Bruce Lehrmann case corruption probe hurt ‘administration of justice’: Walter Sofronoff
Former judge Walter Sofronoff has begun his fight to overturn the findings of a corruption probe into his investigation of the criminal prosecution of Bruce Lehrmann.
Former judge Walter Sofronoff KC has argued that a government watchdog misunderstood the bounds of its own authority, as well as the definitions of corruption and integrity, as he fights corruption findings of his investigation into the criminal prosecution of Bruce Lehrmann.
Mr Sofronoff on Monday began his Federal Court bid for a judicial review of the ACT Integrity Commission’s Operation Juno report, a document alleging “serious corrupt conduct” by Mr Sofronoff when he probed former ACT director of public prosecutions Shane Drumgold’s handling of Mr Lehrmann’s criminal trial for the alleged rape of Brittany Higgins.
Adam Pomerenke KC, acting for Mr Sofronoff, said in his opening address that the report was a product of overreach and a “serious offence against the administration of justice”.
“The commission must not include in an investigation report a finding that a person has engaged in corrupt conduct unless (it) is serious … or systemic,” Mr Pomerenke said.
“This imposes a critical threshold or gateway which must be satisfied before any finding of corrupt conduct can be included in a report. A central element of Mr Sofronoff’s case is that the finding of serious corrupt conduct is affected by jurisdictional error, and therefore cannot stand.
“The (commission) was not authorised … to include in its report any finding of corrupt conduct at all.”
Points of contention
Mr Pomerenke put forward three points in arguing Mr Sofronoff’s investigation had not reached the threshold to be declared corrupt.
Firstly, he said, the commission had conceded it was wrong to suggest Mr Sofronoff had potentially engaged in contempt.
“It’s our submission that this admitted error can’t be disentangled from that conclusion,” he said. “The report says what it says, and it must rise or fall on the language that it uses.
“There is … a realistic possibility that the conclusion could have been different if the respondent had not wrongly found that Mr Sofronoff could have committed a serious offence of contempt.”
Secondly, Mr Pomerenke said, a cumulative series of errors about what constitutes corruption watered down the review’s findings.
“Each individual error that we’re able to (prove) … is bound up in the rolled-up conclusions of serious corrupt conduct, and cannot be disentangled,” he argued.
Thirdly, Mr Pomerenke said, the commission misapprehended the definition of “integrity” it is bound to under ACT law. It had wrongly suggested integrity covered matters unrelated to the administration of law and government, he argued.
“The respondent found that integrity … means soundness or efficacy as distinct from probity of government or public administration … that’s not correct,” Mr Pomerenke said.
“It seriously dilutes and distorts the very notion of corruption … It can include findings in its reports which stigmatise conduct as corrupt, even though it is disconnected from probity in government or public administration.
“The (Integrity Commission Act) on its proper construction doesn’t permit this basic misuse of language.”
‘Fellow traveller’
The Integrity Commission probe was launched after acting ACT Supreme Court judge Stephen Kaye last year found Mr Sofronoff’s behaviour during the inquiry gave rise to a “reasonable apprehension of bias”.
However, he upheld the majority of Mr Sofronoff’s findings against Mr Drumgold.
Mr Pomerenke said on Monday it was wrong for the Operation Juno report to suggest Mr Sofronoff had become a “fellow traveller” with The Australian’s journalist, Janet Albrechtsen, due to their repeated correspondence. He argued the label was a “meaningless slogan” that went unexplained and extended beyond Acting Justice Kaye’s findings.
“There was no suggestion that Mr Sofronoff got any personal pecuniary benefit … none of this looks remotely like the ordinary conception of corruption,” Mr Pomerenke said. “Acting Justice Kaye made no suggestion at all of actual bias … It’s quite another thing altogether for the respondent to use the expression ‘fellow traveller’ in this context.
“It upgrades Acting Justice Kaye’s finding from a reasonable apprehension of bias in the mind of a fair-minded lay observer to a proposition directed to Mr Sofronoff’s actual state of mind containing a clear implication of actual bias.
“The concept of the ‘fellow traveller’ is … simply unrecognisable. It is a meaningless slogan.
“When asked rhetorically, what is it supposed to mean? Is it that Mr Sofronoff shared an actual opinion or a belief? If so, what is the opinion or belief that he actually shared? None is identified, and how could that opinion or belief rationally lead to Mr Sofronoff sacrificing the public interest in pursuit of the unidentified opinion or belief that he held?
“Even if Mr Sofronoff was wrong in his view, the fact remains that he genuinely and honestly held it. This is not a corrupt, dishonest or malicious motive. At worst, it could be characterised as an erroneous attempt to ensure accuracy and transparency in public discourse.”
‘Jurisdictional error’ application
The commission began investigating Mr Sofronoff, a former president of the Queensland Court of Appeal and former solicitor-general, in May 2024, and tabled its 130-page report to the ACT Legislative Assembly in March.
The commission found Mr Sofronoff’s disclosure to journalists of confidential documents during the inquiry damaged its integrity and could possibly constitute a criminal offence, saying he was “significantly compromised”.
The commission found the disclosure of the report to journalists and sharing witness statements, report drafts and notices of adverse findings to Albrechtsen could constitute a criminal offence under the Inquiries Act.
Mr Sofronoff filed his Federal Court application in March, arguing the commission’s findings were “seriously illogical, irrational and/or unreasonable” on multiple counts, and its report was riddled with jurisdictional error.
Mr Sofronoff enjoyed a partial victory this month when judge Wendy Abraham overturned an argument by the commission that its report should be protected by parliamentary privilege and therefore immune to judicial review.
Solicitor Alison Hammond appeared on behalf of ACT Legislative Assembly Speaker Mark Parton in May as a “friend of the court” to provide legal advice on the handling of parliamentary privilege, and backed lawyers for the commission who argued their findings should be unimpeachable once handed up to the ACT Speaker.
Scott Robertson SC, acting for the commission, said continuing the matter in the Federal Court would “amount to calling into question or impeaching proceedings in parliament”.
Mr Pomerenke disputed this. He argued the report was not the product of parliamentary business despite being tabled in the Legislative Assembly and therefore should not be privileged.
Mr Robertson is yet to give his opening address, and the judicial review will continue on Tuesday.
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