Drumgold v Board of Inquiry & Ors (No. 3)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Drumgold v Board of Inquiry & Ors (No. 3)
Citation:	[2024] ACTSC 58
Hearing Date:	13-15 February 2024
Decision Date:	4 March 2024
Before:	Kaye AJ
Decision:	See [596]-[598]
Catchwords:	CIVIL LAW – JUDICIAL REVIEW – Application for judicial review of findings by Board of Inquiry concerning prosecution by plaintiff of criminal charge – natural justice – apprehended bias – whether fair-minded observer might reasonably apprehend that Board of Inquiry might not have brought impartial mind to determination of issues concerning conduct of plaintiff of prosecution of the charge – legal unreasonableness – whether findings by Board of Inquiry legally unreasonable – whether plaintiff afforded reasonable opportunity to be heard on issues determined by Board of Inquiry – availability of declaratory relief.
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991, s 79C Inquiries Act 1991, ss 18(a), 26A
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Charisteas v Charisteas (2021) 273 CLR 389 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Commissioner for Australian Capital Territory Review v Alphaone Pty Ltd (1994) 49 FCR 576 CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 Drumgold v Board of Inquiry & Ors [2023] ACTSC 394 Duncan v Ipp (2013) 34 ALR 359 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Mahon v Air New Zealand Limited [1984] AC 808 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 R v Carter; ex parte Gray (1991) 14 Tas R 247 Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZMDS v Minister for Immigration and Citizenship (2009) 107 ALD 361
Parties:	Neville Shane Drumgold ( Plaintiff) Board of Inquiry – Criminal Justice System ( First Defendant) Australian Capital Territory ( Third Defendant) Michael Chew, Scott Moller, Marcus Boorman, Robert Rose, Trent Madders and Emma Frizzell (Fourth Defendant)
Representation:	Counsel D O’Gorman SC with S C Brenker and S Blewett ( Plaintiff) B Lim ( First Defendant) K Eastman SC with A Hammond (Third Defendant) J A Greggery KC with R Berry (Fourth Defendant)
Solicitors BAL Lawyers ( Plaintiff) Gilshenan & Luton Legal Practice ( First Defendant) ACT Government Solicitor ( Third Defendant) Gnech & Associates ( Fourth Defendant)
File Number:	SC 347 of 2023

KAYE AJ:

1․The plaintiff is the former Director of Public Prosecutions (‘DPP’) for the Australian Capital Territory. In this proceeding, he claims declaratory relief in respect of a number of findings adverse to him in a report entitled ‘Report of the Board of Inquiry into the Criminal Justice System’ dated 31 July 2023 (the ‘Report’). The Board of Inquiry, constituted by Mr W. Sofronoff KC, was appointed by an Instrument of Appointment dated 1 February 2023 pursuant to s 5 of the Inquiries Act 1991.
2․The Board of Inquiry is named as the first defendant in the proceeding. The party originally joined as a second defendant, the Attorney-General for the Australian Capital Territory, has been removed from the proceeding. The third defendant is the Australian Capital Territory (‘ACT’). In the interlocutory stages of the proceeding, I granted an application by six members of the Australian Federal Police (‘AFP’)[1] to be joined, collectively, as the fourth defendant in the proceeding.[2]
[1] Commander Michael Chew; Detective Superintendent Scott Moller; Detective Inspector Marcus
[2] Drumgold v Board of Inquiry & Ors [2023] ACTSC 394

Background Circumstances

3․The report of the first defendant concerned the investigation by members of the AFP, and the prosecution, of an allegation by Ms Brittany Higgins that she had been raped by Mr Bruce Lehrmann in March 2019 in the parliamentary offices of Senator Linda Reynolds, the then Minister for Defence Industry. Ms Higgins first reported the allegation to police in 2019, but she then decided that she did not wish to proceed with it. Subsequently, in February 2021, she advised police that she wished to proceed with the allegation.
4․In August 2021, Mr Lehrmann was charged with one count of rape. The trial of the charge commenced in early October 2022. The jury commenced its deliberations on 19 October 2022. After more than five days of deliberation, on 26 October 2022, a Sheriff’s officer located an inappropriate document in the jury room. As a consequence, on the following day the Chief Justice, who was the presiding judge at the trial, discharged the jury without verdict. Subsequently, on 2 December 2022, the plaintiff, as DPP, having received two medical reports concerning the mental health of Ms Higgins, made a public announcement that he had decided to discontinue the prosecution of the charge against Mr Lehrmann.
5․In the meantime, on 1 November 2022, the plaintiff wrote a letter to the ACT Chief Police Officer of the AFP, which was critical of the conduct of members of the Sexual Assault and Child Abuse Team (‘SACAT’) of the AFP, who had been responsible for the investigation and prosecution of the matter. In the letter, the plaintiff expressed the view that, at the conclusion of the trial, there should be a public inquiry into ‘both political and police conduct’ in the case.
6․On 21 December 2022, the Chief Minister of the ACT announced the establishment of a Board of Inquiry into the criminal justice system of the ACT. As I have noted the Board of Inquiry was established was established on 1 February 2023.
7․The original terms of reference of the Board of Inquiry included the following:
(a)Whether any police officers failed to act in accordance with their duties or acted in breach of their duties:

(i)in the conduct of the investigation into the allegations of Ms Brittany Higgins concerning Mr Bruce Lehrmann;
(ii)in their dealings with the Director of Public Prosecutions in relation to his duty to decide whether to commence, continue and to discontinue criminal proceedings against Mr Lehrmann in relation to those allegations;
(iii)in their dealings with the legal representatives for Mr Lehrmann before, during or after the trial in the matter of R v Lehrmann;
(iv)in their provision of information to any persons in relation to the matter of R v Lehrmann.

(b)If any police officers so acted, their reasons and motives for their actions.
(c)Whether the Director of Public Prosecutions failed to act in accordance with his duties or acted in breach of his duties in making his decisions to commence, continue and to discontinue criminal proceedings against Mr Lehrmann.
(d)If the Director of Public Prosecutions so acted, his reasons and motives for his actions.
(e)The circumstances around, and decisions which led to the public release of the ACT Director of Public Prosecutions letter to the Chief Police Officer of ACT Policing dated 1 November 2022.
(f)Whether the Victims of Crime Commissioner acted in accordance with the relevant statutory framework in terms of support provided to the complainant in the matter of R v Lehrmann.
(g)Any matter reasonably incidental to any of the above matters.

8․Following its appointment, the Board of Inquiry published ‘Practice Guideline 01-2023’ on 24 February 2023. The guideline invited any person or organisation with information or evidence, relevant to the terms of reference, to submit that information or evidence to the Board. It further provided that such information and evidence should be provided by email and directed to the Executive Director (of the Board) at [email protected]. Clause 8 of the guideline provided that any questions about the Inquiry should be directed to the Executive Director at that email address. Clause 26 provided that subject to the chairperson’s determination of any application for confidentiality, any information, witness statements (including exhibits to the statements), documents or submissions provided to the Board might be published in whole or in part on the inquiry’s website or otherwise made publicly available.
9․At that same time the first defendant also published a document entitled ‘Media Protocols Guideline’. That guideline prescribed a number of protocols for the conduct of media in the course of hearings, and provided information as to how access might be obtained by media to those hearings. Relevantly clauses 3 and 14 were to the following effect:
3.These guidelines provide details of the arrangements for media access and reporting at hearings. The inquiry may vary or depart from these guidelines.
14. For media enquiries, please contact [email protected].

10․The Board of Inquiry commenced with a series of private hearings commencing in late February 2023. On 16 April 2023, the first defendant wrote a letter to the Chief Minister and the Attorney-General of the ACT seeking an amendment to sub-para (c) of the terms of reference. On 28 April, by notifiable instrument, the terms of reference were amended in accordance with the proposal made by the first defendant, so that sub-para (c) of the terms of reference were:
Whether the Director of Public Prosecutions failed to act in accordance with his duties or acted in breach of his duties in:
(i)making his decisions to commence, to continue and to discontinue criminal proceedings against Mr Lehrmann; and

(ii) his conduct of the preparation of the proceedings for hearing; and
(iii) his conduct of the proceedings.

11․On 17 April 2023, the first defendant conducted its first public hearing, which was in the nature of a directions hearing. It then conducted public hearings, involving receiving evidence from witnesses, between 8 May and 1 June 2023. The first tranche of the hearings was between 8 May and 12 May, in the course of which the plaintiff gave evidence over a period of four days. In the course of the hearing on Wednesday 10 May, he became significantly medically unwell. However, he continued to give evidence. On Friday 12 May he became extremely unwell while giving his evidence. Mr Sofronoff asked the plaintiff if he wished to adjourn the matter, but the plaintiff responded that he wanted to continue. The hearing adjourned mid-afternoon. On the following day, the plaintiff attended his treating doctor, who advised him that he was unfit to continue giving evidence on the following Monday, 15 May. The plaintiff’s doctor issued him with a medical certificate providing him with leave from work until 13 June. The plaintiff then underwent some tests, following which his medical practitioner issued a further medical certificate certifying him to be unfit to return to work until 30 June. In the meantime the plaintiff commenced treatment with a specialist practitioner.
12․The second tranche of public hearings commenced on 22 May and completed on 1 June. In the course of those hearings, seven witnesses gave evidence before the Inquiry.
13․The first defendant was due to deliver its report on 31 July. Following the conclusion of the oral hearings, the first defendant delivered ten Notices of Proposed Adverse Comments to nine individuals. Two of those notices were directed to the plaintiff. On 9 June, the first defendant served the first of those notices on the plaintiff. The plaintiff responded on 26 June by detailed written submissions occupying 130 pages. On 29 June, the plaintiff forwarded further written submissions to the first defendant. On 9 July, the first defendant delivered a second Notice of Adverse Comments to the plaintiff. The plaintiff responded to that notice by written submissions dated 21 July 2023.
14․On 31 July 2023, the first defendant submitted its final report to the Chief Minister of the ACT. The report contained a number of criticisms of the conduct by the plaintiff of the prosecution of the charge against Mr Lehrmann. It also criticised the plaintiff in respect of the release by him, in response to a Freedom of Information application, of the letter dated 1 November 2022, which he had written to the ACT Chief Police Officer of the AFP. It is in respect of those findings that the plaintiff seeks declaratory relief.
15․The Report also made a number of findings in chapters 2 and 3 which were favourable to the police investigators, and findings which were favourable to the conduct of the Victims of Crime Commissioner. Those findings are not the subject of the relief sought by the plaintiff in the present proceeding.

The application for judicial review

16․In the proceeding, the plaintiff originally sought declaratory relief on five grounds. He subsequently abandoned the first and fifth grounds. The remaining three grounds are as follows:
(2)The first defendant failed to accord the plaintiff natural justice, in that the conduct of the Member of the first defendant gave rise to a reasonable apprehension of bias;
(3)The findings in the report, specified in Schedule A to the Originating Application, are legally unreasonable;
(4)The first defendant failed to accord the plaintiff natural justice by failing to give the plaintiff a fair hearing in respect of the findings, specified in Schedule B to the Originating Application.

17․Based on those grounds, the plaintiff seeks declaratory relief in the following form:
(1)A declaration that the report is, or, alternatively, the parts of the report, which relate to the plaintiff, are invalid and of no effect.
(2) In the alternative to (1), a declaration that the report is, or, alternatively, the parts of the report, which relate to the plaintiff, are unlawful.
(3)A declaration that the report is, or, alternatively, the parts of the report, which relate to the plaintiff, are attended with the appearance of a reasonable apprehension of bias.

