Lehrmann inquiry makes ‘serious’ misconduct findings against top prosecutor

The inquiry into the criminal justice system’s handling of Bruce Lehrmann’s prosecution for the alleged rape of Brittany Higgins has been handed down.

The probe, headed by Walter Sofronoff KC, was released by the ACT government on Monday after extensive leaks to the media last week.

The report was scathing of the handling of the case by former Director of Public Prosecutions Shane Drumgold, who has since resigned.

It found several “serious findings” against Drumgold, including that he breached his duty of conduct and at times “lost objectivity and did not act with fairness and detachment” during the trial.

One of the most damning findings was Sofronoff’s belief Drumgold “deliberately advanced a false claim of legal professional privilege” and “misled the court” during the case.

This refers to when Drumgold tried to stop the defence from obtaining Detective Superintendent Scott Moller’s report on the case – which reportedly found inconsistencies in Higgins’ evidence – by creating a non-disclosure affidavit to protect the document.

Drumgold reportedly directed a junior lawyer in his office to make this “misleading” affidavit.

“Drumgold constructed a false narrative to support a claim of legal professional privilege,” Sofronoff said.

“He egregiously abused his authority and betrayed the trust of his young staff member to whom he owed a duty to be a mentor and role model.”

The report’s 10 recommendations

The damning report features nearly 200 pages of findings and 600 pages of appendices but makes the following recommendations:

1. The Office of the Director of Public Prosecutions should formulate a policy to “define the threshold to charge” for police officers considering a case.
2. To amend the language used in the Victims of Crime Act to include different language to identify the status of an investigation like “when police decide to charge a person with an offence” instead of “a person being charged”.
3. How counselling notes should be stored by police and when these notes can be disclosed.
4. To devise a more consistent approach in compiling briefs of evidence and provide refresher training to all officers on this.
5. Whether disclosing protected confidences (counselling communications made in confidence by a victim of sexual assault) should be banned at certain stages of the criminal process, whether people should be banned from reading protected confidence including if they have been given lawful access without the court’s permission.
6. Modifying disclosure certificates, train Australian Federal Police employees on how to describe material in these certificates, create an easy system to determine and clarify what material falls into the certificate and training on how to best prepare these documents.
7. Protocols be formed to “affirm the desirability” of police witnesses being available to legal representatives for a defendant.
8. To enact legislation to codify the scope and content of disclosures owned by the prosecution in criminal proceedings.
9. Updating the Prosecution Policy to provide a process for recording retrial decisions.
10. To review the Collaborative Agreement to include a complaints mechanism against the Office of Director of Public Prosecution and ACT Police.

ACT government supports eight of the ten recommendations in full, condemns early leak

The ACT government said it supports the 10 recommendations made by Sofronoff and agrees with eight of them and two in principle pending further consultation.

“The recommendations contained in the Report offer a pathway forward for the ACT criminal justice system and will further strengthen community confidence in the institutions that support a fair and just system for Canberrans,” the government said in a statement.

In response to the scathing findings against Drumgold, the government acknowledged his resignation and said a review was conducted into 18 criminal cases he handled since being appointed as DPP.

“This examination has found that Mr Drumgold’s practice whilst DPP was appellate, meaning that the facts and evidence had already been determined and what was in issue was the findings or sentence based on those facts,” the government said.

The government is also considering whether charges should be laid against Drumgold.

The government has condemned Sofronoff’s decision to leak the report to media outlets ahead of its formal release.

“The release of the Report, which was not communicated to or approved by the Government, and possible other communication with journalists through the Board of Inquiry process, has interfered with the due process that should have been afforded to impacted parties,” the government said.

“The Government is extremely disappointed that this occurred.”

It is investigating whether further action is required if the leak was a breach of the Inquiries Act.

Why was there an inquiry?

The inquiry was established to investigate the criminal handling of Lehrmann’s prosecution over the alleged rape of Higgins.

Higgins alleged Lehrmann raped her in Parliament House in 2019.

Lehrmann has always strongly denied this allegation.

The trial ended in a mistrial due to juror misconduct and Drumgold decided against a second trial due to the impact on Higgins’ health.

The inquiry was launched, in part, due to allegations from Drumgold that police had pressured him not to prosecute.