Beyond the daily news coverage, “CityNews” legal commentator and former barrister HUGH SELBY is commentating regularly on the Sofronoff Inquiry’s public hearings, focusing upon the advocacy and witness performances. 

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.

In appreciation

This week, like many readers, I have been following the livestream of the evidence in real time. 

On Friday I could do that for only part of the day. So late afternoon I went to the inquiry website to watch the stored file. It wasn’t there. Frustrated at the prospect of not being able to write the following article, I contacted one of the inquiry team, well after business hours, who immediately sent me a transcript because of technical glitches with the audio visual. That service reflects yet again the commitment of this inquiry team to engage the public.

The sum of small things…

“It’s the chance things that bring ruin to a witness. Sometimes one can look back at a trial and pick the point on which everything turned for a witness and the hearing outcome. It happened on Friday when the rest of us were eating lunch….”

AT the end of day four I ventured that we would be better informed by the end of day five. And so it came to pass.

Kate Richardson SC, advocate for the AFP, continued her attack on DPP Shane Drumgold’s written and spoken words. This reflected the clear and proper intention of “protecting” the AFP commissioner from a perceived attack upon him by Drumgold’s earlier evidence as to a possible “political conspiracy”. 

However, after four days of Mr Drumgold giving evidence, which has shown how his capacity for rational, considered decisions has been upended, I wondered why this form of cross was being used to address his “having a suspicion that there was a possibility (of political interference)” (as put to him by the Inquiry Commissioner Sofronoff).

The issue could be put to rest by these simple questions: “Did you have any hard evidence that the APF commissioner behaved improperly in the Higgins saga?” With the follow up: “Do you now have any hard evidence?”

Instead of that clarity there was a non-productive dance between cross-examiner and witness, akin to raking and re-raking the coals of a long dead, short-lived fire.

“Cross”, as we futilely tell young wanna-be advocates, “does not have to be cross”. The milk-and-honey approach can work wonders, particularly with a strung out witness – and who wouldn’t be after four days of being in the witness box? Witness fatigue is one of the reasons that the Commissioner Sofronoff called a short day on Friday.

But it’s futile advice because the advocate wants to show, has to show, her or his control. This is intellectual chest beating on parade.

For those who have been watching during the week, the commissioner always gets what he wants with just a couple of unhurried questions. Watch and learn, everyone.

What’s more the cross, as is so common, often failed to take up Mr Drumgold’s answers. It was being done in a rush (with too many long questions), without the necessary ingredient of some silence that would benefit both the cross-examiner, “Where do I need to go? Should I change course?” and for we observers to understand the import of his answers. An answer that is not absorbed by the advocate and the decision maker has no point. It lies unremarked on the transcript field.

Finally, the question was asked and Mr Drumgold said concisely and firmly “I have no concerns about a conspiracy. There was a police skills deficit.”

But still Ms Richardson persisted with her attack – to what end is unclear because it hasn’t been shared and the AFP commissioner has seen the end of any suggestion of impropriety by him. What this induced was the firmest, strongest language and tone from Mr Drumgold this week. He firmly said: “I am not making an allegation (of a conspiracy).” So we’ve had the desired result twice.

Commissioner Sofronoff pressed him on failing to make the concession earlier. Mr Drumgold said: “I answered the questions I was asked. If I went outside the question I’d be stopped.”

He was right about that. Too much questioning this week treated the DPP as though he was an errant “windbag” who needed to be told repeatedly to answer the question. The advocates may not like what he says, and we might find what he says surprising, but he was not evasive and he was not non-responsive. 

Ms Richardson kept trying to force him to say that he should have “added the addendum” of “I no longer think there was a conspiracy” to earlier answers that he gave. Despite what must be years of great success as a courtroom advocate, she was blind to her habits of cutting off the witness during his answer and being repetitive. How does that come about? Simple: absent a good mentor who takes an active interest by watching the advocate at work, or discusses their transcript, advocates don’t get timely feedback about their good, bad or indifferent habits. We find an approach that works and we use it, with all its faults, over and over again. It’s like wearing comfortable but ill-fitting clothes.

We were all taken back on to repetition road

Finally, Commissioner Sofronoff intervened and summed up the position of what had been done and not done from Monday’s start. Mr Drumgold said: “I agree with that.”

