Thursday was the last day of the public hearings of the independent Board of Inquiry, led by Commissioner Walter Sofronoff KC, into how ACT police, prosecutors and a victim-support service handled allegations made by Brittany Higgins against her former colleague Bruce Lehrmann.

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

“Friends, Canberrans, countrymen, lend me your eyes;

We come to bury our past, not to raise it.

The good that men do lives after them;

Now let the bad be interred with their bones.”

(with thanks to William Shakespeare, “Julius Caesar” recast)

THESE words sum up what the Sofronoff Inquiry has become:

• an explanation for many misconceptions;
• lessons learned for anyone who is involved in, or peripheral to, the investigation and prosecution of sexual assault investigations;
• a revealing of professional shortcomings and strengths;
• a display showcase for bad and good advocacy; and,
• a template for how to prepare and deliver a worthwhile public inquiry.

John Korn and the ‘civilised’ police

Defence advocate John Korn’s evidence was short. Because of illness he was unable to continue to act for defendant Bruce Lehrmann.

He had started legal practice in the ACT (in the mid ’70s). He found the AFP (ie. now ACT Policing) to be “civilised” compared to the NSW police.

He was talking of long ago in the ACT, and much more recently in NSW. That said, his observation was an instructive reminder that we form views based on direct experience.

In cross-examination by Mark Tedeschi KC, advocate for DPP Shane Drumgold, Mr Korn said that police had never expressed any views to him about whether Mr Lehrmann should be charged.

Mr Korn also told us that, as a defence advocate, he often gets USB sticks from the NSW Police. He used to complain about it because it meant his client had to pay for printing it out. As we livestreamers know, this practice is unusual in ACT Supreme Court trials.

When does a ‘victim’ of crime become a victim? 

“Commissioner Sofronoff gave Ms Yates a clear, straight line to solving the problem of the changing status of her clients as a case moved from allegation to investigation to trial to post trial. It was as though she was in a minefield but didn’t know it. He gave her safe ways out of that minefield. All to no avail.”

Like our lakeside fireworks spectaculars, we keep a big bang to the end. Welcome, Commissioner Heidi Yates.

Erin Longbottom KC, senior counsel assisting (CA) introduced her evidence with an informative summary about the Victims of Crime Commissioner legislation and regulations.

Ms Yates explained her legislation and the services and support provided by her office. This expanded the information given by police witnesses earlier in the inquiry. Her answers were informative, responsive to the question, knowledge based and given at an easy-to-follow pace. 

She shared valuable information directly with the inquiry Commissioner, Walter Sofronoff KC. 

During those exchanges he suggested the client of her service team as being “a claimant” until there is verdict of guilty, when they are assuredly “a victim”. A very simple solution to a long-term definitional problem!

She leads a multi-disciplinary team, but clients are also referred to outside specialist services.

Her and her team’s starting point is to accept a client’s statement, a position of “belief”, taking the person and their claims to have suffered from a criminal offence at face value. That, however, is subject to receiving credible information to the contrary.

Questioning moved to services given by her office to Ms Higgins. Ms Yates was concerned at breaching the privacy and confidentiality owed not only to Ms Higgins, but all other clients of her office. The commissioner suggested how to solve this problem by not going to those specifics that would breach those concerns.

There was discussion about the second recorded interview by police with Ms Higgins. Ms Yates attended that interview at the request of Insp Marcus Boorman (he whom the DPP’s advocates unsuccessfully tried to attack via his superiors in earlier evidence). 

Following the interview, Supt Scott Moller warned Ms Higgins about the dangers of going to the media. Ms Higgins became distressed. Ms Yates gave her words of comfort, which some may have misinterpreted.

In cross-examination, Mr Tedeschi returned to this interview. Ms Yates said it was rare for complainants to have contact with police other than those investigating. Hence, more senior police being there after the interview was not usual. 

Mr Tedeschi then asked questions about the police interview of Ms Yates (sic). He was able to show differing recollections between Ms Yates and Supt Moller.

About those public acts of support, commissioner

The CA turned to the trial and Ms Yates’ actions. 

The CA pointed to public criticism, such as of her publicly walking with Ms Higgins into court. Here was the opportunity to “confess and avoid”. 

Ms Yates referred to her written statement. She began: “This was an extraordinary matter”. 

The CA pointed out that publicity of her actions was inevitable. There was a need to pay regard to “the presumption of innocence” – both generally and as stated in the Human Rights legislation.

