Walter Sofronoff maintained “extensive communication” with a columnist at The Australian – who provided Bruce Lehrmann’s contact details and passed him information – while examining the failed prosecution, a court has been told.
The former Queensland judge’s 273 interactions with Janet Albrechtsen over seven months were raised as part of a legal challenge by the former ACT director of public prosecutions, Shane Drumgold, who seeks to quash the ACT board of inquiry’s findings.
Drumgold’s lawyer, Dan O’Gorman, told the ACT supreme court on Monday that Sofronoff’s communication with Albrechtsen, while he led the inquiry, may give an impression that his ability to impartially review the prosecution was undermined.
O’Gorman told the court that Albrechtsen was an “advocate” for Lehrmann who was writing “nasty” stories about Drumgold while simultaneously maintaining regular contact with Sofronoff.
“What Mr Drumgold alleges is that Mr Sofronoff’s association with Ms Albrechtsen in particular might be thought by the fair-minded observer to have possibly diverted Mr Sofronoff from deciding the issues in his terms of reference on their merit,” O’Gorman said.
Sofronoff’s report, which was given to journalists before the ACT’s chief minister, 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.
In his opening submission, O’Gorman said the 273 interactions between Sofronoff and Albrechtsen included 51 phone calls, text messages, emails and a private lunch meeting in Brisbane. The former judge also spent seven-and-a-half hours on the phone with The Australian newspaper during the probe, many of which were with Albrechtsen.
O’Gorman said when considered as a whole, these interactions may have led Sofronoff to “deal with matters other than on their legal and factual merits”, “giving rise to a reasonable apprehension of bias”.
Drumgold’s legal team said that, on 20 April, Albrechtsen texted Lehrmann’s contact details to Sofronoff with the words “as discussed”.
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“That is, it is clear there had been discussion between Albrechtsen and Sofronoff related to Lehrmann,” O’Gorman said. “We have no idea what the discussion was, of course … but a fair-minded observer is left wondering.”
O’Gorman then cited phone records indicating Albrechtsen and Sofronoff communicated 38 times in the three days before the inquiry began in May. This included a text message from Sofronoff criticising the former prosecutor’s treatment of “two young professionals” under his mentorship.
“It shows that Mr Sofronoff had poisoned his mind to Mr Drumgold before Mr Drumgold even got into the witness box,” O’Gorman told the court. “It is an example we will say of a failure to provide a fair hearing.”
O’Gorman then cited phone records indicating Albrechtsen and Sofronoff communicated 13 times while Drumgold was in the witness box between 8 and 12 May.
The court heard Albrechtsen texted Sofronoff requesting a draft copy of his inquiry report on a strictly embargoed basis. A copy provided from Sofronoff’s personal email address included annotations and tracked changes. Albrechtsen also successfully sought advanced notice of adverse findings, the court heard.
“In the course of those communications information that was of importance to the inquiry and its deliberations, and not really to a journalist, were passed on,” O’Gorman told the court.
O’Gorman argued these communications breached Sofronoff’s own guidance on how to engage with the media. But in his affidavit, Sofronoff argued that it was his job as inquiry chair to speak with journalists, and his communications were above board.
Drumgold’s lawyer told the court his client would no longer claim Sofronoff acted improperly by providing a report to two journalists on an embargoed basis, instead focusing solely on allegations of apprehended bias.
The hearing continues.
