Dozens of hours of phone calls and months of communication between journalists and the chair of an inquiry into the ACT’s former top prosecutor are being relied upon in court to argue inquiry head was biased.
Former director of public prosecution Shane Drumgold is taking legal action against former Queensland judge Walter Sofronoff over his findings in an inquiry about how the prosecution of Bruce Lehrmann was handled.
Mr Sofronoff was in constant communication with The Australian newspaper columnist Janet Albrechtsen before and during his inquiry, Mr Drumgold’s lawyer Dan O’Gorman told the ACT Supreme Court on Wednesday.
Mr Sofronoff made 65 phone calls to journalists between February and July 2023, totalling almost 10 hours, Mr O’Gorman said, citing phone records.
Of these, 55 were to people from The Australian – predominantly Ms Albrechtsen – totalling seven-and-a-half hours, he said.
During the public hearing part of the inquiry, Mr Sofronoff made 10 calls to The Australian, eight of them to Ms Albrechtsen, the court was told.
Mr O’Gorman is seeking to use text messages, phone records and emails between the journalist and the inquiry head to prove he had an apprehended bias against Mr Drumgold.
Confidential documents – including the draft report – were handed to journalists that shouldn’t have been, Mr O’Gorman said.
“Ms Albrechtsen received confidential information relating to the inquiry and Mr Sofronoff’s terms of inquiry,” he argued.
“This is in the context of Ms Albrechtsen, over a number of months, exhibiting an attitude adverse to Mr Drumgold.
“In the months leading up to and during the inquiry Ms Albrechtsen was writing numerous articles critical of Mr Drumgold.”
Mr Sofronoff had gone against his own media practice code for the inquiry in contacting the journalists directly, Mr O’Gorman contended.
Other journalists made contact with the board of inquiry through official channels, he said.
Lawyers for Mr Sofronoff and the ACT government raised concerns parts of the evidence were not admissible as it was not relevant to the case and would constitute hearsay.
Justice Stephen Kaye is yet to rule on whether the evidence is admissible or whether Mr Sofronoff could be cross-examined.
But he warned Mr Drumgold’s team against using the case as a “fishing expedition”.
“This is not an inquiry into the inquiry, this is strictly a judicial review on very confined administrative law grounds,” he said.
Mr Sofronoff’s review of Mr Drumgold’s prosecution of Mr Lehrmann found he lost his objectivity and lied to the chief justice.
But the decision to charge and prosecute Mr Lehrmann was the correct course of action.
The judicial review is not focusing on the merits of the Sofronoff inquiry’s findings, but rather if they were reached in the correct lawful manner.
The matter is due to return to court on February 13.
By Dominic Giannini in Canberra
