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RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

The trial of Bruce Lehrmann for the alleged rape of Brittany Higgins never reached a verdict – and Lehrmann still strenuously maintains his innocence. When the most high profile sexual assault trial in Australia was called off, and any hope of a retrial abandoned, there was one question: how did it come to this? The actions of one juror might have led to the mistrial, but there was more to the story: concerns about how the media covered the trial and then came explosive allegations against the ACT police and how they handled the case. Now, an inquiry is trying to get to the bottom of how justice failed to reach a verdict.

Today, contributor to The Saturday Paper Claire Connelly, on the first week of stunning revelations, backflips and whether this inquiry can deliver answers.

It’s Tuesday, May 16.

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RUBY:

So, Claire, for the past week or so, you've been listening in on the inquiry into the case against Bruce Lehrmann, who was accused and denies raping former-staffer Brittany Higgins. That case, the trial that was going to test those allegations against Bruce Lerhmann that was abandoned a few months ago. So to begin with, can you just tell me what this separate inquiry now is trying to determine?

CLAIRE:

Sure. So as a legal story, this starts with the Lehrmann trial. Lehrmann pleaded not guilty to one charge of sexual intercourse without consent. The trial, as many will be aware, was a bit of a media spectacle that was under a lot of intense scrutiny. Ultimately, the jury was left to deliberate the case and the public waited and waited...

Archival tape – Newsreporter:

“There’s been an abrupt end to the Parliament House rape trial proceedings were dramatically aborted after the chance discovery of a banned document inside the jury room.”

CLAIRE:

…and then there was the quite surprising news that the trial had been aborted due to juror misconduct.

Archival tape – Newsreporter

“Good evening. It has been a day of real drama in a Canberra courtroom. Not only has a rogue juror forced the rape trial of Bruce Lerhmann to be aborted, but comments made by Brittany Higgins immediately after...”

CLAIRE:

A juror was found to have done their own research and then brought that research material into the jury room, which is forbidden. And this action resulted in a mistrial.

Archival tape – Newsreporter:

“It is being reported that the Director of Public Prosecutions, Shane Drumgold, will announce that the charge against Bruce Lehrmann will be dropped and the trial will no longer proceed.”

CLAIRE:

The trial was initially rescheduled for February of this year, but it was abandoned out of concern for Higgins mental health.

Archival tape – Shane Drumgold:

“Ms. Higgins has faced a level of personal attack that I've not seen in over 20 years of doing this work, and it is my hope that this will now stop and Ms. Higgins will be allowed to heal.”

CLAIRE:

Lehrmann continues to strenuously deny the allegations and because the retrial has been abandoned, that means that no findings have been made against him either way. Now, this obviously isn't good for anyone. Higgins was deeply distressed about the way the trial concluded, and Lehrmann was never able to either prove his innocence or be found guilty. And it certainly wasn't good for the ACT prosecutor's office or the police who had the most high profile sexual assault case in the country fall into a mistrial. But as far as the court system goes, that seemed like the end of it, but then it turned out one person was particularly unhappy with how the whole process unfolded and that was the prosecutor in the case, Shane Drumgold.

RUBY:

Hmm. Okay. So tell me a bit more about the prosecutor, Shane Drumgold, what was it that he was unhappy about exactly? And how did he respond to everything that had gone on as part of the mistrial and the subsequent decision to no longer proceed with the case?

CLAIRE:

So Shane Drumgold, KC. He is the Director of Public Prosecutions in the A.C.T.. And it was his decision to press charges against Lehrmann. And in December last year, a letter by him was made public under Freedom of Information. It was addressed to the ACT chief police officer. In it, he details a litany of explosive allegations against how the police conducted their investigation into Higgins claims. Drumgold alleged more than 18 months of consistent and inappropriate interference by police investigators and essentially called for a public inquiry into the matter. And this inquiry is now what we've been sitting in on, over the last week.

