Shane Drumgold SC arrives for the Board of Inquiry in 2023. Photo: Albert McKnight.
A freedom of information request has resulted in the release of letters showing the ACT’s former top prosecutor, Shane Drumgold SC, asked Attorney-General Shane Rattenbury to redact parts of the Board of Inquiry’s report – a request that was denied.
Mr Drumgold resigned as DPP after the inquiry’s findings made his position untenable. He then launched legal action against the ACT Government, claiming inquiry chair Walter Sofronoff KC’s private communications with journalist Janet Albrechtsen gave rise to apprehended bias.
On 4 March 2024, the ACT Supreme Court found this was the case and ruled in favour of several of Mr Drumgold’s claims, although it rejected others.
Two days later, Mr Rattenbury told Region that despite this finding, Mr Drumgold’s position would still have been considered untenable by the government.
Mr Drumgold wrote to Mr Rattenbury about this article, and in the latter’s response on 14 March, he said his comments were “factual”.
“I had formed the view on or around 3 August 2023 that your position as DPP had become untenable, a conclusion with which you agreed in our conversation on 3 August,” Mr Rattenbury said.
“I had also formed the view that the findings made against you and other conduct, notably the public comments following the discontinuance of Mr Lehrmann’s prosecution, were of such seriousness as to warrant my consideration as to whether it amounted to misbehaviour sufficient to warrant your dismissal.
“The fact of your resignation was accepted. Other than seeking your views on the matters of concern, no steps were taken to progress any dismissal of you from the Office of DPP. No relevant decision of any nature was made. No findings of misconduct were made.”
After the trial of Bruce Lehrmann ended due to juror misconduct, in December 2022, Mr Drumgold addressed the media to say he would be discontinuing the prosecution.
Mr Lehrmann denied the allegations, but the Federal Court later found he had sexually assaulted Brittany Higgins on the balance of probabilities.
In Mr Rattenbury’s letter, he also said he was aware of media reports suggesting Mr Drumgold had said the government should “redact” the findings and comments in the inquiry’s report that were adverse to him.
Attorney-General Shane Rattenbury’s letter was released as part of a Freedom of Information request. Photo: Michelle Kroll.
“The report is a government record, and there is no proper basis for the ACT Government to interfere with that record,” Mr Rattenbury said.
“The events and litigation relating to Mr Lehrmann’s prosecution and the Board of Inquiry have been stressful for all involved, and I particularly recognise the impact it has had on you personally. I do hope you are going as well as you can in the circumstances.”
On 3 April, Mr Drumgold wrote a letter to the Attorney-General in which he noted that the period in which someone could appeal the Supreme Court’s decision had expired.
“In those circumstances, the time has arrived for your office to arrange the removal of all findings and comments adverse to me from all versions of the Sofronoff Report that are published by, and/or within the control of the government of the ACT,” he said.
“Any failure by the government to take such action would constitute the publication by the government of material that has been found in law to be affected by legal error.
“This, in turn, would cause me further harm that can be avoided by the government, something the government should do for the following reasons.”
After outlining his reasons, he said he had “no alternative but to respectfully demand” the redaction of sections of chapters 4, 5 and 6 from all published final Sofronoff Reports that were in the government’s control.
“Accordingly, not only are the adverse finding against me vitiated by a declaration of apprehended bias, having regards to the evidence before the judicial review, no reasonable person could have any confidence in the independence or credibility of Mr Sofronoff’s adverse findings against me,” Mr Drumgold also said.
When contacted for comment, an ACT Government spokesperson reiterated that the report is a government record and there is no proper basis for the government to interfere with that record.
“However, recognising the ACT Supreme Court’s decision in Drumgold v Board of Inquiry, the Justice and Community Safety Directorate webpage that contains the Board of Inquiry report was amended to refer to the Supreme Court’s decision with a link to the judgement,” they said.
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