Lawyers for Bruce Lehrmann fail in bid to access privileged police material in Toowoomba rape case: court

Lawyers for former political staffer Bruce Lehrmann have suffered another legal setback after to seek privileged material in his Toowoomba rape case was knocked back. But defence lawyer Zali Burrows was successful in seeking a new order from the court to subpoena social media messages allegedly sent by a Sydney lawyer to the complainant in the rape case. Mr Lehrmann is facing two counts of rape stemming from an alleged incident in Toowoomba, west of Brisbane, back in 2021. His legal team had sought to subpoena material from the Queensland Commissioner of Police, but were withheld over claims of legal professional privilege. On Thursday Michael Bonasia, acting for the Commissioner, said the privileged material had already been filed in court, sealed in an envelope. Toowoomba District Court was told Ms Burrows had “criticisms” of the evidence. “They haven’t properly identified who the client is, and who the officer is providing legal advice,” she said. One 22-page document only contained “straightforward legal advice” which District Court Judge Craig Chowdhury said would be covered by legal professional privilege. Ms Burrows said she was still seeking a summary of evidence, given recent revelations that a hard drive containing material relevant to the case had been destroyed. “It’s paramount in determining from a defence point of view if there’s material which could be helpful to the defence, and hasn’t been disclosed yet,” she said. Mr Lehrmann was indicted last year and was not informed about the issue with the hard drive, she said. “Prior to the committal, he was never advised the material had been destroyed,” Ms Burrows continued. “We don’t even know why, in a situation, police are allowed to store confidential material like police briefs on personal hard drives, and take it home.” The court was told a second statement from the complainant had only been received this year. “It’s astounding, the state of affairs in this (case),” Ms Burrows said. Judge Chowdhury pointed out there were always issues with disclosure of evidence in similar cases, noting the summary being sought was “part and parcel” of legal advice, which was covered by legal professional privilege. He said he was satisfied the claim of privilege had been made out by the Police Commissioner and ordered the documents to be resealed. Ms Burrows then moved on to an application to file a subpoena on Marlia Saunders, from legal team Thomson Greer, who represented Network 10 in Mr Lehrmann’s unrelated defamation case. She told the court she was seeking Facebook messages allegedly sent by Ms Saunders to the complainant in Mr Lehrmann’s rape case. Judge Chowdhury questioned why it had to come before him. “I received communications from the registry that this (subpoena) had to be made before a judge,” Ms Burrows responded. Crown prosecutor Caroline Marco, appearing via phone, said it would be up to Ms Saunders to determine how she would respond to the subpoena. An application for a permanent stay of Mr Lehrmann’s proceedings will be held on September 26. During a committal hearing in June last year, the court was told the woman had been out drinking with friends and consumed cocaine before she met Mr Lehrmann at a strip club, The Vault, in Toowoomba. It will be alleged in court Mr Lehrmann gave the woman a false name of “Bryce” when the pair met before clarifying his name as “Bruce”. After leaving the club, the pair allegedly had consensual sex and consumed more cocaine. Mr Lehrmann is alleged to have had sex with the woman twice without her consent on the night in question. In July, Ms Burrows sought a permanent stay of the proceedings, arguing phone calls obtained between her client’s former lawyers and the Queensland Police were “unlawful”. She claimed it amounted to an “unfair” tactical advantage – despite acknowledging there was nothing untoward about a police officer receiving a call or phoning a legal representative, and taking notes of any conversation. The application was dismissed. Days later, during a mention at the callover at Brisbane District Court, Ms Burrows said material pertaining to the case had been lost. The court was told a personal hard drive, which contained recordings of witnesses and Mr Lehrmann, the full brief of evidence, copies of witness statements, video and digital recordings and a full download of the complainant’s phone, had “malfunctioned”. Ms Burrows said she had been told the hard drive had been destroyed before her own “independent experts could access the drive”.