Walter Sofronoff a legal braveheart and defender of the rule of law
The public inquiry into the prosecution of Bruce Lehrmann was always going to ruffle delicate feathers of those in media and political circles who favour #MeToo activism over a fair trial, the presumption of innocence and the rule of law. But these principles are fundamental to our democracy and we should be grateful to Walter Sofronoff KC for having the courage to do his duty and lift the lid on legal misadventure of the sort that must never be condoned in this country. Repeatedly, across a range of complex and politically charged issues, Mr Sofronoff has shown himself to be a legal braveheart in a world of cowards.
A practising barrister for 39 years, solicitor-general of Queensland for nine years and president of the Queensland Court of Appeal for five years, Mr Sofronoff has a reputation for being fearless and fair. His inquiry into the deadly flood events in 2011 in Grantham, Queensland, was masterful. His probe into what went wrong in Queensland’s forensics laboratory, where DNA evidence was not properly handled, to the disadvantage of victims of crime, found a truth that had eluded a generation of public servants, police and politicians. His findings and recommendations will reverberate through Queensland justice for decades to come.
Unlike his new-found critics in the media and the Labor-Greens axis in the ACT, Mr Sofronoff has shown himself to be forensic, dispassionate and above politics. Time and again, he has shown he is fearless, thorough and learned about matters of principle that ought to be exposed to ensure that we live in a healthy democracy. As he observed in the final report of the DNA inquiry, there are almost no limits to the powers conferred upon a commissioner to get information. However, those powers exist only in legal theory unless there are people who are in a position to use them.
It is only down to Mr Sofronoff’s skill, experience and courage, and his team of lawyers, led by Erin Longbottom KC, that we know the truth of what happened in the prosecution of Mr Lehrmann: a chief prosecutor, armed with the tremendous power and resources of the state, discarded his duties to act with objectivity, made false statements to a Chief Justice, and was determined to keep evidence from the defence lawyers they could have used in order to defend a man facing jail for the serious crime of rape.
Instead of instructing lawyers to be nice to each other in her public statement on Monday, after the ACT government of Chief Minister Andrew Barr finally made public the findings about Shane Drumgold, ACT Supreme Court Chief Justice Lucy McCallum should ensure that legal consequences flow from a chief prosecutor who has been found to have deliberately misled the court on more than one occasion. Most courts have the power to refer misconduct by a barrister to the relevant legal regulatory body and most courts have the power to deal with contempt by lawyers who appeared before them.
The Sofronoff report is devastating. It exposes a man who was entrusted with state power and resources to be a minister of justice but instead chose to be a social justice crusader. As one senior silk at the inquiry told this newspaper on Tuesday: “Drumgold was there to advocate for victims at all costs. He should have left the DPP’s office and taken up the role of Victims of Crime Commissioner – that would have been the better public servant role for him.”
Mr Sofronoff left no stone unturned in this thorough public inquiry, sifting through affidavits, and proofing notes too, uncovering Mr Drumgold’s misconduct in each case. Procedural fairness was shown at every stage to every witness, especially to Mr Drumgold. The evidence that Mr Drumgold gave over four days of his public testimony left legal jaws ajar with horror at the level of misconduct and incompetence.
Mr Sofronoff has revealed that he spoke with some journalists during the inquiry and that he provided an embargoed copy of the final report to this newspaper. The Australian has not breached that embargo and will not reveal the source of the leak.
Be in no doubt why the former judge did this: from the start, his sole interest was to ensure that Australians would be fully informed about the issues at stake in this inquiry, and about the findings. We should be so lucky that more servants of the public interest take their roles so seriously.
It was in no one’s interest to spend millions of dollars on a public inquiry and expend time and energy and other resources on a process that is not fully explained to the Australian people.
This newspaper has done that. Indeed, we have led the way in reporting on the rape allegation, the politicisation of that allegation by the media, the exploitation of a rape claim by Labor politicians such as Katy Gallagher, the trial of Mr Lehrmann, the mistrial, police concerns revealed after the trial about lack of evidence, the multimillion-dollar payout to Ms Higgins in murky circumstances by the federal Labor government, and the many lives damaged and turned upside down through no fault of their own – including those of Senator Linda Reynolds and her then chief of staff, Fiona Brown. If there was misconduct by police, by Mr Drumgold, or by Victims of Crime Commissioner Heidi Yates, who became Ms Higgins’ support person, then Mr Sofronoff was determined to get to the truth of the matter and this newspaper could be counted on to report it, no matter where the cards fell. Mr Sofronoff made no adverse findings against police or Ms Yates.
Just as #MeToo activism had no place in the work of the inquiry and the final report, it has no place in our reporting of that inquiry and the final report. The same cannot be said of other media outlets who have chosen to fall for the hyperventilating bluster and political games indulged by the ACT Labor-Greens government complaining that an embargoed copy of Mr Sofronoff’s report was provided to this newspaper. This is not Russia or China. We expect that all three pillars of a functioning democracy – government, the judiciary and the media – will, at all times, be on the side of exposing misconduct by those in high office who wield state power against powerless citizens. Assisting the media to explain to Australians pivotal issues about justice ought to be at the forefront of those in government. The ACT government, and those sections of the media whose noses are out of joint, are not upholding their responsibilities in a functioning democracy.
In a healthy democracy, a government that cares about the rule of law would have sacked Mr Drumgold for failing to uphold his duties as a minister of justice. In the ACT, the Labor-Greens government sat on the report, and is now trying to shoot the messenger: Mr Sofronoff. The ACT government has deliberately sidelined the critical findings in Mr Sofronoff’s final report – that the chief prosecutor the ACT government appointed went rogue. It suggests that Mr Barr’s government is complicit in Mr Drumgold’s prosecutorial strategy, where the means justifies the end and to heck with a fair trial.
Mr Drumgold’s resignation statement revealed the depth of his distorted approach to justice. Mr Drumgold mentioned that the driving force in his career has been rising up from disadvantage, understanding social dysfunction and wanting higher conviction rates for sexual assault. Nowhere did the outgoing ACT chief prosecutor mention the presumption of innocence, a fair trial and the rule of law. We all want higher conviction rates for sexual assault – for those who are guilty of sexual assault.
This saga has been a dark and bruising one for many people, through no fault of their own. Good and decent people, behaving professionally, holding themselves to the highest standards, in the interests of upholding fundamental principles to protect each of us. Mr Sofronoff is one of those people. The ACT government made a mistake when it appointed Mr Drumgold chief prosecutor in January 2019. But it chose the right man in Mr Sofronoff to examine the workings of ACT justice who found egregious wrongdoing and incompetence by Mr Drumgold.
When they stop falling for the distractions of the ACT Chief Minister, a man who learned about politics at the feet of Labor’s Senator Gallagher, the media that misunderstand what is at stake should ask themselves this: would they want someone of Mr Drumgold’s ilk prosecuting them, or their son, or their father, or their friend?
After all, had someone of less skill and less mettle been in Mr Sofronoff’s chair during this inquiry, Mr Drumgold may still be chief prosecutor in the ACT. Had Mr Sofronoff’s findings not been brought quickly to light there is still the chance they could have been swept under the carpet by an incompetent territory government.
Mr Sofronoff deserves the nation’s gratitude for turning our minds to the next issue: the extent to which other prosecutors are sidelining fundamental principles in order to secure convictions and the extent to which the media’s preferred narrative of “believe all women” is turning ministers of justice into dangerous social crusaders who have lost sight of fundamental principles at the centre of our criminal justice system.
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