Watching Shane Drumgold KC explain himself this week to Walter Sofronoff KC has been like witnessing a fatal car crash.
It’s tragic and bloody but you cannot turn away.
Drumgold’s concessions and admissions before Sofronoff’s board of inquiry must raise doubts about whether he can survive as Director of Public Prosecutions for the ACT.
Most importantly, he has been accused of making false statements to ACT Chief Justice Lucy McCallum.
His fate now depends on what Sofronoff makes of his responses and whether he concludes that the DPP breached his duties when he commenced, continued and then discontinued the case against Lehrmann.
It is important to keep in mind that this inquiry is not a court. Drumgold is not on trial. But it is still hard to see how he could retain office if Sofronoff accepts that he made false statements to the Chief Justice.
It would mean the territory’s top prosecutor had failed to adhere to the high standards for silks that he set just three years ago. An adverse report would also raise questions about the wisdom of appointing a top prosecutor who took silk just four years ago – the same year in which he was appointed DPP.
For the sake of comparison, the DPP in NSW, Sally Dowling SC, took silk eight years before making it to the top job. In Victoria, Kerri Judd KC was appointed DPP eleven years after taking silk.
This, however, is just one of the striking aspects of the Drumgold’s career.
In February 2020, when he appeared before the High Court with other new silks to take their “bows”, Drumgold was introduced by Steven Whybrow – the barrister who is now his nemesis.
Whybrow, who acted for Lehrmann during the criminal proceedings, has made a submission to Sofronoff that accuses Drumgold of a series of failings, including withholding a police report that should have been disclosed.
But in 2020 Whybrow was president of the ACT Bar Association and told the High Court: “May it please the court, I inform the court that the following member of the Bar here present has been appointed as senior counsel in the Australian Capital Territory. He is Neville Shane Drumgold”
Drumgold later addressed a dinner for new silks and made a speech about professional standards that was described as “inspirational” in Bar News, the NSW Bar Association journal.
He set a standard for professional conduct that might eventually come back to haunt him.
“Being labelled silk must weigh heavy upon our shoulders. We must carry the burden of being labelled learned by, at all times, displaying learned qualities,” he said. “We set the standards of skill, of integrity, of honesty. In us, the independence of our role must be on display every day. Our diligence must be worthy of our new standing.
“We must be worthy beacons, because those in our profession today and those who will join our profession in the coming decades will wish to emulate us, and the standards we set,” Drumgold told that dinner.
Sofronoff’s report will go a long way towards dealing with the criticism of the ACT’s justice system that arose after the Lehrmann prosecution was abandoned.
But his report, no matter how comprehensive, cannot provide an answer to the other big issue in the Brittany Higgins affair.
Sofronoff’s terms of reference, which were drawn up by the ACT government, are not broad enough to allow him to examine the circumstances surrounding the Albanese government’s payout to Higgins.
But those circumstances would be within the core jurisdiction of the new National Anti-Corruption Commission which is due to begin operations next month.
That payout to Higgins was made without any finding of wrongdoing against anyone.
It was also made without the involvement of former Liberal ministers Linda Reynolds and Michaelia Cash, who had been accused of wrongdoing by Higgins during Lehrmann’s trial.
The Albanese government threatened to tear up an agreement to pay their legal fees and costs unless they agreed not to attend a mediation session that led to the Higgins payout.
Their views were not heard.
That incident now needs to be viewed in the context of what Sofronoff makes of Whybrow’s submission that says Higgins had been allowed to make allegations about Reynolds and Cash that were fabrications.
The submission says Whybrow was never told about a witness who had complained to Drumgold about a “misrepresentation” by Higgins on the witness stand.
The Whybrow submission says that witness’s evidence would have contradicted the claims Higgins had made about Reynolds and Cash.
If Sofronoff accepts that submission, and rejects Drumgold’s explanation, it would mean that claims about Reynolds and Cash that emerged during the failed criminal proceedings would need to be seen in an entirely new light.
The question that would then need to be answered is whether this affected the decision by the Albanese government to pay a sum of money to Higgins to settle her claim against the Commonwealth.
Even if that episode played no role in the settlement, an independent inquiry should determine why Higgins walked away with taxpayers’ money when there was no finding of wrongdoing against anyone.
Was this payout affected by financial coercion by persons unknown? Or was it based on evidence in court that should have been contradicted?
The NACC is due to start operations on July 1. Sofronoff is due to report on July 31.
