The rape accusation made by Brittany Higgins against fellow Liberal staffer Bruce Lehrmann has turned into a wellspring of litigation. It’s a lawyers’ feast with replicating magic puddings.
Each new twist produces a corresponding litigious response. The latest contest is Shane Drumgold v Walter Sofronoff, heading to the Supreme Court of the Australian Capital Territory. It was Sofronoff, a former Queensland judge, who wrote the report critical of the way the ACT’s outgoing director of public prosecutions conducted aspects of Lehrmann’s rape prosecution.
Lehrmann has denied raping Higgins, a fellow Liberal staffer in Reynolds’ office, and pleaded not guilty at trial. His trial was aborted due to juror misconduct and a second trial was abandoned due to concerns about the risk it posed to Higgins’ life.
Aspects of the application for judicial review filed by Drumgold centre on the unfairness of the release of Sofronoff’s report to the Australian newspaper – before it was sent to the territory government.
There have been corresponding reports that Sofronoff was briefing journalists while the inquiry was under way. He told Andrew Barr, the chief minister of the ACT, that it was “possible to identify journalists who are ethical” and that they would not “take the serious step of betraying his trust by behaving unprofessionally”.
Seasoned media hounds were crying into their beverages at the news that serendipitously the Australian had discovered another copy of the exact same report that was not emblazoned with the word “embargo”.
On one level the early release of the report could be construed as a breach of the legislation that governs inquiries commissioned by the chief minister and attorney general.
Conspicuously, the Australian had been running one of its heavy-handed campaigns, targeting a mixed bag of villains: Drumgold; the #MeToo movement; Brittany Higgins and her supporters; and “victim-centric” sympathies in sexual assault cases.
It’s at the weirder end of the culture war spectrum.
Given that the newspaper had its hyped agenda and got the early drop of the report highly critical of the DPP, Drumgold contends this is evidence of Sofronoff’s bias.
Further, it denied him procedural fairness because he was blindsided in the media by the torrent of findings against him, before he had an opportunity to read the report and respond.
Integrity campaigner Geoffrey Watson has said that this denial of fairness to Drumgold vitiates the report and its findings.
Drumgold contests a number of specific critical findings, such as his handling of Brittany Higgins’ counselling notes; the advice he gave celebrity TV presenter Lisa Wilkinson about her Logies speech (a speech which resulted in a delay to Lehrmann’s trial); and his examination of Senator Linda Reynolds, in whose office Higgins claimed the sexual assault occurred.
One source says that Sofronoff is livid that the ACT government has been critical of his conduct and is asking for a public retraction. Can we hope the next step will be Sofronoff suing chief minister Barr and his attorney general Shane Rattenbury?
Sally Dowling, the NSW Director of Public Prosecutions, entered the melee, indicating that Sofronoff incorrectly drew from another case, R v Barrett, where his report referred to a court-ordered permanent stay because of a weak prosecution owing to the lack of credibility of a crucial witness.
Sofronoff had drawn on elements of an article in the Australian to make this “significant factual inaccuracy” – an indication of how simpatico the inquiry was with the newspaper.
To relieve the mystery – this was the case withdrawn against the famous crime journalist Steve Barrett (known fondly as the Bar Rat). The blackmail charges against him in relation to the Plutus scheme were discontinued in July prior to a hearing of an application for a permanent stay, which meant the merits of the application were never litigated.
There are other magic litigation puddings that remain to be eaten. Lehrmann has two defamation cases on the go – one against Ten Network and another against the ABC. He contends that in each case he was identified as an accused rapist.
From the latest round of federal court case management, we know that Brittany Higgins will be giving evidence for the media defendants and that Lehrmann’s lawyers have flagged she will be subjected to “lengthy” cross-examination.
Lehrmann also indicated during a feathery inquisition on Channel Seven’s Spotlight that he wants $6m compensation to buy a house.
How that compensation claim might go is anyone’s guess, particularly as Sofronoff said the decision to prosecute him was soundly based.
In Perth, Senator Linda Reynolds is hard at it with defamation cases against Higgins and her partner David Sharaz.
The Sharaz case got a run around the block last Friday in the WA supreme court. Justice Marcus Solomon knocked back Sharaz’s application that Reynolds stump up security for costs in advance of the trial.
The former defence minister’s statement of claim identified tweets that suggested her office pressured Higgins not to go to the police and questioned the amount of support she gave her staffer.
Justice Solomon warned of the daunting financial and human costs involved in this litigation – maybe to the extent that it’s not worth the candle.
Reynolds herself got into a muddle during another soft soap interview on Spotlight. She said that she had heard from her chief of staff Fiona Brown that Higgins had disclosed remembering Lehrmann “on top of me”.
This was not the evidence Reynolds gave at Lehrmann’s trial, where she told the court she did not know there was a “sexual element” to what had happened in her office. She thought it was a “security incident”.
To numerous observers, being on top of someone late at night in a ministerial office might, with a little imagination, be conflated with a “security incident”.
To borrow someone else’s aphorism, the fallout of that night in Reynolds’ office has more twists than a bowl of fusilli.
History tells us that Walter Sofronoff has survived mishaps in the past. Nine years ago, at Toowoomba airport he walked away unscathed after the plane he was piloting crash-landed.
Richard Ackland writes at 500Words.com.au
