Pearls and Irritations

The inquiry into alleged police sabotage of the Bruce Lehrmann rape prosecution has the capacity to bring the Australian Federal Police into the biggest crisis of its 43 years, with impacts spreading beyond the contract arrangements by which it delivers policing services to the ACT.

It will put into the spotlight questions of its inherent politicisation, its lack of independent relationships with the government of the day, its professionalism, integrity and its ultimate accountability. It has the capacity to take out two commissioners, both the overall one, Reece Kershaw and the one responsible for ACT policing, Neil Gaughan.

Now that the AFP Association has joined, unwisely, in calls for a thorough judicial review of what occurred, it has become clear that the inquiry must be entirely independent of the AFP, at either its ACT or federal levels.

Too many people, including very senior people, are potentially involved for the matter to be dealt with internally. And the conduct in question has the potential to be very serious, perhaps warranting criminal charges or dismissal from the force.

Nor can it be allowed to wither away, in the manner of a Phil Gaetjens inquiry, until everyone has forgotten about it, or given up any hope of a resolution. Although it could not presently go before the National Anti-Corruption Commission, which is not yet operating, it is a case of a type where people would be arguing that hearings ought to be in public.

By some police versions, the argument is about the ACT prosecutor overriding police reservations about the provable guilt of a man coming up for trial.

Since police disagreed with the DPP, the ultimate decision maker, they decided to run dead on the case. They set out to make their own predictions come true – to have the prosecution fail.

To others, however, the case involves clear police misbehaviour – even criminal misconduct. A criminal investigation team, and superior officers, allegedly improperly leaked prosecution information to the defence, including highly confidential and private psychological counselling notes about the victim.

The investigative team is said to have failed to put their hearts into the investigation, including failure to secure evidence that was available. The investigation of the suspect was claimed to be superficial and influenced by their feeling that the alleged victim was unreliable.

Their investigation into any material that might undermine or discredit the alleged victim’s case was allegedly thorough and unremitting, and what was gathered was promptly handed over to the defence, for use in attempting to discredit her. The argument is that such alleged conduct was thoroughly unprofessional and motivated by spite and secondary agendas.

Rape, like murder, is not an AFP speciality

During the trial itself, the DPP complained, investigating police deliberately and openly sat alongside the defence team and are said to have offered suggestions about the conduct of the case.

Immediately after the DPP dropped the matter, senior police concerned with the prosecution complained to News Corp journalists that the whole prosecution had been “political,” and that they, as investigators, had doubted there was a case strong enough to prosecute.

They leaked a host of internal police memos supporting their view of the case. None of the police making the complaints has a background of weight in rape investigations, in the ACT or elsewhere.

Indeed, it would not be stretching things to say that rape investigations, like effective murder investigations, are not the ACT AFP’s long suit. Particularly when in the hands of senior male detectives. Nor can it be said that federally oriented detectives are any better.

The alleged police misconduct cannot be said to be limited to behaviour which worked to the benefit of Lehrmann. ACT DPP Shane Drumgold has made it clear that he believes the open partisanship towards the defendant played a part in the emotional breakdown of the alleged victim.

She was made to feel bullied and anxious. Both she and her support people believe it contributed to her poor psychological state at stages during the trial.

Drumgold has suggested that this should be the basis of a separate investigation.

In fact, they underline why the inquiry could not and should not be conducted by AFP officers, even by ones at arm’s length from the rape investigation team.

Quite apart from the usual problem of police investigating police is the additional complication that some of the officers concerned are so senior that there would be no officer of higher rank able to investigate.

Even the national Commissioner, Reece Kershaw, is not at arm’s length, because any proper investigation would inevitably raise questions about his own stewardship. More significantly because Kershaw made an ill-judged plea last year that all complaints and allegations involving politicians be filtered through his office, even when no breach of Commonwealth law was involved.

It would, in any event, be impossible to conduct a proper review without bringing into question the extraordinary police protocol that the minister in charge of police be notified whenever there is a case with the potential to cause embarrassment to the government of the day.

