Shane Drumgold is without a doubt the biggest loser in Walter Sofronoff’s report on what went wrong during the Brittany Higgins rape trial. But he might not be alone.

The next biggest loser might turn out to be the ACT government – which was already on notice that the contents of this report would determine whether it would be hit with a damages bill worth millions of dollars.

That warning was issued last week by Bruce Lehrmann, the man who had been prosecuted in the now abandoned rape trial.
Lehrmann, who has denied any wrongdoing, said he would sue if Sofronoff found that Drumgold acted with malice or breached his duties either as ACT Director of Public Prosecutions or as an officer of the court.

Those conditions seem to based on the exceptions to the statutory immunity from liability that is granted to the DPP under section 33A of the Director of Public Prosecutions Act.

This provision means that if the DPP acted in good faith, he would be immune from liability for acts done or omitted in the performance of his duty.

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Based on what has been reported in this newspaper by Janet Albrechtsen and Stephen Rice, there does not appear to be a finding of malice in Sofranoff’s report.

So did Drumgold breach his duties as DPP and an officer of the court?

The Australian’s report says Sofronoff found that Drumgold engaged in serious malpractice and grossly unethical conduct, had failed to disclose information to Lehrmann’s lawyers that might have helped his defence, had preyed on a junior lawyer’s inexperience and had betrayed that junior lawyer’s trust.

Because the Sofronoff report has not been officially released by the ACT government, there are limits on what can be said about the consequences of its findings without running into the law of defamation.

But what can be said is that the ACT government needs to abandon its original strategy of keeping this report secret until the end of the month while it considered whether to redact any passages that had legal implications.

That would have placed Lehrmann at a disadvantage. His litigation threat would have been placed on hold while the government would have been free to prepare a response at its leisure.

There was also a risk, implicit in the government’s explanation, that the suppression of key parts of the report might have continued beyond this month.

In explaining his position, Chief Minister Andrew Barr said he intended to table all or part of the report during August – subject to any legal implications.

Whoever leaked the full report to Albrechtsen and Rice acted in the public interest.

This person deprived the government of the ability to decide what the community should be told about the problems that afflicted the Lehrmann prosecution.

The most important issues are, by definition, those with legal implications and that seems to be exactly what the ACT government was considering keeping to itself.

The material that has been made public in The Australian is incredibly significant. It seems likely that Drumgold will lose his job.

Other possible consequences will require a detailed response from the government and the public release of this report so it can be examined by interested parties such as the ACT Bar Association.

The option of selective suppression is no longer on the table.

If the Sofranoff report does trigger a compensation claim from Lehrmann, the government might face a some uncomfortable questions from ACT taxpayers.

They would be justified in seeking an explanation for how Drumgold managed to become the territory’s top prosecutor when his appointment marked such a sharp departure from normal practice.

He had worked in the Office of the DPP for 17 years before his 2019 appointment. Yet he only took silk and the rank of senior counsel when he was appointed to the top job.

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 11 years after taking silk.

So compared to his interstate counterparts, Drumgold was – and is – a relative newcomer to the top ranks of the legal profession.

After Sofronoff’s report was leaked to this newspaper, it is clear that he cannot survive as the territory’s top prosecutor.

At this point it is important to keep in mind that Sofronoff’s inquiry was not governed by the rules of evidence that would apply in a court and his findings, while devastating, are no more than unproven accusations.

Drumgold, just like Lehrmann, is entitled to a presumption of innocence.

It is also worth considering just how far this man has fallen since February 3, 2020, when he delivered an address at a dinner in the High Court for newly admitted silks.

This is what he said: “Despite its long, complex evolution, the significance of the institution of silk has not diminished, and the values it embodies remain just as important today as at any time in history.

“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.

“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 said.