Relations between ACT Police and DPP ‘beset by tension’ over Brittany Higgins’ rape claim

The inquiry into Bruce Lehrmann’s prosecution was sparked by an explosive complaint from the ACT DPP.

The inquiry into the prosecution of Bruce Lehrmann has begun. Picture: NCA NewsWire/ Flavio Brancaleone.

Perceived weaknesses in evidence against Bruce Lehrmann and disagreement over whether he should be charged with raping Brittany Higgins are at the heart of conflict between the ACT’s Director of Public Prosecutions and the ACT Police.

The first public hearing at the Board of Inquiry into the ACT’s criminal justice system on Monday heard that in the immediate aftermath of Mr Lehrmann’s rape trial being aborted, DPP Shane Drumgold complained to ACT Chief Police Officer Neil Gaughan about his officers’ conduct before and during the criminal proceedings.

Ms Higgins, a former Liberal Party staffer, alleged Mr Lehrmann raped her in senator Linda Reynolds’ ministerial office in the early hours of March 23, 2019, after a night out drinking with colleagues in Canberra. Mr Lehrmann pleaded not guilty to sexual intercourse without consent.

Brittany Higgins alleged Bruce Lehrmann raped her in Senator Linda Reynolds’ ministerial office. Picture: NCA NewsWire / Gary Ramage.

The 28-year-old’s trial was aborted in October due to juror misconduct and immediately listed for a retrial in February.

Counsel assisting Erin Longbottom KC told the inquiry that in the complaint letter, sent on ­November 1, Mr Drumgold claimed that police had conducted 18 months of “inappropriate interference” in Mr Lehrmann’s prosecution.

“In that letter Mr Drumgold contended, amongst other matters, that at a meeting in relation to the proceeding police cherry picked elements of potential evidence advanced as constituting weaknesses in the case; that in a ­request for advice from the DPP police provided blatant misrepresentations of evidence and made an overt attempt to apply pressure to the conclusion of that advice; and that during the conduct of the trial, a number of disturbing events occurred including constant, exclusive, direct engagement from the police with the defence rather than the prosecution,” Ms Longbottom said.

Mr Drumgold called upon Commissioner Gaughan to issue a direction that all police “remove themselves from any engagement in the matter beyond being called as witnesses for the prosecution”.

He also sought an undertaking that officers involved in the case have no further contact with the defence, other prosecution witnesses or the complainant and that he prohibit police from attending the retrial beyond giving evidence.

Mr Drumgold then announced on December 1 that he would not prosecute the case again due to the impact it would have on Ms Higgins’ mental health.

Commissioner Gaughan, who attended Monday’s hearing, welcomed the inquiry but asked for it to also consider the actions of the DPP and Victims of Crime Commissioner Heidi Yates in the criminal proceedings as well as issues leading to delays in the trial, the subsequent mistrial and the DPP’s decision not to proceed with the retrial.

ACT DPP Shane Drumgold leaves the ACT Supreme Court last October. Picture: AAP.

Ms Longbottom emphasised the inquiry was not investigating Ms Higgins’ rape allegation.

“It is only concerned with the way in which each of the criminal justice agencies involved fulfilled their duties in the investigation and prosecution of those allegations as well as in the course of providing support to Ms Higgins in that proceeding,” she said.

Ms Longbottom said Ms Higgins’ allegation had drawn intense public interest due to the prominent location of the alleged ­offence and its timing amid the #MeToo movement and intense public discourse about sexual violence against women, specifically in Canberra.

She said the need for regular communication and collaboration between police and the DPP was formally recognised.

“But you will hear evidence that, from the outset, engagement between the DPP and ACT Police in this matter was beset by tension,” she said. “Those involved in the meetings appear to have somewhat different perceptions of what occurred.”

She said that points of conflict include the following:

“Whether it was proper for ACT Policing to conduct a second evidence in chief interview with Ms Higgins as they did on May 26, 2021,” she said.

“Confusion about whether Mr Lehrmann should be charged;

“How matters affecting the credibility of Ms Higgins were to be treated by police when deciding whether to charge Mr Lehrmann and by the DPP when deciding whether to present an indictment;

“The delivery of the brief to lawyers for Mr Lehrmann once he was charged on August 6, 2021, but before he entered a plea;

“That brief included counselling notes that were prohibited from disclosure without the court’s leave … and the apparent close engagement between the investigating officers and lawyers for Mr Lehrmann during the trial that led to some distrust for police and the DPP.”

The inquiry will consider whether police failed to act in accordance with, or in breach of their duties. It will also consider Mr Drumgold’s conduct before and during the trial.

Walter Sofronoff KC, who is conducting the inquiry, will begin four weeks of public hearings on May 1, and will deliver his findings by June 30.