Sofronoff knew ‘destructive' potential of leaking confidential documents to Australian and ABC journalists, court hears
Hearings continued on Tuesday into the former Queensland judge's legal challenge to findings by the Australian Capital Territory's Integrity Commission that he had engaged in 'serious corrupt conduct' by leaking documents relating to his investigation into the Lehrmann case to Janet Albrechtsen at the Australian and Elizabeth Byrne at the ABC.
Those leaked documents included notices sent to then-ACT director of public prosecutions Shane Drumgold that the inquiry was considering making adverse findings against him.
Scott Robertson SC, representing the ACT Integrity Commission, told the court those documents were disclosed to journalists knowing they posed a significant risk to Drumgold's career. 'It wasn't an accidental disclosure, it was a knowing disclosure,' Robertson said.
A 2022 criminal trial against Lehrmann, who was accused of raping Brittany Higgins in the ministerial office of Senator Linda Reynolds at Parliament House in 2019, was abandoned with no verdict because of juror misconduct, and prosecutors decided against a re-trial. Lehrmann denied the allegations.
Sofronoff was appointed by the ACT government to determine whether the investigation into the trial had been affected by political influence or interference. His report ruled that out but made 'serious findings of misconduct' against Drumgold, which were partially overturned in March 2024.
The Integrity Commission launched an investigation in May 2024 to determine whether Sofronoff acted corruptly in leaking confidential documents, including providing the inquiry's final report to journalists before its official public release.
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The corruption watchdog's report, known as the Juno report, said Sofronoff claimed his conduct 'complied with the requirements of the Inquiries Act' and that, in leaking the documents, he had 'acted in the public interest to ensure the media were adequately informed' about his inquiry and 'in a position to comment accurately' about it.
The commission found that Sofronoff 'had not, in fact, acted in good faith', that his actions 'undermined the integrity of the Board's processes and the fairness and probity of its proceedings to such an extent as to have been likely to have threatened public confidence in the integrity of that aspect of public administration. It therefore constituted serious corrupt conduct.'
Sofronoff is challenging this finding on the argument that the commission made a series of errors in its interpretation of legislation, and that there was no evidence to support findings that he had acted dishonestly or not in good faith.
Robertson said Sofronoff clearly knew the material he was disseminating ought to be kept confidential and that parties affected by it would expect him not to send it to journalists.
The non-publication order that Sofronoff issued in April 2023 over the material provided to his own inquiry (as there was a risk that adverse findings may be made at the time), showed he 'quite appropriately' believed that material should be kept confidential, 'yet he acted inconsistent with that own indication', Robertson said.
Evidence for that inconsistency included Sofronoff sending two subpoenaed statements relating to the investigation into Drumgold to Albrechtsen in a text message with the words 'strictly confidential' attached, Robertson said.
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While a number of people were notified that Sofronoff's inquiry was considering making adverse comments against them, Sofronoff only leaked the notices of possible adverse comment against Drumgold to Albrechtsen, the court heard.
Serious adverse findings could, and in this case did, destroy Drumgold's career. The destructive potential of those documents could not reasonably have been lost on Sofronoff, Robertson said, as he was 'an individual of extensive [legal] pedigree'.
'As sensitive and confidential documents go, it's hard to identify a more serious example. The public release of these documents and even the use of it as journalistic background is or was apt to undermine Mr Drumgold's interest, that's the factual context in which the commission makes its relevant findings.'
Robertson argued that if Justice Wendy Abraham were to find that the facts behind the commission's finding were not in error, she would be 'very unlikely' to find error in the subsequent evaluation of Sofronoff's conduct as dishonest.
Sofronoff's barrister, Adam Pomerenke KC, said there was a difference between 'disclosure' and 'publication', and that the suppression order only related to publication. Sofronoff was aware of the terms of his own suppression order, but 'knew that [material] would not be published while this order was operative. That's a different thing from being disclosed'.
Justice Abraham queried the distinction, saying: 'A person providing a statement [to the inquiry] would not expect that to be provided to a journalist without their knowledge, at this stage, with the order in place, would they? They would have the expectation that it would not be.'
'I'm going to stick to that distinction between publication and disclosure, it's a recognised distinction,' said Pomerenke.
The court reserved its judgement.
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