Pearls and Irritations

Over 14 years as a criminal defender in Canberra and the region, I’ve had hundreds of clients, perhaps a couple of thousand. I’m still waiting for the first one who will get the decided benefit of having the police “run dead” in his or her matter.

I’ve had clients acquitted because of police laziness in the lead-up to a trial or hearing and because of police over-reach, both in investigation (wrongful search warrants etc) and from the witness box (statements that stretch the provable evidence or credibility, or both).

But police actively trying to sabotage a prosecution is foreign in my (admittedly relatively recent, and most frequently lower-court) experience as a legal practitioner. But the same was true from my brief time reporting courts in Canberra in the early 1980s and in a longer stretch overseeing news coverage for The Canberra Times in various executive roles for 16 years from the late ‘80s.

Yet that is the spectre that the ACT’s Director of Public Prosecutions, Shane Drumgold, SC, raises and some, most notably my long-time journalistic leader Jack Waterford, are prosecuting hard in the wake of the Bruce Lehrmann mis-trial and decision for no retrial.

I suppose it’s possible, but there’s been little chat about that prospect around the courthouse. Overwhelmingly, the talk is about the manifold other incongruities in the matter – all emanating from the complainant and the DPP himself.

Remember the simple form of the case. This makes any running dead – if it did occur – of arguable impact, I’d suggest. So many cases where the charge is sexual assault without consent come down to what a jury makes of what happened in a room in which there was only the complainant and the accused, or, in the Lehrmann case, question even whether the accused went into the relevant room. And it is always a jury decision, since the ACT Government unwisely removed judge-alone election in these matters several years ago. (Judge-alone election made a brief return recently when it was decided that a backlog of matters had to be cleared during the pandemic, but it has again been shelved.)

The cops make an easy target. Indeed, they are a target for me and every other criminal defender every time we get to cross-examine in a contested matter. They are a target even when our clients have to plead guilty, too: “police were heavy-handed”, we are often instructed; “police over-charged”, we submit; “police are to be pursued [internally/via Ombudsman/separate legal action]”, we foreshadow. But those complaints all go to the over-zealous, not to the deliberately under-performing.

The fact that police are now in the sights of the DPP himself is but one of many serious oddities in the Lehrmann case, including:

• • A complainant who spoke to the media before the police (allowing a man who must be presumed innocent to be subject to blanket reporting and vilification). What chance does Mr Lehrmann have of ever getting a fair run in employment or any other pursuit going forward?

• • A complainant who spoke to the media immediately after the declaration of a mis-trial (and who understood that as the matter was still before the court she should have exercised some restraint). This opened the very real prospect of a defamation action against her, for comments about the case and the accused, who, it cannot be repeated enough, bore no onus to prove anything and who had, and must continue to have, the presumption of innocence. Close observers would have recalled that the Complainant was asked during the trial: “And you were familiar with a not uncommon way that you could stop a minister or somebody having to answer questions by saying, ‘This matter is before the courts, I can’t say anything’. You are familiar with that concept aren’t you?” Her answer: “I am now, absolutely.” She was pursued on the point: “Are you saying you weren’t aware of that in February 2021?” Her answer: “I think I was broadly aware of it, but it became a very active part of my life once the story aired.”

• • The complainant preparing to lodge a workplace compensation claim against the Commonwealth, a case at which she has said she will be able to give evidence, despite the Director saying it was the Complainant’s health, some details of which he disclosed, that was the main reason that a retrial would not be pursued.

• • The DPP holding a press conference outside the courthouse to announce that Mr Lehrmann won’t be retried (ie, that he remains innocent in the eyes of the law) rather than simply taking the appropriate action in court and withdrawing silently. That press conference was odd not just in that it happened at all, but for much of the content. The DPP referred to the Territory’s prosecution guidelines at length. Chief among them are two questions: “Are there reasonable prospects of a conviction?” and “Is prosecution in the public interest?” The Director expressly stated he still believed there were reasonable prospects of a conviction: what is the public to make of that comment about a fellow citizen who is deemed to be innocent? Does anyone else wonder if Mr Lehrmann might have actually preferred to have been prosecuted again so that he could have had the chance to be found not guilty, rather than left in the limbo he has been?

• • The prospect of a malicious prosecution case being mounted on Mr Lehrmann’s behalf has been raised in the media. That is a rare beast, but this is a rare case. In case there be any doubt, every charge sheet and summons in the Territory is embossed in the top right with a reminder that “Proceedings in this matter will be carried on by the Director of Public Prosecutions under the provisions of Section 6 of the Director of Public Prosecutions Act”. Not by the police, by the DPP.

• • The extraordinary letter from the Director to the head of ACT Policing, in which it is alleged police pressured the Director to not launch the prosecution. It was always his choice. And he went ahead. So, any alleged pressure failed. Yes, the police may have presented a considered view from a number of officers that there were weaknesses in the prosecution case. Sound procedure. Frank and fearless advice. A view was expressed to the Director that there were “serious concerns in relation to the strength and reliability of [the complainant’s] evidence, but also more importantly her mental health” and how a prosecution might affect it. This was the first prosecution, remember. When the Director chose not to go ahead with a retrial, he quoted exactly that reason, the complainant’s mental health. The Director’s letter talks of investigators causing concern by talking to the Lehrmann defence team. There is no property in a witness. The Director expresses concern that defence barrister Steven Whybrow, SC, was able to say to court, in seeking a bail variation, that his team had spoken with the AFP and they had no concerns about Mr Lehrmann as a flight risk. That’s just good lawyering, countering an objection before it’s raised (and such objections are often raised for the first time in “Bail Consideration Forms”, which are dropped by police via the DPP on defenders at the bar table and tendered and which include untested assertions about why accused people should not get bail).

This week saw me agree for the first time ever with the AFP Association: if there is to be an inquiry, it should be into the DPP as well as the police. I agree with Waterford, too, that the AFP hierarchy must not form part of the inquiry. It appears that the Australian Commission for Law Enforcement Integrity will run the inquiry, at the referral of ACT Attorney-General Shane Rattenbury, so that won’t be a problem.

Whether police are in the wrong at all remains an if – but the deeply concerning actions of the complainant and the Director are not in doubt, in my view.

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