The Australian Federal Police is withholding evidence used by local investigators to prosecute former Liberal staffer Bruce Lehrmann from an inquiry into the abandoned rape trial.
The ACT’s Director of Public Prosecutions, Shane Drumgold, who himself has been the target of allegations by Lehrmann, has also foreshadowed holding back documents subpoenaed by inquiry head Walter Sofronoff, KC, due to legal privilege.
A preliminary hearing before the ACT Magistrates’ Court on Thursday heard the inquiry had sought the brief of evidence against Lehrmann, as well as a large cache of CCTV footage obtained by ACT Policing – an arm of the Australian Federal Police – but it was yet to be delivered, impeding Sofronoff from doing his job.
Sofronoff, a former Queensland Supreme Court judge, grilled the AFP’s barrister Katherine Richardson, SC, on his ability to conduct the probe into the high-profile trial after receiving letters from the Australian Government Solicitor’s office saying certain, undisclosed laws prohibited the force from providing the information.
“I have to finish this inquiry by June 30, and I can’t if I don’t know when crucial documents are coming,” Sofronoff said. “I have to have what Mr Drumgold had, and I have to have what the AFP had … frankly, I don’t see the difficulty in producing it.”
The AFP has said that it will cooperate with the inquiry but isn’t legally bound to produce any documents sought because it is a federal entity that isn’t subject to the territory’s powers. But Sofronoff questioned how the AFP could claim it was co-operating if it didn’t specify the laws prohibiting the handover of documents.
Richardson said the AFP didn’t want to “swamp” the inquiry with the more than 100 gigabytes of footage related to the case and agreed to provide the legal reasons for withholding material by a date next month.
The court also heard from Sofronoff of a potential recording of a phone call between Lehrmann’s trial barrister, Steven Whybrow, and ACT police detective superintendent Scott Moller being sought by the inquiry.
Ian Denham, acting for Drumgold, said although his client was compelled to hand over documents relating to the prosecution, legal privilege may prevent him from delivering everything. He agreed to identify documents that came under privilege.
Lehrmann was charged with sexually assaulting his former colleague Brittany Higgins in the office of their then-boss, former Coalition minister Linda Reynolds, after a night of drinking with friends in March 2019.
Lehrmann, who pleaded not guilty to the charge, has always maintained his innocence and there have been no findings against him. The ACT Supreme Court trial was aborted late last year due to juror misconduct, and a retrial was abandoned due to concerns over Higgins’ fragile mental health.
Lehrmann is suing Network Ten and News Corp for defamation over their reporting of rape allegations made by Higgins.
The ACT government announced on December 21 it would conduct an inquiry into the abandoned rape trial “following a number of complaints and allegations related to the trial”.
The probe is not designed to revisit the central allegations of the trial, but rather the conduct and competence of the authorities who investigated and prosecuted the allegations.
It will look into the decision to proceed to trial, the role of Victims of Crime Commissioner Heidi Yates, who accompanied Higgins to the trial, and the laws surrounding juror misconduct.
The inquiry was announced after reported Drumgold had written to the ACT’s chief police officer, Neil Gaughan, complaining of a campaign to pressure him against prosecuting Lehrmann.
The next day, Lehrmann accused Drumgold of “pursuing the matter through the media, despite him discontinuing the prosecution” in a complaint to the ACT Bar Association, seen by this masthead.
“By doing so, he is bringing into disrepute his own office, the fine work and reputation of the Australian Federal Police and your members,” Lehrmann wrote. Drumgold’s office previously didn’t respond to a request for comment regarding Lehrmann’s complaint.
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