Communications between Walter Sofronoff KC and journalist Janet Albrechtsen have come under the spotlight as Shane Drumgold SC’s lawyers argue they show the Board of Inquiry’s chair “poisoned his mind” against their client before the inquiry’s hearings had even started.
The hearings for the former ACT Director of Public Prosecutions’ legal fight against the inquiry began in the ACT Supreme Court on Tuesday (13 February).
Mr Drumgold wants either Mr Sofronoff’s report, 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, and he is focusing on his claims that the BOI chair’s conduct gave rise to a reasonable apprehension of bias.
The inquiry’s public hearings ran from 8 May to 1 June 2023.
Barrister Dan O’Gorman SC, representing Mr Drumgold, began his arguments by raising texts between Mr Sofronoff and The Australian’s Ms Albrechtsen on 6 May 2023 regarding statements from two witnesses, Mr Drumgold’s junior and solicitor. The BOI’s chair had sent these statements to the journalist.
“What a thing to do to two young professionals under your mentorship,” Mr Sofronoff wrote.
Mr O’Gorman said that summarised his client’s case, claiming it “shows that he had made up his mind prior to Mr Drumgold getting into the witness box in this matter”.
“It’s a statement that ‘I consider what occurred here is terrible’. It shows that Mr Sofronoff had poisoned his mind in relation to Mr Drumgold … before Mr Drumgold even got into the witness box,” he alleged.
He said Mr Sofronoff gave Ms Albrechtsen drafts of his report on the inquiry, including drafts that had notations down the margins. He also gave her the final report on the same day as Chief Minister Andrew Barr.
No other journalist had been extended this privilege, the barrister said.
“What is special about Ms Albrechtsen?” Mr O’Gorman said.
Mr O’Gorman said records showed that from 9 February to 2 August 2023, Mr Sofronoff had 91 calls with journalists. Of these, 72 were with The Australian and 51 of those were with Ms Albrechtson.
These 91 calls took up 13 hours and 36 minutes, of which 11 hours and 27 minutes were spent with The Australian.
Over the three days right before the inquiry’s public hearings began, which included the two days of a weekend, there were 37 communications between Mr Sofronoff and Ms Albrechtsen.
Then while the hearings were taking place, Mr Sofronoff made nine calls to The Australian, of which eight were to Ms Albrechtsen.
Mr O’Gorman said there were 273 communications between the chair and the journalist between 22 February and 2 August, although not all were of any great importance.
For instance, Ms Albrechtsen texted him on 22 February to say that The Australian journalist Hedley Thomas had given her his phone number and was hoping to chat with him. The next day, Mr Sofronoff replied, “I’m free any time”.
When she texted him a question on 3 April, he replied, “Good question, thanks for alerting me to that point”, and told her it was “truly a pleasure to engage”.
On 17 April, she texted to ask if she could report on a particular application for the inquiry. He called her later that day for an 18-minute 32-second discussion.
Mr O’Gorman said not all communications were initiated by Ms Albrechtsen. Many were initiated by Mr Sofronoff and he alleged she had purported to assist him in his job during the inquiry.
For instance, on 19 May, she texted to say it appeared the DPP had only passed three attachments relating to a prosecutor’s statement onto the defence.
Mr O’Gorman also claimed a “disturbing feature” of their contact was that on eight occasions, Mr Sofronoff used an email address that was different from others. He suggested this showed the pair had some conversations that were intended “to never see the light of day”.
Also, the barrister said Ms Albrechtsen flew to Brisbane to take Mr Sofronoff to lunch on 31 March 2023.
Mr Sofronoff had issued guidelines about how contact between the media and the BOI should take place and Mr O’Gorman alleged “he didn’t even adhere to his own guidelines”.
Mr O’Gorman alleged this occurred in the context of The Australian, and Ms Albrechtsen, in particular, publishing articles that were adverse to Mr Drumgold from November 2022, articles that cast him in a negative light or were “nasty”.
At the same time, Ms Albrechtsen was publishing articles that cast Mr Lehrmann in a positive light, the barrister claimed. She had also sent Mr Lehrmann’s contact details to Mr Sofronoff on 20 April.
“Ms Albrechtsen was anti-Drumgold, but she was pro-Lehrmann defence,” Mr O’Gorman claimed.
“What Mr Drumgold alleges is that Mr Sofronoff’s association with Ms Albrechtsen in particular might be thought by the fair-minded observer to have possibly diverted Mr Sofronoff from deciding the issues on their terms of merit.”
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.
The hearings are expected to run until Thursday (15 February).