Walter Sofronoff displayed ‘apprehension of bias’ while probing Shane Drumgold: judge

Walter Sofronoff’s conduct gave rise to ‘a reasonable apprehension of bias’, but his findings of serious misconduct against the former ACT chief prosecutor were sound, judge rules.

Former ACT chief prosecutor Shane Drumgold SC.

Walter Sofronoff’s conduct while chairing an inquiry into the ­behaviour of former ACT chief prosecutor Shane Drumgold ­during Bruce Lehrmann’s rape prosecution gave rise to “a reasonable apprehension of bias”, a judge has found, but the majority of his damning findings of misconduct against Mr Drumgold have been upheld.

Acting Justice Stephen Kaye on Monday found the former judge may have been “influenced” by the views of The Australian’s columnist Janet Albrechtsen while conducting the inquiry that ended Mr Drumgold’s career.

However, he upheld seven of the eight findings in Mr Sofronoff’s report of serious misconduct by Mr Drumgold that the former DPP had claimed were “legally unreasonable”.

The findings Justice Kaye upheld included that Mr Drumgold betrayed the trust of his junior staff members, directed a junior lawyer to make a misleading affidavit, failed to act after reading Brittany Higgins’ counselling notes, and did not advise journalist Lisa Wilkinson against giving a Logies speech that would consequently delay the trial.

He also upheld Mr Sofronoff’s findings that Mr Drumgold “deliberately advanced a false claim of legal professional privilege”, tried to use “dishonest means” to prevent a person he was prosecuting “from lawfully obtaining ­material” and lied to ACT Chief Justice Lucy McCallum.

Justice Kaye found just one of Mr Sofronoff’s findings to be ­unsound – that Mr Drumgold ­displayed “grossly unethical” conduct in his cross-examination of Senator Linda Reynolds.

In his report, Mr Sofronoff had claimed Mr Drumgold had “no basis at all” to question Senator Reynolds on whether she was “politically invested” in the outcome of Mr Lehrmann’s criminal trial. However, Justice Kaye said “it could not be reasonably concluded” that Mr Drumgold’s line of questioning was inappropriate and therefore made out his claim of legal unreasonableness.

Mr Drumgold launched legal action in the ACT Supreme Court against the ACT government and Mr Sofronoff’s inquiry last year, challenging findings in the inquiry’s final report that he was in breach of his duties while prosecuting allegations Mr Lehrmann raped Ms Higgins on a couch in Parliament House.

Mr Sofronoff’s report found Mr Drumgold intentionally directed a junior lawyer in his office to make a misleading affidavit and, in doing so, “egregiously abused his authority and betrayed the trust of his young staff member”.

Mr Sofronoff said he was “deeply disturbed” by Mr Drumgold’s ignorance of ethical principles and accused him of a “Pilate-like detachment”, finding Mr Drumgold treated criminal litigation as “a poker game” in which the prosecutor “can hide the cards”. His report vindicated police involved in investigating Ms Higgins’s claims as having “performed their duties in absolute good faith”.

Walter Sofronoff. Picture: Jack Tran

On Monday, Justice Kaye dismissed Mr Drumgold’s claim that Mr Sofronoff “failed to give him a fair hearing” before finding he “shamefully” tried to falsely blame an employee for the release of a letter under a freedom of information application to The Guardian. However, Justice Kaye found Mr Sofronoff did not give Mr Drumgold “sufficient notice” before finding he made “false” statements to the chief police officer about the release of the letter. As such, Justice Kaye found Mr Sofronoff had not afforded Mr Drumgold natural justice.

“As a Director of Public Prosecutions, it was most important that (Mr Drumgold) be honest and truthful in his dealings with the Chief Police Officer,” the judgment reads.

“Accordingly the finding that (Mr Drumgold) had intentionally made a false statement to the Chief Police Officer, about a matter of some sensitivity, was a serious finding. It follows that if (Mr Sofronoff) were minded to make a specific finding to that effect, it was necessary that specific notice of that finding should be given to (Mr Drumgold), in order to ­afford him a fair opportunity to address it.”

The ACT government was told to pay Mr Drumgold’s costs.

Throughout a three-day hearing in early February, Mr Drumgold’s lawyer, Dan O’Gorman SC, had argued that Mr Sofronoff maintained an “unreasonable” relationship with Albrechtsen, which gave rise to an apprehension of bias.

He submitted Albrechtsen wrote regular “negative” commentary pieces about Mr Drumgold and “poisoned” Mr Sofronoff’s mind through her communications with him. Mr O’Gorman said text messages, emails and phone calls shared by Mr Sofronoff and Albrechtsen – as well as a lunch in Brisbane – indicate Mr Sofronoff was “infected” by Albrechtsen’s bias, and the frequency of the communication was “so extraordinary in the circumstances” that he could not find comparable cases. The court heard Mr Sofronoff had 65 telephone calls with journalists between February 9 and July 31 last year – 55 with The Australian and 10 with other news outlets.

Counsel for the ACT government, Kate Eastmann SC, counsel for the board of inquiry, Brendan Lim, and counsel for the police officers joined to the claim disagreed with Mr O’Gorman, telling the court allegations Albrechtsen’s reporting somehow influenced Mr Sofronoff’s findings against Mr Drumgold had “no foundation” and should not be accepted. Mr Lim said Mr Sofronoff would engage with any journalist who approached him, and Albrechtsen was just “the most persistent”.

However, Justice Kaye ultimately sided with Mr O’Gorman, and found Mr Sofronoff’s contact with Albrechtsen gave way for an apprehension of bias. “A fair-minded observer, acquainted with all the material objective facts of the case, might reasonably have apprehended that, as a consequence of his communications with Ms Albrechtsen, Mr Sofronoff might have been influ­enced,” he wrote in his judgment.