Bruce Lehrmann has lodged a formal complaint of professional misconduct against ACT Director of Public Prosecutions Shane Drumgold SC, alleging Mr Drumgold failed to ensure a fair trial over the Brittany Higgins rape allegations and that his conduct was driven by malice and “political interests”.
The explosive allegations are contained in a complaint to the ACT Bar Council and are expected to form the basis of a detailed submission to the Board of Inquiry led by eminent retired judge Walter Sofronoff KC.
The inquiry will examine whether the prosecutor or police failed to act in accordance with their duties and if so, their “reasons and motives” for their actions.
In his complaint, dated December 9 last year, Mr Lehrmann says: “It is apparent over the past number of days that the director continues to display professional misconduct by pursuing the matter through the media, despite him discontinuing the prosecution.
“His public behaviour continues to smear my name and the presumption of innocence that is a cornerstone of our justice system and that demands him to uphold.
“More importantly to me, he impugns the conduct of my legal team, who have been family to me and without them, I would not be here today.”
Mr Lehrmann alleges Mr Drumgold “repeatedly and frequently” failed in his prosecutorial obligation to ensure a fair trial.
“I contend that his conduct was driven by malice towards me personally. I also consider that his conduct was political,” he says.
“I take the view that the director’s behaviour was consistent with a legal practitioner who was acting in the interests of a particular person, bolstered by political interests on the part of the director and possible third-party political interference, rather than in the overall interests of justice.”
Mr Lehrmann says he has been living in Tasmania, “seeking respite for some time away from the aggressive media spotlight” at the recommendation of his clinical psychologist, but is prepared to return to Canberra to give evidence in any investigation.
A spokesman for Mr Lehrmann told The Australian on Wednesday that he welcomed the appointment of Mr Sofronoff as someone of significant and eminent standing to conduct the inquiry, and that he would co-operate “fully and openly” with the inquiry.
Mr Sofronoff, who previously served as solicitor-general for Queensland and president of the Queensland Court of Appeal, also led the Grantham Floods Inquiry in 2016 and the recent commission of inquiry into failings at the state’s DNA testing laboratory.
Mr Lehrmann has not had a substantive response to his complaint to the ACT Bar Council, which details seven instances of alleged misconduct.
He claims Mr Drumgold’s decision to prosecute was malicious and/or subject to political interference, citing an article in The Australian in December which revealed that the most senior police officer on the Higgins case believed there was insufficient evidence to prosecute Mr Lehrmann but could not stop Mr Drumgold from proceeding because “there is too much political interference”, according to diary notes made by the ACT Police Manager of Criminal Investigations, Detective Superintendent Scott Moller.
The Australian also revealed that Superintendent Moller had advised that investigators “have serious concerns in relation to the strength and reliability of (Ms Higgins’) evidence but also more importantly her mental health and how any future prosecution may affect her wellbeing”.
Those revelations came the day after Mr Drumgold withdrew the charges against Mr Lehrmann, citing concerns for Ms Higgins’ mental health, and prompted demands for a public inquiry into the handling of the trial.
Concerns about the trial were further raised following publication of a letter Mr Drumgold sent to ACT police chief Neil Gaughan alleging “inappropriate interference” by police during the investigation and trial.
The circumstances in which that letter was released by Mr Drumgold under Freedom of Information laws – to The Guardian newspaper but withheld from other media outlets – will also be specifically investigated by the Sofronoff inquiry.
In his complaint, Mr Lehrmann further claims that Mr Drumgold failed to warn Ms Higgins that repeated public comment and conduct would undermine the integrity of the criminal trial.
Mr Lehrmann cites a speech Ms Higgins gave on the steps of the court.
Mr Lehrmann says his lawyers wrote to Mr Drumgold asking what he had done to have publications repeating the speech removed from circulation and what steps were proposed to ensure that Ms Higgins’ conduct was not repeated.
Mr Drumgold’s reply, he says, was “shocking”.
In a three-sentence response Mr Drumgold confirmed receipt of the letter but provided no evidence he had given any warning to Ms Higgins.
“This begs the question, did the director ever give such a warning to Ms Higgins through this matter,” Mr Lehrmann says.
“In the absence of any evidence from the director, I contend that he has not.”
Mr Lehrmann also says his former lawyer John Korn had a phone conversation with Mr Drumgold the day before Ms Higgins was to address the National Press Club, to establish whether he would provide a warning to Ms Higgins.
“His reply to Mr Korn was remarkable,” Mr Lehrmann says. “The director indicated it was not his place to tell her what to do or say in the media.
“Mr Korn maintains detailed, contemporaneous file notes about his conversations with the director.”
Mr Lehrmann says the prosecutor failed to take any reasonable steps to remove the National Press Club statements from circulation, or to seek removal of other material broadcast by Channel 10 on The Project interview, an ABC Four Corners report and other media reports.
The only steps Mr Drumgold took, he says, were to remove from circulation a book called Ego, by Aaron Patrick, which was about former prime minister Malcolm Turnbull’s attempt to undermine the Liberal Party but did not engage on any fact in issue at the trial.
“This unequal treatment exacerbates the failure to take any steps to remove the particularised material, is evidence of motive, and may also be the result of political pressure from a third party,” Mr Lehrmann alleges.
Mr Lehrmann also alleges a failure by Mr Drumgold to provide sufficient warning to prospective witnesses that any public comment could undermine the integrity of the trial.
He notes that an apology letter from Channel 10 to the Supreme Court alluded to insufficient warning by the director to Lisa Wilkinson about her Logies speech, which ultimately resulted in the trial being delayed for several months.
Mr Lehrmann also cites Mr Drumgold’s alleged failure to prevent a personal profile about himself being published in The Weekend Australian’s magazine on October 20 last year while the jury was deliberating – and doing so under a “Black Direction” (a direction by a judge to a jury to reconsider the votes of a small number of jury members if they cannot decide).
Mr Lehrmann says Mr Drumgold defamed him in his statements announcing the discon-tinuance of the trial by publicising his view that a successful prosecution was still possible.
“By giving the statement he did, he undermined the presumption of innocence and advocated for a particular individual (being Ms Higgins) rather than the proper and fair administration of justice,” he says.
He further alleges that on several occasions Mr Drumgold failed to disclose certain material when asked for it by the defence, including the Australian Federal Police material later revealed in The Australian, described as The Moller Report.
“The director informed the defence for some time that it was legally privileged material,” Mr Lehrmann says.
“Given the director’s position and him having taken silk, you would have to assume his legal credentials are of a nature in which he knew the documents were not his to claim privilege, but he knowingly delayed handing the material over as it impugned his behaviour in the lead-up to the prosecution progressing.
“The director cared more about his image than the fair and proper running of a criminal trial.
“When asked of the AFP (material) via subpoena the documents were immediately handed over without question, however, a mere few weeks before the commencement of the trial given the director’s interference.”
Ms Higgins alleged Mr Lehrmann raped her on the couch in the office of Senator Linda Reynolds in the early hours of March 23, 2019, after a night out drinking with colleagues.
The former staffer went public with her story on February 15, 2021, before making a formal complaint against Mr Lehrmann with the AFP.
The trial was aborted in October last year due to juror misconduct.
Mr Lehrmann pleaded not guilty and has at all times denied the allegations.
The DPP has since withdrawn the charges.
Mr Drumgold was approached for comment.
The board of inquiry is expected to deliver its report by June 30.