Sofronoff inquiry: ACT DPP Shane Drumgold’s future ‘hangs by a thread’
ACT chief prosecutor Shane Drumgold’s future is hanging by a thread after a week in which he admitted serious professional errors and did an about-face on claims of a political conspiracy.
ACT chief prosecutor Shane Drumgold’s future is hanging by a thread after a week before the Sofronoff inquiry in which he admitted serious professional errors and did an about-face on claims of a political conspiracy by former Liberal ministers to stop a police investigation of Brittany Higgins’s rape claims.
On Friday, ACT Attorney-General Shane Rattenbury declined an invitation to express confidence in his Director of Public Prosecutions, after a fifth day of evidence in which Mr Drumgold again conceded “unintentionally” misleading the judge presiding over Bruce Lehrmann’s rape trial.
Senior criminal barristers told The Weekend Australian they believed Mr Drumgold’s position as DPP was untenable and he should already have stepped down from the role.
The major concern of the lawyers was the admission this week by the DPP that he may also have “unintentionally” misled the ACT Supreme Court over an affidavit seeking to prevent the so-called Moller Report being given to Mr Lehrmann’s defence team.
Mr Drumgold said he believed an Australian Federal Police investigative review document – the Moller Report – was subject to a claim of legal professional privilege because it was created for the dominant purpose of receiving legal advice from him but he acknowledged he had claimed the reports were privileged without having seen them and without checking with Detective Superintendent Scott Moller, who wrote them.
The lawyers said it went against the most basic principles of a prosecutor’s duties of disclosure, which requires any relevant evidence, particularly matters adverse to their case, must be revealed to the defence.
On Friday, the inquiry, chaired by Walter Sofronoff KC, heard evidence that Mr Drumgold had told ACT Chief Justice Lucy McCallum that a note of his discussion with TV presenter Lisa Wilkinson over her upcoming Logies speech was contemporaneous when it was not.
Mr Drumgold conceded at the inquiry that he misled the judge, albeit “not intentionally.”
He had told the Chief Justice the “proofing note” drafted by a junior lawyer in the DPP’s office was contemporaneous despite the references to the Logies speech being added by Mr Drumgold after the speech. The inquiry heard proofing notes were normally contemporaneous but the one given to Chief Justice McCallum had been drafted three hours prior to the hearing and significantly differed from the recollection of a junior lawyer in Mr Drumgold’s office.
On Friday, Mr Drumgold agreed with Mr Sofronoff that his submissions “could have the effect of misleading her”.
“It must have had the effect of causing Her Honour to think that the note was a contemporary note of the conference,” Mr Sofronoff said.
“How could it not have had that effect, having regard to the appearance of the document, and the absence of anything that would suggest that part of it was made five days later?”
“I was dealing with what I thought was a proofing note produced in the organic way the proofing notes generally are,” Mr Drumgold responded.
Barrister Sue Chrysanthou SC, for Wilkinson, put it to Mr Drumgold that he knew the judge’s interpretation was not accurate and did nothing to correct her. “I thought I had warned her. I thought what I said to her amounted to a warning,” he said.
Mr Sofronoff added that there was another version of the proofing note, made by Mr Drumgold’s junior counsel whose recollection of the conference was significantly different.
“In hindsight, yes, I should have, I’m conceding I should have,” Mr Drumgold said, acknowledging it led the judge “to a less than accurate position”.
Ms Chrysanthou slammed Mr Drumgold for allowing the media to “destroy” Wilkinson’s reputation, suggesting he had failed to give her the warnings he had claimed to have done about the dangers of making a speech at the Logies, and had then failed to defend her.
Mr Drumgold said he “doesn’t know how the Logies work” and it was not his role to regulate media outlets. “Frankly, I thought there would be lawyers within Channel 10 that would make sure all these things concurred,” he said. “I would not think it’s my role to regulate every media outlet.”
When Ms Chrysanthou asked Mr Drumgold if he failed in his obligations as DPP, senior barrister and senior counsel, he responded “No, I reject that”.
His about-face on claims of a political conspiracy followed his accusation earlier in the week that he was concerned whether “this was a matter of a government minister exerting pressure through the federal commissioner on ACT Policing to make a matter go away?”
On Friday, Mr Drumgold said he couldn’t remember if he had read AFP Commissioner Reece Kershaw’s statement to the inquiry, despite his allegation that it was “possible if not probable” that the commissioner may have been part of the conspiracy.
Mr Drumgold refused to accept that he had alleged a political conspiracy.
Under cross-examination by Kate Richardson SC, representing the AFP, Mr Drumgold said what he meant was he had “reached a state of mind (that) it was possible.”
“I don’t accept that’s what I meant,” he said.
When Ms Richardson asked Mr Drumgold if he withdrew any suggestion there was a possible conspiracy involving ministers, the AFP commissioner, former Liberal minister Linda Reynolds and ACT Policing, he answered: “I do.”
Mr Drumgold was admonished by Mr Sofronoff for having failed to correct the record earlier, in light of the seriousness of his claims that it was “possible, or even probable” that political pressure was brought to bear on the police to suppress the prosecution of Mr Lehrmann.
“I’m having trouble reading anything that has been put to you so far at this hearing as any kind of a withdrawal of that statement; that you no longer believe that that you’re speaking about historical event, that no longer holds good and no longer held good from Monday onwards,” Mr Sofronoff said.
“The trouble is that you had the opportunity to make good a deposition from 10 o’clock on Monday onwards, but nowhere do we see that happening until your counsel examined you yesterday,” he said.
“I agree with that,” Mr Drumgold responded.
Pursued by Ms Richardson on whether the conspiracy he had envisaged could have amounted to a conspiracy to pervert the course of justice, he replied: “I hadn’t turned my mind to that.”
Ms Richardson: “That would be, if proven, a perversion of the course of justice, correct?
Mr Drumgold: “Again, it depends on the circumstances.”
Mr Sofronoff: “How could it depend on circumstances? How could the circumstances not be an attempt to pervert the course of justice?”
Mr Drumgold: “Then I would say yes.”
Soon after, Mr Drumgold said: “It’s a grave allegation but it’s an allegation I’m not making. It’s a possibility.”
Mr Sofronoff again interjected: “Mr Drumgold, for the director of prosecutions to say I hold a suspicion that it’s possible that a minister tried to get at the commissioner to stop a prosecution is a pretty serious thing to say.”
“I held a suspicion, I held a state of mind that it was a possibility,” Mr Drumgold replied.
On Friday night a spokesman for ACT Attorney-General Shane Rattenbury said the board of inquiry was still underway and the government would allow it to complete its work.
“It would not be appropriate to comment at this time,” he said.
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