Walter Sofronoff ‘unwise’ but not ‘dishonest’ when leaking documents to journalists during Bruce Lehrmann inquiry

A former judge who leaked details of an inquiry into Bruce Lehrmann’s prosecution to reporters may have been “unwise” but wasn’t dishonest, lawyers have argued in a bid to overturn findings of “serious corrupt conduct”. Former Queensland judge Walter Sofronoff KC led the 2023 board of inquiry into the prosecution of Mr Lehrmann over the alleged rape of Brittany Higgins. A subsequent investigation into Mr Sofronoff’s conduct during that inquiry, in particular his decision to send a copy of the board’s report to two journalists – ABC’s Elizabeth Byrne and The Australian’s Janet Albrechtsen – prior to its official release by the ACT government, was launched by the ACT Integrity Commission. He also leaked documents, including witness statements subject to a non-publication order, drafts of the report, and notices of adverse findings about former director of public prosecutions Shane Drumgold – and two of Mr Drumgold’s responses to those – to Albrechtsen. The commission in March found that Mr Sofronoff had engaged in “serious corrupt conduct”; however, he is seeking to have the commission’s Operation Juno report overturned by the Federal Court. Scott Robertson SC, acting for the ACT Integrity Commission, said Mr Sofronoff had intentionally, and secretly, disclosed confidential material in reports without informing those he knew would have an interest, namely Mr Drumgold and the Chief Minister. He said Mr Sofronoff acted “inconsistent” with the knowledge that certain material should be kept confidential other than to the board and relevant parties, including by giving Albrechtsen documents within the scope of a non-publication order with a note to say it was “strictly confidential”. Mr Robertson also referred to adverse comments about Mr Drumgold given to Albrechtsen, including a “very serious” finding that was, and proved to be, “apt to destroy Mr Drumgold’s career”. “As sensitive and confidential documents go, it’s hard to identify a more serious example,” Mr Robertson said. He used the examples to throw out arguments the commission had “no evidence” to support findings that Mr Sofronoff acted dishonestly in making disclosures to Albrechtsen during the inquiry as well as giving the final report to Albrechtsen and Byrne after he handed it to the Chief Minister. However barrister Adam Pomerenke SC claimed that while Mr Sofronoff’s actions could be considered “unwise”, Mr Robertson had not established the “leap” to dishonesty. “(Mr Robertson) has not demonstrated dishonesty, and there is a difference between unwisdom and dishonesty,” Mr Pomerenke told the court. “There is no evidence that Mr Sofronoff knew that Mr Drumgold or anyone else had an interest, a legal interest, in the nondisclosure of this material.” Justice Wendy Abraham suggested to Mr Sofronoff’s lawyers that Mr Drumgold would’ve expected material from the inquiry to be kept private and not shared with those outside the board while the inquiry was ongoing. However, Mr Pomerenke held firm that there was a stark distinction between publication and disclosure. “Even if (Mr Sofronoff) had by inference knowledge of a desire or an expectation on the part of Mr Drumgold, or even the Chief Minister, (that) the material not be disclosed, what is it that makes it actually dishonest to disclose it on condition it be kept confidential?” Mr Pomerenke said. “It can be unwise … it’s that leap (to dishonesty) that’s not established.” Mr Drumgold resigned from the DPP in 2023 following the inquiry into Mr Lehrmann’s prosecution. Mr Pomerenke on Monday argued that Mr Sofronoff genuinely believed he was acting in the public’s interest to ensure accurate media reporting by sending out the report to the two journalists – an essential part of his role investigating a matter of public interest — and couldn’t have had a corrupt, malicious or dishonest motive. He also denied that Mr Sofronoff preferred the interests of journalists over Mr Drumgold and the Chief Minister. “From the way it was put in the Juno report itself, there is no evidence or suggestion of conscious preferment of the personal interests of the journalists over Mr Drumgold or the Chief Minister … Mr Sofronoff’s state of mind is uniformly that Mr Sofronoff thought he was acting in the public interest,” Mr Pomerenke told the court. Mr Robertson rejected suggestions the former judge acted within the bounds of his role, and in the interest of accuracy in public discourse, when sending out the final report to the journalists. He argued that Mr Sofronoff ceased to be the board of inquiry upon delivering the report to the Chief Minister, and he’d therefore committed an unjustifiable “plain breach” of his nondisclosure responsibilities. The Federal Court has found that Mr Lehrmann raped Ms Higgins on the civil standard of the balance of probabilities. A criminal trial was aborted due to juror misconduct and a charge against him was dropped. Mr Lehrmann has always denied the allegation and is appealing the Federal Court’s finding.