DPP Drumgold wrong, but not sorry at Sofronoff inquiry

Andrew L. Urban

Bruce Lehrmann sat quietly in a back corner of the anodyne, lawyer-filled room in Canberra last week where former judge Walter Sofronoff KC is chairing the inquiry into the hot mess that grew out of the Brittany Higgins allegation of rape against him. The tables had turned: he wasn’t the defendant in this hearing, his former prosecutor was. 

The public hearings began on Monday May 8, 2023, and the first witness to appear was the ACT’s DPP, Shane Drumgold, who prosecuted the case at the trial that was aborted even as the jury was considering their verdict, in October 2022, after hearing two weeks of evidence. It was aborted due to juror misconduct, but after the first week of the inquiry, it could be argued that had a guilty verdict been delivered, Lehrmann’s appeal would have unearthed the same grave errors of judgement by Drumgold that he was forced to admit in the Sofronoff inquiry last week. But the admissions – often made reluctantly, hesitantly, with qualifications – were not accompanied by expressions of regret.

Kate Richardson SC

He admitted to the inquiry, after hot grilling by Kate Richardson SC acting for the AFP, that he no longer believed or suspected that there was a conspiracy between ministers, the AFP commissioner and police to interfere with the process and close it down.

He admitted he had not read all the police statements, and that he was wrong to claim the AFP investigative review document (the Moller report) was privileged – and therefore he had not made it available to the Lehrmann defence team. Drumgold said he didn’t want the Moller Report in the hands of the defence because he thought it would be “crushing” to Higgins. (And to the defendant? And to the course of justice?)

He admitted that it “never occurred” to him to tell Higgins that he (alone) had read her confidential counselling notes, nor that he should step down from the case after reading them.

He admitted he did not give Lisa Wilkinson a clear warning not to give her speech at the Logies; he didn’t want to hear it when she began to read it out to him, but felt confident that her lawyers would give her the right advice. It was not for him to do that. He thought she came to him (with lawyer in attendance) to brag about her Logie nomination (for her interview of Higgins; her speech at the award ceremony referenced the case).

He admitted to misleading the court when he told Chief Justice Lucy McCallum that a proofing note the judge relied on to castigate journalist Lisa Wilkinson was contemporaneous and that it was created by his junior solicitor. That part of the proofing note was created at the DPP’s explicit direction to a junior lawyer, in his office, after Wilkinson’s controversial Logies speech.

Sue Chrysanthou

He agreed with Sofronoff that his submissions “could have the effect of misleading her”. Barrister Sue Chrysanthou SC, for Wilkinson, put it to Drumgold that he knew the judge’s interpretation was not accurate and did nothing to correct her. “I thought I had warned her (Wilkinson). I thought what I said to her amounted to a warning,” he said.

On Wednesday, counsel assisting, Erin Longbottom KC, asked Drumgold about his December press statement where he lauded Higgins’ bravery and dignity after announcing he would not retry Lehrmann.

Longbottom: “Did you turn your mind to the impact that statement might have on Mr Lehrmann, who was entitled to the presumption of innocence?”

Drumgold: “Possibly not as much as I should have.”

Erin Longbottom KC

After Longbottom’s questions led Drumgold to admit that he was unfair to Lehrmann in that public outburst, the DPP doubled down on Thursday by claiming, without a scintilla of evidence, there were 11 jurors who planned to convict Lehrmann. One rogue juror, who caused the mis­trial, was the holdout, he claimed.

He repeatedly told the hearing that in his view, the police were “passionate” in their belief that the case should not proceed to trial. To Drumgold that demonstrated their outdated stereotypical views about sexual assault complainants. Statements tendered to the inquiry record Drumgold as describing police as “boofheads”. He accused them, in front of the jury, of having a low skill set.

The obvious irony to anyone observing the Sofronoff inquiry last week is that it seemed Drumgold was the one who so passionately believed the complainant that his own bias was obscured.

Walter Sofronoff KC

“His fate now depends on what Sofronoff makes of his responses and whether he concludes that the DPP breached his duties when he commenced, continued and then discontinued the case against Lehrmann,” according to Chris Merritt, Vice President of the Rule of Law Institute.

Sitting a few steps from Drumgold in front of Sofronoff was Mark Tedeschi KC, representing Drumgold. To this observer, Tedeschi was a fitting choice for Drumgold. He is the former NSW DPP who prosecuted Gordon Wood (among others) and had to defend himself against a malicious prosecution charge by Wood. At that trial, Justice Fullerton reprimanded Tedeschi for being “disingenuous” and for “impermissibly straining for a conviction”. Drumgold may have recognised a kindred spirit…

The inquiry will continue to hold public hearings on Monday and Tuesday next week (May 15 & 16, 2023), with evidence from Lehrmann’s barrister Steven Whybrow SC.

Bruce Lehrmann