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Former ACT top prosecutor Shane Drumgold has launched legal action to overturn damning findings about his conduct made by the board of inquiry into the high-profile Bruce Lehrmann trial, and to stop the territory government from taking any action against him based on the report.

In judicial review proceedings filed in the ACT Supreme Court on Friday last week, Drumgold is seeking to quash the report by former judge Walter Sofronoff, KC, who controversially leaked it to select media outlets before its official release.

Outgoing ACT director of public prosecutions Shane Drumgold.Credit: Alex Ellinghausen

Drumgold argues the leak failed to comply with section 17 of the Inquiries Act, denied him natural justice and gave rise to a reasonable apprehension of bias on the part of Sofronoff.

Lawyers for Drumgold argue some of Sofronoff’s findings against him were legally unreasonable, including that he breached his duty as a prosecutor. They also say Drumgold was not given a fair hearing in relation to other findings, and that some of Sofronoff’s findings were out of the inquiry’s jurisdiction because they did not relate to its terms of reference.

ACT Attorney-General Shane Rattenbury earlier this month indicated he was considering whether Drumgold should be prosecuted, given the report’s findings had met the statutory threshold for dismissal for misbehaviour in office.

ACT Chief Minister Andrew Barr also said the government was seeking advice about whether Sofronoff had breached the Inquiries Act.

Drumgold’s proceedings – the latest in a number to have emerged in connection with the Lehrmann case – seek an injunction to stop Rattenbury from taking action against him under the DPP Act based on Sofronoff’s report.

The case, listed for a directions hearing on September 14, names the board of inquiry, the Australian Capital Territory and the ACT attorney-general as defendants.

The territory government commissioned the board of inquiry to investigate authorities’ handling of last year’s Lehrmann trial following a dispute between Drumgold and police about the investigation.

In the inquiry’s report, Sofronoff was highly critical of Drumgold’s conduct. While he noted the prosecution was properly brought, he found the top prosecutor lied to the Supreme Court in the lead-up to the trial and improperly questioned former Coalition minister Linda Reynolds on the stand.

However, Sofronoff’s inquiry was itself brought into disrepute when it emerged the former judge selectively leaked a copy of his final report to journalists before handing it to the ACT government. Sofronoff also briefed journalists throughout the inquiry.

Rattenbury said on Tuesday that Drumgold had concerns with the nature of the report and was seeking to challenge the findings made against him.

“I think the nature of this matter has been that it’s been heavily contested, the parties involved have continued to seek pathways to pursue their argument, and Mr Drumgold is entitled to lodge these proceedings. It will now proceed through the court,” Rattenbury said.

“Obviously, I’m limited in what I can say about it, given the ACT has been named as a respondent in the matter.”

Bruce Lehrmann and Brittany Higgins.Credit: Alex Ellinghausen/Rhett Wyman

Drumgold was the lead prosecutor in the trial of Lehrmann, a former political staffer who was accused of sexually assaulting colleague Brittany Higgins in 2019. Lehrmann pleaded not guilty and maintains his innocence. The trial was aborted in October due to juror misconduct and Drumgold decided against a retrial due to concerns over Higgins’ mental health.

Drumgold has since stepped down as DPP and will not be able to practise as an ACT barrister once his resignation takes effect next month because his practising certificate, which is tied to his title, will no longer be valid.

Barr on Tuesday said he was advised that Drumgold had commenced legal proceedings related to the content of the board of inquiry’s report but the proceedings had yet to be served on the territory.

“Accordingly, it is not appropriate for me to make further comment in relation to the findings of, and processes associated with, the report and its release,” Barr said.

Neither Drumgold nor Sofronoff had responded to a request for comment on Tuesday.

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