The head of an inquiry says it is clear "something has to be done" after a senior police officer blamed the ACT's top prosecutor for the "blurred lines" that have left investigators confused about when to charge suspects.
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Walter Sofronoff KC spoke of the need for clarity on Friday after Joanne Cameron, an acting Australian Federal Police assistant commissioner, weighed in on the issue at an inquiry into the Bruce Lehrmann case.
Mr Lehrmann, a former Liberal Party staffer, has always denied raping ex-colleague Brittany Higgins at Parliament House in 2019.
The charge he faced was discontinued late last year, following a mistrial caused by juror misconduct.
The inquiry, which is investigating how authorities handled the high-profile case, has heard officers from the ACT Policing arm of the AFP were reluctant to charge Mr Lehrmann.
They eventually charged him on the advice of Shane Drumgold SC, the ACT Director of Public Prosecutions.
His view is that, in accordance with case law, police should charge a suspect when an officer has a reasonable suspicion that person has committed an offence.
Legislation in the ACT also allows police to commence court proceedings when they suspect an offence.
Mr Drumgold has given evidence police have instead been laying charges only where they believe there is a reasonable prospect of conviction, which is a higher threshold for prosecutors to consider when deciding whether to take a matter to trial.
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On Thursday, Senior Constable Emma Frizzell admitted she had believed something akin to the higher threshold was the test for police to apply.
Having watched earlier parts of the inquiry, she conceded her understanding of this was "not right".
In a written statement to the inquiry, Commander Cameron acknowledged the existence of the confusion.
She also accepted ACT legislation only required police to suspect an offence in order to charge, but she noted it only said an officer "may" commence court proceedings on that basis.
Commander Cameron wrote while the law may say that, she thought "a 'suspicion' is insufficient for a police officer to charge a person".
She described having discussed the topic with Mr Drumgold, who had appropriately told her his views as part of their conversations about a review of sexual assault matters.
However, Commander Cameron said she believed it was inappropriate for Mr Drumgold to have expressed his thoughts to individual police officers outside that forum.
"In my opinion, it created confusion and placed unnecessary pressure on those police officers," she wrote.
"It also blurred the lines between the distinct roles of the investigator and the prosecutor."
Commander Cameron wrote she had ultimately decided officers would be "better served by a more robust framework in relation to making decisions to charge".
When the issue was discussed during oral evidence on Friday, the inquiry was shown a September 2022 email sent to members of ACT Policing's sexual assault and child abuse team.
In the email, Detective Inspector Callum Hughes said a new "better practice guide" would advise officers not to charge at the point they held a reasonable suspicion.
He said there would instead be a two-part test, telling police to charge on the basis of "reasonable and probable cause".
The inquiry was also shown a document in which 16 officers, as senior as Australian Federal Police Commissioner Reece Kershaw, outlined varying views of the threshold for charging.
Mr Sofronoff, the chairman of the independent inquiry, said it was clear "something has to be done to create correctness and consistency".
"As I sit here now, I would think I have to recommend that work has to be done for police leaders to articulate ... the test for charging and ensure officers know what it is," he said.