Fair-minded investigations should be able to ask fearlessly about the well-deserved reputation for AFP politicisation, lack of independence and obsequious approach to governments.

Cops and ‘noble-cause’ corruption

In the inquiry into alleged police sabotage of their own rape case, some police will say that they revolted when they found that a man was to be put on trial for rape at a time when professional investigators had doubts about whether a case was made out to a satisfactory standards.

No police officer has suggested that the case showed the man to be completely innocent, but they doubted that the evidence was strong enough to make a conviction likely or inevitable.

In a normal case it would be police laying the charge. But the DPP, overriding their reservations, decided to prosecute and filed the charge in his own name.

As police see it, Drumgold was wilfully determined to prosecute come what may. (They have no evidence of this, other than the fact that he was of a different view about the strength of the case. No argument was made at the end of the prosecution case that the case fell short at law of a prima facie case, even after conscious police attempts to weaken it.)

The DPP took the matter from the police, who had at that stage not charged the defendant and filed the indictment.

From this stage, or shortly after, police began to run dead on the case, including allegedly passing on information and prosecution documents to the defence.

No doubt it will be argued that if this was wrong, or corrupt, it fitted into the description of “noble cause” corruption, by which the team was refusing to be party to the prosecution of a man they believed to be incapable of being proved to be guilty, and thus innocent in the eyes of the law. On the facts so far known, it was the relative weakness of the case that was exciting the resentment and resistance, not any suggestion of railroading someone innocent of any offence.

Lehrmann, by virtue of the discontinuance of the prosecution by the DPP is, of course, now entitled to proclaim his innocence but he is not entitled to rewrite the history of the matter.

He was not acquitted by a jury. The DPP has made it clear that his decision not to go for retrial was because of the health of the alleged victim, not concern about the quality of the case against the defendant. But that is all academic. Lehrmann must be treated as innocent.

Even if the inquiry confirms multiple irregularities in the case, including a program of sabotage by police, he cannot be re-tried.

No review of the case by independent detectives and lawyers can retrieve any of the prosecution case. Lehrmann’s trial miscarried because of the misconduct of a juror.

But Lehrmann may himself open the circumstances to fresh scrutiny. He has indicated his intention to sue some of those who have made defamatory comments suggestive of his guilt.

If those he sues dispute their liability, the situation could arise where they are entitled to cross-examine him about what occurred.

During the criminal trial, Lehrmann gave no statement, and was not able to be cross-examined. This was his right; it was for the prosecution to establish his guilt.

In a fresh civil case, those he sued may be able to not only question him about the immediate events of the alleged rape, but also about other matters, such as allegations of previous sexual assaults on other women.

Likewise investigating police could be cross-examined over inadequacies in their investigation, failures to secure evidence, leaks of evidence and his own dealings with investigators.

In civil proceedings, parties are required to prove their cases on the balance of probabilities, rather than by proof beyond reasonable doubt. Civil proceedings thus bear risks not only to Lehrmann, if he has anything on his conscience, but to some others associated with him.

An alternative way of looking at police conduct in the case invites the question of whether what happened amounts to clear misconduct, perhaps criminal misconduct.

Police are sworn officers; for them adherence to the law and its forms is a matter of legal duty, not personal inclination.

What has been alleged of the conduct of senior officers goes beyond acting with a want of enthusiasm to a conscious effort to sabotage and a successful prosecution, including by plainly improper passing of information to the other side.

A number of Commonwealth criminal laws are framed around the leaking of material when the leaker knows it to be his or her duty to keep material confidential. Indeed, that is what frames many of the national security cases used by police against journalists.

If police will not enforce the law against their own, or treat such a law with impunity, the law will be discredited. If police are picking and choosing which laws they will respect, which alleged criminals they will prosecute, or which alleged victims they will revictimise, we may as well give organised policing away.

An independent inquiry may give new context and dimension to the case. It is not usually emphasised that the alleged offence occurred in the lead-up to an election, at a time when politicians, from the prime minister down were clearing the decks for action.

