A judge outside the Australian Capital Territory will be brought in to hear Shane Drumgold’s challenge to the findings of the Sofronoff inquiry to avoid any potential conflict.
Drumgold is currently asking the ACT supreme court to quash Sofronoff’s findings about his handling of the prosecution of Bruce Lehrmann, alleging the inquiry denied him natural justice, breached the law and “gave rise to a reasonable apprehension of bias”.
The process is complicated by the small nature of Canberra’s legal community and the fact that Drumgold, as the former director of public prosecutions, has had extensive professional interactions with the court’s sitting judges.
The potential conflict compelled the court to search outside the ACT for someone to hear the judicial review application.
But the process of finding an acting judge was itself compromised by the fact that chief justice Lucy McCallum, who typically nominates acting judges, presided over the Lehrmann trial and attorney general Shane Rattenbury, who makes the final appointment, was a defendant in Drumgold’s application for judicial review.
McCallum has instead requested that the Victorian supreme court chief justice, Anne Ferguson, nominate an available judge from her jurisdiction, to ensure transparency and integrity of the process. Ferguson has nominated court of appeal judge Stephen Kaye.
The process of appointing Kaye is still ongoing but McCallum has accepted the nomination.
The court also heard that, on the current expected timetable, Drumgold’s challenge would not be heard until next year.
His lawyers asked the court on Thursday to make a series of preliminary orders to begin the early stages of the case, but Sofronoff’s legal team asked for more time, saying they were still determining their position on some issues and working with lawyers for the ACT government to understand whether he was afforded indemnity.
The case will return on Thursday.
The inquiry examined the prosecution of Lehrmann, who denied raping Brittany Higgins on a couch in Parliament House and pleaded not guilty at trial. His first trial was aborted due to juror misconduct and a planned re-trial was abandoned due to fears about Higgins’ mental health.
The inquiry was critical of Drumgold, saying he lost objectivity during the trial, tried to keep a document outlining police opinion’s about Higgins’ credibility away from Lehrmann’s lawyers, and misled a court about notes made regarding a meeting with Lisa Wilkinson, prior to her Logies speech which delayed the Lehrmann trial.
Drumgold has said the findings were legally unreasonable, that individuals working on the inquiry failed to comply with rules about the disclosure of information, and that the inquiry failed to “accord the plaintiff natural justice in that the member for the first defendant [the board of inquiry] gave rise to a reasonable apprehension of bias”.
He was previously seeking to restrain the ACT’s attorney general, Shane Rattenbury, from taking any action against him on the basis of the report, but this week dropped that part of his legal challenge.
