Sofronoff inquiry: Everyone loses when faith in justice is at risk

Shane Drumgold at the public hearings of the Australian Capital Territory’s Board of Inquiry into the Criminal Justice System in at the ACT Civil and Administrative Tribunal Canberra.

On day three of the public board of inquiry, Shane Drumgold was asked by Erin Longbottom KC if, by the time he wrote his explosive letter to the ACT”s Chief Police Officer Neil Gaughan in November last year, he had lost objectivity in his role as Director of Public Prosecutions.

Recall that in that letter, Drumgold made serious allegations about the AFP, about witnesses in the trial of Bruce Lehrmann, and he asked the AFP chief for support for a public ­inquiry.

Drumgold’s answer to the question is relevant. He said “the letter raised my concerns [about the police.]” But his answer is not determinative for the inquiry into the handling of the case against Lehrmann. Ultimately the answer to the question about Drumgold’s objectivity will be key to the report delivered later this year by inquiry chairman Walter Sofronoff KC.

After three days, questions from counsel assisting Erin Longbottom KC concerning Drumgold’s behaviour go to the central issue of whether, at some point, he lost objectivity, and whether that loss of objectivity meant that, on some occasion or occasions, the DPP failed to act in accordance with duties or acted in breach of his duties.

If it happened at all, when did it happen? Was it during early meetings with police, or during pre-trial proceedings, or during the trial, after the trial was aborted, or when he made his decision in December not to retry ­Lehrmann?

ACT Director of Public Prosecutions Shane Drumgold.

Indeed, one of the most important issues on day three concerned the DPP’s controversial public statement when announcing last December that there would not be a retrial.

That statement came during a time of heightened tension, and inflamed passions, following the mistrial due to juror misconduct, with a public breakdown in trust between the DPP and the AFP.

In his public statement, the DPP said he was confident that there was a reasonable prospect of a conviction had he proceeded with a new trial. He said he would not proceed to a new trial due to concerns for Brittany Higgins’s mental health.

Then Drumgold added extra comments. He spoke about the personal attacks on Higgins and how she has faced them with bravery and dignity. He said he hoped the attacks on her would stop.

On Wednesday, counsel assisting asked Drumgold why he made these statements. The exchange that followed goes to the central issue in this inquiry.

Longbottom: “What I’m particularly interested in your view on is, when, as was the case here, are you determined to discontinue a prosecution, that leaves the accused in a situation the complaint hasn’t been decided by the constitutional arbiter of facts. But they are entitled under our criminal justice system to the presumption of innocence.”

Drumgold: “That’s correct.”

When Longbottom asked Drumgold to refresh his memory about the extra comments he made that day, he said they were “burned in my memory”.

When asked why they were burned in his memory, Drumgold responded: “Because I probably shouldn’t have done it.”

When pressed to explain why he made those comments, Drumgold said: “I foolishly thought that they [the media] might give her a break … I was really just trying to lighten the load.”

Longbottom: “Did you turn your mind to the impact of that statement on Mr Lerhmann, who is entitled to the presumption of innocence?”

Drumgold: “I’ve got sympathy for everybody involved in this case. Cases like this have no winners and no losers. They only have losers and losers. Before me, however, was a complainant in a very vulnerable position. And I had quite solid evidence of that very vulnerable position.”

Longbottom: “Accepting that was a heavy weight on you when you’re making the decision about issuing this statement, did you turn your mind to the impact that statement might have on Mr Lerhmann, who was entitled to the presumption of innocence.”

Drumgold: “Possibly not as much as I should have.”

Throughout these first three days, the DPP has made numerous statements about his profound, and very genuine, concerns for the mental health of the complainant. That is entirely understandable. But there was another person involved in this.

Lehrmann was accused of a crime that could have sent him to jail. His life, let alone his mental health, should be of equal concern to a DPP, not just when he made that statement in December, but throughout this saga.

Every citizen’s right the presumption of innocence is core to our justice system, and that core principle necessarily requires us to be committed, in equal measure, to all those other principles that operate to ensure a fair trial, principles such as the proper disclosure of information, honesty in the courtroom, the fair treatment of witnesses and so on.

Drumgold is right that there are no winners in a case such as this. But the more significant loss, even apart from the shocking damage done to two young people, would be to our faith in the criminal justice system if a DPP does not exercise his powers properly.

The role of the DPP is a weighty and serious one. He ­exercises extraordinary powers, and he has the authority of the state behind him, when dealing with a citizen who is being ­accused of a serious crime.

The flip side of his power and authority is that he must – at all times – exercise those powers in line with his duties.

Not sometimes, or even ­mostly. At all times.