The Australian’s columnist Janet Albrechtsen was not an “advocate” for Bruce Lehrmann who “infected” the head of an inquiry into his prosecution with bias, a court has heard.
Albrechtsen’s 273 communications with Walter Sofronoff, including a private lunch in Brisbane, are at the centre of a legal challenge by the former ACT director of prosecution Shane Drumgold, who wants to quash the inquiry’s adverse findings against him.
Drumgold’s lawyer, Dan O’Gorman, has told the ACT supreme court that Albrechtsen was an advocate for Lehrmann who was writing “nasty” articles about his client’s performance while maintaining regular contact with Sofronoff.
O’Gorman claimed Sofronoff’s “extensive communication” with Albrechtsen during the inquiry may lead to a reasonable observer to perceive bias that could result in him dealing with matters beyond their “legal and factual merits”.
But Kate Eastman, a lawyer representing the ACT government, which is a party to proceedings, said that claim was based on assumptions that had not been proved.
“Your honour should not accept that there’s any proper basis for finding that Ms Albrechtsen could be characterised as an advocate,” Eastman told Justice Stephen Kaye.
“There is no evidence, or, in our respectful submission, any proper basis to infer or make a finding that Mr Sofronoff read any of the articles … was aware of those articles, or had any knowledge, either at the commencement of his inquiry or during the course of his inquiry, in respect of Ms Albrechtsen’s bias.”
Eastman did not dispute that Albrechtsen had written extensively about Lehrmann and Drumgold, but said it was not clear this had any effect on Sofronoff’s conduct.
The former judge spent seven-and-a-half hours on the phone to The Australian newspaper during the probe, most of which were with Albrechtsen.
The counsel for the board of inquiry, Brendan Lim, said Sofronoff discussed practical matters about the inquiry with Albrechtsen, including when documents would become available.
“He engaged with any journalist who approached him with legitimate requests for information and explains that Ms Albrechtsen was the most persistent of the journalists, but that did not reflect preferential treatment on his part,” Lim said.
“The fact that Ms Albrechtsen asked more questions that other journalists is really beside the point.”
Sofronoff’s report made “several serious findings of misconduct” against Drumgold, saying he “at times … lost objectivity and did not act with fairness and detachment” throughout Lehrmann’s prosecution for the alleged rape of Brittany Higgins.
Lehrmann has denied raping Higgins and pleaded not guilty to a charge of sexual intercourse without consent. His criminal trial was abandoned due to juror misconduct and a second trial did not proceed due to prosecutors’ fears for Higgins’ mental health.
Drumgold’s legal team argued he was denied procedural fairness and an opportunity to respond to some adverse findings, including the finding that he “preyed on the junior lawyer’s inexperience” to “deliberately advance a false claim of legal professional privilege”.
Another lawyer for the ACT government, Alison Hammond, rejected this claim and said that while the word “prey” was not specifically put to Drumgold, the substance of the finding was.
Drumgold’s legal team also highlighted a text message Sofronoff sent to Albrechtsen shortly before inquiry hearings began in May, arguing it proved his mind was already “poisoned” against the prosecutor.
“What a thing to do to two young professionals under your mentorship,” the message to Albrechtsen said, in reference to witness statements provided by Drumgold’s junior staff involved in the Lehrmann trial.
Justin Greggery, a lawyer for six police officers listed as defendants, said that text message was “not a contentious view” and that Sofronoff was “simply stating the obvious” to a journalist in an attempt to assist accurate reporting.
“To read into it as though there is a willingness to secretly share confidential information – or a confidential state of mind – involves a review of this message not from a fair minded observer, but from a suspicious mind,” Greggery said.
The hearing continues.
