Former DPP Shane Drumgold sought to impugn eight adverse findings by Commissioner Walter Sofronoff. He succeeded on only one. “I’d call it a pyrrhic victory, but no discernible basis to claim that the former DPP could have avoided being sacked if he failed to resign,” writes legal columnist HUGH SELBY. 

Many of us donate blood to help others in need. It’s the right thing to do. We do not ask the irrelevant question: “Is the blood recipient a deserving or undeserving person?”

However, as an ACT ratepayer and resident I do occasionally ask about how my and your money is being used.

I make no complaint that we were all paying for the 2023 Sofronoff Inquiry (the Inquiry) into the conduct pre-trial and at trial by the prosecution (and others) of Brittany Higgins’ complaint that she was raped by Bruce Lehrmann: the costs of the inquiry, the legal costs of those giving evidence and those whose conduct was under review. That’s a fair thing.

This week I learned that we, ACT ratepayers, have paid Senator Linda Reynolds some $90,000 by way of damages and costs, because of a letter sent by our former Director of Public Prosecutions (DPP) Shane Drumgold, that made false claims about her. He was acting in his official capacity so we, not he, wear the financial consequences. I get it, but it rankles. 

I also learned that we are to pay some part of his legal costs incurred in his quest to have the negative findings against him by that inquiry overturned.

His quest was hardly a triumph for him. I’d call it a pyrrhic victory: revenge inflicted upon the commissioner, Walter Sofronoff KC, but no discernible basis to claim that the former DPP could have avoided being sacked if he failed to resign. The former DPP sought to impugn eight adverse findings by the commissioner. He succeeded on only one. That is, seven of the eight adverse findings have stuck. The former DPP also alleged that he was not afforded natural justice. That claim also failed.

“Costs follow the event of win or loss”. He won something, albeit of little practical consequence to him or us, so we must pay. But, one has to wonder for how long, and how much more, we will be paying for the ignominious chapter in our criminal justice history that is his conduct of the prosecution of Mr Lehrmann and the atmospherics in which that prosecution played out.

This week Justice Stephen Kaye handed down his decision on the application brought by the former DPP seeking declarations:

1. that Commissioner Sofronoff’s interactions with a well- known journalist for The Australian, Janet Albrechtsen, gave rise to a reasonable apprehension of bias by the Commissioner; and,
2. that the findings (eight of them) made against the former DPP were not legally “reasonable”.

Justice Kaye’s judgment can be found here. It is some 140 pages, more than 60,000 words. It demonstrates the correctness of “importing” a highly regarded, experienced Victorian judge to hear and determine this case. 

The issues are clearly stated, the approach and findings of the Inquiry are summarised, the evidence before Justice Kaye is comprehensively set out, the applicable legal principles are presented – along with a useful summary, followed by an easy-to-follow reasoning process that led to his conclusions. All of this was done in just a few weeks: quite an achievement.

The purpose of this article is to explain why Justice Kaye found that the commissioner’s numerous interactions with journalist Albrechtsen gave rise to a reasonable apprehension of bias by the Commissioner in his assessment of Drumgold’s conduct.

A later article will explain why that finding as to an apprehension of bias did not then lead to Mr Drumgold’s conduct of the prosecution of Lehrmann being vindicated. Rather, the Commission’s findings on seven of eight key issues were upheld. 

What created the reasonable apprehension of bias?

Justice Kaye reviews the well-established legal tests as to there being, or not being, “a reasonable apprehension of bias by a fair-minded lay observer”. He summarises those tests at paragraph 218.

Note that he (and we) are looking at “an apprehension of bias”. We are not looking at, nor was it asserted by anyone, that the commissioner showed actual bias.

Following a lengthy review of many “communications between Mr Sofronoff and Ms Albrechtsen” Justice Kaye concluded: 

“… I am driven to the conclusion… that 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, and thus biased, against [Mr Drumgold] in determining the issues, specified [in] the Terms of Reference…, concerning the conduct by [Mr Drumgold] of the prosecution of the case against Mr Lehrmann.” [para 337].