That preparation involved a close eye for potential trouble, and an impulse to stamp down hard on anything likely to cause inconvenient surprises. Everything about the Bruce Lehrmann case, once it came out, had the capacity to be an unpleasant surprise.

What about the imminent election?

There are good grounds for suspecting that the fact and the significance of the alleged rape was appreciated in some quarters well before any politicians or senior bureaucrats will admit.

Only this could explain what could be seen as extraordinary efforts to compromise the alleged crime scene, the clamp down on parliamentary attendants, and parliamentary departmental efforts to shut everyone up. Later, the same department resisted efforts to allow access to camera footage.

The alleged victim waxed and waned about whether she would go to the police. She was already aware of how she would be exposed if she did. But police based at Parliament House had already been on the scene, and, soon, the ACT Police Commissioner was attending on the minister to keep her briefed about what police were doing.

It may have occurred to some police that public reports would be extraordinarily damaging to the Coalition government.

It would, as it did, again raise questions of the safety of women in Parliament House. It would invite questions about whether the prime minister, Scott Morrison, “got it” about violence against women. It would be particularly embarrassing in the election context.

More than one mind may have been more focused on discrediting and undermining the victim than in assembling a case against her alleged rapist. Investigations into him were low key, and police made little effort to secure phones and other items, while going to great lengths, and developing amazing suspicions about, the communications and activities of the alleged victim.

Investigating police, as experts in the behaviour of rape victims, found it extraordinarily suspicious that the alleged victim had dealings with two women journalists with backgrounds in the sexual assault of women.

When police sensed that the case was “political,” they were not reflecting on their own highly irregular investigation, which, on the face of it could hardly have been more biased and more political.

Even the police start-off point – that the victim was probably lying – is a bit old hat these days. Slight inconsistencies made investigators focus on her and pay scant attention to her alleged rapist.

Anything capable of discrediting the alleged victim was quickly in the hands of the defence team, some even before the DPP entered the case. Perhaps someone had an agenda.

The evidence is capable of suggesting that there were police seeking to sabotage a successful prosecution – and to ensure a not-guilty verdict. By trial’s end, indeed, the question became more focused on whether it was the spiteful act of a few of those in the investigation team, or the concerted collective act of the whole team.

The idea that it was the second gained force when very senior officers were ready with secret briefings (complete with internal emails) to friendly News Corp journalists immediately after the prosecution was dropped.

And continual claims – echoed by their snouts – about the consensus of police good-old-boys that the case was ridden with “politics.” They did not mean their own extraordinary, and possibly illegal interventions design to frustrate the prosecution. They meant that a prosecution was being mounted in spite of their sabotage, pressure and outright disloyalty to the law.

Another pointer to collective sabotage has come from the dumb police insolence when questioned about leaks of prosecution material. The DPP asked for an inquiry.

But when he asked for what this had disclosed he was told that it was proceeding. In fact, it is doubtful that anyone in the AFP was honestly engaged in finding out how material leaked.

There had been only the most limited and restricted access to the psychological and counselling notes, but allegedly searching police investigations have simply been unable to determine how the reports left secure police hands and came into the hands of defence counsel.

However it did, it was not accidental. However it did, the leaking showed a sackable lack of integrity by a police officer.

Investigations are “ongoing,” and no-one in the AFP seems to mean anyone to find out.

More than six weeks have passed since the DPP complained that someone in the police team leaked the brief, but it seemed clear, on Thursday, after AFP media commented on an investigation beginning that no-one has bothered to start investigation yet.

No investigation organised by AFP officers, or anyone not entirely independent of the AFP, is likely to be fair dinkum.

The AFP began with an amalgamation of the Commonwealth Police, the ACT Police and the Narcotics Bureau in 1979.

It was a difficult and unpopular birth, and many of the functions carried out by the federal part of the marriage were not even conceived at the time.

The AFP is the only Australian force not subjected to searching external inquiry in more than 40 years. Its inbred and accountability-shy management is a direct consequence.