On 2 August 2023 the Australian newspaper reported the findings of the Sofronoff Inquiry.

It revealed that Shane Drumgold, the ACT Chief Prosecutor in charge of the Bruce Lehrmann sexual assault case, lied to the Supreme Court.

It was found that the ACT Chief Prosecutor:

• Knowingly lied to the Supreme Court;
• Engaged in serious malpractice and grossly unethical conduct;
• Preyed on a junior solicitor’s experience, betrayed that junior solicitor; and
• Treated criminal litigation as a ‘poker game in which a prosecutor can hide cards’.

These are damning, career-ending, and possibly criminal findings against the top prosecutor in the ACT.

Most certainly, these findings go against the grain and are a betrayal of everything that is held on oath by the legal profession, particularly the principles held by those prosecutors who take seriously the prospects of:

• Acting independently and impartially without regard to individual or sectional interests;
• Acting fairly in relation to an accused;
• Acting with integrity and care;
• Avoiding any real or perceived conflicts of interest;
• Striving for the timely and efficient administration of justice;
• Observing the highest ethical and professional standards;
• Not allowing the law to fall into dispute and maintain public confidence in the court process;

Most of all, Prosecutors must comply with the Legal Profession Uniform (Barristers) Rules 2015 and the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.

The Inquiry found that Drumgold had lost objectivity during the prosecution of Bruce Lehrmann and ‘did not act with fairness and detachment as was required by his role.’

These findings sound a critical reminder to all prosecutors, whether they be Police Prosecutors or those employed by the Office of the Director of Public Prosecutions, that they are legally obligated to ensure fairness to an accused person in the prosecutorial process.

Prosecutors are often termed, Ministers of Justice and Officers of the Court. They are required to be independent regardless of their employers’ wishes. They are not mere mouthpieces of the organisation and must defend any ‘direction’ or instruction they are given if they fundamentally conflict with their primary ethical and professional duties to the Court.

Police Prosecutors, for instance, are police officers employed by the New South Wales Police Force. Some are lawyers, and some are not. All police prosecutors are recruited straight from general duties or specialist police areas. It is not a prerequisite that they must have studied law, possess a legal qualification (although it is an advantage) or be admitted to practise as a legal practitioner in the Supreme Court. Mostly, Police Prosecutors appear before the Local Court, Children’s Court and Coroners Court jurisidiction and prosecute around 99% of all criminal matters heard in the State. So their impact on the criminal justice system is not insignificant and can be a determining factor in the administration of justice.

Unfortunately, they are in a tenuous position between being Officers of the Court and being part of a semi-militaristic organisation where being told what to do is a condition of their employment. When a Superintendent tells a Senior Constable to do something, they are lawfully required to obey. Should they refuse, they risk a formal complaint being made against them, termed ‘being put on paper’, which can result in disciplinary action or even being charged with an offence such as Neglect of Duty or worse. That is a lot of pressure for a Police Prosecutor faced with already massive workloads to bear. It is where this relationship between being a sworn Police Officer and being an Officer of the Court gets murky.

Most Police Prosecutors are of non-commissioned officer rank, like Senior Constables or Sergeant. When they go to a senior officer, who is invariably a commissioned officer, like an Inspector or Superintendent, to seek approval to withdraw a matter, they have little or no discretion to make an independent decision about the conduct of their case. Their expert knowledge and knowledge of the court process are often under scrutiny by a layperson, who outranks them. Consequently, they are instructed to ‘run’ the matter, notwithstanding that they may know the case and what needs to be proved. Sometimes they listen and permit the withdrawal, and sometimes they are forced to prosecute matters they know have no reasonable prospect of a conviction or reasonable prospect of success. It could be said that on a daily basis, across the State, Police Prosecutors are made to roll the dice on the administration of justice.

This situation is not a lesser breach of the prosecutorial duties that Drumgold has been found to have trampled. It is the equivalent reckless disregard for the legal process in denying fairness to the accused, except perhaps the media do not report or scrutinise the prosecutorial decision-making process of the largest police force in Australia because, generally, the matters that appear in the Local Court do not have the public salivation and titillation that the Lehrmann v Higgins debacle commanded.

Compliance with their disclosure obligations is perhaps the most fundamental ethical and professional aspect of a Prosecutor’s duties. It is enshrined in legislation under section 15A of the Director of Public Prosecutions Act 1986.

This is not a duty of disclosure to an Accused, but more fundamentally, as Officers of the Court, and Minister of Justice, it is a duty to the Court: Cannon v Tahche (2002) 5 VR 317.

The duty operates without the need by the defence to prompt or fossick for the information or obtain the material themselves. The defence is not required to demand the information by a subpoena or other legal process: Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708.

Failure to disclose if a breach is established may well cause a miscarriage of justice: JB v R [2015] NSWCCA 182; and JB v R (No 2) [2016] NSWCCA 67.

The duty to disclose material to the accused also extends to material in the prosecution’s possession and available to them, which is:

1. Relevant or possibly relevant to the contested issues in the case;
2. Raises a new issue, the existence of which is not apparent from the prosecution case or
3. Holds out a real prospect of providing a lead on evidence in the first two categories: see Bradley v Senior Constable Chilby [2020] NSWSC 145 Adamson J at [46] where her Honour cites R v Reardon (No 2) [2004] NSWCCA 197 Hodgson JA at [46]-[54] and R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321. See also Mallard v R (2005) 224 CLR 125 per Kirby J.

Moreover, the disclosure material does not need to be admissible. It is merely sufficient if the material arms the defence with information that might erode the complainant’s credit. As such, the accused is entitled to any documents which may allow them to pursue a proper and fruitful course in cross-examination: R v Mokbel [2005] VSC 410.

Moreover, the prosecution should not take a narrow view of what the defence might be or whether it will prove helpful. There is no onus by the defence to demonstrate a forensic purpose when seeking prosecutorial disclosure: R v Reardon (No 2) (2004) 60 NSWLR 454 at [58].

Recently, I had to put the prosecution on notice that if certain materials in the possession of the police that were relevant to the complainant’s credit were not produced, then I would be forced to seek a temporary stay of the proceedings until the materials were served. The request was still refused! After further debate and being forced to place those facts and arguments on the record, they produced the material at the hearing. That represented a tangible risk of unfairness to the accused and demonstrated a fundamental misapprehension of the prosecutor’s duty to disclose.

The prosecutorial obligations of fairness and disclosure are often attenuated and even suspiciously ignored in pursuing a conviction at the expense of fairness to the accused. There is a fundamental risk of conflict between the prosecuting authority, in particular police prosecutors, and those that purport to have the power to instruct them on how they should run their case.

In my opinion and experience there is a bullying culture in the decision to prosecute and an untenable interference and disconnect from the principles of the administration of justice, some of which come from a misguided position that the prosecutor’s only duty is to be the organisation’s mouthpiece. There is also a more sinister aspect that some prosecutors may genuinely believe and perceive their role as the arbiters of fact and that their narrative is the only one that matters in testing the evidence.

It is only with the mildest of optimism that I hope the Shane Drumgold findings correct that gross misguidance.