Australian Federal Police are refusing to hand over thousands of pages of written evidence, audio recordings, transcripts and surveillance cameras that were used to prosecute alleged rapist Brittany Higgins, an inquiry has heard.
The ACT government announced in December that it would convene a board of inquiry, the territory’s equivalent of a royal commission, into the roles played by police and prosecutors in the 12-day trial against Bruce Lerman.
Mr. Lerman faced trial in ACT Supreme Court in October, but the charges against him were dropped after they were derailed following jury misconduct. The charge was then completely dropped amid concerns for Mrs. Higgins’ mental health.
He has pleaded not guilty, and still denies raping Ms Higgins on Parliament House in 2019.
The Board of Inquiry will examine interactions between prosecutors and ACT Police in relation to charges and decisions to proceed with a first trial and then not proceed with a retrial.
An emergency hearing was held at noon on Thursday to discuss why AFP had not turned over all the evidence it had against Mr Lerman ahead of the criminal trial, which is referred to as the evidence brief.
Among the evidence could be a transcript of a phone call between Mr Lerman’s defense attorney Stephen Wibro and AFP investigator Scott Mueller.
Ms Higgins (pictured) alleged Bruce Lerman raped her on Parliament House in 2019. He pleaded not guilty.
The senior advisor, who assists Erin Longbottom KS, said:
The investigation is being led by Walter Sofronov KC, who questioned AFP defense attorney Kate Richardson furiously about why the information was not provided.
Ms Richardson said the footage in particular would need to be reviewed so that only relevant information could be made available to the investigation.
“I understand that someone will review the video recordings that were included in the abstract and withhold (the information) because they think it is not useful to me,” Sofronov said.
“Did I read that correctly?”
Mrs. Richardson was silent for a few moments, before answering: “I think this is a matter we can resolve without contact with the lawyers.”
“It’s over 100GB of material, including unedited footage, and would overwhelm the investigation.”
He then asked why the police needed to review the evidence when it was the same information that had been sent to Mr. Drumgold and Mr. Lerman’s lawyer before the trial.
Mr. Lerman (pictured) has always denied the allegations against him
Referring to a conversation that may have occurred between Lerman’s defense attorney Stephen Wybrow and Detective Mueller, Sofronov asked why police couldn’t simply ask the investigator whether or not there was a transcript of the phone call.
It was also revealed that the AFP and Mr. Drumgold were concerned that some of the documents in the evidence brief might contain classified information.
Sofronov pointed to the fact that the police had not explained why some documents had been privileged, so he would not be able to say whether or not he should press to see them.
Speaking to Mr Drumgold’s lawyer, Mr Sofronov said: “When will I know if your client is refusing to provide a document or should I say refusing to provide a document?
The lawyer said the Director of Public Prosecutions might be willing to consider waiving the privilege, to which the former judge said, “Well, when is he going to consider it?”
AFP was given until April 11 to submit a summary of the evidence.
Shane Drumgold (pictured) leads the case against Bruce Lerman in ACT Superior Court in October
She will also examine police investigators and crime victim commissioner Heidi Yates and the laws in DC law relating to jury misconduct.
The investigation was launched after the ACT’s Director of Public Prosecutions, Shane Drumgold, raised concerns about “political and policing behavior” in the case.
He also wrote to the provincial police chief accusing his members of pressuring him not to prosecute Lerman.
But the police union has accused Drumgold of trying to discredit the officers, saying it “firmly believes” that ACT DPP harmed Mr Lerman’s prosecution.
ACT Premier Andrew Barr said the allegations about the conduct of the various parties were significant.
“An independent review of the roles played by the relevant criminal justice agencies is the most appropriate response,” he said.
The investigation will be able to hold public and private hearings and compel witnesses to appear.