The head of the inquiry into the Lehrmann prosecution is likely to face the ACT Integrity Commission and may also be charged for giving his report to The Australian before the government. By Karen Middleton.

Charges considered over Sofronoff inquiry leak

An elderly man in a grey suit matched with a patterned tie.
Walter Sofronoff, KC.
Credit: AAP Image / Jonno Searle

The head of the inquiry into the failed prosecution of Bruce Lehrmann, Walter Sofronoff, KC, appears set to face an ACT Integrity Commission investigation after admitting he gave his final report to a newspaper columnist before it had gone to the government that commissioned it.

The Saturday Paper understands the Integrity Commission received at least one referral of the matter this week – though not yet from the ACT government – after Sofronoff confirmed he gave an advance copy of his report to The Australian newspaper and later to the ABC, and that he had regularly briefed selected journalists privately on upcoming evidence.

ACT Chief Minister Andrew Barr confirmed he was also seeking legal advice on whether to bring charges against Sofronoff or anyone else over the former Queensland Court of Appeal judge’s decision to effectively leak his own 839-page report to two journalists. He sent the report to columnist at The Australian Janet Albrechtsen and later to ABC journalist Elizabeth Byrne, and offered private briefings to selected journalists about upcoming hearings, throughout the five-month inquiry.

Publishing the report formally on Monday, Barr said Sofronoff had confirmed, in response to a please-explain letter, that he had given copies to two journalists he trusted, under embargo until it was officially published.

“In one instance, this occurred prior to me receiving the report as required under the legislation,” Barr said, describing it as a breach of faith. “This was not authorised by me or by anyone else in the ACT government and I remain extremely disappointed that this has occurred.”

The ACT government received Sofronoff’s report on July 31 and indicated it would take up to a month, as the law provided, to consider its findings and craft a response before releasing it publicly.

Albrechtsen published details of the report on August 3, outlining its significant and serious adverse findings against ACT Director of Public Prosecutions Shane Drumgold, who was found to have lied and acted “grossly unethically” during the prosecution. Her reporting appeared before the findings had been provided to Drumgold or other parties whose actions the inquiry scrutinised.

On the report’s contents, the ACT government is now taking advice on whether legal action should be taken against Drumgold over his management of the Lehrmann prosecution. The DPP resigned last week, effective next month, after being notified of the report’s contents. He said the manner of its release had denied him procedural fairness.

“Although I dispute many of the findings of the Inquiry, I accept that the premature publicity surrounding me means that my office, the Courts and most importantly the ACT public, could not presently have faith in the discharge of the functions of the Director of Public Prosecutions,” Drumgold said in a statement.

On Monday, Barr said he was also concerned about the way the report was released. Sofronoff had assured him he had been particular about the journalists with whom he engaged and that his experience had “led him to conclude that it was possible to identify journalists who are ethical and who understand the importance of their role in the conduct of a public inquiry”.

A spokesperson for the ACT chief minister said Sofronoff had been chosen to head up the inquiry “based on being from outside the ACT and his reputation as a jurist and former Queensland solicitor-general”.

Barr released the report formally on Monday alongside ACT Attorney-General Shane Rattenbury, saying their concern lay with the inquiry’s processes, not its findings. “The process that I am concerned about is the leaking and the potential engagement with journalists along the way through. I think both of those show a significant lapse of judgement,” he said.

Barr stressed the government “maintains confidence in the 10 report recommendations” and was focused on implementation. He said the recommendations provided practical ways the government, police, prosecutors and others in the ACT justice system “can ensure that the matters raised in the trial do not occur in the future”.

Sofronoff’s inquiry examined the roles of the DPP, ACT Policing and the Victims of Crime Commissioner before, during and after the prosecution of former Morrison government adviser Bruce Lehrmann.

Lehrmann was charged with raping his then colleague Brittany Higgins in 2019 in the Parliament House ministerial office in which they both worked. He maintains his innocence and pleaded not guilty at his criminal trial last year. After the trial collapsed due to juror misconduct, a retrial was abandoned and the charge dropped out of concern for Higgins’s mental health.

