?”
Mr Drumgold: “Look, I mean, I’m ultimately responsible for this but I think you might be overstating my input into the preparation of documents, but I accept that I would be ultimately responsible for it.”
Inquiry chief Walter Sofronoff KC observed: “It’s pretty plain that but for that instruction, Mr Greig didn’t have a clue whether the documents were privileged or not privileged and it’s plain then that when he says ‘I’m informed’, he’s simply following the instruction. Because it looks like he was informed by police.”
Ms Longbottom said Mr Drumgold must accept that the affidavit had the capacity to mislead the court.
“It is suggesting that there is an ACT police source of information about a series of facts that led to these documents being included (for nondisclosure) where there just was no source for that information – it was just you. And a statement like that is misleading to the court.
Mr Drumgold: “Well, I don’t know – unintentionally. I mean, we do aim to have no errors at all ever – sometimes we may fall short.
Mr Drumgold also said it “never occurred” to him to tell Ms Higgins that he had read her confidential counselling notes, or to recuse himself from prosecuting the case after reading them.
At Mr Lehrmann’s first court mention in September 2021 his lawyer at the time, Warwick Korn, informed Mr Drumgold he had already been served a brief of evidence.
Mr Drumgold’s statement, tendered to the inquiry, said he was “shocked” that police had provided the brief directly to the defence, circumventing the normal “checks and balances”.
The DPP then made frantic enquiries to ascertain whether police had provided potentially protected evidence to Mr Lehrmann’s lawyers.
He said that although the disclosure to the defence was probably inadvertent he “needed to establish that it might be relevant to the credibility of one of the police involved, for example”.
“I already knew that one or more police had taken a particular preliminary view on the brief and I now knew that consequent to that some protected material had been served. Now I’m asking myself are those two things connected?”
Mr Drumgold said he was suspicious because Ms Higgins “had raised concerns that information was deliberately being disseminated by police and that goes back to her reservation in handing over her phone.”
Asked whether he thought that was objectively a realistic concern, Mr Drumgold replied: “It was a possibility.”
Mr Drumgold’s office identified that Ms Higgins’ sensitive counselling records — that ought not to be produced to anybody without a judge’s order — had been disclosed to the defence.
The inquiry heard that counselling communications are considered a “protected confidence” and are subject to “very tight” statutory protections and can no longer be disclosed for the purpose of criminal proceedings.
Mr Drumgold said that while he was worried about the defence reading her protected counselling communications, he never considered it a statutory breach that he had read them.
Mr Sofronoff told Mr Drumgold: “It seems to me, potentially, the statute is being ignored by police in getting them and by you perhaps in receiving them. It didn’t occur to you that this was a breach of the statute?”
Mr Drumgold: “I was not looking at it through that prism.”
Mr Sofronoff: “At any time, from the beginning to the end of the trial, did it occur to you that the documents had been wrongly disclosed to you?”
Mr Drumgold: “Probably not, no.”
Mr Sofronoff: “Well it didn’t, did it?”
Mr Drumgold: “No, well I don’t know what my state of mind was, sitting here today. That didn’t go through my thought processes.”
Ms Longbottom: “Am I right to understand that, being put on notice by a junior solicitor in your office that these are protected confidences, you decided the best course was to read them?”
Mr Drumgold: “At the time, I was trying to work out the immediate damage.”
Mr Drumgold said once the documents had been disclosed he had to look at them in order to work out how much harm had been done and what remedy was required.
Mr Sofronoff pointed out that if Mr Drumgold, as prosecutor, had become aware that one of his witnesses had said something in evidence that was materially inconsistent with something in the document, he would be obliged to hand that document to the defence – but would be unable to do so because of the statutory provision.
“You would sit as the one person in the courtroom aware of the inconsistency?”
Mr Drumgold: “Potentially, yes.”
“How would you handle that problem?”
“I don’t know. I don’t know.”
Mr Sofronoff: “One thing you could have done is disqualified yourself from running the case and let another prosecutor who hadn’t read the document.”
“Yes I could have done that.”
Mr Drumgold said that once the counselling records were improperly disclosed to the defence, he had to read them to “work out what the remedy was required”.
The inquiry continues.
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