A board of inquiry chair probing Bruce Lehrmann’s rape trial was exchanging messages with a journalist while the top prosecutor was giving evidence in the witness box, a court has been told.
Shane Drumgold’s legal battle with the inquiry which led to his resignation has begun in the ACT, with the Supreme Court being told of the extensive communications Walter Sofronoff KC, the inquiry’s chair, had with reporters throughout the probe.
More than 90 calls were made to journalists – with Mr Sofronoff speaking with The Australian newspaper for more than 11 hours, the court was told.
Mr Drumgold, the territory’s Director of Public Prosecutions for five years until his resignation, has launched legal action to challenge a report that found he engaged in misconduct during the trial of Mr Lehrmann, who was accused of raping his colleague Brittany 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 subsequent inquiry chaired by Mr Sofronoff, a former Queensland Supreme Court, made several serious findings of misconduct 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.
On Tuesday the court was told Mr Drumgold was abandoning several grounds in the proceedings, including claims the board of inquiry failed to comply with the law and some of his claims the findings were “legally unreasonable”.
Dan O’Gorman SC – acting for Mr Drumgold – said the focus on proceedings would be claims of a “reasonable apprehension of bias” advanced in his second ground of the application.
“What is of concern for ground two is if a fair-minded lay observer might reasonably apprehend that Mr Sofronoff might not bring an impartial mind to the resolution of the questions that were before him,” Mr O’Gorman told the court.
“There were these private communications that no-one knew about at the time.”
The court was told 91 calls were made between Mr Sofronoff and journalists covering the inquiry.
73 were with The Australian newspaper and 51 were with one of its journalists, Janet Albrechtsen, the court heard.
Mr O’Gorman said they would be submitting Ms Albrechtsen was an “advocate”, who had exchanged numerous texts and messages with Mr Sofronoff during his time chairing the inquiry.
“What Mr Drumgold alleges is Mr Sofronoff’s association with Ms Albrechtsen, in particular, might be thought by a fair-minded observer to have diverted Mr Sofronoff from deciding the issues in his terms of reference, on their merit,” he said.
“We submit The Australian (and) Ms Albrechtsen engaged in media reporting adverse to Mr Drumgold.”
Mr O’Gorman told the court the articles published by Ms Albrechtsen “impugned” Mr Drumgold – whom he submitted was “the brunt of this negative reporting” – and cast Mr Lehrmann in a “favourable light”.
He submitted Ms Albrechtsen had an “extraordinary” amount of contact with Mr Sofronoff until the report was submitted.
“Information that was of importance to the inquiry and its deliberations … were passed on. Certain documents were passed on,” Mr O’Gorman said.
Mr O’Gorman said a fair-minded observer would have “real concerns as to what’s going on here”.
He submitted Mr Sofronoff did not bring an “unburdened mind” to the inquiry as a result of Ms Albrechtsen’s “bias”.
One exchange involved Mr Sofronoff and Ms Albrechtsen discussing a claim of malicious prosecution brought by Mr Lehrmann against Mr Drumgold, while others discussed a suppressed stay application.
Mr Sofronoff ends the exchange with: “Truly a pleasure to engage.”
Others included discussions on the controversies surrounding Mr Drumgold, Ms Higgins, Mr Lehrmann and related parties and the police, Mr O’Gorman said.
He told the court: “One wonders why she is at all discussing with the inquiry chair, some stay application … that had been suppressed?”
“It is of some concern to the reasonable-minded bystander that she goes on … (about) a document that would shed light on certain behaviours of Mr Drumgold, who of course is a key figure in the inquiry.”
Another 13 communications were exchanged while Mr Drumgold was giving evidence at the inquiry.
“Importantly, Mr Drumgold was not aware of any of it. He had no idea what was going on behind the scenes,” he explained.
Mr O’Gorman said the communications were in breach of Mr Sofronoff’s own communication guidelines set down for the inquiry.
The hearing continues.