The ACT government established the inquiry at Drumgold’s request after he accused investigators of mishandling protected information and working against him to sabotage the prosecution – something they deny. Drumgold also suggested political forces had been at play, an allegation he later withdrew in the inquiry’s witness box.

Drumgold has suggested his relationship with police began to deteriorate after he instigated a review of the low percentage of sexual assault allegations that proceed to charges and prosecution in the ACT.

Sofronoff confirmed police and the DPP were “at polar ends of an antagonistic relationship”. But he said police had acted professionally and it was Drumgold who had erred most.

This week, Andrew Barr flagged the possibility of further investigation into Walter Sofronoff’s inquiry processes. The Integrity Commission’s description of its role includes to “review investigations performed by other agencies and monitor how reports are dealt with to ensure just outcomes”.

The chief minister acknowledged that holding an inquiry into an inquiry “runs the risk of being quite ridiculous”.

“This should have drawn a line under this matter,” Barr said. “Unfortunately, while the recommendations I believe are sound and we have accepted them, the whole process – the leaking, the engagement with journalists on the way through – leaves in the minds of many people questions, significant questions, and it is just so disappointing.”

The government’s legal advice is expected to consider the roles of Sofronoff, The Australian and the ABC and whether there is any justification for what Barr said appeared to be a breach of the ACT Inquiries Act.

Barr indicated Sofronoff provided the report to Albrechtsen first, several days ahead of the ABC, which received it after the chief minister but before it was officially published. Both had been told it was embargoed.

“He had a view that the reporting might be more accurate if journalists were provided copies in advance,” Barr said of Sofronoff’s reasoning. “But he placed his faith in a particular individual and that faith proved to be massively misplaced with huge consequences for everyone.”

Barr said he had also provided it to Brittany Higgins’s lawyer. The former judge had offered no apology.

In a report in The Australian on August 4, Albrechtsen wrote the newspaper had not broken an embargo and “will not reveal the source of the leak”.

The Saturday Paper asked the ABC if it had broken an embargo but a spokesperson had no comment.

The ACT Inquiries Act requires a board of inquiry to provide its report to the ACT chief minister. Section 17 says board members must not provide inquiry documents to others nor communicate inquiry information except under provisions provided by the act, with breaches punishable by an $8000 fine or six months in jail.

Legal experts suggest evidence of prior conversations between Sofronoff and media representatives could raise the possibility of charges of conspiring to breach section 17.

Barrister Geoffrey Watson, SC, a former counsel assisting the New South Wales Independent Commission Against Corruption and now with the Centre for Public Integrity, believes early publication could also give rise to defamation action. This is because the report’s contents were not covered by legal protections until the document was formally published by the chief minister.

“It’s at least arguable that by publishing the report to journalists at The Australian and the ABC, that was a defamation which was not protected by the type of judicial immunity granted under the Inquiries Act,” Watson says. “That’s because it was a step taken outside the act – in fact, contrary to the act.”

The Saturday Paper is not suggesting that the actions of Sofronoff, The Australian or the ABC are unlawful or amount to wrongdoing.

The revelations have prompted further questions about the extent and nature of Sofronoff’s contact with journalists, particularly at The Australian.

His credentials have certainly won strong endorsement from prominent journalists at the News Corp publication.

In the early hours of May 17, Radio 2GB’s overnight program broadcast an interview with The Australian’s legal affairs editor, Chris Merritt, on the first 10 days of inquiry hearings. Merritt made scathing criticisms of Shane Drumgold, who had just given evidence, including walking back his allegations of political interference. Merritt praised Sofronoff as a “brilliant” chair and “the epitome of fairness”.

“It’s being run beautifully, I would say at this point,” he said of the inquiry.

Sofronoff was formerly chair of the Queensland inquiry into the handling of DNA testing, which resulted from an investigation by The Australian’s award-winning Brisbane-based journalist Hedley Thomas exposing serious flaws in the system. Sofronoff had been due to appear alongside Thomas at a Queensland Media Club lunch event on August 25 entitled “Politics, journalism and social media v The presumption of innocence”. This week, Sofronoff cancelled his appearance.

The growing controversy around the circumstances of the Sofronoff report’s release has threatened to overshadow its contents.

