“CityNews” legal columnist and former barrister HUGH SELBY has been commentating daily on the Sofronoff Inquiry’s public hearings, focusing on 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.

YOU and I, we’re voyeurs of a drama that has played out before us on livestream with elements of farce, tedium (lawyer scriptwriters lost the plot), drama and tragedy.

But the final act is yet to be written. Let’s help write the script here so that rather than just tears there are some flowers by the end of this coming week.

As scriptwriters making a pitch for our story to come true on stage, we must know and respect what our audiences want.

Our potential audiences are drawn from the witnesses, the teams of lawyers (being those who have asked questions and those working with them to prepare those questions) and the inquiry team.

Our pitch to them must pay due regard to the context in which those audiences are enveloped, what has been performed so far and can be performed next week and, finally, the search for the best outcome, which I will define here (using some words from the opening remarks of Commissioner Walter Sofronoff KC), to do no unnecessary harm. 

Context

Sofronoff’s job is set out in his terms of reference. They’re here. For our purposes they reduce to his examination and report upon the actions of the Director of Public Prosecutions Shane Drumgold SC, the defence, the police and the Victims of Crime Commissioner Heidi Yates, following Brittany Higgins’ complaint of being sexually assaulted.

Those terms define what is relevant to his inquiry. When he says, as he has more than once to different advocates: “How will that help me?” he is intimating that the question and any answer aren’t relevant to his job.

As scriptwriters there are two advocacy tools that are useful for our work. 

The first is “confess and avoid”. This was mentioned in an early article in this series. The witness is asked questions by their advocate that let them “fess up” to some failing. That done, the witness then explains it as favourably as they can, given the circumstances. 

The second tool is the “plea in mitigation”. This is an important part of any sentencing proceedings, whether that follows a plea of guilty or a finding of guilt after a hearing. In such a plea, the person is presenting all those facts and circumstances that lessen the seriousness, so mitigate what they did wrong. It can be presented by the witness or by their advocate.

These tools bring benefits to both the witness and the decision maker. The witness has the chance to offer an explanation, to show insight and contrition, and therefore that the necessary lesson or lessons have been learned.

The decision maker, having received that acceptance of responsibility by the witness, can temper the criticisms they must make, and express more confidence about the future.

So far it has been the police, and only them, who have used these tools in the witness box. Both Commander Michael Chew and Supt Scott Moller have said: “With hindsight, it would have been better if I…”

Performances

Commissioner Sofronoff elicits what he needs to know, which is different from what he might want to know. He knows the difference. He has been far and away the best questioner we have seen – not just for the content of his questions but also his personal style in asking questions. I’d call it reassuring, precision layered in content, laser like in delivery, transparent. There’s no waste, no unnecessary diversions. It’s keyhole surgery. There’s pain, but it’s minimised.

The counsel assisting trio have introduced each witness and then selected aspects of their evidence (drawing on a written witness statement and other documents) to develop key points. Their task is to be thorough, insightful, but scrupulously neutral. They must exhibit “no unnecessary harm”. They have succeeded.

Ms Sue Chrysanthou SC made brief appearances, but what she executed with the DPP was memorable. Her skill is pinpoint demolition. There’s blood but it’s nicely arranged, very tidy.

Ms Kate Richardson SC is not, as her natural hair would sometimes suggest, this way and that. When she is on her feet, whether that’s to make an objection or to ask questions, she knows what she wants and why she wants it. We also saw that she is able, as so many advocates cannot, to decide while on her feet to take a different path and to follow that path successfully.

Dr Peggy Dwyer and Ms Kirsten Edwards were the perfect choices as the “front women” for Ms Yates – “let’s have a cup of tea and the clouds will clear”. They demonstrate the pay off for thinking carefully when choosing an advocate. 

Witness and advocate are a team. A witness can be reflected in the advocate’s appearance and style. Ms Yates needed to build a persona before she got in the witness box. Through them she has, and it’s very likeable.

