The AFP is refusing to hand over the full brief of evidence in the
investigation of Brittany Higgins’ rape allegation to a powerful inquiry
investigating police conduct.
A former judge leading the
inquiry, Walter Sofronoff KC, detailed the roadblocks the inquiry was
running into at a preliminary hearing today where the AFP is
represented.
In an extraordinary revelation, the inquiry heard
there may also be a police recording of a phone call between barrister
Steve Whybrow and AFP Detective Scott Moller.
Mr Whybrow is the barrister for Bruce Lehrmann, the man previously charged in relation to the matter.
A
single charge of sex without consent against Mr Lehrmann was dropped by
the ACT Department of Prosecutions in December after the first trial
collapsed as a result of juror misconduct.
Mr Lehrmann pleaded not guilty to the charge and has strongly denied the allegation since he was charged in August 2021.
While
the AFP welcomed the inquiry and has agreed to co-operate, it has
raised a number of concerns over providing some documents.
For
example, it has told the inquiry that a full brief of evidence includes a
large volume of unedited video and phone records that exceeds 100,000
pages.
The police have told the inquiry it would take a long time to “review the material”.
“Did anyone explain why they are reviewing it rather than handing it over?” Mr Sofronoff said.
In
a statement provided following the hearing, the AFP denied it was
refusing to hand over the brief, suggesting this claim was “false”
before outlining why it had not handed the document over.
“The
Board of Inquiry requested the AFP produce the full Brief of Evidence,
and it was produced on 27 March 2023 to the extent permissible by law,”
an AFP spokesperson said.
“There are statutory provisions
preventing the production of certain material, including under the
Telecommunications Interception Act 1979 (Cth), the Evidence
(Miscellaneous Provisions) Act 1991 (ACT) and the Crimes Act 1900 (ACT).
“As
discussed at the Directions Hearing on 30 March, the AFP is proactively
producing material to assist the Board of Inquiry with its important
work.”
Mr Sofronoff also mentioned — twice — during the hearing
about items to be produced in relation to the Telecommunications
(Interception and Access) Act 1979.
Brittany Higgins arrives at the ACT Supreme Court in October 2022. Picture: Martin Ollman/Getty Images
The reference could suggest that phone taps may have been involved in
the investigation, however there was no further information provided
over whether this was the case or who may have been targeted.
The
laws set out when eligible Australian law enforcement and security
agencies are permitted to obtain warrants to intercept communications,
obtain warrants to access stored communications, and authorise the
disclosure of data.
Senior counsel assisting Erin Longbottom KC
detailed a long list of subpoenas the AFP is resisting or has delayed
production of documents.
However, Mr Sofronoff also noted several police officers involved in the investigation “have been very helpful”.
“There is a magnitude of work you are being asked to undertake,” Ms Longbottom said.
“It
is critical that we have the timely production of documents. To date
there have been issues with the timely production of documents.”
The
ACT government announced the probe into the prosecution last year,
stressing it would not be about recontesting Ms Higgins’ rape allegation
but the conduct of criminal justice agencies.
“It is important to
remember that this will not be a retrial of the case, it will focus on
whether the criminal justice officials involved performed their duties
with appropriate rigour, impartiality, and independence,” ACT
Attorney-General Shane Rattenbury said.
The probe will now
consider whether or not the AFP, the DPP and the ACT Victims of Crime
Commissioner acted in breach of their duties during the investigation.
A charge against Bruce Lehrmann was dropped by the ACT DPP in December. Picture: Gary Ramage/NCA NewsWire
The
inquiry was sparked by ACT Director of Public Prosecutions Shane
Drumgold’s claim in a letter to the AFP that police had “clearly aligned
with the successful defence of this matter rather than its
prosecution”.
However, the circumstances of the release of the
letter under freedom of information laws will also be probed by the
inquiry and a subpoena has been issued to the ACT Information
Commissioner to examine the processes that resulted in the letter being
released.
The inquiry, with the powers of a royal commission, will
hold public hearings later this month and publish relevant documents on
the inquiry website.
Ms Longbottom is the Queensland barrister who recently appeared in the Royal Commission into Defence and Veteran Suicide.
The junior counsel assisting is Joshua Jones, who was counsel assisting in the DNA inquiry led by Mr Sofronoff.
