The ACT Director of Public Prosecutions (DPP) has been quizzed in an inquiry about why he sought to prevent the release of a police report which raised concerns about the details of Brittany Higgins's rape allegation against Bruce Lehrmann.
The Board of Inquiry, led by former Queensland Judge Walter Sofronoff, is looking into the conduct of prosecutors, police and the ACT Victims of Crime Commissioner during the prosecution of Mr Lehrmann.
Mr Lehrmann's trial was abandoned and there are no findings against him — he maintains his innocence.
The inquiry was set up after the DPP, Shane Drumgold, raised concerns he had been pressured by police not to pursue the charge against Mr Lehrmann.
During proceedings on Monday, Mr Drumgold was asked whether he had sought to block a police report on the case from being released, to which he replied that he believed it contained "irrelevant material".
In that document, prepared by detective superintendent Scott Moller and dubbed the Moller report, police described Ms Higgins as evasive, uncooperative and manipulative, arguing they were concerned about proceeding with the charge.
The full briefing released on Tuesday lists police allegations including that Ms Higgins repeatedly refused to provide police with the phone she was using at the time of the alleged incident, before eventually handing it over.
Investigators also alleged there were phone messages which indicated Ms Higgins deliberately deleted content from her phone before giving it to the police.
"I'm clearing out my phone ahead of police", the text allegedly said.
Police also said that after extensive inquiries they could find no records stating that Ms Higgins had received any medical help after the alleged incident, despite her telling investigators she had visited multiple doctors.
Suite of documents released
A further discrepancy was alleged by police in the accounts of Ms Higgins and a security guard working at Parliament House on the night of the alleged rape.
According to police, Ms Higgins said her dress was around her waist after the alleged rape, while the security guard who conducted a welfare check on her later that night described finding her naked.
Police also claimed Ms Higgins had sought medical advice when there was no evidence she had.
They further alleged that Ms Higgins had told her boss, former Liberal Minister Linda Reynolds, about the assault, when Senator Reynolds said she was not told there was a sexual assault during their meeting.
Other documents revealed police were concerned Mr Lehrmann's account did not seem plausible — that two people would go into an office late at night and have no further contact.
Police also alleged in separate documents that a witness claimed Ms Higgins and a former boyfriend had sex on multiple occasions in the office where she was allegedly sexually assaulted — an allegation that was not included as evidence in the trial and was never tested in court.
The documents also list alleged discrepancies between the accounts of Ms Higgins and Mr Lehrmann.
Drumgold believed Moller report would be 'crushing'
On Tuesday during his second day of evidence to the inquiry, Mr Drumgold was quizzed over why he sought to prevent the release of the Moller report.
"I had some concerns that this would be crushing to the complainant," he said.
Mr Drumgold said if Ms Higgins heard that a senior police officer was writing what could be interpreted as "pejorative" comments about her, it "would inhibit her ability to engage in the trial".
He has repeatedly insisted that there was no valid reason for disclosing the Moller report.
"It was akin to somebody just offering gratuitous, stereotyping assessments of credibility," Mr Drumgold said.
Mr Drumgold has told the inquiry he believed the document was the subject of legal professional privilege because AFP Legal had sought his advice about its contents.
But the document was ultimately released to Mr Lehrmann's legal team to comply with a subpoena.
Counsel assisting the inquiry Erin Longbottom KC challenged Mr Drumgold's account.
"You acted on assumption rather than actually asking AFP Legal," she said.
"They were asking for my input into their decision, I was not making a conclusion," Mr Drumgold replied.
Drumgold read counselling notes
The inquiry has also heard the DPP read notes from Ms Higgins's counselling sessions after they had been improperly disclosed to lawyers for Mr Lehrmann.
Such material is typically treated as protected confidence by the court and cannot be seen without consent.
Emails shown to the inquiry reveal police served the brief of evidence directly to the defence, without first going through the DPP's office.
An email chain confirms the brief included sensitive information, such as notes from Ms Higgins's counselling sessions after the alleged incident, as well as personal details such as her address and phone number.
On Tuesday, Mr Drumgold revealed he also looked at the counselling notes.
"I had to know what was disclosed … I had to work out what remedy was required," he told the inquiry.
"I already knew that one or more police had taken a particular preliminary view on the brief, and I now knew ... some protected material had been served.
"I'm asking myself; 'are those two things connected?'"
Judge Sofronoff challenged Mr Drumgold's claim that it was necessary for him to also read the documents, noting he became "agitated" at learning they had also been delivered to the defence.
"Doesn't the same apply to you?" the judge asked.
"You're overstating what I did — I perused the counselling notes to get a basic understanding of what was in them," Mr Drumgold replied.
Ms Longbottom asked Mr Drumgold whether reading the notes reflected a proper discharge of his duties as a prosecutor.
"I'm accepting that I should not have read the counselling notes," he said.
'Boofheads': Drumgold allegedly scathing of police
Mr Drumgold told the inquiry on Tuesday of his initial meetings with police investigating the case.
Mr Drumgold said he was taken aback by the tone of the first meeting, and efforts to thwart the prosecution.
"I perceived it as 'we've got this investigation, here's some gotcha points, of course you'll agree with us that the investigation shouldn't continue'," Mr Drumgold said.
"That was the perception that I got of that first meeting."
Further documents released in the inquiry also show a senior detective in the investigation told Mr Lehrmann's barrister, Steve Whybrow, he thought his client was innocent and that he would quit if Mr Lehrmann was found guilty.
In his statement to the Board of Inquiry, Mr Whybrow said Detective Inspector Marcus Boorman asked to meet him for a coffee on October 25, 2022.
"When I met with him he appeared to me to be anxious and agitated and concerned we not be seen speaking together in direct line of sight of the [office of the Director of Public Prosecutions]," Mr Whybrow said.
In his statement, Mr Whybrow said Detective Inspector Boorman was quite distressed about the prosecution and made several comments along the lines of: "If the jury comes back with a guilty verdict, I'm resigning."
"I had never before had a conversation with a police officer who had indicated they were going to resign because they had been ordered to prosecute someone they considered was innocent," Mr Whybrow said.
Mr Whybrow also criticised Mr Drumgold, who he said did not act as an objective "minister for justice", as the matter was compromised from the outset by adverse media publicity.
He said he was concerned about the DPP's public criticisms of police.
Mr Whybrow also said during a break in the trial, Mr Drumgold approached him in the context of a discussion as to what evidence might be led by Detective Inspector Boorman or Detective Superintendent Moller.
In his statement, Mr Whybrow claimed that Mr Drumgold called the police officers "boofheads".
"Any opinion by those boofheads about the strength of this case is not admissible," Mr Drumgold allegedly said.
