The ACT Board of Inquiry Into the Trial of R v Lehrmann | The Role of Public Inquiries

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Ella TrickeyThe article The ACT Board of Inquiry Into the Trial of R v Lehrmann | The Role of Public Inquiries is written by Ella Trickey, Lawyer, Doogue + George Defence Lawyers.

Ella was previously a Judge’s associate in the Criminal Division of the Supreme Court of Victoria. She completed a professional placement at the Coroners Court of Victoria and had also been an assistant to civil barristers at Owen Dixon East chambers.

Ella is particularly interested in Coronial matters, and in advocacies for the over-represented and marginalised members of the community ever since her university days. She graduated with high honours and holds a Juris Doctor degree from Monash University.

Public InquiryThe ongoing public inquiry into the rape trial of political staffer Bruce Lehrmann has captured widespread media attention in recent weeks, uncovering explosive revelations that strike at the core of the fundamental principles of our criminal justice system.

The inquiry was launched in response to a letter disclosed to the press in November 2022 from the ACT Director of Public Prosecutions (DPP), Shane Drumgold, addressed to the ACT chief of police. In the letter, Drumgold expressed concerns about the behaviour of police and their interference in his management of the prosecution, calling for a public inquiry to investigate both political and police conduct in the case.

But what exactly is a public inquiry, and how do they operate?

What is a Public Inquiry?

A public inquiry is an official investigation that is established by a government to examine and report on a matter of significant public concern. They are temporary, independent entities appointed by executive governments with specific terms of reference and public review and reporting processes.

Public inquiries are usually open to the public, and their proceedings and findings are often made public to ensure transparency and accountability. The purpose of a public inquiry is to provide an objective and impartial investigation into a matter of public interest, with the aim of informing public policy and preventing similar incidents from occurring in the future.

What Types of Matters Do Public Inquiries Investigate?

Public inquiries can investigate a wide range of issues, including allegations of wrongdoing, events of national significance, matters of public concern, and policy development.

It is relatively rare for public inquiries to examine the conduct of criminal trials. Such inquiries are usually only established in cases where there are serious concerns about the conduct of the trial or where there has been significant public interest in the case. In general, trials are conducted within the court system and are subject to the oversight of the courts, rather than public inquiries. However, in exceptional cases where there are concerns about the fairness or integrity of the trial process, public inquiries may be established to investigate these issues.

There have been several public inquiries in Australia into the conduct of criminal trials.

The Lehrmann Inquiry

The Board of Inquiry, conducted by former Supreme Court Justice Walter Sofronoff KC, will investigate the allegations made by Mr Drumgold in his letter to ACT police and determine if any external factors, beyond the trial and attempted retrial, compromised the fairness of the process or infringed upon the rights of those involved.

The inquiry is currently in its third week of hearings, and it has become apparent that a deep division between ACT police and prosecutors lies at the heart of this inquiry. On the one hand, senior police involved in the case have given evidence stating that they did not believe that there was sufficient evidence to charge Mr Lehrmann, however it was said that police faced immense pressure from the Director of Public Prosecutions to proceed with the trial.

On the other hand, Mr Drumgold has given evidence suggesting that he formed the view at the outset of these proceedings that police were reluctant to charge Mr. Lehrmann in part due to being under external political pressure not to pursue the charges. That is a claim he later retracted, admitting that he no longer suspected political interference in the prosecution of Mr Lehrmann after reading the submissions to the inquiry.

Most recently, Lehrmann’s defence counsel, Steven Whybrow KC, has given evidence defending his conduct during the trial, including his engagement with police. Whybrow has called into question whether Mr Drumgold properly complied with his duties as the DPP, including his duty of impartiality. He has expressed his opinion that Drumgold was occasionally ‘overzealous’ in his support of Ms Higgins, highlighting the need for a clear distinction between the support provided to individuals presumed to be victims under legislation and their role as complainants in the criminal justice process. He emphasised that prosecutors have an important role to play in ensuring that complainants’ allegations undergo proper scrutiny and testing within the legal system.

