Shane Drumgold failed in his duty as ACT chief prosecutor

A few days after ACT chief prosecutor Shane Drumgold began giving evidence to the Sofronoff inquiry, The Australian editorialised that a return to his day job was already looking unlikely. He went on leave, which was extended until the end of this month. Mr Drumgold’s resignation, news of which emerged on Sunday, was his best and only course of action. ACT Attorney-General Shane Rattenbury spoke to Mr Drumgold on Thursday and “in light of the commentary in the report”, they “agreed that his position as Director of Public Prosecutions was no longer tenable”. Mr Drumgold has been provided a full copy of the board of inquiry report, Mr Rattenbury said. The ACT was too slow to release and respond to the report, which was leaked to Janet Albrechtsen and Stephen Rice and appeared in this newspaper on Thursday.

For Canberrans who believe in the rule of law, it made grim reading. Retired Queensland judge Walter Sofronoff KC found Mr Drumgold knowingly lied to the ACT Supreme Court, engaged in serious malpractice and grossly unethical conduct, “preyed on a junior lawyer’s inexperience”, betrayed that junior lawyer who trusted him, and treated criminal litigation as “a poker game in which a prosecutor can hide the cards”. Mr Sofronoff found Mr Drumgold lost objectivity during the prosecution of Bruce Lehrmann for the alleged rape of Brittany Higgins in the office of former defence minister Linda Reynolds in the early hours of March 23, 2019. Mr Lehrmann has always denied the allegation.

Mr Drumgold did not act “with fairness and detachment as was required by his role”, the inquiry found. Mr Drumgold’s behaviour may lead to criminal prosecution for perverting the course of justice. Several senior barristers and retired judges have said that in light of the inquiry findings, the ACT Labor-Greens government must scrutinise Mr Drumgold’s past prosecutions. By resigning now, Mr Drumgold has given the Barr government an opportunity to set about responding to the report, find a new chief prosecutor and, most importantly, restore public trust in the territory’s justice system. Part of doing so must involve rebuilding the shattered relationship between the Australian Federal Police and the DPP.

After initially planning to table and respond to the report at the end of the month, after cabinet had considered it, Mr Rattenbury on Sunday said the government would make a detailed response early this week. It owes the public, and those directly involved in the case, no less.

Mr Drumgold’s mishandling of the prosecution underlined the value of players in the justice system adhering to first principles in administering the law in a sober, objective manner, regardless of extraneous influences such as politics, media interest and #MeToo campaigning, in which Ms Higgins became involved. Those key legal principles include the right to a fair trial, the presumption of innocence, the duty of prosecutors to be impartial, objective and fair, and prosecutors’ duty of disclosure to the defence legal team, which is essential to a fair trial. Mr Sofronoff said in his report: “A prosecutor’s duty of disclosure is aptly described as a ‘golden rule’. The duty of disclosure serves to ensure that the trial of an accused is fair. In part, the duty reflects the imbalance of resources, as between the prosecution and an accused, to investigate a matter. A fair trial requires not only that the accused should have access to material in the prosecution’s possession that sets out the prosecution case but also material which may bear upon the defence of the charges. The failure of a prosecutor to comply with this obligation may lead to a miscarriage of justice.’’ The Higgins saga still has a long way to play out, but Mr Drumgold’s departure should help clear the air.