Lehrmann, Higgins and the “unethical” prosecutor

Sam Hawley: Hi, I’m Sam Hawley, coming to you from Gadigal Land. This is ABC News Daily. The court case involving Brittany Higgins and Bruce Lehrmann was one of the most watched in history. Now, an inquiry has found a key legal figure in the proceedings was “grossly unethical” and misled the trial judge. Today, reporter Patrick Bell on how it came to this and what it means for our justice system.

Sam Hawley: Patrick, not many of us know much about Shane Drumgold, so I want to talk to you about him and this rather extraordinary position he’s found himself in.

Patrick Bell: Shane Drumgold has spent the best part of five years as the ACT’s Director of Public Prosecutions. And that elevates you from being an ordinary prosecutor. It’s a pseudo-political role almost when you are tasked with heading up the Office of Public Prosecutions in any jurisdiction. After the last little while, he will of course be best known for his role as the prosecutor in the very high-profile rape case brought by the former Liberal staffer Brittany Higgins, against her colleague, Bruce Lehrmann.

News Audio: For the past three weeks, a dark cloud has hung over the halls of power. The Coalition cabinet’s been crippled by allegations of rape and sexism.

Patrick Bell: Of course, Bruce Lehrmann has always denied any wrongdoing. He maintains his innocence and there are no findings against him.

Patrick Bell: Alright, Patrick, to understand the position that Shane Drumgold finds himself in today, let’s just step back, remind me again about this case against Mr. Lehrmann.

Sam Hawley: So the alleged incident is said to have occurred in March 2019. Brittany Higgins initially had some discussions with police, but then decided not to take the matter any further. But she reignited that investigation in early 2021 when she also disclosed the allegation in an interview with Samantha Maiden for a story on news.com.au and with Lisa Wilkinson for Network Ten’s The Project. And there was an enormous public reaction many people will remember the Equality marchers on the lawns of Parliament House where Brittany Higgins addressed herself.

Brittany Higgins: You’re all here today not because we want to be here, but because we have to be here. The system is broken.

Patrick Bell: But after many days of evidence in the subsequent trial that took place in October last year, it emerged that a juror had brought research material into the jury room, which is a very clear breach of the rules. The actions of that one juror led to a mistrial, and initially, there were plans for a retrial, but ultimately those plans were abandoned as well.

Sam Hawley: Right. Okay. So, Bruce Lehrmann was standing trial in the ACT Supreme Court. There was a mistrial and that was the end of it because the case was then abandoned.

Patrick Bell: Yes. Shane Drumgold, then in December last year made a public statement in which he announced that he believed there was a significant and unacceptable risk to the life of Ms. Higgins if there was a second trial.

Shane Drumgold: In light of the compelling independent medical opinion and balancing all factors. I’ve made the difficult decision that it is no longer in the public interest to pursue a prosecution at the risk of a complainant’s life.

Patrick Bell: So Mr. Drumgold formed the view that a second trial just wasn’t an option.

Sam Hawley: And of course, Bruce Lehrmann has never been found of any wrongdoing. Okay, so the case is closed. But then it’s revealed that Shane Drumgold is pretty unhappy about how things have played out.

Patrick Bell: That’s right. And he takes the step of writing a letter to the ACT’s chief police officer.

News Audio: In it, Shane Drumgold says from the first engagement, it has been clear that key AFP members have had a strong desire for this matter not to proceed to charge.

News Audio: Fundamentally, he’s argued that there was pressure from police, including some senior police, on the investigation, not to pursue the case and that there wasn’t enough evidence to charge Mr. Lehrmann. He’d also been worried that the passion shown by the ACT police to have Mr. Lehrmann acquitted meant there might have been some interference and that there might have been pressure on police to try and thwart the prosecution. Mr. Drumgold called for a public inquiry. Ultimately, there was an inquiry, but not necessarily the one that he had expected.

Sam Hawley: Okay. And that inquiry was headed by the former Queensland judge Walter Sofronoff. Shane Drumgold takes to the stand. How did that play out?

Inquiry Audio: I call Neville Shane Drumgold.

Patrick Bell: I think a lot of us covering the inquiry were surprised at the direction that it took.

Shane Drumgold: I solemnly and sincerely declare and affirm that the evidence I will give will be the truth, the whole truth, and nothing but the truth. Thank you.

Patrick Bell: The first serious proposition that is put to Mr. Drumgold in this hearing is that he has made a knowingly false statement to the chief justice of the Supreme Court.

Inquiry Audio: Mr. Drumgold. Those statements were false and they were knowingly false.

No, I don’t accept that. No, I don’t accept that they were false.

Patrick Bell: And that is the moment when we all kind of twigged that maybe this inquiry is taking a different direction to what we had all expected. And so this was about the notes he had made of a meeting with Lisa Wilkinson. Ms. Wilkinson raised that she was nominated for a Logie award for her interview with Brittany Higgins and said that she’d prepared a speech to deliver if she were to win that award.