(4) A declaration that the plaintiff was denied natural justice by the first defendant.
18․It is not in issue that, in conducting the Inquiry, the first defendant was bound to adhere to the principles of natural justice (procedural fairness).[3] The plaintiff, as a person whose reputation stood to be affected by the issues to be determined by the first defendant, has standing to institute these proceedings, and to seek relief in respect of it.[4]
[3] Inquiries Act 1991 s 18 (a).
[4] Annetts v McCann (1990) 170 CLR 596, 598-9 (Mason CJ, Deane and McHugh JJ); Ainsworth v
19․After the plaintiff abandoned ground 1, the first defendant, appropriately, did not take an active role in defending his findings or the report of the Board of Inquiry.[5] Counsel did, in undertaking that role, nevertheless draw my attention to certain matters that are relevant to my determination of grounds 2 and 4. The role of contradictor was properly undertaken by counsel for the third defendant.[6]
[5] R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35-6 (Gibbs, Stephen,
[6] Cf Bolitho v Banksia Securities Limited (No 6) [2019] VSC 653, [110] ff (Dixon J).
20․The report of the first defendant did not, of itself, have any legal effect, or consequences. Accordingly, relief akin to the prerogative writ of certiorari is not available to the plaintiff. However, in an appropriate case, the court has power to grant declaratory relief in respect of it.[7]
[7] Ainsworth, 581-2.

Summary of final report of Board of Inquiry

21․For the purpose of addressing the grounds relied on by the plaintiff, it is necessary to summarise, in some detail, the substance of the Report, and the principal findings made by the first defendant in it.
22․As noted in the Report, Senior Constable Emma Frizzell and Detective Leading Senior Constable Trent Madders (‘Detective Madders’) were the core investigators of the allegation. Their team leaders were Detective Sergeants Gareth Saunders and Jason McDevitt. The crime manager of the SACAT, Detective Inspector Marcus Boorman (‘DI Boorman’), supervised the whole team. Detective Superintendent Scott Moller (‘DS Moller’) assumed case management responsibility for the investigation, that was codenamed Operation Covina. Commander Michael Chew, the Deputy Chief Police Officer – Response in ACT Policing, had overall command of the criminal investigation’s portfolio.
23․In Chapter 2 of the Report, the first defendant examined the investigation by ACT Police of the allegation made by Ms Higgins. The first defendant commenced by noting that there was no evidence to support the allegation made by the plaintiff, in his letter to the ACT Chief Police Officer dated 1 November 2022, of political interference in the police investigation of the matter. The plaintiff withdrew the allegation in his evidence at the inquiry. The first defendant was satisfied that a thorough investigation had been conducted by the police, and although some mistakes were made, none of them had affected the quality of the evidence that the police gathered or the prosecution itself.[8]
[8] Report, [45], [48].
24․The report proceeded to summarize the history of the investigation. On 6 February 2021, Detective Madders and Senior Constable Frizzell had an initial meeting with Ms Higgins and Mr Sharaz. On 24 February 2021, Ms Higgins participated in a formal Evidence-in-Chief Interview (‘EICI’) with the police. By that time, DS Moller and DI Boorman had each become concerned about the conduct of Ms Higgins’ involvement with the media concerning her allegations. On 31 March 2021, DI Boorman and other investigators met the Office of Director of Public Prosecutions (‘ODPP’) staff to discuss the investigation, in the course of which they expressed concerns as to Ms Higgins’ motives and credibility, and as to the reliability of her memory.[9] As a consequence, the plaintiff gained the impression that the investigators had already formed an adverse view of Ms Higgins’ credibility. The plaintiff’s appreciation of the police thinking caused him to become unreasonably suspicious about the police, which, in turn, ‘led to trouble’.[10]
[9] Ibid [65].
[10] Ibid [66].
25․On 25 May 2021, DI Boorman directed Detective Madders to prepare a list of identified inconsistencies in the account given by Ms Higgins. Detective Madders prepared such a document, which set out some 18 statements by Ms Higgins that were reportedly contradicted by other evidence.
26․On 26 May 2021, a second EICI was conducted by Detective Madders and Senior Constable Frizzell with Ms Higgins. Ms Yates, the Victims of Crime Commissioner, was present. In the course of the interview, CCTV footage of Parliament House was shown to Ms Higgins. The footage should not have been shown to her.[11] Her responses in the second EICI confirmed the same identified inconsistencies. Ms Higgins became distressed during the second EICI. Police should have recognised that the risk to her health outweighed the minimal investigative and evidential value of the second interview.[12]
[11] Ibid [78].
[12] Ibid [86]
27․On 28 June 2021, the plaintiff gave DS Moller a written opinion to the effect that there was a reasonable prospect of conviction at a trial. In view of that opinion, DS Moller was persuaded there was sufficient evidence to charge Mr Lehrmann.
28․On 22 September 2021, Detective Madders and Senior Constable Frizzell, on a direction from DS Moller, took a statement from Ms Yates. On any rational view, Ms Yates could not have added to the body of relevant evidence.[13] The initiative to interview Ms Yates was misconceived and caused unnecessary stress to Ms Higgins and Ms Yates.[14] The interview was one of the ‘crosswinds’, which led the plaintiff to suspect that police were interfering with the prosecution. In his evidence, the plaintiff accepted that those suspicions were, in fact, misconceived.[15]

[13] Ibid [101].
[14] Ibid [106].
[15] Ibid [107].
29․On 7 June 2021, DS Moller wrote an executive briefing note for Commander Chew to consider. It was accompanied by an analysis of evidence by DI Boorman, which had been requested by DS Moller. The analysis scrutinised seventeen aspects of Ms Higgins’ disclosures, which the investigators believed were inconsistent with the independent evidence. They did not relate to the detail of the allegation of sexual assault and they were not incontrovertible proof that Ms Higgins was dishonest or unreliable.[16] However, the investigators believed that the evidence was insufficient to charge Mr Lehrmann. DS Moller shared that view in an executive briefing note to Commander Chew.[17]
[16] Ibid [109]–[110].
[17] Ibid [111]–[112].
30․Chapter 2 concluded with the observation that the investigators had conducted a thorough investigation. The evidence they gathered was rightly considered by the plaintiff to justify bringing the charge. There was no suggestion that the investigation was flawed. The investigators, and their immediate superiors, had performed their duties in absolute good faith, and with great determination, although faced with obstacles, and they put together a sound case.[18] The investigators made mistakes. The second EICI should not have been conducted, and the interview of Ms Yates was not necessary. However, no police officer breached a duty or acted improperly.[19]
[18] Ibid [113].
[19] Ibid [116].
31․Chapter 3 was entitled ‘Commencement of Proceedings’. In it, the first defendant noted that the evidence of the police in the Inquiry demonstrated that the investigators had correctly understood that there was a threshold below which a person should not be charged, although their opinions varied about the precise content of that threshold.[20] The factors relating to Ms Higgins’ credibility, as identified by the investigators, were real, and, as a result, the police had a firm disinclination to charge Mr Lehrmann.[21] Their doubts led them to think that there were fatal problems with the case, which was a valid professional opinion.[22] The plaintiff was of a different opinion. Once he expressed the opinion that there were reasonable prospects of a conviction, the investigators regarded the issue as closed, and charged Mr Lehrmann. They then continued, conscientiously, to support the prosecutor’s conduct of the trial and to assist where they could.[23]
[20] Ibid [131].
[21] Ibid [133].
[22] Ibid [134].
[23] Ibid [134].

