The inquiry into the abandoned prosecution of former Liberal staffer Bruce Lehrmann has uncovered a loophole – that the Australian Federal Police (AFP) are not legally obliged to answer subpoenas from the inquiry.
Walter Sofronoff, who was appointed to run the board of inquiry – the ACT's equivalent to a royal commission – held his first directions hearing on Thursday, where he expressed despair at meeting his June deadline as a result of a delay in obtaining documents from police.
The hearing was told that it had emerged the AFP, which is also responsible for local policing within the ACT, was not obligated to answer subpoenas from the inquiry because the agency was bound by Commonwealth laws, not ACT laws.
However, lawyers told the inquiry the AFP planned to cooperate, in line with assurances given by the ACT's top police officer when the probe was announced.
The inquiry was set up after a letter became public in which the ACT's Director of Public Prosecutions (DPP), Shane Drumgold, complained to police he had been pressured not to pursue the case.
This morning, 45 minutes before the inquiry was due to begin, police provided a list of things they were preparing to supply and when those would be available.
But Mr Sofronoff said police had not provided the brief of evidence within the requested time frame.
"I have to have what Mr Drumgold had," Mr Sofronoff said.
"I have to have what police had."
Mr Sofronoff asked how he could meet his deadline, if materials critical to answering the terms of reference of the inquiry, including about whether police or prosecutors did the wrong thing, were not available.
He called on the parties to indicate in a short time, dates for when he could expect various documents requested.
"I need certainty," Mr Sofronoff said.
Lawyers for the police told the hearing there was a huge amount of material, including 100 gigabytes of footage.
"We anticipate data processing and review will take a large amount of time," lawyer for the police, Katherine Richardson, said.
She said the amount of footage would swamp the inquiry.
But Mr Sofronoff said the terms of reference required him to consider the decision of the DPP to charge Mr Lehrmann, and it would be hard for him to look into that if he did not have the briefs used in the case.
He queried whether adequate resources had been applied to the task.
It was also revealed one of the requests was for a possible audio recording or transcript of a phone call between Mr Lehrmann's lawyer Steve Whybrow and senior police officer Scott Moller.
Lawyers for Mr Drumgold also told the court he might invoke professional privilege over some of the documents he had been asked to produce.
Mr Sofronoff asked all parties to provide details of the material they will not be using and an explanation as to why within the next few days.
The trial of Mr Lehrmann over the alleged rape of Brittany Higgins was ultimately abandoned because of a juror's misconduct.
There have been no findings against Mr Lehrmann, and he maintains his innocence.
The inquiry is set to begin hearings by the end of April, with a report due by the end of June.
In separate court action, Mr Lehrmann is attempting to sue two media companies — Network Ten and News Life Media — as well as their reporters Lisa Wilkinson and Samantha Maiden over news reports he says identified him as Ms Higgins's alleged rapist.
The Federal Court is currently considering whether to allow the defamation action, which was lodged by Mr Lehrmann after the 12-month limit on claims.
