Bruce Lehrmann’s defence lawyer has told an inquiry a police officer who said he would quit if the former Liberal staffer was found guilty was experiencing a “moral trauma” at the time.
Steven Whybrow SC insisted he could “read between the lines” that the police thought the case was weak, but conceded no officer made that view clear until the jury was sent to deliberate.
Giving evidence to a public inquiry into the aborted trial on Monday, Mr Whybrow recounted a conversation he had with Detective Inspector Marcus Boorman.
“During the course of the trial. I got no impression that any of the police wanted the trial to be not guilty or were not doing their job professionally,” he said.
“After the jury had left (to deliberate) I had that conversation … He was somewhat stressed. I believe my impression was sort of a moral trauma.
“He expressed the view that he thought (Mr Lehrmann) was innocent.”
Mr Whybrow said while he had “never had a case like this before” it was the first time a police officer had expressed such a view to him during a trial.
Mr Lehrmann pleaded not guilty to one charge of sexually assaulting his former colleague Brittany Higgins before the trial was aborted due to jury misconduct.
Mr Lehrmann 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 charges.
The defence barrister is the second witness to appear before an inquiry into how the criminal justice handled the high-profile case.
The inquiry was sparked by a letter from Director of Public Prosecutions Shane Drumgold SC to the ACT’s Chief Police Officer, in which he raised concerns about “political and police conduct” during the case.
In the letter he repeated allegations, first raised in court, that Senator Reynolds had sought transcripts of the trial from the defence to tailor her own evidence, was coaching the defence in its cross-examination, and had organised her partner to attend court to listen to the trial.
Senator Reynolds employed both Mr Lehrmann and Mr Higgins at the time of the alleged incident. She denied the accusations when they were put to her in court last year.
Mr Whybrow told the inquiry he had disclosed two texts to Mr Drumgold out of court to allay his fears of interference and he was left “pissed off and angry” the information was used against her.
“It was an appalling mischaracterisation of what had occurred,” Mr Whybrow said, referring to a furious email he sent Mr Drumgold.
“I don’t hold a candle for Senator Reynolds but (the suggestions) were unfair and as far as I was aware, untrue and from the perspective of defence played on so this so-called political cover up conspiracy… when there wasn’t any actual factual evidence for it,” he said.
The Liberal senator had sought transcripts for her lawyer‘s use and suggested messages between Ms Higgins and another former member of her team, Nicole Hamer, may be “revealing”.
Mr Whybrow said that line of inquiry had already been “chased down” by defence.
“(The DPP) put these positive things to Linda Reynolds, to and including, that she was trying to tell me how to do my job, giving me cross examination tips” Mr Whybrow said.
“I was angry and pissed off. I wrote this email to him that what I considered was improper conduct. I’m very concerned that you put it as a positive attestation.
“He didn’t say ‘were you giving cross-examination tips. He said, ‘you were giving … tips’ and there’s a significant difference.”
The defence barrister was also concerned that Mr Drumgold used the exchange in his closing argument to infer a possible political conspiracy was afoot.
“There was no evidence,” Mr Whybrow said.
Mr Drumgold told the inquiry last week he was wrong to suspect there was political interference, insisting a police “skills deficit” was more likely to blame.
The inquiry also heard Mr Whybrow was not convinced the jury could ever reach a not guilty verdict, given the pretrial publicity, but it was his belief that 10 out of the 12 jurors were in favour of acquittal.
He said Mr Lehrmann had already been convicted by the media and the perception of Ms Higgins as a victim was elevated by the Victims of Crime Commissioner entering court with her each day.
Mr Whybrow also took umbrage at a statement Mr Drumgold gave to the media on the day he announced there would be no retrial due to concern for Ms Higgins’ mental health.
The DPP said during his December 2 announcement that he was of the view there was still a reasonable prospect of convicting Mr Lehrmann, and gave comments in support of Ms Higgins.
Mr Whybrow told the inquiry this gave the view Mr Lehrmann was “really guilty” - as did Mr Drumgold’s evidence last week that he believed 11 of the 12 jurors were inclined to convict.
“The DPP is not the solicitor for the complainant. He’s meant to be the objective minister for justice,” he said,
“He could have said something as well about it no doubt being very difficult for Mr Lehrmann who has had his life turned upside down for the last two years and will now not get an opportunity to clear his name.”
Last week, the DPP became emotional as he expressed regret for the comments and conceded he “possibly” didn’t consider the effect the statement would have on Mr Lehrmann “as much as (he) should have”.
Chair Walter Sofronoff KC said the statement was “very similar” to what broadcaster Lisa Wilkinson said in her speech at the Logies that led to the first trial date being vacated.
The inquiry continues.