Jack Waterford | Walter Sofronoff inquiry shows justice cannot be done in the dark

"The Australian did not break an embargo and will not reveal the source of the leak," Ms Albrechtsen and the newspaper's NSW editor, Stephen Rice said on Friday. It is true that The Australian has notoriously and repeatedly shown itself to have one of the world's most elastic definitions of how and when it is bound by embargo undertakings. I am prepared to take these scribes at their word. But the mystery is the greater because the ACT government press release pointing the finger at Walter Sofronoff and his team insists that the government itself did not have a copy before The Australian got hold of it.

That could suggest that the leaker was a member of the Sofronoff team, since one assumes that they had tight control over copies of the report before sending it to the ACT cabinet. That leaker, one assumes, must have already known that copies were to go selectively to two media organisations on embargo and handed over one which was not. Just why only two organisations were so selectively favoured is not clear. The leaked copy could not have come from any of the other groups whom commentators have suggested could have been involved in other leaks to Ms Albrechtsen. These have included sources within the ACT police, particularly as to the content of telephone texts sent by the alleged victim and never tabled in court, sources within the defence team, or perhaps the defendant, Bruce Lehrmann himself. Such leaks have, in different ways, served the public relations purposes of various parties, but each has denied being the source of the stories which have appeared.

My mention of public relations purposes underlines the fact that in the modern criminal trial, or in the modern inquiry into a criminal trial, the purpose of a legal team can involve appeals to public opinion as much as attempts to influence a judge. Judges deplore this but have shown themselves increasingly unable to control it. In this very case, indeed, the woman alleging rape organised press and television coverage of her complaint of rape days before she formally renewed her complaint to police about the alleged assault. It was plain from these circumstances, and a few subsequent media events, that she believed that police would take on such a politically charged matter only if there were substantial media publicity and public pressure to come to a result. She might well have been right, given the AFP record in (not) pursuing cases with the capacity to embarrass the government of the day.

Ms Albrechtsen, who heads the right-wing Institute of Public Affairs, largely funded by Gina Rinehart, is an advocate rather than a journalist. From the time that the Lehrmann trial was aborted because of the misconduct of a juror, and it was decided there would be no retrial, she has thrown herself into the affair as an object lesson in trial by feminist hysteria. Lehrmann must be regarded as innocent until he is proven guilty. He has not been acquitted, but absolutely denied the allegation, and, since he cannot be retried must be regarded henceforth as an innocent man in law and in fact. As her coverage has progressed, her crusade has developed to finding more and more alleged holes in the original case, including material she has interpreted to suggest that the complainant concocted her allegation, perhaps for the purpose of embarrassing the Liberal Party.

From soon after the case aborted, she had also enthusiastically adopted police allegations that the case was saturated with political pressure, was weak and should not have proceeded. The prosecutor, DPP Shane Drumgold, had lost objectivity. She wrote several closely argued speculative pieces suggesting that the prosecutor had lied to the court in terms very similar to those later alleged in the report itself. From the beginning of the inquiry her focus was on the wickedness of the prosecution.

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Albrechtsen was not much interested in evidence of systemic structural weakness in sexual offence investigations, or inexperience and incompetence by those who conduct them. Nor in the significant police mis-steps, including the handing over by police to the defence team of material they should never have seen, such as counselling notes.

As it happened, the attention given to police conduct by the Sofronoff inquiry was desultory too. The police evidence was examined by junior counsel, rather than by Erin Longbottom KC, counsel assisting. Sofronoff could hardly fail to notice the very poor service the alleged victim, sexual assault victims generally and the public received from the ACT AFP. But he apparently thinks the mistakes were honest, not malicious. If Canberra people, or the ACT government are prepared to settle for that - or any opinions from PwC consultant Mick Fuller, mate of the commissioner who was asked to review ACT operations - we deserve the second-rate service at Rolls Royce prices that we get.

