EXCLUSIVE JANET ALBRECHTSEN STEPHEN RICE
22/4/23 The Australian
The chief prosecutor in Bruce Lehrmann’s rape trial was “complicit” in a bid by Brittany Higgins to prejudice the case against him, according to an extraordinary draft submission to the ACT Supreme Court prepared by Sydney barrister Arthur Moses SC.
The explosive 36-page document obtained by The Australian sheds new light on developments in the Lehrmann case that have been shrouded in secrecy because of suppression orders imposed by ACT Chief Justice Lucy McCallum. This document, and the circumstances in which it was intended to be filed with the court, raise questions about the reasons for the decision by ACT Director of Public Prosecutions Shane Drumgold not to proceed with a retrial. Those issues are likely to form part of the Sofronoff inquiry into the conduct of the DPP and the Australian Federal Police that commenced this week.
The draft submission prepared by Mr Moses – who was acting for Mr Lehrmann – related to an application filed by Mr Lehrmann’s lawyers on November 22 last year after the original trial was aborted in October due to juror misconduct. The Australian cannot legally report the nature of that application, which remains subject to a suppression order issued by CJ McCallum, nor does The Australian have any material filed in that proceeding. However, The Australian has obtained a draft of Mr Moses’ proposed submission which was never finalised or filed with the court. The Australian understands this draft submission, dated December 1, was very close to being the final version that would have been filed the next day. The filing slated for December 2 did not proceed given the DPP’s shock decision, announced that same day, that he was dropping charges against Mr Lehrmann. Mr Drumgold’s stated reason was the mental health of Ms Higgins. The Australian has been told that Mr Drumgold would have been aware of the central claims against him in the days leading up to his decision not to retry Mr Lehrmann.
In the submission, Mr Moses describes Mr Drumgold’s “inaction” over the emotional speech delivered by Ms Higgins outside court after Mr Lehrmann’s rape trial was aborted as “deeply troubling” and alleges the DPP failed to safeguard Mr Lehrmann’s fundamental right to a fair trial. Ms Higgins claimed in the speech that the criminal justice system had “long failed to deliver outcomes to victims of sexual assault”, that Mr Lehrmann had not been forced to surrender his mobile phone and data – as she had – and that he had not been held accountable for “his actions”. “Despite the trial judge giving a clear warning about the importance of preserving (Mr Lehrmann’s) right to a fair trial, (Ms Higgins) delivered a prepared speech to a crowd of waiting media at the front of the court,” Mr Moses said. “The speech attacked (Mr Lehrmann’s) right to silence, ignored the presumption of innocence, and impugned the fairness of the criminal justice system.” The speech clearly had the potential to improperly influence and place pressure on jurors in any retrial and was factually wrong because Mr Lehrmann did surrender his mobile phone to police, Mr Moses said. “In the absence of evidence from (Mr Drumgold) as to any warning given by him to (Ms Higgins) concerning the possibility that her conduct may undermine the integrity of the trial it may be inferred and therefore found that (Mr Drumgold) failed to take the most basic, obvious and fundamental of steps as part of his positive and inviolable duty to ensure a fair trial.” Not only was Mr Drumgold’s “inertia” inconsistent with his obligations as a prosecutor to safeguard Mr Lehrmann’s right to a fair trial, “but it also gives rise to the inference that (Mr Drumgold) condones the speech”, Mr Moses says in the draft opinion. In any event, Mr Moses said, by failing to take any effective steps to prevent the speech or remove it from publication, Mr Drumgold had been “complicit” in Ms Higgins’ conduct and “the prejudice to (Mr Lehrmann’s) right to a fair trial has occurred as a result of egregious conduct by the Crown, and those for whom the Crown is responsible”. An inquiry led by Walter Sofronoff KC is examining the conduct of the DPP, the Australian Federal Police and the ACT Victims of Crime Commissioner during the Lehrmann-Higgins saga.
The inquiry was sparked in part by revelations in The Australian that police believed there was insufficient evidence to prosecute Mr Lehrmann but could not stop the DPP from doing so because, in the words of one senior investigator, “there is too much political interference”. Those revelations were followed by publication in The Guardian of a letter sent by Mr Drumgold to police chief Neil Gaughan alleging “a very clear campaign” by police to pressure him not to prosecute Mr Lehrmann. Mr Sofronoff’s terms of reference include examining whether the DPP failed to act in accordance with his duties or acted in breach of his duties in making his decisions to commence, to continue and to discontinue criminal proceedings against Mr Lehrmann, and if he did, his reasons and motives for doing so.
