Second day of Board of Inquiry raises further questions about DPP handling of Brittany Higgins' evidence

Director of Public Prosecutions Shane Drumgold SC admitted he didn’t want the AFP investigative review document “[falling] into the hands” of Bruce Lehrmann’s defence lawyers as they contained “pejorative” statements and “gratuitous stereotyping-type assessments of credibility” relating to Brittany Higgins.

On the second day of hearings for the Board of Inquiry into the Territory’s criminal justice system, Mr Drumgold told inquiry chair Walter Sofronoff KC he didn’t think the documents should be disclosed as “essentially it says a senior police officer, through a stereotype bias analysis, has drawn particular conclusions about a complainant”.

“I had some concerns that this would be crushing to the complainant,” he said, though he denied that these concerns informed decision-making.

Yesterday, Mr Drumgold told the hearing that the documents were “opinion evidence … based on inadmissible evidence”. The documents, prepared by Detective Superintendent Scott Moller, were later shared with Mr Lehrmann’s defence by subpoena.

The documents, known as the ‘Moller report’, have now been made available to the public, suggesting alleged discrepancies in Ms Higgins’ account. These include:

• Ms Higgins repeatedly refused to provide her phone.
• Investigators later identified phone messages indicating Ms Higgins deliberately deleted content from her phone, including a message stating, “I’m clearing out my phone ahead of Police”.
• Ms Higgins claimed she had sought medical attention, but no records were identified to support this.

Counsel assisting the inquiry Erin Longbottom KC then turned to the topic of the trial brief provided by the police to Mr Lehrmann’s lawyers in August 2021.

In his statement, Mr Drumgold said he was “shocked” the brief had been given to the defence at the same time as the summons as there was usually a “vetting” process to ensure the brief was correct and did not contain any non-disclosable material.

However, in September 2021, Mr Drumgold discovered the brief contained notes from Ms Higgins’ meetings with counsellors, as well as unredacted contact details for Ms Higgins and other persons (including her counsellors), and audio-visual evidence of Ms Higgins’ police interviews that should have been provided in transcript form only.

Mr Drumgold contacted Mr Moller shortly after, calling the information “deeply concerning” and asking for it to be corrected “as a matter of urgency”. Mr Lehrmann’s lawyers had not opened the memory stick containing the files and agreed to destroy them.

He said that the release of the brief would “become relevant to a fact in issue, as well as credibility issues”.

When asked by Ms Longbottom what this meant, Mr Drumgold said that the complainant had “raised concerns that information was deliberately being disseminated by police”, suggesting this was also the reason for her reluctance to hand over her phone.

Mr Drumgold said that the counselling notes had “probably not” been intentionally disclosed, and his primary concern at the time was that the documents would be used by Mr Lehrmann’s defence.

“I’ve already received information that the complainant is highly vulnerable and I’m concerned that this will aggravate that,” he said.

“I really want to be in a position to give some solace that this is not part of an attempt to derail the prosecution … This event would be the straw that broke the camel’s back.”

When Mr Sofronoff asked Mr Drumgold why he felt it was appropriate to read the counsellor notes himself and whether he had considered the impact this might have on Ms Higgins if she were to find out, he said his “main concern was the broader dissemination” and that “at the time … I was trying to work out the immediate damage”.

Though he said “we’re overstating what I did … I perused,” he accepted “that I should not have read the counselling notes”.