Outgoing ACT director of public prosecutions Shane Drumgold has alleged the Sofronoff inquiry failed to give him a fair hearing, denied him natural justice, breached the law and “gave rise to a reasonable apprehension of bias”.
On Tuesday, the ACT government revealed that Drumgold was mounting an application for judicial review of the damning findings made about his conduct by Walter Sofronoff KC during his inquiry into the prosecution of Bruce Lehrmann.
Court documents filed with the ACT supreme court show Drumgold’s challenge will request the Sofronoff report be quashed entirely or declared invalid and of no effect. Alternatively, Drumgold seeks to have the findings made against him specifically quashed or declared invalid.
He is also seeking to restrain the ACT’s attorney general, Shane Rattenbury, from taking any action against him on the basis of the report.
Drumgold argues that individuals working on the inquiry failed to comply with rules prohibiting the disclosure of information. He also alleges the inquiry failed to “accord the plaintiff natural justice in that the member for the first defendant gave rise to a reasonable apprehension of bias”.
He alleges key parts of the inquiry’s findings were “legally unreasonable”, including findings that he breached his duty as a prosecutor in his handling of Brittany Higgins’ counselling notes.
Drumgold said it was also unreasonable for the inquiry to find he had a duty to warn Lisa Wilkinson not to give her Logies speech, or that he “knowingly lied” about the preparation of a file note concerning a meeting with the broadcaster.
Drumgold also contests the inquiry’s finding that his interrogation of Linda Reynolds was “grossly unethical”.
Court documents show Drumgold will also say it was unreasonable for the inquiry to find he made “improper” comments when publicly announcing a retrial of Lehrmann would not proceed.
The inquiry heard that during those public comments, Drumgold said he still believed there was a reasonable prospect of conviction and that Higgins had behaved with bravery, grace and dignity, and had been subjected to unprecedented attack.
Higgins alleged she was raped by fellow Liberal staffer Lehrmann in Reynolds’ ministerial office in 2019. Lehrmann has vehemently denied the allegations and has maintained his innocence. He pleaded not guilty at trial, which was aborted due to jury misconduct. Prosecutors subsequently dropped the charges against Lehrmann.
Drumgold says it was unreasonable for the inquiry to find that “certain documents generated by the ACT police” should have been disclosed to the defence, or that he “deliberately advanced a false claim of legal professional privilege” to keep those documents from Lehrmann’s defence team.
Those findings related to Drumgold’s handling of a document outlining a police officer’s opinion about Higgins’ credibility, which relied on evidence that Drumgold said would never be admissible in court.
Drumgold alleges the inquiry made other findings “in excess of jurisdiction in that they were outside the [inquiry’s] terms of reference”. He says that includes making findings that he had made false statements in explaining his role in releasing a damning letter to Guardian Australia via freedom of information law.
Earlier this month, the Sofronoff inquiry made “several serious findings of misconduct” against Drumgold, saying he “at times … lost objectivity and did not act with fairness and detachment” throughout Lehrmann’s prosecution for the alleged rape of Higgins.
Drumgold’s case has been listed in the ACT supreme court for 14 September.
Earlier on Tuesday, Rattenbury told the ACT parliament he had received a letter from the New South Wales director of public prosecutions, Sally Dowling SC, about a “significant factual inaccuracy” in the Sofronoff inquiry report.
Dowling’s letter, received on 14 August, expressed concern about a paragraph in the report that referenced a separate case in NSW.
The Sofronoff report said a NSW supreme court judge had ordered a stay of proceedings in that case because of concerns about the complainant’s credibility. The report suggested it was a case where prosecutors should have recognised the weakness in the case.
But Dowling said the case was discontinued by her office and that an application for a permanent stay was never heard.
Dowling said the Sofronoff report appeared to mix up an article in the Australian newspaper in which Australian federal police expressed views about the conduct of prosecutors and attribute those comments wrongly to a NSW supreme court judge.
Dowling’s letter, tabled in parliament, said the case was “not an example of a failure by the prosecution”.
“The quotation that appears in the report, which is purported to be the opinion of the presiding NSW supreme court judge about the principal Crown witness, appears to be drawn from the first paragraph of the news article,” she said. “That paragraph paraphrases the views of the Australian federal police and is not attributed to the presiding judge.
“In my view, this matter is not an example of a failure by the prosecution to identify a case where there was no reasonable prospect of conviction because of the ‘unanswerable problem of credibility of the crucial witness’ as suggested by the report.”