A “balancing exercise” was unavoidable, looking to each and all of the accused rights, victim and family rights, plus public rights.

What Ms Yates had to say, inter alia, included:

“Those adverse perceptions (about my public acts) concern me deeply… 

“They may represent a misunderstanding of my role.”

Sadly, the bottom line is that she failed to show or express an appreciation of how her public acts adversely affected interests other than Ms Higgins. Protection of those interests is also part of her role.

Commissioner Sofronoff intervened with telling questions that reflected the intertwining of the presumption of innocence, the prospect of prosecution success, and, the position of competent defence advocates and others who wanted to see a “fair trial” to all.

He then moved to showing the problem the legislation created by calling her the “Victims of Crime Commissioner”, even at a time when she was providing a service to claimants (who are not yet proven victims of crime).

He gave Ms Yates a clear, straight line to solving the problem of the changing status of her clients as a case moved from allegation to investigation to trial to post trial. It was as though she was in a minefield but didn’t know it. He gave her safe ways out of that minefield. All to no avail. 

She wouldn’t step on to that path. She was, she says, “cognisant” of her various responsibilities. Intellectually this is probably so; however, she was incapable of “seeing” what was obvious to many others.

Even now, with more information, she would not have made a different decision. Commissioner Sofronoff pointed out that her job obliged her to consider both the complainant and the accused.

It was an unfortunate surprise to learn what happened when she raised with the DPP the issue of her walking into court with Ms Higgins. She did so at one of the final pre-trial interviews. DPP Drumgold did not raise any concerns with Ms Yates.

As to her knowledge of what Ms Higgins would say following the end of the trial, she knew what might be said (because she had read drafts in which Ms Higgins’ lawyer was involved).

Did Ms Yates know that the speech would include assertions as to the truth of her allegations (ie, that Mr Lehrmann was guilty)? 

[Keep in mind that this was before the announcement that there would be no retrial.] 

In the moment (of the speech being about to be given) she was not focused at all upon what Ms Higgins might say: her focus was on Ms Higgins’ welfare, getting Ms Higgins to a safe place.

Ms Yates stood next to Ms Higgins when she gave her speech. She was asked about doing so. In her answer she said her priority was Ms Higgins’ welfare. 

Asked whether she would stand next to a client if asked again she said it would depend on the circumstances; for example, what was to be in the speech. Yet again there was a blind spot as to the competing interests that she serves.

Asked to assume that she’d known about the content of the speech, she still baulked at the notion that she should have stepped at least to the side, maybe even out of our sight and minds.

What happens from here?

There was no “confess and avoid” by Ms Yates on Thursday.  There was, and will be, no fresh appearance by the DPP, Shane Drumgold SC. There was not a word from ACT Legal Aid. 

I googled “media releases”. Nothing from ACT Legal Aid, nothing from the ACT Bar Association or the ACT Law Society. It seems that allegations of muzzling the running of a defence at trial, and blacklisting a senior member of the profession are too insignificant to warrant any public comment. 

That failure is a revealing insight into the Canberra criminal justice bubble within which Ms Yates has worked very hard. Are some people drinking the Kool Aid?

The public hearings are likely finished. There may be one more witness – a decision to be made on Monday. 

Possible adverse finding will be notified by June 9; that is the end of next week.

The advocates will make written submissions about what findings the commissioner should draw from the evidence read and heard.

There will be time for everyone to consider draft recommendations.

My series of commentary articles in “CityNews” have been limited to the spoken evidence and the documents visible to livestreamers. There is much that we do not know, but the commissioner and his team do.

The commissioner’s role is much wider than criticism of those involved. There will be criticisms, but there may be praise, too. 

It is quite possible that a witness may be praised on the one hand and criticised on the other. 

He will also consider whether legislative changes are needed; for example, in the police test to charge and the Office of the Director of Public Prosecutions guidelines to go to trial.

Thursday’s exchanges with Ms Yates (which developed some remarks he made at the start of the public hearings) suggest that he will have recommendations that will make clearer the various roles and the changing nature of the balancing act performed by the Victims of Crime Commissioner.

Commissioner Sofronoff is to complete his report by the end of July. For now, we wait.

“CityNews” legal commentator and former barrister Hugh Selby has been 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, is 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.

Commissioner defends choice to publicly support Higgins

News all day, every day at CityNews.com.au.