Walter Sofronoff inquiry into Bruce Lehrmann case missed real opportunities for ACT reform

It's become almost a cliche to remark that no one, including Sofronoff himself, has emerged from the inquiry into the Bruce Lehrmann case with a better reputation than when they entered it. Others wonder whether the inquiry achieved anything, vindicated anyone, or changed the system at all. Sofronoff's anodyne recommendations about improved police work hardly address the fundamental problem: the attitudes and mental and emotional baggage and insights that sexual offence investigators - particularly the good old white boys - have been bringing to the job.

Some of Sofronoff's defenders might remark that behind much of the criticism is sour grapes and a refusal to accept the outcome of the case. Sofronoff had no brief to re-open the case, or to re-try the allegations against Lehrmann. Lehrmann was tried, and all the evidence police had gathered was advanced against him. Lehrmann was competently represented by counsel who behaved in an entirely professional manner. The judge summed up, and the jury was sent out to consider its verdict. During this process a chance discovery by a sheriff's officer revealed that one juror had been doing internet research on matters at issue in the case. The judge was forced to discharge the jury. In the ordinary course of events, a new trial would have followed, but the DPP, worried about the impact of a new trial on the alleged victim's mental health, decided to call a halt to further proceedings. Lehrmann is unable to say that he has been acquitted of the alleged offence, but, as an unconvicted person, he is entitled to the presumption of innocence, and Sofronoff was bound to respect it.

The public interest in the detection, prosecution, conviction and punishment of sexual offenders must stand alongside an equally important interest in the right of any person, even an alleged sexual offender, to a fair trial. Many want wholesale reform to sexual offence laws and trials, including some shifting of the balance against defendants. Defendants in sexual assault matters have many more rights and defences than bank robbers, people guilty of common assault, and probably (if we were allowed to know) those accused of national security offences. But that doesn't mean they can be condemned without trial. We do not want, or should not want, lynch law as a substitute for a fair trial.

But one can be exercised by the unsatisfactory outcome in the Lehrmann case, and what it shows of the systemic disadvantage to which it puts victims. One can do that without re-agitating the question of Lehrmann's guilt or innocence. Thanks to Drumgold's compassion for the woman, Lehrmann cannot be re-tried in the criminal courts, and I for one do not want to disturb that fact. That does not stop my unease about the way the case was investigated.

The right to a fair trial embraces the right to have a fair-minded prosecutor putting all the relevant facts before the court, including facts that do not support an assertion of guilt. It also embraces making all relevant factual evidence available to the defence. I am not in the least sure that the duty is, at law, as straightforward or absolute as Sofronoff suggests. I have seen many cases in different jurisdictions where judges have refused to require prosecutors and police to hand over non-scientific opinion material, decision-making material, early notes made by investigators, or records of tactical discussions. In a similarly constituted ACT board of inquiry into the murder conviction of David Eastman, a former chief justice was deeply unwilling to criticise the leader of, or any members of the prosecution team for failure to hand over material that everyone now agreed should have been given to the defence but had not been. The result was a deeply unfair trial, the verdict of which had to be quashed. The law had not changed but no one was criticised, let alone struck off without due process by the local bar association. Some of the undisclosed material, incidentally, had been claimed to be covered by legal professional privilege, claims the prosecution said afterwards it would have waived had the defence pressed requests for access.

MORE SOFRONOFF INQUIRY NEWS:

Though this is not, strictly, a relevant consideration, Sofronoff does not suggest that the fairness of Lehrmann's trial was actually impaired by any prosecution failure to disclose. (Indeed, if Lehrmann thought that, he might be able to find a process by which he could petition the courts for a directed acquittal.)

I am in general favour of maximum disclosure of relevant evidence by police and prosecutors. But I have seen many cases, in state and federal jurisdictions where police and prosecutors have been very selective, and not at all proactive, about disclosure. There is rarely any criticism from the courts. The principle of disclosure - and the advice "if in doubt, hand it over" that Sofronoff endorses - applies equally in criminal matters in magistrates courts. It is not enough to assert that material would be supplied if demanded. Unrepresented defendants - the overwhelming number - should not have any fewer practical rights than the well-heeled defendant with ample representation, privileged access to magistrates, and set piece methods of obtaining particulars.

