The problems with Sofronoff inquiry into investigation into Bruce Lehrmann

One argument in favour of such an inquiry might be that it is unlikely that the Sofronoff inquiry, conducted under ACT jurisdiction, will resolve questions of the type that Reynolds would want asked. Indeed, it now appears quite unlikely that it will even answer (or ask about) a host of matters that the public itself might have wanted and expected to be answered.

Perhaps the reason for the lack of curiosity, particularly about the police role, that has struck the inquiry is its feeling of being circumscribed by the terms of reference. Perhaps it is a lack of power in the ACT government to ask questions that go into the Commonwealth domain. Or to actions carried out by AFP officers, or Commonwealth officials, judged to be not directly connected with the criminal investigation or the aborted trial. If that is the case, my research suggests that such limitations have not been publicly mentioned, whether by Mr Sofronoff or counsel assisting the inquiry in its open sessions.

Mr Sofronoff and/or inquiry staff have negotiated in private several changes to his terms of reference, including an extension (until the end of July) of the reporting date. But he seems to have made no public reference to this, apart from putting the changed terms on the inquiry website. He also hasn't seemed to go into matters that might involve questioning Commonwealth officials, or taken a liberal view of what the terms of reference authorised. Counsel assisting the inquiry, Erin Longbottom, a regular at Sofronoff inquiries, appears to have taken the same approach.

An overriding term of reference in the preamble, for example, speaks of public confidence in the ACT criminal justice system, issues in the Lehrmann case "that have wider implications for the prosecution of criminal matters in the ACT". It speaks of the ACT government's desire that the framework for progressing criminal investigations and prosecutions be robust, fair and respect the rights of those involved. It also asks if the criminal justice system bodies work effectively together and appropriately within their respective statutory frameworks.

The inquiry has interpreted the terms of reference to involve some arbitration of matters of jurisdiction between cops and the Director of Public Prosecutions, and some settling of the squabble and misunderstandings that occurred because of mutual suspicions about the bona fides of the DPP, the investigating cops, and the large number of senior cops who seemed to insert themselves into the investigative process. In the process, counsel assisting pretty much eviscerated and unmanned the DPP, whose complaint of police sabotage of the trial had sparked the inquiry. He withdrew suggestions of political interference, leaving his complaint to be about the low competence and calibre of the investigating officers and their superiors. His criticism extended to saying they had old-school and out-of-date instincts on rape cases, as well as their practical ignorance of the legal standard allowing the making of a charge.

READ MORE:

Some of the senior police withdrew at least some of their allegations that the DPP had been on a mission and had lacked objectivity, and put their hands up (since they had no choice) to suggestions of a lack of professionalism and due care in their handing over to the defence of psychological counselling notes, and interview tapes they were legally barred from handing over.

Meanwhile the inquiry dealt exhaustively with the position of the Victims of Crime Commissioner, accused somehow of being or appearing partisan by her appearance in court during the trial at the side of Brittany Higgins, the woman alleging rape. Even when it turned out that the law explicitly gave her or permitted her a range of roles, including of being beside the victim, the chairman remained exercised by the risk of its somehow undermining the presumption of innocence. I suspect the commissioner had the second hardest time after the DPP. The police evidence could, and should, cause general consternation about the state of law and order, and its quality at seriously high expense. But the interrogation of most of the police witnesses was left to junior counsel, and, though concession after concession was extracted, including by counsel for the DPP, none of it could have been called aggressive.

The DPP deserves some criticism, but he was right to be very suspicious about the police will to carry the investigation to completion. There was ample evidence of it, and of sabotage, and of their actively seeking to undermine the prosecution. The police suspicion of him, by contrast, was far less well-grounded in fact, and not a little on a quite unprofessional misunderstanding of the relevant law.

We can likewise expect some criticism of Higgins for using publicity, at one stage perhaps going into the contempt-of-court zone. But dealing with that, or any conduct of Lehrmann, is one matter which is certainly outside of Sofronoff's terms of reference. Accuser and defendant are but players flitting on a stage whose construction and fitness for purpose is the actual matter under investigation.

MORE WATERFORD:

The inquiry began with good intentions about being as open as possible with documents associated with the inquiry. Soon, however, a police statement recording sexual gossip about the alleged victim was found to have been put on open record. The material was precisely of the sort that is now, by law, unable to be raised in court. Banned or not it is of a type (I can say with experience) that often informs police judgements about the merits of a prosecution case. Once the mistake was recognised, it was decided that no statement, or accompanying exhibits, should be put on the record until it had been rigorously vetted for such material. That process was long and slow and has severely limited public understanding of what has been going on, particularly with police witnesses.

No doubt because of this difficulty, the inquiry then began to edit and redact, or not present at all, hundreds of police statements. And most of the blacked-out or omitted material did not seem to refer to matters involving the personal privacy of any of the parties. What was being concealed was the goings-on of AFP national police operations, including the somewhat sinister-sounding Sensitive Investigations Oversight Board. This is a body of very senior cops able to give directions to detectives about how they should proceed with sensitive cases, particularly ones with federal political implications. It is also, in part, an extension of the quite improper apparent AFP practice by which senior cops tip off their (federal) minister when any matter with the potential to become politically embarrassing arises. This was the practice that once allowed the AFP to indirectly tip off Michaelia Cash so that her staff could tip off the TV media to a brigade-level police raid on a trade union, thought likely to possibly, and possibly illegally, destroy documents.

