Walter Sofronoff called Shane Drumgold's lawyer 'boring' during Board of Inquiry

The messages between Walter Sofronoff KC and The Australian’s journalist Janet Albrechtsen included him saying that the senior lawyer Shane Drumgold SC had obtained for the Board of Inquiry (BOI) was “boring”.

The ACT Supreme Court’s Acting Justice Stephen Kaye outlined how he came to his decision in Mr Drumgold’s legal fight against the inquiry when he released his 143-page judgement on Monday afternoon (4 March).

He had already ruled in favour of several of Mr Drumgold’s claims, although he rejected others. However, he said it was appropriate to grant declaratory relief and that the ACT Government must pay most of the former ACT Director of Public Prosecution’s legal costs.

He had found that BOI chair Mr Sofronoff’s communications with Ms Albrechtsen gave rise to a reasonable apprehension of bias and a fair-minded observer might have thought he may have been influenced by the journalist’s views on Mr Drumgold.

Between 9 February and 2 August 2023, Mr Sofronoff had 91 telephone calls with journalists, totalling 13 hours and 37 minutes. However, 51 of those calls were with Ms Albrechtsen – lasting for six hours and 19 minutes – and 22 were with The Australian’s Hedley Thomas.

Two hours and 10 minutes were spent on the phone with all the other journalists.

Meanwhile, Mr Drumgold claimed The Australian, and Ms Albrechtsen in particular, frequently reported on him in an “adverse manner”.

He argued that between 17 November 2022 and 11 August 2023, the newspaper published more than 60 articles that damaged his character while also publishing articles that were favourable to Bruce Lehrmann.

Acting Justice Kaye said it was clear Ms Albrechtsen “consistently expressed views that were particularly critical” of Mr Drumgold’s decision to begin the criminal proceedings against Mr Lehrmann, as well as his conduct of those proceedings.

He said he had not been shown any articles by Ms Albrechtsen “which were supportive of the plaintiff’s conduct of the prosecution, or which in any way countered the criticisms of the plaintiff, that were reported in her articles”.

The acting justice also said that when Mr Sofronoff met Ms Albrechtsen, he’d been told she had published articles “that were very much adverse” to Mr Drumgold.

He said the volume of communications between the pair was substantially greater than what Mr Sofronoff had with all other members of the media.

“[The] fair-minded observer would consider it significant that Ms Albrechtsen communicated with Mr Sofronoff on so many occasions, in circumstances in which other members of the media were adhering to the protocols to which I have referred,” Acting Justice Stephen Kaye said.

“Further, the frequency with which the communications took place would have raised an apprehension, on behalf of the fair-minded observer, that the content of them might well have gone beyond requests by Ms Albrechtsen for information.”

In February 2023, Mr Thomas introduced Mr Sofronoff to Ms Albrechtsen. The pair had lunch together in Brisbane on 31 March “in order that he could make her acquaintance”, Acting Justice Kaye said.

He did meet with two other journalists, the ABC’s Elizabeth Byrne and News.com.au’s Samantha Maiden, around the same time.

On 3 April, Ms Albrechtsen suggested to Mr Sofronoff that the courts could review the conduct of the prosecutor in a claim for malicious prosecution.

“Good question. Thanks for alerting me to that point,” he replied.

The next day, she messaged him about a suppressed court application and suggested it might assist the BOI “to shed some light on why the DPP decided to drop charges”.

On 23 May, Ms Albrechtsen asked if she was permitted to know what happened during the closed sections of the inquiry.

“I’ll send you the transcript in the morning. Boring Tedeschi,” Mr Sofronoff replied.

Mark Tedeschi KC was Mr Drumgold’s senior counsel during the inquiry.

“The comment went beyond conveying information to a journalist but indicated that he felt comfortable to express such a view about counsel to Ms Albrechtsen, particularly counsel who was appearing for the plaintiff,” Acting Justice Kaye said.

He noted Mr Sofronoff had not actually sent the transcript to her.

On 25 July, Ms Albrechtsen asked if he would give her a copy of the final report under an embargo. He gave her a draft version on 28 July and the final copy on 30 July.

He gave it to Brittany Higgins’ solicitor that day as well, handed the final report to Chief Minister Andrew Barr on 31 July, and then gave an embargoed copy to Ms Byrne on 2 August.

“Mr Sofronoff said that he would have provided a copy of the report to any journalist whom he trusted,” Acting Justice Kaye said.

The chair said that during the inquiry, he spoke with several journalists who called him occasionally, but Ms Albrechtsen was the one he had the most contact with because she was the most persistent.

He also said he communicated with and gave documents to her when she requested them to ensure she was accurately informed and would be better able to appreciate the inquiry’s real issues.

The Australian published an article on the contents of the final report on 3 August, after Ms Albrechtsen had called Mr Sofronoff the previous evening to say her team had obtained it from another source.

Also that day, Attorney-General Shane Rattenbury told Mr Drumgold that he thought his position as DPP was untenable and the latter agreed to resign.

Mr Drumgold’s success in his case on Monday 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.

The BOI had been held into the prosecution of Mr Lehrmann, who pleaded not guilty and no findings have been made against him. His charge has been dropped.