Protected evidence in the case of a man charged with the sexual assault of Brittany Higgins — including counselling notes and video recordings — was unlawfully disclosed to the defence by the Australian Federal Police, according to a formal complaint to the AFP.
The revelation is the latest twist in what has already become a complex and contentious court case after the defence moved earlier last month to have the trial delayed indefinitely or, failing that, temporarily due to adverse publicity. A decision on the application by the chief justice of the ACT Supreme Court, Chief Justice Lucy McCallum, has been expected for some weeks.
The trial of the accused man is set down for June.
Ms Higgins filed a formal complaint with the AFP last week.
Ms Higgins says in the complaint that the ACT director of public prosecutions (DPP) Shane Drumgold, had made her aware that the AFP had "unlawfully disclosed protected material to the defence counsel given as evidence including two years of confidential counselling notes and video recordings of my Evidence in Chief interviews".
"Since this date the DPP of the ACT has been in regular contact with various members of the AFP to ascertain how this breach occurred and under whose authority", the complaint continues.
"This has yet to yield any satisfactory results and has had a significant impact on my personal wellbeing."
A summary of email communications with the AFP provided to Ms Higgins by the DPP, and seen by the ABC, reveals an increasingly unhappy Mr Drumgold expressing frustration with the police for their tardiness in trying to clarify that the defence had not accessed the material that had been unlawfully handed over, and in acting to have them returned.
Ms Higgins says in her complaint that she has been advised "that I have grounds to make a complaint under the Evidence (Miscellaneous Provision) Act 1991" given that "sexual Assault Counselling notes are protected under s79A [of the Act] making them subject to immunity under s79D requiring leave under s79E to be disclosed".
Her complaint says that while the accused is "entitled to a copy of the transcript", the accused can "only have access to the audio recording", and then only after specifically applying for it under the act.
AFP confirms it handed evidence to defence team
In addition to the unlawful disclosure of protected evidence, the ACT director of public prosecutions, Mr Drumgold, revealed to Ms Higgins that the police had directly handed over the brief to the defence counsel, bypassing the requirement that it be handed over via the DPP.
Information provided to Ms Higgins by Mr Drumgold documents the chain of events and emails involved in the handling of the brief of evidence by the AFP, which first advised the DPP that the brief of evidence had been served on the defence on August 6 last year.
The DPP wrote to the police seeking confirmation of what exactly had been served and seeking confirmation that a list of sensitive material, including counselling notes and the evidence in chief video, had not been served.
When the police subsequently confirmed that the sensitive non-disclosable material had indeed been handed to the defence, the DPP wrote to the AFP expressing "deep concerns, outlining [the] requirement [for] immediate remedial action to retrieve and destroy [the] brief of evidence and seeking statements from relevant people outlining why and how [the] brief was served directly on [the] defence".
The AFP subsequently wrote to the defence requiring them to delete the brief. The DPP then served a copy of the brief on the defence without the offending material.
The DPP contacted the accused's lawyer, Warwick Korn, directly to confirm he had acted on the email from the AFP and was told by Mr Korn that he had not accessed the material but did not know how to delete it.
Mr Korn subsequently emailed the AFP in early October confirming that "in terms of the USB stick that you served on me (at the time of service of the Court Attendance notice), I have NOT viewed, downloaded or printed, any of the material contained on that USB stick".
"The reason for that is that shortly after receiving the USB, I opened the stick, and simply saw by name the Folders of Items listed on the stick. It seemed to me from what I saw, that it did not look like a DPP Prosecution Brief, certainly not in the form that I'm used to seeing here in the New South Wales District Court system. I took the view that it looked like, what I might term, an Investigators Brief, and my intention was to wait and see what Brief would be served by the ACT Directors Office."
The DPP was not satisfied and emailed the AFP seeking further details surrounding the circumstances.
In response to the DPP's demands to know who had made the decision to hand the brief directly to the defence, the AFP informed the DPP of the policeman's name and said "his reason for this decision and direction are as follows:
- "The brief of evidence had been assessed by the ACT DPP
- "The investigation had been independently reviewed
- "There was a desire to expedite the matter
- "There was a requirement to implement efficiency in the COVID-19 environment"
A spokesperson for the DPP said he declined to comment on the matter, as it was currently before the court.
A spokesperson for ACT Policing confirmed "a complaint has recently been received regarding the investigation into an alleged sexual assault that occurred in 2019. While this complaint is progressed and the matter associated with it is before a court – ACT Policing is not able to provide further comment".
Comment has been sought from Mr Korn.
