ACT DPP Shane Drumgold ‘at risk of charges’ if he misled court

If ACT chief prosecutor Shane Drumgold knowingly made false statements to the Supreme Court he may face an investigation for attempting to pervert the course of justice.

ACT Director of Public Prosecutions Shane Drumgold. Picture: Sean Davey

If ACT chief prosecutor Shane Drumgold is found to have knowingly made false statements to the Supreme Court to prevent defence lawyers obtaining police documents, he may face an investi­gation for attempting to pervert the course of justice.

A number of senior lawyers have told The Australian that if Mr Drumgold is found by the Sofronoff inquiry to have deliberately misled ACT Chief Justice Lucy McCallum during the course of Bruce Lehrmann’s rape trial last year, it could lead to criminal ­charges against him.

During the inquiry conducted by Walter Sofronoff KC, Mr Drumgold admitted two occasions on which he misled Chief Justice McCallum but claimed he had done so unintentionally.

The ACT government is considering Mr Sofronoff’s report, which it received on Monday, but has refused to release the findings until the end of the month.

It is believed some potential findings against Mr Drumgold, who has been on leave since May and is not due to return until Aug­ust 30, would be grounds for his dismissal as Director of Public Prosecutions and for removal from the roll of barristers.

They could also lead to his ­ potential prosecution.

Melbourne silk Gavin Silbert KC told The Australian: “In a situation where a director of public prosecutions lies wilfully (and) misstates the truth to a judge, quite clearly that could constitute an ­attempt to pervert the course of justice.”

“If the elements of it were made out, I don’t see that there’s any doubt that it would,” said Mr Silbert, who was chief crown prosecutor for 10 years until 2018 and acted as director of public prosecutions on many occasions.

Mr Silbert, who has practised law for more than 40 years and is a member of the Victorian Bar Council, said: “I’ve done plenty of crime cases over the last 30 years to be experienced enough to have a view on this. In a situation where he arranged for a junior [legal] officer in his department to swear a false affidavit, again, it would clearly be an attempt to pervert the course of justice.

“If the elements are made out they would constitute offences.”

Justice Walter Sofronoff. Picture: Jack Tran

Mr Drumgold tried to stop the defence obtaining a document known as the Moller report, which detailed police concerns over the reliability of Brittany Higgins’s ­allegations of rape against Mr Lehrmann.

Mr Drumgold ordered a junior DPP lawyer to swear an affidavit saying the document had been inadvertently listed as not subject to privilege. That was not true, yet it was presented to Chief Justice McCallum. It was unintentional, Mr Drumgold told the inquiry.

He also presented to Chief Justice McCallum a note of a conference he had held with TV presenter Lisa Wilkinson, as if it had been written contemporaneously by the same junior lawyer present at the meeting. It had not.

It was effectively written by Mr Drumgold days later, after Wilkinson gave her speech.

At the inquiry, Mr Sofronoff questioned Mr Drumgold’s concession that his submissions to the Chief Justice “could” have had the effect of misleading her.

“How could it not have had that effect, having regard to the appearance of the document, and the absence of anything that would suggest that part of it was made five days later?” he asked.

A finding by Mr Sofronoff that Mr Drumgold deliberately misled Chief Justice McCallum would be grounds for his dismissal as Director of Public Prosecutions and for his removal from the roll of ­barristers.

Former crown prosecutor Gavin Silbert KC.

The case has drawn comparisons with that of Marcus Einfeld, the former Federal Court judge convicted of perverting the course of justice after falsely claiming that someone else had been driving a car for which he had received a $77 speeding ticket.

Mr Einfeld was expelled from the legal profession, stripped of being a QC and had to serve two years in prison

“If Marcus Einfeld went to jail for a dodgy stat dec over a speeding ticket, this is many, many, many times worse, particularly by someone who has an obligation of honesty towards the court, forgetting that he’s even the DPP,” Mr Silbert said.

ACT Chief Minister Andrew Barr has drawn fire over the decision to delay public release of the Sofronoff report, with former federal Coalition defence minister Linda Reynolds condemning the “inexplicable suppression” of Mr Sofronoff’s findings.

Mr Barr said the government would be considering the report “through a proper cabinet process” that would take three to four weeks, with the Legislative Assembly scheduled to be updated at the end of August.