Drumgold loses on 7 of 8 grounds but ACT taxpayers to pay his costs

Andrew L. Urban.

In the case of Drumgold v Sofronoff Board of Inquiry … seven of Shane Drumgold’s eight grounds of complaint against Walter Sofronoff’s report were dismissed – yet his costs are to be paid by ACT taxpayers … the government, his former employer. Why?

That was Acting Justice Stephen Kaye’s second questionable decision. The first was his decision to find Sofronoff’s contact with The Australian’s Janet Albrechtsen gave way for an apprehension of bias. “A fair-minded observer, acquainted with all the material objective facts of the case, might reasonably have apprehended that, as a consequence of his communications with Ms Albrechtsen, Mr Sofronoff might have been influ­enced,” he wrote in his judgment.

We respectfully but strongly disagree. Indeed, “A fair-minded observer, acquainted with all the material objective facts of the case,” would apprehend that Drumgold’s serial admissions of unethical behaviour as the DPP cannot be seen in any light other than inadmissible, unprofessional and unacceptable. Further, any judge will fiercely defend their ability to discuss a matter with a journalist without falling under the reporter’s spell.

Drumgold submitted Albrechtsen wrote regular “negative” commentary pieces about Drumgold and “poisoned” Sofronoff’s mind through her communications with him. His counsel, O’Gorman said text messages, emails and phone calls shared by Sofronoff and Albrechtsen – as well as a lunch in Brisbane – indicate Sofronoff was “infected” by Albrechtsen’s bias, and the frequency of the communication was “so extraordinary in the circumstances” that he could not find comparable cases. The court heard Sofronoff had 65 telephone calls with journalists between February 9 and July 31 last year – 55 with The Australian and 10 with other news outlets.

Counsel for the ACT government, Kate Eastmann SC, counsel for the board of inquiry, Brendan Lim, and counsel for the police officers joined to the claim disagreed with O’Gorman (counsel for Drumgold), telling the court allegations Albrechtsen’s reporting somehow influenced Sofronoff’s findings against Drumgold had “no foundation” and should not be accepted. Lim said Sofronoff would engage with any journalist who approached him, and Albrechtsen was just “the most persistent”.

In fact there was no need for bias to influence Sofronoff. As Albrechtsen summarises, “Time and again, when the ACT’s chief prosecutor was asked about his conduct, a common theme emerged from his answers: he “didn’t turn my mind to it”, “I had not perused it in that degree of detail”, “I was not looking at it through that prism”, “I can’t recall it jumping into my mind”, “that’s an error on my behalf”, “I didn’t pay sufficient attention”, “I had too cursory a read”, “I clearly overlooked it”, and so on.

“These are his words. His admissions during four days in the witness box brought his career to a screaming halt. No government, not even the ACT Labor-Greens government, could put Drumgold back in the role of chief prosecutor given the evidence he gave to the board of inquiry.”

It would be irrational to ‘apprehend’ bias here.

Bruce Lehrmann’s Statement re Drumgold vs Board of Inquiry (ACT):

In large part, the most serious of findings backed by evidence and testimony in the Inquiry report against Mr Drumgold stand and that’s a good thing for the rehabilitation of our justice system.

 Mr Drumgold destroyed my life because of the decisions and lack of decisions he took with his failed prosecution. He treated prosecution like a poker game.

 The work of the Inquiry was fundamental to protecting the basic principles of the rule of law and exposing deep ingrained issues within the DPP and the ACT justice system.

 Prosecutors around the country would be wise to take note of the report in light of adverse judgements about the conduct of the DPP in other jurisdictions.

• DISCLOSURE: Andrew L. Urban has been invited to work with Bruce Lehrmann on a book about the Brittany Higgins rape accusation and its aftermath.