The Australian Capital Territory’s top prosecutor privately complained of the “disturbing” conduct of former cabinet minister Linda Reynolds during the trial of Bruce Lehrmann, including her alleged coaching of his defence team, her attempt to solicit transcripts and the presence of her partner in court.
Guardian Australia revealed last week that the director of public prosecutions, Shane Drumgold SC, had sent a letter of complaint to the chief of police, Neil Gaughan, on 1 November, just after the trial against Lehrmann collapsed.
Lehrmann, who has consistently maintained his innocence, pleaded not guilty to one charge of sexual intercourse without consent. The collapse of his trial leaves him with the presumption of innocence.
Drumgold’s letter, released to the Guardian under freedom of information laws, principally complained about police investigators, saying they had engaged in a clear campaign to pressure him to agree with their position, which was that charges should not be laid.
But the letter also shows he complained about the conduct of Reynolds, describing it as “disturbing”.
During the trial, the ACT supreme court heard Reynolds had texted the defence barrister Steven Whybrow while Higgins was in the witness box, seeking transcripts of her evidence in the trial. The request was made two hours into Higgins’ cross-examination on 6 October.
Reynolds also suggested to Whybrow that texts between Higgins and another former Reynolds staffer, Nicole Hamer, may be “revealing”.
In court, Drumgold asked Reynolds why she had attempted to “coach the cross-examination”.
Reynolds replied: “That’s not what I was seeking to do.”
She said she had not been through a court process before and thought it was appropriate to talk to both prosecution and defence counsel.
“Well, with respect, I’ve met with you and you’d be aware that I have met with the defence counsel and both of you have asked me questions and there was never any suggestion that it was inappropriate to talk to either of you,” she said.
Drumgold also asked why she had been attempting to seek transcripts of evidence, prompting Reynolds to say she was “curious to know what had been said”. She said she was later advised it was inappropriate and the transcripts were not sent.
Reynolds was also pressed on why her partner was in the court.
She said her partner had been clearly instructed not to speak with her about the case, and that they had not done so.
Drumgold said: “You’re saying that your partner has sat in the back of the court through Ms Higgins’s evidence and you’ve not once asked him about Ms Higgins’ evidence?”
Reynolds replied: “He has been very clear – my lawyer was very clear with him not to discuss it with me. Yes.”
She also denied to the court that she was “politically invested” in the outcome of the case.
“Absolutely not. I categorically reject that assertion.”
In his letter to Gaughan, Drumgold later described the events as “disturbing”.
Drumgold said Reynolds’ partner was regularly seen conferencing with Lehrmann’s defence “during the course of the entire trial”. He also said Reynolds should not have had access to texts between Higgins and Hamer.
“During the conduct of the trial, a number of disturbing events have occurred, including prosecution witness [redacted] firstly giving evidence directly contradictory to her chief of staff, then directly soliciting transcripts of other evidence to tailor her evidence direct from the defence barrister Steven Whybrow,” he said.
“She further engaged in direct coaching of the defence cross-examination of the complainant by directing them to evidence she should not have access to.”
Reynolds has previously told the ACT supreme court that she did not have access to the texts between Higgins and Hamer.
She was asked how she knew about them, and said: “Because I had previously met not just with yourself [Shane Drumgold] but with the defence counsel, who had asked for information relevant to the case, and I knew that Brittany and Nicky were friends and I thought they might be able to shed some light on the matter. But had I seen them? No, I had not.”
In response to a query from the Guardian about Drumgold’s letter, she said she had not seen the letter and requested a copy so she could “consider the references to me and address the specific queries you have raised in context”.
“It should be noted that the substance of the queries that you have raised have been dealt with in my evidence in the criminal trial,” she said. “If you do not already have it, you can request a copy of the Transcript from the supreme court of the ACT.”
The letter has not yet been released to the broader public on the DPP’s disclosure log.
Last week Drumgold was criticised for the delay in placing the document on his office’s disclosure log.
But the ACT’s FOI Act expressly requires agencies wait at least three working days before publishing released documents on the disclosure log.
The FOI Act states: “The information required to be recorded in the disclosure log … must be included in the disclosure log not earlier than 3, and not later than 10, working days after the day the decision notice is given to the applicant.”
Publishing on the disclosure log any time last week would have breached the FOI Act.
It is understood the document will be published on Monday.
The letter does not allege any wrongdoing by Lehrmann’s defence team.
Meanwhile, the ACT Liberals leader, Elizabeth Lee, has reportedly written to the territory’s attorney general, Shane Rattenbury, expressing concern about the impact of the DPP’s allegations on confidence in the justice system.
“There are serious allegations of ‘political interference’, and the published correspondence between the ACT director of public prosecutions and the ACT police commissioner is alarming,” Lee wrote, according to the ABC.
“Unanswered questions surrounding these serious allegations and the trial could have a devastating and irreversible erosion of public confidence in our legal system.”
