The #MeToo movement and “intense public discussions” about low rates of convictions “seemingly affected” decisions made to investigate and prosecute Bruce Lehrmann for the alleged sexual assault of Brittany Higgins, an inquiry has heard.
Erin Longbottom, counsel assisting the inquiry into the Australian Capital Territory criminal justice system’s handling of the case, made that submission on Monday morning at the inquiry’s first hearing.
Lehrmann has denied raping Higgins and pleaded not guilty to a charge of sexual intercourse without consent. His first trial was abandoned due to juror misconduct and the director of public prosecutions, Shane Drumgold, decided not to pursue a second due to fears for Higgins’ mental health.
On Monday Longbottom told the inquiry, presided over by a retired judge of the Queensland court of appeal, Walter Sofronoff, that it was “important to emphasise that this is not an inquiry into the allegations made by Ms Higgins against Mr Lehrmann”.
Rather it would consider the conduct of ACT police, the DPP and the victims of crime commissioner in the performance of their duties, she said.
Longbottom noted that the Lehrmann prosecution had drawn “intense media and public interest” in part because the alleged offence occurred at Parliament House but also because it came at “a time of intense public discussion about sexual violence against women, [and] in light of the #MeToo movement.
“And, specifically in the ACT, media reports of low rates of sexual assault trials and convictions despite increases in reports to victims’ services and police.
“That context seemingly affected the police charged with the responsibility of investigating allegations made against Mr Lehrmann, as well as the DPP and the victims of crime commissioner.
“That context also brought into question the threshold for charging, and continuing the prosecution of an allegation of sexual intercourse without consent, and the significance of the credit of the complainant in those decisions.”
Longbottom noted that on 1 November Drumgold had written to the ACT chief of police, Neil Gaughan, complaining of alleged “inappropriate” interference by police in the case.
Guardian Australia revealed the content of that letter in December, after it was released pursuant to a freedom of information request.
Counsel assisting told the inquiry that the relationship between ACT police and the DPP had been “beset by tension”.
The “points of conflict” include:
Whether it was proper for ACT police to conduct a second evidence in chief interview with Higgins on 26 May 2021;
“Confusion about whether Mr Lehrmann should be charged and how matters affecting the credibility of Ms Higgins were to be treated by police in deciding whether to charge Mr Lehrmann, and by the DPP in deciding whether to present an indictment”;
Delivery of the brief of evidence to Lehrmann’s lawyers on 6 August, after he was charged but before a plea was entered, which included counselling notes about Higgins; and
“The apparent close engagement” between investigating officers and lawyers for Lehrmann during the trial “which led to some distrust between police and the DPP”.
Longbottom said Sofronoff would be required to consider whether police and the DPP had breached their duties and, if so, to discover their reasons and motives.
Counsel for parties including Drumgold, the AFP and the victims of crime commissioner all pledged to give the inquiry their full cooperation.
Sofronoff asked counsel for the victims of crime commissioner if the commissioner generally accepted “a person’s claim to be a victim” and “in practical terms would only turn away a claimant if she were satisfied that person is not a victim”.
Counsel replied that this was broadly correct, that the commissioner offered a “victim-focused” approach that is “separate from the criminal justice system”.
Longbottom said counsel assisting expected substantive hearings to begin on 1 May, with initial witnesses from the DPP including Drumgold.
The hearing adjourned at 10.30am.
