Sofronoff inquiry: Shane Drumgold accused of withholding crucial documents

Bruce Lehrmann’s lawyer says the withheld police documents exposed discrepancies in Brittany Higgins’s rape claims.

Bruce Lehrmann’s lawyer Steven Whybrow. Picture: NCA NewsWire / Gary Ramage

In a damning submission to the Sofronoff inquiry, Bruce Lehrmann’s lawyer has accused chief prosecutor Shane Drumgold of withholding crucial police documents that exposed discrepancies in Brittany Higgins’s rape claims and of alleging political interference and cover-up by Liberal ministers when there was no evidence of it.

Among the explosive claims made by barrister Steven Whybrow:

• That during a break in the trial Mr Drumgold, the ACT Director of Public Prosecutions, called investigating police “boofheads”

DPP Shane Drumgold leaving the inquiry. Picture: NCA NewsWire/Dylan Robinson

• That a senior police officer investigating the case was so distressed about the prosecution that he said he would resign if Mr Lehrmann was found guilty;

• That Mr Whybrow was never told a key witness had complained to the DPP about “a serious misrepresentation” by Ms Higgins on the witness stand and had sought to have it corrected, a failure that “undermined the integrity and fairness of the trial”;

• That Ms Higgins had been allowed to make allegations about former Liberal ministers Linda Reynolds and Michaelia Cash that were demonstrably fabrications, and that evidence from the witness would have contradicted her claims;

• That the evidence of Senator Reynolds and Ms Cash was “strategically deployed for the purposes of making submissions about political interference and cover up where there was in fact no objective evidence supportive of this notion”;

• That Mr Whybrow was “somewhat cynical” about Mr Drumgold’s announcement that there would be no re-trial given that Mr Lehrmann had just filed a particular application with the court, the details of which are still suppressed;

• That when Mr Drumgold’s decision not to re-try was leaked to the media and an angry Whybrow asked if the source was Ms Higgins’ boyfriend, David Shiraz, Mr Drumgold replied “It must be!”

• That during the trial, Mr Whybrow received an anonymous threatening email that he found so disturbing he asked police to help track down the author.

Mr Drumgold is currently giving evidence at the inquiry, headed by Walter Sofronoff KC, with Mr Whybrow likely to follow later in the week.

On Monday Mr Drumgold was ­accused of making false statements to trial judge Chief Justice Lucy McCallum in a hearing last year over Lisa Wilkinson’s Logies speech.

The DPP is facing intense scrutiny over whether he properly disclosed ­relevant material to the court and the defence.

Bruce Lehrmann leaves the ACT Civil and Administrative Tribunal in Canberra. Picture: NCA NewsWire/Martin Ollman

Mr Whybrow’s 75-page statement to the inquiry claims that Drumgold withheld a key police document from the defence that detailed “many inconsistencies in (Brittany Higgins’) evidence” and should have been disclosed.

In his statement, Mr Whybrow records that he was present when the legal team realised there was a crucial missing document. “I always regarded this material as being both relevant and disclosable.”

The Inquiry has already heard how the disclosure certificate had been altered to delete the crucial police ‘Investigative Review’, described as “versions of events as supplied by Ms Higgins … against the available evidence and subsequent discrepancies”.

The team immediately filed a claim to access the document but were stonewalled by the DPP at every turn, according to Mr Whybrow.

In his statement to the Inquiry, the barrister recounts an exhaustive legal battle to obtain the document despite the police agreeing it should be disclosed.

At a hearing on 8 September 2022 Mr Drumgold told the court the document had been listed on the disclosure certificate “in error” and that was why it was removed.

“It is the AFP’s legal professional privilege and it is not an issue for us,” he said.

Frustrated, Mr Whybrow rang the ACT Police Manager of Criminal Investigations, Detective Superintendent Scott Moller.

“I decided to try and speak with DS Moller directly given we had been asking for this document since June and I was becoming increasingly frustrated and was not satisfied with the explanations being provided about why it disappeared from the Disclosure Certificate and was not being disclosed,” Mr Whybrow says.

“I gained the clear impression DS Moller was of the view this was important material that should be disclosed to the defence and the roadblock to its production was not the Police but the DPP and/or (Office of the) DPP.”

“I am aware that the AFP made no claim, at any time, of legal professional privilege over the Investigative Review Document”, Mr Whybrow says in his statement to the inquiry.

Mr Whybrow says he found DS Moller to be “transparent, objective and entirely appropriate in his conduct” and that he had no issues with the professionalism of police involved in the case.

Brittany Higgins. Picture: AFP

By contrast, Mr Whybrow had long been worried about the direction the DPP was taking the case, including his actions following TV presenter Lisa Wilkinson’s “inflammatory and prejudicial” Logies speech in June, just before the trial was supposed to have begun, as well as various public statements by Ms Higgins.

“I am concerned that Mr Drumgold SC did not act as an objective ‘minister for justice’”, he writes in his statement. “In my opinion the DPP failed to take adequate steps to either mitigate the adverse publicity or counsel Ms Higgins (or her supporters) to cease making public statements about the matter.