The disclosure duty ought also to apply in civil cases - say social security appeals - where departments are supposed to be a model litigant. Yet it is clear from the Robodebt royal commission that lawyers failed over disclosure as well as other duties to the public and the public interest. I have not yet seen a single sign of Law Society or ACT Bar Association proactivity about dealing with those of its public service members identified as having failed the supposed standards of the profession.

Sofronoff's experience with criminal matters in Queensland cannot have spoiled him with an idealised image of prosecutors as selfless ministers of justice. Or of police willingness to hand up every scrap of relevant evidence, even if it tends to undermine their case. A quick glance at the law reports shows it's a problem everywhere. I have developed an interest in inquests and police internal inquiries into matters such as the increasingly common police execution of mentally disturbed people waving kitchen knives. And into inevitable but unfortunate deaths, ever, apparently the responsibility of the victims, resulting from overuse of Tasers. Invariably senior police will attempt to prevent discussion of such matters with claims that it might compromise an internal investigation. Yet it is impossible in practice, whether by FOI or subpoena, to obtain copies of the reports, or investigative materials associated with them, at inquests or in criminal or disciplinary proceedings afterwards. The AFP has been such an offender, refusing, for example, to hand over its reports or materials even to WA Police after boat people drownings.

Watching the inquiry, it looked to me as if Sofronoff and counsel assisting went into it with the feeling, from mere reading of police and DPP documents, that the DPP was vulnerable to attack on disclosure. The DPP's suggestion of external interference and police sabotage of the case had spurred the inquiry, and disclosure had very little to do with this. In any event, counsel assisting immediately went for Drumgold's throat and reduced him to a shivering wreck. He was made to retreat from suggestions of political pressure or police resistance. Despite such concessions, ample evidence was there showing that senior police had believed there was insufficient evidence to support a prosecution (though Sofronoff was finally to find them wrong on this.) Some police were orchestrating revolt against the DPP's reluctance to drop the case. They thought he had a bee in his bonnet about rape and the ACT's failure to put many before the courts. This being called "loss of objectivity" - something that could never actuate cops.

The inquiry might have pursued some indications that some AFP figures were attempting to set the DPP up with pre-arranged disputes about legal privilege and disclosure. Some of the "mistakes", excused by Sofronoff as innocent, such as the handing over of counselling notes, and interview material, compounded the view that this was a case being sabotaged. Police became frustrated as the alleged victim's justified distrust of them and insistence that they approach her through the Victims of Crime Commissioner. They seriously considered subpoenaing the commissioner for the sole purpose of preventing her from being able to act as the alleged victim's friend. There was also ample material showing the involvement in decision-making of senior police from commissioners down.

Sofronoff was unaffected by signs that police had not been up to the job. He seemed to think the investigation generally competent and professional, if with a few excusable blemishes that could be remedied in future with better training. He was less critical than police self-criticism. If he had any doubts about professionalism, they were assuaged by a hardly arms-length review by other AFP detectives. He sought no external or independent review of the evidence gathering: clues that might have been missed. He found, unconvincingly, that the mutual suspicion started with Drumgold, which had caused the police to treat him with reservation. Each innocent or unwitting disaster at the hands of police was excusable and not malevolent, even if it heightened paranoia on both sides. Sofronoff went further to conclude that the DPP's complaints involved a wicked and conscious attempt to put material he knew to be false into the public eye. Probably because he had a more activist agenda on prosecuting sexual assault.

I think that is rot and that Sofronoff did not even lay the base for such conclusions. Be that as it may, Sofronoff seems to have thought that the demolition of Drumgold as an individual sank any lingering suspicions of interference in the case, and of police misbehaviour and resistance to a prosecution. It didn't.

The problem is that many members of the public drew conclusions about how the case had been managed from reportage of the case itself. The alleged victim, for example, had been publicly loud (and very reasonably so) about her treatment by detectives from the start. She was treated as an object of suspicion, with the search on for anything that might discredit her. There was ample corroborating material establishing her presence at the scene, partial or complete intoxication, the presence of the accused, and contemporaneous complaint of assault. Even the defendant's varying accounts of why he was there had the capacity to be corroborative, even if he absolutely denied any assault. These were strengths of the case that were ignored. But no one in the supposed "victim-friendly" system focused on the corroborative material.

