28 September 2023

180,000 documents held after Board of Inquiry report, Drumgold's legal fight hears

| Albert McKnight
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man and woman in legal robes

Prosecutor Skye Jerome leaves court with Shane Drumgold SC. Photo: Albert McKnight.

Shane Drumgold SC’s fight against the Board of Inquiry (BOI) has been set down for 2024, while a court has also heard the government has 180,000 documents after the inquiry’s report was delivered.

The former Director of Public Prosecutions is asking the ACT Supreme Court to declare that Walter Sofronoff’s report, released after the inquiry into the prosecution of Bruce Lehrmann, or the decisions made in respect to him, are either “invalid and of no effect” or “unlawful”.

The BOI and the ACT Government are the defendants in the proceedings, and while both have filed statements saying they intend to respond, their defences have not been released.

On Thursday (28 September), Registrar Jayne Reece listed the matter for a hearing on 12 and 13 February 2024.

Earlier this month, the court heard Chief Justice Lucy McCallum had decided it was not appropriate for any of the resident judges to hear the case, and she had asked the Supreme Court of Victoria if one of its judges could determine the matter.

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On Thursday, Registrar Reece told the court this acting judge, Stephen Kaye, had not yet been appointed but expected it to happen in the next couple of weeks.

The court also heard a discussion around the disclosure of documents to the legal parties, the process for which was disputed.

The registrar ultimately sided with Brendan Lim and Kate Eastman SC, the BOI and the government’s barristers, respectively, saying theirs was the more efficient method.

She said about 180,000 documents were in the custody of Chief Minister Andrew Barr after the BOI report had been delivered.

She thought if she proceeded the way Mr Drumgold’s barrister, Dan O’Gorman SC, had proposed, it would likely delay the matter.

In the proceedings, Mr Drumgold is seeking costs as well as any other order the court thinks is appropriate, along with a declaration that the report is “invalid”.

In amended court documents, he has claimed the Board of Inquiry failed to accord him “natural justice”, that some of the report’s findings were “legally unreasonable”, and some fell outside the inquiry’s terms of reference.

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Mr Drumgold resigned as DPP in the wake of the Sofronoff Report findings after his position was deemed untenable.

These findings included that he directed “a junior lawyer in his office to make a misleading affidavit”, “preyed on the junior lawyer’s inexperience”, “egregiously abused his authority and betrayed the trust of his young staff member”, “deliberately advanced a false claim of legal professional privilege” and “knowingly lied to the chief justice”.

Mr Lehrmann pleaded not guilty and no findings have been made against him.

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An enquiry on top of an enquiry? Best out of 3? Who is paying? Give it up and save the ACT Government more embarrassment!

There was only one inquiry not 3.
This article relates to the court proceeding that arose from that inquiry and papers relating to it.

Drumgold acted improperly and he resigned because he was found to have acted improperly by Sofronoff. The only reason this is being revisited is because the ACT Government wished the findings not to be published until they could hopefully put their spin on it. The full report was then leaked. That’s a plus for democracy by the way, not a minus.

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