32․Commander Chew concluded that the investigation and evidence should be independently scrutinised before a decision was made to charge Mr Lehrmann. Having reviewed the documents, he confirmed that the plaintiff’s advice, and that an internal review by Commander Smith, should be sought. On 21 June 2021, DS Moller and DI Boorman delivered a letter to the plaintiff seeking his advice, accompanied by a preliminary brief of evidence and documentation. On 28 June, the plaintiff provided legal advice that, on a preliminary basis, there were reasonable prospects of conviction, and there was a public interest in proceeding against Mr Lehrmann.[24] In the meantime, pressure created by the media interest, and the consequent sense of urgency, resulted in mistakes being made, which compromised the right to privacy of Ms Higgins and other individuals.[25]
[24] Ibid [152].
[25] Ibid [154].
33․On 2 August 2021, Commander Smith delivered his review, in which he concluded that the police investigation had been conducted in a thorough, reasonable and proportionate manner. On the same day, Commander Chew instructed DS Moller to commence charges against Mr Lehrmann. The delay in charging Mr Lehrmann had become intolerable, with a perceived threat of negative publicity about the investigation.[26] The urgency to charge Mr Lehrmann became conflated with an urgency to deliver the brief of evidence to the defence. Commander Chew directed DS Moller to ensure that the brief of evidence was served, along with the summons, notwithstanding that if normal processes were followed, it would have been delivered about six weeks before the first court appearance. DS Moller was uneasy that normal processes were being circumvented in haste.[27] At the direction of Sergeant Rose, Detective Madders compiled a brief. In doing so, he did not appreciate that Ms Higgins’ confidential counselling records, and the audio recordings of her two EICIs, were included in the brief. He also did not realise that the personal contact information of Ms Higgins and three other individuals had not been adequately redacted in seven documents. The police did not inform the plaintiff that they had served the brief of evidence on Mr Lehrmann’s solicitor. The errors of disclosure in the brief were not ascertained until 17 September, when the plaintiff noticed that non-disclosable documents had been included in the brief.[28] The haste in delivery of the brief exposed Ms Higgins to the risk that confidential and sensitive information about her could be accessed by people who had no right to see it.[29]
[26] Ibid [170].
[27] Ibid [183].
[28] Ibid [190].
[29] Ibid [191].
34․Chapter 4 of the Report is entitled ‘The Prosecution’. It recorded that on 5 November 2021, the ACT Magistrates’ Court committed the matter to the Supreme Court for trial, and on 10 November 2021, the plaintiff signed and filed an indictment. The inquiry received no submissions that the plaintiff was wrong in presenting the indictment or continuing the prosecution, and (the first defendant concluded) the plaintiff was correct to file the indictment.[30]
[30] Ibid [219].
35․The Report then considered aspects of the role of the prosecutor, and noted that, at times, the plaintiff had lost objectivity and had not acted with fairness and detachment, as required by his role.[31]
[31] Ibid [226].
36․The notes, taken by counsellors at counselling sessions with Ms Higgins, were a protected confidence under s 79C of the Evidence (Miscellaneous Provisions) Act 1991. The inclusion of them in the formal brief of evidence, provided to the defence and to the DPP, was a prohibited disclosure. A legal officer for the DPP, Ms Erin Priestly, discovered the error, and she emailed the plaintiff and his junior counsel, Ms Skye Jerome. The plaintiff skim read the notes. By doing so, he placed himself in a difficult position.[32] The police were not prohibited from having access to, and reading the notes, and they acted properly in obtaining and reading them. There was no reason why, with Ms Higgins’ consent, they should not have given a copy of them to the plaintiff.[33] Having read the notes the plaintiff was in a position where he held information, which was not available to the defence. His knowledge of what they contained may have been unfair because it might have given him a forensic advantage over the defence.[34] If, at the trial, there was some inconsistency in the evidence, the plaintiff would have been required to disclose that inconsistency to ensure a fair trial, but he would have been unable to do so, due to the statutory prohibition.[35]
[32] Ibid [241].
[33] Ibid [246].
[34] Ibid [261].
[35] Ibid [262].
37․In evidence to the Inquiry, the plaintiff said he had not turned his mind to those issues. That demonstrated ‘a disturbing lack of awareness in [the plaintiff’s] understanding of his prosecutorial duties’.[36] The plaintiff should not have read the notes, because it placed him in a position where he might be thought to have significant information about the complainant that was denied to the defence. He could have withdrawn from the case. Alternatively, he could have brought an application for leave to disclose the notes to the defence, or supported an application to that effect by the defence. In the absence of those steps, there might not have been a fair trial.[37] The plaintiff’s lack of consciousness that the prosecutorial duty of disclosure had been engaged, and his failure to consider what he should do, is disturbing.[38] His failure to do anything about the notes was a breach of his duty as a prosecutor.[39]
[36] Ibid [263].
[37] Ibid [264].
[38] Ibid [265].
[39] Ibid [270].
38․In the lead-up to the trial, there was an issue concerning the disclosure of DS Moller’s executive briefing note, and DI Boorman’s evidence analysis. The plaintiff resisted their disclosure. They were ultimately produced when the defence issued a subpoena to the police. The events preceding their production raised questions concerning the plaintiff’s conduct as a prosecutor.[40]
[40] Ibid [271].
39․DS Moller’s executive briefing note was highly critical of how Ms Higgins had conducted herself during the investigation. It specified a number of instances of her behaviour, which he believed might form the basis for an attack on her credit. That part of the executive briefing note, of its own, meant the document must be disclosed.[41] The evidence analysis produced by DI Boorman also had to be disclosed, being a detailed analysis of the evidence that had emerged in the interviews of Ms Higgins and Mr Lehrmann.
[41] Ibid [294].
40․The plaintiff submitted, at the Inquiry, that he had correctly determined that those documents were not disclosable. There is no doubt that they were required to be disclosed. Documents prepared by Detective Madders (comparing the evidence of Ms Higgins to other evidence) and by Commander Smith were also disclosable. The purpose of each of the officers, in preparing the documents, was not to obtain legal advice, but to communicate the facts and their opinions to their superior officer. The documents were required to be given to the defence, and no claim for legal professional privilege could have been maintained. The plaintiff should have known that immediately upon being asked to give his advice.[42] Detective Sergeant Fleming emailed the documents to the plaintiff, stating that AFP Legal had advised that the documents were required to be disclosed and there did not appear to be any obvious claim of public interest immunity or legal professional privilege. In his evidence to the Inquiry, the plaintiff said he did not think it appropriate to provide legal advice, because issues of privilege belonged to the AFP. The plaintiff did not tell Detective Sergeant Fleming that he did not see it as part of his job to advise on that matter; rather, he chose not to respond to the email.
[42] Ibid [305].
41․On 27 April 2022, Ms Jerome and Ms Priestly consulted the plaintiff, who expressed the view that the documents were not relevant, and that he did not wish for them to be disclosed. His evidence at the Inquiry was that he formed the view they were not disclosable because they were created by a police officer, who did not understand the admissibility of evidence. He formed the view that the documents did not meet the test for disclosure. That view was ‘wrong and untenable’.[43]
[43] Ibid [320].
42․If the documents were not disclosable, they should not have been included in the certificate. The certificate did refer to them. As a result of an administrative error, the important row was omitted from the prosecution disclosure statement, and the defence disclosure statement, which caused confusion and suspicion.
43․Following the change in Mr Lehrmann’s legal representation, the defence requested from the ODPP a copy of the latest version of the disclosure certificate. On 16 June 2022, a teleconference took place between the plaintiff, Ms Jerome, Ms Priestly, Inspector Hughes, Senior Constable Frizzell, Detective Madders, and AFP Legal to discuss the request for disclosure. The plaintiff’s previous position was that Detective Madders’ and DI Boorman’s documents were not disclosable. Now he claimed they were covered by privilege. ‘He had no factual basis to form that opinion, and, as has been seen, no such opinion could honestly be formed by a competent lawyer’.[44]
[44] Ibid [340].
44․On 20 June 2022, Ms McKenzie, a member of AFP Legal, emailed five investigative review documents (including DS Moller’s document and DI Boorman’s document) to the ODPP, seeking advice as to whether they were disclosable. The email was forwarded to the plaintiff and Ms Jerome. On 21 June 2022, the plaintiff responded, advising that the documents were preparatory to confidential communications between the DPP and the AFP for the dominant purpose of obtaining legal advice, and accordingly were not disclosable pursuant to s 118 of the Evidence Act. The plaintiff had no basis to form that opinion.[45] The plaintiff, in evidence, said that DI Boorman and DS Moller’s documents were privileged because they post-dated advice that he was going to get a request for advice.
[45] Ibid [353].
45․The proposition, that the legal status of the two documents could be determined by the date on which they were written, is ‘absurd’. The status of the documents depends entirely on the state of mind of the person who made the communication.[46] At a meeting between the plaintiff, Ms Priestly, Inspector Hughes, Ms McKenzie and another lawyer, the plaintiff said that all investigation review items are legally privileged. In the Inquiry, it was submitted, on behalf of the plaintiff, that he held that view relating only to the DS Moller and DI Boorman documents. However, the note recording his view related to all the investigation review items.[47]
[46] Ibid [356].
[47] Ibid [358].
46․On 31 August 2022 following further exchanges between the defence and the prosecution concerning the disclosure of documents Mr Greig, of the ODPP, emailed the defence, stating that all material falling within the ODPP’s disclosure obligations had been disclosed. The defence did not then know that the plaintiff was asserting that any of the documents were privileged or not disclosable. ‘In this way [the plaintiff] kept the defence in the dark about steps he was taking to deny them the documents. That meant that they were in no position to mount a challenge’. It is the duty of the prosecutor, who contends there is a ground upon which to decline disclosure of a document, to be candid about it, so that the judge can decide the issue. Criminal litigation is not a poker game in which a prosecutor can hide the cards.[48]
[48] Ibid [368].
47․In the next section of Chapter 4, the first defendant set out, in detail, steps taken by the defence to obtain disclosure of relevant documents. On 7 September 2022, the defence filed an application, seeking, inter alia, a copy of the ‘investigative review document’ referred to in the disclosure certificate. On 8 September 2022, the plaintiff sent an email to Ms Sarah Pitney, a member of the ODPP, and to Ms Jerome and Mr Grieg, stating that the investigative review document was one of two documents that formed a request by police for advice. On the same date, at a hearing before the Chief Justice, the plaintiff asserted that the document was one of two documents sent by the AFP to the DPP for the express purpose of seeking legal advice. On 12 September 2022, a meeting took place involving the plaintiff, Ms Pitney and Mr Greig, relating to the drafting of affidavits to respond to the application made by the defence. On the same day, the plaintiff emailed the most junior member of his team (Mr Greig), setting out the wording for an affidavit, claiming privilege for the investigative review document.
48․The plaintiff’s representation to the Chief Justice (on 8 September), that the two documents had formed part of the brief for advice, was true but misleading. He omitted to tell her Honour that the documents had not been prepared for that purpose, and that he had not asked the authors about their purpose in making the documents.[49] The plaintiff’s representation, that he thought that it was an error that the documents had been listed as disclosable, was ‘untrue and an invention of his own’.[50]
[49] Ibid [376].
[50] Ibid [376].
49․The affidavit and the submissions prepared by the plaintiff were filed in order to resist disclosure of the documents prepared by DS Moller and DI Boorman. The submissions claimed that the investigative review document was subject to a claim of legal professional privilege.
50․In an interlocutory application, it is common to use hearsay, but the affidavit must identify the person who supplied the information and affirm the truth of that information. The affidavit, that the plaintiff required a fledging staff member who was newly admitted to practice to swear claiming privilege of the document, did not comply with those rules. The plaintiff knew, or ought to have known, that the deponent was required to identify the source of the information and the grounds of the belief. If he did not know that, it was a very serious instance of gross incompetence. If he did know it, he was intending to mislead the Court by deliberate deception. ‘I am of the opinion that [the plaintiff] knew the rule’. He bypassed Ms Pitney, because she knew the requirements, and he thus sidelined the knowledgeable lawyer and procured an inexperienced youngster to do the job instead.[51]
[51] Ibid [385].
51․The affidavit gave the impression the information came from the AFP, but that was false. The plaintiff knew that it was a crucial belief to induce the Chief Justice, because, as he himself had emphasised before the Chief Justice that the privilege was for the AFP to claim, and not for him.[52] The plaintiff also made statements of fact to the Chief Justice that the AFP was making a claim of privilege over the documents. He knew the AFP had not made such a claim, and had not indicated any intention to do so.[53]
[52] Ibid [388].
[53] Ibid [389].
52․In evidence in the Inquiry, the plaintiff claimed that, during a meeting, he had sought to clarify the discrepancy between the plaintiff and the defendant disclosure certificates, and he had been told that the AFP Legal position was that the document fell into the privilege category. ‘This never happened. This was another invention of his. There was no subsequent disclosure certificate. The omission was unintentional, and both disclosure certificates were signed on the same day, in accordance with the usual practice’.[54]
[54] Ibid [393].
53․Ms Drew (a principal at AFP Legal) gave unchallenged and uncontradicted evidence that no-one in the AFP Legal team told the plaintiff, or his staff that the documents were the subject of legal professional privilege. The plaintiff constructed a false narrative to support a claim of privilege. He initially asked Ms Pitney to draft the affidavit, but she was aware of the rule about hearsay evidence. When she asked him about it, he personally drafted the affidavit, and directed the most junior lawyer on the team to prepare and swear it, based on information, the source of which was not revealed.[55]
[55] Ibid [395].
54․At a meeting on 15 September 2022, between the ODPP, the AFP, and AFP Legal, the plaintiff was told that DS Moller did not create the executive briefing note for the purpose of obtaining legal advice. The AFP did not instruct, or indicate, that a claim of legal professional privilege should be made in relation to it. On the following day, 16 September 2022, the Chief Justice heard the application by defence for production of the documents. The only inference from what the plaintiff said to the Chief Justice on that date was that he had been told that the investigative review document had been created for the purpose of obtaining his legal advice. ‘This was false’.[56]
[56] Ibid [404].
55․Subsequently, the defence cause a subpoena to be served on the AFP for production of the investigative review documents. Following receipt of advice from the Australian Government Solicitor, the AFP provided the document to the defence. ‘They were right to do so. The claim for privilege was utterly untenable’.[57]

