The ACT Government has been informed of a “significant factual inaccuracy” in the Sofronoff Report, which appears to have relied on a news article in The Australian rather than legal documents.
The discovery comes as it’s been revealed the ACT’s outgoing DPP, Shane Drumgold, will take legal action against the ACT Government.
In the Legislative Assembly on Tuesday (29 August), Attorney-General Shane Rattenbury tabled a letter he received from the NSW Director of Public Prosecutions, Sally Dowling SC, earlier in the month.
The letter drew Mr Rattenbury’s attention to an error in the report made by Walter Sofronoff KC. He made reference to a NSW Supreme Court case, where he stated a judge had ordered a “permanent stay of proceedings”.
Mr Sofronoff had referred to the NSW case as an example of a potential problem when the “evidence gives rise to a potential for an attack upon the credibility of a crucial witness”.
His report stated the NSW judge had ordered the stay of proceedings “because, in her opinion, the principal Crown witness was such a ‘serial liar and fabricator of evidence … that police refused to continue taking statements from him’.
“This was a case in which a prosecutor ought to have concluded that the case was not just weak: it was a case in which there was no reasonable prospect of success because of the unanswerable problem of credibility of the crucial witness.”
The source of the above quote was footnoted in the report as coming from an article in The Australian on 14 July 2023.
However, Ms Dowling, the NSW DPP, stated in her letter to the ACT Government this was an incorrect representation of what had occurred in the case.
Mr Rattenbury said the case had, in fact, been discontinued by the prosecution prior to the court ever hearing an application for a permanent stay. No order for a permanent stay of proceedings was ever made.
“Ms Dowling summarises that ‘the quotation that appears in the Report, which is purported to be the opinion of the presiding NSW Supreme Court judge about the principal Crown witness, appears to be drawn from the first paragraph of the news article.’,” Mr Rattenbury said.
“‘That paragraph paraphrases the views of the Australian Federal Police and is not attributed to the presiding judge.’
“Ms Dowling concludes that, ‘In my view, this matter is not an example of a failure by the prosecution to identify a case where there was no reasonable prospect of conviction because of the “unanswerable problem of credibility of the crucial witness” as suggested by the report.'”
Chief Minister Andrew Barr also informed the Legislative Assembly about former DPP Shane Drumgold’s intended legal proceedings in relation to the “content” of the report. Mr Drumgold resigned after his position was found to be “untenable” following discussions with Mr Rattenbury.
Legal proceedings have not yet been served on the Territory.
“Accordingly, it is not appropriate for me to make further comment in relation to the findings of and processes associated with the report and its release,” he said.
Bruce Lehrmann has also previously signalled his intention to sue the ACT Government.
An ACT Government spokesperson said it had not received any “official correspondence” from Mr Lehrmann at this time.
Mr Sofronoff has also been accused of breaking the law by the Chief Minister.
Mr Barr said Mr Sofronoff’s decision to give the Board of Inquiry report to select media outlets before its release – and one of these before even the government had received it – was a breach of the Inquiries Act 1991.
It’s still unclear whether the ACT Government will pursue Mr Sofronoff for this breach.
“The government is seeking advice on the release of the report to the media,” the spokesperson said.
The Board of Inquiry hearings had been undertaken by Walter Sofronoff KC to examine the effectiveness of the ACT’s criminal justice systems in the wake of the mistrial of Mr Lehrmann.
He was accused of sexually assaulting Brittany Higgins in Parliament House. Mr Lehrmann has maintained his innocence and no findings have been made against him.