The ‘inescapable conflict of assumptions’ between complainants and defendants was acknowledged by inquiry chair Walter Sofronoff KC, who highlighted the need for the justice system and the media to balance their roles.

The ongoing inquiry promises to reveal further information regarding the conduct of this high-profile trial and its broader implications for trials involving sexual offences. It exemplifies the significance of public inquiries in ensuring transparency and accountability in matters of public concern.

Other Examples of Public Inquiries Into the Conduct of Criminal Trials

One other notable example is the inquiry into the conviction of Lindy Chamberlain, who was found guilty of murdering her infant daughter Azaria in 1980. Chamberlain maintained her innocence and claimed that a dingo had taken her baby. Following a high-profile trial and appeal, Chamberlain was ultimately exonerated in 1988 after new evidence emerged. A royal commission was subsequently held to investigate the case, which led to significant reforms in the way that evidence is presented in criminal trials in Australia.

Another example is the inquiry into the prosecution of Dr. Mohamed Haneef, a doctor who was arrested in connection with the 2007 Glasgow airport attack. Haneef was initially charged with terrorism-related offences, but the charges were later dropped. An inquiry was held to investigate the conduct of the Australian Federal Police (AFP) and the Director of Public Prosecutions in the case, which found that mistakes had been made in the investigation and prosecution of Haneef. The inquiry recommended changes to the way that terrorism-related cases are handled in Australia.

Public inquiries can therefore indirectly contribute to improving oversight and accountability in criminal trials by investigating systemic issues or failures within the justice system. If a public inquiry uncovers shortcomings or deficiencies in the criminal justice process, it can make recommendations for reforms or improvements to enhance accountability and oversight.

Terms of Reference and Powers of the Person Presiding

The terms of reference of a public inquiry define the scope and purpose of the investigation. They are issued by the appointing authority, and the person presiding over the inquiry is given the power to investigate within these terms. The person presiding over a public inquiry is usually appointed by the government and has significant powers to conduct the investigation, gather evidence, and make findings and recommendations.

According to the terms of reference of the Lehrmann inquiry, the Board will investigate whether any police officers failed to act in accordance with their duties or acted in breach of their duties in relation to the investigation of Brittany Higgins’ allegations against Bruce Lehrmann, and in their dealings with the Director of Public Prosecutions and legal representatives in relation to the trial. The board will also investigate whether the Director of Public Prosecutions failed to act in accordance with his duties, and whether the Victims of Crime Commissioner provided appropriate support to Higgins.

Rules of Evidence and Receiving Submissions from Interested Parties

Public inquiries have different rules of evidence and procedures to a court of law. For instance, they can consider hearsay evidence and make findings on the balance of probabilities, rather than the higher standard of proof required in criminal trials, beyond reasonable doubt. The rules of evidence and procedure for public inquiries vary depending on the type of inquiry, but they generally aim to ensure fairness and transparency.

Interested parties, such as those involved in the incident under investigation or those affected by the findings of the inquiry, can make submissions to the inquiry. This is an essential feature of public inquiries, as it allows those who may have been affected by the incident under investigation to have their say and provide their perspective.

What is the Role of Lawyers in Public Inquiries?

Lawyers play a significant role in public inquiries. Their involvement is crucial to ensure legal procedures are followed, rights are protected, and evidence is properly examined. Lawyers often act as legal counsel or advisors to the inquiry itself, providing guidance on matters of law, procedural rules, and evidence gathering. Lawyers may also act for witnesses or interested parties in public inquiries by providing legal advice, preparing witnesses for testimony, cross-examining other witnesses, and making legal arguments on behalf of their clients.

While public inquiries are an important mechanism for oversight and accountability in matters of public concern, as Sofronoff KC stated on the first day of the Lehrmann inquiry, “public inquiries unavoidably hurt some people’s reputations.” Lawyers play a crucial role in safeguarding the rights and interests of their clients and ensuring that legal standards are upheld throughout the process.
Date Published: 24 May 2023

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