Instead, the detectives focused on anything - before or after the alleged rape - tending to undermine her account. Police misread as evidence of lying her initial reluctance to hand over her phone. They also used "old men's wisdom and experience" of what young women would, could or should do, to doubt her account even in the absence of material showing her to be a liar.

MORE JACK WATERFORD:

No one could draw from what happened any lesson that the alleged victim had been unwise to use one of her few weapons - the power of publicity - to push the police on. She would have got nowhere without it. Indeed, the most significant pressure on the cops - even if it drew an anti-feminist response from some of the good old boys - was the public perception that they were dragging their feet and did not have their heart in the game. They took ages even to interview the defendant, and even longer to decide to prosecute.

Recently we have heard the alleged victim discuss how she felt herself, in effect, defiled again by her treatment by the system. Nothing Sofronoff has written could cheer her. Nor would it engender any confidence in future of better treatment for any other woman who had been sexually assaulted. Sofronoff has, after all, essentially endorsed the status quo.

The report sheds no light on the ACT's very low rate of rape prosecutions. Some say that only about three per cent of matters brought to police result in prosecution. Even fewer, obviously, result in convictions. This invites the comment that sexual assault can scarcely be regarded as being on the statute books or being enforced. The fear of prosecution and conviction, and sentence, would weigh very lightly on the shoulders of those disposed to sexually assault others.

A recent study in NSW showed how strongly the persisting stereotype of the rapist as a big powerful stranger sets the stage for how police, prosecution and justice system array around the protection of women, children and vulnerable men. In fact, most people are at far more danger from people they know well. To such stereotypes can be added the deeply ingrained views of some detectives, particularly older males, about "women asking for it" by their appearance, behaviour or presence in dangerous locations. Police are no longer allowed to investigate sexual history and background (presumably on the basis that a woman who has had sexual intercourse before is more likely to consent or care if she is violated on some other occasion). Nor are defence counsel allowed to cross-examine women mercilessly about their sexual pasts - nauseating but permitted conduct I saw repeatedly when I first began reporting sexual offence trials in the 1970s.

Some might insist that such things are in the past. But investigating detectives collected and recorded such information about the alleged victim in the Lehrmann case. Some of the adverse information, moreover, was volunteered by some of the woman's colleagues. From what we know, some seemed to think that even if it was inadmissible as sexual history it might have been relevant as to credit - which is to say whether the alleged victim could be believed. I even have a suspicion that the shared gossip about the alleged victim unconsciously influenced the very early doubts by the investigators.

The Drumgold suspicions were the public's suspicions. They have not abated because of any discrediting of Drumgold. The inquiry's lack of interest in looking at the cops has not helped. I did not have the access to the commissioner of Ms Albrechtsen. Nor from any embarrassment he might have suffered from her publication of material never tendered in court, or over an apparent breach of embargo. But at one stage I expressed concern to the board about differential and unfair treatment of police witnesses, including extensive delays in producing statements. The response from Helen Banks, secretary to the board was that "the Chair of the Board of Inquiry has a statutory duty to conduct his inquiry fairly. In his opinion he has done so. Any person affected by an unfairness is at liberty to raise the matter before the inquiry and, if necessary, before the Supreme Court which has the power to grant a remedy in such cases. No witness has done so.''

The problem was that the interest being shortchanged was the public interest. The public interest, to quote from the terms of reference, in "the need for public confidence in the criminal justice system of the ACT" and in ensuring that the ACT framework for progressing criminal investigations and prosecutions was robust, fair and respected the rights of those involved". Strictly one might have expected Counsel assisting the board to play that role, but she disappeared from the scene early, and neither she nor any of her juniors asked any general questions about Canberra's sexual offence laws, about police methodology or the DPP's systems.

After some desultory comments about satisfying public concerns at the beginning of the inquiry, Sofronoff seems to have regarded his brief as involving only a review of the case. He asked no questions about the system in general. His recommendations involve no systemic "reforms" or investigation into the robustness, fairness or respect for rights of existing laws. It seems from his silence that he regards the sexual offence laws as striking the right balances, the police investigatory system is essentially OK, if with some need for tiny adjustments, and all being well if everyone cooperates more. The questions the government asked were unanswered. We deserve our money back.