One thing lawyers and journalists have in common is a shared and ancient maxim: don’t make yourself the story. Unless you’re Janet Albrechtsen, of course.
Having just played a starring role in the Supreme Court of the Australian Capital Territory, where Acting Justice Stephen Kaye ruled that her relationship with Walter Sofronoff KC had caused there to be a reasonable apprehension of bias on his part in his handling of the inquiry into the conduct of former ACT chief prosecutor Shane Drumgold, the opinion columnist for The Australian declared herself the clear winner.
While Kaye has yet to make orders, he will formally declare that Sofronoff’s inquiry, and therefore his report, was infected by that apprehended bias. The inquiry report had no legal consequences, so it cannot be “overturned” as such. However, Kaye’s finding means that Sofronoff’s report is rendered valueless, since no credence can be placed on it.
Albrechtsen’s response: an article in The Australian, immediately, headlined “Shane Drumgold’s reputation remains in tatters”.
Her declaration:
Drumgold sought a declaration that the Sofronoff report, or those parts about Drumgold, were invalid and of no effect. Drumgold didn’t get that. The Sofronoff report remains standing. Seven of eight damning findings by Sofronoff against Drumgold remain standing.
Now, the whole point of the apprehended bias principle is that nobody can stand in judgment of their own actions, or of matters in which they have a personal interest. A ruling by a court or tribunal of any description, in circumstances where the decision-maker was actually biased one way or the other, is a nonsense and the law will not allow it to stand.
The law goes further, applying the same outcome where the bias hasn’t been proved to exist but where there are circumstances that would cause a fair-minded punter looking on to think that maybe the decision-maker might not be impartial.
For example, if a judge were to sit in judgment in a case against a company in which they held a few shares, while we could probably accept that they wouldn’t be swayed by that circumstance, the perception of risk could not be ignored and the judge must recuse themselves.
That was the case Drumgold brought against the Sofronoff inquiry. He also asked the court to declare that eight of the adverse findings that Sofronoff made against him, in respect of his handling as lead prosecutor of the Bruce Lehrmann rape trial, were legally unreasonable. He failed, except in respect of one of the findings (regarding his cross-examination of Linda Reynolds at the trial).
Albrechtsen is, as usual, right and completely wrong. It is true that Drumgold’s challenges to the detail of Sofronoff’s findings largely failed, the judge concluding that they were reasonably open to Sofronoff to reach on the evidence before him. Which is not to say that Justice Kaye agrees with him, because that is not the test he had to apply. They just weren’t so unreasonable as to be declaratively wrong.
Which brings us back to what Justice Kaye concluded regarding Sofronoff’s dealings with Albrechtsen –the 273 interactions just between them, as has been widely reported and dissected.
Kaye exhaustively analysed every scrap of it, nauseating as that must have been. First, he said, “it is clear that Ms Albrechtsen consistently expressed views [in her many articles in The Australian] that were particularly critical of [Drumgold] in his decision to commence the criminal proceedings against Mr Lehrmann, and in his conduct of those proceedings.” He also noted that, in her articles, she “alleged serious breaches by [Drumgold] of his duties as a prosecutor”.
Further, nobody had been able to find a single article by Albrechtsen “which were supportive of [Drumgold]’s conduct of the prosecution, or which in any way countered the criticisms”.
No problem with that, Albrechtsen is an opinion columnist, fully entitled to wage one-sided campaigns against her enemies with no regard to balance or fairness. The point is that, as Kaye found, she had a dog in this race. The question therefore, he said, was whether a fair-minded observer “might reasonably have apprehended that Mr Sofronoff might have been influenced” by her in his determination of the issues in his inquiry.
One example of many will suffice to illustrate what went on between them — a text exchange on May 23, 2023. Albrechtsen texted Sofronoff asking whether the inquiry was looking into what a police officer meant by a comment he had made. Sofronoff replied: “Yes, he should have asked Moller what he understood by it. He’ll do that this morning and follow up with Chew.”
Kaye: “That text exchange is relevant for two reasons. First, Ms Albrechtsen felt free to communicate with Mr Sofronoff, and express an opinion to him, about the issues that were being agitated at the inquiry. Secondly, Mr Sofronoff saw fit to express to Ms Albrechtsen his agreement with her suggestion as to a question that ought to have been asked of a witness”.
All of the communications between the pair were private, never disclosed to anyone else. The storm didn’t break until it was revealed that Sofronoff had given Albrechtsen drafts of his final report via his personal email address, before presenting it to the ACT government.
Kaye’s conclusion, under this mountain of evidence (“the amount, context, nature, manner and content of the communications”), was that there was a reasonable apprehension “that Mr Sofronoff might have been influenced … by the views held and publicly expressed by Ms Albrechtsen”.
The court will ultimately make that declaration. It never had the power to make Sofronoff’s report void. However, it follows as night follows day that, because Sofronoff’s performance of his function has been found to have been infected by apprehended bias, and specifically the apprehension that he might have unwittingly ended up doing the bidding of someone with an axe to grind, his findings are legally worthless.
It’s not a clean win for Drumgold, but nobody ever wins in the Lehrmann/Higgins catastrophe. Everyone gets burned.
