'We have not changed our view': Former DPP's position still untenable despite Supreme Court findings

Former ACT Director of Public Prosecutions Shane Drumgold SC’s position would still have been found untenable in light of his comments following the mistrial of Bruce Lehrmann.

Mr Drumgold resigned as DPP after findings in the Board of Inquiry report made his position untenable.

He then launched legal action against the ACT Government, claiming inquiry chair Walter Sofronoff KC’s private communications with The Australian journalist Janet Albrechtsen gave rise to apprehended bias.

An acting judge for the ACT Supreme Court on Monday (4 March) found this was the case, outlining that his decision mainly came down to those interactions.

Despite this finding, the Attorney-General said Mr Drumgold’s position would still have been considered untenable by the ACT Government.

“Through the course of the Board of Inquiry, we saw Mr Drumgold retract a series of statements that he’d made, he changed his view on a number of matters, and so that collection of things is that basis on which the government formed the view that Mr Drumgold’s position was untenable,” Mr Rattenbury said.

“These findings do not change that … and we have not changed our view on that.”

Mr Rattenbury insisted the rest of Mr Sofronoff’s findings could be trusted, as one segment had been findings and considerations on people involved in the process, while the other was more about the justice system itself.

“He also made a series of systemic-related findings [and] they stand, in the government’s view, by themselves. They are quite practically orientated. The government has accepted all of those recommendations and has been getting on with implementing them,” he said.

“The government’s view is those [recommendations] are not changed by the findings of the Supreme Court … which very much go to Mr Sofronoff’s commentary on Mr Drumgold.”

The ACT Government has already successfully implemented one of the nine recommendations, with the rest agreed to.

The other findings made by the Board of Inquiry, including those in relation to ACT Policing and the Victim of Crimes Commissioner, were not altered by the court’s decision.

When the Board of Inquiry was announced, the ACT sought someone from outside the Territory who was highly regarded and had extensive experience to head it up.

Given that Mr. Sofronoff had successfully headed up other inquiries, he “fit the bill”.

In hindsight, Mr Rattenbury said it may be the case that more than one member would be appointed to any future Board of Inquiries.

He also said the government was “frustrated” by the ongoing litigation this issue seemed to give rise to, including the cost to ACT taxpayers.

“I don’t think anybody expected that we would find ourselves in the circumstances we now find ourselves in,” he said.

“This is far from ideal.”

This includes a $90,000 payout to Senator Linda Reynolds for defamatory comments made about her by Mr Drumgold in a letter to the ACT Policing Chief Police Officer.

However, Mr Rattenbury felt the inquiry was still worth it to identify issues that needed fixing in the criminal justice system, especially for cases of alleged sexual assault.

“What the inquiry has done is publicly air a number of matters … and it has given us a series of practical recommendations which we will implement and will improve the system.”

When it was first revealed that Mr Sofronoff had provided a copy of the Board of Inquiry report to Ms Albrechtsen and the ABC before the government released it, the Chief Minister flagged that the government was seeking legal advice.

Mr Rattenbury would not confirm if these options were still being considered or had been dropped.

“I think you’ll appreciate, given the propensity of people involved in this matter to start defamation proceedings, my inclination is to keep my remarks pretty limited,” he said.

“I would like to see the end of these matters. I do hope there is not further litigation but that remains in the hands of other parties at this point in time.”

Reports have suggested Mr Lehrmann is considering legal action against the ACT Government.

The Territory has been ordered to pay Mr Drumgold’s costs, which remain to be seen.

Ms Albrechtsen has penned an opinion piece stating Mr Drumgold’s legal challenge was “another own goal”, as seven of the eight findings against him in the BOI report still stand.

“Drumgold got an order for costs, but he didn’t get his reputation back,” she wrote.

“The wider, deeper fallout from Drumgold’s admissions is not over. Was Drumgold a rogue operator, or did his conduct reflect a far deeper cultural problem within the Office of the DPP in the ACT?

“We don’t know the answer.”