The prosecutor who ran the trial of Bruce Lehrmann has claimed the juror responsible for derailing the case was the only member of the panel he was unable to convince of the former staffer’s guilt, an inquiry has heard.
Director of Public Prosecutions Shane Drumgold SC made the observation on his fourth day in the witness box in an inquiry into how criminal justice agencies handled Brittany Higgins’ allegations.
Mr Lehrmann pleaded not guilty to one charge of sexually assaulting Ms Higgins before the trial was aborted due to jury misconduct.
He has continually denied the allegation and the DPP declined to pursue a second trial due to concerns over Ms Higgins’ mental health and dropped the charge.
The DPP had initially planned to retry the case after the mistrial was declared. Mr Drumgold told the inquiry he’d concluded that 11 of the 12 jurors were inclined to convict Mr Lehrmann.
Asked by his counsel, Mark Tedeschi KC, if the perceived hold out juror was at the one accused of misconduct, Mr Drumgold responded: “Yes, it was”.
It comes as the DPP admitted he was wrong to suspect political interference in the high profile case.
On Wednesday, Mr Drumgold claimed a series of “strange events, including the “passionate” views of police investigating the matter, led him to believe there was political pressure to “make the matter go away”.
But just a day later he said after reviewing the evidence before the inquiry, a police “skills deficit” was more likely to blame.
“I was certainly not subjected to political interference,” Mr Drumgold said.
Asked directly by the chair, Walter Sofronoff KC, if he were mistaken, the DPP replied: “I do accept that”.
Mr Drumgold first made the allegation in a scathing letter he sent to ACT Chief of Police Neil Gaughan which sparked the inquiry.
In the letter, the DPP outlined his suspicions about the behaviour of police and witnesses including Liberal senators Linda Reynolds and Michaelia Cash.
Speaking in parliament on Thursday, Senator Reynolds rejected any suggestion she interfered in the case.
“This baseless suggestion was without any, any foundation,” she said.
“It should never, ever have come to this. It is baffling and it is disturbing that this view was offered under oath yesterday.”
The breakdown of the relationship between the DPP and police throughout the investigation and trial has been central to the inquiry.
A main source of tension has been an evidence brief prepared by detective superintendent Scott Moller.
The report, referred to as the Moller Report, described Ms Higgins as evasive and uncooperative and raised concerns about her credibility.
At the time, that brief was handed to the defence directly rather than through the DPP. Mr Drumgold has previously claimed police did so to disrupt the prosecution.
But he conceded on Thursday his view had changed and it was likely done in error.
“It was probably just a mess up,” he said.
Mr Drumgold told the inquiry that the concerns raised by police in the brief were not admissible in court, and the others, such as her reluctance to hand over her phone, could be led at trial by defence.
He said his perception was that police viewed the case as “dead” and were actively looking for evidence to “kill it”.
The inquiry heard at one point police expressed a desire to find an expert to give evidence about Ms Higgins level of sobriety on the night of the alleged assault.
“There is no recognised field of expertise of observing drunk people, you simply can‘t do it,” Mr Drumgold said.
The DPP raised concerns on Thursday about confusion within police about the standard of proof test required to charge someone.
He added the “passionately held” view by some police officers that Mr Lehrmann should not be charged, and subsequently convicted at trial, elevated his fears of interference.
His comments were in reference to evidence tendered to the inquiry that Detective Inspector Marcus Boorman, who had disclosed privately he would resign if the jury delivered a guilty verdict.
Another officer Trent Madders, Mr Drumgold alleged, said he was “physically ill” when charges were laid.
“If you’re so passionate that you’re going to get physically sick, if your investigation results in charges, how can I have any confidence in that investigation because everything goes to a confirmation bias perspective,’’ Mr Drumgold said.
It comes as a diary note tendered to the inquiry written by Mr Moller following a meeting with deputy police officer Michael Chew tendered at the inquiry on Thursday also made reference to political interference.
“Insufficient evidence to proceed. DCPO advised he had a meeting with DPP who had stated they would recommend prosecution,” the note read.
“DCPO stated ‘if it was my choice, I wouldn’t proceed. But it is not my choice. There is too much political interference.”
Mr Moller wrote that he told the DPCO at the time he had agreed there was “insufficient evidence” to proceed.
Mr Sofronoff asked Mr Drumgold if the note could be read as the DPP having been compelled or persuaded to charge.
“That was a possibility, but again, I’m looking at this through the prism of multiple strands in a cable,” Mr Drumgold responded.
The inquiry continues.