The drums roll for Drumgold’s legal career

Walter Sofronoff KC’s damning findings against ACT chief prosecutor Shane Drumgold SC could spell the end of Drumgold’s legal career.

This comes after it was reported that Bruce Lehrmann will sue the ACT Office of the Director of Public Prosecutions over his prosecution. The Prosecution was dropped after a hung jury.

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 “constructed a false narrative to support a claim of legal professional privilege”. Most seriously, it involved him procuring a false affidavit from a junior solicitor of the DPP, which could potentially be a criminal matter.

Sofronoff said he was “deeply disturbed” by Mr Drumgold’s ignorance of ethical principles and accused him of a “Pilate-like detachment”, invoking the moment Pontius Pilate washed his hands of Jesus’s fate, letting the mob decide who should be ­crucified.

In our view, Sofronoff KC was right not to make any declaration of Drumgold’s fitness to remain on the roll of lawyers. That fell outside of the scope of the inquiry. Nevertheless, the findings automatically support an inference that Drumgold should no longer remain a lawyer.

The 2011 Barristers’ Rules provide that:

“These Rules are made in the belief that:
(a) barristers owe their paramount duty to the administration of justice;
(b) barristers must maintain high standards of professional conduct;
(c) barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully and with competence and diligence;
(d) barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues.

The 2011 Barristers’ Rules relevantly contain the following rules of conduct for Barristers:

“A barrister must not engage in conduct which is:
(a) dishonest or otherwise discreditable to a barrister;
(b) prejudicial to the administration of justice; or
(c) likely to diminish public confidence in the legal profession or the
administration of justice or otherwise bring the legal profession into disrepute.

“A barrister must not knowingly make a false statement to an opponent in relation to the case (including its compromise)

“25. A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.
26. A barrister must not deceive or knowingly or recklessly mislead the Court.
27. A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.

“Prosecutor’s duties
82. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
83. A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.
84. A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
85. A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.
86. A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.
87. A prosecutor who has decided not to disclose material to the opponent under Rule 86 must consider whether:
(a) the charge against the accused to which such material is relevant should be withdrawn; and
(b) the accused should be faced only with a lesser charge to which such material would not be so relevant.

It would seem that Drumgold substantially breached many of the above rules.

Sofronoff KC’s inquiry initially looked like it would be about little more than looking into a spat between the ACT Office of Prosecutions and the Australian Federal Police, who held different views about the merits of the prosecution of Bruce Lehrmann for allegedly raping Brittany Higgins in Parliament House.

This is now looking like the biggest legal scandal in Australia since the Lawyer X fiasco. Like the Lawyer X fiasco, this involves a flagrant breach of the fundamental rules that govern the conduct of lawyers. In some ways, the two scandals are mirror images of one another. Whilst Drumgold’s conduct kept the defence in the dark and deprived them of material they were entitled to, Nicola Gobbo’s conduct involved disclosing matters to police that should have never been disclosed because of the duty of confidence that she owed her clients. Gobbo was struck off for her fundamental betrayal of her clients.

A Prosecutor holds a particular duty to act in fairness towards an accused and the Court, as the Barrister Rules quoted above demonstrate. Drumgold’s conduct shows that he apparently lost sight of the nature of his role, and the serious responsibilities of that role. He also apparently overlooked the fact that Brittany Higgins was not his client, and even if she had been, his overriding duty was to the administration of justice and he had no right to mislead the Court or to keep evidence from the defence that it had a right to.

Compounding matters further, Drumgold even betrayed members of his own prosecutorial legal team by getting them to do his dirty work or trying to throw them under the bus.

Fortunately scandals like these are few and far between. The vast majority of lawyers act with integrity and take their responsibilities and duties seriously. Which makes it all the more shocking when episodes like this occur.

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