[57] Ibid [408].
56․In the Inquiry, it was submitted on behalf of the plaintiff that his actions were due to the confused state of his instructions. That explanation is rejected. ‘There is not the slightest indication that [the plaintiff] was confused. On the contrary, he knew exactly what he was doing when he asked Ms Pitney to swear a misleading affidavit and, when foiled, he asked someone in his office that could not be expected to imagine that he was being asked, by the DPP himself, to do something improper’.[58]
[58] Ibid [413].
57․It was also submitted on behalf of the plaintiff that a significant consideration was whether the documents were disclosable and that the question of privilege was academic. That explanation is rejected. ‘The evidence has revealed that [the plaintiff] 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. … [The plaintiff] preyed on the junior lawyer’s inexperience’.[59]
[59] Ibid [415].
58․Quite apart from the plaintiff’s misconduct in misleading the Supreme Court in a criminal case, he ‘egregiously abused his authority and betrayed the trust of his young staff member to whom he owed a duty to be a mentor and a role model’.[60] The plaintiff ‘… tried to use dishonest means to prevent a person he was prosecuting from lawfully obtaining material’. If the defence had not been able to obtain the documents, any conviction would have been set aside on the grounds of miscarriage of justice.[61]
[60] Ibid [416].
[61] Ibid [417].
59․In the next section of Chapter 4, the first defendant considered the circumstances, which led to the successful application by the defence, on 20 June 2022, for a temporary stay of the trial. The application was based on an acceptance speech given by Ms Lisa Wilkinson for the award of a silver Logie on the previous evening, in which Ms Wilkinson had said that the honour belonged to Ms Higgins, a woman of ‘unwavering courage’, who had ‘had enough’.
60․At that time, the trial was to commence on 27 June 2022, and Ms Wilkinson was one of the witnesses who was to be called by the prosecution. On 15 June 2022, the plaintiff held a briefing conference with Ms Wilkinson, at which she was accompanied by her lawyer, Ms Tasha Smithies. After the plaintiff had discussed with Ms Wilkinson the evidence that she was to give at the trial, Ms Wilkinson told the plaintiff that her television show had been nominated for a Logie award, that she had prepared a speech, and that she wished to read the speech to the plaintiff. In her evidence in the inquiry, Ms Wilkinson said that she read to the plaintiff the section of the speech in which she said, ‘The truth is that the honour belongs to Brittany … a woman who’s had enough’, to which the plaintiff responded, ‘I don’t want to hear any more’. The evidence at the Inquiry by Ms Smithies was to the same effect. The plaintiff gave evidence that he had a limited memory of the conversation. He accepted he did not tell Ms Wilkinson not to give the speech, and that he did not tell her not to use the particular words she had read out to him.
61․On 20 June 2022, Mr Greig (of the ODPP) sent to the plaintiff and Ms Jerome a contemporaneous note that he had taken during the proofing conference with Ms Wilkinson. The note did not refer to the discussion concerning the speech that Ms Wilkinson intended to make. Ms Jerome responded by email that Mr Greig should add in that Ms Wilkinson had read what she intended to say at the Logies, and that the plaintiff said he could not give witnesses advice on what to say. The plaintiff responded to Ms Jerome’s email, by saying that after Ms Wilkinson read the first line, he had stopped her, and said that he was not a speech editor.
62․The plaintiff’s best recollection of the conversation differed significantly from the recollections of Wilkinson, Smithies and Jerome in that respect. But it was the plaintiff’s recollection that was ‘cut and pasted’ onto the end of the contemporaneous note sent by Mr Greig.[62]
[62] Ibid [454].
63․On 20 June 2022 at 4:00 pm, the plaintiff and Mr Whybrow, senior counsel for Mr Lehrmann, appeared before the Chief Justice on an application by the defence for a temporary stay. Mr Whybrow tendered the proofing note. Both the plaintiff and Mr Whybrow put to the judge that Ms Wilkinson had been aware, or must have been aware, that an application for a stay could result from her speech. On the following day (21 June), at the resumption of the hearing, the Chief Justice asked the plaintiff whether he took issue with the accuracy of the proofing note, and the plaintiff responded in the negative. He confirmed that it had been made ‘contemporaneously’. The note was not contemporaneous. Mr Greig had not made it. The plaintiff’s statement to the Chief Justice was false. He knew that Ms Jerome’s recollection was materially different to his own. On Ms Jerome’s account, Ms Wilkinson had read the whole of the speech to the plaintiff, which, subsequently, he in fact characterised to the Chief Justice as ‘undesirable’ and ‘unsavoury’.[63]
[63] Ibid [471].
64․In the Inquiry, it was submitted that the plaintiff’s untruthful statements to the Chief Justice were a mistake. That excuse was rejected by the first defendant as ‘wholly untenable’.[64]
[64] Ibid [472].
65․Ms Wilkinson did tell the plaintiff the substance of what she intended to say at the Logies. The plaintiff’s statements to the Chief Justice about the nature of the note were not a mere mistake by him. He ‘knowingly lied’ to the Chief Justice. His instructions to his counsel (in the Inquiry) to make the submission that his conduct involved nothing more than a mistake ‘… demonstrates a grievous lack of insight into his behaviour and shows that, even now, he is not prepared to admit to what he did’.[65] On any version of the conversation, his response to Ms Wilkinson was wholly inadequate. The speech she intended to give had the obvious tendency to prejudice the fairness of the trial, and that should have been apparent to the plaintiff.[66]
[65] Ibid [477].
[66] Ibid [479].
66․Once the plaintiff knew that Ms Wilkinson might broadcast a statement whose tendency would be to affect the fairness of the trial, he was under an obligation to prevent that outcome. At the Inquiry, the plaintiff accepted that, in hindsight, he should have given that advice to Ms Wilkinson, but he said he had entirely misread the situation. ‘Actually, [the plaintiff] did appreciate at the time that he had an obligation to warn those involved in the case not to do things that might prejudice the trial. But he was choosy as to whom he should warn’.[67]
[67] Ibid [492].
67․The plaintiff did not merely fail to do his duty to advise Ms Wilkinson not to make the speech. The tendency of the speech, as the Chief Justice found, was to create a prejudice against Mr Lehrmann, thereby tilting the balance in favour of the prosecution.[68] The first defendant rejected the submission, made on the behalf of the plaintiff, that the warning he gave to Ms Wilkinson was over and above his duty as DPP and as a prosecuting barrister.[69]
[68] Ibid [494].
[69] Ibid [496].
68․In the months following the Chief Justice’s decision to stay the trial, Ms Wilkinson’s lawyer, Ms Marlia Saunders, tried to engage with the plaintiff to correct the falsehood that Ms Wilkinson had given the speech in defiance of a clear warning. Ms Saunders sent an email to the Chief Justice’s associate, copying in the parties, attaching a letter stating that neither Ms Wilkinson, nor Network Ten senior legal counsel, had understood that the plaintiff had cautioned them that the speech could result in an application to vacate the trial date. When the plaintiff appeared before the Chief Justice on 23 June, he chose not to tender that letter, despite the Chief Justice saying that she had received it. In evidence in the Inquiry, the plaintiff said he did not tender the letter due to ‘inattention’. That was not the true reason. He did not tender it because it would embarrass him, after he had earlier submitted that he had given a clear and appropriate warning to Ms Wilkinson.[70] Subsequently, the plaintiff did not respond to attempts, by Ms Saunders, to contact him about the matter. He did not respond, because he knew he could not do so without admitting his own failures. That was what his ethical duty as a barrister required him to do.[71]
[70] Ibid [503].
[71] Ibid [518].
69․Chapter 5 of the Report is entitled ‘The Trial’. It commenced with a section entitled ‘Tension between ODPP and ACTP’. The report noted that the relationship between the prosecution and the police deteriorated as the matter progressed from investigation to trial. The investigators formed the incorrect belief that the evidence was insufficient to proceed with the charge. It was correct for the plaintiff to express his opinion to the investigators concerning that matter, just as it was right for the investigators to advance their views of the case to him.[72] The plaintiff came to hold a baseless suspicion that police were interfering and seeking to sabotage the prosecution. That prejudice infected his perception of the actions of the investigators, during the investigation and trial.[73] Feelings of distrust also coloured the investigators’ perception of the plaintiff. However, the prosecuting team and the investigators continued to act professionally.[74] The plaintiff continued to be suspicious of communications between the investigators and defence counsel.
[72] Ibid [522].
[73] Ibid [523].
[74] Ibid [531].
70․In Chapter 5, the first defendant then considered an issue that concerned a prosecution witness, Ms Fiona Brown. Ms Higgins was the first witness in the trial, but her evidence was not completed when she became ill. Other prosecution witnesses were interposed, including Ms Brown, who was Senator Reynolds’ Chief of Staff. Ms Brown gave relevant evidence of conversations that she had with Ms Higgins and Mr Lehrmann in the days following the incident. After Ms Brown concluded her evidence, Ms Higgins was re-called. Subsequently, Ms Brown read a media report, quoting the evidence by Ms Higgins to the effect that she had had a conversation with Ms Brown about proposed work arrangements, after she had disclosed to Ms Brown the allegation that she had been raped by Mr Lehrmann. Ms Brown disputed the truth of Ms Higgins’ testimony as reported in the media, and telephoned an ODPP staff member. She also wrote an email to Ms Pitney and Mr Greig, disputing the allegation, reported in the media, that Ms Brown had offered to pay Ms Higgins six weeks’ wages to go to the Gold Coast during the election campaign. Ms Pitney forwarded the email to the plaintiff, but he did not respond to it, and he did not disclose the email to the defence.
71․In isolation, the email should have been disclosed. But in context, the probative significance of the email had diminished, as the media report was not a true reflection of the evidence given by Ms Higgins. The plaintiff’s decision not to disclose the email was a sound application of the threshold of disclosure, but it produced the result that the defence was deprived of the opportunity to explore a legitimate forensic inquiry, namely, to speak to Ms Brown and find out the context of the conversation.[75]
[75] Ibid [557].
72․The Report then dealt with issues relating to Senator Linda Reynolds. At the time of the incident in question, Ms Higgins was working for Senator Reynolds, who was then Minister for Defence Industry. On 1 April 2019, Ms Higgins met with Senator Reynolds and Ms Brown. During the meeting, they discussed that Ms Higgins and Mr Lehrmann had entered into Ms Reynolds’ office in the early hours of 23 March 2019. At the trial, Ms Higgins gave evidence that, at that meeting, she told Senator Reynolds that Mr Lehrmann had sexually assaulted her. Senator Reynolds’ evidence was that Ms Higgins did not reveal that anything sexual happened between herself and Mr Lehrmann.
73․At the trial, the prosecution advanced the argument that ‘political forces’ had explained the delay in Ms Higgins making a complaint to the police for two years. The prosecution submitted that it was abundantly clear, from the evidence and actions of Senator Reynolds, during the trial, that those political forces were still a factor. Senator Reynolds and Senator Cash each gave evidence, denying that they had discouraged Ms Higgins from making a complaint, for political or other reasons. There was no other evidence that anyone had applied pressure to Ms Higgins that could be legitimately described as ‘strong political forces’. However, the plaintiff submitted to the jury that the evidence of Senator Reynolds, during the trial, indicated that ‘political forces’ were still extant.[76]
[76] Ibid [574].
74․During the trial, the plaintiff formed the view that Senator Reynolds had acted improperly in the context of the trial in three respects. First, during the trial, defence counsel, Mr Whybrow, told the plaintiff that he had had contact with Senator Reynolds’ partner. Secondly, the plaintiff had observed Senator Reynolds’ partner sitting in the court, near DI Boorman and DS Moller. Thirdly, Mr Whybrow revealed to the plaintiff that Senator Reynolds had messaged him, when Ms Higgins was being cross-examined, requesting that a copy of the transcript of Ms Higgins’ evidence be given to her lawyer.
75․When Senator Reynolds gave evidence, the plaintiff was granted leave to cross-examine her. He commenced by putting to Senator Reynolds that she had arranged for her partner to attend court and that her partner had discussed with her the evidence that had been given by Ms Higgins. Those propositions were not based on any evidence, and the plaintiff had no information to support them. The propositions were tantamount to an allegation of an attempt, by Senator Reynolds, to pervert the course of justice. Further, there was no evidence upon which the plaintiff could allege that Senator Reynolds’ partner had anything to do with her request for the transcript of Ms Higgins’ evidence, and there was no support for the suggestion that the presence of her partner in court was improper.[77]
[77] Ibid [584]– [585].
76․In the Inquiry, the submissions, made on behalf of the plaintiff, acknowledged that he fails to understand the difference between putting an allegation of misconduct to a witness as a matter of fact, and, on the other hand, asking a witness whether or not something is a fact.[78] The request, made by Senator Reynolds to Mr Whybrow, that the transcript be supplied to the lawyer, was not a sufficient basis for the cross-examination. Her evidence at the Inquiry was that, because Ms Higgins had issued proceedings claiming damages for personal injury against her, she had been advised she should obtain the transcript of the criminal trial. The fact that relatives and friends of a witness attend cases cannot be a basis upon which to infer improper collusion. The suggestion that Senator Reynolds, as well as her partner, were engaging in potentially criminal conduct was an improper suggestion and should not have been made.[79] Likewise, it was improper to put to Senator Reynolds, in cross-examination, that she was ‘politically invested’ in the outcome of the trial.[80] The first defendant accepted that the plaintiff had acted out of ignorance, and did not intentionally breach the ethical principle, but he noted, he was ‘taken aback’ that senior counsel, holding the office of Director of Public Prosecutions, should be so ignorant of this fundamental principle.[81] The suggestions, made by the plaintiff, had no basis at all and should not have been made. They were intended to, and might have, affected the outcome of the trial adversely to Mr Lehrmann, and the conduct was therefore grossly unethical.[82]
[78] Ibid [591].
[79] Ibid [596].
[80] Ibid [597].
[81] Ibid [599].
[82] Ibid [600].
77․Chapter 6 of the Report is entitled ‘The aftermath of the mistrial’. It commenced by dealing with the letter, that was written by the plaintiff, to the Chief Police Officer on 1 November 2022. In evidence at the Inquiry, the plaintiff said he had had a reasonably based suspicion that there had been political interference with the prosecution. The letter contained serious allegations of impropriety against police, the defence and Senator Reynolds. At the Inquiry, the plaintiff advanced nothing in the evidence to support those serious allegations. In his evidence, he said he had no choice but to write to the Chief Police Officer.
78․However, there were other options he could have chosen. Instead, he chose to call for a public inquiry. When a high officer of State demands the establishment of a Commission of Inquiry, a government can hardly refuse. Each allegation, contained in the letter, has been exposed to be ‘baseless’. Later, in his oral evidence at the Inquiry, the plaintiff finally resiled from his ‘scandalous allegations’.[83] The allegation of political interference was particularly wicked, because it was an allegation that had a tendency to diminish the community’s confidence in the system of justice, and it was made without the slightest evidence to support it.[84] The plaintiff chose the path of the highest risk that his unsubstantiated claims might enter the public domain before their truth had been determined. It was with the plaintiff’s help that the letter, defaming others, made its way to a newspaper. The result has been the expenditure of public money, which was not justified by any of his allegations.[85]
[83] Ibid [626].
[84] Ibid [627].
[85] Ibid [620] and [631].
79․On 2 December 2022, the plaintiff made a statement at a press conference, announcing his decision to discontinue the prosecution. His comments went beyond providing his reasons for that decision. He said that his clear view was that there was a reasonable prospect of conviction, and he praised Ms Higgins for her courage, grace and dignity. In evidence to the Inquiry, the plaintiff conceded that he probably should not have included those comments in his speech. The comments were improper, and they should not have been made. It was not necessary for the plaintiff to express his views on the prospects of conviction. Nor was it his function to identify himself with the complainant to a degree that he made a statement of public support for her. The plaintiff owed Mr Lehrmann a positive obligation to uphold the presumption of innocence, and he should not have used his high office to impute guilt in a public forum. The plaintiff’s comments were improper. They undermined the public’s confidence in the administration of justice, and constituted a failure in his duty as DPP.[86]
[86] Ibid [656]–[660].
80․In the next section of Chapter 6 of the Report, the first defendant considered the circumstances involving the release, under the Freedom of Information (‘FoI’) legislation, of the letter written by the plaintiff to the Chief Police Officer on 1 November 2022.
81․On 3 December 2022, The Australian newspaper published an article entitled ‘Police doubted Brittany Higgins’ case was political’. There was no evidence at the Inquiry that explains how and when the police briefing documents had been disclosed to that newspaper. Shortly after the publication of that article, Mr Christopher Knaus, a journalist from The Guardian newspaper, contacted the plaintiff about it. The plaintiff told Mr Knaus that he had written a letter to the Chief Police Officer about the matter, so he could not make any further comment about it. On 5 December 2022, Mr Knaus submitted a FoI application to the ODPP, seeking disclosure of any documented complaint, by the DPP, about the conduct of the police. Ms Katie Cantwell, the Chief Executive Officer of the ODPP, forwarded the FoI application to the plaintiff on 7 December 2022. The plaintiff responded, attaching to Ms Cantwell a copy of his letter to the Chief Police Officer. The contents of the letter were not redacted, and it contained the names of Whybrow, Moller, Boorman, Chew, Frizzell, Madders and Senator Reynolds. The letter outlined the plaintiff’s suspicions of impropriety by those persons. The AFP could have exercised a feasible claim for legal professional privilege over some or all of the contents of the communication. The plaintiff was aware that an FoI application might give rise to a need to consult others, before making a decision on the application.[87]