Sam Hawley: Okay, so hang on. This all relates to the notes of a meeting between Mr. Drumgold and Lisa Wilkinson from Channel Ten, where he says he told her ahead of a Logies speech that she gave that any publicity could delay the trial.

News Audio: That’s right. Ultimately, there were notes of that meeting that were added to after the Logies speech, but Shane Drumgold told the Chief Justice in court that they were made contemporaneously. They were all made at the time of the meeting and it was put to him that that wasn’t true.

Inquiry Audio: And then we were simply saying that last bit that is not in there. We should add that bit.

Yes.

So that note was made on the preceding day.

Yes. Correct. Well, yes, Yes, I accept that.

And therefore, the answer you gave to Her Honour was false.

No, I don’t accept that.

Sam Hawley: And by the way, Lisa Wilkinson denies that she was ever warned about her Logies speech. And then at one point during this week that Shane Drumgold’s on the stand, he backs away completely from his interference allegations. It’s extraordinary.

Shane Drumgold: My current view is that it was probably having read all of the police statements, it was most likely a skills deficit on the part of the investigators.

Patrick Bell: It was extraordinary because, on the Wednesday of this week, he repeated those claims. And then when he was questioned by his counsel the next day, he said he no longer suspected any political interference, that his views had changed after reading the police submissions.

Inquiry Audio: You would acknowledge that your suspicions about the existence of political interference to prevent the case from properly going ahead were mistaken.

I do accept that.

Thank you.

Sam Hawley: Patrick, that brings us to this week. Let’s chat now about what Walter Sofronoff has found because to say his report is damning is an understatement. He is scathing against Shane Drumgold.

Patrick Bell: Crucially, he has found that Mr. Drumgold, in his view, knowingly lied to the Chief Justice over the meeting with Ms. Wilkinson. He’s been accused of “grossly unethical” conduct. Now this is around some of the issues over whether he was right or not to try and withhold a police report from being disclosed to Mr. Lehrmann’s lawyers. That report was critical of Ms. Higgins’ credibility and also raised some concerns about her mental health. There was some quite extraordinary language in this report from Walter Sofronoff accusing Shane Drumgold of treating criminal litigation like a poker game. This is potentially going to have future consequences for Shane Drumgold if there is a view that he has attempted to pervert the course of justice by, in effect, trying to withhold the disclosure of that material which would have potentially helped the defense case, then that is a very serious finding indeed.

Sam Hawley: And of course, Patrick, there’s a very human toll to all of this, which we should remember. Shane Drumgold has now resigned. But the other controversial thing about all of this is that the report itself was leaked to the press by Mr. Sofronoff and published before it was formally released by the Act Government. That’s become a huge deal.

Patrick Bell: It’s emerged that Mr. Sofronoff gave a copy of this report to a journalist, which we believe is Janet Albrechtsen from The Australian on the Sunday night before it had gone to the Chief Minister. And that is something that the ACT Chief Minister Andrew Barr has taken particular objection to and was asked about during an interview on 7.30 with Sarah Ferguson.

Andrew Barr, ACT Chief Minister: I think it was unfortunate that the report was given to anyone. Mr. Sofronoff appeared to have formed a view that some journalists were more trustworthy than others.

Sam Hawley: Okay, so this all sounds like a rather large shambles. It’s not good for anyone involved. Just tell me what Mr. Drumgold has been saying and the other parties in this.

Patrick Bell: Mr. Drumgold issued a lengthy statement in which he disputed many of the adverse findings. There is an argument that Shane Drumgold could go to court to try and have the findings from this inquiry set aside.

Sam Hawley: In the end, Patrick, this all goes to trust in the justice system that we know that if we ever land up there for whatever reason, our rights will be protected. So how can we be sure of that now?

Patrick Bell: I think so much of this story has become about the personalities behind the scenes and doesn’t have a great deal to do with what did or didn’t happen between two people in Parliament House in March 2019. And so I think the hope overall after this inquiry is that the focus of the criminal justice system in the ACT, but in other jurisdictions as well, returns to its fundamental role of trying to achieve justice. And that other discussion around the minutia behind the scenes no longer takes center stage.

Sam Hawley: Patrick. Bill is an ABC reporter based in Canberra. The ACT Chief Minister, Andrew Barr, has not ruled out seeking the advice of the Integrity Commission on whether Mr. Sofronoff broke the law by leaking his report to the press. If anything in this episode has raised issues for you, you can call 800 Respect or Lifeline on 13 1114. This episode was produced by Nell Whitehead, Lara Corrigan, and Sam Dunn, who also did the mix. Our supervising producer is David Coady. I’m Sam Hawley. You can find all our episodes of the podcast on the ABC Listen app.

Thanks for listening.