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Michael Bradley

Has the AFP rotted from within? A judicial inquiry is needed to get to the bottom of the Lehrmann case

Viewed from a distance, the Bruce Lehrmann prosecution now looks like a hideous tabloid mess, a tangle of intersecting agendas that produced the legal system equivalent of a train wreck from which nobody has emerged with their dignity intact.

The recriminations will flow for some time, and they will further cloud the central question on which justice was supposed to be done but, now and forever, will not be. 

There are lessons here if we are dispassionate enough to pick through the wreckage with a forensic eye. In particular, two figures rise above the fog, and we should take note of what they have said.

One is the presiding judge, ACT Chief Justice Lucy McCallum. She worked extremely hard to ensure a fair trial for Lehrmann and safety for Brittany Higgins, but she was really up against it. Her warnings to the media were often ignored, as were her admonitions to the jury. 

Almost in despair, after declaring a mistrial due to juror misconduct, the judge complained of “the intense glare of the media that has been pervasive throughout”, adding: “I would expect after reporting the outcome of today, that reporting of the matter should fall silent.”

It was too late anyway; the retrial will never take place.

The system itself is broken, inherently by design and because it cannot cope with the digital media age, and we can learn from what the judge observed as she tried — and failed (through no fault of her own) — to keep the case on the rails.

The other figure we should be listening to is ACT director of public prosecutions Shane Drumgold. Like all DPPs, Drumgold has statutory independence from government. He can be removed from office only for misbehaviour or incapacity. He has no barrow to push nor masters to please.

What could possibly have motivated Drumgold to write the extraordinary letter that he sent to the chief of the Australian Federal Police (AFP) on November 1, after McCallum’s decision to abort the first trial? Because it is, in the annals of Australian criminal justice history, utterly extraordinary for a DPP to take such a step.

Drumgold’s long letter makes many explicit allegations:

  • Serial interference in the criminal justice process by AFP investigators
  • Overt attempts by the AFP to improperly pressure the DPP to agree with its preference to not lay charges against Lehrmann, including by cherrypicking, mischaracterising and misrepresenting evidence
  • The AFP unlawfully giving the defence evidence it should not have had
  • Bullying of Higgins by the AFP, pressuring her to drop her complaint
  • The AFP trying to make the victims of crime commissioner, who was liaising on Higgins’ behalf because of the latter’s concerns about the police, a witness in the case herself
  • Senator Linda Reynolds’ behaviour during the trial, including asking the defence counsel for transcripts of other witnesses’ testimony, sending cross-examination tips to the defence, and having her partner sit in on the whole case and (according to Drumgold) regularly conference with the defence team — all this while Reynolds was a prosecution witness
  • AFP investigators openly conferring and engaging directly with the defence team instead of the DPP.

Drumgold summed up his concerns with an explosive allegation: “Key AFP members have had a strong desire for this matter not to proceed to charge. Then when charges resulted, the investigator’s interest have clearly aligned with the successful defence of this matter rather than its prosecution, the motive for both of which remains concerning.”

Drumgold has called for a public inquiry into “political and police conduct in this matter”. The ACT’s Attorney-General Shane Rattenbury has said he is considering launching such an inquiry, on top of the referral that has already been made to the Australian Commission for Law Enforcement Integrity (which can look at AFP misconduct but has no jurisdiction over political interference).

What Drumgold didn’t say, because he couldn’t, was that the AFP’s bizarre actions in this particular case sit within a wider context of many reasons that have collected over many years to be worried about the AFP’s independence from political interests and therefore its fundamental integrity as a law enforcement agency.

Drumgold stuck to what he knows, which provides a rich enough field for a full-scale independent judicial inquiry with compulsive powers, evidence taken under oath, the whole shebang. Its terms of reference should be sufficiently wide to allow it a chance of getting to the bottom of not just what happened in the Lehrmann case, but why.

A lot has been said and written about the rule of law, sub judice contempt and all the other principles that guard the public standing of our justice system and allow us to keep our faith in it. Here’s a chance, and a compelling need, to dig deeply and test whether part of the system — the Australian Federal Police — has rotted from within.

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