Interstate judge brought into Drumgold case to avoid conflict of interest

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A Victorian Supreme Court judge will be brought into the ACT to avoid any conflicts of interest in former top prosecutor Shane Drumgold’s legal challenge against the findings of an inquiry that forced him to resign.

ACT Supreme Court registrar Jayne Reece told a brief hearing on Thursday morning Justice Stephen Kaye would be flown in to preside over the case launched by Drumgold last month due to his former status as the Director of Public Prosecutions and the small size of the ACT’s legal community.

Former ACT Director of Public Prosecutions Shane Drumgold has launched a legal challenge against the findings of an inquiry into the Lehrmann case.Credit: Rhett Wyman

Reece said ACT Supreme Court Chief Justice Lucy McCallum, who presided over the aborted rape trial of former Liberal staffer Bruce Lehrmann – which sparked the inquiry and Drumgold’s case – concluded it wouldn’t be appropriate for any resident judge to hear the matter “and will accordingly seek the appointment of a judge from another jurisdiction”.

“To avoid any conflict of interest, the Chief Justice wrote last week to the Chief Justice of the Supreme Court of Victoria, Anne Ferguson, to ask whether [she] would be prepared to make a judge of the Supreme Court of Victoria available,” Reece said, adding Ferguson had agreed to appoint Kaye, a reserve judge in the jurisdiction.

Lehrmann pleaded not guilty to raping his former colleague Brittany Higgins in a Parliament House ministerial office during the early hours of March 23, 2019, in a Supreme Court trial that was ultimately aborted in October last year due to juror misconduct.

A retrial was abandoned due to Higgins’ mental health, and Lehrmann has maintained his innocence since.

The case sparked several offshoot legal proceedings, including an ACT government inquiry into the handling of the trial after a public fallout between Drumgold and police, who he accused of trying to undermine the proceedings.

That allegation was found to be baseless by the inquiry’s chair, former Queensland Supreme Court judge Walter Sofronoff, KC, who also made several damning findings against Drumgold’s conduct during the case, including that he had lied to the court in the lead-up to the trial, and had improperly questioned a high-profile witness, former Coalition minister Linda Reynolds.

However, in launching the legal challenge, Drumgold’s lawyers allege some of Sofronoff’s findings against him were legally unreasonable, including that he breached his duty as a prosecutor.

They also say Drumgold was not given a fair hearing in relation to other findings, and that some of Sofronoff’s findings were out of the inquiry’s jurisdiction because they did not relate to its terms of reference.

Sofronoff controversially leaked the report to select media outlets before its official release, which Drumgold alleges denied him natural justice and gave rise to a reasonable apprehension of bias on the part of Sofronoff.

Sofronoff’s lawyer, Glen Cranny, told the court on Thursday there were issues that needed to be resolved concerning his client’s indemnity as a member of the judiciary.

“I think it’s obvious that Mr Sofronoff’s position is somewhat unusual and there are some issues arising in respect of his position, which have needed to be resolved and still need to be resolved,” he said.

Terry O’Gorman, acting for Drumgold, foreshadowed there would be factual issues in the proceedings to be debated, and a scheduled two-day hearing may not be enough time. Drumgold is also calling for access to certain documents, but no orders to that effect have been agreed upon so far.

Cranny asked for the hearing, originally slated for next year, to be expedited to this year. The case is next before the court on September 28.

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