That was a line in the sand. It was all clear. That’s when as an advocate you can check progress by saying to the fact finder: “In light of that answer, I’ll move to another topic.” Did that happen? No. Instead we were all taken back on to repetition road for another trip to nowhere.

Ms Richardson’s questioning was interrupted by media celeb Lisa Wilkinson’s advocate, Sue Chrysanthou SC, who had the floor after morning tea. This is called “interposing”. Experienced advocates – such as you see in this inquiry – are happy to make “out of order” arrangements to help each other.

Ms Richardson will complete her cross-examination at some later time, not yet known.

Ms Chrysanthou’s questioning addressed three topics: first, the extent, if any, to which Ms Wilkinson wilfully gave her Logie speech in the knowledge that it would jeopardise the forthcoming criminal trial in 2022. After her speech, the trial had to be delayed for some months to allow the effects of her speech to dissipate. 

Second, whether a note prepared in the prosecution office, given to the defence, and used in court when the Chief Justice decided to delay the trial, misled the defence and the judge.

And, third, Mr Drumgold’s failure to respond to correspondence from a lawyer acting for media.

As to the second issue, the misleading aspect was that the note was called a proofing note. This is a note that is prepared immediately after a conference with a witness (in this case, Ms Wilkinson). However, that was done several days later and some further information was added to the note. These additions were about the then “speech if I win, that being most unlikely”. 

Mr Drumgold failed to tell the defence and the chief justice that it was later added material. Being added later, it does not have the reliability of the material composed at or right after the conference.

Chrysanthou made her focus immediately clear

Ms Chrysanthou made her focus immediately clear. She was exploring the extent to which Mr Drumgold’s conduct with respect to the use of the note was contrary to his duty of candour. Refreshingly she asked tight, short questions.

How I wish she had taken the direct route. Instead, we were taken on a meandering journey. That the note was “misleading” to any third parties was obvious. Proving that Mr Drumgold set out to deceive by the addition of material and not telling third party recipients that it had been added was always going to be a stretch. In the absence of another witness saying: “I was present when the director said we need to save our arses by putting more stuff in this note”, proof was impossible unless the director confessed – most unlikely, given his conduct since Monday. 

Ms Chrysanthou’s assumption that Mr Drumgold would, of course, be familiar with the Logies and its fanfare was hilarious. It’s the media junkie equivalent of the sports commentators who assume that the whole world holds their favourite players in awe. Reality check: it’s okay to be a career prosecutor and not turn your mind to a night of make believe. Watch the clip of Tom Gleeson (Hard Chat host) at the 2022 Logies as he brings everyone there down to his earth with his hilarious cuts and barbs about the Logie process.

This assumption by a very successful defamation lawyer that we are all caught up in the media was seen again when she queried Mr Drumgold’s failure to notice front page coverage of Ms Wilkinson’s Logies speech. The highlight was her question: “You didn’t walk past a newsagent and see big colour photos of my client?” Answer, “No”. Part of the assumption was that one can find a newsagent in Canberra these days. Another assumption was that if one saw such photos one would bother to notice.

Back to the first issue with a series of questions which set up contrary versions of what was said by Mr Drumgold and Ms Wilkinson at the proofing meeting. 

Neither Mr Drumgold nor his staff made contemporaneous notes of that exchange because it was not the role of that meeting. I don’t know whether Ms Wilkinson or her lawyer made immediate notes. I suspect not, because such notes, if made, would have been used by counsel assisting earlier this week. 

Moreover, as we do know, Ms Wilkinson had a lawyer with her at that meeting. Quite why it would be the prosecutor’s job to explain to a well-known media figure who comes with their own lawyer the law relating to “doing nothing that will impede a fair trial” escapes me. It would be quite different if the witness came alone, as any criminal law practitioner – be it prosecutor or defence – will give advice to that witness: button it up and publish nothing.

Ms Chrysanthou directed her attack toward the exchanges in court (when the impact of the speech was being discussed) among and between Mr Drumgold, the defence advocate, and the judge. Mr Drumgold didn’t roll over or even curl up. He responded: “…the words in the note, which I maintain are accurate, were… placing her [Ms Wilkinson] on notice. I don’t see any inaccuracy in that.” 

