Higgins DPP threatened me: trial witness

A key witness in the Bruce Lehrmann rape trial has accused Shane Drumgold and an associate of threatening and intimidating her after leaving the witness box on a morning tea break.

Crown Prosecutor Shane Drumgold has been accused of threatening and intimdating a key witness during the Bruce Lehrmann rape trial.

A key witness in the Bruce Lehrmann rape trial has accused the prosecutor of threatening and ­intimidating her as she left the witness box on a morning tea break, and of ignoring her pleas to be ­recalled to the stand to refute what she alleged was “blatantly false and misleading” evidence by Brittany Higgins.

Former Liberal staffer Fiona Brown says ACT Director of ­Public Prosecutions Shane Drumgold SC and an associate berated her for providing “inadmissable evidence” and that Mr Drumgold then tried to use her mental health to discredit her as a witness.

In a formal complaint to the ACT Bar Association, Ms Brown alleges that, prior to the trial, Mr Drumgold was so dismissive of her concerns about the potential ­impact of the upcoming Logies – where TV presenter Lisa Wilkinson’s interview with Ms Higgins was up for an award – that it caused her to break down emotionally during a conference with him.

The explosive allegations are expected to be referred to the board of inquiry established under jurist Walter Sofronoff KC to probe accusations of ­misconduct made against both police and prosecutors involved in the case.

The allegations follow a formal complaint of professional misconduct lodged by Mr Lehrmann against Mr Drumgold, revealed on Wednesday by The Australian, ­alleging the DPP failed to ensure a fair trial and was driven by malice and “political interests”.

The witness claims Mr Drumgold berated her for providing ‘inadmissable evidence’.

During the trial in the ACT Supreme Court last year Ms Higgins gave evidence that she felt pressured by her chief of staff, Ms Brown, and her boss, Liberal minister Linda Reynolds not to pursue the alleged assault, in the context of a looming federal election.

Ms Brown strongly denied in evidence that she had been ­anything but supportive of Ms Higgins, saying she and Senator Reynolds had told Ms Higgins she was within her rights to make a police complaint and would be fully ­supported.

But in her complaint lodged with the ACT Bar Association on December 21 last year, Ms Brown says that midway through giving her evidence she was “berated” by Mr Drumgold and felt “threatened and intimidated as a witness”.

“At 11.16am a morning tea break was declared, as I left the witness box to make my way out of the courtroom, Mr Drumgold and his associate approached me and berated me, stating that I was coming close to providing inadmissable evidence because of the way I was answering the questions,” Ms Brown wrote.

“I felt threatened and intimidated by their approach. The courtroom still had a lot of people in it and I was left humiliated.”

Ms Brown says she returned to the witness box 20 minutes later “shaken by their admonishment of me”. She gave evidence that in a meeting between the pair three days after the alleged rape, Ms Higgins initially denied anything had happened, but two days later volunteered that Mr Lehrmann had been on top of her while they were in Parliament House during the early hours of March 23, 2019.

 

“I said, ‘Oh. Oh my god,” Ms Brown testified. “I said, ‘Are you all right? Has – has something happened you didn’t want to have happen?’ And she just sort of looks at me and sort of goes like this with her – so I can’t say the word, but she’s shaking her head as a ‘no’.”

During a meeting between Ms Brown, Ms Higgins and Senator Reynolds nine days after the alleged rape, the minister had made it clear Ms Higgins was entitled to make a complaint. “(Ms Higgins) was concerned about how this could impact her career and Senator Reynolds said there would be no impact to her career and that she had our full support,” Ms Brown testified.

Ms Brown testified that she was the one who set up the meeting ­between Ms Higgins and Australian Federal Police officers in Parliament House in April 2019.

Ms Brown broke down and was excused from court after Mr Lehrmann’s barrister, Steven Whybrow, read a text message to her from Ms Higgins, expressing her gratitude for Ms Brown’s support.

Ms Higgins gave evidence that she felt pressured by her chief of staff, Ms Brown, and her boss, Liberal minister Linda Reynolds not to pursue the alleged assault.

Three days later Ms Brown emailed the DPP’s office and several staff within it to bring to their “urgent attention” what she called “blatantly false and misleading statements” given in evidence that morning by Ms Higgins.

Ms Higgins had told the court that Ms Brown offered to pay her six weeks’ wages to go to the Gold Coast during the election campaign but if she went there would be no prospect of her returning to work after the election.

“That was 100 per cent said,” Ms Higgins testified. “That was a conversation Fiona Brown and I had and that was the tipping point of me going to Perth.”

Ms Brown told the DPP that simply did not happen. “Neither Minister Reynolds or I had the authority to pay any staff member out. And I did not at any time state or suggest this,” Ms Brown says in her email to the DPP.

“I am deeply troubled by this serious misrepresentation in proceedings and I seek to have them corrected or put to me in court,” Ms Brown requests, in the email attached to the Bar Association complaint, and obtained by The Australian. “Can you please advise what happens (in) times like this?”

