A senior ACT detective allegedly told the former Coalition staffer Bruce Lehrmann’s defence barrister his client was innocent during a secret conversation between the pair while the high-profile rape trial was under way.
Steven Whybrow, SC, who defended Lehrmann against an allegation he sexually assaulted his colleague Brittany Higgins in March 2019, alleged in a statement tendered to an inquiry into the abandoned case that investigating officer Detective Inspector Marcus Boorman told him in a Canberra backstreet he would resign if the jury returned a guilty verdict.
Whybrow said in a statement submitted to the ACT government’s inquiry into the authorities’ handling of the case that while the jury was deliberating its verdict on October 25 last year, Boorman asked to meet with him out of sight of the prosecutors’ office so the pair couldn’t be seen speaking together.
“DI Boorman indicated to me that he was quite distressed about this prosecution and considered that Mr Lehrmann was innocent,” Whybrow said in his statement. “He made several other comments along these lines and I recall 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 also said he was concerned Director of Public Prosecutions Shane Drumgold, SC, had lost his objectivity, and revealed the territory’s top prosecutor described the police investigating the case as “boofheads” whose evidence wasn’t admissible in court.
The ACT government announced the inquiry into the conduct and competence of the criminal justice agencies involved in the case after a public breakdown in the relationship between the DPP and the ACT police.
Lehrmann pleaded not guilty to sexually assaulting Higgins in the parliamentary office of former Coalition Minister Linda Reynolds, for whom the pair both worked, after a night drinking with colleagues.
The trial was aborted in late October due to juror misconduct, and a retrial was abandoned due to Drumgold’s fears over Higgins’ mental health.
Lehrmann, who has always maintained his innocence, observed the first day of public hearings in the inquiry on Monday, helmed by former Queensland Supreme Court judge Walter Sofronoff at the ACT Civil and Administrative Tribunal in Canberra.
Whybrow also said in his statement Drumgold had branded Reynolds and her former ministerial colleague Michaelia Cash – who also employed Higgins – as unfavourable, and said it was “grossly unfair” that he as the defence barrister was denied the opportunity to cross-examine Higgins on parts of the pair’s evidence that contradicted her own.
The lawyer also said that, during a discussion partway through the trial about what evidence would be led from Boorman and another officer, Detective Superintendent Scott Moller, Drumgold said words to the effect, “any opinion by those boofheads about the strength of this case is not admissible”.
“I am concerned that Mr Drumgold, SC, did not act as an objective minister for justice. This was a matter that, from the outset, was compromised by adverse media publicity,” Whybrow said.
“In my view 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.”
He raised Higgins’ speech outside the ACT court complex the day the trial was aborted, in which she criticised the justice system and “falsely claimed” Lehrmann’s phone hadn’t been seized while hers had, as an example of conduct Drumgold failed to intervene in.
Drumgold in his statement said he was concerned police were trying to undermine the trial, and that they doubted her credibility due to her going to the media before making a police statement, among other factors.
He described Moller’s written opinion of Higgins’ evidence, in which the officer described her as “evasive, unco-operative and manipulative,” as “gratuitous stereotype assessments of credibility”.
The inquiry heard Drumgold had advised against the disclosure of Moller’s report to the defence. Drumgold told the hearing the report would have been “crushing” to Higgins and inhibited her ability to participate in the trial.
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