The head of an independent inquiry into the prosecution of Bruce Lehrmann provided embargoed copies of his final report to the media without the knowledge of the ACT government.
In an explosive statement on Thursday afternoon, an ACT government spokesperson said the government was “disappointed that the Sofronoff board of inquiry report has been released to select media outlets”.
Guardian Australia has confirmed that Walter Sofronoff KC, the chair of the inquiry, provided copies of the report under embargo to the ABC and the Australian, under the condition that they not publish its contents until after it had been released by the ACT government.
The findings were sensationally published by the Australian on Wednesday night.
However, the paper denied on Thursday night that it breached any embargo and added it would “not reveal” its sources.
The independent board of inquiry was established to investigate the ACT criminal justice system’s handling of Lehrmann’s prosecution for the alleged rape of Brittany Higgins. The final report of the inquiry by Sofronoff was handed to the ACT government this week but not publicly released.
The ACT spokesperson said releasing the report had “harmed” people involved and “affected the inquiry process”, contributing to an ongoing public discussion that has “been very difficult for all of the individuals impacted”.
The spokesperson said the report had been provided under embargo to selected media outlets, without any authorisation.
“The ACT is confident the report, either in draft or final form, was not obtained by media from government,” the spokesperson said. “The government has sought advice from the Board of Inquiry, which has confirmed it provided a copy to some media outlets under an embargo.
“This release was not authorised by or communicated to government prior to this release.”
The ACT police chief, Neil Gaughan, also spoke of his shock and distress at the premature publication of the report.
In a memo to his staff, seen by Guardian Australia, he said no one in ACT Policing, not even him, had seen the report.
“I am shocked and distressed by this – feelings I am sure all of you share,” he wrote. “What makes this more difficult is that no one in ACT Policing, including myself, or the broader AFP, has obtained, or even seen, this final report yet.”
Gaughan said he had spoken with the police minister, Mick Gentleman, to “stress the personal and professional impact on our members”. The government had planned to take a month to consider and respond to the findings, time Gaughan said was also designed to give police the chance to “engage with officers and carefully consider findings and recommendations”.
“Unfortunately and regrettably, which I recognise are understatements given the significant repercussions of media reporting today, factors beyond our control have led to the situation we find ourselves in,” he said.
“It would be remiss of me not to acknowledge the impact of this report, and its leaking, on the ACT criminal justice system and the Canberra community’s confidence in it.”
The ACT government spokesperson said it now planned to release the report early next week. It said the individuals identified “must be afforded procedural fairness, including the Director of Public Prosecutions (DPP)”.
“The ACT Attorney-General is in contact with the DPP in relation to the findings relating to him,” the spokesperson said.
“Following this, the ACT Government is preparing to release the report formally along with the government’s interim response to the recommendations early next week.”
The inquiry’s findings were handed to the government on Monday. The ACT government had initially said it would not release them publicly for a month, to allow for a cabinet process and appropriate response.
The Australian and the ABC were approached for comment.
Sources have told Guardian Australia that the findings are critical of the DPP, Shane Drumgold, finding that he failed in key areas and misled the court during the prosecution of Lehrmann for the alleged rape of Higgins.
The inquiry also found police had enough evidence to charge Lehrmann with the rape of Higgins, sources say.
That finding does not establish Lehrmann’s guilt or innocence, just that the police and the DPP acted appropriately in bringing charges.
Higgins alleged Lehrmann, a former colleague, raped her in Parliament House in 2019. Lehrmann, who pleaded not guilty to one count of sexual intercourse without consent, has always denied the allegation of rape and no findings have been made against him.
Lehrmann was tried by the ACT supreme court in October but a mistrial was declared due to juror misconduct. Prosecutors later dropped the charges against him because of fears about the impact a second trial would have on Higgins’s mental health.
Drumgold said on Thursday he was unable to respond to the findings because he had not seen the report.
“Unfortunately I have neither seen the report, nor have I been informed of any content so I am not in a position to respond,” he said.
The police union said ACT Policing had also not seen the report before its contents were published. The Australian Federal Police Association demanded the ACT government immediately release it, saying there was now no point in hiding the findings.
Lehrmann said he did not have a copy of the report, and the lawyer who represented him at trial, Steve Whybrow SC, also said he was yet to see a final copy.