Another curious feature of those police documents that made it through the inquiry sieve is that they seem restricted to process only. Emails between officer A and B recording the passage of some document, instruction from above, or information from below. These establish that ACT AFP detectives are very bureaucratic to no great effective purpose. But their way of managing documents showed them to be experienced in cunning, no doubt from years of resisting FOI production. In many of the emails, for example, reference would be made to an enclosure which, on the face of it, might contain information about what someone was doing or thinking.

But the enclosures were never enclosed, or at least not in the documents the inquiry released. Police statements often cited more than 100 exchanges, instructions or pieces of information sent. These were identified as exhibits to the statement. But the inquiry seems to have decided that the public would have very limited interest in exhibits. Perhaps the police, out of the public eye, made successful representations to the chair about the need to conceal their methods and their manner of investigation. The result was hardly calculated to inspire confidence in their work. It may also make it impossible to cross-check any of the inquiry's findings from the transcripts or documentary record.

Some police statements were, in effect, tabled, without cross-examination. Among these was ACT Chief Police Officer Neil Gaughan, notionally responsible for how the police are organised in the ACT. It was quite clear from his statement that he had numerous interchanges about the case with his federal commissioner, and with his federal colleagues, including the Sensitive Investigations Oversight Board.

The remit of the SIOB is to watch over, including giving directions, on how politically sensitive cases were managed. Politically sensitive were matters involving the federal government, an MP, staffer or senior bureaucrats. Or journalists or news media organisations, or a person or body prominent in the Australian community. Such people received different treatment, not necessarily more favourable treatment.

Gaughan's statement makes no reference to AFP visits to and interchanges with the federal minister in whose office the assault was said to have occurred. Perhaps he saw no need to detail such matters, since they involved matters outside the jurisdiction of the ACT. Some years ago, he used that line of reasoning to keep the ACT AFP out of the jurisdiction of an ACT ICAC.

The inquiry's focus on process, on conversations between cops, and between cops and the DPP, means that there is very little about the evidence itself, or the case the police assembled. Perhaps this reflects a punctiliousness about inquiring into the guilt or innocence of Lehrmann, a matter that cannot be re-agitated.

But that should not have prevented the inquiry investigating how well police went about collecting evidence, interviewing witnesses, whether they missed lines of inquiry, or whether bias and prejudgment of the alleged victim left stones unturned. One would think that the inquiry would want to satisfy itself about that before descending to detailed criticisms of DPP practice or police training.

The investigation had been going on for some time before any of the cops thought to interview Lehrmann. Some seem to have thought it unnecessary, since they were already ready to throw out the case without charge because they thought there were some discrepancies in Higgins' evidence. The police brief was reviewed by an independent team of ACT AFP detectives, but the inquiry might have done well to review it through more experienced and professional outsiders, particularly by women.

It now appears that submissions made by counsel, including counsel assisting, will be made in private. No more public hearings are planned.

The Lehrmann case was a matter of headlines for more than a year and was involved in a wider political issue about violence against women and the safety of women from harassment and assault at Parliament House. That campaign saw extensive criticism of sexual assault laws, and the diligence of police and other bodies in dealing with assaults. We have learned, recently, that only 3 per cent of complaints made to ACT police get to charges and prosecution.

There is evidence of senior AFP involvement in managing the controversy, and sharp questions in Parliament including of what the Prime Minister, and his private office, knew or did. The PM's office was accused of "backgrounding" the media about Higgins and her boyfriend. There were allegations of dirty tricks, including now, of some stage management to make the case a cause celebre by Higgins and her boyfriend.

The Federal AFP Commissioner was questioned about the case in estimates committees, and later at the press club. It was plain he well understood everything that was going on, in part from briefings from his ACT Commissioner, but also from his sensitive operation committee, as well as gossip going in every direction, including officially, because of the deepening tension between the ACT cops and the DPP. Put simply, many of the investigators didn't believe Higgins, or in any event did not think a jury would believe her. At least one of the most senior detectives, explicitly not in the least "woke", appeared to believe that recent "reforms" to sexual assault laws were designed to require cops, and perhaps, ultimately juries, to believe the complainant regardless of the evidence. Getting him to row back took some time, despite his having a support person at the inquiry. The more senior investigating cops were most vociferous in their tendency to believe that Lehrmann was being sacrificed on an altar of political correctness.

These matters, in or out of ACT jurisdiction, are part of what the lawyers would call the res gestae or surrounding circumstances of the case. Without them one simply cannot understand what the case was all about, or why some think the justice system failed the public, the alleged victim, and probably the defendant. This material was in the public domain, and a matter of considerable public controversy. Some of it may have been, strictly, inadmissible at trial. But that does not stop the inquiry looking at the fiasco within its context. Nor even, if it looks at the evidence, in considering it in coming to conclusions.

When police, or prosecutors, talk of the "politics", or "pressure" or "press of media" in the case, they are primarily talking of things the jury was not allowed to know about. It does not appear the public will be much better informed about, or able to be more confident in, the ACT justice system after the inquiry.

MORE ON THE INQUIRY: