‘Serious corrupt conduct’: Walter Sofronoff to challenge corruption findings

The former judge accused of “serious corrupt conduct” over his leadership of the Board of Inquiry into the prosecution of Bruce Lehrmann has made a stunning announcment.

The former Queensland judge accused of “serious corrupt conduct” over his leadership of the Board of Inquiry into the prosecution of Bruce Lehrmann will challenge the findings in the Federal Court.

Lawyers acting for Walter Sofronoff KC confirmed the legal challenge on Wednesday night, after the corruption watchdog released its findings over his contact with journalists during his 2023 inquiry into the prosecution of Bruce Lehrmann.

“Mr Sofronoff has today filed an application in the Federal Court of Australia challenging the lawfulness of the Integrity Commission’s report,’’ Mr Glen Cranny, Director of Gilshenan & Luton Legal Practice said in a statement.

Today, the ACT Integrity Commission found that Mr Sofronoff, who led the Board of Inquiry into the prosecution of Bruce Lehrmann, had engaged in “serious corrupt conduct” when he provided a copy of his final report to two journalists ahead of its release.

The corruption watchdog established Operation Juno to investigate former Queensland judge Walter Sofronoff over his contact with journalists during his 2023 inquiry into the prosecution of Bruce Lehrmann.

At issue was his decision to provide the final report to two journalists - The Australian’s Janet Albrechtsen and the ABC’s Elizabeth Byrne - before it was officially released by the ACT government. The commission made no findings against the journalists.

In a report provided to the Speaker of the ACT Legislative Assembly, the investigation has found that Mr Sofronoff’s conduct fell within several elements of the definition of “corrupt conduct” in the IC Act.

What Operation Juno found

“His disclosure of confidential material to journalists contrary to the obligations of confidentiality prescribed by the Inquiries Act could have amounted to offences against ss 17 and 36 of the Inquiries Act,’’ the findings state.

Walter Sofronoff KC.

“His disclosure of the Report itself to journalists before it had been publicly released contravened the requirement of the Inquiries Act to provide the Report exclusively to the Chief Minister to determine the timing and extent of publication, subject to the role of the Legislative Assembly.

“The disclosures were dishonestly concealed from persons involved in the Inquiry, in particular Mr Drumgold and the Chief Minister, which prevented them taking protective legal action.

“This impugned conduct constituted the exercise of Mr Sofronoff’s official functions in a way that was not impartial, significantly compromised the integrity of the Inquiry constituting a breach of public trust and, in respect of his communications with Ms (Janet) Albrechtsen, gave rise to an apprehension of bias that affected his findings about Mr Drumgold.

“That conduct could have justified Mr Sofronoff’s removal from the Inquiry.”

What Walter Sofronoff said in response

The final report notes that Mr Sofronoff disputed the findings.

“Mr Sofronoff claimed that his conduct complied with the requirements of the Inquiries Act, and that he had acted in the public interest to ensure the media were adequately informed about the issues being investigated by his Inquiry and in a position to comment accurately about them,’’ the report states.

“However, the Commission concludes that he had not, in fact, acted in good faith and that his conduct, amounting to corrupt conduct within the meaning of the IC Act, undermined the integrity of the Board’s processes and the fairness and probity of its proceedings to such an extent as to have been likely to have threatened public confidence in the integrity of that aspect of public administration. It therefore constituted serious corrupt conduct.

“No other adverse comment or opinion has been made against any other person or entity named in this report.”

News.com.au has contacted Mr Sofronoff for comment in relation to the findings of Operation Juno.

Why the Sofronoff inquiry was established

The Sofronoff inquiry followed the fallout from the ACT criminal trial in 2022 in relation to the alleged rape of Brittany Higgins at Parliament House in 2019.

The trial collapsed without a verdict due to juror misconduct and the former Director of Public Prosecutions Shane Drumgold later abandoned a retrial citing Ms Higgins’ mental health.

Bruce Lehrmann. Picture: NewsWire

He then called for a public inquiry into how the case was handled in an extraordinary letter to the ACT’s chief police officer, prompting the establishment of the Sofronoff inquiry.

However, that inquiry instead made damning findings about Mr Drumgold’s own conduct, which were later found by the ACT Supreme Court to be affected by an apprehension of bias due to his contact with journalists.

Mr Lehrmann was subsequently found, on the balance of probabilities, to have raped Ms Higgins in a civil defamation case involvingagainst Network Ten and Lisa Wilkinson.

He is appealing against that ruling.

‘Private and secret’ text messages

Mr Sofronoff’s “private and secret” text messages with The Australian’s Albrechtsen gave rise to “a reasonable apprehension of bias” against the former top prosecutor Shane Drumgold, the ACT Supreme Court has previously found.

In a written judgement, Justice Stephen Kaye likened the journalist and the judge to “fellow travellers”.

“The fair-minded observer might fairly apprehend that, at that point, Mr Sofronoff regarded himself as a ‘fellow traveller’ of Ms Albrechtsen in respect of the views that she had expressed and maintained in her publications about the plaintiff,’’ Justice Kaye wrote.

“The observer might also apprehend that, as such, Mr Sofronoff regarded it as appropriate to exchange views with Ms Albrechtsen about specific issues which he was required to determine in the inquiry.

