Major win in former ACT chief prosecutor’s court fight with board of inquiry after Sofronoff report

Former ACT chief prosecutor Shane Drumgold has had a major win after a judge found the chair of a board of inquiry acted with reasonable apprehended bias, as he texted a journalist during evidence. Parts of a damning report into how the former top prosecutor handled Bruce Lehrmann’s prosecution will be struck out after it found he engaged in malpractice and unethical behaviour. D-Day arrived for Mr Drumgold on Monday, after he launched legal action against the territory’s government and a board of inquiry into his handling of Mr Lehrmann’s prosecution for the alleged rape of Brittany Higgins. The three-day hearing took place at the ACT Supreme Court in February, with Acting Justice Steven Kaye on Monday delivering his judgment. Justice Kaye found former Queensland Supreme Court judge Walter Sofronoff KC displayed bias when conducting the inquiry into Mr Drumgold’s conduct during the trial. “I have concluded that the conduct by the first defendant... gave rise to a reasonable apprehension of bias, in the communications that took place between the first defendant and Miss Janet Albrechtsen of The Australian newspaper before and during the inquiry was such that a fair-minded lay observer might reasonably have apprehended that the first defendant, in determining chapters four, five and six of the report.... might have been influenced by the views held and publicly expressed at times by Ms Albrechtsen,” Justice Kaye said on Monday. Mr Drumgold handled the prosecution of Mr Lehrmann, a former parliamentary staffer who was accused of raping his colleague Ms Higgins in 2019. Mr Lehrmann’s 2022 jury trial was declared a mistrial due to juror misconduct and a planned retrial was abandoned by prosecutors due to concerns about Ms Higgins’ mental health. He pleaded not guilty and has continued to deny the allegations. The inquiry into Mr Lehrmann’s prosecution made serious findings of misconduct and unethical behaviour against Mr Drumgold. Mr Sofronoff found the former chief prosecutor “lost objectivity and did not act with fairness and detachment as was required by his role” during the trial, advanced a false claim of legal professional privilege over certain documents and misled the court about notes made during a meeting with journalist Lisa Wilkinson, before her infamous Logies speech, among other claims. Mr Drumgold resigned in the fallout of the report’s release and launched legal action against the ACT government and Mr Sofronoff’s inquiry. Lawyers for Mr Drumgold challenged the findings and are seeking a declaration the report – or alternatively parts of the report – are invalid. In his statement of claim, Mr Drumgold argued the inquiry denied him “natural justice”, breached the law and “gave rise to a reasonable apprehension of bias”. He also claimed findings in part of the report were “legally unreasonable”, including findings he had “knowingly lied to the Chief Justice” and advanced a false claim of legal professional privilege about certain documents during the trial. Mr Drumgold has also claimed some findings were made outside of the board of inquiry’s terms of reference During the three-day hearing in February, Dan O’Gorman SC, acting on behalf of Mr Drumgold, argued that Mr Sofronoff had “poisoned his mind” against the former prosecutor before he gave evidence in the inquiry. Mr O’Gorman argued that Mr Sofronoff had developed an “unreasonable” relationship with The Australian columnist Janet Albrechtsen that gave rise to an apprehension of bias. The hearing examined communications by journalists and Mr Sofronoff throughout the inquiry. Of the 91 calls made to journalists, Mr Sofronoff spoke with journalists from the national broadsheet for more than 11 hours. Some calls and texts even occurred while Mr Drumgold was giving evidence in the witness box, the court was told. Mr O’Gorman told the court that Ms Albrechtsen wrote “negative” articles about Mr Drumgold and had “poisoned” Mr Sofronoff’s mind. He argued the regular calls and text messages “infected” Mr Sofronoff with the journalist’s bias. Representing the ACT government, Kate Eastmann SC told the court the argument had “no foundation”. If Justice Kaye on Monday finds Mr Sofronoff held an apprehended bias while conducting the inquiry, parts of the final report could be deemed invalid. Otherwise, he could find Mr Sofronoff displayed no bias and the findings will be upheld in full.