How the DPP’s advocate sets her client back

“CityNews” legal columnist and former barrister HUGH SELBY is commentating regularly on the Sofronoff Inquiry’s public hearings, focusing upon the advocacy and witness performances. 

The Board of Inquiry, led by Commissioner Walter Sofronoff KC, a former president of the Queensland Court of Appeal, was established by the ACT government in December to examine how police, prosecutors and a victim support service handled allegations made by Brittany Higgins against her former colleague Bruce Lehrmann.

“The relevant point, first made almost in passing and then becoming central, was that the DPP should have consulted with police as to their views, rather than going about preparing a response to the defence application without police input.

A SIMPLE delay became a major problem for the DPP as junior advocate for DPP Shane  Drumgold SC, Brin Anniwell’s cross examination of Acting Assistant Commissioner Joanne Cameron continued from yesterday.

After some minutes, Commissioner Walter Sofronoff asked: “Where is this cross-examination going?”

Ms Anniwell answered.

The commissioner then asked: “Why does that (information) matter [to his tasks]?’

As he has done before, he summarised how the evidence was emerging.

Ms Anniwell then replied that her questions had to do with assessing her client’s five-day delay in advising the police of a defence application for disclosure of documents. Ms Cameron thought that delay was “not satisfactory”.

By lunchtime it was clear that taking up that topic significantly worsened the DPP’s position.

Not for the first time Ms Kate Richardson SC, advocate for the AFP, showed her mastery of all the detail (both in the documents and what witnesses have said) when making objections to a line of questioning.

Following her objection to a question, the exchanges between her and the commissioner were instructive as to his pragmatic approach to how questions based on documents could be asked by one advocate for one purpose, and then picked up by another advocate to suggest that another inference  should be drawn.

In her questioning of Ms Cameron, Ms Richardson did just that. She took Ms Cameron to additional documents that showed what the DPP did within his office after receiving the application from the defence for further disclosure of documents.

The initial purpose of the questions was to substantiate Ms Cameron’s written remark that the five days delay in the DPP advising the AFP of the defence application was “not satisfactory”.

That view was reinforced by Ms Cameron’s answers and the documents.

One response to this outcome would be: “Ho hum. Must every rabbit be chased down a hole?” Was the result worth all the time given to the issue of whether a five days delay was satisfactory, unsatisfactory, or something in between?

Moreover, the police were on weak ground because they delayed for a month after getting the ODPP advice to charge. See Commander Chew’s evidence later.

However, the relevant point, first made almost in passing and then becoming central, was that the DPP should have consulted with police as to their views, rather than going about preparing a response to the defence application without police input. Remember that police are “the client” for the ODPP.

In response to the defence application the DPP filed documents in court without the prior knowledge of police. That was made worse by the DPP making what the police believed to be “inaccurate representations” to the court. That’s not acceptable, no ifs or buts.

On the “non consultation” point, Ms Richardson’s questions were easy to understand, incremental, well paced. The devastating implications from Ms Cameron’s answers to an assessment of Mr Drumgold emerged piece by piece.

None of that would likely have occurred if the “non supportive” comment had been left alone.

Inspector Boorman’s distress

Ms Anniwell’s attempt to “do over” Inspector Boorman’s expression of disquiet about the case, to the effect that he would resign if the jury convicted (while the jury was out) to defence counsel failed. Ms Cameron said that she would not make such a statement, but she wasn’t prepared to criticise her subordinate.

Late in the day, when cross examining Commander Chew, Mark Tedeschi KC, senior counsel for Drumgold, returned to the same point. Mr Chew did not oblige. Hence two attempts by the advocates for the DPP to have colleagues “down” Insp Boorman failed.

Lisa Wilkinson, her speech, and legal advice

Tasha Smithies, a solicitor employed by Network 10, was introduced by Ms Erin Longbottom KC, counsel assisting [CA].

Ms Smithies attended, via Microsoft Teams, a proofing conference with media personality Lisa Wilkinson and members of the DPP.

Her recollection, while slightly different from Ms Wilkinson, was to the same effect that DPP Drumgold cut off Ms Wilkinson when she put questions to the DPP about what she could say in her Logies speech.

