Shane Drumgold claims ‘bias’ in Walter Sofronoff inquiry

The former ACT chief prosecutor will attempt to prove Walter Sofronoff engaged in an ‘unreasonable’ relationship with Janet Albrechtsen while he was conducting an inquiry into Shane Drumgold’s conduct.

Former ACT chief prosecutor Shane Drumgold.

Former ACT chief prosecutor Shane Drumgold will attempt to prove his allegation that Walter Sofronoff KC engaged in an “unreasonable” relationship with columnist Janet Albrechtsen and The Australian newspaper while he was conducting an inquiry into Mr Drumgold’s conduct in prosecuting Bruce Lehrmann’s rape trial.

However, Justice Stephen Kaye at a hearing on Wednesday said he would be “loathe” to allow the cross-examination of Mr Sofronoff when the matter is heard in mid-February, telling Mr Drumgold’s lawyer the matter is not “a fishing expedition”.

Mr Drumgold launched legal action against the Sofronoff inquiry and the ACT government last year, challenging findings in the report that he engaged in serious malpractice and grossly ­unethical conduct in Mr Lehrmann’s trial, which led to his termination as the DPP.

After Mr Sofronoff’s report was leaked to the media – including to The Australian – Mr Drumgold said he had been denied procedural fairness.

Mr Drumgold alleges Mr ­Sofronoff failed to comply with s.17 of the ACT Inquiries Act, which provides that board members must not provide inquiry documents to others or communicate inquiry information ­except under provisions provided by the act.

As part of these proceedings, he is seeking a declaration that the report and decisions are invalid.

Mr Sofronoff denies the allegations against him.

The ACT Supreme Court on Wednesday heard Mr Drumgold’s lawyer Dan O’Gorman SC wished to submit evidence of text messages, phone calls and emails between Mr Sofronoff and Ms Albrechtsen, which he says speak to the “unreasonableness” of their relationship while the inquiry was being conducted.

“We say that the apprehended bias arises in this way – that in the months leading up to and during the inquiry, Ms Albrechtsen was writing numerous articles which were critical of Mr Drumgold,” Mr O’Gorman told the court.

He continued: “A comparison is made of communications Mr Sofronoff had with Ms Albrechtsen in particular and with other journalists. For example, we point out that Mr Sofronoff made 65 telephone calls between Feb 9 and July 31, and we outline how 55 were with The Australian and 10 with all other journalists.”

Walter Sofronoff. Picture: NCA NewsWire/Tertius Pickard

“There was a total of 9 hours and 57 minutes (of phone calls) – 7 hours and 33 minutes with The Australian, therefore other journalists, one hour and 34 minutes,” he said.

“During the actual public hearings, Mr Sofronoff made 10 calls to The Australian (journalists), eight to Ms Albrechtsen.”

Mr O’Gorman said this evidence was key to proving Mr Sofronoff had an “apprehended bias” throughout the inquiry, and in proving he acted inappropriately when giving documents to members of the media.

“(If Mr Sofronoff says) what he was doing was carrying out a function of that of a member (of the inquiry) … (we say) the education of journalists is not a function of a member,” he said.

Counsel for the ACT government – the third defendant in the matter – Kate Eastman SC told the court she had concerns about the communications being used for “hearsay” purposes.

She also raised concerns that by Mr Drumgold questioning Mr Sofronoff’s relationship with Ms Albrechtsen, he “would incite Your Honour to any fact finding, which would shift Your Honour’s task from the judicial review to fact finding.”

Justice Kaye affirmed Ms Eastman’s view, saying: “This is not an inquiry into the inquiry, this is strictly a judicial review on very defined administrative law grounds.”

As such, Mr O’Gorman said: “We will not be asking Your Honour to make any finding as to whether or not the relationship (between Mr Sofronoff and Ms Albrechtesen) was inappropriate.”

Mr O’Gorman also said the courts were not yet able to determine the relevance of the correspondence between Mr Sofronoff and Ms Albrechtsen because Mr Sofronoff’s submissions had not yet been received.

“We apprehend Mr Sofronoff will say it was appropriate to have these communications … Mr Sofronoff might raise that he could do anything he wanted within reason when conducting this inquiry,” Mr O’Gorman said.

“If such argument is raised, then we say the existence of these communications, when they occurred and what they were, would be relevant to any such argument along those lines.”

Counsel for the Board of Inquiry Brendan Lim said Mr O’Gorman had received Mr Sofronoff’s evidence in December, and “he knows full well that the impugned disclosures were disclosures were made within the function of (the ACT Inquiries Act).”

Mr O’Gorman on Wednesday also revealed he would seek to cross-examine Mr Sofronoff when the matter is heard in February.

However Justice Kaye seemed extremely hesitant to permit the cross-examination.

“I’d be very loathe to give leave to cross examination unless it’s relevant,” he said. “It’s not a fishing expedition, this is not an inquiry.”

Parties have been given a timetable by Justice Kaye to file further affidavits and amended submissions before the matter is heard.

The matter will be heard on February 13, and is expected to last for three days.