The DPP may be in a world of pain over disclosure
On the information now revealed it would seem that a manipulative woman made a huge profit for herself at the expense of great hurt to an innocent man. Why was there any prosecution at all? Because feminists wanted to believe her. And feminists must be placated. Drumgold is just a weak man who became a political pawn
On day one of the Sofronoff inquiry, material before it – and now made public – suggests the ACT Director of Prosecutions may be in a world of pain.
In his incendiary November letter to ACT chief police office Neil Gaughan, DPP Shane Drumgold said he wanted a public inquiry into the police handling of Brittany Higgins’ rape allegations against Bruce Lehrmann. He’s got that, and so much more than he surely bargained for.
Drumgold is central to this inquiry for reasons that will soon become clearer to all Australians. The most serious issues facing Drumgold, by a country mile, concern disclosure. Did the DPP disclose all material he was duty-bound to disclose to Lehrmann’s defence to ensure there was a fair trial?
Broader questions must later be asked as to whether any possible misbehaviour by Drumgold in this high-profile debacle is repeated in other cases that we never hear about. And what does that mean for the legitimacy of the criminal justice system in this country?
Disclosure obligations are critical to our criminal justice system. If a defendant, and defence lawyers, are not informed of relevant material, accused people cannot properly and fairly defend themselves when confronted by the hefty forces of police and state prosecutorial powers. Given the powers of police and the state, we demand that prosecutors be of the highest quality to ensure that fair trials are guaranteed, not a lottery.
Drumgold’s own statement, released to the public on Monday, provides a mountain of material that raises questions about whether he met his duties to disclose critical information, as the most senior legal prosecutor in the ACT. Remember, Drumgold chose to step into this role, in this case, instead of delegating to one of his staff prosecutors.
On Monday, Drumgold faced the formidable, forensic, careful inquiry team comprising counsel assisting Erin Longbottom KC and inquiry chairman Walter Sofronoff.
One of the central issues concerned a set of critical missing documents that should have been given to Lehrmann’s lawyers. These were called the Internal Review Documents, known informally as the Moller reports, after DS Scott Moller, the senior police officer who oversaw the investigation into the alleged rape.
What happened, in short, is that once Lehrmann’s lawyer became aware of the existence of the missing Moller reports, the DPP then fought tooth and nail to prevent the reports – prepared by police as part of the investigation into the rape allegation – from being disclosed to the defence.
This part of the story, like so many more to come, is incredible from the start. Lehrmann’s first lawyers at Legal Aid were told about these documents – in a disclosure certificate served on them. Schedule 1 of that statement made mention, in vague terms, of material that was not legally disclosable. Schedule 3 listed, in detail, material that was disclosable to the defence.
The Moller reports, which appeared in Schedule 3 as the Investigative Review Documents, “outlines version of events as supplied by Ms Higgins during the course of her engagements with police since 2019 against available evidence and subsequent discrepancies. Available upon request and in consultation with DPP.”
A few weeks later, after Lehrmann sacked his Legal Aid lawyers, his new lawyers received a new version of the disclosure statement. This version was very different in one critical respect – the Moller reports were no longer listed in the Schedule 3 that lists disclosable material. They were slipped into an ambiguously worded item in Schedule 1, where non-disclosable material is listed as follows: “Review of brief materials and subsequent advice/recommendations made by the DPP to ACT Policing.”
According to Steven Whybrow’s statement to the inquiry – he was Lehrmann’s barrister – this critical omission was discovered when Lehrmann’s new solicitor, Kamy Saeedi, compared the first disclosure statement that Legal Aid received, with the one he received. But for this, Lehrmann’s defence team may never have known about the existence of the Moller reports.
So, who removed the Moller reports from the disclosable part of the disclosure statement and moved them, in vague words, into the non-disclosable section. In other words, who decided to keep this critical material from the defence?
Bruce Lehrmann leaves the ACT Civil and Administrative Tribunal in Canberra. Picture: NCA NewsWire / Martin Ollman
Bruce Lehrmann leaves the ACT Civil and Administrative Tribunal in Canberra. Picture: NCA NewsWire / Martin Ollman
The DPP says in his statement to the inquiry that he “was not involved in all aspects of disclosure in the Lehrmann case.” He says he delegated to junior staff members.
He was by his own evidence involved in what happens to the Moller reports on the second Disclosure Document. Exhibits in the form of an email dated April 27 last year, attached to Drumgold’s own statement to the Inquiry, show that Drumgold told his junior staff that the Moller reports were privileged, and therefore not disclosable to the defence.
A separate file note by the same junior staffer concerning a meeting between prosecutors and junior Australian Federal Police officers to discuss, among other things, whether Moller reports are disclosable to defence, the ODPP staffer records “Conversations with Shane afterwards”: “Don’t want to disclose AFP internal documents – not relevant.”
In a series of further emails from Drumgold to his junior staff, the DPP claims that the Moller reports are not disclosable to the defence. In one he says these documents were created “for the dominant purpose of providing legal advice”.
