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‘Utter disgrace’: Shane Drumgold’s future and reputation in law at risk

A large question mark is looming over Shane Drumgold’s future career and reputation in the legal profession following his resignation as the ACT’s director of public prosecutions and a disastrous attempt to hold police accountable for Brittany Higgins’ abandoned rape trial.

user iconNaomi Neilson 10 August 2023 Big Law
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In a report released last week, former Queensland solicitor general Walter Sofronoff made “several serious findings of misconduct” against Mr Drumgold for the way he conducted the prosecution of Bruce Lehrmann and the “egregious abuse” of his position as DPP.

Lawyers have now condemned Mr Drumgold’s conduct as an “utter disgrace” just days after he and the Attorney-General, Shane Rattenbury, agreed his position was “no longer tenable”.

“Mr Drumgold has completely disregarded not only the important duties and responsibilities that apply to prosecutors but the fundamental pillars of our entire legal system,” Creevey Horrell Lawyers principal Dan Creevey commented.


Mr Creevey added that had Mr Drumgold been successful, Mr Lehrmann would have had his freedom stripped from him “on the basis of an unfair trial where the prosecutor lost objectivity, did not act with fairness and detachment and misled the court”.

ACT Bar Association president Marcus Hassall said the council holds “grave concerns” about Mr Sofronoff’s findings.

“Those findings are patently serious and will receive careful consideration by the ACT Bar Council in the context of its role as the professional regulator of the ACT Bar,” Mr Hassall said.

Sofronoff inquiry’s most damning findings

During the board of inquiry set up to examine Mr Lehrmann’s trial, Mr Drumgold defended some of his most concerning conduct, including his decision to read redacted counselling notes and his failure to disclose a document written by Detective Superintendent Scott Moller in June 2021 about police’s thoughts on the charges.

Mr Sofronoff rejected many of Mr Drumgold’s explanations and found that “at times, Mr Drumgold lost objectivity and did not act with the fairness and detachment as was required by his role”.

Referring to Mr Drumgold’s failure to disclose the Moller report, Mr Sofronoff rejected both the idea that the DPP had been “confused” about his instructions and an explanation that he believed the report was non-disclosable due to legal professional privilege.

“The evidence revealed that Mr Drumgold deliberately advanced a false claim of legal professional privilege and misled the court about this claim through submissions and by directing a junior lawyer in his office to make a misleading affidavit,” Mr Sofronoff said.

Mr Sofronoff said that by directing a junior lawyer to do so, Mr Drumgold had “preyed” on their lack of experience, had “egregiously abused” his authority and “betrayed the trust of his young staff member”.

Mr Sofronoff found that had the documents never been discovered by the defence until after the trial and had the prosecution been successful, it would have led to a “miscarriage of justice”.

“The ACT DPP tried to use dishonest means to prevent a person he was prosecuting from lawfully obtaining material,” he added.

Another major concern aired during the inquiry was Mr Drumgold’s lie to the Chief Justice that a note referring to a conversation he had with Lisa Wilkinson about her Logies speech was contemporaneous.

The note had, in fact, been made five days after the meeting and had differing versions of whether Ms Wilkinson had read her speech to Mr Drumgold. At the time, she had been asking whether the speech would be appropriate to make in light of the trial.

Mr Drumgold’s instructions to his counsel that his conduct was nothing more than a “mistake” was found by Mr Sofronoff to “demonstrate a grievous lack of insight into his behaviour and shows that, even now, he is not prepared to admit what he did”.

Mr Creevey said better training may be needed to ensure prosecutors do not make the same failures.

“It is an extremely dangerous precedent to set if prosecutors are allowed to conduct themselves in a way remotely close to how Mr Drumgold did,” Mr Creevey said.

“Prosecutors have the power to take away people’s freedoms and liberties, and this power must be exercised with the greatest caution in accordance with the law and guidelines.”

Following the news Mr Drumgold had resigned, ACT Supreme Court Justice Lucy McCallum issued a statement accepting that public scrutiny is “welcome and necessary” but warned that this could come with a “personal toll on the practitioners concerned”.

What this means for the justice system

Attached to the Sofronoff report was a statement from the Chief Minister, Andrew Barr, and Mr Rattenbury accepting recommendations from the board of inquiry that “offers a pathway forward for the ACT criminal justice system”.

The statement also added that the government had conducted a review of 18 criminal cases conducted by Mr Drumgold since he was appointed the territory’s DPP in 2019. He appeared or was briefed at first instance in only three of those matters.

“The examination has found that Mr Drumgold’s practice whilst DPP was appellate, meaning that the facts and evidence had already been determined and what was in issue was the findings or sentence based on those facts,” the statement read.

The government ultimately said after its review, it does not consider “that a more detailed examination is warranted”.

Mr Barr and Mr Rattenbury added that defendants in either the historic or current matters still “have the opportunity to raise any specific concerns though existing judicial processes”.

In a separate statement to media, Mr Rattenbury said he remains concerned about the low rates of sexual assault reportings and flagged that there may need to be another form of inquiry.

Where to next for Drumgold?

In a statement accompanying his resignation, Mr Drumgold said he rejected many of the findings made about him and that while he acknowledges some mistakes were made, “I strongly dispute that I engaged in deliberate or underhanded conduct”.

“Although I accept my conduct was less than perfect, my decisions were all made in good faith, under intense and sometimes crippling pressure, conducted within increasingly unmanageable workloads.

“Although I dispute many of the findings of the inquiry, I accept the premature publicity surrounding me means that my office, the courts and most importantly, the ACT public could not presently have faith in the discharge of the functions of the DPP,” Mr Drumgold said.

In the statement, the former DPP added his career was “driven by a fire burning within” that took him from a housing commission estate and into the “esteemed leadership role” within the legal profession.

“Unfortunately, I find that fire has been extinguished, and try as I might, I cannot reignite it,” Mr Drumgold said.

The ACT Bar clarified in its own statement that with Mr Drumgold’s resignation, effective 1 September, he would no longer “have the capacity to practice as a barrister in the ACT”.

Any future application will need the approval of the Bar “and will necessitate consideration of the findings contained in the Sofronoff report”, Mr Hassall said in the statement.

“The Bar Council understands that Mr Drumgold will not be returning to work with the ACT DPP prior to his resignation taking effect.”

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