[87] Ibid [680].
82․The plaintiff contacted Ms Cantwell, and he confirmed that he wanted her to send the letter to Mr Knaus. On 7 December 2022, Ms Cantwell emailed the plaintiff, asking him to confirm that the attached letter was the one that he wanted her to release under FoI to The Guardian. The plaintiff responded, ‘I’m happy for it to go out’. As a consequence, Ms Cantwell emailed a copy of the unredacted letter to Mr Knaus. Thus, the FoI application, concerning the release of the letter in which the plaintiff had impugned the reputations of named police officers and Senator Reynolds, was considered, determined, and executed within four hours of first being considered.[88]
[88] Ibid [684].
83․The plaintiff had not told the Chief Police Officer that the letter had been the subject of an FoI request. After its release, the Chief Police Officer called the plaintiff to express his frustration about it. The plaintiff told the Chief Police Officer he did not know about the FoI or the fact that it had been released, as it was dealt with by the FoI officer, and he could not explain why the DPP had not advised the ACT Police of the release of the document under FoI. Those statements by the plaintiff to the Chief Police Officer were ‘false’.[89]
[89] Ibid [688].
84․After speaking with the Chief Police Officer, the plaintiff arranged for Departmental staff to review the letter. That process culminated in the production of a redacted version of the letter on 9 December 2022. That version was registered as the official response to Mr Knaus’ FoI application. However, The Guardian newspaper had already published an article, based on the unredacted letter, quoting the allegations contained by the plaintiff, albeit that the journalist did not name the individuals concerned.
85․The Chief Police Officer made a complaint to the ACT Ombudsman about the release of the letter. A similar complaint was also made to the AFP Association. The Ombudsman sought the plaintiff’s response on the point. The Ombudsman found that the plaintiff had breached his duty of consultation before releasing the letter under FoI. In evidence in the Inquiry, the plaintiff explained his failure to consult the AFP. He said that Ms Cantwell was still to consider the other requirements of the FoI Act, such as whether disclosure of the information would be in the public interest, or whether consultation with third parties was required. He had given similar responses to the Ombudsman and to the ACT Police.
86․In the Report, the first defendant rejected that explanation ‘as false’.[90] First, Ms Cantwell did not interpret the plaintiff’s email incorrectly; he had given her an unambiguous verbal instruction to release the unredacted letter.[91] Secondly, Ms Cantwell had no responsibility to consider issues of redaction, consultation or public interest; her role was wholly administrative.[92]
[90] Ibid [694].
[91] Ibid [695].
[92] Ibid [696].
87․The first defendant rejected the submission that he should not criticise the plaintiff, because the plaintiff had already unreservedly accepted the observations and assessment by the Ombudsman that he had breached his duty of consultation. The Ombudsman was not told the whole truth. As a result, he did not have the full facts when he made his inquiries. The evidence in the Inquiry has revealed that the explanations, proffered by the plaintiff to the Ombudsman, the ACT Police and to the Inquiry, ‘were untrue … [the plaintiff] has shamefully tried to falsely attribute blame to Ms Cantwell, who, in every respect, performed her duty assiduously and in accordance with instructions that she was bound to follow from [the plaintiff]’.[93]
[93] Ibid [699].
88․The final chapter of the Report, Chapter 7, concerned the conduct of Ms Yates, the Victims of Crime Commissioner, in supporting Ms Higgins during the trial. That section of the report is not relevant to the current proceeding. It is sufficient to record that the report concluded that Ms Yates’ role as a conduit was beneficial to Ms Higgins in her engagement with the ACT Police, and it also assisted police in the investigation. Her role, as the contact point between herself and the police, had been constructive, and the arrangements were proper and beneficial for the progress of the investigation.[94] The report concluded that Ms Yates’ professional involvement with Ms Higgins in the trial was consistent with her statutory functions, albeit that the extent of her involvement was unprecedented.[95] There could be no suggestion, nor had there been, that the trial had been rendered unfair by anything that Ms Yates did or did not do.[96]
[94] Ibid [757]–[760].
[95] Ibid [778].
[96] Ibid [785].
89․After the discharge of the jury on 27 October 2022, Ms Higgins asked Ms Yates if she could stay with her while she made a statement out of court about the matter. Ms Yates agreed. Ms Higgins made a speech, stating that she was a victim of a violent offence and that the justice system had failed to vindicate her. Ms Yates candidly accepted in hindsight that she should have asked Ms Higgins what she was going to say. However, the occasion was not one in which anyone could have acted or reacted with total cool detachment. Ms Yates was very concerned about Ms Higgins’ welfare. She was correct to consider that to be her primary function. Her presence by Ms Higgins’ side when she made the speech was unfortunate, but it was not due to any fault of Ms Yates.[97]
[97] Ibid [801]–[802].

