By Angus Thompson
The chair of an inquiry into the handling of Bruce Lehrmann’s trial has been likened to a “fellow traveller” of a columnist for The Australian by a judge who found he held apprehended bias against the ACT’s former top prosecutor.
Shane Drumgold, the embattled former director of public prosecutions, scored a win on Monday afternoon when ACT Supreme Court judge Stephen Kaye ruled inquiry head Walter Sofronoff could be reasonably seen to have had his findings influenced by journalist Janet Albrechtsen.
Inquiry chair Walter Sofronoff.Credit: Getty
In a lengthy written judgment, Kaye zeroed in on a particular moment throughout the Sofronoff and Albrechtsen’s extensive contact last year in which Sofronoff texted his negative view of Drumgold’s conduct relating to an aspect of the case. In a later text, Sofronoff also described Drumgold’s barrister during the probe, former NSW top prosecutor Mark Tedeschi KC, as “boring Tedeschi”.
“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 [Drumgold],” 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.”
While there are still other ongoing legal proceedings, Kaye’s decision brings to a close the examination of the aborted trial itself. Lehrmann, a former Liberal staffer, pleaded not guilty to the alleged rape of his then-colleague, Brittany Higgins, in Parliament House after a night out in March 2019. The trial was abandoned in October 2022 due to juror misconduct and Lehrmann maintains his innocence.
Scathing findings were made against Shane Drumgold in his role as ACT director of public prosecutions.Credit: Alex Ellinghausen
The ACT government launched an inquiry into the handling of the criminal case after Drumgold accused police of trying to undermine the prosecution. Sofronoff, in his report, made several findings against Drumgold, which the latter sought to void on the grounds that Sofronoff held an apprehended bias against him, denied him natural justice and made findings that were legally unreasonable.
Kaye found that Drumgold had failed to establish seven of the eight arguments pursued on the ground of legal unreasonableness, but ruled that Sofronoff’s finding that Drumgold had behaved unethically in his questioning of former Coalition senator Linda Reynolds during Lehrmann’s trial was unreasonable.
He also found the inquiry failed to afford Drumgold natural justice relating to a finding about a freedom-of-information application that prompted the release of a letter to ACT police chief Neil Gaughan, in which Drumgold was scathing of detectives, the defence and Reynolds.
Drumgold resigned in August last year after Sofronoff leaked the report to Albrechtsen and another journalist from the ABC, but before the ACT government had publicly released it.
“In his affidavit, [Drumgold] said that if he had received the final report before he tendered his resignation, he would have held off resigning, because he would have noticed ‘the differential way the report categorised my actions with the actions of others’,” Kaye wrote.
Kaye has ordered the ACT pay Drumgold’s legal costs.
“I am delighted with the court’s decision today, and I am looking forward to moving on with my life,” Drumgold said in a statement.
Kaye went through the content of dozens of Albrechtsen’s articles submitted by Drumgold’s lawyer Dan O’Gorman, SC, finding “it is clear that Ms Albrechtsen consistently expressed views that were particularly critical of the plaintiff in his decision to commence the criminal proceedings against Mr Lehrmann, and in his conduct of those proceedings.”
“Relevantly, the conclusion is irresistible that a fair-minded lay observer, having read the articles, would have readily understood that Ms Albrechtsen expressed firm and considered views that were significantly critical of the plaintiff in those respects,” Kaye said.
During three days of hearings last month Drumgold’s lawyer Dan O’Gorman, SC, alleged Albrechtsen “infected” Sofronoff with her own bias against the prosecutor through the extensive contact between the chair of the inquiry and the columnist over several months.
O’Gorman said the journalist and chair had extensive “off-the-record” contact, which included 51 phone calls, texts and messages from Sofronoff’s private email address. Albrechtsen even flew to Brisbane to have lunch with Sofronoff at a restaurant of his choosing.
“There’s no evidence to suggest that any other journalist was extended the privilege of a private luncheon with Mr Sofronoff,” O’Gorman said, adding that Albrechtsen had received favourable treatment.
However, Brendan Lim, acting for Sofronoff, denied his client gave preferential treatment to Albrechtsen during the judicial probe, instead saying she just asked more questions than other journalists.
Earlier, Reynolds received a formal apology and a $90,000 settlement from the ACT government over defamatory comments made by Drumgold in the letter to Gaughan.
“Mr Drumgold advanced nothing resembling evidence to support the serious allegations of impropriety that he levelled against the police, defence and Senator Reynolds,” Sofronoff found in his 2023 report.
In a statement, the territory’s Justice and Community Safety Directorate confirmed a settlement with Reynolds was reached last Friday, which involved $70,000 in damages and $20,000 in legal fees.
During the Lehrmann trial, Drumgold made multiple allegations about Reynolds’ conduct, including that she had tried to coach the defence team’s cross-examination of Higgins, which she denied.
Reynolds said in a statement on Monday that her reputation had been “wrongly damaged”.
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