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ANGE:

From Schwartz Media, I’m Ange McCormack. This is 7am.

It was an inquiry meant to get to the bottom of how the trial of Bruce Lehrmann had to be abandoned, and its goal was to improve the justice system and how it handles sexual assault cases.

Instead, the inquiry itself has descended into a debacle.

The man who brought on the report, the Director of Public Prosecutions Shane Drummgold, has resigned.

Meanwhile, the head of the inquiry, Walter Sofronoff KC, was talking to journalists the entire time he was running the inquiry, and then handed the report to them before the government.

Today, Chief Political Correspondent for The Saturday Paper Karen Middleton, on how an inquiry that was meant to restore faith, ended up doing so much damage.

It’s Wednesday, August 9.

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ANGE:

Karen, you've been reporting on the fallout from the Brittany Higgins allegations since they first emerged. Can you tell me about how you've seen this become something that's really been prosecuted in the media?

KAREN:

Yeah, Ange, it's actually been prosecuted in the media from the very beginning. So if you remember, Brittany Higgins had initial conversations with police after the alleged incident back in 2019, but decided not to go ahead with pressing charges. Then in 2021, she decided she did want to pursue charges and had reinitiated contact with police. But she chose to go to the media, against their advice, before she gave an interview or sat down in detail with them. So that set the tone, I guess, for media engagement. And it's interesting because the report we now have from the board of inquiry into how the whole case was handled goes very directly to that point, because it affected the way police viewed her as a complainant and her credibility. And they questioned her motivation. And that clearly influenced the way they thought about the prospects of a conviction, and whether or not there should be a charge laid at all. So the media initiation was absolutely crucial to the whole case and how it played out. And of course, the fact that it was in the political domain at Parliament House, was also significant. And that was a big part of why Brittany Higgins made the decision in the first place, because she took the view that she was unlikely to get justice, if she just went through the criminal justice system, because she believed there were political considerations that would make it hard for her to get justice. And of course, ironically, neither she, nor the man she accused, Bruce Lehrmann, who has denied the allegation of rape against him, have ended up getting justice, in any way at all.

ANGE:

Right. And the inquiry into the trial of Bruce Lehrmann was released on Monday by the ACT government. And, in a move that kind of feels on brand at this stage, details of the report were being published by The Australian newspaper before the Government even had a chance to look at it. What do we know about how that happened?

KAREN:

Well, in fact, we know that Walter Sofronoff KC, the chairman of the Board of Inquiry, his obligations under the ACT Inquiries Act were to provide the report to Chief Minister Andrew Barr, and then the Government is given a month, under the legislation, to consider how it wants to respond to contact those who may have adverse findings, and then to publish the report and publish its response. But he actually gave that report to the columnist, Janet Albrechtsen at The Australian newspaper, before he even gave it to the ACT Government. He then gave it to the ABC a couple of days later than that. Mr. Sofronoff has told the ACT Government that he gave it to those journalists on an embargoed basis, and they weren't meant to publish it until Andrew Barr had published it as Chief Minister. And of course, that did not occur. So this report came out last week in an unauthorised manner and eventually, on Monday, the ACT Chief Minister Andrew Barr, called a news conference with his Attorney-General, Shane Rattenbury, beside him, to formally publish the report as required under the Inquiries Act.

Archival tape – Andrew Barr:

“As has been reported, the government was advised late last week that the board chair, Mr. Sofronoff, chose to provide the report to two media organisations under embargo.”

KAREN:

And he made it very clear just how angry he was that his hand had been forced in this way, and how unfair he felt it was to all the parties involved.

Archival tape – Andrew Barr:

“In one instance, this occurred prior to me receiving the report, as required under the legislation. This was not authorised by me, or by anyone else, in the ACT Government. And I remain extremely disappointed that this has occurred.”

KAREN:

And he's now examining whether offences have been committed, in relation to the release of this report and the manner that that happened.

Archival tape – Andrew Barr:

“Now the government has now sought advice on whether the premature release of the report constitutes a breach of the Inquiries Act, and what further action is required.”

KAREN:

And Andrew Barr is now considering firstly, whether further action needs to be taken about the contents of the report and secondly, whether action needs to be taken against Mr. Sofronoff for the way it came out, and whether it may need to go to an ACT Integrity Commission inquiry, which would be an inquiry into the inquiry.

ANGE:

Right. And Karen, do we have any idea why Walter Sofronoff thought that he could, or should, share this report with the media? Like, why did he think this was a good idea?

KAREN:

Well, Andrew Barr was asking exactly the same question. He wrote a letter to Mr. Sofronoff after the report was released.

Archival tape – Andrew Barr:

“Mr. Sofronoff has confirmed to me, in writing, that he provided a copy of the report to a newspaper columnist and a broadcast journalist. He goes on to say that in furnishing copies on this basis, it was limited to two journalists. Each of these were professionals, who he judged would not take the serious step of betraying his trust by behaving unprofessionally.”

