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The chaos of the Lehrmann trial demolishes another reputation

The chaos of the Lehrmann trial demolishes another reputation

The chaos of the Lehrmann trial demolishes another reputation.
A ‘lapse of judgment’ or partisan fog adds yet another embarrassing chapter to this endless legal saga.

It’s no profound insight that for several months the bête noire of The Australian’s Janet Albrechtsen has been outgoing ACT Director of Public Prosecutions Shane Drumgold SC.

In recent days alone, she’s vaulted to the Churchillian, warning of the gathering of a “dark cloud” should the ACT government turn a “blind eye” to what, in her view, constitutes a possible attempt to pervert the course of justice. She’s wondered how it is the ACT government allowed itself to be “overrun by the most zealous members of the #MeToo movement”, worried at what “other ideological obsessions” had “infected” the justice system.

She’s also attacked the integrity of News Corp colleague Samantha Maiden, suggesting her coverage of the Bruce Lehrmann rape allegation had descended into feminised “vigilante journalism”.

And in a manner redolent of those who speak as though no-one else on the train can hear them, she surmised, without evidence, that “no doubt quite a few” of those who support victims of sexual assault would be given to believing that at least some of the self-evidently unethical decisions of Drumgold during the course of the Lehrmann rape trial were justified. “Nothing,” she warned, “will stop their campaign to right social wrongs by whatever means necessary.”

It’s from this vantage point that Albrechtsen’s most recent portrait of the ACT justice system seeps into the absurd and plentiful plains of unreality. Lost in the thousands of words published is any credible reflection of how, for instance, the decision to publish the contents of Brittany Higgins’ private text messages might impugn the impartiality of The Australian or itself speak to serious issues within the justice system, never mind its chilling impact on victims of sexual assault.

Or how it is Albrechtsen’s views can be reconciled with the sobering reality the Sofronoff report did not, contrary to her analyses, find the prosecution of Lehrmann was improperly brought. And much less, that it found no evidence of “fundamental or grievous problems with the justice system” as opposed to “instances of poor individual behaviour”, as the territory’s Attorney-General Shane Rattenbury emphasised yesterday at the report’s public release.

It’s this particular backdrop that conspires to lend an added layer of the perverse to the already extraordinary revelations regarding the inquiry’s chair, Walter Sofronoff KC.

Beyond confirmation Sofronoff had leaked advanced copies of the final report to Albrechtsen and another journalist from the ABC in apparent contravention of the Inquiries Act, it emerged on Monday that the former president of the Queensland Court of Appeal had also admitted to regularly briefing select media of the inquiry’s direction.

During an at times stormy 40-minute press conference yesterday, a visibly rankled ACT Chief Minister Andrew Barr reminded journalists the Sofronoff inquiry was meant to draw a “line under the matter”. Instead the “whole process — the leaking, the engagement with journalists on the way through [had left] in the minds of many people questions, significant questions”. The inevitable result was “just so disappointing”.

He confirmed the government was “considering its options” against Sofronoff, pointing out his conduct raised the thorny spectre of criminal prosecution or a “full referral” to the territory’s integrity commission, though he ruled out yet another inquiry: “I think that runs the risk of being quite ridiculous.”

The irony of these circumstances is, on any view, as overwhelming as it is astonishing, adding as it does another, if not shameful, then highly embarrassing chapter to an ever-efflorescent saga that has monopolised headlines since early 2021.

Sofronoff, it bears mentioning, served for several years as the Queensland solicitor-general before his appointment to the bench, and until now had long been lauded as a person of “exceptional character and integrity”. On his judicial appointment, and in words which today seem freighted with hypocrisy, he cited the importance of the rule of law, noting it contemplated notions of “fair play”.

“We believe in rules that are rational and knowable, in rules that apply to everyone equally,” he said. “We believe in repelling any kind of corruption or distortion of our institutions that would pervert the conduct of the people who constitute those institutions.”

“Rules”, one might venture to suggest, that plainly embrace the provisions of the Inquiries Act, which state that the report of any inquiry belongs not to the chair but to the government through the chief minister, and that wrongful disclosure constitutes a criminal offence. The same provisions, for what it’s worth, also spell out in uncomplicated terms that the final report is to be submitted to the chief minister alone, who may hold it for up to a month to ensure procedural fairness to all parties before deciding whether to release it in part or in full.

It defies common sense to think that someone of Sofronoff’s evident legal calibre was ignorant of these basic provisions; still less that he hadn’t turned his mind to the risk The Australian would breach the embargo, given its obvious “axe to grind” in the saga, as the Centre for Public Integrity’s Geoffrey Watson SC so eloquently put it yesterday morning.

It’s in this way that Sofronoff’s premature release of the report suggests a problematic proximity between himself and The Australian, and one that casts a pall over the report’s capacity to draw the public closer to any common understanding of the truth.

For one thing, while Sofronoff’s conclusions regarding instances of Drumgold’s dishonesty are fairly uncontroversial, some might disagree with the assessment that the DPP’s cross-examination of Senator Linda Reynolds during the trial was “grossly unethical”. After all, the examination required the court’s leave and was not overruled by the trial judge, Chief Justice Lucy McCallum, who’s one of a number of judges under consideration for the next High Court vacancy.

It’s true, of course, that the broadsheet has denied any breach of an embargo, pointing out the series of stories it’s published under Albrechtsen’s name on the report’s contents since last Wednesday flowed from a separate leak from an unnamed source. But as Barr said yesterday, it’s an explanation that brings to mind that classic Bill Heslop line from Muriel’s Wedding: “What a coincidence, what a coincidence, indeed.”

The ABC, for its part, followed with its own reporting of the report’s contents last week, but has declined to comment on whether it breached an embargo.

Whatever the truth, the ramifications of the premature airing of the Sofronoff report within the media are significant. For the ACT government, which has been unduly rushed into a public response to the report, and in circumstances where it couldn’t be satisfied that all parties had been afforded procedural fairness as required under the act. For Drumgold, who was forced to resign amid the media furore absent an opportunity to respond to the final report before its public release. For police, whose chief, Neil Gaughan, said he was “shocked and distressed” at the report’s leak.

And not least, the public, who have been invited to believe the report’s findings are sound, notwithstanding lingering questions over the impartiality and conduct of the inquiry — a perception further entrenched by the absence of any apology from Sofronoff.

So, there it is: the interminable denouement of this wrecking-ball of a saga promises to roll on with no end in sight. When asked whether he regretted the appointment of Sofronoff to the inquiry, all Barr could say was: “I don’t think there’s much value in going over all of that. He came highly recommended.”

(but by whom)???

Maeve McGregor wrote this original article in Crikey

Maeve McGregor is the public affairs correspondent for Crikey, with a special interest in law and government integrity issues. Prior to this, she was a lawyer.

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