News & Current Affairs
15.08.23
The ACT Director of Public Prosecution preyed on the inexperience of a junior solicitor
Over the past few months, if you have been paying attention to the Board of Inquiry into the Criminal Justice System you could have easily been left with the impression that the ACT Office of the Director of Public Prosecutions (“the ACT DPP”) requires significant systemic change.
That’s certainly how it appeared after Mr Walter Sofronoff KC’s report revealed several serious findings of misconduct against Mr Shane Drumgold for his involvement in the Brittany Higgins Trial (“the Sofronoff Report”).[1] Had Mr Drumgold been successful, Mr Lehrmann would have lost his freedom because of a prosecutor who lost objectivity, did not act with fairness and detachment, and misled the court.[2]
Whilst Mr Lehrmann appears to certainly be the prime victim of Mr Drumgold’s misconduct, the Sofronoff Report exposed another unfortunate subject: a junior lawyer who was “preyed” on to perform dirty work.[3]
The Sofronoff Report revealed Mr Drumgold deliberately advanced a false claim of legal professional privilege over a police report that the Australian Police Force (“the AFP”) had not claimed in order to ensure the document was beyond the defence’s reach.[4]
Mr Drumgold first directed a senior solicitor to prepare the misleading affidavit and when that plan “foiled” because of the solicitor’s “too-knowledgeable” queries, he procured a junior solicitor with 6 months post-admission experience to do the job.[5] Mr Drumgold filed the affidavit which contained what he knew, but the junior lawyer did not know, was a falsehood.
Setting aside the ramifications of misleading the Supreme Court in a criminal case, there is real concern on what the culture is like in an office that permits that to happen.
The role of the prosecutor excludes any notion of “winning” or “losing” and is instead, a matter of public duty which must be performed with an ingrained sense of dignity and justness. The purpose of a criminal prosecution (from the prosecutor’s perspective) is “not to obtain a conviction, [but] to lay before a court what the prosecution considers to be credible evidence relevant to what is alleged to be a crime”. The irony here is that this quote was taken from the Prosecution Policy of the ACT. [6]
Nonetheless, these principles are engrained in all legal practitioners before practising law during their law degree and graduate diploma in legal practice (GDLP) and it would be remarkable for them to have simply been forgotten.
The more likely case is that the culture at the ACT DPP encourages them to undermine ethical standards, or at the very least, deprives junior solicitors the agency to challenge unethical practices of senior prosecutors. Senior prosecutors should be empowering the next generation of practitioners with the capacity to drive systemic change within the ACT DPP. Yet, it appears that the culture has only warped the role of the prosecution, and perpetuated the long-existing gap between our expectations of the criminal justice system and its administration. If there is one recommendation from the Sofronoff Report to endorse, it is that the ACT DPP and AFP must provide re-training on their duty of disclosure and other responsibilities as prosecutors.[7]
As I reach the one-year anniversary of my own legal admission and reflect over the mentorship I received, I cannot help but feel compassion for the junior prosecutortaken advantage of in this scenario. Each practitioner is indeed obliged to maintain ethical standards in their practice, but the legal profession has always been built upon a tradition of mentorship where senior solicitors nurture and empower the next generation of ambitious practitioners.
I have relied so heavily on the mentorship of my senior colleagues and have expected (and found) their guidance to be for the genuine development of my professional skills to be consistent with professional and ethical practice. The junior solicitor clearly expected the same when he was directed to draft an affidavit by the highest authority in the office who also occupies the central role in our criminal justice system. There was no reason for him to think the DPP would abuse his trust and use him to engage in improper conduct.
To the credit of Sofronoff KC, he correctly observed there was “not the slightest fault in anything that the junior lawyer did.”[8] Despite this, it must still be incredibly disheartening to hear that your senior has “preyed” on your inexperience and deliberately placed you at risk of professional misconduct simply for personal gain.
It is clear that systemic change needs to be made to the ACT DPP to ensure that the office fosters a culture where our future prosecutors are not subjected to egregious abuses of authority, are not deprived of their agency and are not taught a warped view of the prosecutor’s responsibilities.
[1] Walter Sofronoff KC, Board of Inquiry Report (Report, 31 July 2023) <https://www.justice.act.gov.au/justice-programs-and-initiatives/board-of-inquiry> (“the Sofronoff Report”).
[2] Ibid, paragraph [226].
[3] Ibid, paragraph [416].
[4] Ibid, paragraph [413].
[5] Ibid, paragraph [385].
[6] ACT DPP, The Prosecution Policy of the Australian Capital Territory (Report, 1 April 2021) < https://www.dpp.act.gov.au/about_the_dpp/the_prosecution_policy>
[7] The Sofronoff Report, Recommendation 6.
[8] Ibid, paragraph [415].