The first public hearing of the inquiry began on Monday, the same day CJ McCallum elected to publish her judgment dated December 2 last year where she gave reasons for continuing to suppress material about the case – including the nature of the application for which Mr Moses had drafted his submission – even after the DPP announced he would not re-try Mr Lehrmann. Mr Drumgold told a press conference a retrial would pose a “significant and unacceptable risk to the life of the complainant” but surprised many in the legal profession by lauding Ms Higgins’ conduct and publicly stating he still believed there was a reasonable prospect of convicting Mr Lehrmann at a second trial. Several senior lawyers questioned whether it was appropriate for a DPP, who has a duty to the administration of justice rather than to individual complainants, to make public statements of that nature.
Mr Moses’ draft submission to the court was prepared in the days before Mr Drumgold’s decision not to proceed with the retrial, as part of the November 22 application brought by Mr Lerhmann’s lawyers. A past president of both the NSW Bar Association and the Law Council of Australia, Mr Moses has represented many of the highest-profile litigants and defendants in Australia during his 30 years at the Bar. When contacted by The Australian, Mr Moses declined to comment on the draft document. Senior lawyers have told The Australian that submissions must always be signed off by counsel only on the basis that there are evidentiary and legal grounds to advance the contentions contained in the submission. In his draft submission to the ACT Supreme Court, Mr Moses described Ms Higgins’ speech as “an extraordinary attack on the criminal justice system and the fundamental rights of an accused” that “deliberately generated adverse publicity to prejudice (Mr Lehrmann’s) ability to receive a fair trial”. “It denigrates (Mr Lehrmann’s) presumption of innocence and right to silence, and seeks to invert the Crown’s onus of proof, by implying that (Mr Lehrmann) is using a broken criminal justice system to conceal his guilt, as others have done before him.
Mr Moses said the prejudicial nature of the speech was amplified by a number of factors, including the widespread publication of the comments and the endorsement or support for Ms Higgins, including from then prime minister Scott Morrison, who apologised in parliament to her “for the terrible things that took place here”. Former prime minister Julia Gillard also publicly applauded Ms Higgins’ “courage in coming forward with her experiences, and her determination to make sure other women do not ever have to go through what she has”. Mr Moses also references the February 2022 National Press Club event when Ms Higgins spoke about “my rape”.
“The conduct of prominent persons and public institutions and the lending of credibility to (Ms Higgins) concerning her allegations against the accused has corrupted the process leading up to the trial in a way that is not capable of being remedied by directions given to a jury,” Mr Moses said. “This is an extraordinary case, where from the day the allegations became public the conduct of a complainant and the lending of credibility to her allegations against the accused by prominent persons and trusted public institutions has been unprecedented. “That unprecedented public conduct of (Ms Higgins) and others called for the most elementary of steps to be taken by (Mr Drumgold) to seek to ensure a fair trial.”
Mr Moses noted that Mr Lehrmann’s solicitor wrote to Mr Drumgold on November 14 last year raising concerns about Ms Higgins’ speech and asking what action he proposed to take, including steps to have any publication of it removed, and to ensure her conduct was not repeated. Mr Drumgold’s curt, three-sentence reply was “remarkable”, Mr Moses said. After confirming receipt of the letter, the DPP wrote: “My office does not make public comment about matters before the court, and we continue to strongly discourage everyone (including defence) from making public comment on a matter currently before the court.”
There was no evidence of any warnings that Mr Drumgold had provided to Ms Higgins about the importance of not making prejudicial public statements, or “that her conduct may undermine the integrity of the trial”, Mr Moses said. In the absence of such evidence the court could infer that Mr Drumgold had not done so, “and in failing to do so has failed to take easy and obvious steps in doing all things that are reasonably necessary to ensure a fair trial”. Mr Moses cites several cases in which Ms Higgins made public statements about the case after Mr Lehrmann was committed to stand trial, including interviews with The Australian Womens Weekly and Marie Claire magazine, an address at the National Press Club, and an Instagram post containing the transcript of a covertly recorded phone call between herself and a witness in the trial, Daniel Try. “There is no evidence of any warnings that (Mr Drumgold) has provided to (Ms Higgins) about the importance of not making public statements that could prejudice (Mr Lehrmann’s) right to a fair trial at any time from February 2021 to just before the speech. This begs the question as to whether (Mr Drumgold) has ever advised (Ms Higgins) that her conduct may undermine the integrity of the trial.”
Ms Higgins first spoke to police about the alleged rape on April 1, 2019, a week after the events at Parliament House, but informed them two weeks later she did not wish to continue with the allegations. On February 5, 2021, she re-engaged with police, telling them she had been interviewed by the media and did not want to do an evidence-in-chief interview until her interview with The Project host Lisa Wilkinson had aired on television. The following day police advised Ms Higgins that intended media events may jeopardise any subsequent criminal investigation. However, Ms Higgins made it clear to police she was not willing to provide investigators with a formal statement in relation to the allegations until the media stories had been published. Mr Drumgold did not respond to requests for comment.