There's no slowing the ACT rape litigation merry-go-round

The position is now additionally complicated by a finding in the Supreme Court that a former judge who reviewed the prosecution gave the appearance of bias. The judge, Walter Sofronoff, formerly of the Queensland Court of Appeal, had been highly critical of the prosecutor, Shane Drumgold.

Justice Stephen Kaye, in the Supreme Court, did find that some of the very strong criticisms made of Drumgold's conduct of the trial were not legally unreasonable, and if true, represented disgraceful behaviour. Thus, Drumgold was accused of lying to the trial judge, knowingly making false claims of privilege, and withholding evidence from the defence. Justice Kaye did not find these conclusions to be legally unreasonable.

Sofronoff's findings were supported with positive enthusiasm by legal representatives of the ACT government, who also disputed suggestions of bias.

I suspect that down the track, the ACT Attorney-General, Shane Rattenbury and the Chief Minister, will regret strapping themselves to the Sofronoff mast, and its complacency about how the ACT justice system treats victims of sexual violence. Both may want to be seen to support the cops, but neither would pretend that they were happy with how victims of sexual assault are treated by the system, particularly the cops.

To underline the potential future political discomfort, some AFP detectives have indicated they could sue Drumgold for defamation, over his comments in a letter to the ACT AFP Commissioner after the trial was aborted. Drumgold was highly critical about the enthusiasm, competence and cooperation the AFP manifested in the prosecution. He suggested some sort of conspiracy. Those suing have not put their own pockets at risk, of course; their costs will be covered by their union.

Drumgold as director of public prosecutions is, of course, off the ACT books after being pushed into resignation by the inquiry. But he is, or ought to be entitled to the support of government for his acts as DPP. In just the same way Shane Rattenbury, or some other minister, would be represented at territory expense if their official acts as ministers were challenged in the courts.

Drumgold was not funded by government for his appeal against the Sofronoff report, but it would be extraordinary if he could not defend himself against the AFP. It would be even more extraordinary if it were claimed that either the Sofronoff report, or Justice Kaye's findings, precluded him from raising any particular defence.

There were certainly ample politics involved. Ministers and the prime minister were questioned in Parliament about when they knew of the rape allegation, and about implications they had tried to cover it up. The AFP commissioner was asked about the case at estimates, causing some controversy because one statement he made was wrong. The then head of Prime Minister and Cabinet, Phil Gaetjens, was supposed to be conducting an inquiry into who knew what, when. The AFP tried to close it down. The head of the prime minister's private office was supposed to be conducting an inquiry into an alleged campaign to give journalists background briefings critical of the alleged victim's boyfriend.

Violence against women and sexual harassment in politics motivated an important women's march to Parliament, where the marchers, mercifully, were not shot, as they might have been in some other countries.

Then Coalition government ministers were also alleging that the timing of the allegations had been choreographed through senior opposition figures, including Katy Gallagher.

Putting matters quite neutrally, there can be little doubt that the rape allegation was a major embarrassment to Scott Morrison. It formed part of a narrative about his "not getting" women, and about a boys' club atmosphere and sexual harassment at Parliament. There can be no doubt that government was keen to shut this embarrassing narrative down. The real question about politics affecting the prosecutions is about whether it affected the way police investigated the case, the assistance investigators received from ministers, officers, and perhaps, whether the undoubted attention the investigation was receiving at the top of the AFP was affecting how the case was being investigated or was proceeding to trial. I would not readily dismiss the idea that political considerations did play a role.

When police were complaining that the case was saturated in politics, they meant something else. They were not so much talking about the background politics at all. What they were talking about was a fear that the DPP would make decisions in the case based on ideological beliefs about rape, not the instant facts. They suspected he had a sense of mission in prosecuting sexual assault cases regardless of the evidence. This, they thought, had infected his legal and professional judgment.

It turned out, moreover that police had long misunderstood the (low) legal threshold for when prosecution of such cases should occur and were instead judging the desirability of a prosecution by an old standard of whether conviction was likely.

Police were responsible for some incredibly unprofessional and incompetent acts, including "accidentally" handing over confidential counselling material to the defence, and taped witness statements when transcripts should have been sent. Some in the DPP thought this deliberate sabotage by cops who had made clear they thought the case weak. It probably wasn't. The haggling, continual reopening of debates, and some evidence of a suspiciously well-informed defence team had players on both sides on their guard for a set up. There were some grounds for suspicions that a contrived argument about legal privilege for a police "thinking aloud" document had been designed to compromise the prosecution.

