Trial misconduct finding against Drumgold stands

Former ACT chief prosecutor Shane Drumgold. Picture: NCA NewsWire / Martin Ollman

In the maelstrom of legal action, hearings, mediations and findings still unfolding in the wake of Brittany Higgins’s claim she was raped five years ago in the Parliament House office of then Liberal defence industry minister Linda Reynolds, a great many matters are contested. But among facts beyond dispute is this: then ACT director of public prosecutions Shane Drumgold committed gross misconduct while conducting the rape trial of Bruce Lehrmann, disgracefully breaching his responsibility to ensure the fair administration of justice and in the process betraying the public and his own staff. These were matters ventilated at a special inquiry by esteemed jurist Walter Sofronoff KC that had been instituted by the ACT government at the behest of Mr Drumgold.

On Monday the former DPP won a small technical victory of sorts when ACT Supreme Court Acting Justice Stephen Kaye found that Mr Sofronoff’s conduct during his inquiry into Mr Drumgold’s prosecution of Mr Lehrmann gave rise to “a reasonable apprehension of bias”. Communications between Mr Sofronoff and The Australian’s Janet Albrechtsen, who covered the proceedings, were “such that a fair-minded lay observer might reasonably” believe Mr Sofronoff “might have been influenced by the views held and publicly expressed by Ms Albrechtsen” concerning Mr Drumgold’s conduct, Justice Kaye said. The legal bar for apprehended bias is very low. Lawyers call it the “double might” test.

The notion that any actual bias existed here is absurd. One of Australia’s most formidable legal minds, Mr Sofronoff has been a practising barrister for 39 years, was solicitor-general of Queensland for nine years and president of the Queensland Court of Appeal for five years, has a distinguished record of heading public inquiries and would not be influenced by a journalist doing her job, asking probing questions.

The most consequential finding by Justice Kaye was to uphold almost all of the findings in Mr Sofronoff’s report about Mr Drumgold’s serious misconduct. Those findings included that Mr Drumgold, who was entrusted to take carriage of justice in the ACT, betrayed the trust of his junior staff, directing a junior lawyer to make a misleading affidavit. He also lied to ACT Chief Justice Lucy McCallum and failed in his duty to advise TV presenter Lisa Wilkinson against giving a Logies speech that would consequently delay Mr Lehrmann’s trial. Justice Kaye also upheld Mr Sofronoff’s findings that Mr Drumgold “deliberately advanced a false claim of legal professional privilege” and “tried to use dishonest means to prevent a person he was prosecuting from lawfully obtaining material”. The latter was particularly egregious. Mr Sofronoff found Mr Drumgold was guilty of a “serious breach of duty” by failing to comply with the “golden rule” of disclosure that is at the heart of a fair trial. In the case of the Lehrmann trial, the documents that should have been disclosed to the defence related to the police investigation of Ms Higgins’s claim.

As reported on Monday, the ACT government has apologised to Senator Reynolds and paid her $90,000 in damages and legal costs over accusations by Mr Drumgold during Mr Lehrmann’s case that the senator had engaged in “disturbing conduct”, including political interference in the police investigation. In a statement, the ACT’s Justice and Community Safety Directorate director-general said the ACT government “unreservedly retracts those allegations … (and) sincerely apologises for the damage, distress and embarrassment it has caused to Senator Reynolds”.

Mr Drumgold does not deserve his job back or compensation.

Ms Higgins, who was given a mysterious $2.4m taxpayer handout from Labor, with no reasons given, is back from her “new life” in France with partner David Sharaz for mediation with Senator Reynolds in Perth to try to avert a possible six-week defamation trial in July. No fewer than a dozen lawyers will attend the mediation. The legal picnic continues.