Territory lessons to be learned from Sofronoff inquiry

ACT Director of Public Prosecutions Shane Drumgold has taken four weeks leave however he “needs to make it permanent” as he has given the ACT Attorney General a “terrible quandary”, says The Australian Legal Affairs contributor Chris Merritt.

Mr Merritt’s comments come as Mr Drumgold is alleged to have withheld information as the prosecutor during the Bruce Lehrmann trial.

“The Attorney General Shane Rattenbury will have to decide whether he sacks him before the Sofronoff report … or whether he waits till after that report,” Mr Merritt told Sky News host Peta Credlin.

“Now either way, he’s going to be unfair to somebody – will he be unfair to Mr Drumgold or will he be unfair to victims of crime or those accused of crime?

“Will he require them to subject their liberty and criminal prosecutions to someone who’s made a series of errors and is at the centre of a dysfunctional professional network of relationships?

“He (Shane Drumgold) can’t continue – he’s admitted to misleading the Chief Justice of the Supreme Court of the ACT, that’s a fairly major problem.”

The inquiry is investigating matters relating to the aborted trial of former coalition staffer Bruce Lehrmann who was accused of the alleged rape of co-worker Brittany Higgins.

The charge was subsequently dropped.

While Director of Public Prosecutions Shane Drumgold SC called for the inquiry, a series of revelations over the past two weeks have cast doubt over his conduct before and during Mr Lehrmann’s trial.

Of particular concern was the revelation that Mr Drumgold wanted to keep some police material from the defence, specifically a report by Detective Superintendent Scott Moller which raised concerns about Higgins’ allegations.

There are some parallels here with the attempted prosecution of former police constable Zachary Rolfe over the alleged murder of Kumanjayi Walker at Yuendumu in November 2019, although in the Rolfe case it was the police accused of keeping evidence from the prosecution and the defence.

While many people complaining about the investigation into Mr Rolfe have cried foul over comments made by former chief minister Michael Gunner at Yuendumu three days after the shooting, this has been something of a red herring.

Yes, his remarks that “consequences will flow” were ill-advised but as Independent Commissioner Against Corruption Michael Riches rightly ruled in a report last week, they didn’t amount to proof of political interference.

The real issue here was revealed in the unredacted reports of coronial investigators Superintendent Scott Pollock and Commander David Proctor that were finally released by the coroner last week.

The reports raise serious concern over the objectivity of the prosecution’s use-of-force expert Senior Sergeant Andrew Barram and show police ignored the advice of the Deputy DPP, who believed investigators needed to secure a serving interstate police use-of-force expert to support the charge that Mr Rolfe’s fatal shooting of Mr Walker was unjustified.

Police also ignored the Deputy DPP’s advice that an international expert would be unsuitable. Instead they hired American criminologist Professor Geoffrey Alpert at a cost to taxpayers of almost $100,000, to write a report supporting their case.

The Proctor/Pollock reports reveal Professor Alpert worked in concert with investigators as he wrote his report, exchanging emails and draft copies of the document, where he asked detectives if there were details they wanted changed.

Professor Alpert then gave evidence at a committal hearing where Mr Rolfe was ordered to stand trial.

Most concerningly, the Proctor/Pollock reports were not voluntarily made available to Mr Rolfe’s legal team.

They had to subpoena them after happening upon their existence after the committal hearing. While Justice Dean Mildren ruled parts of the reports were subject to legal privilege, in his July 2021 decision he was critical of the police’s failure to make the reports available to the DPP.

“I think this case demonstrates how important it is that the DPP is provided by the police with all of the documents which are relevant, or may be relevant, to the prosecution of a person accused with having committed an offence, and this includes documents which may or are to be the subject of a claim for legal professional privilege, or for that matter, documents which are otherwise protected from disclosure,” he wrote.

This was not the only time police were accused of withholding evidence from the defence. During Mr Rolfe’s trial, trauma surgeon Dr Keith Townsey told the court he had given police a professional opinion about the potential for a pair of surgical scissors – used by Mr Walker to stab Mr Rolfe before the shooting – to cause fatal injuries.

But police never asked for the opinion to be put in writing, and this information was never provided to the prosecution or the defence.

Questions should also be asked about the separate case of Children’s Commissioner Colleen Gwynne who faced a three-year police investigation over allegations of abuse of office before the case was thrown out of the Supreme Court before the defence had presented any evidence. Speaking outside the court after her acquittal Ms Gwynne said: “At no stage have I ever been interviewed by investigators. Key witnesses who would have demonstrated my innocence were never spoken to.”

It is the role of police and prosecutors to investigate and present all of the evidence, not just that which supports their case.

As Justice Mildren noted in his judgment over the Rolfe material, a failure to do so can have dire consequences.

“Failure to provide these documents may result in the DPP not becoming aware of them until after the trial, which may in turn have cause the trial to miscarry,” he wrote.

“Worse, if the documents are never revealed, it may be that an innocent person has been wrongly convicted.

“It is hoped that this situation will not occur in the future.”

An independent public inquiry – like the one happening in the ACT – might ensure it doesn’t.

Matt Cunningham is the Sky News Darwin Bureau Chief and North Australia correspondent.