As the fallout from the mishandling of the Higgins-Lehrmann case continues I’m moved to note once more that this is not a game, and to extend the metaphor by pointing out what happens when you treat something deadly serious in that way: everyone becomes a player.
It’s difficult to avoid concluding that that’s exactly the trap into which two eminent lawyers have allowed themselves to fall, because I can’t find another obvious reason.
In the aftermath of the mistrial of Bruce Lehrmann on the charge of allegedly raping Brittany Higgins, and ACT Director of Public Prosecutions Shane Drumgold SC’s decision to not proceed with a retrial, the barely respected shackles of sub judice were released and the circus went into full production.
Out of the ensuing media frenzy came the inevitable necessity of some form of public inquiry, an attempt to restore credibility to a justice system that had been severely battered. The conduct of the Australian Federal Police (AFP) had been openly impugned by Drumgold, who clearly believed that there had been an overt attempt — possibly politically motivated — to nobble the prosecution.
The ACT government properly moved to throw some light on what had happened, appointing former judge Walter Sofronoff KC as independent inquirer with broad terms of reference. His inquiry was conducted largely in public and he duly produced a very detailed report, acquitting his formal responsibilities with apparent diligence.
I’ve read the report. It’s definitely possible to take issue with some of its findings; Sofronoff seems to have given the AFP a wide benefit of the doubt, finding that it made some really grievous errors but characterising its conduct as the result of inadequate training and not in any way malign. On Drumgold, by contrast, Sofronoff went to town, delivering blistering findings of dishonest misconduct that have, as he must have known would be the result, ended Drumgold’s career.
However, there is no point second-guessing Sofronoff’s conclusions from a pundit’s standpoint, since he assessed all the evidence and we cannot; although I of course defer to Janet Albrechtsen’s unique right to deliver definitive conclusions on all questions of fact and law through the journal of record for which she writes.
The perplexing thing is what else Sofronoff did. According to ACT Chief Minister Andrew Barr, he has admitted he regularly briefed journalists while his inquiry was in progress, and that he handed his full report to The Australian and the ABC before delivering it to the ACT government. The Australian, via Albrechtsen, then published its favourite parts of his findings, comprehensively scuppering any hope of due process and forcing the government to scramble its response.
Drumgold’s position was, as he concluded, untenable. While he retained some legal rights — he could have stood on his refutation of Sofronoff’s findings and declined to resign — he had also lost others, for example the chance of trying to get an injunction on the report’s release pending a court challenge on procedural fairness grounds. The political reality was that the ship had already sailed.
The inquiry was governed by the ACT Inquiries Act, which has some explicit provisions dealing with the disclosure of information. Section 17 of the act prohibits, among other things, an inquiry member from communicating to anyone information acquired in the course of their work, or giving anyone access to documents such as the inquiry report. A breach of the section is a criminal offence carrying potential imprisonment.
So we’re talking about serious stuff here. The legislation really just gives coercive force to some very fundamental aspects of the rule of law: if you’re going to conduct an extrajudicial inquisition, the consequences of which could be prejudicial to individuals, stringent observance of procedural fairness is indispensable. For the person heading such an inquiry, it’s a no-brainer.
I’m not arguing about whether anyone broke a law here, or whether The Australian breached an embargo, and it doesn’t particularly matter now. The problem is that the circumstances in which the inquiry’s findings became public have undermined their integrity.
It’s a deep irony, because in a sense it mirrors what Drumgold was found to have done.
Sofronoff affirmed that the decision to charge Lehrmann and bring on his prosecution was entirely correct, so the substance of Drumgold’s action as DPP has been vindicated. However, he then did things (according to Sofronoff) that made the whole exercise look murky, compromising his credibility and that of the process he had led.
Likewise, by electing to play with the media, Sofronoff made the fatal error of giving the appearance that he may have chosen a side. By choosing The Australian in particular, given that newspaper’s unambiguous campaigning on Lehrmann’s behalf, he dramatically enhanced that risk.
It’s all extremely unfortunate and mystifying. The end result is that the public is entitled to conclude that it can’t place its trust in anyone connected with this saga, because everyone who goes near it is tainted by the suspicion of having an agenda.
So far, cool heads have not prevailed. The circus rolls on.