The report excoriates Drumgold’s actions as DPP. In strong and sometimes pejorative language, it says he failed in his prosecutorial duty to disclose material to the defence and that he put “unsubstantiated” and loaded questions about political interference to a witness, Senator Linda Reynolds. It finds he lied to the trial judge, Supreme Court Chief Justice Lucy McCallum, “preyed on” a junior colleague in forcing them to back him up, and gave false evidence.

But Sofronoff stops short of recommending he be sacked as DPP and struck off as a barrister, accepting Drumgold’s argument that this was beyond his terms of reference. The ACT Bar Council, the section of the Bar Association that accredits practising barristers, issued a statement saying it “noted with grave concern” the misconduct findings. It said that having resigned as DPP, Drumgold would be required to reapply for a general practising certificate and it would consider the matters in the report then.

Sofronoff also strongly condemned Drumgold for elements of the statement he made on December 2 last year when he cancelled the Lehrmann prosecution. In that statement, he praised Higgins’s “bravery, grace and dignity” and said he remained convinced there were reasonable grounds for conviction in the case but that her health required its abandonment.

Sofronoff said the latter comment especially suggested he believed Lehrmann was guilty and undermined the presumption of innocence. In reply, Drumgold said he had wanted to clarify he was not withdrawing the charge for lack of evidence, and the statement was no different to what was conveyed by charging the defendant in the first place.

In the report, Sofronoff endorses that original decision, saying he has “reviewed the entire prosecution brief and the trial transcript” and that Drumgold was right to bring the charge.

Sofronoff finds relations between the DPP and police were troubled from the outset, with police doubting Higgins’s credibility.

Although the inquiry heard they had discussed their reservations with Lehrmann’s lawyer and had substantial direct contact with the defence, Sofronoff finds Drumgold’s allegations of bias and interference unsubstantiated. He finds the DPP’s deep suspicions about the police had led him to see “non-existent malignancy in benign interactions”.

Sofronoff’s report confirms police investigators wrongly provided Higgins’s private counselling notes to both the defence and the DPP, put Higgins under undue stress by wrongly requiring her to give a second videotaped interview, and potentially tainted her evidence by agreeing to let her see the Parliament House security video of the night in question in 2019. Sofronoff describes as “concerning” the fact police could not demonstrate a clear understanding of the threshold test for when a sexual assault charge should be laid. He also found police had unnecessarily interviewed Higgins’s key support person, Victims of Crime Commissioner Heidi Yates, as a potential witness, causing needless strain.

But he downplays his own criticisms, saying police had “made some mistakes”, which had compromised Higgins’s privacy and general health, but that these had not affected the substance of the investigation or prejudiced the case.

In response, Brittany Higgins posted a statement on social media saying police had belittled her during her second recorded interview and wrongly handed over her “most private thoughts” to the defence.

“They made a fun folder full of unfounded claims in a literal attempt to discredit me as a permissible rape victim to the office of the DPP,” Higgins said. “These men were absolutely awful to me. They made me feel violated at every turn.”

In his own statement, Chief Police Officer Neil Gaughan welcomed Sofronoff’s recognition of “the professionalism and dedication of all ACT Policing officers involved”. He did not respond directly to Higgins’s comments.

“I want the ACT community to know – you will be listened to, you will be treated with respect and you will be supported,” he said. “Every complainant’s concerns, needs and well-being will continue to be [the] central focus in any police process or subsequent criminal justice proceeding.”

A series of initial potential adverse findings against police – which they have rejected – are included as appendices to Sofronoff’s report but did not feature significantly in the final report. They include that investigators did not interrogate Lehrmann’s statements with “the same intensity” as those they believed went to Higgins’s own credibility and that “investigators failed to appreciate” Lehrmann’s statements were potentially valuable “in providing evidential support for aspects of Ms Higgins’s account or in providing evidence of his guilt in the form of lies”.

Sofronoff recommended changes to justice system procedures, including an overhaul of police training, better processes for police handling protected material and a clearer policy on the threshold test for when sexual assault charges should be laid.

The ACT government is moving to implement the recommendations as quickly as possible, insisting they are its most urgent priority – rather than the new controversy that has accompanied them.

This article was first published in the print edition of The Saturday Paper on August 12, 2023 as "Charges considered over Sofronoff inquiry leak ".

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