KAREN:

And that he had not only selected a columnist that he felt was trustworthy to give this report to, and a broadcast journalist from the ABC, but revealed that he'd been having conversations with selected journalists throughout the inquiry.

Archival tape – Andrew Barr:

“Mr. Sofronoff confirms that he, quote, sometimes told journalists what appeared to him to be the issues that would arise on the following day's hearings.”

KAREN:

Andrew Barr seemed to be astonished at that revelation. He has not detailed the specifics, beyond that of what Mr. Sofronoff said to him in that letter. But he did say that Mr. Sofronoff had not offered an apology for his approach, and he doesn't seem to say why he thought it was appropriate to release that report to one journalist before he'd even given it to the government itself.

Archival tape – Andrew Barr:

“I think he had a view that the reporting might be more accurate, if journalists were provided copies in advance. But he placed his faith in a particular individual, and that faith proved to be massively misplaced. To huge consequences for everyone.”

KAREN:

Now The Australian newspaper is insisting it had a second source for the report, and that it didn’t break an embargo. That was put to Mr Barr at his news conference, and he chose to use a popular culture reference, to suggest very firmly that he didn’t believe them.

Archival tape – Reporter 1:

“Do you accept the explanation from the Australian that they received it through another means and therefore didn’t break an embargo? What’s your view of that explanation?”

Archival tape – Andrew Barr:

“I am reminded of the film Muriel’s Wedding, and when Bill Heslop says Dierdre Chambers what a coincidence, what a coincidence indeed.”

ANGE:

And Karen, the chief minister clearly isn't happy here. So what consequences will there be, if any, for Sofronoff?

KAREN:

Well, this is the interesting question. The Chief Minister is taking legal advice now, on what his options might be. He has made it very clear that he doesn't think that there should be no consequences, for the early release of this document, either by Mr. Sofronoff or by The Australian newspaper and then subsequently by the ABC.

Archival tape – Andrew Barr:

“He breached his good faith to me, by releasing that report ahead of giving it to who was meant to under the legislation case.”

Archival tape – Reporter 2:

“And if that's the case, would you like to see him charged?”

Archival tape – Andrew Barr:

“Well, we are considering our options, as I’ve outlined…”

KAREN:

So the question really is, what are the options? He points to the Inquiries Act, the ACT legislation under which he set up the inquiry, and it says quite clearly that Mr. Sofronoff was required to provide his report first to the ACT Government. Now that clearly hasn't occurred. That could well mean that he faces some kind of charge.

And then there's this issue about the further inquiry. And Mr. Barr sounded like he wasn't keen to go down that path, because it was such an absurdity and, you know, risks making the ACT a laughing stock. But equally, he says, he feels that he should consider the option.

ANGE:

Coming up after the break, whether Soffronoff’s conduct casts doubt over the inquiry’s credibility.

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ANGE:

Karen, can you just remind us how this inquiry came about in the first place, and what was its intention and goal?

KAREN:

Well, Bruce Lehrmann had faced a criminal trial late last year, on the charge of raping Brittany Higgins. Now, he had always pleaded not guilty. He said he didn't do it. The trial proceeded, and then we will remember that it collapsed, when one juror engaged in misconduct. Shane Drummgold, the Director of Public Prosecutions, indicated he planned to hold a retrial in the new year. And then in early December, he suddenly announced that he was not going to do that after all, that he was abandoning the trial and dropping the charge against Bruce Lehrmann, on the basis that a second trial would cause too much harm to Brittany Higgins’ mental health. After that, it emerged that he had written to the Chief Police officer in the ACT, complaining about police behaviour, police interference, making all kinds of allegations of obstruction, hinting at political interference. And that letter, which had been written a month before he decided to abandon the trial, was the reason that we've ended up with the inquiry. The letter was then released under Freedom of Information to a journalist from The Guardian. The Australian newspaper, in the interim, had started reporting matters that appeared to come from that letter, and also appeared to include material that had not been given in evidence in the trial. We've heard through the inquiry that Shane Drummgold started to be concerned about that process, that he was being undermined and that there were unfair allegations being levelled at him. And that letter that he wrote actually sought to have an inquiry established. The ACT Government then did that, set the inquiry up, and unfortunately for Shane Drummgold, he appears to be the highest profile victim thus far of the inquiry's findings.

ANGE:

And Karen, so what did the report say and what were the recommendations that Sofronoff made?

