How often can a Director of Public Prosecutions fall short of his duties?

ACT Director of Public Prosecutions Shane Drumgold SC at the Sofronoff inquiry.

Two days into the Sofronoff board of inquiry and there is a common pattern to questioning and a common theme to answers.

The pattern of questioning is as follows: counsel assisting the inquiry, Erin Longbottom KC, puts to Shane Drumgold questions to establish what the law is – whether it is about the ACT prosecution policy or rules that operate under the Evidence Act, or ACT procedural rules, or otherwise.

The ACT Public Prosecutor agrees to what the policy, the laws or the rules say.

Next, Longbottom asks Drumgold what he did in various circumstances of his carriage of the rape trial. Drumgold then describes what he says he did.

Then, with forensic thoroughness, Longbottom looks at what he actually did, using emails, file notes, affidavits and other documents rather than rely on what he says he did. In other words, did he – in practice, not in his mind or according to his statement – comply with his duties under law?

The concerns keep growing that he may not have done so.

When serious issues about his behaviour were put to him on Tuesday, common themes emerged from his answers. These included that he “didn’t turn my mind to it”, “I had not perused it in that degree of detail”, “I was not looking at it through that prism”, “I can’t recall it jumping into my mind”, “That’s an error on my behalf”, “I didn’t pay sufficient attention”, “I had too cursory a read”, “I clearly overlooked it”, and so on. These are his words.

Tuesday’s hearing kicked off with Longbottom making more inquiries about how the DPP exercised his duty to disclose material to the defence. In an email exchange with a junior solicitor in his office in June 2022, the DPP gave advice that a set of documents called the Moller report was the subject of legal professional privilege – making them non-disclos­able to the lawyers for Bruce Lehrmann.

Within minutes of the hearing commencing, Drumgold admitted to the inquiry that he had not read one of the documents – a review conducted by Commander Andrew Smith and other police officers in August 2021. Despite receiving an email that listed and attached the documents, he expressed the opinion that privilege did apply even though he had not looked at the Smith report.

Inquiry head Walter Sofronoff said he found it hard to accept that “a barrister giving advice about whether particular documents carry a particular legal status would not look at each document”.

Drumgold confirmed he had not. “I didn’t pay sufficient attention,” he said. “That’s an error on my behalf,” he told the inquiry.

The effect of Drumgold’s erroneous judgment was that he persisted, for months, in keeping internal police documents from the defence. Indeed, he opposed a disclosure application brought in September 2022 by defence lawyer Steven Whybrow SC.

Sofronoff explained to Drumgold that while his receipt, as DPP, of the Moller report may well be the subject of a privilege claim, that does not mean each separate document, written by police and addressed to other police officers, was non-disclosable.

Drumgold said: “I didn’t think (the Moller report) should fall into the hands of the defence.”

His concern was that disclosing these documents to the defence would be “crushing” to the complainant, Brittany Higgins.

Sofronoff pointed out that even information that may be harmful may need to be disclosed to the ­defence if, as in this case, it contained information gathered by the police that might put the ­defence on a train of inquiry to find evidence and material that might not ­otherwise be obvious to them in forming their defence.

In other words, while concerns for a complainant are understandable, the defendant’s rights and interests also matter, and public interest in a scrupulously fair trial should override concerns for any one individual.

There was a lot of explaining on day two of this inquiry. Longbottom reminded Drumgold that a prosecutor’s duty of disclosure is owed to the court to ensure a fair trial. The reason is simple and logical: the legitimacy of our criminal justice system depends on the trust we, the community, have in that system. Only a system that guarantees a fair trial, that genuinely searches for the truth, will gain, and retain our trust. Maintaining that trust is essential.

And fair disclosure of information by those in power – police and prosecutors – is critical.

The other issue that confronted Drumgold on Tuesday was his instruction to a junior solicitor to swear an affidavit that Drumgold would rely on to oppose the defence’s disclosure application to receive the Moller Report.

Drumgold initially told Longbottom that though he, as Director, was ultimately responsible for the document, “I think you might be overstating my input into the preparation of the document.”

Then Longbottom produced an email dated 12 September 2022 where Drumgold emailed the young solicitor with precise wording to be included in the affidavit. The affidavit sworn by the young solicitor that same day reflected this direct instruction from his boss.

Counsel assisting put to Drumgold that this affidavit drafted on his instruction was in breach of Rule 6711 of the ACT Procedure Rules. The Inquiry heard that the upshot of this failure was to potentially mislead the court that the AFP had told the solicitor they had claimed privilege over the Moller Report, when in fact the source of that piece of information was none other than the DPP.

Drumgold said it was “unintentional.”

“We do aim to have no errors at all ever. Sometimes we may fall short,” he said.

Drumgold also conceded that he was inferring the document was privileged, that he had not asked the author why the document was created, and his inference was, therefore, wrong. It was an inference that Drumgold made even though the Moller Report consisted of a series of internal documents essentially addressed to one set of coppers from another about the investigation.

Another issue that the DPP admitted to getting wrong concerned Higgins’ private counselling notes. Even though she consented to them being handed over to the police, the Evidence Act sets up a framework to protect the confidentiality of these kinds of communications.

They are treated as protected material, even if a complainant consents to them being handed over. They must not be disclosed, or accessed — by police, by defence lawyers or by the prosecution. It is this system that allows people to access counselling services in full confidence that they can speak privately and freely.

These were accidentally sent by police to Lehrmann’s first lawyer, John Korn, on a USB. He realised the material was protected and returned the USB stick; a data investigation subsequently determined he had not accessed the notes.

Drumgold was horrified about the wrongful disclosure to Korn and informed Higgins. Yet the only person who looked at these protected counselling notes was Drumgold. He didn’t tell Higgins he had accessed these notes.

When asked on Tuesday if he realised that his reading the protected counselling notes was in breach of the Evidence Act, Drumgold said: “I wouldn’t even have turned my mind to it.” He said he was acting “on the run” and in hindsight agreed he was “probably in breach” of the law.

The recurring question, even at this early stage, is how often can a prosecutor fall short of his duties before he is judged to have failed in his role as a minister of justice?

There is no doubt this was a high-profile, high-pressure investigation and trial. It occurred in the glare of the media, given Higgins’s choice to speak first to the media before proceeding with a formal complaint. It was coloured by activists who saw Higgins as the face of the #metoo movement, forgetting this was an allegation only.

There was a vulnerable complainant at the centre of it. Government ministers and their staff were being impugned.

All sorts of cases come to a prosecutor. As a prosecutor, exercising all the powers of the state against a citizen, he or she must be equipped, both professionally and temperamentally, to carry out their role regardless of the kind of case it is.

There was also a young man, the defendant, at the centre of this, who was entitled to a fair trial.

Sofronoff will have to determine whether Drumgold, who, by his own admission, has said he did not turn his mind to a range of matters that he should have considered, lost objectivity, meaning he failed to exercise his extraordinary powers in line with his duties. In short, did a form of zealousness that is dangerous to justice set in at some point during this fiasco?