Lehrmann trial inquiry must restore faith in law and order
The stakes are high, but we have the right man for the job to sort out this mess.
This inquiry – the ACT’s version of a royal commission – could mark a turning point for the law and the media in this country. Here is a rare chance for a widely respected member of the legal profession to remind our most powerful institutions, and the rest of the country, that there is no substitute for the principle that underpins our justice system: that our laws apply equally to all people, and the corollary of that is that the protections at law apply equally to all.
The rule of law is often misunderstood, and therefore underappreciated. Worse, it is frequently disregarded by those who ought to know better, and sometimes by those whose duty it is to defend it. The Sofronoff inquiry will have to examine whether that happened in the Lehrmann trials – both of them – the first trial by media, followed by the courtroom trial in Canberra.
Sofronoff certainly does seem to be the man for the job.
When he was sworn in as a president of the Queensland Court of Appeal in 2017, Sofronoff explained his background. Not to warm our hearts, but to harden our resolve to defend the rule of law.
He explained how his father, a Cossack, born in Siberia, fled from Russia on horseback after the Bolsheviks razed the homes and took the lives of many Cossacks in the 1930s. His father travelled through Mongolia to Shanghai where he met a woman and married her. That woman, Sofronoff’s mother, was also a refugee who had fled Harbin in Manchuria.
His father and mother were taken in by The Philippines, a very poor country that accepted more than 6000 Russian anti-communist refugees. Sofronoff was born a few years later after the family had moved to Australia.
Sofronoff explained why he mentioned his family at the august legal event: “My father and my mother knew and understood that there was something that they would gain for themselves and for their son, my brother, by coming here. My father used to refer to this by using the Russian word for ‘order’. He would say that there is order here.
“He had experienced order under tyranny – the kind you achieve by obedience. But what he wanted as a refugee, and what he found here, was order of a different kind. Of course, by order, he really meant the rule of law.”
Sofronoff spoke of the willingness of a people to abide by laws when laws are applied and enforced equally.
“In short, we believe in fair play,” he said.
“And we believe in repelling any kind of corruption or distortion of our institutions that would pervert the conduct of the people who constitute those institutions.”
This part of Sofronoff’s background should interest us far more than his fast cars, or the skydiving or the guitars that sat in his chambers. An interesting, adventurous man is not enough to do the job. It requires bravery and determination to stand up to those people within some of the nation’s most powerful institutions who are at the centre of this debacle. If their conduct has distorted the proper working of these institutions, then it damages the rule of law. And we need to know about it.
Sofronoff, a former solicitor-general of Queensland, is not known for shying away from tough gigs. Most recently, to give but one example, he headed up the commission of inquiry into DNA testing in Queensland. His findings were damning. DNA testing in that state is being overhauled from the ground up.
But here is a less high-profile story that suggests Sofronoff may get to the bottom of what went wrong before, during and after the Lehrmann trial.
It concerned two murderers who were to be considered for parole. One of them was 14 at the time of the murder; the other was 16. The Queensland government had introduced a law specifically aimed at them to ensure they not get parole. The case reached the High Court in 2007.
As Sofronoff said of the case, the two appellants “were not, in the mind of many people, worth much trouble or expense – yet our common legal history has brought us all to believe that in every single case, and even in the case of the most undeserving people, justice must be done according to law, even if that means that many highly skilled barristers and judges have to meet to ensure that outcome.”
A bevy of lawyers, led by Sofronoff as head of this inquiry, will confront a mountain of material about whether justice was done in the prosecution of Lehrmann. And one of the most politically difficult tasks will be to explore the conduct of ACT Director of Public Prosecutions Shane Drumgold.
As The Australian has reported this week, a number of shocking complaints about the DPP’s conduct that have been lodged with the ACT Bar Council will end up in front of Sofronoff.
Did Drumgold do everything that is required of a DPP to ensure a fair trial? Did he do all he could reasonably do to ensure that the jury was not contaminated by the media circus that enveloped Lehrmann after Brittany Higgins chose to go to the media before she filed a formal complaint with the Australian Federal Police?
Did Drumgold ensure that contempt laws apply equally regardless of whether their surname is Higgins or Wilkinson? What about the laws concerning destruction of evidence and taping of conversations – does their application in the ACT depend on your surname?
Did Drumgold do all he could to ensure that the jury charged with determining the guilt or innocence of Lehrmann was presented with all relevant evidence from witnesses?
Did Drumgold fulfil his critical duty to disclose relevant information to the defendant’s lawyers? Did he do what was reasonably expected of him to ensure the presumption of innocence applied at all times, even after the trial was aborted?
The AFP’s conduct will also be front and centre. The DPP has made it known publicly that he believes the AFP got too close to Lehrmann’s defence team. The AFP’s views about Drumgold’s decision to prosecute are equally public. The AFP believed this case should never have been prosecuted; senior police were concerned about political interference.
For the sake of our confidence in the rule of law, we need a tough nut like Sofronoff to tell us what really happened here without dissembling or kowtowing to the fashions of the day.
Hanging over all this is a large political spectre: the Higgins allegations were a significant contributor to the change of government. The trial by media surrounding Lehrmann played into a sense of crisis about the Morrison government’s attitude to, and treatment of, women. It is now known that Higgins’ partner, now fiance, David Sharaz, was in contact with ALP figures and that Katy Gallagher was deputed to keep the issue going in the Senate.
What role, if any, did any federal or ACT politicians have in the now hotly contested decision by Drumgold to prosecute Lehrmann, or in his decisions about related matters including media conduct? Nor, of course, should the roles of former politicians or Coalition politicians be exempt from examination if they become relevant.
There was always a risk that allegations such as those made by Higgins would fuel a media bonfire. But add in a febrile election atmosphere where one side sought to extract as much mileage as possible from gender issues, and you have a recipe for what ultimately transpired. A witch hunt the villagers of Salem would be proud of.
So Sofronoff must first examine whether our most fundamental principles surrounding sexual assault allegations were protected. This will not be easy.
As a former judge told me recently, if a man is alleged to have kidnapped, raped and murdered a woman, we have arrived at the dangerous position where the rule of law and the presumption of innocence may apply to only two of these three heinous crimes.
Sofronoff’s second major task, though, may require even more courage. Has the administration of justice become so politicised that prosecutions now depend on political calculus, not the application of the law? And if so, how do we fix it?
Sofronoff has had a distinguished career and looks to be a first-rate choice for this inquiry. Just as well – because this is most definitely a first-rate mess.
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Last week, Walter Sofronoff KC was appointed by the ACT government to head the board of inquiry to examine the conduct of the Director of Public Prosecutions, the Australian Federal Police and the ACT Victims of Crime Commissioner before, during and after the trial of Bruce Lehrmann.