Former judge Walter Sofronoff KC had been tasked with examining the ACT’s criminal justice system in the wake of the mistrial of Bruce Lehrmann. Photo: Screenshot.
Lawyers for the former Board of Inquiry chair Walter Sofronoff have rebuffed arguments that he engaged in corrupt conduct during the inquiry, stating his “disclosure” of materials to two journalists wasn’t prohibited as the law allowed him to investigate and conduct the inquiry “as he sees fit”.
The now-retired judge launched an appeal against the ACT Integrity Commission in Federal Court after a commission investigation found he had engaged in serious corrupt conduct, including by giving confidential material to The Australian‘s Janet Albrechtsen during the inquiry and by sending a copy of his final report to both Ms Albrechtsen and the ABC’s Elizabeth Byrne before it was officially released.
Mr Sofronoff’s application to the court submitted that a range of the commission’s findings stating he’d acted dishonestly or in bad faith were legally unreasonable and lacked evidence to support them.
The commission’s report had said some of Mr Sofronoff’s actions “could have” amounted to contempt of court, but it has since conceded that this finding was not open or lawful.
Counsel for the commission Scott Robertson argued on Tuesday (22 July) that there was plenty of evidence, pointing to a text message Mr Sofronoff had sent to Ms Albrechtsen with the note “strictly confidential”.
“Mr Sofronoff knew that this was material that should be kept confidential to the Board and the parties, consistent with his own suppression order,” Mr Robertson submitted.
“It wasn’t an accidental disclosure; it was an intentional disclosure.”
Mr Robertson submitted that Mr Sofronoff’s sharing of the Board’s final report was a “plain misuse of the information” as he didn’t have the “authority” to share it with anyone after he’d submitted it to ACT Chief Minister Andrew Barr, nor to give “confidential matter” to Ms Albrechtsen while the inquiry was still afoot.
“None of the general statements of principle [argued] … answers the fundamental proposition here: how does that justify [sharing] confidential material?” he asked.
Mr Robertson also took issue with Mr Sofronoff’s submission that he had acted in the public interest by sharing the material, stating it was “inconsistent with public duties”.
“It’s not enough just to think … your purposes were higher … than those of your statutory function,” he submitted.
“The question for the commission was: was it appropriate to engage with journalists in this particular way?”
Mr Sofronoff’s barrister Adam Pomerenke argued that “unlawful is not the same as corrupt” and that the confidential material he sent to Ms Albrechtsen – including drafts of the final Board of Inquiry (BOI) report – had not been characterised this way by Mr Sofronoff.
Mr Pomerenke submitted that while a non-publication order had been in place for BOI material, the key word here was “published”.
“It is wrong to say the order confines Mr Sofronoff to the obligation of confidentiality,” he submitted.
“[He messaged Ms Albrechtsen documents] with the heading ‘strictly confidential’ … binding on [her] ‘do not publish’.
When questioned by Federal Court Justice Wendy Abraham on whether disclosing the material breached the witnesses’ expectations that nothing would be released publicly until they had a chance to reply, Mr Pomerenke argued that the “disclosure” was different to publication, and that Mr Sofronoff had engaged with journalists to ensure they had proper background information to provide accurate reporting.
“Nothing was prohibiting him [from disclosing documents] … as he sees fit,” Mr Pomerenke submitted.
“Even to journalists? … There were other means in place [to communicate] with journalists,” Justice Abraham said.
Mr Pomerenke replied: “[Witnesses] would certainly have expected it wouldn’t turn up in a newspaper, that it wouldn’t be published.
“[There’s an] unwisdom of what was done.”
During his submissions at the hearing’s opening on Monday (21 July), Mr Pomerenke referred to the commission’s admission it had “wrongly concluded” his client’s conduct could be viewed as corrupt under section 36 of the Inquiries Act.
“It can be investigated, exposed and reported on … but you cannot call it corrupt conduct if it does not strike at integrity, if it does not strike at probity,” he submitted.
“[But the Commission] can still say, even though it’s not corrupt, it is wrong and can be condemned.”
He’d also submitted that Mr Sofronoff had communicated with journalists as he felt it would allow for “fair and prompt conduct” of the inquiry.
“At worst … [it could be] an erroneous attempt at accuracy and transparency in public discourse … [but] cannot be described as corrupt,” Mr Pomerenke argued.
“Even if Mr Sofronoff was wrong in his view, the fact remains that he genuinely and honestly held it.”
Justice Abraham reserved her decision on the matter to be ruled at a later date.
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