DPP Drumgold overlooked that factor. He chose the wrong kind of advocate for this battle. He chose a highly skilled, very successful former top prosecutor. Both he and his advocates are combative – a very useful attribute for some cases. 

What he needed for this inquiry though was someone with the experience of making “unnice” stuff look okay. That’s a consummate defence specialist. Sometimes one must recognise one’s enemy as one’s friend. 

Sometimes a friend becomes an unexpected impediment. That was starkly illustrated with the two attacks by his advocates, both failures, upon Insp Marcus Boorman for telling the defence advocate, while the jury was out, that if the jury convicted he would resign.

Given the timing of those attacks, and that they were via the questioning of his superior officers, they carry the characterisation of spite coupled with cowardice. Not a good look and so unnecessary.

Outcomes

It’s a part of Australian contemporary folklore that “there is no one section, it’s just the vibe of the thing”, the famous utterance in the courtroom scene in the film “The Castle” that coupled utter incompetence and beautiful insight in the one sentence.

The insight was that the atmospherics, the vibe, are important. Atmospherics are important to any case, along with the facts and the law.

We livestreamers have seen and heard the advocates and the witnesses. It’s human experience, not a law degree, that tells us who is floating and who is sinking. Anyone who has ever been a juror has that insight.

Using those amateur, but life-informed insights, who might benefit from “confess and avoid”? Who needs to think about being seen and heard to be contrite and better informed?

Victims of Crime Commissioner Yates knows there has been a lot of criticism of those photos of her assistance to Ms Higgins at the courthouse. That criticism is that jurors could too easily have formed the view that Ms Yates, a commissioner, believed the accused to be guilty. Such a view would be highly prejudicial to the accused. It defeats the aim of a fair trial. It erodes the presumption of innocence.

Whatever she thought at the time it would be foolish now to deny that those are reasonable concerns.

Her best option is to “confess and avoid”, a tool that she may have used in a statement already filed with the inquiry. If not, she might choose to use it in a statement that she files before her appearance as a witness next week.

Any such “confess and avoid” would focus upon the following: this is what I did at the time. In the months since I have reflected on what I did. I now realise that what I should have done and will do in the future is “such and such”.

A statement along those lines would be part of counsel assisting’s questions to her. It will shorten and cool down any cross examination of her. It will also make the commissioner’s task easier. That wins all round.

There has been mention that DPP Drumgold may give further evidence. If so, given that he has already given evidence and that he must know his position, what can he do for the status of his office, for the inquiry and for himself?

The answer is to make a plea in mitigation as follows: he can remind us of the heady tonic that was the uncritical praise for any self-proclaimed victim. He can share his commitment to bringing their wrongdoers to account. He can “fess up” to having let that commitment cloud the use of his training and experience to guide his decision making and conduct of a trial. 

He can be amazed that he sent that now notorious November 2022 letter to the head of ACT policing. 

He can apologise to those he wrongly thought were acting to thwart justice. 

He can shoulder the responsibility. He can resign. He can wish all those in the ODPP all the best. Finally, he can and should proclaim that he is a servant of the community and he will find new ways to serve.

ACT Legal Aid should join this Final Act. They need to come along and say: “We want to set the record straight. We want our community to know that we will uphold the values that underpin criminal defence work and those who practice there.”

Sure, this is just a script but it’s a just script. If all or some of it were performed during the public hearings, then the commissioner’s time and our money would have been well spent.

I’ve read that Walter Sofronoff has a Ferrari, a red one. I’d like to imagine that with people belatedly behaving well he has some unexpected spare time to buckle up and drive it on his favourite track. Before or after he drives he can take a drink from his favourite workshop mug, the one that has on the outside, “Do no unnecessary harm”.

Tears or flowers? Only tears? Tears and flowers? The choice of the vibe and content of the Final Act is theirs, but we have shown a way.

“CityNews” legal commentator and former barrister Hugh Selby has been writing running commentary on the Sofronoff Inquiry’s public hearings, focusing upon the advocacy and witness performances. The “CityNews” coverage of the inquiry, including his daily reviews, is here.

Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.