Shane Drumgold’s reputation remains in tatters

Shane Drumgold’s biggest problem was never Walter Sofronoff, nor even the report written by Sofronoff into events surrounding the prosecution of Bruce Lehrmann, writes Janet Albrechtsen.

Shane Drumgold has won a Pyrrhic victory because he has failed to restore his reputation.

In Monday’s judgment, a ­Victorian Supreme Court judge sitting in the ACT Supreme Court looked at the forensically gathered evidence in the Sofronoff ­report, and at eight of Walter ­Sofronoff KC’s findings against the former chief prosecutor, and concluded that seven of the eight damning findings against him should stand.

The aim of Drumgold’s legal action against the ACT Board of Inquiry and Sofronoff was to ­restore his reputation. Drumgold sought a declaration that the ­Sofronoff report, or those parts about Drumgold, were invalid and of no effect.

Drumgold didn’t get that. The Sofronoff report remains standing. Seven of eight damning findings by Sofronoff against Drumgold remain standing.

The judge declared that only one of Sofronoff’s findings ­challenged by Drumgold – that the then DPP had engaged in grossly unethical conduct in his cross-examination of senator Linda Reynolds – was legally unreasonable.

Although the finding by Justice Stephen Kaye of apprehended bias against Sofronoff is of great interest to some because it involves delving into the private communications between the former judge and myself, Drumgold’s legal challenge in the ACT Supreme Court amounts to yet another own goal. Drumgold got an order for costs, but he didn’t get his reputation back.

To take one example: Kaye found there was a sufficient and reasonable basis for Sofronoff to find that the then DPP “constructed a false narrative to support a claim of legal professional privilege”. It followed, said Kaye, that Sofronoff’s finding that Drumgold misled the court “could not be impugned on the basis of legal unreasonableness”.

Drumgold’s biggest problem was never Sofronoff, nor even the report written by Sofronoff into events surrounding the prosecution of Bruce Lehrmann.

Drumgold’s biggest problems were each of the shocking admissions that he made to the public inquiry last May – well before the report was written.

It’s hard to think of another example where a public official has been undone so spectacularly by his own words. Drumgold called for this public inquiry. He said there was political interference in the investigation of the rape allegation made by Brittany Higgins against Lehrmann.

Drumgold’s evidence over four days was riveting for a reason. Day after day he made gobsmacking admissions about his conduct during the Lehrmann saga. Drumgold retracted the shocking claim about political interference. Drumgold admitted during the inquiry that representations he made to the Chief Justice of the ACT Supreme Court about two critical matters were not accurate.

Drumgold admitted his involvement in instructing the most junior solicitor in his office to draft an affidavit that was inaccurate, to keep police material from Lehrmann’s lawyers. Drumgold admitted he presented a file note to the Chief Justice as “contemporaneous” knowing that the critical part of that note (regarding his advice to Lisa Wilkinson about her Logies speech) was not contemporaneous.

There was more, straight from Drumgold’s own mouth. He admitted in the witness box he claimed legal professional privilege over a police document that he had not read. The result was that Drumgold persisted for months in keeping internal police documents from the defence that they were entitled to see. Drumgold admitted that he didn’t think that the so-called Moller report – the existence of which The Australian revealed in December 2022 – should fall into the hands of the defence. He admitted that his concern was that disclosing these documents to the defence would be “crushing” to the complainant, Higgins.

Drumgold admitted he had read Higgins’ protected counselling notes. When was asked if he realised that, by reading this protected material, he was in breach of the Evidence Act, he 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.

Time and again, when the ACT’s chief prosecutor was asked about his conduct, a common theme emerged from his answers: 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. His admissions during four days in the witness box brought his career to a screaming halt. No government, not even the ACT Labor-Greens government, could put Drumgold back in the role of chief prosecutor given the evidence he gave to the board of inquiry.

Given that Drumgold’s admissions and seven of the eight findings by Sofronoff against Drumgold are not going away, what should happen next?

The wider, deeper fallout from Drumgold’s admissions is not over. Was Drumgold a rogue operator or did his conduct reflect a far deeper cultural problem within the Office of the DPP in the ACT? We don’t know the answer.

Lehrmann’s legal team is considering defamation claims against the former DPP, and his employer, the ACT government. With malfeasance in public office also a live legal issue for the Lehrmann camp, the ACT government could be looking at a claim into the millions because of Drumgold’s misconduct in office.

It’s high time those bodies duty-bound to ensure the proper administration of justice step up. Neither the ACT Bar Association nor the ACT Supreme Court can hide from Drumgold’s evidence and admissions. Yet, neither the barristers’ body nor Chief Justice Lucy McCallum has taken any steps to admonish Drumgold for making false statements to a court. If continued, what message would this send to barristers and prosecutors?

And what should citizens of the ACT make of any continuation of public inaction in the face of Drumgold’s admissions? But for this public inquiry, and the hard work by Sofronoff, Erin Longbottom and the legal team behind them gathering evidence, questioning witnesses and extracting admissions, Drumgold would, in all likelihood, still be chief prosecutor.

A chief prosecutor wields enormous powers of the state against citizens. Ensuring the DPP behaves, at all times, diligently, properly and honestly, is critical to the proper exercise of prosecutorial powers, to a fair trial, to the liberty of citizens, and to our trust in the administration of justice. The DPP’s own admissions show that at times during the Higgins saga he failed to exercise his extraordinary powers in line with his duties.

The Sofronoff inquiry didn’t just lift the lid on misbehaviour in the Higgins saga. It provided the critical impetus for an overdue debate about the powers, duties and responsibilities of prosecutors across the country.

Each day we are learning more about prosecutorial overreach not just in the ACT but in other jurisdictions. If not for the work by many journalists at this newspaper, the Australian public would have had little idea about deeply troubling issues concerning the criminal justice system. There is more to do on that front.