The juror who brought outside material into Bruce Lehrmann’s rape trial was also the juror holding out on a conviction, an inquiry has heard.
The ACT director of public prosecutions, Shane Drumgold SC, said he believed the juror who brought in outside research papers on sexual assault, which resulted in the trial being abandoned, had also been holding out on convicting Lehrmann.
Lehrmann has consistently denied allegations that he raped Brittany Higgins, a colleague and fellow political staffer, in the office of the then defence industry minister, Linda Reynolds, in March 2019. He pleaded not guilty to one charge of sexual intercourse without consent, denying that any sexual activity had occurred.
Drumgold had said on Wednesday that he had “noticed things in the jury that suggested that there was one person who was not in favour of the others”.
When asked by Walter Sofronoff KC, who is in charge of the inquiry, whether Drumgold was reading the jury to determine whether he would get a conviction, and observed that apart from one juror a conviction was likely, Drumgold agreed.
Drumgold revealed on Thursday that the same member who he believed was against the conviction had brought in the material.
“Was that the same juror you had perceived as holding out?” asked Mark Tedeschi KC, Drumgold’s lawyer.
“Yes it was,” Drumgold responded.
Earlier on Thursday, Drumgold said he no longer believed there had been political interference in the case.
Drumgold is the first witness at an independent inquiry investigating the prosecution of Lehrmann.
Drumgold made explosive claims on Wednesday, saying he feared that Reynolds, and to a lesser extent Senator Michaelia Cash, had applied pressure on federal police, who in turn pressured ACT police, not to charge Lehrmann, and derail his prosecution.
He said this concern about a “possible if not probable” political conspiracy was the motivation for a November 2022 letter he wrote to the ACT chief police officer, Neil Gaughan, after the collapse of the first trial.
The letter outlined serious allegations regarding several police, and called for the inquiry that is currently being held.
But Drumgold said on Thursday that after reviewing statements provided to the hearing, he now believed a “skills deficit” of ACT police explained “the many strange things” that he was concerned about in the case.
These issues included that a full brief of evidence containing Higgins’ counselling notes was incorrectly provided by police to Lehrmann’s legal team; the “passionate” views of certain officers that the case was weak; the decision of police to interview the ACT victims of crime commissioner, who was acting as a support person to Higgins; and the interactions between police and Lehrmann’s lawyers during the trial.
Under questioning from Tedeschi, Drumgold said his current view was that these issues were most likely caused by a “skills deficit” of officers involved in the investigation, including senior police.
He also confirmed he had not personally been subject to any political interference.
When asked by Sofronoff whether he now accepted that he was mistaken about possible political interference in the case, Drumgold responded: “I do accept that.”
Drumgold said the conduct of officers who ran the investigation – including detective leading senior constable Trent Madders, who claimed he was physically ill when Lehrmann was charged, and detective inspector Marcus Boorman, who refused to be involved in charging Lehrmann, underlined his concerns.
“If you’re central to an investigation and your mindset is such that you’re going to be physically ill if your investigation results in charges, it can’t do anything but interfere with your objectivity during the course of an investigation.
“These were key people in an investigation, these people ran the investigation … they engaged with the complainant, every time the complainant went in to give some evidence, these were the views she was met with.
“That’s the vice in this. Regardless of the motives behind it, that’s the vice.”
Drumgold had earlier been asked about a diary note taken by one of the investigating officers, detective superintendent Scott Moller, during a 2021 meeting he had with the ACT deputy chief police officer, Michael Chew, in which Moller said Chew commented that “if it was my choice I wouldn’t proceed. But it’s not my choice. There is to [sic] much political interference.”
He said the inclusion of this note in Moller’s statement before the trial was one of the matters that made him concerned about possible interference.
Drumgold added that he was concerned by comments made in the media by the AFP commissioner, Reece Kershaw, and then home affairs minister Karen Andrews that he was considering the brief of evidence relating to charging someone with the Higgins matter – despite him informing ACT police a month earlier that his advice was that charges could proceed.
He described these developments and others as further “crosswinds”, given he had also felt during his first meetings with police months earlier that they did not believe there was enough evidence to charge.
Drumgold said the broader context of his office attempting to work with ACT police to overhaul their handling of sexual assault matters was also significant. In his statement to the inquiry, Drumgold says that during a November 2021 meeting between staff from his office and police, an officer said to an OPP lawyer words to the effect of: “It doesn’t matter what she says, police will decide when to charge.”
Sofronoff asked Drumgold whether he believed the investigating police had founded their mistaken beliefs about the weakness of the case on “rape myths”, and that while they in good faith held those views, they were wrongheaded.
Drumgold agreed, but added he was more concerned that the views held by officers caused a confirmation bias towards evidence and “infected” the entire case.
He said the fact the matter proceeded to trial, and that a jury spent several days considering a verdict, showed there had been reasonable grounds for conviction.
Drumgold said he felt “enormous sympathy” towards one of the investigating officers, Boorman, who said he would resign if Lehrmann was found guilty, according to a statement provided to the commission.
“Clearly he’d lost objectivity to such an extent [if] he was going to resign because of it,” Drumgold said.
According to another statement provided to the commission by John Korn, a lawyer who represented Lehrmann, Drumgold was told to prevent Higgins giving a speech at the National Press Club in February 2022.
Korn says in his statement that he called Drumgold two days before the speech was due to occur.
In a record of the call he says he took shortly after the conversation, Korn says he told Drumgold that Higgins should not be standing on a podium speaking as a survivor of sexual assault in relation to a matter that Lehrmann had denied occurred.
Korn said Drumgold replied in a “mocking tone that I thought was very inappropriate”: “Oh no no no that’s not the way I see it.”
“I responded in a somewhat inappropriate way and said: ‘Mr director, I don’t give a fuck how you see it, but every right-minded person in Australia, including me, would see it that way and she should not speak on that podium from that perspective.’”
Drumgold said he did not propose to do that.
He has not been asked about the interaction during his evidence at the hearing.
The hearing continues.
