The trial judge who presided over the case against Bruce Lehrmann has issued a rare warning, saying that the personal toll of criticism on lawyers has become “oppressive and unfair”.
ACT supreme court chief justice, Lucy McCallum, issued a note to the territory’s lawyers on Monday, saying public scrutiny of the justice system was welcome, but warning there was a point at which it took a personal toll on individuals.
The statement comes as the ACT government prepares to release the final report of the Sofronoff inquiry into the ACT prosecution of Lehrmann, days after its contents were reported in detail by the Australian and the ABC.
McCallum did not directly reference the Lehrmann proceedings or name any individual lawyer.
“The administration of justice in the ACT has been the subject of unprecedented attention in the past year,” she said. “While public scrutiny is a welcome and necessary incident of open justice, a point can be reached where the personal toll on the practitioners concerned becomes oppressive and unfair.”
“I urge all practitioners to show kindness and respect towards each other at this time and look forward to continuing to work with the local legal profession to build on the many strengths of this jurisdiction.”
Shane Drumgold SC, the Director of Public Prosecutions who ran the Lehrmann trial, has been the subject of significant media criticism in recent months.
The Sofronoff inquiry handed the Australian and the ABC, but no other media outlets, embargoed copies of the final report on the condition that they not publish until the government tabled and released Sofronoff’s final report.
The report made serious findings against Drumgold, including that he misled a court and improperly attempted to withhold material from the defence, though it found against the initial complaint of police investigators, who believed there wasn’t enough evidence to take the case to court. That finding is not indicative of the guilt or innocence of Bruce Lehrmann, who has denied the allegation he raped Brittany Higgins.
Lehrmann described the reporting of Sofronoff’s final report as courageous and he and his defence counsel Steven Whybrow SC urged the ACT government to “show leadership and hold the ODPP [the office of the DPP] to account”.
The final report was handed to two journalists before Drumgold received it, though it is understood he had seen details of the proposed adverse findings that were to be made against him.
The two outlets also received copies of the final report before the chief minister, Andrew Barr, the office of the DPP, ACT’s police chief, Neil Gaughan, and anyone in ACT Policing.
Earlier on Monday, Geoffrey Watson, a former counsel assisting to the Independent Commission Against Corruption and a director of the Centre for Public Integrity, said he was appalled at the process and premature release of the report.
He noted the ACT Inquiries Act had clear rules about the handling of private material by individuals associated with such inquiries, which precluded it from being handed to outsiders and gave the chief minister decision-making power over whether to fully or partially release the report.
“The reason for that is, because they may have concerns in which a commission was conducted or reported upon, or they have concerns about whether procedural fairness was afforded,” he told Guardian Australia. “It seems to me that those incredibly valuable steps have been denied to the chief minister by just sending this report off to members of the press.”
Drumgold, in explaining his resignation on Sunday, said he had made mistakes and that his position was no longer tenable. But he rejected any suggestion he had “engaged in deliberate or underhanded conduct in the trial or that I was dishonest”. He said he had hoped the inquiry would examine the justice system’s treatment of sexual assault complainants and allegations.
“In my mind, the handling of the case was reflective of the chronic problem in Australia with the way our legal institutions deal with allegations of sexual violence,” Drumgold wrote.
He accepted his conduct was “less than perfect” but said “my decisions were all made in good faith, under intense and sometimes crippling pressure”.
Lehrmann said Drumgold’s response was unacceptable. He said the resignation of Drumgold “shouldn’t be a surprise to anyone”.
“The response from the former Director is not acceptable, insufficient and not worth the paper it is written on,” he said. “The ACT government now needs to show leadership and hold the ODPP to account. If they don’t I will.”
Whybrow said the statement appeared to confirm that he “saw himself more as a social justice crusader than an independent minister for justice”.
“This apparent ‘end justifies the means’ explanation for his conduct is frankly alarming coming from a DPP, a position which already wields so much opaque and unreviewable power over the lives of people who come into contact with the criminal justice system,” he said.
The Sofronoff report investigated the handling of the investigation and prosecution of rape allegations against Lehrmann by Higgins. She alleged Lehrmann, a former colleague, raped her in Parliament House in 2019.
Lehrmann, who pleaded not guilty to one count of sexual intercourse without consent, has always denied the allegation of rape and no findings have been made against him. Lehrmann was tried by the ACT supreme court in October but a mistrial was declared due to juror misconduct.
Prosecutors later dropped the charges against him because of fears about the effect a second trial would have on Higgins’s mental health.
Watson said the inquiry had missed an opportunity to examine the treatment of sexual assault complainants in the justice system.
“This was an opportunity to at least examine how this is going wrong in the ACT and it was completely bypassed,” he said. “You’d have to wonder what is going through people’s heads about what this commission has achieved.”
