News & Current Affairs

By Caitlin Holloway

12.05.23

The Cracks in the Criminal Justice System

The first week of public hearings in the Inquiry into the Criminal Justice System in the Australian Capital Territory (the Inquiry) have made one thing very clear: the cracks in the criminal justice system are starting to show.

The Inquiry, led by former justice of the Queensland Supreme Court Mr Walter Sofronoff KC, is examining the conduct of criminal justice agencies involved in the trial of R v Lehrmann and any wider issues concerning the prosecution of criminal matters generally in the Territory. 

The Inquiry was announced in December 2022, in response to mounting pressure from many “players” in the criminal justice system following the abandoned trial of Bruce Lehrmann (the Lehrmann Trial), who was accused of sexually assaulting Brittany Higgins at Parliament House in March 2019, and who has maintained his innocence.

Thus far, the Inquiry has uncovered what I consider to be deeply concerning failures in our criminal justice agencies, the Office of the Director of Public Prosecutions for the ACT in particular. But, before I get there – I want to touch briefly upon the role of that office, and its Director, and the importance of that role to public faith in the criminal justice system.

As Counsel assisting the Inquiry put it on day one of the public hearings, the Director of Public Prosecutions, Mr Shane Drumgold SC, occupies a central role in our criminal justice system. He is the person who decides whether to charge a person, what charges proceed and how a prosecution is conducted. He has a duty to account as a minister of justice, a role which requires him to ensure the proper administration of the criminal justice system, to be objective and to assist the Court in the search for truth.

It is not the role of a prosecutor to act as a Plaintiff – to argue one side of a case to victory, it is the role of a prosecutor to act, in effect, as a model litigant, and to do everything possible to assist the Court. A prosecutor is not there to try and “win” a case, to secure a conviction of a defendant, a prosecutor is there to find the truth, in accordance with well-established duties concerning the administration of our justice system.

These duties are aptly described as one of the fundamental tenets of our criminal justice system because a failure to uphold them could result in catastrophic consequences for public faith in the system. Without public faith in the system, the system itself will fail.

During his evidence, several issues about Mr Drumgold SC’s conduct prior to and during the Lehrmann Trial were put to him. These issues include improperly failing to disclose documents to Mr Lehrmann’s lawyers, reading confidential counselling notes of Ms Higgins the law prohibited him from receiving without leave of the Court, providing advice to ACT policing without properly reading and considering documents, becoming partial in the prosecution of Mr Lehrmann, misleading the Court and making serious allegations about political interference and the conduct of investigating police officers, perhaps, without proper foundation.

Unpacking each of these issues is perhaps outside of the scope of this blog, suffice to say that they include very serious allegations that Mr Drumgold SC failed to comply with his obligations as minister of justice, to the detriment of Ms Higgins, Mr Lehrmann, and the Lehrmann Trial more broadly.

Mr Drumgold SC’s responses to these issues, to my mind, appear to show a pretty cavalier attitude to at times conceded failures to comply with his obligations. He responds with statements such as:

  1. “..maybe I wasn’t paying the attention that others were..”;[1]
  2. “I accept that I was probably in error.”;[2]
  3. “I think you might be overstating my input…”[3]
  4. “I didn’t turn my mind to that…I had other things on my mind…”;[4]
  5. “I didn’t turn my mind that I was in breach of the Evidence (Miscellaneous Provisions) Act.”;[5]
  6. “…I had not perused it in that degree of detail.”;[6] and
  7. “…maybe I had too cursory a read of this list of documents.”[7]

We are talking about one of the most high-profile trials in the Territory here, and our minister for justice is conceding he had too cursory a read of documents, and wasn’t turning his mind to errors he may have been making or breaches of statute, whilst alleging that others involved, such as investigating police, were interfering with the trial or aligning themselves with Mr Lehrmann’s defence lawyers.

At the centre of the Lehrmann Trial, and the Inquiry, are two young people, as Mr Sofronoff KC put it, whose lives have been irrevocably changed. Not just by the trial itself – but by the conduct of agencies that are designed to ensure a fair trial, and that are pointing fingers at one another with apparent disregard to the people whose lives will never be the same.  

Don’t get me wrong, as a lawyer, I know well the high-pressure, stressful dynamics of a trial, and the impacts that can have on a person and the decisions they make on their feet. I accept it is human to make errors from time-to-time, and that it is impossible for one person to be across every single facet of a complex legal proceeding. That said, isn’t it the case that the public ought to demand better from our minister of justice? It begs the question, what about the trials without such media attention? The victims and defendants who haven’t had the benefit of an inquiry into the conduct of those involved in their trials?

One thing is abundantly clear – public faith in our criminal justice system is waning, understandably so, and it is unsustainable for our criminal justice agencies to act in this manner. There are irreparable cracks in the system, and only time will tell how the Inquiry proposes to mend those cracks, and I can only hope that in the meantime other victims and defendants don’t slip through these cracks.

Perhaps a simple, quick solution whilst we wait for the Inquiry’s findings is for Mr Drumgold SC to resign.

[1] Transcript Day One, page 40, line 13.

[2] Transcript Day One, page 35, line 8.

[3] Transcript Day Two, page 121, line 8.

[4] Transcript Day Two, page 180, line 48.

[5] Transcript Day Two, page 186, line 48.

[6] Transcript Day Two, page 158, line 4.

[7] Transcript Day Two, page 111, line 42