Professionalism of ACT's DPP brought into question at Board of Inquiry into handling of Lehrmann case

Giving false submissions in court and lack of professionalism – these are some of the allegations put to ACT Director of Public Prosecutions (DPP) Shane Drumgold SC during the first day of hearings for a Board of Inquiry into the Territory’s criminal justice system.

One line of inquiry by counsel assisting Erin Longbottom KC related to journalist Lisa Wilkinson, who had been listed as a witness during the trial but wasn’t called.

She underwent a ‘proofing’ interview on 15 June 2021 with Mr Drumgold and members of the prosecution’s legal team, which is where the timing and process of a trial is explained to a witness, as well as giving lawyers a chance to run through their statement and check its veracity.

It was submitted Ms Wilkinson read to the team her acceptance speech, which she had prepared in case she won a Logie for a story she did with complainant Brittany Higgins, asking whether her words would be appropriate given the trial was just weeks away.

Mr Drumgold said he didn’t recall this happening but admitted he maybe “wasn’t paying the attention” he should have been.

“I would accept that I entirely misread [that situation] … I was not, in my mind, dealing with a real issue,” he said.

“We were definitely talking about an unlikely hypothetical [that Ms Wilkinson would win], so it was given that attention.

“In hindsight, it wasn’t … had I known that, I may have paid closer attention at the time.”

Ms Wilkinson won a silver Logie for her report and gave her speech on the night of 19 June.

In a 20 June email tendered during the hearing, Mr Drumgold confirmed he wanted added to the proofing notes that Ms Wilkinson had brought up the fact she had a speech prepared, but that he’d responded, “we are not speech editors” and advised Ms Wilkinson and her representatives that any commentary could result in a stay application, delaying the trial.

“My goal was to tell her any publicity could give rise to a stay,” he said.

“There were boundaries I couldn’t cross … I’m not [Ms Wilkinson’s] legal advisor.

“I thought it was abundantly clear … and that they’d decided to abandon the speech.”

Mr Lehrmann’s legal team applied for an urgent stay application following the speech, citing it could mislead a potential jury, with the trial date set at that time for 27 June.

During this, Chief Justice Lucy McCallum had asked Mr Drumgold about the proofing notes, asking if they were made “contemporaneously”, which he confirmed.

Ms Longbottom accused this statement by Mr Drumgold of being “false and knowingly false”.

“No, I don’t accept that,” Mr Drumgold replied.

Inquiry chair Walter Sofronoff KC questioned this further, stating the emails showed the references to Ms Wilkinson bringing up her speech were added to the proofing note later on.

“So are you saying you misled Her Honour?” he asked Mr Drumgold.

“Well, unintentionally … I accept I was probably in error,” the DPP replied.

Mr Drumgold’s professionalism was also questioned when it was revealed he had had phone conversations with one of Ms Wilkinson’s legal representatives about media commentary stating she was in contempt of court.

Ms Longbottom submitted conversations about “correcting the record” began after Ms Wilkinson gave her Logie speech, and reached a crescendo after the mistrial had been announced, when an email was sent to Mr Drumgold on 1 December asking him to make a public statement that Ms Wilkinson was not in contempt of court.

This was followed up on 5 December and 13 December, along with missed phone calls.

Ms Longbottom questioned if he ever responded.

“Possibly not, but gee, a lot was happening at that time … I was a bit preoccupied,” Mr Drumgold replied.

While he agreed he should have given the professional courtesy of responding and explaining he wasn’t going to make a statement, Mr Drumgold also argued he had never made such a clarification on media reports previously.

“What was being asked of me was completely beyond my remit,” he said.

“I’m not a publicist. I’m the Director of Public Prosecutions.”

The last point of the day was over exchanges between Mr Drumgold’s office and AFP Legal over who applied for legal privilege to investigative review documents referred to in the media as the “Moller report”.

Superintendent Scott Moller was involved in the investigation and had expressed to the then-Deputy Chief Police Officer Michael Chew that he felt the case shouldn’t be pursued.

Mr Drumgold said he thought Supt Moller’s report wasn’t admissible because it was “opinion evidence … based on inadmissible evidence” and was “very pejorative”, but that it was up to the AFP’s legal team to classify the documents.

Tendered emails suggested it was Mr Drumgold who had given that advice.

Ms Longbottom asked why notes from a 19 July meeting discussing the disclosure of the investigative review documents stated, “the DPP says all [these documents] are subject to legal privilege”.

Mr Sofronoff questioned how Mr Drumgold could give this opinion when it appeared “you don’t seem to have all the facts”.

Mr Drumgold replied: “I’m not making the decision … I’m being asked based on the assumption they [the police] will gather evidence from everywhere.

“I’m not giving any legal advice to AFP Legal. They’re asking my opinion.”

Last week, the Terms of Reference for the inquiry were updated to better probe Mr Drumgold’s motivations and involvement during the case against Mr Lehrmann, which was eventually dropped following a mistrial.

No findings have been made against Mr Lehrmann and he has maintained his innocence.

Questioning of Mr Drumgold continues tomorrow.