Lehrmann lawyer says prosecutor 'aligned with Higgins'

·3-min read
Mick Tsikas/AAP PHOTOS

Bruce Lehrmann's defence lawyer was concerned the ACT's top prosecutor aligned himself with former Liberal staffer Brittany Higgins rather than remaining objective, an inquiry has been told.

Steven Whybrow is the second witness in the independent inquiry into how the territory justice system handled Ms Higgins' rape allegation.

Mr Lehrmann denies the allegation and faced a criminal trial in an ACT Supreme Court which was derailed because of juror misconduct.

Mr Whybrow said he was concerned by a statement by Director of Public Prosecutions Shane Drumgold when he announced he would drop the charges against Mr Lehrmann.

This decision was made because of fears about the impact a second trial could have on Ms Higgins' mental health.

In the statement, Mr Drumgold said he still believed there was a "reasonable prospect of conviction".

"I felt like it was a pejorative stab at Mr Lehrmann, unnecessarily," Mr Whybrow said on Tuesday.

"I was concerned that he had aligned himself with Ms Higgins." 

But the prosecutor's lawyer Mark Tedeschi argued his client was entitled to say it because of the high-profile nature of the case, to explain his decision not to proceed with a retrial and ensure the community had faith in the justice system.

Mr Whybrow disagreed and said those words did not need to be included in the statement. 

"It's as valid as his view as to what the jury numbers (to convict) were. In my view, at that point it was moot," he said. 

Earlier, Mr Whybrow said he got the impression during the trial that the prosecutor was "hostile" towards police. 

He said this was due to a combination of things including body language, comments about police skill sets in front of the jury and an observation there was no real communication between the prosecutor and police during the trial.

Mr Drumgold last week told the inquiry his team had "closed ranks" against police because they believed officers had lost objectivity in the matter.

Mr Whybrow did not think senior police officers resented the prosecutor in the case, but some were not happy with elements of the trial.

"I don't know about the word 'resentment' but (ACT Police detective inspector Marcus Boorman) was unhappy with various aspects of the trial," he said.

"I don't mean that (police) were loving and kind ... my impression was that it was Mr Drumgold who was hostile towards the police."

The defence lawyer also indicated to police someone other than Mr Drumgold should decide whether there should be a retrial.

Mr Whybrow said the first time he became aware of suggestions territory police were "undercharging" when it came to sexual assault matters was while reading inquiry submissions.

Yet Mr Tedeschi said he would submit to the inquiry that police had a "bizarre" approach to whether Mr Lehrmann should have been charged in the first place.

"We want to prove that it's true that (police) did have this attitude to sex cases generally and that (the Lehrmann case) was a classic example of it," he said.

"Had it not been for all the publicity, had it not been that the alleged offence occurred in Parliament House, this matter would have been dealt with like the other ... matters that have been, in effect, just ignored by the police."

The inquiry, led by former Queensland solicitor-general Walter Sofronoff, is examining the actions of ACT police, prosecutors and a victim support service during the investigation and trial.

It was established after accusations by police and prosecutors about each other's conduct during the case.