In a file note of a conversation with Scott Moller three weeks before the trial began Mr Whybrow told the policeman: “I suspect the trial is going to be a bloodbath and that when it’s over it won’t be the end of it and there will undoubtedly be inquiries afterwards as to how and why it was able to get this far.”

Mr Whybrow says he told DS Moller the evidence suggested Brittany Higgins “has told a multitude of lies”.

“Going through the brief was a bit like panning for gold in Ballarat in the 1800’s from the defence perspective – every time you dip the pan in the river you find gold nuggets,” he told the policeman.

“It would not be a good look for the AFP if it was later revealed that an important document setting out the many inconsistencies in BH evidence had been withheld from the defence and it hadn’t been privileged,” he told DS Moller.

DS Moller agreed, Mr Whybrow says, “and confirmed that in his view the review document was one the defence should have and it wasn’t prepared by him to get legal advice on. It was a summary of the various issues he had identified with the versions given by BH. He did not say this explicitly but it was clear to me that he held my own concerns about the veracity of her allegations.”

Mr Drumgold’s conduct during the trial confirmed his suspicions.

Mr Whybrow alleges that evidence from former Ministers Linda Reynolds and Michaelia Cash was “strategically deployed for the purposes of making submissions about political interference and cover up, where there was in fact no objective evidence supportive of this notion.”

Ms Higgins had been allowed to give evidence that Ms Cash knew of the allegations of sexual assault and that Senator Reynolds had sent her away to WA during the election campaign to isolate her for political purposes “objective material available to the defence suggested this was all a fabrication.”

Mr Whybrow was not permitted to cross-examine Ms Higgins on her claims, and Mr Drumgold had both politicians declared hostile witnesses.

That was “grossly unfair” to the defence, he said.

“There was, to my knowledge, nothing to indicate that Ms Cash and Ms Reynolds were anything other than honest and truthful witnesses who gave evidence consistent with prior statements they had given.”

Mr Drumgold’s treatment of the police raised further alarm for Whybrow.

During a break in the trial when Drumgold and Whybrow discussed what evidence might be led from two of the investigators, Marcus Boorman and DS Moller, Mr Drumgold said: ‘Any opinion by those boofheads about the strength of this case is not admissible.”

Mr Drumgold denigrated the police in court during the trial, remarking that the quality of the police interview with Ms Higgins “is determined by the skillsets of those police officers asking the questions … which in this case was not high.”

“I regarded the comment as pejorative, unjustified and inappropriate, particularly as it was made in front of the jury,” Mr Whybrow says. “It was my assessment that the second (police) Interview with Ms Higgins undermined (to a significant degree) the credibility of Ms Higgins and necessarily therefore the prosecution case. This comment, in front of the jury, could only tend to undermine the weight the jury might give to this evidence.”

On 19 October, the day the jury retired to consider its verdict, Mr Whybrow received a call from The Australian asking him about the Investigative Review document. Mr Whybrow declined to comment but alerted Detective Inspector Boorman, the investigation manager assigned to the case.

Six days later, on Tuesday 25 October, with the jury still out, DS Boorman sent him a message asking if he could have a chat over a coffee.

“Anywhere but Two Before Ten,” DS Boorman responds, referring to a café just across the road from the DPP’s office. They met instead at midday in a coffee shop further away, in Farrell Place.

“When I saw him, he appeared to me to be anxious and agitated and concerned we not be seen speaking together in direct line of sight of the Office of the DPP,” Mr Whybrow says.

“DI Boorman indicated to me that he was quite distressed about this prosecution and considered that Mr Lehrmann was innocent. He made several other comments along these lines and I recall he said words to the effect “if the jury comes back with a guilty verdict, I’m resigning.””

“I had never before had a conversation with a Police officer who had indicated that they were going to resign because they had been ordered to prosecute someone they considered was innocent,” Whybrow says.

The policeman didn’t have to go through with his threat to quit - two days later the trial was aborted due to juror misconduct.

A furious Chief Justice McCallum expressly warned there should be no further public comment pending the retrial set down for February.

Ms Higgins walked out of the court and made a prepared speech to the media, falsely claiming, among other things, that Mr Lehrmann’s phone, unlike her own, had not been seized or examined by police.

Those “egregious comments” required the DPP to take immediate and proactive steps to correct the public record and take steps to stop Ms Higgins making any such statements going forward. But that did not happen.

It was only after the trial had been abandoned that Mr Whybrow became aware of other critical developments that had occurred behind the scenes.

He learnt a key witness in the trial, Linda Reynolds’ chief of staff, Fiona Brown had emailed the ODPP about “a serious misrepresentation” by Brittany Higgins in the trial and sought it be corrected.

The Australian has previously revealed how Brown accused Drumgold of threatening and intimidating her after she left the witness box on a morning tea break, and of ignoring her pleas to be recalled to the stand to refute “blatantly false and misleading” evidence by Brittany Higgins.

But Mr Whybrow says the ODPP never told him of Ms Brown’s complaint. He only found out when Ms Brown contacted him six weeks later because “she did not know who else to turn to.”