When Lehrmann’s defence team go to court to fight for access to the Moller reports, the DPP emails junior members of his staff stating that “we need an affidavit” outlining, among other things, that the Moller reports (Drumgold calls them the Investigative Review Document) “formed a request for advice from police” thereby making them non-disclosable due to legal privilege. Drumgold’s statement sets out that “he settled affidavits of ODPP employees”.
It’s here that the DPP may find himself in all sorts of trouble. Firstly, legal privilege over these police reports is not the DPPs to claim, but is for the police to claim.
In fact, the DPP would later admit during a court battle when Lehrmann’s lawyers sought access to the omitted Moller reports that it was for the AFP to claim privilege. Yet he still fought to stop defence getting the documents.
Whybrow must have smelled a rat. Around the time of this court stoush about disclosure, Whybrow rang Moller to ask him whether these documents were created by the AFP for the dominant purpose of seeking legal advice from the DPP. If they were, then privilege would have been attached to them.
The inquiry will hear that, according to Whybrow’s statement, and a file note dated September 13 last year that he made of that conversation, Moller said these critical documents were not created for the purpose of getting legal advice and that they should be disclosed to the defence. They agreed that Whybrow would seek them by subpoena. And that is how Lehrmann’s defence lawyers finally received the Moller reports.
Recorded in the same file note, Whybrow says, presciently, to Moller: “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.”
That was two weeks before the trial started.
After the mistrial, parts of the Moller reports were revealed by The Australian on December 3. Just days later, Drumgold released his explosive letter to police chief Gaughan that demanded an inquiry to The Guardian newsite. The release of that information was made in a response to an FOI application by The Guardian.
It’s small fish to point out that Drumgold’s own statement concedes he got into trouble by ordering the release of this letter at the time. We can revisit that at another stage. Suffice to say Drumgold made a mess of that FOI request, had to apologise to the AFP and arranged “training”, including for himself.
What matters is that Drumgold tried to keep the Moller reports, which runs to more than 60 pages from the defence. It is explosive reading, detailing page after page of discrepancies that police discovered when investigating the allegation by Higgins that she was raped in the early hours of March 2019 in the parliamentary office of then-senator Linda Reynolds.
This inquiry is not about revisiting the credibility of either Higgins or Lehrmann. What matters now – six months after the DPP shocked many with controversial public comments that he would not retry Lehrmann even though he believed he could win at a second trial – is whether the DPP behaved as a minister of justice, making decisions objectively at every stage, exercising his duties dispassionately at every stage, to ensure that Lehrmann was given a fair trial last October.
The inquiry, now under way, gives a telling insight into how Drumgold viewed senior AFP officers and, by connection, his role as prosecutor.
The DPP makes a series of extraordinary claims, page after page, in his statement about senior AFP officers, naming them, accusing them of pressuring him not to prosecute, of over-investigating the rape complaint, of attempting to assist the defence and undermine the prosecution. How AFP senior officers and the DPP work together in the future is a live issue.
To give a sense, here are a few examples. Drumgold says he had “never” had officers of such senior rank as DS Scott Moller and DI Marcus Boorman be involved in briefings to the AFP. Drumgold says he felt pressure to agree with police concerns about the case.
There is another way to view their involvement: given even the then-prime minister involved himself in this rape allegation, its possible very senior police thought it only appropriate that they wear any heat from a national scandal, rather than more junior officers.
When Drumgold received parts of the Moller reports in June 2021, he said he had “never” before received a brief like this one, where police focused on discrepancies and weaknesses in a prosecution case. Specifically, when Drumgold read part of the Moller reports that described Higgins as “evasive, unco-operative and manipulative” Drumgold said he had “never seen comments of this nature of a police brief”.
There is another view: any sensible prosecutor should want to know all the weaknesses in a prosecution case before going to trial. Seen in that light, the DPP could have viewed the discrepancy analysis in the Moller reports as helpful to his role to determine the truth. After all, the last thing a prosecutor wants is to be blindsided at trial.
After Drumgold learnt from Whybrow that Moller told Whybrow that the Moller reports “were definitely not produced for legal advice and that it should be produced [to defence]” Drumgold said he “formed the view that DS Moller actively wanted to disclose to the defence his case commentary including his perceived weakness in the case. This appeared to be a further example of what I perceived to be as ongoing assistance to the defence by police.”
There is a different view: he should have agreed to disclose the Moller reports to the defence rather than defence lawyers having to battle so hard to get these documents that analyse and investigate possible discrepancies.
The upshot of the DPP’s statement is that throughout this tawdry saga, the DPP appeared to view police conduct through a prism of them pressuring him and undermining his prosecution. Instead, he could have viewed police conduct as part of a search for truth and providing the warning signs that he should have a prosecutor.
While the relationship between the DPP and the AFP is fascinating and important, what will be more critical to this inquiry is whether the DPP used his position as the most senior law officer to keep material from the defence. There is a lot more to come on that fundamental duty.