Inquiry back from the weekend with a bang

Beyond the daily news coverage, “CityNews” legal commentator and former barrister HUGH SELBY is commentating regularly on the Sofronoff Inquiry’s public hearings, focusing upon the advocacy and witness performances. 

The Board of Inquiry, led by Commissioner Walter Sofronoff KC, a former president of the Queensland Court of Appeal, was established by the ACT government in December to examine how police, prosecutors and a victim support service handled allegations made by Brittany Higgins against her former colleague Bruce Lehrmann.

The police and the defence stand tall

“The day got off with a bang. Steven Whybrow is a strong, confident, easy to follow witness with a nice turn of phrase. Nothing seemed to ruffle him throughout the day.” HUGH SELBY looks at day one, week two of the Sofronoff Inquiry.

THE weekend was an intermission. The live show continues this week with thrills and spills.

Whether it’s the circus, music or sport, we know the drill. There are support acts and there are main acts. That’s entertainment.

There was a lot of entertainment last week. In retrospect, it was the hunter becoming the hunted. The denouement – the hunter died – was rather sad. That’s pathos at work.

The decision to call the Director of Public Prosecutions, Shane Drumgold SC, as first witness last week was strategic. It was his trial and his allegations that underwrote all the issues in the inquiry’s terms of reference. 

How he fared would dictate the extent to which other witnesses needed to be called, and how much they needed to be questioned.

Well, we know how he fared and we can safely surmise that a number of future witnesses slept better over the weekend, including defence advocate, Steven Whybrow SC. They will continue to sleep well.

These developments are good for the inquiry. Their strategy has ensured a much shorter public hearings schedule, and it has significantly reduced the breadth of contentious facts because of the concessions made by Mr Drumgold.

To appreciate the quality of the inquiry’s decision, we can briefly consider their other options. One approach would be to call witnesses in an order that reflected witness convenience. That approach shows a lack of a case plan and a failure to sort the trivial from the significant. Another approach is to “close off the escape routes” for a key witness by calling other witnesses, each of whom – providing they perform well – narrows the paths that will be open to the key witness.

The inquiry chose immediate confrontation with the key witness

This “build-up” approach works well when the key witness seems near impregnable. Their defences have to be chipped away, so that when they are finally called as a witness some damage has already been done.

The inquiry chose immediate confrontation with the key witness. Given their earlier seeking of documents and wide-ranging interviews, they were able, based on their mastery of all that material, to predict that calling the key participant as the first witness would be the best strategy. They were right. 

That said, it meant that we, the livestream and reading audience, were hearing the main act first, not last. Come breakfast time on the second Monday morning of the public hearings the prospect was that today was going to be something of a “let down”. 

That proved to be a false premise. The day got off with a bang. Mr Whybrow is a strong, confident, easy to follow witness with a nice turn of phrase. Before becoming a barrister he spent a dozen years in the ACT prosecutions office. Nothing seemed to ruffle him throughout the day. 

He and Erin Longbottom KC, counsel assisting [CA], were an ad hoc team with finesse. She handed up the ingredients – be that a reference to a document, or his actions – and he delivered the finished plates with garnish. It was quite a meal. 

The opening topic was the steps taken by Mr Whybrow and his team to obtain the police investigation report. This included speaking to its author and being told it had nothing to do with seeking legal advice. Therefore, it had to be disclosed, no ifs or buts.

The next topic – and the CA clearly indicated this (thank you) – was the counselling notes. In the ACT the “counselled client” cannot consent to the release of their counselling notes. Neither prosecutor nor defence gets to see the notes. Only a judge may see them and their “lips are sealed” (as noted by Commissioner Walter Sofronoff ). 

As Mr Whybrow said, “sometimes mistakes happen”, as happened in this case. He followed that by making a comment, which he followed with: “That might be a bit of Whybrow puff”. Delicious. 

The “quote for the day” came from the commissioner. It was about the statutory provisions governing counselling notes. He said: “Because the statute is expressed in the passive voice nobody knows what it means, so it seems to me – being a stranger to this jurisdiction.”

‘Not for the DPP to decide what was useful for the defence’

Moving then to witness Fiona Brown, a staffer for Senator Linda Reynolds. She phoned Mr Whybrow after the surprise announcement that there would be no retrial. She relayed her sending an email to the DPP during Mr Whybrow’s cross examination of Ms Higgins. Mr Whybrow had not seen that email. She then sent that email to Mr Whybrow. 

Last week Mr Drumgold told us that he saw the email and decided there was no reason to pass it on to the defence. Mr Whybrow takes a contrary view: “It was not for the DPP to decide unilaterally what was useful for the defence”. Had he received the email he would have wanted to explore it. This was not an optional garnish. It went to the basic ingredients that were in the trial pot, and whether any of them might “be off”.

Keep in mind that this was a mid-trial communication and it was about the veracity of a witness being cross-examined right then. If the DPP didn’t want to disclose the email then he ought to have sought a ruling by the trial judge.

Mr Whybrow had discussions with police following the end of the trial. Commenting on his interactions with police he pointed out that as the DPP was not being overly helpful in disclosing material he contacted police. Correctly, he saw no problem in doing so.

And so we came to the infamous November 2022 letter from the DPP to the ACT Chief Police Officer. This letter refers to interactions between Mr Whybrow and Senator Reynolds. 

