Drumgold cleared
Monday, October 14, 2024 SCOOP ... Merits findings by the ACT Bar Council ... Complaints against former DPP Shane Drumgold unlikely to amount to professional misconduct or unprofessional conduct ... Major year-long investigation assisted by Hicksons ... Further blow to adverse findings by Sofronoff and fatwah against Drumgold by The Australian
Drumgold: professional conduct vindicated
The ACT Bar Association has found that there is no evidence to support findings of professional misconduct or unsatisfactory conduct against former territory DPP Shane Drumgold.
On its own motion the Bar launched an investigation into 11 grounds arising from the DPP's conduct connected with the prosecution of Bruce Lehrmann for rape.
The Bar's inquiry was prompted by the findings of the Sofronoff inquiry.
The fact that none of Sofronoff's findings would support adverse professional conduct charges against Drumgold, further undermines the work of the Board of Inquiry - which in a judicial review judgment by Acting Justice Stephen Kaye had already been found to be infected by bias.
See Sofronoff's Board of Inquiry Findings
See Acting Justice Kaye's findings
It also shoots a broad hole in the anti-Drumgold campaign launched by The Australian.
The Bar Council commissioned the law firm Hicksons to conduct a 12 month investigation. Hicksons has long acted for the Bar Council of NSW in professional misconduct and unprofessional conduct cases against barristers.
The key conduct issues reviewed by the law firm included that the DPP: knowingly misled the ACT Chief Justice about a "contemporaneous" note; advanced a claim of legal professional privilege in relation to police documents without a proper basis; procured a false or misleading affidavit from a junior ODPP staff member; improperly cross-examined Senator Linda Reynolds in the Lehrmann trial; improperly submitted in closing submissions that "strong political forces" were at play in the case; informed a journalist from The Guardian about his letter to the Chief of the ACT Police containing sensitive allegations concerning pressure not to take the Lehrmann case to trial.
Another ground - that Drumgold provided false evidence to the Sofronoff inquiry - was withdrawn.
In all there were 10 grounds that did not support the reasonable likelihood of findings that Drumgold was guilty of professional misconduct or unprofessional conduct.
Acting Justice Kaye in the judicial review case was limited to examining whether the Board of Inquiry's processes were lawful.
Drumgold says that the Bar Council's investigation is the first occasion the merits of Sofronoff's inquiry have been examined.
In May 2024 the ACT Integrity Commissioner announced that he reasonably suspected Sofronoff's conduct in prematurely releasing the report to Janet Albrechtsen of The Australian constitutes corrupt conduct. An investigation is underway.
Since then, as a result of Justinian's successful application to the ACT Supreme Court for the release of further documents from the judicial review case, the extent of the personal and compliant Albrechtsen-Sofronoff interaction was far more comprehensive than initially understood.
See Tootsies with Planet Janet
It has also come to light that ACT police detective Trent Madders, who led the Lehrmann investigation, has been charged in relation to a different matter with aggravated perjury, concealing evidence, and perverting the course of justice.
Bar Council findings
False statement to the court that a file note was contemporaneous
The issue before the Supreme Court was whether a stay of Lehrmann's trial should be granted in light of Lisa Wilkinson's prejudicial Logies speech.
Wilkinson: Logies speech - clutching an irrestible celebrity moment
Drumgold's contention that he believed that there were notes taken of the meeting with Wilkinson contemporaneously by his instructor Mitchell Greig. This is supported by Greig's statement which describes contemporaneous note taking until the point that he closed his laptop.
There is no suggestion that Drumgold misled the Court in relation to what was said to Ms Wilkinson about being cautious in regard to any pre-trial publicity and the likelihood that the defence would apply for a stay.
What was recorded in the exhibit is consistent with the recollection of Network Ten counsel Marlia Saunders and Drumgold, and formed the basis for the Chief Justice's findings.
Misleading statement to the court concerning legal professional privilege attached to documents from the ACT police
This concerned two disclosure documents sent to the ODPP by Detective Superintendent Moller of the ACT Police. The second of these two disclosure documents should have been sent to the defence and not to the DPP.
The DPP advised that the two documents were privileged, however it later emerged that the police intended the documents to be for internal briefings, evidentiary reviews and other issues.
The ACT Bar Council said that the "vice in Drumgold's conduct" was not to sort out what documents were captured by the label of "Investigative Review" or otherwise identified by the AFP as documents obtainable under subpoena.
"Whilst inquiries of the AFP were made, the responses were themselves not always clear, and the issue of the conflicting versions of the disclosure certificates was never clarified."
Other pressures and distractions "may have impacted on [the DPP's] capacity to ensure that he clearly understood the questions being asked on him by the AFP".
"This conduct is conduct that could amount to unsatisfactory professional conduct, because it could be conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. However, that is not the conduct that is identified in Ground Three, and therefore, Bar Council cannot be satisfied that there is a reasonable likelihood that the ACAT would find Drumgold guilty of either unsatisfactory professional conduct or professional misconduct in relation to Ground Three."
Procured a false or misleading statement from a junior member of staff
The Bar Council was not satisfied that an affidavit sworn by the instructor Mitchell Greig was intended to be false or misleading. The statements by Greig in the affidavit are consistent with Drumgold's understanding (although mistaken) that the Investigative Review Document was in fact the document prepared for and provided to the DPP for the purpose of legal advice" - and so subject to privilege.
Questions to Senator Linda Reynolds during the Lehrmann trial
Reynolds - with the partner who observed from the back of the court
This concerned the DPP's questions to Reynolds about her partner sitting in the back of the court seeking to discover what Brittany Higgins said, and requests for transcripts form defence counsel.
These were not unreasonable questions to Reynolds, and they did not breach the barristers' rules because they did not amount to allegations of criminality, fraud or other serious misconduct.
The complaint also encompassed the DPP's remarks in closing submissions at the rape trial:
"Suffice to say that there were clearly strong political forces at play in the period immediately after the events through the election and beyond. These forces, I submit to you, were at play through the almost two years that she worked with Senator Cash and it is abundantly clear from the evidence and actions of Senator Reynolds during this trial that those political forces were still a factor."
No injection was made at the trial by either the CJ or defence counsel and so there were no prospect of a finding of professional misconduct.
The DPP informed a journalist about a letter to the ACT Police Chief containing sensitive allegations
This was the letter in which Drumgold alleged that the policed tried to derail the Lehrmann changes, urging the prosecutor not to proceed to trial.
An article subsequently appeared in The Australian with the headline, Cops doubted Higgins but case was political - suggesting that Drumgold had engaged in misconduct by pressuring the police to charge Lehrmann in an otherwise unmeritorious case and that he was under political pressure to do so.
The Guardian's Christopher Knaus rang Drumgold seeking a comment and in that context the DPP revealed that he had written to the chief of police in the ACT.
"At its highest the evidence only permits a conclusion that Drumgold responded ill advisedly, and possibly without thinking through the consequences. In those circumstances, Bar Council is not satisfied in the circumstances of the events that Drumgold’s conduct in telling the journalist of the existence of the letter, on its own, would amount to unsatisfactory professional conduct ..."
Providing false evidence to the Sofronoff inquiry
This ground was withdrawn because there was a privilege against self-incrimination at the Board of Inquiry and therefore none of the Drumgold's evidence to Sofronoff can be used against him.
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The findings are a significant vindication for Drumgold who intends to join the Bar in Sydney and Brisbane and practice as a criminal defence counsel.
ACT Bar Council's reasons for decision
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