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‘Greatly concerned’: prosecutor warns of potentially ‘unlawful’ disclosures about Brittany Higgins

<span>Photograph: Mick Tsikas/AAP</span>
Photograph: Mick Tsikas/AAP

The ACT director of public prosecutions, Shane Drumgold, has expressed serious concern about the “potentially unlawful” sharing of police material about a still-hospitalised Brittany Higgins, revealing he has previously lodged a related complaint and that there are active investigations under way.

On Saturday morning, News Corp used internal police notes and briefing documents to report that investigators held doubts about Higgins’ credibility, but that the DPP pressed ahead with the prosecution of Bruce Lehrmann.

The material was published less than 24 hours after Drumgold expressed serious concern for the life of Higgins, who is hospitalised and receiving mental health treatment. He dropped charges against Lehrmann for the alleged rape of Higgins, saying a retrial would pose an “unacceptable risk” to her health.

Related: ‘Right to be scared’: Brittany Higgins and the harsh realities about justice and power

It is unclear who leaked the material about Higgins. The piece makes no mention of the fact that it was a decision of the Australian federal police to lay charges.

Lehrmann has consistently maintained his innocence to the allegation that he raped Higgins in parliament house. Lehrmann pleaded not guilty to one count of sexual intercourse without consent.

Asked to respond to the story, Drumgold expressed serious concerns about the distribution of documents that were “potentially legally protected”.

Drumgold revealed he had already made a complaint about an undisclosed matter, about which there were active “investigations” under way. He did not specify who was being investigated or which body or bodies were conducting the investigations.

“I am greatly concerned that potentially legally protected material may have again been unlawfully distributed,” he told the Guardian. “Given myself and others have already raised concerns about matters that are currently under investigation, it would not be appropriate to comment further whilst investigations are under way.”

The ABC has previously reported that an internal investigation was requested by Higgins over a decision by police to share evidence with the defence team of Bruce Lehrmann, who has consistently maintained that no sexual activity took place at all between Higgins and himself.

The Guardian understands Higgins is yet to receive a full response to the internal investigation, which was lodged in April. News Corp reported on Saturday that Drumgold had also expressed concerns about police’s handing of the material, which included her private psychological counselling notes.

The Guardian has since seen a copy of his complaint.

“This issue is quite serious, the counselling notes and other sensitive information of a rape complainant have been unlawfully given to counsel for an alleged rapist,” Drumgold said on 11 October 2021. “I would suggest it should attract greater urgency than it appears to be receiving.”

ACT policing declined to comment on Saturday morning. They were not the only ones to have held the material.

The leak and Drumgold’s strong response suggest a serious rift has emerged between police and the DPP over the handling of the case.

The material published in the Australian on Saturday claimed that Drumgold had pushed to take the case for trial, despite police having concerns about the sufficiency of the evidence. One of the investigators had also complained, alleging “political interference”.

In explaining his decision not to pursue a retrial on Friday, Drumgold said he had formed a view that there was a reasonable prospect of conviction before taking the case to trial.

He said he still maintained that view.

Drumgold also expressed serious concerns about the mental health of Higgins, saying a retrial would pose a significant risk to her life. The risks to her life were so great that he decided there was no public interest in proceeding.

“I’ve recently received compelling evidence from two independent medical experts that the ongoing trauma associated with this prosecution represents a significant and unacceptable risk to the life of the complainant,” he said.

The court lifted a suppression on Friday which allowed media to report that Higgins had suffered a mental health crisis when she was halfway through her evidence, prompting her absence.

Close friend Emma Webster said on Friday that Higgins was in hospital and receiving treatment and support. She described the past two years as “difficult and unrelenting”.

“While it’s disappointing the trial has ended this way, Brittany’s health and safety must always come first,” she said.

“Brittany is extremely grateful for all the support she has received, particularly from our mental health care workers.”

The decision means the retrial of Lehrmann, expected in February, will not proceed. It is understood Lehrmann is taking time to process the development.

A friend of Lehrmann’s told the Guardian he was considering “legal remedies” and would take advice on the matter in coming days.

• In Australia, support is available at Beyond Blue on 1300 22 4636 and Lifeline on 13 11 14. In the UK, the charity Mind is available on 0300 123 3393 and Childline on 0800 1111. In the US, Mental Health America is available on 800-273-8255