Leaked email claims Lehrmann case prosecutor did not consult police before releasing FOI

ACT police chief Neil Gaughan says the force was not consulted by the office of Director of Public Prosecutions Shane Drumgold before the prosecutor released a letter under freedom of information laws that slammed territory police for their conduct in the investigation of Bruce Lehrmann, the man who was accused of raping Brittany Higgins.

And the Australian Commission for Law Enforcement Integrity has confirmed “information has been referred to ACLEI relating to the AFP investigation of and recent criminal proceedings against Mr Lehrmann”.

ACT DPP Shane Drumgold.Credit:Rhett Wyman

“The referral is under assessment and as such, it would not be appropriate to make any further comment at this time,” a commission spokesperson said.

The federal police union on Thursday flagged it would refer the release of the unredacted letter to The Guardian by Drumgold’s office to the Office of the Australian Information Commission and the ACT Ombudsman as a possible breach of freedom of information laws.

In The Guardian’s report of Drumgold’s letter to Gaughan, Drumgold alleged police engaged in a “very clear campaign to pressure” him not to prosecute Lehrmann and called for a public inquiry to examine “both political and police conduct” relating to the case.

The police chief’s claim that police were not consulted about the letter’s release, contained in an email leaked to this masthead, underscores the dramatic deterioration in the relationship between ACT police and the public prosecutor’s office.

The decision not to proceed with Lehrmann’s retrial has triggered an extraordinary series of exchanges between the public prosecutor and the police union, all highly critical of each other’s professional conduct. Both camps are calling for inquiries into the initial mistrial.

In the leaked email sent by Gaughan to ACT police, Gaughan states that “I became aware that the DPP had released this letter under FOI this afternoon [Thursday] after the Guardian had contacted ACTP media for comment”.

“ACT Policing was not consulted in the FOI process,” Gaughan wrote.

Two sources in the ACT legal community, who asked not to be named so they could speak freely, told this masthead Drumgold’s office may have breached the territory’s Freedom of Information Act 2016 if he did not consult police before releasing the letter.

They both also said the ACT Justice and Community Safety Directorate contacted Drumgold after the release of his letter to Gaughan to flag concerns about the release of the FOI. Drumgold and the directorate were contacted for comment.

Lehrmann pleaded not guilty to one charge of sexual intercourse without consent. The first trial was cut short on October 27 after 12 days of evidence and submissions in the ACT Supreme Court and five days of deliberations because of juror misconduct.

Drumgold reportedly then sent the letter to the ACT police chief after the first trial was abandoned, claiming “key AFP members have had a strong desire for this matter not to proceed to charge”, and that he wanted to “protect the integrity of the pending [re]trial”.

But on December 2, the retrial was abandoned and the charges against Lehrmann dropped because of serious concerns about Higgins’ mental health.

The office of the DPP has still not published the letter it released to The Guardian under FOI and is not expected to until December 19.

This masthead has confirmed the FOI was released in unredacted form and contained personal information about serving members of ACT police.

In Gaughan’s email to ACT police, he states that “the allegations the DPP has made against individual ACT Policing members are untested. These allegations are being dealt with through the appropriate mechanisms, so I am unable to comment further”.

The ACT police chief says he would welcome the public inquiry Drumgold called for, as long as it examined “all aspects of the matter including but not limited to the actions of police, the prosecution and defence, issues leading to delays in the trial, issues leading to the subsequent mistrial, the decision not to proceed and the associated allegations of contempt of court”.

The ACT’s Freedom of Information ACT 2016 states that the “respondent must take reasonable steps to consult with the relevant third party before deciding to give access to the information”.

ACT Attorney-General Shane Rattenbury told this masthead the referral to the Australian Commission for Law Enforcement Integrity had been made last month.

Asked if he was concerned Drumgold’s office might have breached the FOI Act by not consulting police, Rattenbury said: “I have not had that conversation with the DPP as to whether he undertook consultation.”

“I have not spoken to police either. But clearly the assembly wrote the legislation in that manner because we expect those steps to be taken,” he said.

The Australian Federal Police Association issued a statement late on Thursday in which it said it “wants to make it extremely clear that the desperate attempts to smear” the AFP and policing were untested.

Rattenbury said anyone could make a referral to the ombudsman, as the police association had flagged, if they had concerns about the release of information.

He insisted that police and the Office of the Director of Public Prosecutions had a strong working relationship, despite public divisions over the handling of the Lehrmann case.

“The DPP and the police work together literally every day of the year. They deal with hundreds, if not thousands, of matters in a year. Now, there is obviously disputation around this matter, but that is why I said I encourage the community to look at the broader relationship and see this matter as being a particular question, rather than necessarily reflecting on their day-to-day relationship,” Rattenbury said.

Lawyers for Higgins have given notice that they will sue former Liberal ministers Linda Reynolds and Michaelia Cash as well as the Commonwealth for about $3 million.

Lehrmann is also contemplating defamation proceedings, according to the ABC.

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