Walter Sofronoff fights against corruption findings during inquiry into Bruce Lehrmann’s prosecution

A former judge has been accused of engaging in “serious corrupt conduct” while heading an inquiry into Bruce Lehrmann’s prosecution.

Lawyers have rejected suggestions a corrupt motive could have driven a former judge to prematurely send out copies of a report into the prosecution of Bruce Lehrmann to journalists, arguing “at worst” it was an “erroneous attempt” to ensure accuracy.

Former Queensland judge Walter Sofronoff KC led the 2023 board of inquiry into Mr Lehrmann’s prosecution over the alleged rape of Brittany Higgins.

A subsequent investigation into Mr Sofronoff’s conduct during that inquiry, in particular his decision to send a copy of the board’s report to two journalists – ABC’s Elizabeth Byrne and The Australian’s Janet Albrechtsen – prior to its official release by the ACT government, was launched by the ACT Integrity Commission.

The commission in March found Mr Sofronoff had engaged in “serious corrupt conduct”; however, he is seeking to have the commission’s Operation Juno report overturned by the Federal Court.

Barrister Adam Pomerenke SC argued there was “overwhelming evidence” Mr Sofronoff genuinely believed he was acting in the good of the public to ensure accurate media reporting by sending out the report to the journalists – an essential part of his role investigating a matter of public interest.

Walter Sofronoff KC led an inquiry into the prosecution of Bruce Lehrmann. Picture: NewsWire/Tertius Pickard

Therefore, his conduct couldn’t amount to having a corrupt, dishonest, or malicious motive, regardless of whether reasonable people disagreed with Mr Sofronoff’s views.

“In my respectful submission those views of Mr Soffronoff are not rationally capable of amounting to a corrupt dishonest or malicious motive,” Mr Pomerenke told the court.

“A person can be wrong without being negligent, much less corrupt, dishonest or malicious.”

He said even if Mr Sofronoff was “wrong”, he genuinely and honestly held his view.

“At worst, it could be characterised as an erroneous attempt to ensure accuracy and transparency in public discourse, and an attempt at accuracy and transparency in public discourse cannot rationally, in my respectful submission, be described as corrupt,” Mr Pomerenke said.

“Even if one vehemently disagrees with what Mr Soffronoff did, that statute does not authorise a misuse of language by describing it as corrupt.”

This fell under Mr Sofronoff’s sixth ground of appeal, which claims the commission’s finding that his conduct was a “breach of public trust” is affected by jurisdictional error.

Further, Mr Pomerenke argued an error by the commission in finding Mr Sofronoff had engaged in contempt was a “serious offence against the administration of justice” and cannot be “disentangled” from the conclusion of serious corrupt conduct.

He also claimed the Juno report couldn’t be “saved by reconstruction”.

“Our submission is given this entanglement, the conclusion of serious corrupt conduct is affected by jurisdictional error because its material …(there’s a) realistic possibility that the conclusion could have been different if the respondent had not wrongly found that Mr Sofronoff could have committed a serious offence of contempt,” Mr Pomerenke said.

“And as I say if this is the right … serious corrupt conduct cannot stand.”

Scott Robertson SC, acting for the ACT Integrity Commission, argued the contempt error did not undermine the report’s ultimate finding.

Bruce Lehrmann’s criminal trial was aborted due to juror misconduct. Picture: NewsWire / John Gass

The Federal Court found that Mr Lehrmann raped Brittany Higgins on the civil standard of the balance of probabilities. Picture: NewsWire / Gary Ramage

Turning to the other grounds of appeal, Mr Pomerenke claimed if any of the first 11 grounds were established, they couldn’t be “disentangled” from the 12th ground relating to the finding of corrupt conduct itself, as each error was “bound up in the rolled up conclusion of serious corrupt conduct”.

“Your Honour can’t have regard to one error in isolation,” Mr Pomerenke said.

“Each additional error we establish beyond the concession in ground two fortifies that conclusion that … there was jurisdictional error, entitling Mr Sofronoff to relief.”

He also argued there was a “basic misuse of language” and a “distortion” of the concept of corruption by the commission in interpreting “integrity” as meaning soundness or efficacy as distinct from probity of government or public administration.

“In our respectful submission that’s not correct: it seriously dilutes and distorts the very notion of corruption, which has probity at its heart,” Mr Pomeranke said.

“On the respondent’s approach, it can include findings in its reports which stigmatise conduct as corrupt even though it is disconnected from probity in government or public administration.”

Mr Robertson dismissed suggestions the case was an “entanglement situation” of which the finding of one error could bring down the entire report, criticising Mr Pomerekne’s use of that language.

“We don’t accept the proposition that all my friend needs to win is to find some error along the way,” Mr Robertson told the court.

“It’s not enough for my friends to simply say, ‘Well, for example, there is an undefended error in relation to ground 2.”

He claimed Mr Sofronoff’s team didn’t demonstrate an error which undermined the report’s ultimate findings, and therefore the arguments did not “get him home in the issue of jurisdictional error”.

He also rejected arguments the former judge acted within the bounds of his role as the head of the inquiry when handing his final report to journalists before its public release, as he was no longer on the board at the time.

“Mr Sofronoff ceased to be board of inquiry … once he delivered his report to the chief minister,” Mr Robertson said.

“He therefore no longer had any functions under that act.”

Mr Sofronoff therefore committed a “plain breach” of his nondisclosures that “couldn’t possibly be justified” by his role under the act, Mr Robertson claimed.

Walter Sofronoff did not attend NSW’s Federal Court for the first day of the hearing on Monday. Pictures: Jack Tran

Documents filed by the retired judge’s legal team claim that Mr Sofronoff was given the ability to do “whatever (he) considers necessary or convenient for the fair and prompt conduct of the inquiry” as head of the inquiry, and he considered it necessary or convenient to engage with journalists “for the fair and prompt conduct of the inquiry”.

The documents also claim Mr Sofronoff’s actions were “incapable of amounting to corrupt conduct” and the findings were “seriously illogical, irrational and/or unreasonable”.

The Federal Court has found that Mr Lehrmann raped Ms Higgins on the civil standard of the balance of probabilities.

A criminal trial was aborted due to juror misconduct and a charge against him was dropped.

Mr Lehrmann has always denied the allegation and is appealing the Federal Court’s finding.

Originally published as Walter Sofronoff fights against corruption findings during inquiry into Bruce Lehrmann’s prosecution