ACT DPP must resign

On Saturday, The Australian published an explosive story by Janet Albrechtsen and Stephen Rice that revealed what those of us in the inner circles of the ACT criminal justice system have known for many months – ACT police believed there was insufficient evidence to ever prosecute Mr Lehrmann but could not stop the ACT Director of Public Prosecutions proceeding with the prosecution because “there is too much political interference”.

Before you dismiss that sentiment too readily, it is trite to note that came directly from the diary notes made by the Manager of Criminal Investigations for ACT Policing, Detective Superintendent Scott Moller.

The article in the Australian revealed that in a separate executive briefing in 2021, Superintendent Moller advised that investigators “have serious concerns in relation to the strength and reliability of [the complainant’s] evidence…” and listed a series of concerns held by senior police, including:

The complainant’s repeated refusal to provide her original mobile phone to investigators;
The complainant had deliberately deleted messages from a second mobile phone;
The complainant had lied about seeking medical attention after the incident; and
The complaint had joked about wanting “a sex scandal” a month before the incident.

Some of these matters were explored in the cross-examination of the complainant during Mr Lehrmann’s trial earlier this year.

On Friday, Shane Drumgold SC, the ACT’s Director of Public Prosecutions filed a notice declining to proceed further with the prosecution of Bruce Lehrmann. There is nothing particularly unusual about that and it’s something that happens in any DPP office from time-to-time. What is astounding is how that was announced to the world – via press conference. Outside of the USA in the post-Trumpian era, when have you ever seen a senior public prosecutor hold a press conference to announce their decision to initiate or end a prosecution? I cannot remember (and neither can my colleagues) any similar example by any other DPP in any other Australian jurisdiction. It begs the question, how is that appropriate? It also begs the question why did he do that? Perhaps the answer to that question is the same for the question of why Mr Drumgold chose to prosecute this matter himself, as opposed to assigning it to one of his many capable prosecutors who conduct most trial matters in the Territory. Was he seeking to make a name for himself on a national stage?

In relation to Friday’s press conference, perhaps Mr Drumgold was hoping to get on the front foot and was attempting to pre-emptively cover his backside, knowing this fallout and the exposure of the rift between his office and ACT police was coming. His unusual press conference made a number of things patently obvious; he maintains it was his decision to begin the prosecution against Mr Lehrmann, he maintains he believed there were reasonable prospects of securing a conviction in the matter and he maintains he is still of that belief. What is abundantly clear is that there does not seem to be anybody in the ACT legal system, outside of Mr Drumgold’s office, who shared that view, including senior members of criminal investigations in ACT policing.

Clearly, in light of the revelations contained in The Australian, there needs to be an investigation into the decision to prosecute Mr Lehrmann in this matter. Those in ACT legal circles have tossed around the rumour that Mr Drumgold is likely to be referred to the ACT Integrity Commission over this matter. Whether that rumour is true or not, the Integrity Commission should conduct a full investigation on the decision to prosecute Mr Lehrmann in light of contrary advice provided by police. There are a number of questions that the people of the ACT (and the parties in the Lehrmann matter) are entitled to have answered, including why, in light of the lack of confidence expressed by police, the decision to prosecute was made? The Commission also needs to explore whether Mr Drumgold let his own thirst for media attention or own political affiliations cloud what is supposed to be his independent judgement in such matters.

That investigation should also examine the role and involvement of Heidi Yates as the ACT Victim of Crimes Commissioner. Ms Yates’ conduct in this matter, including at the complainant’s press conference immediately after the jury was discharged and Mr Lehrmann’s trial was aborted has already been subject to public scrutiny, a blog by my partner, Erin Taylor, and questioning by members of the ACT Legislative Assembly during annual reports hearings. However, the Australian article includes further interesting details about Ms Yates’ role, that goes back to the early stages of the investigation. The article indicates that in May 2021, Superintendent Moller was informed that Ms Yates had advised the police that any contact with the complainant was now to go to her, rather than the complainant directly. Ms Yates later attended the second police interview with the complainant and then provided mobile phones to police on the complainant’s behalf.

Returning to Mr Drumgold, the DPP in jurisdictions such as ours are supposed to be politically independent. That is why they have tenure for a specified period – in Mr Drumgold’s case he has tenure until December 2025 and cannot be removed from office except in exceptional circumstances. That security in the DPP’s appointment is supposed to provide them with some cover from political interference. If Mr Drumgold’s decision to prosecute Mr Lehmann has been influenced in any way by political pressure, his position as ACT DPP is not sustainable and he must resign.

You would not and could not expect an independent DPP to be in lock-step with the police on all decisions in all matters; however, when there is a cavernous rift between the upper echelons of ACT Policing and the ACT DPP and their dirty laundry is being aired in the weekend edition of the national broadsheet (with a circulation of about 2.5 million), you have to ask yourself – how is this sustainable?

The answer is, it’s not. It is integral to any proper-functioning justice system that the police have faith and confidence in those that prosecute. The public also need that faith. Otherwise, the system will fail. It appears the ACT system is irreparably broken and there is only one way to quickly fix it and to restore public faith in the criminal justice system in the ACT. Shane Drumgold must resign as ACT DPP.

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ACT DPP must resign