His Honour followed with: 

“… the fact or circumstance, which a fair-minded observer might apprehend might have led Mr Sofronoff to decide the case other than on its legal and factual merits, consisted of his contacts and communications with Ms Albrechtsen, in circumstances in which Ms Albrechtsen had formed views and published considered articles, which had been and were highly critical of [Mr Drumgold] in his conduct of the prosecution of the criminal trial against Mr Lehrmann. [These articles were serially evaluated by His Honour]. The connection between that circumstance and the apprehended deviation from the course of deciding the issues on their merits consisted not only of the communications between Mr Sofronoff and Ms Albrechtsen, but, more significantly, the nature and cogency of the views held by Ms Albrechtsen on the issues to be determined by Mr Sofronoff under… the Terms of Reference, the amount of communications between Mr Sofronoff and Ms Albrechtsen, and the context, circumstances, nature and content of those communications…. “. [para 338]

Earlier, in his review of the many Albrechtsen articles in The Australian, His Honour found that: 

“It is clear that, in the period between early December 2022 and late July 2023 [which is the time period from setting up the Inquiry to delivery of its report], Ms Albrechtsen wrote a series of publications, which were critical of the case, instituted by the plaintiff against Mr Lehrmann, and which suggested the involvement of political factors in the case. Most significantly, a substantial number of the articles were specifically critical of the conduct by [Mr Drumgold], both in instituting the criminal charge against Mr Lehrmann, and in his prosecution of that charge. The articles alleged serious breaches by [Mr Drumgold] of his duties as a prosecutor”. [para 264]

The problem was not that Ms Albrechtsen wrote and writes engaging, entertaining, polemical articles that reflect extensive research and enviable writing skills. Nor would it have been a problem if the commissioner had reached his concluded views without the too numerous, and not revealed interactions with Ms Albrechtsen. The problem was that: 

“… the articles canvassed, in terms critical of [Mr Drumgold], a number of the issues, which ultimately fell for consideration by the [commissioner], pursuant to … the Terms of Reference .., and which were determined by [the commissioner in his final Report]. [para 265]

Further, 

“…the fair-minded observer would, as an objective fact, be aware that the quantity, nature, content and circumstances of the communications, that took place between Mr Sofronoff and Ms Albrechtsen leading up to and in the course of the Inquiry, were markedly different to the method by which the [Mr Sofronoff] ordinarily… communicated with members of the media and others.” [para 279]

The context in which communications take place is a relevant consideration, 

“…it as particularly relevant that a substantial amount of communications took place between Ms Albrechtsen and Mr Sofronoff in the period of three days between 5 May and 7 May 2023, which immediately preceded the commencement of oral evidence in the public hearings of the Inquiry. In that respect, the fair-minded observer would be cognisant that the first witness, who gave evidence in the public hearings, was [Mr Drumgold] about whom Ms Albrechtsen held particularly strong and considered views. [para 282]

Very telling is this statement by His Honour,

“…It was clear, from the message that Mr Sofronoff sent to Ms Albrechtsen on 6 May, that he then held a view that was adverse to [Mr Drumgold] in respect of [an issue before the Inquiry about a claim of privilege made by Mr Drumgold]. That point, of itself, of course does not mean that [the commissioner] had prejudged or predetermined the issue. However, the point… is that a fair-minded observer would be significantly concerned that Mr Sofronoff saw fit to communicate that assessment, that he had made about [Mr Drumgold], to Ms Albrechtsen, particularly in circumstances in which he knew that Ms Albrechtsen held views that were critical of [Mr Drumgold]. 

The fair-minded observer might fairly apprehend that, at that point, Mr Sofronoff regarded himself as a ‘fellow traveller’ of Ms Albrechtsen in respect of the views that she had expressed and maintained in her publications about [Mr Drumgold]. The observer might also apprehend that, as such, Mr Sofronoff regarded it as appropriate to exchange views with Ms Albrechtsen about specific issues which he was required to determine in the Inquiry.” [para 297]

What have we learned?

Hindsight is blessed with the imprimatur of “correct”. It should always be approached alongside , “S/he that is without sin among you, let them first cast a stone”. [New Testament, John, chapter 8, verses 7 et seq]. So it is with responding to this apt, indeed central observation in the judgment: 

“Of particular moment is … that the communications between Mr Sofronoff and Ms Albrechtsen… all took place in private. At no time were they disclosed to the public at large, or to [Mr Drumgold].” [para 319].

Would I be writing this article if the commissioner had ever said during the Inquiry: “I have been in contact with journalists A, B etcetera who have raised with me questions concerning topics such and such. If anyone would like further information please make contact as follows”?

The answer is “perhaps”. Being a judge or an inquirer is a lonely position. The opportunities for discussion are narrow, much narrower than they are for we, non-decision makers.

He, and later inquirers, might, for example, direct all questions to counsel assisting who could decide if a question could be answered, and, if so, by whom and when. 

The appearance of “distance” between the evidence being taken and the formulation of what it all means for a decision is fundamental. Compromise that distance, even for the best of reasons, and we now know what then follows: an expensive distraction.

Walter Sofronoff’s commitment to having the inquiry properly understood and reported upon by the media was and is laudable. The error lay in frequently descending to the particular, not with everyone, or the many, not even the few, but the one.

Former barrister Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

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