She has no recollection, contrary to Mr Drumgold, that she ever pressed “mute” so that she could have a private conversation with Ms Wilkinson.

Mr Tedeschi cross-examined. The commissioner pointed out to him that Ms Wilkinson had received legal advice (from her employer). Ms Sue Chrysanthou SC, advocate for Ms Wilkinson, noted that their complaint was as to the DPP’s obligations to the court, not to Ms Wilkinson. There was discussion that since the relevant evidence as to the speech, and as to Ms Wilkinson having legal advice being incontrovertible, all that remained was submissions as to what that entailed as a matter of law. Mr Tedeschi sat down.

The last police witness, Commander Michael Chew

Commander Michael Chew was then introduced by the CA. Supt Shane Moller reported to him. His evidence corroborated that given by Ms Cameron and Mr Moller. Prior to Bruce Lehrmann being charged his personal view was “that this was not a strong case; however, the potential for a successful prosecution was there”.

After the DPP advised the police that there was sufficient evidence to charge there was a one month delay by police.

Although the internal Red Team review of the investigation had not finished, Mr Chew instructed Supt Moller to issue the charge summons to Mr Lehrmann. This followed contact from Ms Higgins’ friend who criticised the delay.

It was Mr Chew who gave the instruction to serve the brief directly on the defence. This is not common practice. Usually, the defence brief will go from police to ODPP which then checks it and provides it to the defence.

In hindsight Mr Chew would have followed the usual internal adjudication process as that would have avoided such problems as the inclusion in the brief given to the defence of items that should not have been there.

Evidence by police at public hearings is now finished.

Where are we after 12 days?

I offer the following suggestions:

First, there is a lack of evidence to support claims of political intervention or police interference in the prosecution. Suspicions are thoughts, not evidence.

Second, what can be said so far about the Victims of Crime Commissioner, Ms Heidi Yates, is that she is passionate about her job, apparently very good at it, and has endless compassion. We don’t yet know how the public nature of her “support” for Ms Higgins during the trial will be explained and then evaluated.

Although the inquiry will have a statement from her, we livestreamers are yet to meet her as a witness. That will happen next Thursday.

Third, that the police witnesses have given us good reasons to be proud not only of their approach to sexual assault investigations, but also of their ability to frankly concede errors, to take responsibility, and to defend and support their subordinates and colleagues.

Fourth, that given the inconsistencies among police as to what they believe the test for their charging a defendant to be, the commissioner will make recommendations towards what needs to be done so that police have a consistent understanding and application of the correct test.

Fifth, it is a week since “The Australian” reported Mr Lehrmann’s account of what an ACT Legal Aid officer told him, namely, that the Legal Aid CEO could direct defence counsel as to how to run a key aspect of the case at trial, and that Mr Steven Whybrow SC would not be briefed by ACT Legal Aid because of their negative assessment of his advocacy style.

ACT Legal Aid has chosen to remain silent. It has not denied his account. It has not issued a statement that sets out its policies, if any, as to what briefed counsel can do or not do. Nor has it issued a statement about what are the professional attributes that are expected of barristers who are offered work from Legal Aid.

That silence amplifies the concerns of those, including this writer, that if Mr Lehrmann’s recollections are correct then ACT Legal Aid has lost its way when assisting accused at criminal trials.

In a nutshell, the defence task is to test the prosecution evidence and the givers of that evidence to create a reasonable doubt in the decision maker’s mind. That cannot be fettered by “being soft” in raising issues and the manner in which they are pursued from the bar table.

Because this inquiry is into the ACT Criminal Justice System, of which ACT Legal Aid is a key part, the inquiry should be asked by the government to examine what are their policies on these issues, are they appropriate, and, if not, what changes are necessary.

What’s coming next?

The next public hearings are next Thursday and Friday when Mr Lehrmann’s first advocate will give brief evidence, followed by the Victims of Crime Commissioner, Ms Heidi Yates.

“CityNews” legal commentator and former barrister Hugh Selby is writing running commentary on the Sofronoff Inquiry’s public hearings, focusing upon the advocacy and witness performances. The “CityNews” coverage of the inquiry, including his daily reviews, are here.

Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

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