“Another instance of Ms Albrechtsen communicating with Mr Sofronoff, concerning the matters before the inquiry, occurred on 23 May, 2023. On that date, Ms Albrechtsen sent a text to Mr Sofronoff, asking whether the inquiry was looking into what Commander Chew meant when he said (as recorded in DS Moller’s diary) that there was ‘too much political interference’.

“In response, Mr Sofronoff sent a text message to Ms Albrechtsen: ‘Yes, he should have asked Moller yesterday what he understood by it. He’ll do that this morning and follow up with Chew.’

“That text exchange is relevant for two reasons. First, Ms Albrechtsen felt free to communicate with Mr Sofronoff, and express an opinion to him, about the issues that were being agitated at the inquiry. Secondly, Mr Sofronoff saw fit to express to Ms Albrechtsen his agreement with her suggestion as to a question that ought to have been asked of a witness.

“On the same date, Ms Albrechtsen sent a text message to Mr Sofronoff, stating that she was ‘catching up’ on ‘Moller and evidence’, and requesting whether she was permitted to know what had transpired during the ‘muted’ (that is, closed) sections of the inquiry. In response, Mr Sofronoff sent a text message to Ms Albrechtsen: ‘I’ll send you the transcript in the morning. Boring Tedeschi.”

Brittany Higgins and David Sharaz.

In the course of oral submissions, Justice Kaye said he was informed by counsel that Mr Sofronoff did not send the transcript of the private sessions to Ms Albrechtsen.

“The fact that he was prepared to do so would, I consider, be a minor, but nevertheless relevant, consideration for the fair-minded observer,’’ the judge said.

“There was no indication that any other member of the media was considered to be entitled to transcripts of sessions that had been held in private.

“The phrase, ‘Boring Tedeschi’, referred to Senior Counsel who represented the plaintiff in the inquiry. The fact that Mr Sofronoff felt it appropriate to express such a view to Ms Albrechtsen, about a counsel appearing before him, is, again, a minor point, but, nevertheless, one which would be relevant to the perception of a fair-minded observer.

Mr Drumgold had sought to challenge scathing findings made about his conduct during the prosecution for the alleged rape of Brittany Higgins.

The Sofronoff inquiry

The Sofronoff inquiry last year made “several serious findings of misconduct” against Mr Drumgold, including that he “at times lost objectivity and did not act with fairness and detachment” throughout the case.

Mr Drumgold ultimately resigned from the top job and mounted a legal challenge against the inquiry’s findings.

His lawyers sought to rely on Mr Sofronoff’s communications with a journalist, claiming his mind had been “poisoned” by Ms Albrechtsen’s reporting, which they claimed was adverse towards Mr Drumgold and favoured Mr Lehrmann.

“I have concluded that the conduct by the first defendant to the inquiry into the criminal justice system of the Australian Capital Territory gave rise to a reasonable apprehension of bias in the communications that took place between the first defendant and Ms Janet Albrechtsen of the Australian newspaper before and during the inquiry,’’ Justice Kaye said.

The legal test for apprehended bias is whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand.

Lunch with Janet Albrechtsen

The court previously heard that Ms Albrechtsen flew from Sydney to Brisbane to have lunch with Mr Sofronoff to discuss the inquiry.

The former judge had 65 telephone calls with journalists between February 9 and July 31 last year – 55 with The Australian and 10 with other news outlets and Mr Sofronoff later provided an embargoed copy of his report to Ms Albrechtsen before he provided it to the ACT Government.

The court previously heard that Ms Albrechtsen flew from Sydney to Brisbane to have lunch with Mr Sofronoff to discuss the inquiry.

She later published it before the ACT Government released it and the official embargo was lifted, after receiving it from another source and informing Mr Sofronoff she planned to do so.

In his judgement, Justice Kaye upheld major damning findings from the inquiry including that Mr Drumgold directed a junior lawyer to make a misleading affidavit, lied to ACT Chief Justice Lucy McCallum and failed in his duty to advise TV presenter Lisa Wilkinson against giving a Logies speech.

Walter Sofronoff and Shane Drumgold.

The judgement rejected submissions that Mr Sofronoff had not afforded Mr Drumgold natural justice when finding that Mr Drumgold had breached his duty as a prosecutor when he read Ms Higgins’ counselling notes; and upheld a finding of the inquiry that Mr Drumgold had tried to falsely blame an employee for the release of a letter under a freedom of information (FOI).

Failure to accord Shane Drumgold natural justice

However, Justice Kaye found that Mr Sofronoff had failed to afford Mr Drumgold natural justice when finding he made “false” statements to the chief police officer about the release of the letter.

The ACT Government was ordered to pay Mr Drumgold’s costs.

The fair minded observer

Justice Kaye said that the communications were “such that a fair minded lay observer might reasonably” believe that Mr Sofronoff “might have been influenced by the views held and publicly expressed by Ms Albrechtsen concerning the conduct of Mr Drumgold.

However, Justice Kaye rejected Mr Drumgold’s submission that eight of the findings against him in the report were legally unreasonable.

“I have concluded that the plaintiff has not established that seven of those findings were legally unreasonable,” he said.

Justice Kaye did however find that the criticism of Mr Drumgold’s cross examination of Senator Linda Reynolds was unreasonable.

“I have concluded that the finding by the first defendant that the plaintiff had engaged in grossly unethical conduct in his cross examination as Senator Linda Reynolds is legally unreasonable,’’ he said.

“And accordingly ground three succeeds in respect of that finding.”

Originally published as ‘Serious corrupt conduct’: Walter Sofronoff to challenge corruption findings