Walter Sofronoff challenges ACT watchdog’s corruption report

Former judge Walter Sofronoff’s counsel has defended him against an accusation of ‘noble cause corruption’ by counsel for the ACT Integrity Commission over alleged ‘misuse of information’ during his Bruce Lehrmann inquiry.

The ACT Integrity Commission has presented its final arguments backing accusations of corruption against former judge Walter Sofronoff KC, above, declaring his contact with journalists unethical during an investigation into the criminal prosecution of Bruce Lehrmann. His counsel says he had been well within his rights. Picture: Tara Croser

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Former judge Walter Sofronoff KC went down a path of “noble cause corruption” by contacting journalists during his investigation into the criminal prosecution of Bruce Lehrmann, lawyers for the ACT Integrity Commission have argued.

But counsel for Mr Sofronoff has told the Federal Court he was well within his rights to conduct the inquiry as he saw fit, with any disclosures to journalists a part of his duties in ensuring public knowledge of investigative processes.

Adam Pomerenke KC, for Mr Sofronoff, said the disclosures were “unwise” but not “dishonest” in retrospect.

The court’s hearing for a judicial review into the commission’s Operation Juno report – a document alleging “serious corrupt conduct” by Mr Sofronoff – concluded on Tuesday.

Justice Wendy Abraham will retire to consider her judgment.

The commission began investigating Mr Sofronoff after acting ACT Supreme Court judge Stephen Kaye last year found his behaviour during the inquiry gave rise to a “reasonable apprehension of bias”.

However, Justice Kaye upheld the majority of Mr ­Sofronoff’s findings against ­former ACT director of public prosecutions Shane Drumgold, whose handling of Mr Lehrmann’s criminal trial for the alleged rape of Brittany Higgins came under Mr Sofronoff’s scrutiny.

The commission was highly critical of Mr Sofronoff’s extensive contact with The Australian’s journalist, Janet Albrechtsen, and his decision to provide her and ABC’s Elizabeth Byrne with a copy of his inquiry report prior to its government publication.

Scott Robertson SC, for the commission, said on Tuesday that Mr Sofronoff, a former Queensland solicitor-general and judge, had knowingly disclosed evidence that “proved to be apt to destroy” Mr Drumgold’s career without his knowledge or response.

Mr Sofronoff had abandoned his civic duties to wilfully carry out an act of “noble cause corruption”, the court heard.

“The nature and style of his communications with Ms Albrechtsen, which involved intentional disclosure of confidential matters contrary to non-publication orders, was inconsistent with the task with which he was entrusted. It wasn’t accidental; it was deliberate,” Mr Robertson said.

“Mr Sofronoff preferred the interest of two journalists – one journalist in particular – over the exercise of his functions, including, most importantly, the interests of Mr Drumgold and the interests of the (ACT) Chief Minister (Andrew Barr).

“It’s not enough just to think that … your purposes are higher purposes than the purpose of your statutory function – what the commission describes as ‘noble cause corruption’.”

In Mr Robertson’s telling, Mr Sofronoff had decided: “I don’t have power to do what I want to do, or I’m reckless as to whether or not I’ve got power to do what I want to do, but there are higher, more important duties.”

Mr Pomerenke said the commission had effectively argued the “unwisdom of what was done” by Mr Sofronoff, but “there’s a difference between unwisdom and dishonesty”.

He said that while a non-publication order covered the contents of Mr Sofronoff’s inquiry prior to its publication by the ACT government, the disclosure of material to journalists was different from its publication.

“There is no prohibition of this order or anywhere else on him, using that document and disclosing it to people as he sees fit, in order to conduct the work of the inquiry,” Mr Pomerenke said.

“The whole point of the inquiry is for Mr Sofronoff to investigate and conduct the inquiry as he sees fit.

“There is no evidence that Mr Sofronoff knew that Mr Drumgold or anyone else had an interest, a legal interest, in the nondisclosure of this material.”

Justice Abraham challenged Mr Pomerenke’s distinction between publishing and disclosing, arguing participants in an inquiry would not expect either from the member of an inquiry board.

“Any person who’s providing a submission … they would understand or have the expectation that … the material was not to be published,” Justice Abraham said.

“They would understand that it wouldn’t be distributed because it’s confidential.

“There were other procedures in place for dealing with journalists. The person providing a statement would not expect, on it being provided, that it would be provided to a journalist without them knowing about it.”

Mr Pomerenke on Monday said the Operation Juno report was a product of overreach and a “serious offence against the administration of justice”. The commission misunderstood the bounds of its own authority, he said, batting away claims that Mr Sofronoff allegedly leaking inquiry findings was an “unjustified” breach of confidentiality.

Mr Robertson in turn said Mr Sofronoff’s lawyers had not addressed the core issues of alleged corruption in their argument. Mr Pomerenke argued a litany of errors and misapprehensions about legal definitions for integrity and corruption had whittled away at the report’s credibility.

“The commission must not include in an investigation report a finding that a person has engaged in corrupt conduct unless (it) is serious … or systemic,” Mr Pomerenke said.

“This imposes a critical threshold or gateway which must be satisfied before any finding of corrupt conduct can be included in a report. A central element of Mr Sofronoff’s case is that the finding of serious corrupt conduct is affected by jurisdictional error, and therefore cannot stand.

“Each individual error that we’re able to (prove) … is bound up in the rolled-up conclusions of serious corrupt conduct, and cannot be disentangled.”

Former Queensland solicitor-general and judge Walter Sofronoff. Picture: Jack Tran

Mr Robertson argued that Mr Sofronoff had pushed an excessively narrow and restrictive definition of “serious corrupt conduct” during the judicial review hearing.

“We don’t accept the proposition that all (Mr Sofronoff) needs to win is to find some error along the way in the making of the ultimate findings,” he said,

“It’s not enough for (him) to say there’s an undefended error in relation to a step along the way … that doesn’t get him home on the question of jurisdictional error unless he’s able to link particular demonstrated errors in such a way as to undermine the ultimate findings that he challenges.”

The commission began investigating Mr Sofronoff, also a former president of the Queensland Queensland Court of Appeal, in May 2024, and tabled its 130-page report to the ACT Legislative Assembly in March.

The commission found the disclosure of the report to journalists and sharing witness statements, report drafts and ­notices of adverse findings to ­Albrechtsen could constitute a criminal offence under the ­Inquiries Act, saying he was “significantly compromised”.