Evidence

90․The plaintiff and the first defendant have each filed affidavits in the proceeding. The plaintiff’s affidavits related primarily to the issues raised by ground 2. The affidavits deposed by Mr Sofronoff and two witnesses on behalf of the first defendant were primarily directed to the issues raised by ground 1, which was abandoned by the plaintiff after those affidavits were filed. Aspects of the affidavits are also relevant to ground 2. In summarising them, I shall omit those parts of the affidavits, which are only relevant to ground 1, and not to ground 2.
91․In addition to the affidavits, the parties originally provided a second Court Book, which contained all of the transcript of the public hearings before the Inquiry, and the statements of witnesses that were put before the Inquiry. The Court Book was not received as an exhibit. In their written and oral submissions, the parties referred to and relied on specific parts of the evidence before the Inquiry. At the conclusion of oral argument before me, the parties collated those extracts, which collectively were tendered in evidence as Exhibit A in this proceeding. That exhibit contains all of the extracts, from the evidence before the Inquiry, which I have considered in determining the three grounds of review in this case. Apart from those extracts, the Court Book is otherwise not relevant. I have not read it, and I have had no regard to it.
92․It is convenient to summarise the substance of the affidavits before considering the grounds of review.
93․In support of his case, the plaintiff himself affirmed an affidavit. In addition, his solicitor, Ian Meagher, deposed a number of affidavits, which exhibited a significant volume of documents, which have been discovered by the first defendant, and also documents which have been obtained under subpoena.
94․It is convenient to commence, first, by summarising the affidavit of the plaintiff.
95․Following the establishment of the Board of Inquiry, the plaintiff, in answer to a subpoena, produced documents to the first defendant. In answer to a further subpoena, he provided a statement, dated 4 April 2023, and subsequently he gave oral evidence in the Inquiry over a five day period between 8 and 12 May 2023.
96․On the morning of 10 May 2023, the plaintiff’s counsel, Mr Tedeschi KC, brought to the plaintiff’s attention an article in the media, which was inappropriately derogatory of Ms Higgins. On the same day, Mr Tedeschi raised the issue of that article before the first defendant and applied for a non-publication direction. In a ruling on that matter, Mr Sofronoff made the following statement:
Most people will only know about the proceedings through the work of reputable journalists. With that in mind, I and my counsel assisting have freely engaged with journalists to ensure that they can obtain a full understanding of what the evidence means and what may be the significance and ramifications of the evidence. Without that kind of engagement between my counsel assisting and, indeed, engagement by me with journalists, and without making the oral evidence and the documentary evidence available to journalists and the public, the community would have to wait for my report to learn the truth about how various important public officers perform their duties. The community would be denied the precious opportunity to assess the evidence for themselves as it emerges.
97․In his affidavit, the plaintiff then noted that The Australian newspaper, and, in particular, the journalist, Ms Janet Albrechtsen, had, both before and following the Inquiry, frequently reported on him, and (in the opinion of the plaintiff) had only ever done so in an ‘adverse manner’. Between 17 November 2022 and 11 August 2023, The Australian newspaper published more than 60 articles that (in the opinion of the plaintiff) damaged his character. Some were concerned with work-related issues, and some related to personal issues. A copy of those articles, and some related articles, 77 in total, are exhibited to the affidavit. The plaintiff contends that the articles were interspersed with other articles that were favourable to Mr Lehrmann and to Senator Reynolds.
98․On 30 June 2023, the plaintiff had a meeting with the Attorney-General of the ACT and the Director-General of the Department of Justice and Community Safety, in which they discussed the process that should be followed, should any proposed adverse findings be made against the plaintiff in the report. The Attorney-General advised the plaintiff that the Board of Inquiry would provide a copy of the report to the Chief Minister, who would consider it, and, if necessary, the Attorney-General would provide the plaintiff with an opportunity to respond to any adverse findings in it. At no time was the plaintiff informed that the first defendant would provide any part or version of the report directly to a journalist.
99․The plaintiff began to become concerned about the report when he read an article in The Australian newspaper on 20 July 2023, written by Ms Albrechtsen and Mr Stephen Rice, entitled ‘Reynolds blasts DPP Drumgold’. He became further concerned there may be adverse findings against him when, on 1 August 2023, he read a further article in The Australian newspaper entitled ‘Revenge of Lehrmann’, which alluded to what was expected to be ‘serious adverse findings against Chief Prosecutor Shane Drumgold’.
100․On the following day, the newspaper published another article, under the headline ‘Prosecutor may face charges’, and ‘DPP at risk of charges if he misled court’. On 3 August 2023, The Australian Newspaper published two articles, which referred to several of the adverse comments that were made against him in the final report of the first defendant.
101․At 11:30 am on 3 August 2023, the plaintiff participated in a Teams meeting with the Attorney-General and the Director-General, in which the Attorney-General said he was satisfied, on the face of the final report, that there had been misconduct, so that he considered that the plaintiff’s position as DPP for the ACT was untenable. On that basis, the plaintiff agreed to resign. On the following day, he emailed a letter of resignation to the Attorney-General. Later on the same day, the plaintiff received an email, attaching the final report of the first defendant and a letter from the Attorney-General.
102․In his affidavit, the plaintiff said that if he had received the final report before he tendered his resignation, he would have held off resigning, because he would have noticed ‘the differential way the report categorised my actions with the actions of others’. He would have also sought to defer making a decision, pending receipt of advice whether he should make an application for an interim injunction in respect of the release or publication of the adverse findings against him.
103․Subsequently, on 12 August 2023, the plaintiff read an article in the ‘Canberra Times’, which stated that Mr Sofronoff had disclosed the final report to Ms Albrechtsen on 30 July, before he had submitted the report to the Chief Minister. Further, on 1 August, the Queensland Media Club had announced that Mr Sofronoff would give a speech on 25 August 2023 entitled, ‘Politics, journalism and social media versus the presumption of innocence’. In addition, on 2 August 2023, Mr Sofronoff had disclosed the final report to the ABC. Having read that article, the plaintiff became further concerned about the legality of the report.
104․As mentioned, in addition to the affidavit, deposed by the plaintiff, his solicitor, Mr Ian Meagher, has deposed five affidavits, which exhibited a substantial amount of documents, discovered by the first defendant and by the third defendant, and in addition, some documents obtained by the plaintiff under subpoena. Those documents include the nineteen specific communications, relied on by the plaintiff under ground 1. The balance of the documents, that are exhibits to the affidavits of Mr Meagher, are relied on by the plaintiff in support of ground 2.
105․At a pre-trial hearing, an issue arose concerning the relevance of those documents. In response, the plaintiff provided a number of schedules, which extracted the relevant parts of those documents, in a manner which made them sufficiently relevant to be admitted in evidence in the case.
106․The first schedule extracts, from the exhibited documents, the relevant aspects of communications between Mr Sofronoff on one hand, and two journalists associated with The Australian newspaper, namely, Ms Janet Albrechtsen and Mr Hedley Thomas. The second schedule extracts and summarises communications between Mr Sofronoff and journalists, who were not associated with The Australian newspaper. The third schedule extracts and summarises communications between journalists, on the one hand, and staff of the Board of Inquiry, including Counsel Assisting, but excluding Mr Sofronoff, on the other hand. The fourth schedule identifies each of the nineteen communications, relied on by the plaintiff under ground 1, by reference to the exhibits to the affidavit of Mr Meagher. The fifth schedule identifies some ten further documents, contained in the exhibits to Mr Meagher’s affidavit, and specifies the issue, specified in the plaintiff’s further amended particulars of the ground of application, to which that document is relevant. The sixth schedule contained extracts of relevant articles published in The Australian newspaper.
107․The third schedule is quite substantial, comprising some 167 communications. Specifically, it sets out:
(a)communications between journalists (or other members of the media) and the email address [email protected] (‘BOI Information’);
(b)communications between journalists (or other members of the media) and the email address of Ms Helen Banks, the Executive Director of the first defendant;
(c)communications between journalists (or other members of the media) and Ms Genevieve Cuddihy, Senior Solicitor Assisting the Board of Inquiry;
(d)communications between journalists (or other members of the media) and the email address of the Justice and Community Safety Directorate media team, (‘JACS Media’) which were then forwarded on to BOI Information;
(e)communications between BOI Information, Ms Banks, Ms Cuddihy or JACS Media on the one hand, and Mr Sofronoff, Counsel Assisting, or Ms Cuddihy, on the other hand, which forwarded and/or discussed the communications with media personnel.

108․In response, the first defendant filed an affidavit of Mr Sofronoff, and also affidavits of Geoffrey Lance Davies and James Cochrane Bell. Those affidavits were directed primarily to ground 1 of the originating application, which was subsequently abandoned by the plaintiff, but parts of them are also relevant to some of the issues raised under ground 2.
109․Mr Sofronoff was admitted as a barrister of the Supreme Court of Queensland in 1977. He was appointed Queen’s Counsel in 1988, and practiced at the Bar for 39 years, until his appointment as President to the Queensland Court of Appeal in 2017. He served in that role until 2022.
110․In his affidavit, Mr Sofronoff set out his experience in conducting two previous significant Commissions of Inquiry. In 2015, he was appointed Commissioner of Inquiry into flooding in the town of Grantham in Queensland. The flood, which had occurred in 2011, affected large parts of south-east Queensland, and resulted in the deaths of 21 people. Subsequently, after his retirement from the Court of Appeal, in June 2022, Mr Sofronoff was appointed by the Queensland government as a Commissioner of Inquiry to conduct an inquiry into the practices of the government laboratory that conducted DNA testing and reporting for criminal cases.
111․In discussing his role in each case, Mr Sofronoff has set out, in some detail, the steps that he had taken to liaise with members of the media for the purposes of ensuring that the work of the Inquiry be accurately reported to members of the public. In each case, he had considered that the community would only retain confidence in government administration if it properly understood the proceedings that took place in each Inquiry.
112․In conducting the Grantham Flood Inquiry, Mr Sofronoff had reference to the report of the Commission of Inquiry into police misconduct by G.E. Fitzgerald QC in 1989. In that report, Mr Fitzgerald had referred to the importance of restoring public confidence in the integrity of the criminal justice system by maximising the capacity of the media to report on the evidence in the inquiry. As a consequence, Mr Sofronoff had formed the view that, in conducting an inquiry, it was important to rebuild public confidence, by ensuring that the community had the means of informing itself about the work of the inquiry. He regarded it as an important function of a Commission to ensure, as far as possible, that reporting of its work was timely, accurate and informative to members of the public. In accordance with that view, in conducting the inquiry into the Grantham flooding, Mr Sofronoff had made himself available to discuss the conduct of the inquiry with journalists and local residents. In his affidavit, he said that he believed that only if the community truly understood the proceedings before the inquiry would it retain or recover confidence in government administration, and accept the findings made in the inquiry.
113․In his affidavit, Mr Sofronoff further noted that, in the conduct of the Commission of Inquiry into forensic DNA testing in Queensland, he had several meetings with journalists to ensure that the scientific practices, that were at the centre of that inquiry, could be explained to the public in an understandable way, and thus to ensure that the significance of the evidence presented at the inquiry could be properly understood. For that purpose, he had several meetings with journalists to explain some of those matters.
114․After he was appointed as the Board of Inquiry into the ACT criminal justice system, Mr Sofronoff said that he recognised that the subject matter of the Inquiry concerned public confidence in the criminal justice system. He formed the view that appropriate engagement with the media would be essential to the performance of the functions of the Inquiry. His interest was to ensure accurate coverage of the actual work of the inquiry so far as he could do so.

546․Those matters were also the subject of the first notice of proposed adverse comments, served on the plaintiff on 9 June 2023. In paragraphs [20]–[25] of the notice, the following propositions were stated as proposed adverse findings (inter alia): at the directions hearing before the Chief Justice on 8 September 2022, the plaintiff informed the Chief Justice that the documents in question were privileged; the plaintiff knew that that statement was false; the plaintiff thereafter directed a junior lawyer in the ODPP to depose the affidavit claiming privilege; the affidavit did not reveal the source of the hearsay; the plaintiff knew (or ought to have known) that the deponent was required to identify the source of the hearsay; the plaintiff caused the affidavit to be filed in support of the claim of privilege; the plaintiff did not reveal to the defence, or the court, that he was the source of the hearsay in the affidavit; and the plaintiff, in the application on 16 September 2022, continued to maintain the false claim of privilege.
547․Paragraph [26] of the notice of proposed adverse comments was to the effect that the plaintiff’s actions, as outlined in paragraphs [20]–[25], were dishonest, and involved the preparation and tendering of false evidence to support a criminal prosecution.
548․The critical conclusion in the Report of the first defendant, in respect of the preparation of, and reliance on, the affidavit of Mr Greig, was contained in two paragraphs of the Report, in which the following findings were made: the evidence revealed that the plaintiff had ‘deliberately advanced a false claim of legal professional privilege and misled the court about [that claim] through submissions, and by directing a junior lawyer in his office to make a misleading affidavit’; there was no fault at all on the part of the junior lawyer in deposing the affidavit; rather, the plaintiff had ‘preyed on the junior lawyer’s inexperience’, and had ‘egregiously abused his authority and betrayed the trust of his young staff member, to whom he owed a duty to be a mentor and role model’[294].
[294] Ibid [415] – [416].
549․From the foregoing review of the transcript and the notice of adverse comments, it is clear the plaintiff had been put on notice in respect of each of those critical findings.
550․In an immediately preceding paragraph in the Report, the first defendant noted the submission, made on behalf of the plaintiff, that he had been confused as to his instructions. The first defendant rejected that submission. It was in that context that the Report referred to the involvement of Ms Pitney in the process, stating:
... He [the plaintiff] knew exactly what he was doing when he asked Ms Pitney to swear a misleading affidavit and, when foiled, he asked someone in his office who could not be expected to imagine that he was being asked, by the DPP himself, to do something improper.[295]
[295] Ibid [413].
551․The plaintiff was not expressly put on notice in respect of that specific proposition, namely, that he had turned to Mr Greig to depose the affidavit, after he understood that he had been rebuffed by Ms Pitney in his attempt to get her to swear an affidavit, and that he only asked Mr Greig to do so when he was ‘foiled’ by Ms Pitney’s response.
552․However, that proposition was not necessary to the principal findings by the first defendant that the plaintiff had exploited the inexperience of Mr Greig by wrongly procuring him to depose the misleading affidavit. The observations by the first defendant, concerning Ms Pitney, reinforced the conclusion, that the plaintiff ‘knew exactly what he was doing’ when he asked Mr Greig to swear the affidavit. However, that intermediate finding was not necessary for the ultimate conclusion formed by the first defendant.
553․In the context of the issues that were being determined by the first defendant, I do not regard it was a breach of natural justice that the specific issue, relating to the plaintiff’s dealings with Ms Pitney in respect of the affidavit, was not the subject of any questioning, of him, or of any notice of proposed adverse finding. Rather, as I have discussed, the critical conclusion, by the first defendant, on this aspect of the Inquiry, was directly raised, both in the course of the plaintiff’s evidence in the Inquiry, and in the notice of adverse comments served on the plaintiff.
554․It follows that ground 4, in relation to the first finding, does not succeed.

