Bruce Lehrmann inquiry raises question of whether system is 'failing complainants'

While the emails suggest an experienced detective has largely attributed the low rate to complainants not understanding the definition of consent, senior prosecutors suspect it is more likely police do not know the relevant law.

The emails are further evidence of the strained relationship that had police and prosecutors at odds over the case of former Liberal Party staffer Bruce Lehrmann.

While the matter of Mr Lehrmann, who has always denied raping Brittany Higgins at Parliament House, continues to dominate headlines, an inquiry into authorities' conduct during the case has shone a light on a much wider issue.

It goes well beyond this one case and has left the ACT Director of Public Prosecutions, Shane Drumgold SC, admitting he is concerned the criminal justice system is "potentially failing sexual assault complainants generally".

As long ago as 1906, Australian courts were providing guidance for police on when to charge a suspect.

"Our system is that if there is apparently good ground to suspect that an offence has been committed, it is the duty of the police to lay a complaint and bring the accused before a magistrate," Sir Frederick Darley, the NSW chief justice at the time, said back then.

The High Court has since cited this comment with approval, and the test of having "good ground to suspect" is still reflected in the ACT's Magistrates Court Act today.

However, documents tendered to the Lehrmann inquiry show Mr Drumgold believes police have been misapplying the law in this regard and instead laying charges only where they believe there is a reasonable prospect of conviction.

This, he says, is a test for prosecutors to apply once police have laid a charge.

Essentially, Mr Drumgold believes police are trying to do the work of his office.

It is the apparent divide on charging that initially put police and prosecutors at loggerheads in relation to Mr Lehrmann, with detectives seemingly reluctant to charge because Ms Higgins' credibility would be the "cornerstone" of the case.

Mr Drumgold grew concerned police were attempting to create a situation in which no charges were laid and the public would believe he was to blame.

However, he recommended that Mr Lehrmann be charged and that happened.

He alleges investigators then aligned themselves with an acquittal and engaged regularly with Mr Lehrmann's lawyers during his trial, which was ultimately aborted because of juror misconduct.

Police are set to testify at the inquiry next week and finally respond to the prosecutor's allegations, which can only be described as extraordinary.

Mr Drumgold's barrister, Mark Tedeschi KC, has suggested to the inquiry that the extraordinary nature of the case can be traced back to the location of the alleged offence at Parliament House and the publicity surrounding it.

But for those factors, Mr Tedeschi claimed this week, police would have simply "ignored" the matter like he alleged they had done with hundreds of others.

To understand Mr Tedeschi's claim, an email chain from September 2021, shortly after Mr Lehrmann was summonsed to appear in court, is crucial.

Titled "Current SACAT issues", the emails show concerns prosecutor Andrew Chatterton raised about ACT Policing's sexual assault and child abuse team.

Mr Chatterton, who was running the sexual offences unit in Mr Drumgold's office at the time, wrote that Detective Sergeant Michael Woodburn had told him 95 per cent of complaints made to SACAT did not result in a charge.

"Woodburn stated that this is because of a combination of reasons including a large percentage of victims simply not understanding the definition of consent," Mr Chatterton wrote in an email to Mr Drumgold.

"We believe it more likely that the investigating officers don't understand the law on consent."

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Three days latter, Mr Chatterton found the source of the detective's data.

He sent Mr Drumgold a table that showed there had been 493 matters reported in 2020. Charges were only laid in 26, which equates to roughly five per cent.

"Previous years are even worse," Mr Chatterton wrote, noting the charging rate had been three per cent in 2019 and two per cent the year before that.

Not long after the emails, the office of the Director of Public Prosecutions stopped running legal training for SACAT members after they were allegedly "abusive" towards Mr Chatterton and fellow prosecutor Skye Jerome.

While training was reinstated earlier this year, Mr Drumgold's statement to the inquiry says police continue to use "a completely unworkable" test for charging.

Having initially hypothesised that police were perhaps keen to make Mr Lehrmann's case "go away" because of political interference, Mr Drumgold now admits his fears of a conspiracy were "mistaken".

These days, he believes the approach police took to the high-profile case can be explained by a "skills deficit" that has resulted in "a large number of investigations" being pre-emptively terminated.

All eyes will be on the inquiry next week when police, whose written statements have not yet been released to the public, take the stand to respond.

Do investigators indeed lack the skill to handle sexual assault matters?

Or does the real issue here in fact lie with the work of Mr Drumgold's office and the under-fire Director of Public Prosecutions, who has taken leave after admitting multiple failings during a torrid week in the witness box?

Whatever the case may be, Mr Lehrmann's matter has exposed that something is seriously wrong and the relationship between police and prosecutors must change.

All anyone can hope is that inquiry chairman Walter Sofronoff KC's findings and recommendations provide answers and the impetus for some form of change.

The need for sexual assault complainants to trust the justice system is simply too important for anything less.