Calls for more inquiries into prosecutorial conduct as Drumgold resigns

The resignation of Shane Drumgold SC as ACT Director of Prosecutions is to be welcomed. As ACT Attorney-General Shane Rattenbury noted while accepting Shane Drumgold’s resignation, Drumgold’s role as director of public prosecutions had become “no longer tenable”.

Drumgold will now likely be fighting to save his legal career. There’s also the possibility of criminal charges.

The good news for Drumgold, who disputes many of the adverse findings made by Walter Sofronoff KC, is that he will be entitled to contest them in any professional disciplinary matter brought against him.

Section 91 of the Evidence Act 2008 (ACT) is probably often overlooked. It says that:

“(1) Evidence of a decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.”

So in the ACT (also NSW and Vic), evidence of a finding of fact of a Court, tribunal or inquiry is not admissible to prove the existence of a fact. Such reasons are usually hearsay and opinion evidence, and the tender of reasons to prove the truth of what they record is specifically prohibited, except to the extent necessary to establish a res judicata or issue estoppel, neither of which would apply.

Where the common law applies, an even stricter result obtains by virtue of the rule in Hollington v F Hawthorn & Co Ltd [1943] KB 587 (cf Hunter v. Chief Constable of the West Midlands Police [1982] AC 529, 543, per Lord Diplock and Murdoch v Previtera & Anor t/as Alex Mackay & Co [2018] QCAT 35 per Carmody J).

There have been calls for inquiries of multiple Australian jurisdictions following the mishandling of the prosecution of Bruce Lehrmann by the ACT Office of the Director of Public Prosecutions, and in particular the conduct of now former ACT chief prosecutor Shane Drumgold SC.

Multiple ­senior lawyers and legal researchers have recently spoken to The Australian about such issues, particularly in relation to disclosure obligations issues not being confined to the ACT.

Sydney human rights barrister Felicity Graham has been quoted as follows:

“There is a massive problem in NSW of police and prosecutors breaching their duty of disclosure by withholding material from the accused or dropping it on them at the last moment”
“It is rare for police and prosecutors to comply with their duty of disclosure in contested matters in NSW. It’s terrible and so many just blithely go along with it.”

A survey of mostly experienced criminal lawyers and “a handful” of prosecutors and barristers conducted by Ms Graham at the Legal Aid NSW Criminal Law Conference resulted in 93 per cent of participants saying the prosecution failed to comply with its disclosure obligations in NSW either routinely or frequently. Only 6 per cent said it was ­occasionally or rarely that such failures occurred and 1 per cent said not sure.

Sometimes the failure to disclose is because police officers do not understand the prosecution obligation to disclose in criminal cases. Some police officers also think it is unfair that the prosecution must disclose all evidence it has, whilst the defence only needs to disclose evidence that it will rely on.

In one case, a detective preparing a brief for the DPP in a rape case intentionally ­excluded police reports that ­revealed the female complainant had said that she was consenting to sex. Such an admission by a complainant would normally mean the prosecution case is doomed to fail, and in such a case serious consideration would have to be given to dropping the charge. The state of NSW was subsequently held liable for malicious prosecution.

Fairness to the accused is at the heart of criminal law.

Such fairness recognises and reflects the serious consequences of criminal convictions, particularly for serious offences, and the enormous injustice that results from the conviction and punishment of an innocent person.

Such fairness also recognises and reflects the reality that criminal cases involve the might and power of the state against the accused. In the vast majority of cases, the resources of criminal defendants are no match for those of the prosecution.

This is why we have protections for criminal defendants such as the presumption of innocence, a very high standard of proof, and a requirement that the prosecution discloses all relevant material, whether or not it assists the prosecution case.

The prosecutorial obligation to disclose all evidence is a very important one. It is totally unacceptable for a prosecutor to treat criminal litigation as “a poker game in which a prosecutor can hide the cards’’, as the Sofronoff inquiry found Drumgold did.

Former NSW Supreme Court Justice Anthony Whealy KC, who has called for a review of Drumgold’s past cases, has been quoted as saying that failures to disclose are “more common than we might think”, and are particularly alarming where prosecutors rather than police were involved.

These are deeply concerning remarks.

Withholding exculpatory evidence is one of the worst things prosecution departments can do. Depriving the defence of credible exculpatory evidence normally results in defendants not receiving a fair trial.

As Sofronoff KC said, a fair trial requires:

“not only that the accused should have access to material in the prosecution’s possession that sets out the prosecution case but also material which may bear upon the defence of the charges. The failure of a prosecutor to comply with this obligation may lead to a miscarriage of justice … In practice, a failure to disclose information that affects the credibility of a prosecution witness is likely to result in a conviction being set aside”.

Janet Albrechtsen has asked:

“How many people are in jail in the ACT because prosecutors withheld evidence from them?”

One hopes the answer is ‘very few’ or ‘none’. But as Albrechtsen notes, we don’t actually know. The Lehrmann prosecution was a debacle which resulted in a hung jury that was discharged because of juror misconduct. So it can be fairly said that Lehrmann was almost convicted as a result of a prosecutorial failure to disclose relevant exculpatory evidence. The Lehrmann case alone suggests that it is quite possible that many people have been convicted because of prosecutorial misconduct. This is a serious issue that affects the potential liberty, reputation and livelihood of every Australian, and which should be properly looked into.

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