RUBY:

Okay. So this all came about because of Drumgold, his concerns around the police cases, is what prompted the inquiry and the hearings they've begun with him haven’t they, with his evidence to establish exactly what his allegations are and to test. So tell me about what we've heard.

CLAIRE:

So the inquiry is taking place in Canberra and it's a very different set of circumstances to the Lehrmann trial. The trial was closed off to the public. It was held privately in front of a jury and there were a myriad of restrictions on what could be said, what could be reported, about what was happening inside the courtroom. By contrast, this inquiry is a lot smaller, but it's also totally open. It's fully broadcast on a live stream that is available to the public.

Archival tape – Walter Sofronoff:

“Before we begin, I want to make a few points. First the evidence on which…”

CLAIRE:

That decision is down to the person leading the inquiry, Walter Sofronoff KC.

Archival tape – Walter Sofronoff:

“A public inquiry is a powerful engine for getting at the truth.”

CLAIRE:

And at the start he explained that the job of an inquiry is to not only inform the Government but also to inform the people.

Archival tape – Walter Sofronoff:

“An inquiry must not just uncover the truth, it must tell the community about it.”

CLAIRE:

And the counsel assisting the inquiry made it really clear at the start that the entire trial is under investigation, and that includes Drumgold himself.

Archival tape – Erin Longbottom:

“You are required to consider whether the Director of Public Prosecutions failed to act in accordance with his duties erected in breach of his duties in three respects. Firstly, in making his decisions to commence , to continue and to discontinue criminal proceedings against Mr Lehrmann. Secondly, in his conduct of the preparation of the proceedings, the hearings, and thirdly, in his conduct of the proceedings themselves. If you find that the Director of Public Prosecutions so acted, you will be asked to examine his reasons and his motives for doing so.”

CLAIRE:

A lot of the questioning goes back to the claims Drumgold makes in his letter, and the inquiry gave him the opportunity to elaborate on where he felt those failures were. One of the big claims in his letter is that he says he felt pressured by police not to proceed with the charges against Lerman, and his allegation is that it influenced the case.

Archival tape – Shane Drumgold:

“I'm looking at unprecedented pressure being placed on me, an unprecedented passion that a number of police held, that this matter shouldn't proceed and a number of other factors, including them injecting themselves into a suggestion that I should outsource the decision to… in relation to a retrial.”

CLAIRE:

Another claim was about the brief of evidence that the police put together. This brief of evidence is a primary source of tension between the DPP and the police and has been central to the inquiry's examination of the breakdown of the relationship throughout the investigation. In the report, police described Higgins as quote, evasive and uncooperative, and raised concerns about her credibility. Then the police gave that to the Lehrmann side of the trial, his barristers, and this led to some concerns from Drumgold.

Archival tape – Erin Longbottom:

“Now, Mr Drumgold, you have given evidence in your statement about the Moller report. Would it be fair to say that you were appalled by some of the matters that were in that document?”

Archival tape – Shane Drumgold:

“I don't know. It - it was - it contained irrelevant material. It contained a basic misguided analysis of the importance of certain evidence and opinions on credibility based on inadmissible evidence.”

CLAIRE:

Drumgold was concerned police descriptions of Higgins credibility weren't legally admissible.

Archival tape – Shane Drumgold:

“So my conclusion there, is that a police officer who has misunderstood the admissibility of evidence and drawn conclusions about the credibility is not relevant to a fact in issue. It's opinion evidence.”

CLAIRE:

Another big one is political interference. He described a series of strange events, including what he believed to be attempts by former Minister Linda Reynolds Higgins boss at the time of the alleged rape to coach the defence team, solicit transcripts and interfere with the trial by having her partner sit in the back of the room.

Archival tape – Erin Longbottom:

“So the effect of the proposition you are putting to Senator Reynolds is that she organized that her partner to be at court?”

Archival tape – Shane Drumgold:

“Or facilitated it, yes.”

CLAIRE:

But as the days of the testimony from Drumgold have unfolded, a number of these claims have been tested…

Archival tape – Erin Longbottom:

“What evidence did you have to support - or information did you have to support that allegation?”