The complainant had to hand over her mobile telephones, and police technology retrieved thousands of her communications, much of which was given to the defence. Very little of it was used in court. It is well established that unused material surrendered by discovery in court proceedings cannot be used for other purposes or given to the media. Anyone, particularly any lawyer, involved in putting it into the public domain is guilty of a quite serious contempt of court. But Albrechtsen was given the messages by someone and promptly published some of the exchanges. Whoever leaked it to her was in breach of the law, and Ms Albrechtsen and The Australian, as re-publishers might have been too. It is unlikely that her leaker came from within the inquiry team, again underlining the breadth of her informants. On reports so far, these plain breaches, (certainly not by Drumgold) of legal, ethical and professional duty do not seem to have exercised the inquiry.

The publication of this and other sensitive private material about the complainant has excited much comment, but not a lot of investigation. I doubt that the police would approach an investigation with any zeal, even if one effect of the publications has been the creation of yet another reason for victims of sexual assault to avoid going to police.

Asking for complainants' phones to be downloaded, with the material to be given to defence teams, is getting contagious. In a recent rape case in Queensland, a defendant, well-known but unable to be named, asked for orders allowing him to see a download of data from the complainant's phone.

Crown prosecutor Sarah Dreghorn told the court the man's defence had been supplied with a forensic medical report, but they were still negotiating over how much of the mobile phone data would be provided. "At the moment the request is for [data] six months prior to the event's date; [the accused and the complainant] were not known to each other until the date of the offence."

I have closely followed this case and inquiry but have not had Ms Albrechtsen's access to the Sofronoff report. But it is quite possible to make some comments about apparent conclusions.

Shane Drumgold, despite his alleged sins, is an unlikely master villain.

Counsel Assisting, Ms Longbottom seemed to have formed a very early view of the case and went straight for the jugular of Drumgold, the first witness. She made mincemeat of him. By the end of her display of complete dominance, he was a shattered wreck. He had withdrawn his suggestions of political interference, softened his criticism of police resistance to a prosecution, and admitted that some statements he had made to the presiding judge were not well-phrased.

Report summaries suggest Drumgold was entirely to blame. "A public inquiry ... was not justified by any of his allegations ... has caused lasting pain to many people and ... has demonstrated his allegations to be not just incorrect, but wholly false and without any rational basis," he is said to have reported.

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This is tosh, the more so for being completely over the top. Drumgold may have misinterpreted some of the evidence, but his suspicions about police hostility to a (quite appropriate) prosecution had ample foundation. He was not simply paranoid, and nor were his colleagues. From what I have read of what I assume to be a selective report of the Sofronoff findings, none of Drumgold's "lies" or "errors" could be said, at the time of trial, to have had any more tendency to pervert the course of justice than the "innocent" police mistakes Sofronoff so readily excuses.

That does not mean Drumgold should be excused for misleading the court, if he did that. Whether he did is an inference Sofronoff drew from evidence, not based on undisputed fact. But colossal exaggeration of their impact, and scathing criticism of his ethics and professionalism weaken Sofronoff's attempt to lay all the blame at his door. I have seen, and reported, much more serious misleading of courts by senior crown prosecutors who went on to be judges of the same seniority as Sofronoff, and whose "misunderstanding" of the circumstances was "understood'' and excused by people in situations like Sofronoff's.

I note that Sofronoff accepts that both the AFP and the DPP were right to prosecute on the evidence before them. That is not shorthand for suggesting that Lehrmann was guilty, but it does imply that there was always a case to be answered.

I gather that Sofronoff now accepts that the ACT Victim of Crime Commissioner, Heidi Yates, was well within her powers and responsibilities in giving help and assistance to the complainant, including accompanying her in court. The police did not accept that, indeed spent time dreaming up legal strategies, such as calling her as a material witness, to get her to withdraw. Sofronoff now chides police and public for their misunderstanding but was himself initially guilty of just the same ignorance.

