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Top prosecutor accused of ‘double standard’ in Lehrmann trial

ACT’s top prosecutor told an inquiry he did not consider stepping away from Bruce Lehrmann’s rape trial after he read confidential counselling notes that may have been “mistakenly” included in a brief of evidence.

user iconNaomi Neilson 10 May 2023 Big Law
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When Director of Public Prosecutions Shane Drumgold SC learnt Brittany Higgins’ counselling notes could be read in the brief of evidence, he immediately contacted the police’s team to make sure it did not fall into the defence’s hands.

However, Mr Drumgold read the notes himself despite them falling under protected confidences in the Criminal Procedures Act.

The inquiry into the prosecution of Mr Lehrmann suggested on Tuesday (9 May) that Mr Drumgold may have breached statutory obligations.


Counsel assisting, Erin Longbottom KC, asked Mr Drumgold why he did not recuse himself from the trial after he read the notes and after he was told Lehrmann’s legal team had not seen them.

“There was nothing in (the notes) that I considered gave rise to a conflict,” Mr Drumgold said and suggested he only “skimmed” them.

Ms Longbottom then accused him of having a “cavalier attitude” towards his decision to read the counselling notes.

The inquiry was established by the ACT government after it received “a number of complaints and allegations” about the trial into Brittany Higgins’ allegations that Mr Lehrmann had raped her in the office of then-defence industry minister Linda Reynolds in March 2019.

Mr Lehrmann has continued to deny these allegations.

The inquiry was told on its second day that the brief of evidence was handed to Mr Lehrmann’s former barrister, John Korn, by police a month before charges were first heard in the ACT Magistrates Court.

Mr Drumgold said he was “shocked” to learn this as it was “highly unlikely there would have been checks and balances imposed”.

The next day, a junior solicitor in Mr Drumgold’s office said redacted parts of the brief could be unlocked and read, including contact information and Ms Higgins’ confidential counselling notes.

Asked why he read the notes, Mr Drumgold said he was preparing to have a conversation with Ms Higgins about “the damage”.

“I was looking at them to see … how much damage this could cause to the complainant and what sort of material had been improperly delivered,” Mr Drumgold told the inquiry.

Mr Drumgold said he did not tell Ms Higgins at this time that he had read them because he “didn’t turn my mind that I should do that”.

Inquiry chair Walter Sofronoff KC said that while Mr Drumgold was “rightly” concerned about getting the brief from defence, “it doesn’t seem to have occurred to you that you ought not to have them either”.

Mr Sofronoff asked why there was a “double standard”.

Mr Drumgold said he was concerned with an “urgency” to keep the information out of the public domain, especially considering Ms Higgins’ fears personal information was being “deliberately disseminated”.

“We can sit here today and say it shouldn’t have happened. My mind at that stage was to find out how much damage had occurred.

“What I’m dealing with here is an increasingly unwell complainant that I am trying to manoeuvre through the justice system so she can give evidence in some safe way,” Mr Drumgold said.

“We’re sitting here in calm reflection of what was happening when I was confronted with a situation. Would someone different to me have made different decisions at the time? I’m obviously hearing yes.”

Drumgold admits ‘error’ in Moller disclosure

Mr Drumgold said his concern about Ms Higgins prevented him from disclosing documents produced by police investigating the rape claims.

One report, known as the Moller report, had been prepared by detective superintendent Scott Moller in June 2021 and contained what Mr Drumgold found was “somebody just offering gratuitous stereotyping”.

He said the document “showed a strong bias as a discrete document”.

“I didn’t think it should fall into (the defence’s) hands because essentially it says a senior police officer through a stereotype, bias analysis has drawn particular conclusions about a complainant.

“I mean, it’s potentially terribly harmful to a complainant if that document finds its way into a court,” Mr Drumgold said.

He added he had concerns it would be “crushing” to Ms Higgins.

Mr Drumgold did admit it was “clearly” an error not to disclose.