Walter Sofronoff’s “private and secret” text messages with a columnist at the Australian demonstrated “preferential treatment” and a “closeness” that could lead to an impression of bias, a court has heard.
Janet Albrechtsen’s 273 interactions with the head of an inquiry into the failed prosecution of Bruce Lehrmann are at the centre of a legal challenge by the former ACT director of public prosecutions Shane Drumgold, who wants to quash the inquiry’s adverse findings against him.
Drumgold’s lawyer, Dan O’Gorman, told the ACT supreme court on Thursday that Albrechtsen texted Sofronoff on 10 July to ask for a copy of any potential adverse findings contained in his report.
O’Gorman said text messages obtained during discovery show Sofronoff replied with a thumbs-up emoji. O’Gorman said when Albrechtsen later questioned when they would arrive, Sofronoff said he would provide them after she made a formal request through an email address he provided.
“The inference to be drawn is that what was being requested was that there be an appearance of something different being done to reality,” O’Gorman told the court.
“There was an attempt to prevent disclosure of those earlier communications where the request had been made and granted. Put another way, these exchanges highlight the private and secret nature of some of these text messages.”
On Wednesday, lawyers for the territory government and the board of inquiry told the supreme court there was no “proper basis” to suggest Albrechtsen was an “advocate” for Lehrmann who had “infected” Sofronoff with bias.
“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 [cited by Drumgold’s lawyers], was aware of those articles, or had any knowledge, either at the commencement of his inquiry or during the course of his inquiry, with respect to Ms Albrechtsen’s bias,” said Kate Eastman, the government’s lawyer, on Wednesday.
But in his closing submission on Thursday, O’Gorman cited a text message from Sofronoff that stated “Yes, I read it”, after Albrechtsen had shared her latest opinion piece with him.
“The fact that he is reading them [shows] that he is treating her more than just a person who is annoying him all the time,” O’Gorman said. “If that was the case, throw it in the bin, ignore it totally.”
Justice Stephen Kaye questioned the significance of Sofronoff’s text and said: “I’ve read plenty of articles in the newspaper that have not influenced me, some of them have annoyed me.”
The ACT government’s lawyers told the court that Albrechtsen’s columns were often a collection of other people’s opinions, rather than her own. But O’Gorman said Albrechtsen’s decision to highlight those opinions was relevant to their case.
The counsel for the board of inquiry, Brendan Lim, said Sofronoff did not give Albrechtsen preferential treatment and that he responded to all legitimate requests for information.
“The fact that Ms Albrechtsen asked more questions that other journalists is really beside the point,” Lim said on Wednesday.
O’Gorman cited instances where Sofronoff is alleged to have initiated conversations with Albrechtsen and provided her information before it was available to other journalists.
“Why does Mr Sofronoff feel the need to text her directly using her private mobile phone? What was so special about her?,” O’Gorman told the court.
O’Gorman cited text messages between Sofronoff and Albrechtsen including “are you free for lunch on Friday?”, “Can I confirm a restaurant?”, and “got a minute?”.
“Those communications suggest an informality, a closeness, or proximity of their engagement with each other from which a fair-minded observer might reasonably apprehend that Mr Sofronoff is influenced by Ms Albrechtsen.”
Sofronoff’s report accused Drumgold of “several serious findings of misconduct” and said 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.
Justice Kay will now consider submissions before making a judgment.