KAREN:

Well, the harshest adverse findings that were sustained in the final report were against Shane Drummgold, the Director of Public Prosecutions. He found that he had acted grossly unethically at times. He did stop short of finding, as he had initially proposed, that he should be struck off as a barrister, and that his position as the Director of Public Prosecutions should be terminated. So he didn't make those recommendations. But what he did say was so critical about Shane Drummgold's judgement, his handling of things, the fact that he misled the Chief Justice, that it became untenable, clearly, for Mr. Drummgold to continue, and he then offered his resignation and the ACT Government accepted it. Interestingly, the chairman of the inquiry didn't end up making as significant adverse findings against the police as he was initially inclined to do. He ended up making some criticisms, and some strong criticisms, of the way they handled their relationship with the Director of Public Prosecutions, and of the way they reached their judgement as to whether or not Bruce Lehrmann should be charged at all. But Mr. Sofronoff describes those as mistakes on the part of police. He doesn't find that there was any kind of, of malice or improper behaviour by any individuals. In fact, he says, I do not find that any police officer breached a duty or acted improperly. But he said they did not have a clear and accurate understanding of the test, the threshold test, for when a person should be charged with a sexual offence, and when they should not be, that this was a flaw in the system and that it was the fault of the police overall, and not of individuals. The report makes it clear, and the chief minister also underlined the point, that everybody who received proposed adverse findings from the inquiry chairman before the final report was published, pushed back against those and made submissions as to why they disagreed. And Shane Drummgold, foremost among those, very clearly said he did not agree with the findings that the chairman was proposing to make against him at all. While he conceded some mistakes, he said they were inadvertent and he didn't agree with the breaches of ethics the chairman was proposing to make. And in fact, the chairman did agree with his request not to make the ultimate findings that he should be struck off as a barrister or terminated as the DPP.

Archival tape – Andrew Barr:

“In spite of the serious process concerns I’ve outlined, I must… I must stress that the government maintains confidence in the ten report recommendations, and that our focus must remain on implementation.”

KAREN:

The final report contains ten recommendations that focus on changes that should be made to the system, to ensure that the things that went wrong in this prosecution don't continue to go wrong. Importantly, it confirms clearly that Shane Drummgold was justified in bringing the charge against Bruce Lehrmann in the first place, that there was no problem with him doing that, but that the problem lay in other areas, such as the way evidence was handled, the way the information was disclosed. And he makes recommendations about proper labelling of evidence briefs to ensure that information that should be protected doesn't get, inadvertently, sent to a party, in a criminal trial, that shouldn't have access to it and then find its way out into the media. So there are some recommendations along those lines, and also about police training. To make sure that they have a clearer and more accurate understanding of the threshold test for laying a charge at all, and also of their obligations in handling those protected confidences, like counselling notes, that we know were inadvertently sent to both the defence and the DPP, that should have been kept private.

Archival tape – Andrew Barr:

“Canberrans rightly require confidence in their criminal justice system and the institutions that uphold the law in the territory. And the recommendations in the report recommend practical ways that the government, and these institutions, can ensure that the matters raised in the trial do not occur in the future.”

KAREN:

Andrew Barr did acknowledge that this whole thing, and the way it's become such a debacle, has undermined confidence in the ACT criminal justice system. And he, and the ACT Attorney General Shane Rattenbury, went to some lengths to reassure the public that they are working to improve those problems within the system that may have been perceived, and to encourage the public to have faith that if an offence is committed or there's an allegation of an offence, that it will be properly handled in the nation's capital.

ANGE:

I'm wondering about that sense of faith, because one of the recommendations was to look at why sexual violence is so underreported and why so few cases result in a charge. Does the handling of this whole saga shed some light on why survivors are discouraged so often, do you think, by coming forward?

KAREN:

Well, definitely. I think if you sat through the criminal trial as I did, and then covered this whole story, you could understand why women in particular, but people with a complaint of sexual violence, sexual assault, might be reluctant to come forward. Because of the way this has been prosecuted in the court of public opinion, and continues to be so, as well as in a court of law. So, there's definitely an undermining of confidence, on the part of complainants, that the matters will be properly handled.

Shane Drummgold had initiated a review of the handling of sexual assault cases in the ACT, because of there was such a because there was such a low rate of bringing sexual assault allegations to charge into prosecution.

So there's clearly underlying tensions in the whole investigative and prosecutorial process, that went to the very question of how police, and others in the judicial system, respond to complainants of sexual assault.

Whether they make pre-emptive judgements about the veracity of their claims and whether they make enough effort to carry those forward to prosecution. And I think that is the lasting question that will remain after we finish dealing with this inquiry and anything that spins off from it.

Are people in the criminal justice system, in the ACT and across the country, adequately dealing with these complaints, and bringing them forward to prosecution readily enough, so that people who have perpetrated offences are brought to justice and face proper penalty for that.

ANGE:

Karen, thanks so much for your time today.

KAREN:

Thanks very much, Ange.

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ANGE:

Also in the news today…

The murder of 2 FBI agents in the US two years ago, has led to the arrest of 19 Australians, allegedly involved in an international child sexual abuse ring.

The FBI agents were killed while serving a warrant to a computer programmer in Florida in 2021.

As a result of a joint AFP-FBI investigation, Police say a total of 13 children in Australia have now been rescued.

And,

Newly compiled data has revealed that Defence has spent nearly $4 billion on large consulting firms over the past decade, more than all other Australian government departments combined.

From Schwartz Media, I’m Ange McCormack. We’ll be back tomorrow.

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