“Although I did not know it at the time, it appears that the ODPP ignored the Brown email despite it clearly raising serious issues going to the credibility of Ms Higgins, which was the key issue in the trial. I contend that the Brown email ought to have been disclosed to the defence and the failure to do so undermined the integrity and fairness of the trial,” Mr Whybrow says.

Mr Whybrow was also unaware that Ms Higgins’ evidence at the trial was being video recorded. He only discovered it when the jury was several days into its deliberation and he asked the Chief Justice’s associate to confirm the testimony had not been recorded. The associate informed him it had been.

After the mistrial, media reports suggested that because Ms Higgins’ evidence had been recorded she might not need to attend court for the retrial.

When Mr Lehrmann’s solicitor wrote to Mr Drumgold asking who had authorised the recording, on what basis it had been recorded or might be used in a retrial, Mr Drumgold wrote back: “I am at a complete loss as to why these questions are being directed towards myself or my office”; and sarcastically suggested: “if you have any enquiries about legislative provisions, that you seek advice from counsel.”

Mr Whybrow also never knew that Mr Drumgold had written to ACT police chief Neil Gaughan on 1 November 2022, just days after the mistrial was declared, demanding police on the case have no further contact with the defence.

Mr Whybrow only learnt about the letter when it was published by The Guardian in December “and presumably would have remained unknown to the defence if a second trial had taken place.”

Mr Whybrow said he was “concerned about the circumstances by which The Guardian received and published the letter and the fact that, when released, pursuant to an apparent Freedom of Information request, the name of every person referred to in the letter, including Mr Drumgold SC’s junior counsel, was redacted except for mine.”

Mr Whybrow also expressed concerns that it was “wholly inappropriate” for Mr Drumgold in his press release after the mistrial in which he “expressed an opinion regarding the prospects of a conviction of Mr Lehrmann.”

“That expression of opinion only served to further demonise Mr Lehrmann, in the eyes of some members of the community, in circumstances where he would now be denied the possibility of being acquitted.”

Mr Whybrow thought there should never have been an order for a retrial.

“Furthermore, I was of the view it would be inappropriate for Mr Drumgold SC to make any decision going forward as to the continuation of the prosecution having regard to the concerns I have already raised in this statement as to his conduct up to and including discharge of the jury.”

On 1 December 2022 Mr Whybrow received an email from Mr Drumgold asking him to attend a meeting in the chambers of the Chief Justice, where the DPP announced that he had “recently received medical reports from two psychologists/psychiatrists”.

Mr Whybrow notes he was not given access to the reports.

Mr Drumgold then said: “I plan to make a public announcement tomorrow morning.”

Whybrow asked: “Can you let me know what you are going to say?”

However, Chief Justice McCallum expressed the view that “what the Director might say was really not my concern and I replied that I disagreed with her Honour.”

Mr Drumgold said he wanted the news to be completely embargoed until he announced it the following day.

Mr Whybrow says he recalls “being somewhat cynical about the timing of the proposed announcement” given that, at that time, Mr Lehrmann had filed a particular application to the court, the nature of which remains suppressed.

The Australian has previously revealed that in a draft submission prepared for that application by Sydney barrister Arthur Moses SC, Mr Drumgold was alleged to have been “complicit” in a bid by Ms Higgins to prejudice the case against Mr Lehrmann.

The draft submission, dated December 1, was to have been filed the following day but did not proceed given the DPP’s shock decision that he was dropping charges against Mr Lehrmann.

The Australian has been told that Mr Drumgold would have been aware of the central claims against him in the days leading up to his decision not to retry Mr Lehrmann.

That evening, Mr Whybrow was out to an early dinner and at about 8pm was alerted to a story on news.com.au by Samantha Maiden “which revealed the exact matters Mr Drumgold SC had requested not be disclosed due to concerns over Ms Higgins’ safety”.

Mr Whybrow says he was furious. He immediately texted Mr Drumgold, asking whether the source was Ms Higgins’ boyfriend, David Sharaz.

Mr Drumgold replied “It must be! It could not have come from anyone else.”

Mr Whybrow told Mr Drumgold in the same text exchange: “I think he is the person who threatened me but I’m not making that accusation,” to which Mr Drumgold replies: “I truly do not know what to say.”

Mr Whybrow concludes that he is concerned that Mr Drumgold breached his obligation to only commence and continue a prosecution where there are reasonable grounds for obtaining a conviction; his duty of impartiality; his duty of disclosure; his duty to mitigate adverse publicity; and his duty to ensure a fair trial.

Mr Whybrow says he found other staff at the Office of the Director of Public Prosecutions to be responsive and they conducted themselves appropriately.

However, Mr Whybrow was critical of the role played by ACT Victims of Crime Commissioner Heidi Yates.

“Her high profile appearances alongside Ms Higgins whilst entering and leaving Court, and also within the court, by virtue of her statutory office, had, in my view, a real capacity to undermine the presumption of innocence by blurring the clear distinction between a complainant and someone who was already to be considered a victim of crime,” Mr Whybrow said.