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Brittany Higgins prosecutor bites the dust

By Bettina Arndt - posted Monday, 7 August 2023

Thursday was a red-letter day for Bruce Lehrmann, who had the pleasure of seeing Shane Drumgold, the prosecutor who made his life hell for much of last year, publicly shredded in the brilliant report from Walter Sofronoff KC, who headed up the ACT inquiry into the handling of his case. Disgracefully, the ACT government had chosen to sit on the report since it was submitted last week but Sofronoff ensured it found its way into the hands of journalists at The Australian, Janet Albrechtsen and Stephen Rice – as well as the ABC, which did nothing with it for that first day.

Boy, did The Australian go to town, quoting huge slabs of the 600-page report, detailing Sofronoff's conclusions about Drumgold's unprofessional behaviour. Their summary: "ACT chief prosecutor Shane Drumgold knowingly lied to the Supreme Court, engaged in serious malpractice and grossly unethical conduct, 'preyed on a junior lawyer's inexperience', betrayed that junior lawyer who trusted him, and treated criminal litigation as 'a poker game in which a prosecutor can hide the cards.'"

That was clearly music to Bruce Lehrmann's ears, as he explained to me that morning, sharing his relief at having his suspicions about the behaviour of the DPP confirmed in the report.


Sofronoff's forensic analysis of Drumgold's wrong-doing is masterful, providing all the evidence the ACT government needs to ditch him and perhaps even support criminal charges against him, but also ample fuel for Bruce Lehrmann's multi-million compensation claim against the ACT Office of the Director of Public Prosecutions, which senior lawyers now see as likely to be successful.

It was unfortunate that Sofronoff clearly felt constrained by the narrow terms of reference. There's no sign in the published extracts so far that he has addressed the critical issue I spelt out in my recent blog – namely the feminist capture of the justice system which has removed any real role for police in determining which rape cases go to trial. And he let Heidi Yates totally off the hook, claiming the Victims of Crime Commissioner was simply doing her job, ignoring the way she overstepped her role to manipulate the Higgins case as part of her broader goal of remaking the way the justice system handles sexual assault.

It may be relevant that Yates has the backing of the ACT government, which gave her breathtaking powers under the ACT Victims of Crime Act to trample over the rights of accused persons. She was also re-appointed to her position just when the inquiry looking into her behaviour was underway.

Equally maddening is Sofronoff's statement that Drumgold was correct to proceed with the prosecution of Lehrmann. This makes no sense, given that the Commissioner praised the "thorough" efforts of police resulting in a "sound case" – which concluded there was not sufficient evidence to charge. The inquiry revealed how the police were eventually forced to change their position by a zealous DPP, supported by an ACT government keen to showcase this case for blatant political purposes.

The fact is the police investigation initially concluded the evidence wasn't there for Lehrmann to face trial. "Is it seriously being argued that the views of the people who actually interview complainants and defendants, are irrelevant in deciding whether to charge?" asks Con Differding, a retired Melbourne criminal lawyer and law lecturer, who questions "whether it is logical to suggest that if people with intimate knowledge of the facts of a case believe that a complainant is lying about a claim of rape, it would still be possible for 12 objective jurors to be satisfied of the truth of that claim beyond reasonable doubt."

It's a very telling point and it is inexplicable that it would have escaped a lawyer of Walter Sofronoff's calibre. Now we are faced with Samantha Maiden and the rest of the Brittany Higgins cheer-squad gloating that the inquiry had concluded it was right to charge Lehrmann. It does my head in.


It was also concerning that Sofronoff appears to have unquestioningly accepted Drumgold's claim that he called off the trial due to Higgins' mental health. I've written before about the legitimacy of the claim about Higgins' mental health – given that she's now apparently capable of holding down all sorts of prestigious positions – but it appears there was another very plausible explanation for calling off the trial. Many in the legal fraternity were aware, through an earlier Albrechtsen article, of an application made to the court that day by Lehrmann's lawyers, details of which have been suppressed by the Chief Justice. If this application had reached the High Court it is highly likely that it would have exposed Drumgold to precisely the public humiliation and disgrace which has now resulted from the inquiry.

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Those criticisms aside, the Sofronoff report provides a masterclass to lawyers by spelling out the critical need for prosecutors to "act with fairness and detachment.'

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This article was first published on Bettina Arndt.

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Bettina Arndt is a social commentator.

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