Shane Drumgold SC has had a partial win in his application for judicial review after judgment was handed down yesterday.
Walter Sofronoff KC found that:
→ every one of the allegations made by Drumgold that sparked the inquiry was baseless;
→ Drumgold “did not act with fairness and detachment as was required by his role”;
→ Drumgold made representations to the Chief Justice Lucy McCallum in the proceedings against Lehrmann that were “untrue” and “an invention of his own”;
→ That Drumgold was guilty of a “serious breach of duty” by failing to comply with the “golden rule” of disclosure that sits at the heart of a fair trial by failing to disclose documents where there was “simply no doubt” that internal police briefing notes by Detective Superintendent Scott Moller which detailed inconsistencies and opinions about Ms Higgins’ allegations – including one that suggested police did not think there was enough evidence to prosecute – should have been disclosed;
→ That the DPP failed to adopt the rule of thumb used by wise and experienced prosecutors – “if in doubt, disclose”;
→ That the DPP at Drumgold’s instigation “kept the defence in the dark about the steps he was taking to deny them the documents that meant they were in no position to mount a challenge”;
→ that Drumgold had “constructed a false narrative to support a claim of legal professional privilege”, which involved him procuring a false affidavit from a junior solicitor of the DPP, which could potentially be a criminal matter.
Drumgold ultimately pressed his judicial review application on the following grounds:
→ The first defendant (Board of Inquiry) failed to accord the plaintiff natural justice, in that the conduct of the Member of the first defendant gave rise to a reasonable apprehension of bias;
→ the findings in the report, specified in Schedule A to the Originating Application, are legally unreasonable;
→ The first defendant failed to accord the plaintiff natural justice by failing to give the plaintiff a fair hearing in respect of the findings, specified in Schedule B to the Originating Application.
Drumgold sought:
(1) A declaration that the report is, or, alternatively, the parts of the report, which relate to the plaintiff, are invalid and of no effect.
(2) In the alternative to (1), a declaration that the report is, or, alternatively, the parts of the report, which relate to the plaintiff, are unlawful.
(3) A declaration that the report is, or, alternatively, the parts of the report, which relate to the plaintiff, are attended with the appearance of a reasonable apprehension of bias.
(4) A declaration that the plaintiff was denied natural justice by the first defendant.
In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, a majority of the High Court of Australia said that:
“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”
In Charisteas v Charisteas [2021] HCA 29 the High Court in a unanimous decision, held that:
“In this matter, what is said might have led the trial judge to decide the case other than on its legal and factual merits was identified. It comprised the various communications between the trial judge and the wife’s barrister “otherwise than in the presence of or with the previous knowledge and consent of” the other parties to the litigation. Indeed, given the timing and frequency of the communications between the trial judge and the wife’s barrister, it cannot be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, and it was not. The communications should not have taken place. There were no exceptional circumstances.
“A fair‑minded lay observer, understanding that ordinary and most basic of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. The trial judge’s impartiality might have been compromised by something said in the course of the communications with the wife’s barrister, or by some aspect of the personal relationship exemplified by the communications. Accordingly, there is a logical and direct connection between the communications and the feared departure from the trial judge deciding the case on its merits.”
The High Court held that the Full Court’s reasoning was erroneous as the apprehension of bias principle is so important to perceptions of independence and impartiality “that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined”. The trial judge’s failure to desist from communications while his judgment remained pending was contrary to the passage from Magistrates’ Court at Lilydale above, as well as a leading textbook of judicial ethics. That would undermine the appearance of impartiality and no question as to the understanding or motivation of the judge arose.
Furthermore:
“the alignment of the fair-minded lay observer with the judiciary and the legal profession is inconsistent with the apprehension of bias principle and its operation and purpose. The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system”.
“…the fact or circumstance, which a fair-minded observer might apprehend might have led Mr Sofronoff to decide the case other than on its legal and factual merits, consisted of his contacts and communications with Ms Albrechtsen, in circumstances in which Ms Albrechtsen had formed views and published considered articles, which had been and were highly critical of the plaintiff in his conduct of the prosecution of the criminal trial against Mr Lehrmann. The connection between that circumstance and the apprehended deviation from the course of deciding the issues on their merits consisted not only of the communications between Mr Sofronoff and Ms Albrechtsen, but, more significantly, the nature and cogency of the views held by Ms Albrechtsen on the issues to be determined by Mr Sofronoff under paragraph (c) of the Terms of Reference, the amount of communications between Mr Sofronoff and Ms Albrechtsen, and the context, circumstances, nature and content of those communications. Taking those matters into account, which I have discussed above, in my view, the conclusion is unavoidable that a fair-minded lay observer, acquainted with the material objective facts, might reasonably have apprehended that Mr Sofronoff might have been influenced, in determining the issues relating to conduct by the plaintiff of the prosecution of the criminal proceeding against Mr Lehrmann, by the views held and publicly expressed by Ms Albrechtsen.
339․ For those reasons, I have concluded that the conduct of the first defendant, which I have described, did give rise to a reasonable apprehension of bias. It follows that ground 2 of the application for judicial review must succeed.”
However, most of the factual findings were held to not be legally unreasonable:
“In respect of ground 3 (legal unreasonableness), the plaintiff submitted that eight findings, by the first defendant in the Report of the Inquiry, were legally unreasonable. I have concluded that the plaintiff has not established that seven of those findings were legally unreasonable. I have concluded that the finding, by the first defendant, that the plaintiff had engaged in grossly unethical conduct in his cross-examination of Senator Linda Reynolds, was legally unreasonable. Accordingly, ground 3 succeeds in respect of that finding.”
This is a partial win for Shane Drumgold. Whilst there was found to be apprehended bias, most of the factual findings were upheld. As Kaye J noted, as the Report of the first defendant did not, of itself, have any legal effect or consequences, relief in the form of the prerogative writ of certiorari is not available to the plaintiff. And as Janet Albrechtsen has noted, his reputation remains in tatters.
Author adminPosted on Categories civil litigation