Drumgold may have withdrawn formal allegations that police were unhelpful, truculent and damaging to the case. He was also frustrated by the "good old boy" approach of senior investigators, including their adherence to hoary old myths about rape which had been examined and rejected in law reform reports, the criminological literature, and by the law itself. He thought the sexual assault unit undertrained and very inexperienced and had developed a very low opinion of their operational competence. These were conclusions that were justified by the evidence. But Sofronoff was not much interested, thinking, more or less, that police had done their best.

Drumgold ultimately agreed the problems were mostly misunderstanding by folk who had developed a them-and-us sense of grievance.

The apprehended bias findings against the Sofronoff review turned on amazing access to the review process accorded to Janet Albrechtsen, a columnist working for The Australian who had, from the start, seemed to regard the case as a feminist set-up against the accused man, probably for the purpose of criticising Albrechtsen's beloved conservative government. She had an extraordinary entrée into Sofronoff's thinking, lunching with him, having regular lengthy email exchanges, and was sent working drafts of the report. She had his personal email address as well as his official one. There were hundreds of communications, and hours of talking. Sofronoff did not merely respond to requests for information, but volunteered information adverse to Drumgold, and made critical comments about his counsel. She was given early access to the report.

His cosiness with Albrechtsen was in marked contrast with his relationships with other journalists, who were largely obliged to ask questions through inquiry officials.

I was amazed at the way The Australian was continually publishing information about the alleged victim intended to discredit her, including information from her telephone that should never have been available to Albrechtsen. The very publishing of the telephone material - which had not been used in evidence during the criminal case or at the review - had the appearance of being a conscious contempt of court. But excited no criticism from Sofronoff.

Judges often examine their own consciences and decide, to the astonishment even of their colleagues, that no one could possibly think them biased. Sofronoff himself told me early in the proceedings, when I made comments about a lack of fairness, that he thought himself fair.

But in this case, the questionable conduct was not for Sofronoff to consider, but an independent judge. Justice Kaye showed no anxiety to put in the boot but was plainly appalled. The test is not whether Sofronoff was actually biased. But Albrechtsen's influence on him seemed apparent from the start of the case.

The accused man did not suffer from police and prosecution error: he was the beneficiary. It was the alleged victim who suffered.

No doubt Drumgold made tactical mistakes and should have been more straightforward with the trial court. But I do not think that the defendant was at any stage at any disadvantage, or, later, could have won on appeal against a conviction (had that occurred) because of prosecutorial misconduct. It was at almost every stage the alleged victim who suffered, was embarrassed, and was humiliated - to the forensic advantage of the defence. That most of this occurred at the hands of police underscores why so few people familiar with the ACT system would recommend that a victim seek the protection of the law.

The suggestion that Sofronoff was biased does not mean he was evil or malicious. Bias may not mean an intention to misinterpret regardless of the facts. It can come from tunnel vision, or confirmation bias, by which every piece of evidence supportive of a preconceived idea is seized upon, everything not supportive dismissed, ignored or not even recognised as relevant.

Albrechtsen was, of course, in full campaign mode on the case even before the ACT government asked Sofronoff to review the case, and before she met him. She's an overwhelming and determined advocate. Sofronoff was not up to her speed. The idea that Sofronoff's task and her project merged is shown from his exchange of drafts of the report, and the practical way in which publication of the report, in breach of embargo, exactly met her agenda. That she and The Australian are shameless is underscored by their defiance following the judgment.

Perhaps the alleged victim could sue the accused civilly for trespass and assault - as in the OJ Simpson case - and overcome some of the problem of the inability to have a new criminal trial. But I doubt she will; despite some public discussions of the possibilities, rape victims have been reluctant to do this in Australia.

But the police defamation case opens fresh opportunities for causing some fundamental review of how police handle sexual assault cases. I would be surprised if Drumgold avoids the opportunity, if only by way of returning some of the police fire over the years. If I were the ACT government, and serious about better rape investigations, I'd be neutral in this, not at all determined to shut it down.

Sofronoff provides no guidance on improved procedures and leaves open the inference that he doesn't think them necessary. Some detectives were examined at his inquiry on their understanding of British and American research into how police have misunderstood such cases, but it inspired no institutional response. The AFP argues that improvement is occurring, but it is not obvious, and nor is improvement in the seniority and experience of investigators.

I cannot but expect and hope that any defamation hearing, if it comes, will rehearse all the embarrassments, misunderstandings and unprofessional conduct that came up during the investigation and decision to prosecute. This is not to look for cops to punish. There will be no real improvement unless performance is always in the spotlight.