The Director of Public Prosecutions, Shane Drumgold, “knowingly lied” to the ACT Supreme Court over his purported warning to Lisa Wilkinson over her Logies speech, according to a landmark inquiry.
In bombshell findings that are expected to end Mr Drumgold’s tenure as the DPP, the Sofronoff inquiry has made serious adverse findings of unethical conduct, including his use of a note concerning a discussion he held with Ms Wilkinson just days before her speech.
However, as revealed by news.com.au, the Sofronoff report does find that the decision to charge and prosecute Bruce Lehrmann was the correct course.
That finding is not a reflection on the guilt or innocence of the former Liberal staffer. It is a finding on the conduct of the police and the Office of Director of Public Prosecutions.
Mr Lehrmann remains an innocent man under the law, as he was never convicted before the trial collapsed following an allegation of juror misconduct.
The Australian newspaper obtained a full copy of the 600 page report on Wednesday night.
It confirms the findings against Mr Drumgold are so serious that Walter Sofronoff KC seriously considered whether he should invite the DPP to make a submission as to whether he was a fit and proper person to hold that office.
Ultimately, he determined it was not in his terms of reference.
It’s a stunning outcome after Mr Drumgold effectively demanded the inquiry in a furious letter to ACT Chief Police Officer Neil Gaughan on November 1, 2022, which included what the inquiry described as “scandalous allegations” about political interference.
“The result has been a public inquiry, which was not justified by any of his allegations, that has caused lasting pain to many people and which has demonstrated his allegations to be not just incorrect, but wholly false and without any rational basis,” Mr Sofronoff finds.
He accuses him of failing to disclose material to the defence when he ought to have done so.
“Mr Drumgold kept the defence in the dark about steps he was taking to deny them the documents,” Mr Sofronoff said.
“Criminal litigation is not a poker game in which a prosecutor can hide the cards.”
Mr Drumgold remains on leave from his job and has not returned to work since his bruising evidence at the Sofronoff inquiry in May.
The inquiry finds the police “performed their duties in absolute good faith, with great determination although faced with obstacles, and put together a sound case”.
It does not make adverse findings against Victims of Crime Commissioner Heidi Yates.
Curse of the Logies
Ms Wilkinson’s Logies speech sparked a four-month delay to the trial, and the Chief Justice’s stern criticism of Ms Wilkinson contributed to a firestorm of adverse publicity.
The Channel 10 broadcaster ultimately left The Project in the wake of the fallout and has not returned to the airwaves since late last year.
Mr Drumgold always maintained he warned her about the danger of making comments that might endanger Mr Lehrmann’s rape trial.
Ms Wilkinson disagreed, and Mr Sofronoff found that he preferred her evidence over the DPP’s.
Mr Drumgold even presented a note concerning a video conference with Ms Wilkinson to Chief Justice Lucy McCallum that suggested he did give a warning.
When asked if it had been written contemporaneously by a junior lawyer present, he told the court this was the case.
In fact, it was updated only after Ms Wilkinson delivered her speech and the DPP was aware of the looming controversy.
As such, The Australian reported on Wednesday night that Mr Sofronoff has found Mr Drumgold “knowingly lied to the Chief Justice”.
“For the Chief Justice’s purposes, the note was not contemporaneous,’’ the report states.
“I reject that a prudent and experienced barrister would behave in that way or make a mistake of this calibre.
“This is a wholly untenable excuse for a barrister of the seniority and experience of Mr Drumgold.”
Mr Sofronoff rejected Mr Drumgold’s insistence this was an honest mistake.
“He must have known that (Chief Justice) McCallum had found, as a matter of fact, that Ms Wilkinson had engaged in wilful defiance of his ‘appropriate’ warning and that her finding was based entirely on the proofing note,’’ the report states.
Mr Sofronoff writes that Ms Wilkinson was a very experienced broadcaster who should have been cautious about making such a speech given the proximity of the trial, but nevertheless, the DPP had a responsibility to the court.
“Instead, he did nothing and thereby left alive a threat to the trial,’’ he said.
“A postponement might have endangered Ms Higgins’ health, which Mr Drumgold knew was fragile. It imperilled Mr Lehrmann’s right to the presumption of innocence. It left Ms Wilkinson under the false impression that she was at liberty to give the speech.”
Disclosure
Mr Sofronoff finds the DPP abandoned the “golden rule” of disclosure and the practice of experienced prosecutors that “if in doubt, disclose”.
The Sofronoff inquiry finds that Mr Drumgold repeatedly tried to ensure the so-called Moller Report stayed out of the hands of the defence, despite the fact they were legally entitled to it.
“Mr Drumgold could not name a source (for the privilege claim) in his instructions to his staff member because, as Mr Drumgold admitted in his evidence, he himself was the source,’’ the report finds.
Mr Drumgold is accused of using “dishonest means to prevent a person he was prosecuting from lawfully obtaining material”.
Linda Reynolds
There is vindication too in the Sofronoff report for Senator Linda Reynolds.
The Sofronoff inquiry finds “there was not a single piece of evidence that anyone had applied pressure upon Ms Higgins that could legitimately be described as ‘strong political forces’”.
He does not agree with Mr Drumgold’s claims that Ms Reynolds “arranged” for her partner to attend court, and that he had been discussing Ms Higgins’ evidence with her, suggesting the claim was “tantamount to an allegation of an attempt to pervert the course of justice”.
“Mr Drumgold was examined about his understanding of this ethical principle. His ignorance deeply disturbed me. He fails to understand the difference between putting forward to a witness an allegation of misconduct as a fact and asking a witness whether or not something is a fact,’’ the report states.
“Mr Drumgold had no basis upon which to put that suggestion, which was intended to impute impropriety in Senator Reynolds in the eyes of the jurors.”
“The suggestion that Senator Reynolds as well as her partner were engaging in potentially criminal conduct was an improper one and should not have been made,” Mr Sofronoff said.
“Mr Drumgold’s comments were improper. They undermined the public’s confidence in the administration of justice and (it) was a failure in his duty as DPP,” Mr Sofronoff said.
‘Improper’ comments after trial
The report finds Mr Drumgold’s speech after the trial collapsed implied he “personally believed Ms Higgins’ complaint of rape was true and that, as a consequence, Mr Lehrmann was guilty”.
“The comments were improper and should not have been made,’’ the report states.
“It was not necessary for Mr Drumgold to express his views on the prospects of conviction at the time of discontinuance.
“Nor was it his function to identify himself with the complainant to a degree that he made a public statement of support.
“The motive for this was good; the decision was bad.”
News.com.au has contacted Shane Drumgold, his legal representative, Bruce Lehrmann and Lisa Wilkinson for comment.