Shane Drumgold KC has done the right thing. He deserves credit for taking four weeks’ leave as Director of Public Prosecutions of the ACT. He would deserve more credit if he never returned.
If he remains the territory’s top prosecutor, there is a risk that criminal justice will suffer.
The evidence before Walter Sofronoff’s inquiry into the handling of the Bruce Lehrmann rape trial shows Drumgold sits at the centre of a network of dysfunctional professional relationships.
The DPP’s relationships with the courts and the police are essential if the justice system is to work. But consider what has come to light at this inquiry.
On the AFP, Drumgold has backflipped on his assertion – made without evidence – that it was “possible if not probable” that political pressure had been brought to bear on AFP commissioner Reece Kershaw to prevent Lehrmann being charged with raping Brittany Higgins.
His own counsel, Mark Tedeschi, KC, has told Sofronoff that the AFP had a “bizarre” approach to whether Lehrmann should be charged; and the attitude of police towards Drumgold was one of “resentment”.
On the courts, Drumgold has admitted he misled Chief Justice Lucy McCallum. The question of whether this was intentional is irrelevant.
Even if he apologises to the court – and that needs to happen – how much weight could the Supreme Court place on future submissions from this DPP?
Consider what happened: Drumgold presented the court with a note of a conversation with journalist Lisa Wilkinson that he said was contemporaneous. It was not. An addendum had been inserted on his instructions.
McCallum relied on that note and issued a judgment criticising Wilkinson for giving a speech praising Higgins that led to a stay of Lehrmann’s trial.
Contemporaneous notes are more reliable than reconstructions. So thanks to Drumgold’s actions, the factual basis for McCallum’s criticism of Wilkinson must now be in doubt.
McCallum’s judgment says Drumgold issued a “clear and appropriate warning” to Wilkinson. Yet did he?
It is beyond dispute that Wilkinson made a speech praising Higgins that led to a stay.
But what is now in doubt, because of Drumgold’s actions, is what the DPP actually told Wilkinson before she delivered that speech.
Sofronoff has before him a letter to Drumgold from Beverley McGarvey, chief content office and executive vice-president of Paramount, Wilkinson’s ultimate employer.
That letter was written on the day of McCallum’s judgment. It says: “Neither Ms Wilkinson nor the Network Ten senior legal counsel present at the conference with the DPP on 15 June, 2022 understood that they had been cautioned that Ms Wilkinson giving an acceptance speech at the Logie awards could result in an application being made to the court to vacate the trial date. Had they understood that a specific warning had been given, Ms Wilkinson would not have given the speech.”
These are just some of the problems that have emerged in the DPP’s professional relationships with others in the criminal justice system.
They have presented Shane Rattenbury, the territory’s Attorney-General, with a diabolical problem.
The AG has political responsibility for the fairness and effectiveness of the criminal justice system. So when does that duty require him to act?
To some, it might seem fair to allow Drumgold to remain in office until Sofranoff weighs the accusations against him, and assesses his explanations.
Sacking Drumgold now, without waiting for Sofronoff’s report, would leave Rattenbury exposed to criticism for failing to act fairly – which is exactly the same failure that ran through the Lehrmann prosecution.
But how fair would it be to victims of crime and those accused of crime to leave Drumgold in place? That would also expose the Attorney-General to criticism.
Drumgold’s own testimony shows he accepts that he made errors during the Lehrmann prosecution, misled the court and did not consider matters that should have been considered.
Something had to be done. And it could be that Rattenbury is more subtle than some might credit.
Last Friday, Rattenbury declined an invitation to express confidence in Drumgold. This could have put the DPP on notice that it was time to fall on his sword.
Four weeks leave is not a solution. But it will provide a breathing space for Rattenbury and will give Drumgold time to reflect and consider his position.
He will have plenty of time to ponder what sort of report he is likely to face when Sofranoff completes this inquiry.
To that end, he might wish to refer to Sofranoff’s remarks in April, 2017, when he was welcomed to the bench as a judge of the Supreme Court of Queensland and president of the Court of Appeal.
Sofranoff referred to the principles that attracted his father and other refugees from Russia’s Bolshevik revolution to this country.
He referred to the fact that the legislature, the courts and the executive consisted of people acting instinctively in accordance with the rule of law.
This is what many refugees strive for “and that’s what I strive for”.
“We believe in rules that are rational and knowable, in rules that apply to everyone equally.
“In short we believe in fair play. And we believe in repelling any kind of corruption or distortion of our institutions that would pervert the conduct of the people who constitute those institutions …
“We in this country are so deeply committed to these beliefs that any tampering with the integrity of the foundations of our civil society by anyone, in any way, draws immediate outrage from within the institutions and from the people themselves,” Sofranoff said.