In
his bombshell letter that led to the inquiry, Mr Drumgold wrote to ACT
police chief Neil Gaughan after the collapse of the trial outlining a
number of serious concerns.
“There has now been over
one-and-a-half years of consistent and inappropriate interference by
investigators, firstly directed towards my independence with a very
clear campaign to pressure me to agree with the investigators’ desire
not to charge, then during the conduct of this trial itself, and finally
attempting to influence any decision on a retrial,” Mr Drumgold said.
“Then
when charges resulted, the [investigators’] interests have clearly
aligned with the successful defence of this matter rather than its
prosecution.”
ACT Director of Public Prosecutions Shane Drumgold. Picture: ABC News
Mr
Gaughan has previously backed public inquiry into the trial of Mr
Lehrmann that extends to the conduct of the prosecutor, the police and
“the allegation of contempt” over Ms Higgins’ speech outside court at
the conclusion of the trial.
Earlier this year, it emerged Mr
Lehrmann lodged a formal complaint of professional misconduct targeting
Mr Drumgold with the ACT Bar Association.
The allegations are
contained in a leaked letter that was sent to the ACT Bar Association on
December 9, that is likely to be captured by the subpoenas issued to
date and referred to the inquiry.
“By doing so, he is bringing
into disrepute his own office, the fine work and reputation of the
Australian Federal Police and your members,” Mr Lehrmann wrote.
“His
public behaviour continues to smear my name and the presumption of
innocence that is a cornerstone of our justice system and that demands
him to uphold. I am innocent of the charge pursued against me by The
Director. I have always, strongly maintained my innocence.”
ACT Chief Minister Andrew Barr and Attorney-General Rattenbury said
the inquiry had been devised to “bring sunlight” to allegations raised.
The terms of reference include:
—
Whether any police officers failed to act in accordance with their
duties or acted in breach of their duties in their conduct of the
investigation of the allegations of Ms Brittany Higgins concerning Mr
Bruce Lehrmann.
— It will also examine their dealings with the
Director of Public Prosecutions in relation to his duty to decide
whether to commence, to continue and to discontinue criminal proceedings
against Mr Lehrmann in relation to those allegations.
— Police
dealings with the legal representatives for Mr Lehrmann before, during
or after the trial in the matter of R v Lehrmann; in their provision of
information to any persons in relation to the matter of R v Lehrmann.
— If any police officers so acted, their reasons and motives for their actions.
—
Whether the Director of Public Prosecutions failed to act in accordance
with his duties or acted in breach of his duties in making his
decisions to commence, to continue and to discontinue criminal
proceedings against Mr Lehrmann.
— If the Director of Public Prosecutions so acted, his reasons and motives for his actions.
— Whether the Director of Public Prosecutions failed to act in
accordance with his duties or acted in breach of his duties in making
his decisions to commence, to continue and to discontinue criminal
proceedings against Mr Lehrmann.
— If the Director of Public Prosecutions so acted, his reasons and motives for his actions.
—
The circumstances around, and decisions which led to the public release
of the ACT Director of Public Prosecutions’ letter to the Chief Police
Officer of ACT Policing dated 1 November 2022.
— Whether the
Victims of Crime Commissioner acted in accordance with the relevant
statutory framework in terms of support provided to the complainant in
the matter of R v Lehrmann.
— Any matter reasonably incidental to any of the above matters.
Brittany Higgins in the Maldives with partner David Sharaz in January. Picture: brittanyhiggins/Instagram
The
inquiry is also likely to consider claims that police sent prohibited
material including Ms Higgins’ confidential counselling notes to the
accused’s original lawyers.
Mr Gaughan outlined his own concerns
in a leaked internal email that complained Mr Drumgold released private
correspondence to a journalist under freedom of information laws without
consulting police.
During the hearing, a lawyer acting for Mr
Drumgold suggested that he might claim legal professional privilege over
some documents.
“When am I going to know if your client refuses to produce a document
or I should say declined to produce a document?” Mr Sofronoff asked.
A lawyer acting for Mr Drumgold said he may be prepared to consider waiving of privilege.
“Well, when is he going to consider it?” Mr Sofronoff said.
The inquiry heard the DPP’s office had already handed over 137,000 pages of documents.
Kate
Richardson SC, the barrister acting for the AFP, said a document had
been provided outlining the time frame that the AFP was working towards
to hand over outstanding documents.