Steven Whybrow SC claims prosecutor's press conference suggested Bruce Lehrmann 'was really guilty'

Steven Whybrow SC took the stand as part of an inquiry into the case against Mr Lehrmann on Monday, when he also revealed he believed 10 jurors were inclined to acquit.

Mr Whybrow acted for Mr Lehrmann when the latter stood trial last year over the alleged rape of former colleague Brittany Higgins at Parliament House.

After juror misconduct caused a mistrial, Director of Public Prosecutions Shane Drumgold SC discontinued the charge levelled at Mr Lehrmann.

In doing so, the territory's top prosecutor gave a press conference and announced he had made the decision because of fears about the toll a retrial would take on Ms Higgins' mental health.

Mr Drumgold stressed that, at the time of his announcement in December 2022, he still believed there were reasonable prospects a jury would convict Mr Lehrmann.

He also told reporters Ms Higgins had faced "a level of attack" he had not seen in more than 20 years as a prosecutor.

"She has done so with bravery, grace and dignity, and it is my hope that this will now stop and Ms Higgins will be allowed to heal," Mr Drumgold said at the time.

On Monday, Mr Whybrow told the inquiry Mr Drumgold "did not need to say that".

He said the relevant comments were not appropriate in circumstances where Mr Lehrmann, who has always maintained his innocence, no longer had the chance to clear his name.

"[The remarks] conveyed that he was really guilty," Mr Whybrow told the inquiry.

Mr Whybrow added that Mr Drumgold could also have said something about the impact of the case on Mr Lehrmann, who had been "convicted in the media before the trial started", but that had not happened.

"The DPP is not the solicitor for the complainant," Mr Whybrow said,

"He's supposed to be the objective minister for justice."

It also emerged on Monday that Mr Whybrow and Mr Drumgold were poles apart in terms of their opinion on how the trial might have ended had the jury not been discharged.

Mr Whybrow said he and Mr Lehrmann's other lawyers believed all but two of the 12 jurors had been in favour of an acquittal.

"It's a pointless exercise," he acknowledged in relation to attempts to read the jury. "It's just guessing."

Mr Drumgold gave evidence last week that he thought 11 jurors were inclined to convict Mr Lehrmann.

The independent inquiry, which is now in its second week, is considering whether Mr Drumgold, police and ACT Victims of Crime Commissioner Heidi Yates acted appropriately during Mr Lehrmann's case.

Asked about his dealings with police, Mr Whybrow said he was "often at loggerheads" with them.

But in this case, he said he had no reason to complain about investigators.

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In relation to Ms Yates, Mr Whybrow expressed a view that it was problematic for the Victims of Crime Commissioner to be pictured walking into court alongside Ms Higgins during Mr Lehrmann's trial.

As part of a written statement to the inquiry, he said this had "a real capacity to undermine the presumption of innocence by blurring the clear distinction between a complainant and someone who was already to be considered a victim of crime".

In oral evidence on Monday, he acknowledged that Ms Yates walking into court alongside a rape complainant would ordinarily cause no problems because the alleged victim could not be identified.

However, Mr Whybrow said this was an unusual case in that it was high-profile and Ms Higgins had waived her right to anonymity.

His evidence continues.