The Sofronoff inquiry has made “several serious findings of misconduct” against outgoing ACT director of public prosecutions, Shane Drumgold SC.
The report, released by the ACT government on Monday after extensive leaks, concluded that Drumgold “at times … lost objectivity and did not act with fairness and detachment” throughout the prosecution of Bruce Lehrmann for the alleged rape of Brittany Higgins.
The review, conducted by former Queensland solicitor general and president of the Queensland court of appeal Walter Sofronoff, found that it was appropriate to prosecute the matter.
Meanwhile, the ACT government says it is examining whether the premature release of the report was unlawful.
In a statement accompanying the official release of the report, it says it remains “extremely disappointed” that the report was earlier provided to two journalists prior to key parties. One of those journalists was handed the report before it was given to chief minister Andrew Barr.
The ACT government said that early release of the report had “interfered with the due process that should have been afforded to impacted parties”. Nevertheless it “maintains confidence in the report recommendations”.
Among his most damning findings, Sofronoff KC found that Drumgold “deliberately advanced a false claim of legal professional privilege and misled the court” to deny key documents to the defence.
In doing so, he “egregiously abused his authority and betrayed the trust of his young staff member” by directing them to draft a statement to support an inappropriate claim of privilege.
Sofronoff concluded that there was “simply no doubt” that documents prepared by the ACT Police identifying what they said were inconsistencies in Higgins’ evidence should have been produced to the defence.
Main points from the report
- The ACT government has agreed to eight of 10 recommendations and agreed in principle to two further matters.
- The report found it was appropriate to prosecute the matter, on the information available to ACT policing and the director of public prosecutions.
- However, the ACT DPP, Shane Drumgold, whose concerns in November 2022 sparked the inquiry, has stepped down from the role.
- The report included what the inquiry chair, Walter Sofronoff, described as “serious findings of misconduct” by Drumgold. But Sofronoff accepted it was not part of his remit to determine whether the DPP was a “fit and proper person” to remain a barrister or DPP.
- A government review of the 18 criminal cases Drumgold conducted, or in which he participated in, since his appointment as DPP in 2019 found “no more detailed examination is warranted”.
- ACT police officers “accomplished a thorough investigation ... (but) made some mistakes”. None of the mistakes affected the substance of the investigation and none of them prejudiced the case.
- The board of inquiry chair provided his report to media organisations, one of which received it before the ACT chief minister - a move the government considered interfered with due process. The government is seeking advice on whether the release breached the Inquiries Act.
- The government may change the Inquiries Act to strengthen non-disclosure provisions.
Recommendations to be acted on
- Training of police officers on the handling of counselling notes, the threshold to charge someone over sexual offences and the adjudication process.
- Law change to ban the disclosure of protected confidences at the investigation stage of the criminal process.
- Updating the ACT’s prosecutions policy to provide a process for recording retrial decisions.
- Set up a new complaints mechanism involving the DPP and ACT policing.
- Police are to inform a complainant once a decision to charge has been reached, unless it would prejudice an investigation or a matter more generally.
Sofronoff found that Drumgold “knowingly lied to the chief justice” by claiming that a note about a conversation with Lisa Wilkinson ahead of her Logies speech was written “contemporaneously” by his instructing solicitor.
“Mr Drumgold’s statements to the chief justice were false. The note was nothing more than a copy of an email which Mr Drumgold had written five days after the meeting and which purported only to record his ‘best recollection’.”
Sofronoff said that by instructing his counsel to argue this was “a mere mistake” Drumgold had shown “a grievous lack of insight into his behaviour and shows that, even now, he is not prepared to admit to what he did”.
Sofronoff said that police “made some mistakes” but none of them “actually affected the substance of the investigation and none of them prejudiced the case”.
“Some of them caused unnecessary pain to Ms Higgins and others,” he said, adding he was “confident, [these] have been or will be addressed by the AFP”.
The ACT government announced that after a “preliminary review” of the 18 cases that Drumgold had conducted since his appointment in 2019, it had decided against “a more detailed examination” of his record as a prosecutor.
That was because in all but three cases he was involved only on appeal. Two of those contained no “significant dispute between the parties” and in the third Drumgold had carriage only until two weeks before the trial.
The Sofronoff report recommended clearer policies on the threshold for police to lay charges and prosecutors to record retrial decisions, which were all accepted in full or in principle by the ACT government.
After Higgins’ complaints about the publication of material including her text messages collected during the investigation, the inquiry recommended consideration of whether “there should be a statutory prohibition against disclosure of protected confidences by any person who has been given lawful access to such material without the leave of the court”.
Higgins alleged Lehrmann, a former colleague, raped her in Parliament House in 2019. Lehrmann, who pleaded not guilty to one count of sexual intercourse without consent, has always denied the allegation of rape and no findings have been made against him.
Lehrmann was tried by the ACT supreme court in October but a mistrial was declared due to juror misconduct. Prosecutors later dropped the charges against him because of fears about the impact a second trial would have on Higgins’s mental health.
In December, Guardian Australia revealed that Drumgold had complained to the ACT police chief that police officers engaged in “a very clear campaign to pressure” him not to prosecute the alleged rape of Higgins, “inappropriate interference” and that he felt investigators had “aligned” with the defence.
That caused the ACT government to launch an inquiry into the justice system’s handling of the case.
On Sunday Drumgold resigned as director of public prosecutions, disputing “many of the findings of the inquiry” but accepting that his position was “no longer tenable”.
Drumgold sought to blame “premature publicity surrounding me” for his conclusion the public could “not presently have faith in the discharge of the functions” of his office.
On Monday ACT supreme court chief justice Lucy McCallum, who presided over the Lehrmann trial, issued a statement that while public scrutiny is “welcome and necessary … a point can be reached where the personal toll on the practitioners concerned becomes oppressive and unfair”.