Second and third findings

555․The second and third findings, that are the subject of ground 4, concern the response by the plaintiff to the FoI application, made by Mr Knaus of The Guardian newspaper, for the release of the letter dated 1 November 2022 that he wrote to the Chief Police Officer.

Second and third findings – submissions

556․The second finding is that the plaintiff made a false statement to the Chief Police Officer when he told the Chief Police Officer that he did not know about the FoI application, or the fact that the letter, dated 1 November 2022, had been released, as that matter had been dealt with by the FoI officer of the ODPP.[296] I have summarised the part of the report, relevant to that finding, at paragraph [83] above.
[296] Ibid [688].
557․It was submitted, on behalf of the plaintiff, that he was denied natural justice in respect of the second finding, made by the first defendant, for the following reasons:
(a) Although the plaintiff made a written statement to the Inquiry, in which he referred to the circumstances of the release of the letter under the FoI and his involvement in an ACT Ombudsman’s inquiry in relation to the release of the letter, the statement did not address the detail of what he had discussed with the Chief Police Officer.
(b) The plaintiff did not give oral evidence at the Inquiry, regarding the release of the letter under FoI, or his discussions with the Chief Police Officer about the release of the letter.
(c)   The plaintiff was not questioned, by the first defendant, regarding the release of the letter under FoI, or his discussions with the Chief Police Officer, concerning the release of the letter.
(d) In the Inquiry, it was not put to the plaintiff, in cross-examination, that he had made statements attributed to him and as set out in the diary notes of the Chief Police Officer, or that those statements were false.
(e) Although the first defendant served on the plaintiff a notice of proposed adverse comments, that notice did not advise him of any proposed finding, to the effect that the plaintiff had made false statements to the Chief Police Officer, concerning the release of the letter under FoI.
558․For those reasons, it was submitted that the plaintiff was not given any opportunity, in evidence or otherwise, to respond to the adverse finding ultimately made against him concerning the statement, that he made to the Chief Police Officer, relating to the release of the letter dated 1 November 2022.
559․The third finding, that is the subject of ground 4, is the finding that the plaintiff had given false explanations, relating to the release under FoI of the letter dated 1 November 2022, in which he had ‘shamefully’ tried to falsely attribute blame to the Executive Officer of the ODPP, Ms Katie Cantwell, for the release of that letter.[297] I have summarised the relevant aspects of the report, in respect of that finding, at paragraphs [85] to [87] above.
[297] Ibid [693]–[694], [699].
560․It was submitted, on behalf of the plaintiff, that that finding constituted a denial of natural justice for the following reasons:
(a) While the plaintiff provided a statement to the Inquiry, which, in part, related to the release of the letter under FoI and the Ombudsman investigation, he did not give oral evidence in respect of those matters.
(b) The plaintiff was not cross-examined, by the first defendant, about: the release of the letter under FoI; the investigation by the Ombudsman; or the plaintiff’s explanations, regarding the failure to consult before the letter was released.
(c)   In the course of the Inquiry, it was not put to the plaintiff that his explanations, to the Ombudsman or to the first defendant (as contained in his statement), were false; or that, by his explanations, he had falsely tried to attribute blame to Ms Cantwell.
(d) The first defendant served on the plaintiff a notice of proposed adverse comments, that notice, which put the plaintiff on notice of the possible finding that he had misled the Ombudsman, the ACT Police and the Inquiry in respect of his explanations as to why the letter was released under FoI without having consulted with the ACT Police. However, the notice was served on the plaintiff on or about 9 June 2023, after evidence in the Inquiry had closed on 1 June 2023. In that respect, it was noted that the plaintiff last gave evidence in the Inquiry on 12 May 2023.
(e) The provision of such a notice, without giving the plaintiff an opportunity to give evidence to refute the findings ultimately made against him, was insufficient to accord to him procedural fairness.
(f)    Further, the notice did not put the plaintiff on notice of a possible finding that he had falsely tried to attribute blame to Ms Cantwell.
(g) The findings were of particular seriousness for a lawyer, and, accordingly, it was of particular importance that the plaintiff be given an appropriate opportunity to address them.
561․In response to the submissions by the plaintiff, in respect of the second and third findings, counsel for the third defendant noted that, as a consequence of the plaintiff’s illness, he had not been available to give oral evidence concerning the issues that were the subject of those findings. However, it was submitted that, in respect of each of them, he received adequate notice of those proposed findings for four reasons.
562․First, in his statement to the Inquiry, the plaintiff specifically addressed the circumstances in which the decision was made to release the letter in response to the FoI application.
563․Secondly, counsel noted that it is evident from the Report[298] that the plaintiff gave evidence to the Inquiry, in a private hearing on 27 February 2023, concerning the issue.
[298] Report, [685].
564․Thirdly, the examination of the plaintiff before the Inquiry was curtailed as a result of his illness.
565․Fourthly, counsel noted that the plaintiff addressed written submissions to the Inquiry, in which it was submitted that the plaintiff’s unavailability to give evidence, due to his illness, should be taken into account in any assessment of the issues relating to the FoI application.
566․Counsel then addressed, separately, the submissions made by the plaintiff in respect of the second and third findings.
567․In respect of the second finding, it was submitted by the third defendant that the plaintiff had been given adequate notice of the proposed finding, in two notices of adverse comments, to which the plaintiff had in fact responded.
568․In particular, the first notice of adverse comments included certain facts that established that, on 7 December 2022, the plaintiff had known of, and had been involved in, the FoI request, and that, on 8 December 2022, the plaintiff had made certain statements to the Chief Police Officer, including that he did not know about the FoI request or the fact that the letter had been released, as it had been dealt with by his FoI officer. The second notice of adverse comments included that the plaintiff did not inform the Chief Police Officer: that he had informed Mr Knaus about the 1 November 2022 letter; and that Mr Knaus had made an FoI request to obtain a copy of the 1 November 2022 letter.
569․In respect of the third finding, it was submitted, on behalf of the third defendant, that the plaintiff had been given adequate notice of the proposed finding. In particular, it was noted that the attachment prepared by the AFP, and referred to in the first notice of adverse comments, included the following: the plaintiff’s submission to the Ombudsman was misleading; the plaintiff’s apology concerning the letter was misleading, because he had apologised on the basis that the letter had been released by his office, and he had attributed the failure to consult the AFP to an internal communication training issue, whereas in fact he was the person who made the decision to release the letter; the plaintiff’s evidence, in his witness statement concerning the matter, was incomplete and misleading for a number of reasons specified in the attachment; and that, on 7 December 2022, Ms Cantwell had drawn to the plaintiff’s attention the fact that any document matching the description of Mr Knaus’ FoI request was likely to contain material the subject of legal professional privilege, so that when the plaintiff caused the letter to be released under FoI, he did so either in the knowledge that he was releasing the material that was legally professionally privileged, or he was reckless as to that matter.
570․Counsel noted that the plaintiff responded to the matters raised in the notice of adverse comments. In particular, in that response, the plaintiff took responsibility for the decision concerning the release of the 1 November 2022 letter, and said he did not seek to transfer any responsibility for that decision to Ms Cantwell.

Second and third findings — conclusion

571․The second and third findings, that are the subject of ground 4, in essence concern two aspects of explanations that the plaintiff proffered concerning the release, under FoI, of the letter that he had written to the Chief Police Officer of the AFP on 1 November 2022.
572․It is common ground that the plaintiff was not questioned concerning either of those two aspects in his evidence before the Inquiry. His statement, which formed part of his evidence, did set out his version of the chronology of the events that led to the release of that letter pursuant to the FoI request. However, it did not cover either of the two matters that were the subject of the second and third findings.
573․The two notices of adverse comments, that were served on the plaintiff subsequent to the completion of evidence before the Inquiry, did relate to the topic with which the two findings were ultimately concerned. In the course of submissions, Senior Counsel for the plaintiff contended that any notice, of those findings, in the notice of adverse comments, would not have been sufficient, because it did not give the plaintiff the opportunity to address those matters in evidence.
574․That submission, by counsel for the plaintiff, must be considered in the context of how the plaintiff gave his evidence at the Inquiry.
575․It will be recalled that the plaintiff’s evidence was discontinued, before it was completed, because of his ill-health. Subsequently, the plaintiff was certified to be medically unfit to return to the Inquiry to give further evidence. In the plaintiff’s detailed responses to the two notices of adverse comments, it was not suggested that the plaintiff desired or needed to give further viva voce evidence in order to address the matters contained in those notices.
576․In those circumstances, the fact that the particular issue might first have been raised in the notice of adverse comments, without having been put to the plaintiff in cross-examination, does not, of itself, lead to the conclusion that the plaintiff was not afforded natural justice in respect of either of the two findings. However, it is, nevertheless, a relevant consideration to take into account, in determining whether the plaintiff was given adequate notice in the notices of adverse comment in respect of the two findings that were ultimately contained in the report, and about which the plaintiff now makes complaint.
577․The question, then, is whether the notices of adverse comment, served on the plaintiff, were, of themselves, sufficient notice of the second and third findings, to comply with the requirements of the principles of natural justice. I commence by addressing that question in relation to the second finding.
578․That finding concerned a conversation, which the plaintiff had with the Chief Police Officer on 8 December 2022, on the day after the letter dated 1 November 2022 had been released under FoI. The Chief Police Officer first became aware that the letter had been the subject of a FoI request after it had been released in the media, and when Mr Knaus, of The Guardian newspaper, sought a comment from him about it. It was as a consequence of that contact, by Mr Knaus, that the Chief Police Officer then telephoned the plaintiff.[299] The first defendant found, in the report, that in that telephone conversation, the plaintiff told the Chief Police Officer that ‘he did not know about the FoI or the fact that [the letter] had been released as it was dealt with by his FoI officer’. Ground 4 is not directed to that factual finding. It is directed to the conclusion, expressed by the first defendant, based on that finding, namely, that the plaintiff’s statements to the Chief Police Officer ‘were false’.[300]
[299] Ibid [687].
[300] Ibid [688].
579․The question, then, is whether the first defendant, by the two notices of adverse comment, gave sufficient notice to the plaintiff of that potential finding against him. In order to address that question, it is necessary to consider the contents of the notices in a little detail.
580․The first notice (dated 9 June 2023), under the sub-heading ‘Freedom of Information request’, stated:
The propositions, findings and conclusions in the document prepared by the AFP concerning the “Freedom of Information issue” (attached) form part of this notice of potential adverse findings to which you may respond.
581․The AFP notice, attached to that notice, was entitled ‘Propositions document prepared by the Australian Federal Police concerning TOR para D(e) (Freedom of Information issue)’ (‘the AFP document’). In its introduction, it stated that section 2 of the document set out the ‘factual background’ concerning the circumstances surrounding the release of the 1 November 2022 letter under FoI, which (section 2 stated) were matters that had been established in the evidence before the Inquiry. The AFP notice stated that section 2 set out factual propositions and conclusions that the AFP submitted arose from the matters set out in the ‘Factual background’ section of the submission.
582․The introduction to the AFP document then stated that section 3 of the document set out ‘findings and conclusions that the Inquiry may permissibly draw’ because they were findings and conclusions that arose from the matters contained in the ‘Factual background’ section of the document.
583․The AFP document, under section 2 (entitled ‘Factual background’), set out a number of facts relating to the release of the 1 November 2022 letter under FoI. It is not necessary to set them out in detail. It recorded that, on 7 December 2022 at 6:50 pm, the plaintiff had emailed Ms Cantwell, stating that he was happy for the letter to ‘go out’ (under FoI). It also referred to the telephone conversation, which the Chief Police Officer (Mr Gaughan) had with the plaintiff concerning the release of the letter, and specifically stated that the plaintiff, in that conversation, had told the Chief Police Officer that he did not know about the FoI application, or the fact that the letter had been released, as it had been dealt with by his FoI officer.
584․Section 3 of the AFP document, entitled ‘Findings and conclusions’, stated that the plaintiff was the person who caused the release of the letter under FoI, and that it was he who made the decision for its release. The AFP document (under section 3) expressed, as a proposed finding and conclusion by the Inquiry, that the plaintiff’s submission to the Ombudsman, his apology (on 13 January 2023) to the AFP, and his evidence in his witness statement to the Inquiry, were ‘incomplete and misleading’. Relevantly, the AFP document, having referred, in section 2, to the plaintiff’s statement to the Chief Police Officer on 8 December 2022 (that was the subject of the second finding), did not contend for a specific finding that that statement, itself, was ‘false’.

