“Mr Drumgold became bewitched by the prism of unquestioning faith in a complainant’s character and story. Under that spell he cast aside the knowledge that he had acquired about dispassionate prosecuting,” writes legal columnist and former barrister HUGH SELBY. 

THERE are media comments about the future of the ACT Director of Public Prosecutions, Shane Drumgold, following his evidence at the first week of public hearings in the Sofronoff Inquiry. 

The Board of Inquiry, led by Commissioner Walter Sofronoff KC, a former president of the Queensland Court of Appeal, was established by the ACT government in December to examine how police, prosecutors and a victim support service handled allegations made by Brittany Higgins against her former colleague Bruce Lehrmann.

There is more evidence to be given by police and others. All of that will be considered by the commissioner and his team before he delivers his report, which will go well beyond the simple question,”Is the director up to the job?”

But is there now enough relevant evidence, duly tested, to point to Mr Drumgold’s finish line?

As director, he sits atop competent prosecutors. As the leader, he creates the culture within which they work. But he doesn’t have to do that alone. Because of his position he can, if he chooses, interact with senior barristers, judiciary, senior police and experienced government lawyers. 

Hence, he has access to many sources of independent, high-level advice – any of which, if used, could have led him to manage the Higgins case rather better.

Given Mr Drumgold’s evident mastery of criminal law and procedure, his failure to apply that knowledge during the Higgins saga is surprising, even bewildering. 

How could he, for example, seek to interfere with defence access to witnesses?

Such access to witnesses is a staple of our “fair trial process”. 

How could he convert the fact of experienced police expressing their disquiet about evidence and credibility into a notion that there was a political police tie up dedicated to improperly interfering in a prosecution? 

Given his experience as a trial lawyer, how could he personally examine “counselling notes” (that the defence could never see) when he must have known that this could derail his position as the prosecutor at the trial? 

If the notes had to be looked at then that should have been done by another lawyer. 

The avoidable problem that he created

The avoidable problem that he created is this: if Ms Higgins or another witness gave evidence at the trial that was inconsistent with the contents of those notes then, as the prosecutor, he had a duty to disclose that inconsistency to the defence because it opens up a fair line of inquiry and cross-examination by them. 

But the law prohibits the disclosure of such counselling notes to the defence, and it prohibits the use of such material at trial. So he is damned if he does and damned if he doesn’t. His options would be to step back as prosecutor mid-trial and appoint someone else – an approach that could be much criticised; alternatively, to ask the judge to abort the trial and discharge the jury. When asked, “Why?” any answer would expose him to trenchant criticism for looking at material that he should not have read. 

It would also lead the public to wonder about the trial process: is the accused being denied access to evidence that might lead to an acquittal?

And then there is the aftermath of Ms Wilkinson’s Logie speech, a widely reported paean of praise for Ms Higgins. 

No doubt Ms Higgins was uplifted by this public endorsement and Ms Wilkinson enjoys freedom of speech, but the likelihood that it would influence how jurors would approach the case – given the reach of Ms Wilkinson’s media status – is obvious. So obvious that a delay in the trial was inevitable.

A fair trial means a trial that is fair to all. Why then did Mr Drumgold not endorse that application for a delay?

Given that Mr Drumgold is a busy director and that he chooses, quite properly, to appear on appeals, how could he make the decision to personally prosecute in a matter that was attracting so much media over such a long period? 

If ever there was a case that required deft, multi-faceted, objective management this was it. The case had no legal complexities. 

A number of his prosecutors were up to the task of running the trial. Had he followed that path then, being at arm’s length, he could have remained more objective and steered the case away from the wreck that it became.

Into battle for all distressed and ravished damsels

And there’s the rub. Over and over last week it was the loss of objectivity – still not frankly admitted – that explains the prosecution debacle. 

Mr Drumgold became bewitched by the prism of unquestioning faith in a complainant’s character and story.

Under that spell he cast aside the knowledge that he had acquired about dispassionate prosecuting. Under that spell he went into battle for all distressed and ravished damsels, of which Ms Higgins was his centrepiece.