There is a separate term of reference about the FOI release of Drumgold's letter of complaint. I expect that Sofronoff will be critical of the DPP over a somewhat engineered FOI request. But I doubt that anything can be made of any suggested impropriety. Despite what the AFP seems to think, FOI is about getting information out, not withholding it. The Act encourages the exercise of discretions to get information out without unnecessary delay and does not insist that every potential exemption be claimed, as is the AFP way. Contrived delay and spurious claims of exemption or expense are AFP specialities, if somewhat in contrast with AFP media unit eagerness to convict charged people by media release.

At the beginning of the inquiry, Sofronoff suggested that his terms of reference were about whether the community could have confidence in the ACT justice system. That implicitly involved an inquiry that was as open as it could be, he said. His website was beginning to put up witness statements and exhibits to which they referred. One could follow the matter with a live broadcast - necessary because there was no space in the hearing room. Transcripts were provided, though increasingly they were days late.

While Longbottom was eviscerating and humiliating Drumgold, those watching had access to his statement and documents to which he referred, thus being able to understand every innuendo and point scored. It was great theatre, as it was plainly intended to be. Sofronoff, who liaised daily with counsel assisting, knew exactly what was happening.

But soon a snag appeared. Among the exhibits referred to were police documents in which they had recorded vicious gossip and slurs about the alleged sexual proclivities and relationships of the complainant. It is not clear why this was gathered since it could never have been admissible evidence. Given the good-old-boy mentality among some of the men - the senior ones were nearly all men - who ran the sexual offences unit, it may well have been a foundation for their distrust of the veracity of the complainant.

In any event, someone pointed out to Sofronoff that his publication system was putting these slurs into the public domain. He agreed, then instituted a system whereby no document, no statement, and no transcript was issued on the website until it had been cleared of any potentially nasty material. Without any public discussion, this soon was interpreted, apparently by the inquiry team, to mean that documents should also be shorn of the names of all but a dozen or so police and anything police did not want there. Whole sections of police statements were being blacked out for undisclosed reasons, having nothing to do with privacy.

Redaction caused long delays, and to decisions to be economical with what statements and exhibits were to be made public. By the time police witnesses were called, one could not compare written statements with transcripts for days. Exhibits were even slower, and Sofronoff appeared relaxed with the omission of many of them, or publication only of cover-notes, with actual content omitted.

Then he decided that many significant witnesses, including the federal commissioner and the AFP commissioner should not have to give public evidence or face cross-examination. He said that the purpose of evidence was to satisfy him and seems to have forgotten that a part of his mission was to allow an anxious public to assure itself of the integrity of the justice system. The limited look-in, and his own seeming lack of interest in investigating the investigators was hardly likely to achieve that. To add to the problem, the public has not been allowed to see submissions made by parties, including submissions made by people, (including Drumgold) given notice they would be criticised.

I have the highest respect for Sofronoff's integrity, but he is subject to the same strictures as any other (former) judge having hearings effectively and unaccountably behind closed doors. Justice, even national security justice, cannot be done in the dark.

Most of those deeply unhappy about the case, and about the inquiry, are not seeking to re-agitate questions of the guilt or punishment of Lehrmann. He cannot be re-tried in a criminal court, and must be considered and treated as an innocent man. That does not, however, erase questions about the professionalism and competence of the investigation, about the mindset and culture of detectives, and about the involvement of senior police concerned more about appearances and PR than about justice for victims and accused. It does not explain apparent acts of police sabotage. It does not erase questions about the quality of the ACT justice system. Nor can the suspicions of Drumgold's about police actions be explained away airily as paranoia, unjustified suspicion and misunderstanding.

Perhaps Sofronoff's findings are correct. But they were not derived from the open process the public was led to expect. This provides an open licence for legal, political and bureaucratic decision-makers to determine just what parts of the report they will accept, and what they will reject. One can predict that there will be no significant change to police culture or practice. Confidence in the capacity of the ACT justice system to deliver justice for victims of sex offences will continue to deteriorate.