Inquiry told of police ‘confusion’ about when to charge

Maeve Bannister |

A member of the investigating team that examined Brittany Higgins’ rape allegation has admitted there is confusion among police about the legal test required to charge a suspect.

Emma Frizzell, a senior constable with the Australian Federal Police sexual assault and child abuse team (SACAT), appeared before an independent inquiry examining how the ACT justice system handled the high-profile case.

She was involved in investigating Ms Higgins’ allegation that Bruce Lehrmann, a former colleague, raped her in 2019, inside the Parliament House office of then coalition minister Linda Reynolds after a night out.

Mr Lehrmann denies the allegation.

In her statement to the inquiry, Sen Const Frizzell said in order to charge a suspect she must have a reasonable belief the evidence supported the prospect of a conviction. 

But having watched inquiry hearings for the past few weeks, she realised she was wrong. 

“I would concede that I don’t have it right (and) what I’ve written in my statement is not right,” she told the inquiry on Thursday.

Asked if there was still confusion among ACT police officers about what the legal test to charge a suspect is, Sen Const Frizzell said: “Yes, I would say that there is.”

Director of Public Prosecutions Shane Drumgold previously told the inquiry he was concerned about what officers believed were the standard-of-proof tests required to charge someone.

In the ACT, the legal test for police to charge a suspect is if they have a reasonable suspicion an offence has been committed. 

Sen Const Frizzell, when asked about the relationship between police and Ms Higgins, denied investigators resented the former Liberal Party staffer for communicating with them through the ACT Victims of Crime Commissioner Heidi Yates. 

But it made it difficult to build a relationship with Ms Higgins, she said.

“It allowed no communication, no contact. You can’t build rapport or a relationship with someone you can’t speak to.”

The inquiry previously heard evidence Ms Yates assisted police, including by organising for Ms Higgins to provide additional evidence, which was beneficial to the investigation. 

Sen Const Frizzell said Ms Yates’ involvement meant she personally could not build the type of relationship she normally would with a complainant.

But under cross-examination by Ms Yates’ lawyer Kirsten Edwards, the senior officer conceded she now had a better understanding of the commissioner’s role. 

She agreed that without Ms Yates, the police may not have been able to obtain evidence and conduct interviews with Ms Higgins. 

Sen Const Frizzell explained having the title “commissioner” – a high rank within the police – impacted her perception of Ms Yates acting as a support person. 

At the time, the investigator did not know Ms Higgins had requested Ms Yates’ to be her support person, which she was entitled to do.

“Since my engagements with Ms Yates in relation to this matter, I am able to engage with her and not feel as I described before,” Sen Const Frizzell said.

The inquiry heard further evidence about the breakdown in the relationship between ACT Policing and the Director of Public Prosecutions office.

In her statement, Acting Assistant Commissioner Joanne Cameron described “the professional trust and rapport between agencies appeared to me to have diminished”.

She said this occurred after a report by the ACT government in collaboration with the DPP and other agencies which found police could be undercharging in sexual assault matters.

Although Ms Cameron was not part of the team investigating Ms Higgins allegations, she got the sense there was “broadly tension” between police and the DPP.

But she said any suggestions that police were colluding with the defence team were incorrect.

The inquiry continues.

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