The recent resignation of Australian Capital Territory (ACT) prosecutor Shane Drumgold comes as no surprise. Commissioner Walter Sofronoff’s report on the ACT inquiry into the Britanny Higgins case offers a forensic analysis of the prosecutor’s “serious misconduct,” providing a firm basis for the ACT government to ditch him.
It also may provide ample fuel for Bruce Lehrmann’s multi-million compensation claim against the ACT Office of the Director of Public Prosecutions (DDP).
It appears Mr. Sofronoff felt constrained by the narrow terms of reference and didn’t address the seeming capture of the justice system by feminists that removed any real role for police in determining which rape cases go to trial.
He has also let Heidi Yates totally off the hook, concluding that the Victims of Crime Commissioner was simply doing her job. This claim fails to properly consider the effect of her conduct on the public and jury and her broader goal of remaking the way the justice system handles sexual assault.
Mr. Sofronoff’s conclusion that Mr. Drumgold was correct to proceed with the prosecution of Mr. Lehrmann can also be questioned.
The Commissioner praised the “thorough” efforts of police resulting in a “sound case”—which originally concluded there was insufficient evidence to charge.
The inquiry revealed how the police only changed their position after being persuaded by Mr. Drumgold, the DPP. But was the decision to charge correct?
The Commissioner appears to accept that the test to charge is a “reasonable prospect of conviction,” which means the criminal standard—beyond a reasonable doubt. That seems to be saying that an assessment of victim credibility by investigators is irrelevant. This is at odds with the prosecution policy of all prosecuting authorities in Australia.
Indeed, an Australian Institute of Criminology research paper that interviewed crown prosecutors from around Australia stated that “they were unanimous about the importance of victim credibility in adult sexual assault cases.”
Would Things Be Different?
Many in the legal fraternity were aware, through an article published in The Australian, of an application made to the court that day by Mr. Lehrmann’s lawyers, details of which have been suppressed by the Chief Justice.If this application had reached the High Court, it is highly likely that it would have exposed Mr. Drumgold to the same public humiliation and disgrace which has now resulted from the inquiry.
Those issues aside, the Mr. Sofronoff report provides a masterclass to lawyers by spelling out the critical need for prosecutors to “act with fairness and detachment.”
Mr. Drumgold’s actions, alleged by the report, provide an object lesson in the many and varied ways a prosecutor can fail to carry out that duty.
But Mr. Sofronoff pays particular attention to Mr. Drumgold’s “serious breach of duty” by failing to comply with the “golden rule” of disclosure that sits at the heart of a fair criminal trial.
For Bruce Lehrmann, there’s a certain irony in knowing that despite all the zeal to declare him guilty, it was the prosecutor’s failure to prevent journalist Lisa Wilkinson from delivering her Logies speech which led to the postponement of the trial that allowed the defence to gain access to vital police information about Ms. Higgins’ evidence—and probably kept him out of prison.
Mr. Sofronoff is convinced that even if that had happened, that would not have been Mr. Lehrmann’s ultimate fate.
He wrote: “Had the defence, by their professionalism and persistence, not obtained [the police documents] despite the improper obstruction they faced, and had the documents come to light after a conviction, in my opinion, the conviction would have been set aside on the ground of a miscarriage of justice.”
Maybe. Then again, maybe not.
What About the Average Guy
Mr. Lehrmann is a man embroiled in one of the most sensational rape cases this country has seen, and still, none of this is easy.Spare a thought for the ordinary men who end up in prison as a result of zealous prosecutors who seem willing to overlook all those legal principles demanding fairness, disclosure of exculpatory evidence, and protection of the rights of the accused.
This issue is not limited to the conduct of Mr. Drumgold but underlines the need to ensure disclosure obligations are met so that men accused of sexual assault are granted a fair trial.
My files are bulging with cases where that fair trial didn’t happen, with one of the most significant involving Sara Jane Parkinson, who went to prison for making malicious false allegations of rape and violence against her former fiancé, Dan Jones.
Dan Jones ended up in prison as a result of his former fiancé Sara Jane Parkinson making 32 allegations of rape and violence, apparently to punish him for breaking off his engagement after discovering she was having an affair with a NSW policeman.
It’s an extraordinary tale involving Ms. Parkinson staging a rape crime scene and doing everything they could to destroy Mr. Jones and his family.
Mr. Jones was imprisoned purely on the basis of these false allegations, and it took five years and over $400,000 in legal fees to get Dan out of prison and finally get Ms. Parkinson imprisoned.
The Dan Jones case took place prior to Mr. Drumgold being appointed.
The ACT Office of Public Prosecutions pushed ahead with 32 charges involving rape and violence despite concerns being raised about the evidence supporting the case, particularly the truthfulness of Ms. Parkinson’s claims.
The damage to this family as a result of this prosecution was immense, with Mr. Jones’s parents ending up divorced after spending all their savings trying to save their son.
The family has spent years unsuccessfully seeking compensation from the ACT government—which has recently refused calls for a re-examination of sexual assault cases in the territory.
There’s much to be thankful for in this public examination of the zeal driving some of our prosecutors. Hopefully, this scrutiny will extend to the influence of victim-centred justice currently undermining the rights of men accused of sexual assault.
