Brittany Higgins prosecutor bites the dust

Sensational conclusions from the ACT inquiry are good news for Bruce Lehrmann

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.  

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.’

Drumgold provides an object lesson in the many and varied ways a prosecutor can fail to carry out that duty. But Sofronoff pays particularly attention to Drumgold’s “serious breach of duty” by failing to comply with the “golden rule” of disclosure that sits at the heart of a fair criminal trial.

For Bruce Lehrmann there’s a certain irony in knowing that for all Drumgold’s unseemly zeal to put him behind bars, it was the prosecutor’s bumbling inappropriate behaviour which stopped that happening. Drumgold’s failure to prevent Lisa Wilkinson from delivering her Logies speech led to the postponement of the trial which allowed the defence to gain access to vital police information about Higgins’ evidence - which probably kept him out of prison.  

Sofronoff is convinced that even if that had happened, that would not have been Lehrmann’s ultimate fate. He wrote: “Had the defence, by their professionalism and persistence, not obtained [the police documents] despite the improper obstruction they faced, and had the documents come to light after a conviction, in my opinion, the conviction would have been set aside on the ground of a miscarriage of justice.”

Maybe, and then again, maybe not. Having learnt from Bruce Lehrmann about the mighty struggle he faced as a broke man trying to find the right lawyers to defend him in the criminal case, it’s a glib assumption that, if he had ended up in prison, he would have managed to find a legal team willing to put together such a complex appeal. And every time he goes near a court, it costs significant sums, even with pro bono lawyers.

This is a man embroiled in one of the most sensational rape cases this country has seen, and still none of this is easy. Spare a thought for the ordinary men who end up in prison as a result of the other Drumgolds within our criminal justice system – zealous prosecutors willing to trample over all those legal principles demanding fairness, disclosure of exculpatory evidence, protection of the rights of the accused.

According to The Australian, the Legal Aid NSW Criminal Law Conference this week ran a survey asking the audience, which comprised mostly experienced criminal lawyers and some prosecutors and barristers, how frequently does the prosecution fail to comply with its duty of disclosure in criminal proceedings in NSW?

Of about 300 lawyers there, 93 per cent of participants said the prosecution failed to comply with its disclosure obligations in NSW either routinely or frequently. The Australian article quoted senior legal figures saying prosecutors consistently fail to comply with disclosure rules and other essential requirements for fair trials.  

My files are bulging with such cases but perhaps the most relevant involves Sara Jane Parkinson, who went to prison for malicious false allegations of rape and violence against her former fiancé, Dan Jones. You may have seen the special Sixty Minutes feature celebrating this exceedingly rare event - a woman actually being punished for faking rape and violence accusations. Dan’s mother Michelle tells the family’s story on the Mothers of Sons website here.

Dan Jones ended up in prison as a result of his former fiancé Sara Jane Parkingson making 32 false allegations of rape and violence to punish him for breaking off his engagement after discovering she was having an affair with a NSW policeman. It’s an extraordinary tale involving Parkingson’s crooked cop boyfriend and his NSW police buddies staging a rape crime scene and doing everything they could to destroy Dan and his family. Dan was imprisoned purely on the basis of these false allegations; and it took five years and over $400,000 in legal fees to get Dan out of prison and finally get Parkingson imprisoned.  

It turns out the man driving this whole fiasco was Shane Drumgold’s predecessor, Jon White, another DPP with a reputation for bending the rules to ensure prosecution of a rape case. White pushed ahead with all 32 charges despite being informed on at least three occasions by another senior prosecutor that there was no evidence to support the case. Even after excellent work by a female detective proved Dan had been framed and he was released from prison, it took another year for White to drop the charges and he asked for a surety of $200,000 when Dan wanted to move back to WA. A female judge was scathing about White’s request and set the surety at $200.

The damage to this family as a result of this malicious prosecution was immense, with Dan’s parents ending up divorced after spending all their savings trying to save their son. When I first broke the story by interviewing Dan Jones on YouTube four years ago, many of my supporters wrote to the ACT government seeking an ex gratia payment for malicious prosecution. The Jones family has met with the ACT Attorney General, and written complaints to the ACT Ombudsman and the Commonwealth Ombudsman - all to no avail. If calls for a re-examination of ACT sexual assault cases meet with success, we must ensure the Jones case is included, given that Drumgold’s predecessor behaved equally badly.

Brittany Higgins welcomed the ACT inquiry, posting on Instagram that “daylight is the best disinfectant”. She clearly didn’t foresee this harsh light would further expose the lack of evidence supporting her rape allegations and take out her good mate Shane Drumgold. There’s much to celebrate in the public examination of the ideological zeal driving our prosecutors- hopefully this scrutiny will extend to the systematic undermining of the rights of men accused of sexual assault. Drumgold’s wrongdoing is not an anomaly in the system, rather a natural consequence of the decision to let ideologues run the show.