Judge retires to determine Shane Drumgold decision in case with Walter Sofronoff

A court has heard Walter Sofronoff’s alleged ‘preferential treatment’ of a journalist must have influenced his adverse findings against Shane Drumgold.

Walter Sofronoff (inset) with Shane Drumgold.

Walter Sofronoff’s alleged “preferential treatment” of The Australian’s columnist Janet Albrechtsen over other journalists, and the frequency of his “private and secretive” communications with her, must have influenced his judgment during an inquiry into the handling of Bruce Lehrmann’s rape case, a court has heard.

Acting Justice Stephen Kaye has now retired to determine his judgment of the matter brought by Shane Drumgold and the inquiry, chaired by Mr Sofronoff, which ended his career.

Mr Drumgold launched legal action against the ACT government and Mr Sofronoff’s inquiry last year, challenging findings in the inquiry’s final report that he engaged in serious malpractice and grossly ­unethical conduct during Mr Lehrmann’s trial for the alleged rape of Ms Higgins.

Mr Sofronoff’s report found Mr Drumgold betrayed a junior lawyer who trusted him, acted with “Pilate-like detachment” during the trial and treated criminal litigation as “a poker game”.

It also vindicated police officers involved in investigating Ms Higgins’ claims as having “performed their duties in absolute good faith”.

Mr Drumgold is seeking a declaration that the report is invalid.

Throughout the three-day hearing Mr Drumgold’s lawyer, Dan O’Gorman SC, has argued Ms Albrechtsen wrote regular “adverse” and “negative” commentary about Mr Drumgold, and “poisoned” Mr Sofronoff’s mind against the former ACT DPP through her communications with him.

Mr O’Gorman has said text messages, emails and phone calls shared by Mr Sofronoff and Ms Albrechtsen – as well as a lunch in Brisbane – indicate Mr Sofronoff was “infected” by Ms Albrechtsen’s bias, and the frequency of the was “so extraordinary in the circumstances” that he could not find comparable cases.

Mr O’Gorman also argued that Ms Albrechtsen would privately message Mr Sofronoff asking for information, and then be encouraged by Mr Sofronoff to put the request in a formal email to “give the impression that it was the first time she’d made such a request”.

“These exchanges highlight the private and secretive nature of some of these text messages,” he said.

Earlier in the hearings, which have run over three days, counsel for the ACT government Kate Eastmann told the court many of Ms Albrechtsen’s stories, cited by Mr O’Gorman, were not reflecting her personal opinion but rather the opinions of those she was writing about.

Janet Albrechtsen.

One of the articles, written by Ms Albrechtsen and journalist Stephen Rice on December 3, 2022, was about senior police officers believing there was insufficient evidence to prosecute Mr Lehrmann.

Another, written on December 6, 2022, included the comments of a leading Canberra criminal lawyer who called for Mr Drumgold’s immediate resignation.

However on Thursday, Mr O’Gorman said it was up to Ms Albrechtsen to determine who would be the subject of her articles, and therefore whose opinions she showcased.

“Ms Albrechtsen is the person who chooses whose views she will reflect in her opinion pieces. She is the one that chooses that,” he said. “You will find the views of many people who expressed views … adverse of Mr Drumgold sprinkled throughout Ms Albrechtsen’s … Certainly, there are a number of views of other people that are reflected, but it’s Ms Albrechtsen who chooses to write up those opinions.”

On Wednesday the court heard Ms Eastmann argue there was “no proper basis” for a finding that Ms Albrechtsen could be characterised as an “advocate” who actively swayed the opinions of Mr Sofronoff.

“The critical plank in this is whether the contentions about Ms Albrechtsen, her state of mind or her bias, can be established by the information,” she said. “That shouldn’t be part of your inquiry. Your Honour is not asking whether she was biased, but is the available information sufficient for Your Honour, to start that first step in the steps. This is where we say, a fair look and consideration of the available material will not satisfy this element. And, if this element fails, the whole of the claim would then fail.”

Counsel for the board of inquiry, Brendan Lim, told the court on Wednesday that Mr Sofronoff would engage with any journalist who approached him, and Ms Albrechtsen was just “the most persistent”.

Acting Justice Kaye has now retired to determine whether an impartial bystander would reasonably apprehend that Mr Sofronoff exhibited bias while conducting the inquiry into the handling of Mr Lehrmann’s rape case.

He said his decision would not be made “overnight” but indicated he would hand down a judgment promptly.