Ms Brown says she did not receive a response to her request to correct the record. Four days later, in summing up to the jury, Mr Drumgold cast doubt on Ms Brown’s evidence and why she became emotional in the witness box. “What is clear, members of the jury, is that there are strong political and emotional interests in this case and you need to incorporate this when you are assessing the various witnesses,” Mr Drumgold said. “Fiona Brown, for example, was clearly emotionally invested as a witness to the point that her emotions got the better of her.”

Ms Higgins was one of many “low-level staff” that Ms Brown had managed briefly more than three years before, he told the jury.

“You may then ask why would she be so emotionally invested in an SMS thanking her,” he said. “I guess we do not know why she was clearly emotionally invested to one question but we know that she was not clearly emotionally invested to the other questions that she was asked. Again, we do not know but it is something that you need to consider in assessing her evidence.”

In her complaint Ms Brown says: “During his summation Mr Drumgold chose to use argument and language that cast aspersions on my mental emotional health to discredit me as a witness.”

Ms Brown’s complaints about Mr Drumgold’s conduct began ­before the trial started, in May 2022, when she attended a conference with him for the purposes of “proofing” (aimed at ensuring a witness’ evidence will be effective in court and establishing whether there is a reasonable prospect of conviction).

During that conference Ms Brown says she advised Mr Drumgold of her concerns about the upcoming Logie Awards (on June 19), because an interview with Ms Higgins by TV presenter Lisa Wilkinson had been nominated. That interview, Ms Brown says, caused her harm, reputational damage and great distress.

“Importantly, I spoke about my concerns regarding the airing of and subsequent publicity of uncontested evidence in a court of law being aired during a trial hearing and the day before I was to appear as a witness (20 June 2022) and the impact that could have on me and the jurors.”

“Mr Drumgold was dismissive of my concerns, so much so, that he caused me to emotionally break down during our conference.”

Liberal senator Linda Reynolds leaves the ACT Supreme Court in Canberra in October.

As it turned out, Ms Wilkinson – then listed to appear as a witness in the trial – won the Logie and Mr Lehrmann’s trial was delayed by several months after Chief Justice Lucy McCallum ruled that her victory speech was highly prejudicial to the case. Justice McCallum said the “distinction between an allegation and the fact of guilt has been lost” as she vacated the original trial start date with “gritted teeth”.

A few days later Ms Brown’s lawyers wrote to Mr Drumgold “to further express my deep concerns about the pressure and effect of this on me as witness.”

Ms Brown’s lawyers pointed out that, during the Logies, the Nine Network had screened an edited version of Ms Wilkinson’s interview with Ms Higgins in which a question about Ms Brown had been spliced against a different answer, further suggesting that Ms Brown had “sought to silence Ms Higgins for political reasons”.

“It gives an impression to prospective viewers and the community at large of (Ms Brown) having acted inappropriately, unprofessionally and dishonestly in relation to Ms Higgins and her allegations,” the lawyers wrote.

The broadcast was likely to “sow doubt in the minds of potential jurors as to the veracity of (Ms Brown’s) account of events and her credibility, whilst bolstering that of Ms Higgins and Ms Wilkinson”. “In our view, the actions of Ms Wilkinson and the respective networks are capable of amounting to a very serious contempt,” the lawyers said.

Ms Brown’s complaint to the ACT Bar Association says that her request for a meeting to discuss these issues was answered with an offer to meet seven to eight weeks later, which she found to be “dismissive of my concerns given the matter was ‘live’ in the media and impacting trial dates”.

It is understood Ms Brown is yet to receive a substantive response to her complaint.

Ms Brown is not the first to suggest that Mr Drumgold failed to take effective action to stop prejudicial publicity in the case. In his complaint to the ACT Bar Council, Mr Lehrmann says his former lawyer John Korn had a phone conversation with Mr Drumgold the day before Ms Higgins was to address the National Press Club, to establish whether he would provide a warning to Ms Higgins.

“His reply to Mr Korn was remarkable,” Mr Lehrmann says. “The director indicated it was not his place to tell her what to do or say in the media.”

In considering whether to delay the case after the Logies debacle, Chief Justice McCallum heard evidence from Mr Drumgold that he warned Wilkinson at a pre-trial conference that the ­defence could issue a stay application “in the event of publicity” around Ms Higgins’ allegations.

On a letter to Justice McCallum obtained by The Australian, Network Ten chief content officer Beverley McGarvey disputes any such warning was given.

“Neither Ms Wilkinson nor the Network Ten senior legal counsel present at the conference with the DPP on 15 June 2022 understood they had been cautioned (by Mr Drumgold) that Ms Wilkinson giving an acceptance speech at the Logie Awards could result in an application being made to the court to vacate the trial date,” Ms McGarvey said.

The trial was aborted in October 2022 due to juror misconduct.

Mr Lehrmann pleaded not guilty and has at all times denied the allegations. The DPP has now withdrawn the charges.

Mr Drumgold was approached for comment.