“Appalling” is what Whybrow said about the letter. The senator, he said, was indicating possible lines of inquiry that had already been followed up by the defence team. What’s more there had been an exchange between the DPP and Mr Whybrow during the trial about the senator’s interest in the case. The DPP had been told by Mr Whybrow that she didn’t get a transcript, and she wasn’t coaching the defence. There was no basis for any concerns.

But that’s not the end of it. Mr Whybrow had shared information with the DPP of his exchanges with the senator. This was “advocate to advocate”. It was done to allay the DPP’s concerns. It was not a disclosure. 

However, at trial, the DPP then got leave to cross-examine his own witness, the senator, and used the material given to him on a limited basis by Mr Whybrow as the basis of his attack upon the senator. Mr Whybrow was constrained in his comments about that. Others might use the phrase, WTF!

Then came the reminder of the rule that barristers (which includes the DPP) must not put a proposition to a witness in the absence of a sound evidential basis. For example, positively asserting to a witness that there was a political campaign of interference in the absence of evidence.

Questions turned to the content of the DPP’s media release that there would be no retrial. In that statement the DPP repeated that he had “reasonable prospects”. This should not have been included. It led to the inference that the accused was guilty when the accused would get no chance to rebut that at a second trial. Mr Whybrow had twice asked Mr Drumgold to discuss the media release before its release. Mr Drumgold refused.

Anticipating what will become clearer when the Victims of Crime Commissioner gives evidence, Mr Whybrow explained how the attention to Ms Higgins as a complainant in criminal proceedings and as a victim of crime are two different tasks. The complainant is tested. The victim is assisted.

After lunch Mr Mark Tedeschi KC (advocate for Mr Drumgold) cross-examined Mr Whybrow. He “was seeking to elicit evidence in support of his client, that his actions were legitimate”. Despite strenuous efforts, success eluded him. 

Mr Tedeschi has a nice, measured pace. He and Mr Whybrow agreed that it was rare for police to be “over invested in the defence”. Mr Whybrow’s experience was that Mr Drumgold would take a position and could not be moved. This, he said, was “overzealous”. 

The commissioner reminded everyone that “the heat of the moment” assessments of a litigation opponent can lead to mistaken views, that upon “cooling down” go away. To which we can add that sometimes, especially if there are repeated instances, assessments become firmer.

There was then a series of questions that related to the question of whether documents attached to a privileged document thereby became privileged, too. This was deja vu because the issue had been covered last week, with incisive comments by the commissioner. Double-barrelled objections to the questions came from both AFP and Mr Whybrow’s advocates.

It was the AFP, not the DPP, who could claim privilege

Mr David Edwardson KC, advocate for Mr Whybrow, usefully reminded everyone of the fundamental principle: it was the AFP, not the DPP, who could claim privilege. As we all know, the AFP didn’t claim it. 

Questioned about the police attitude to the prosecution, Mr Whybrow told us how good the second police interview of Ms Higgins had been, in terms of its asking Ms Higgins to comment on various matters. Mr Whybrow thought the effect of that interview was devastating to Ms Higgins. 

As the final comment for the day, Mr Whybrow gave the police with whom he interacted a “clean bill of health” with respect to their professional interactions with him before and at the trial. 

The AFP and its investigation officers should be well pleased. Evidence from defence counsel about their interactions with him is much better than speculation about it. Now they can sleep easier.

Enough about food for our thoughts. This day has been like binge watching several episodes of a streaming service quality soap opera that includes a “play within the play” of a reality TV show about lawyers which has take outs of both wonderment and cringe. That adds up to memorable and instructive entertainment. All that is lacking is promo ads to tell us what is coming.

All the “CityNews” coverage of the Sofronoff Inquiry, including Hugh Selby’s daily reviews, are here.

Lehrmann ‘convicted in the media’, inquiry hears

Author’s notes on his inquiry commentary 

A well-run public inquiry is like an iceberg: what you see at the public hearing is just the tip of a much larger “work in progress”.

For some months the inquiry staff have been interviewing people and collecting records. All that information is then available to the inquiry advocates (counsel assisting), ammunition to fire or soothing lotion to apply when asking a witness questions.

Woe betide the witness who, waiting for the questions, sees only the counsel assisting. This is not a one-on-one contest: counsel assisting is just the public face of concerted team work.

In recent public inquiries into, for example, the suicide of our Defence Forces’ veterans, or victims of institutionally based sexual predators, the “soothing” element has been a focus with those witnesses who were victims or victim’s relatives.

But among those witnesses who might have strayed and who might be publicly exposed, “hope” springs eternal until it’s too late even to save some dignity. Even when they know what is in the advocate’s gun they hope for a misfire. One must first deceive oneself before deceiving others. 

For any witness there is the added problem that the commissioner can ask as many questions as they like. This does not happen in court proceedings where the judge is seen but little heard. 

At any moment the commissioner may intervene in the to and fro between witness and advocate. Here one can see how the public interest is served by appointing as commissioner someone who was a skilled advocate earlier in their career.

My bad dream, even in retirement, is being a witness at a public inquiry who is being led gently or pushed ruthlessly by counsel assisting, and then suddenly being engaged by a commissioner who knows how to cross-examine. 

Cross-examination is an art, reflecting at least two of the following: innate temperament, experience, and good mentoring. Above all else it is manipulative. It suggests the inevitable conclusion to the listener without stating it. The listener takes themself to the finish line. As a witness, to fight on two fronts against well provisioned, skilled opponents is a nightmare.

All that being noted we must keep in mind that the commissioner opened the public hearings with this significant comment: Nobody should be harmed unnecessarily. 

–HUGH SELBY