This uncritical “commitment” to complainants displaced the fundamental “let’s objectively examine each case on its merits”. His application of his legal skills and knowledge became distorted. 

Instead of being the dispassionate, objective “Minister of Justice”, he became a flag bearer for complainants. The Higgins saga was the instance that revealed the “fatal flaws” in that approach.

By way of comparison with his approach it is useful to ask, “Are defence lawyers ‘flag bearers’ for accused?” Most criminal charges end in pleas of guilty. This is because competent, ethical defence lawyers, having reviewed the evidence in the prosecution brief, advise their disappointed clients that there is no defence.

Accused will plead “not guilty” because they are innocent, or because there’s a chance they will get off, or because they have nothing to lose. “Flag bearing” has no place in the work of skilled defence lawyers; however, from time to time there is a lawyer with an unshakeable belief that all defendants are victims. We shake our heads. 

“Flag bearing” by lawyers on either side of a case distorts their approach to the case. That distortion then adversely affects the quality of decision making leading to damage to all participants in the criminal justice system.

The terms of reference confine the scope of the inquiry; however, we – the ACT community – are not so confined. Predating the Higgins saga there is evidence that the seeds for the problems that flowered during the Higgins saga can be found earlier. 

After a jury trial of sex matters in which I appeared for the accused, the experienced trial judge said to the prosecutor: “Don’t come back”. The judge was recommending that there should be no second trial on those charges on which the jurors could not agree. They had acquitted on some charges, convicted on none.

Mr Drumgold took my hand-delivered, sealed letter addressed to him seeking an end to the matter, scanned it and disseminated it around his office with pejorative remarks. We had no prior history, so his conduct lacked any rational, defensible basis. It was as unexpected as it was unprofessional.

During the public hearing there was more recent evidence of his ignoring phone messages, emails, even a letter from another lawyer. That, too, is unprofessional.

My client was acquitted of all remaining charges at a second trial – despite Drumgold’s office having done its utmost to prevent our effective use of the text messages that the complainant had removed from her phone, and which gave the lie to a critical part of her story. 

Refuting Mr Drumgold’s complainant-centric approach to prosecutions is that my client, by chance, had kept the same messages on his phone. Thank god for young male sloppiness. This was discovered after the first trial and my letter to the director, so it added to the reasons why there should be no second trial. 

The acquittal result was foregone, but his office resisted the obvious to the bitter end, unconcerned both about the complainant’s dented credibility and the pointless damage to the defendant’s mental health, reputation and loss of job.

When tested, his leadership failed

Leaders are paid to lead. When they fail to lead then their entitlement to hold their position disappears. It was Mr Drumgold’s bad luck that when his leadership was tested by unusual circumstances surrounding a common sexual assault allegation he was unable to respond appropriately. Instead of consulting with others and following a careful, objective path he embraced a non-critical acceptance of a complainant and turned upon those who disagreed.

Criticising police for expressing their doubts, imagining political interference and failing to answer his correspondence are not the traits of a good leader. It was his task to work through the different perspectives, properly acknowledge the strengths and weaknesses, and to make a decision to prosecute or not that followed the guidelines and was free from distractions. 

When tested, his leadership failed. For that organisational reason he should step down from being director. 

The prosecution office needs a reset, something that is possible by appointing an outsider with broad criminal justice experience and the capacity to be a Minister of Justice.

As has been explained recently in “CityNews”, “statutory office holders”, such as the director, can be removed by parliament with no claim for any compensation.

The director might see the advantages to his office, his staff, the community and our criminal justice system from his voluntary resignation.

If that happens then the ACT government should consider an ex-gratia payment. 

That consideration should take account of the inquiry findings. However, we should also remember that he served our community for more than 20 years with diligence and commitment. We ought not to punish him for failing an unexpected test of leadership for which he was ill suited. 

He still has many years of useful service to give to the legal profession. I, for one, hope he does so.

All the “CityNews” coverage of the Sofronoff Inquiry, including Hugh Selby’s daily reviews, are here.

Game, set and match to Ms Chrysanthou