'Evasive, uncooperative and manipulative'

Is Drumgold being hung out to dry? Only a few months ago the ACT Director of Public Prosecutions, Shane Drumgold SC, was strutting around, reveling in his pursuit of Brittany Higgins' alleged rapist, Bruce Lehrmann, with the press hanging off his every word during the prolonged trial. Naturally, the media was delighted when he sensationally pronounced his belief in Lehrmann's guilt after aborting the trial.

Suddenly, he's on shaky ground, with his role in the conduct of the trial now to be examined by a board of inquiry chaired by the eminent retired judge, Walter Sofronoff KC. It looks like this inquiry will be no whitewash. Sofronoff is a legal heavyweight, a former Queensland Solicitor-General with a demonstrated commitment to the law, and his inquiry will have similar powers to a Royal Commission.

Have the powers-that-be decided that Drumgold is to be the scapegoat? A distraction from all the murky skulduggery that has taken place behind the scenes throughout the whole affair.

Bruce Lehrmann has given numerous examples of what he regards as professional misconduct by Drumgold in a complaint made to the ACT Bar Council, sent after the trial was aborted – read it here. Lehrmann spells out Drumgold's failure: to stop Higgins from giving an inflammatory speech on the steps of the Supreme Court after the trial was aborted; to take steps to remove Higgins' National Press Club statements from circulation or seek removal of similar material from other media sources; and to provide sufficient warning to prospective witnesses that public comment could undermine the integrity of the trial – witness Lisa Wilkinson's Logies' speech which resulted in the trial being delayed for several months.

So many possible breaches of the thin but vital line that prevents prosecution from degenerating into persecution, as described in an excellent column on the Higgins' case by Henry Ergas in The Australian. Ergas quoted Sir John Simon's famous dictum, dating back to 1922, that, "The business of an advocate who is prosecuting a criminal is to be in the strictest sense a Minister of Justice" – which implies that, "Always the principle holds, that Crown counsel is concerned with justice first, justice second and conviction a very bad third".

It seems unlikely that Sofronoff will conclude that Drumgold got this right.

Note that, amongst other instructions, the inquiry is required to determine whether "the DPP failed to act in accordance with his duties in making his decisions to commence, to continue and to discontinue criminal proceedings against Lehrmann."

Starting with the decision to commence proceedings, there's material which has yet to emerge in relation to Drumgold's decision to go to trial, despite being advised against this by the Australian Federal Police (AFP) after concluding their investigation.

Central to this issue is the Moller report - Detective Superintendent Scott Moller was the guy in charge of the AFP investigation. After a four-month investigation of evidence presented by Higgins, with police travelling across the country to check facts in her story, examining 32,736 phone messages and 173,531 media files from Higgins' phone, Moller concluded that "throughout the investigation, Ms Higgins has been evasive, uncooperative and manipulative."

The report cites:

• Her repeated refusal to hand over her phone. When she finally did, she had deleted key evidence: "I'm clearing out my phone ahead of police," she acknowledged.
• Her claim to have sought medical attention and the morning-after pill after the incident. The police travelled to Perth and Brisbane and found she'd misled them about the medical assistance. She later admitted she'd lied about this.
• Her earlier text exchange about the need for an impressive political sex scandal: "Exactly! A sex scandal the party can be proud of. Another Barnaby but without the baby ha ha."
• Her history of anxiety and depression: AFP officers wrote that they believed Higgins "is at risk of self-harm should this matter progress to prosecution."

The AFP concluded that "there were serious concerns in relation to the strength and reliability of her evidence but also more importantly her mental health and how any future prosecution may affect her wellbeing."