585․In response to the first notice of adverse comments, the plaintiff filed lengthy and detailed written submissions dated 26 January 2023. They specifically addressed the issues raised in section 3 of the AFP document (‘Findings and conclusions’), but they did not address, specifically, the ‘Factual background’ contained in section 2 of that document. As a consequence, the submissions by the plaintiff did not address the question whether the response, that he had made to the Chief Police Officer, on 8 December 2022, was untrue or false.
586․The second notice of proposed adverse comments was served on the plaintiff, dated 9 July 2023. It contained two propositions, under the sub-heading ‘Freedom of Information request’. The first proposition was that on 3 December 2022, the plaintiff had informed Mr Knaus (of The Guardian newspaper) that he had sent the 1 November 2022 letter (to the Chief Police Officer). The second proposition was as follows:
You did not inform the Chief Police Officer:
(a) that you had informed Mr Knaus about the 1 November 2022 letter; and
(b) of Mr Knaus’ FoI request to obtain a copy of the 1 November 2022 letter.

587․The issue, whether that proposed adverse comment was sufficient notice to the plaintiff concerning the second finding, is not without difficulty. However, the proposed adverse comment was expressed (in the second notice) in terms of a failure of the plaintiff to inform the Chief Police Officer of his conversation with Mr Knaus, after he had spoken to Mr Knaus. It was not, specifically, or even implicitly, notice of a proposed finding that the plaintiff had intentionally lied to the Chief Police Officer after the Chief Police Officer had contacted him relating to the issue.
588․In this context, it must be borne in mind that, as a Director of Public Prosecutions, it was most important that the plaintiff be honest and truthful in his dealings with the Chief Police Officer. That requirement was an integral aspect of the plaintiff’s responsibilities as a Director of Public Prosecutions. Accordingly the finding that the plaintiff had intentionally made a false statement to the Chief Police Officer, about a matter of some sensitivity, was a serious finding. It follows that if the first defendant were minded to make a specific finding to that effect, it was necessary that specific notice of that finding should be given to the plaintiff, in order to afford him a fair opportunity to address it.
589․Taking that matter into account, I do not, on balance, consider that the second notice of adverse comments did provide sufficient notice to the plaintiff that the first defendant might make a finding against him that he had been deliberately untruthful when he spoke to the Chief Police Officer on 8 December 2022, after the Chief Police Officer had learnt that the letter dated 1 November 2022 had been released to the media under FoI. For those reasons, I conclude that the plaintiff was not afforded natural justice in respect of the second finding, that is the subject of ground 4.
590․On the other hand, I consider that it is well demonstrated that sufficient notice was given to the plaintiff concerning the third finding that is the subject of ground 4, namely, the finding that the plaintiff had given false explanations to the Ombudsman, in his apology to the ACT Police, and in his statement in evidence in the Inquiry, concerning his failure to consult the AFP before the 1 November 2022 letter was released under FoI.[301]
[301] Ibid [694].
591․In particular, the AFP document, which I have discussed, and which was appended to the first notice of proposed adverse comment, specifically sought such a finding under the sub-heading ‘Findings and conclusion’ in section 3 of the document. As a prelude to that section, the document, in section 2 (entitled ‘Factual background’) had set out the plaintiff’s response to the Ombudsman, and his letter of apology to the AFP, concerning the release of the document. In section 3 of the document, the section entitled ‘Findings and conclusions’, it sought findings that the plaintiff’s submission to the Ombudsman, and his apology to the ACT Police, concerning the release of the letter under FoI, were each ‘misleading’, and it set out the reasons for that proposed conclusion. It then, under the sub-heading ‘Evidence in witness statement regarding release of 1 November 2022 letter under FoI was incomplete and misleading’, sought, as a proposed finding, that the plaintiff’s evidence, in his witness statement, as to that topic, was ‘incomplete and misleading’, and it set out, in detail, the reasons for that conclusion.
592․Relevantly, in his lengthy response to the first notice of adverse comment, the plaintiff addressed each of those issues in some detail. In that document, the plaintiff gave detailed reasons why the first defendant ought not to make the findings sought in section 3 of the AFP document. The plaintiff’s response, and the content of it, demonstrates, unequivocally, that he sufficiently understood the nature of the proposed adverse comment contended for by the AFP, and which, ultimately, constituted the third finding that is the subject of ground 4.
593․It follows, from the foregoing, that it must be concluded that the plaintiff was provided with adequate and fair notice of that third finding. It follows that ground 4, in relation to that finding, does not succeed.

Summary of conclusions in respect of ground 4

594․For the reasons that I have stated, I have reached the following conclusions under ground 4:
(a) The plaintiff was afforded natural justice in respect of the first and third findings that are the subject of ground 4.
(b) The plaintiff was not afforded natural justice in respect of the second finding, namely, that his statement to the Chief Police Officer on 8 December 2022, concerning his lack of knowledge about the FoI application relating to the 1 November 2022 letter, was false.[302]
[302] Ibid [688].

Summary of Conclusions

595․In conclusion, I summarise the conclusions that I have reached, in respect of the three grounds of review relied on by the plaintiff.
596․In respect of ground 2 — (that the conduct of the first defendant of the Inquiry gave rise to a reasonable apprehension of bias) — I have concluded that the amount, context, nature, manner and content of the communications, that occurred between Mr Sofronoff and Ms Janet Albrechtsen of The Australian newspaper, were such that a fair-minded lay observer, acquainted with the material objective facts, might reasonably have apprehended that Mr Sofronoff, in determining, in Chapters 4,5 and 6 of the Report, the issues specified by paragraph (c), (d) and (e) of section D of the Amended Terms of Reference of the Inquiry, might have been influenced by the views, held and publicly expressed by Ms Albrechtsen, concerning the conduct by the plaintiff of the prosecution of the criminal proceedings against Mr Lehrmann. Accordingly, ground 2 of the application for judicial review must succeed.
597․In respect of ground 3 (legal unreasonableness), the plaintiff submitted that eight findings, by the first defendant in the Report of the Inquiry, were legally unreasonable. I have concluded that the plaintiff has not established that seven of those findings were legally unreasonable. I have concluded that the finding, by the first defendant, that the plaintiff had engaged in grossly unethical conduct in his cross-examination of Senator Linda Reynolds, was legally unreasonable. Accordingly, ground 3 succeeds in respect of that finding.
598․In respect of ground 4 (failure to accord natural justice), the plaintiff contended that the first defendant failed to accord him natural justice by failing to give him a fair hearing in respect of three findings, made by the first defendant in the Report. I have concluded that the plaintiff has not established a failure of natural justice in respect of two of those findings. I have concluded that the first defendant failed to afford the plaintiff natural justice in respect of the finding, in the Report, that the plaintiff’s statement to the Chief Police Officer on 8 December 2022, concerning his lack of knowledge about the Freedom of Information application relating to the 1 November 2022 letter, was false. Accordingly, ground 4 succeeds in respect of that finding.
599․As I have noted earlier,[303] as the Report of the first defendant did not, of itself, have any legal effect or consequences, relief in the form of the prerogative writ of certiorari is not available to the plaintiff. However, in a case such as this, it is appropriate to grant declaratory relief, reflecting the conclusions that I have just stated.[304] I shall hear from counsel in respect of the precise formulation of that relief.
[303] Above, [20].
[304] Ainsworth, 582, 597; Plaintiff M61/2010E v The Commonwealth of Australia& Anor (2010) 243

I certify that the preceding five hundred and ninety-nine [599] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kaye

Registrar:

Date:

Boorman; Detective Leading Senior Constable Trent Madders; Senior Constable Emma Frizzell;
Sergeant Robert Rose

Criminal Justice Commission (1992) 175 CLR 564, 574, 577-8 (Mason CJ, Dawson, Toohey and
Gaudron JJ) (‘Ainsworth’).

Mason, Aickin and Wilson JJ).

Minister for Immigration and Border Protection (2019) 268 CLR 76, 98 [55] (Nettle and Gordon JJ)
(‘CNY17’).

    Johnson v Johnson (2000) 201 CLR 488, 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and
     Hayne JJ); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ,
    McHugh, Gummow and Hayne JJ) (‘Ebner’).

409 ALR 65,77 [38] (Kiefel CJ, Gageler J); Charisteas v Charisteas (2021) 273 CLR 289-90 [11].

CLR 546, 553 at 4; R v Lusink & Anor (Shaw) (1980) 32 ALR 47, 50-51 (Gibbs ACJ); CNY17,
98[56] (Nettle and Gordon JJ ).

February 2023; 22 April 2023; 9 May 2023 (two articles); 10 May 2023; 10 June 2023; 24 June
2023; 14 July 2023; and 29 July 2023.

Citizenship v Li (2013) 249 CLR 332,, 364 [68], 366 [72] (Hayne, Kiefel and Bell JJ) (‘Li’).

541, 574 [86] (Nettle and Gordon JJ) (‘SZVFW’).

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21,
28 [34] (Allsop CJ, Besanko and O’Callaghan JJ).

(Crennan and Bell JJ) (‘SZMDS’).

(2020) 269 CLR 439, 450-1[19]-[20] (Kiefel CJ, Bell, Gageler, and Keane JJ), 489-90 [122]-
[125] (Edelman J).

CLR 541, 574 [84] (Nettle and Gordon JJ).

125, 134 [17]; Roberts v The Queen [2020] VSCA 277 [55]-[64]

131 CLR 116, 119; Kanaan v The Queen [2006] NSWCCA 109, [80] (Hunt AJA, Buddin and
Hoeben JJ); R v Bazley (1986) 21 A Crim R 19, 29 (Young CJ).

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, 16
(Hunt J); The Queen v Thompson (2008) 21 VR 135, 160 [122] (Redlich JA).

Fullagar, Menzies and Windeyer JJ) (‘Clyne’); Rees v Bailey Aluminium Products Pty Ltd (2008) 21
VR 478, 490 [32] (‘Rees’).

and Gaudron JJ).

Federal Commissioner of Taxation (1963) 113 CLR 475, 503–4 (Kitto J); National Companies and
Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 311–12 (Gibbs CJ).

    for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57, 117–118 [194] (Kitto J);
    Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216
    CLR 212, 219 [22] (Gleeson CJ, Gummow and Heydon JJ); Minister for Immigration and Citizenship
    v SZGUR (2011) 241 CLR 594, 599 (French CJ, Kiefel J).

CLR 319,358-9 [100]-[101]; Plaintiff M 76/2013 v Minister for Immigration, Multicultural Affairs and
Citizenship & Ors (2013) 251 CLR 322,391-2 [233]-[240] (Kiefel and Keane JJ).

[2024] ACTSC 58

4 March 2024