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.

WATCHING and listening as the DPP, Shane Drumgold SC, was questioned for a second day, my mind wandered to a beachside summer scene.

It’s a blue sky, friendly seas, surfers waiting for the right wave, when suddenly and unexpectedly there’s a dumper that throws surfers off their boards, has small children yelling, parents running… short-lived chaos before the deceptive tranquillity returns. 

The unexpected makes everyone wary for a while.

The DPP was on his board today. Sometimes he looked rather more stressed than yesterday. At other times – mostly in the afternoon – he looked nicely in control, except when the commissioner dumped.

There were several occasions. It was not pretty. As happened on Monday, Erin Longbottom, counsel assisting (CA), did not share with the witness or the audience what topic she was pursuing. 

To continue the seaside theme, the questioning was often piecemeal as to aim, so much so that the direction of the tide – coming in or going out for the DPP – was unclear until the commissioner pursued a focused line of questions. 

Early in the morning the DPP conceded that when giving some advice about documents he made an error in overlooking a specific document. It seemed that the CA didn’t appreciate that concession because the DPP had to repeat his admission too many times.

The commissioner found it hard to accept that a barrister (which the DPP is) when asked to give advice about documents does not look at each document. Forceful dump here.

Thereafter the commissioner gave the first of some useful tutorials – such as I would have appreciated early in my career – about legal issues. 

First, he dissected the requirements for a client to make a claim of “do not show to others” communications to their lawyer (known as client legal privilege or legal privilege). 

Importantly, a document that, when created, does not attract privilege does not change its character and become “privileged” (and so hidden from other parties) by being included in a bundle of documents sent by the client police to the lawyer DPP office.

Telling tutorial from the commissioner

This was followed by a telling tutorial on what is required of someone who makes a sworn statement claiming to “having been told something (which is then set out) and believing it to be true”. The author must include from whom/where the information came and why the source was credible.

It was telling that this tutorial arose because the DPP had relied in court upon an affidavit by a DPP staffer that did not disclose that the source of the information was the DPP. 

As the DPP was the in-court advocate the impression was that he was making a submission based on someone else’s evidence when, in fact, it was his own. The affidavit was misleading. It should not have been filed. Painful dump.

There were yet more questions about a document to which it seems there will be frequent reference, that being a review written by the superintendent in charge of the police investigation of Brittany Higgins’ allegations. 

That review contained passages that the DPP found irrelevant, or inadmissible as evidence for some other legal reason. The DPP saw no reason to give a copy to the defence. The content was, thought the DPP, “crushing to the complainant” ( Ms Higgins). The police apparently did give a copy to the defence. 

However, as the commissioner pointed out, the fact that a document might be inadmissible as evidence does not entail that it should not be disclosed to the defence. The information might open up a proper line of inquiry by the defence as it prepares for trial. Forceful dump again.

The questioning then moved to another topic, that being the DPP response to wrongful disclosure of parts of Ms Higgins’ medical history to the Defence lawyers. 

The police made the error. Thereafter the defence lawyers returned the material without reading it. The police action in sending material to the defence prior to the usual “checks and balances” undertaken by police and the DPP office was unusual. We will hear more about why and how this happened.

DPP admits to ‘perusing’ document 

Meantime, the DPP admitted that he had “perused, as distinct from reading” the wrongfully disclosed medical material. This led to a telling exchange between the commissioner and the DPP. The commissioner noted that by looking at those wrongfully supplied documents the DPP had “knowledge” which the defence did not have. 

What then would happen if, at the trial, some evidence came out that was inconsistent with the knowledge that the DPP now had? 

The DPP could not reveal that knowledge to the defence because such disclosure is prohibited. On the other hand the defence was being misled. 

The unanswerable question became: “If you as DPP and trial prosecutor looked at this material, does it follow that you should have disqualified yourself from running the trial?” Later in the day, when this topic was revisited, the DPP was firm that he had seen nothing that would have caused him to consider his disqualification. Rather than a dump this was a dangerous undertow of unknown strength.

Then followed a series of questions about the process typically followed by police and the DPP in charging a defendant and the decisions along the way to trial. 

This was a topic on which the DPP is expert: it’s the bread and butter of his work. Once again the DPP expressed his concerns about the police approach.

All of this information was essential to the commissioner’s task of advising about the best approach to these issues for the future.

The CA then moved from the “typical” to the specific actions taken in the management of the Higgins matter. Specifically, the DPP was concerned that the police may have fallen prey to “confirmation bias”, namely starting off with a view (negative to Ms Higgins) and maintaining that as a guiding principle during their inquiries. 

On Tuesday the amalgam nature of CA questioning, that it is a mix of traditional chief and cross, was explained. 

That makes it surprising that the CA hasn’t attempted to follow the guideline of “Never be nasty in your questions until you have exhausted the benefits of being nice”. 

The information given about “template” prosecution practice by the DPP on Tuesday afternoon could have been gained effortlessly on Monday, along with any other relevant information where the DPP’s skillset could be of real use to the inquiry.

On Tuesday afternoon the commissioner repeated his need for assistance from witnesses and advocates in formulating what should happen in the decision-making process to charge and to go or not go to trial. 

Any witness who has been dumped on is, surprise, a little less enthusiastic about helping than when they were in clear water with good prospects.

It’s quite reasonable to say to a witness: “These are the topics I will question you about. On these I expect our exchanges to be friendly. However, when we move later to such and such I want to let you know that I expect some unpleasant moments. So let’s start with…” That’s professional, effective and fair.

To sum up Tuesday

• The DPP performed well when describing the template process followed from charge to trial;

• The DPP was in trouble over his approach to disclosure decisions, an affidavit used by him in court, and his ‘looking at’ medical records that the police had wrongly released;

• The CA failed to share with the witness and livestream viewers the question topic agenda for the day. This left us needlessly in the dark; and,

• For those of us who savour precision cross-examination, what the commissioner does – even while it skewers the witness – is exquisite.

DPP potentially broke the law to protect Higgins

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