Archival tape – Shane Drumgold:

“Well, the fact that he was in the court.”

Archival tape – Chairperson:

“That can't be enough.”

Archival tape – Shane Drumgold:

“Well he lived in Perth…”

CLAIRE:

What we've seen is Drumgold becoming the subject of intense questioning. And even though it is just an inquiry, his time on the stand has felt more like a courtroom as it's his own handling of the case that has come under the spotlight.

RUBY:

We’ll be back after this.

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RUBY:

So Claire, as the Board of Inquiry hearings into the Lehrmann case have continued, the man who was actually calling for the inquiry for this place, the DPP Shane Drumgold. He's been under a lot of scrutiny. So as that has continued, how have his claims, those claims he initially made around police pressure and political interference, how they ended up?

CLAIRE:

Not well… on Wednesday when asked about the police pressure. The inquiry heard that Drumgold had begun to believe that there could be a political conspiracy to derail the case.

Archival tape – Erin Longbottom:

“So did you think there was a conspiracy afoot?”

Archival tape – Shane Drumgold:

“I had not formed a view solidly one way or another, but I thought that there was enough, enough incidences to make it possible. If not probable.”

CLAIRE:

This claim made nationwide headlines. But then on Thursday, he was asked again and he walked back his claim.

Archival tape – Shane Drumgold:

“My current view, having read all the police statements, it was most likely a skills deficit on the part of investigators as a group.”

CLAIRE:

He highlighted that he was certainly not subjected to police interference. There were other errors that were pointed out as well. For example, one of his concerns had to do with that brief of evidence provided to the defense, which had private and protected notes from Higgins counseling as well as other unredacted details. It turned out that Drumgold had read those notes himself, which is a potential breach of his statutory obligations as a prosecutor.

Archival tape – Erin Longbottom:

“Did you consider what impact it might have on Ms Higgins that you had read the documents?"

Archival tape – Shane Drumgold:

“No, I didn't.”

Archival tape – Erin Longbottom:

“Why didn't you turn your mind to that?”

Archival tape – Shane Drumgold:

“I - because the main concern was the broader dissemination.”

Archival tape – Erin Longbottom:

“Why did you have to read the documents to address the broader dissemination?”

Archival tape – Shane Drumgold:

“Again, to find out what was - what the damage - what damage had occurred. Because I knew at some point I would have to have a conversation with her about it.”

CLAIRE:

We don't yet know how significant Drumgold's comments will be on the outcome of this inquiry, but I would say that given that Drumgold’s letter was the primary document on which this inquiry came to be, it's pretty stunning that by the fourth day of questioning he was backing down.

RUBY:

Right, a big part of this case has always been the role of the media. Brittany Higgins brought those allegations to journalists initially, and there has been a lot of scrutiny about how that ultimately played out. So what are we learning in this inquiry about the relationship between the media and the DPP?

CLAIRE:

The hearings also focussed on a pre-trial meeting Drumgold had with television journalist Lisa Wilkinson, who was initially listed as a witness in the trial. Having interviewed Higgins for Network Ten's The Project in 2021. The inquiry heard that Wilkinson mentioned being nominated for a Logie award for the interview and that she had tried to read Drumgold a part of that speech which she hoped to deliver if she ended up winning. She subsequently won and made the speech. In it she mentioned Higgins, which resulted in the Lehrmann trial being delayed. When challenged at the hearing as to why he did not direct Wilkinson to avoid making value judgements about Higgins in the speech, Drumgold reflected this week that perhaps he should have, and he said that he believed at the time that issuing a direction to Wilkinson was inappropriate. And he said, and I quote, I entirely misread the situation. Then on Friday, things got a little bit heated between Drumgold and Wilkinson's lawyer, Sue Chrysanthou.

Archival tape – Sue Chrysanthou:

“Do you accept that you saw at that time that Miss Wilkinson was destroyed by the media?”

Archival tape – Shane Drumgold:

“No, I don't know.”