That victory was short-lived. Yet again it was the commissioner who gets to the heart of the matter (was Mr Drumgold candid or not?) with his insight that Mr Drumgold had failed to tell the judge (and the defence advocate) not only that the note was only partly contemporaneous, but that there was another note, made by Mr Drumgold’s assisting advocate, that was “significantly different”. Telling, very telling, and the commissioner  came back to it more than once.

It’s the chance things that bring ruin to a witness

It’s the chance things that bring ruin to a witness. Sometimes one can look back at a trial and pick the point on which everything turned for a witness and the hearing outcome. It happened on Friday when the rest of us were eating lunch.

Mr Drumgold said: “It’s just inattention. Just inattention. I mean, there’s a lot of emails and I’m not paying them all the same attention.” This was his explanation for failing to respond and follow through on a letter from a lawyer for a media company.

In isolation that’s not especially damaging. It might just show a lapse in attention or a poor system to manage correspondence. But it’s not in isolation. 

It was established during questioning by Ms Erin Longbottom KC, counsel assisting, on Monday, that Mr Drumgold failed to respond to correspondence from lawyers. Responding properly and in a timely manner to inquiries from fellow professionals is a basic professional obligation.

In a later article in this series I will share another example of how Mr Drumgold responds to a letter from another lawyer. “Inattention” and “being busy” won’t cut it.

As the commissioner said: “Mr Drumgold, I suspect Ms Chrysanthou will submit… that I should conclude that the reason why you didn’t respond to that letter, which contained statements of fact which you now say were inaccurate, and which contained criticisms of your office, which you now say are unjustified, and which record promises which according to the writer of the letter you made but then didn’t fulfil, she will submit that the reason you didn’t respond is that you could not respond because all of that was correct. Now, that’s one inference. And it’s an obvious one when somebody doesn’t respond to a letter of that character. What is your reason, giving evidence now, for failing to respond to a letter of that kind from a solicitor?”

To which Mr Drumgold replied: “I didn’t read that it called for a response.”

Game, set, match to Ms Chrysanthou.

All the “CityNews” coverage of the Sofronoff Inquiry, including Hugh Selby’s daily reviews, are here. In particular, below are links to Selby’s coverage this week. 

Failed leadership, that’s why Drumgold has to go

Dear Director, about that letter to the police chief…

Principles bent by the DPP’s ‘decision prism’

DPP nicely in control, until the commissioner dumped

Drumgold faces up to the Sofronoff inquiry

Author’s notes on his inquiry commentary 

A well-run public inquiry is like an iceberg: what you see at the public hearing is just the tip of a much larger “work in progress”.

For some months the inquiry staff have been interviewing people and collecting records. All that information is then available to the inquiry advocates (counsel assisting), ammunition to fire or soothing lotion to apply when asking a witness questions.

Woe betide the witness who, waiting for the questions, sees only the counsel assisting. This is not a one-on-one contest: counsel assisting is just the public face of concerted team work.

In recent public inquiries into, for example, the suicide of our Defence Forces’ veterans, or victims of institutionally based sexual predators, the “soothing” element has been a focus with those witnesses who were victims or victim’s relatives.

But among those witnesses who might have strayed and who might be publicly exposed, “hope” springs eternal until it’s too late even to save some dignity. Even when they know what is in the advocate’s gun they hope for a misfire. One must first deceive oneself before deceiving others. 

For any witness there is the added problem that the commissioner can ask as many questions as they like. This does not happen in court proceedings where the judge is seen but little heard. 

At any moment the commissioner may intervene in the to and fro between witness and advocate. Here one can see how the public interest is served by appointing as commissioner someone who was a skilled advocate earlier in their career.

My bad dream, even in retirement, is being a witness at a public inquiry who is being led gently or pushed ruthlessly by counsel assisting, and then suddenly being engaged by a commissioner who knows how to cross-examine. 

Cross-examination is an art, reflecting at least two of the following: innate temperament, experience, and good mentoring. Above all else it is manipulative. It suggests the inevitable conclusion to the listener without stating it. The listener takes themself to the finish line. As a witness, to fight on two fronts against well provisioned, skilled opponents is a nightmare.

All that being noted we must keep in mind that the commissioner opened the public hearings with this significant comment: Nobody should be harmed unnecessarily. 

–HUGH SELBY