UPDATED: Shane Drumgold succeeds on bias claims against Board of Inquiry's Walter Sofronoff

UPDATED, 5 pm: The Board of Inquiry’s recommendations “remain undisturbed” by the decision in Shane Drumgold’s legal fight against the inquiry, the government says.

“The government is considering the terms of Acting Justice Kaye’s decision and will make no comment at this time,” an ACT Government spokesperson said on Monday afternoon after the decision had been announced.

“We observe, however, that the report’s findings in relation to other persons and the recommendations in relation to the criminal justice system remain undisturbed.”

4 pm: The former head of the DPP says he is “delighted” with the result of his legal fight against the Board of Inquiry, after the judge ruled in his favour on several of his claims.

“I am delighted with the court’s decision today, and I am looking forward to moving on with my life,” Shane Drumgold SC said.

A statement from Mr Drumgold was subsequently made to Region:

“The assertion that only some of Mr Sofronoff’s findings and comments were invalidated by the judgment of Justice Kay has been disputed by Drumgold himself, as well as leading Australian lawyers such as Geoffrey Watson SC, former counsel assisting the NSW ICAC and Director of the Centre for Public Integrity, who wrote:

“Every finding adverse to Drumgold was made in the absence of a fair hearing. Because of Kaye’s findings, nothing said by Sofronoff retains validity. The report should never have been published- but that decision was denied the ACT government when Sofronoff gave a copy to Albrechtsen days before he gave it to the chief minister.”

Mr Watson SC was further quoted: “Once the judge has made the finding that it was a biased hearing, he did not need to go on to consider the additional grounds…What the judge did was make contingency findings in the event that his own finding of bias on the part of Sofronoff was set aside by an appeal court.” *

3 pm: Walter Sofronoff KC’s communications with The Australian’s journalist Janet Albrechtsen during the Board of Inquiry (BOI) did give rise to a reasonable apprehension of bias against Shane Drumgold SC, a judge has found.

The former ACT Director of Public Prosecutions was not in the ACT Supreme Court in person to hear Acting Justice Stephen Kaye support several of his claims on Monday (4 March), although the judge also rejected others.

His success in the case follows an announcement earlier that same day that the ACT Government had reached a $90,000 settlement with Senator Linda Reynolds after she claimed Mr Drumgold had made defamatory comments against her.

Mr Drumgold had launched his civil fight, asking for either the report by BOI chair Mr Sofronoff, which was released after the inquiry into the prosecution of Bruce Lehrmann, or the decisions it made in respect to him to be declared invalid or unlawful.

When the hearings began in court last month, his lawyers focused on the communications between Mr Sofronoff and Ms Albrechtsen. There had apparently been 273 communications between the pair from 22 February to 2 August 2023.

Mr Drumgold’s team spent most of the first day of the hearings looking at the communications, while during the second, the court heard the journalist had been the “most persistent” of those who contacted him and the chair hadn’t given her any “preferential treatment”.

The third day heard it alleged that a text between the pair demonstrated “familiarity”.

Acting Justice Kaye did not announce his reasons in full when he handed down his decision on Monday, although he said they would be published in the future.

But he found Mr Sofronoff’s conduct had given rise to a reasonable apprehension of bias. He said the communications between the chair and Ms Albrechtsen before and during the inquiry were such that a fair-minded observer might have thought that he may have been influenced by the journalist’s views on Mr Drumgold.

Mr Drumgold also claimed that eight findings by Mr Sofronoff in his report were legally unreasonable.

Acting Justice Kaye said Mr Drumgold failed in establishing that this was the case for seven of the findings but had succeeded for one.

He said Mr Sofronoff’s finding that Mr Drumgold had engaged in grossly unethical conduct when cross-examining Senator Reynolds was legally unreasonable.

Lastly, Mr Drumgold claimed that Mr Sofronoff had failed to give him natural justice for three findings.

Acting Justice Kaye said Mr Drumgold failed on two of these claims but again succeeded on one. This was on a finding the chair had made about a statement Mr Drumgold gave to the Chief of Police regarding a freedom of information request.

The acting justice said granting declaratory relief for Mr Drumgold was appropriate.

The matter was stood down to discuss the issue of costs. Acting Justice Kaye said it should be up to the ACT Government to pay the costs.

Mr Drumgold resigned as DPP after findings in the BOI report made his position untenable. The 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. His charge has been dropped.

*Updated on 14 March to include statement.