Archival tape – Sue Chrysanthou:

“That - you don't know?”

Archival tape – Shane Drumgold:

“Yeah.”

Archival tape – Sue Chrysanthou:

“That there were front pages on nearly every major newspaper the next day criticizing Ms. Wilkinson for failure to heed to your warning to not give the Logie speech.”

Archival tape – Shane Drumgold:

“I've not read that.”

Archival tape – Sue Chrysanthou:

“You didn't say that. Are you serious?”

Archival tape – Shane Drumgold:

“Again, I don't monitor the media.”

RUBY:

Okay. And I mean, from the moment that Higgins claims were first reported on, the s has seemed almost like this third party, in how the allegations and then the trial itself have played out. And we know that this decision early on in this inquiry that these hearings should be played out in public. They should be fully open to the media. How has that decision borne out? Do you think it has ultimately played for the better of the inquiry?

CLAIRE:

I don't want to comment one way or the other what is or is not better for the inquiry. I would feel loath to compromise any further, any administration of - if not justice, then at least some kind of public transparency. I would note, though, that we have already seen the retroactive suppression of documents in response to reporting by various media outlets, which, according to Walter Sofronoff unfairly exposed both the complainant, Brittany Higgins and Lehrmann to defamatory allegations and accusations and Walter Sofronoff KC became so concerned about the nature of some of the media reporting that has occurred during the inquiry that he considered holding the rest of the inquiry in secret.

Archival tape – Walter Sofronoff:

“To give prominence to a scandalous unjustified defamatory and prurient isolated statement on the pretense it has some independent importance for an understanding of the issue that I have referred to is not just low journalism.”

CLAIRE:

The live stream cut out. They adjourned while he went into his chambers to consider what his options were.

Archival tape – Walter Sofronoff:

“It does not represent a fair report of the proceedings, and it is actionable, it may constitute a contempt of this inquiry because it involves an abuse of the access to the evidence I have before me. It is also a mean and cruel thing to do to somebody…”

CLAIRE:

He ultimately decided against that, but he did scold some of the media for their reporting, for claims made out of context during the inquiry.

RUBY:

Yeah, and the inquiry is obviously happening after the trial had to be abandoned and I think for some people it's being seen as another chance to confront some of the issues in how these charges were dealt with and how the justice system ultimately operates. And yet just a week in, we've already got claims that have had to be backtracked on the threats, that the whole thing could be taken behind closed doors. So does it seem to you that this process will satisfy the public's desire to see some kind of public good come out of the airing of all of this?

CLAIRE:

Look I do think... What we've seen so far has been incredibly informative. It's pretty rare for Australians or anyone to see behind the curtain of how the legal system operates and how justice is made. And from what we've seen even in the past five days during the inquiry. We've had some pretty important revelations with regards to Drumgold's decision making, Sofronoff has been pretty firm about what it is that he hopes to achieve during this inquiry. It's pretty important to underline the purpose of this inquiry is not to deliver justice. A legal finding cannot be made. This is not about establishing guilt or assigning blame. It's about establishing for the record how events unfolded that led to a mistrial. I think we will achieve that, if nothing else. But I think we need to be careful, the public in particular, to temper our expectations about what this inquiry can deliver.

RUBY:

Claire, thank you so much for your time.

CLAIRE:

You’re very welcome, thanks for having me on.

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RUBY:

Also in the news today…

Bruce Lehrmann’s former defense barrister Steve Whybrow has said he was quoted: “pissed off” with suggestions he was helped by former minister Linda Reynolds or colluded with her in any way.

Whybrow said he had gone above and beyond his disclosure duty, in showing text messages that were sent to him by
Reynolds to the prosecution.

And…

Thailand’s opposition movement has won a landslide of seats in a historic election, where voters voiced their disapproval of the military-backed government.

Move Forward, a new political party that wants to reform Thailand’s laws against criticising or making fun of the Thai monarch, looks to have won the most seats out of any party – 113 out of a total of 400.

I’m Ruby Jones - this is 7am. See you tomorrow.

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