Sofronoff’s useless report

A stark contrast emerged in the past week about what to do about short-comings in the police and criminal justice system’s carriage of sexual-assault cases.

On one hand, the Sofronoff inquiry delved deep into the Lehrmann case and made only a few recommendations about police and court procedures which were largely drowned out by his scathing criticism of the ACT Director of Public Prosecutions, Shane Drumgold SC, and Walter Sofronoff KC’s own bizarre conduct in the way the report was released.

On the other hand, research into 75 sexual-assault trials in NSW over six years was also published this week. That study, commissioned by the NSW Department of Communities and Justice, was undertaken by Professor Julia Quilter of the University of Wollongong and Professor Luke McNamara of the UNSW.

The NSW research showed that the reforms made 40 years ago to protect women complainants had been effective: no naming; remote video witness evidence; access to a support person; and formal video interviews with police being accepted as admissible evidence.

Those changes have taken an enormous amount of trauma out of complainants’ evidence giving.

Interestingly, before that research was made public, ACT Attorney-General Shane Rattenbury made a similar comment. He said that, despite the experience of complainant Brittany Higgins in the Lehrmann case, those sorts of changes have been and still are working well in the ACT.

It was a very sound point. Indeed, it invites the conclusion that the Lehrmann case was so utterly exceptional that it provides no basis whatever to draw conclusions about the treatment of complainants in sexual-assault cases or how to improve things.

For whatever reasons – presumably the pervasive political undertones – Higgins did not avail herself of these options – options which the NSW research say have been helpful, particularly the anonymity of remote video evidence and no requirement to go near the courtroom in which the accused is present.

In short, despite the massive media coverage and saturation social media and private conversations in this case, it is an irrelevant one-case out-rider when it comes to the fundamental question of how women complainants are treated.

Indeed, nearly all of Sofronoff’s findings are directed at the decisions of specific individuals and organisations in this one case and only incidentally touch on systemic issues.

Nonetheless, the NSW research still found that despite the success of the earlier reforms major impediments remain against successful prosecutions. An array of research shows that only small percentages of cases are reported; only small percentages of those are prosecuted and only a middling percentage of those are convicted with a resultant jail sentence.

Overall, between one in 10,000 and one in 100,000 cases of sexual assault against women result in jail time. Yes, the figures are fuzzy, but they point to an overwhelming sense that sexual assaults against women go unpunished.

On this point, the NSW research is instructive. Professor Quilter said trials concentrated on the conduct of the victim, and whether they had consented, with less attention paid to the accused’s knowledge in relation to consent.

Complainants were regularly cross-examined about delayed or incomplete complaints; having failed to physically resist; having failed to verbally communicate non-consent; having incomplete or inconsistent recall of events; having lied or fabricated the allegation for an ulterior purpose; having given “drunken consent”; having engaged in prior flirtatious behaviour; and mental illness.

One should ask why and how can that be changed.

We know why defence barristers raise these issues: because they influence juries whose members can be swayed by emotion; stereotyping; and myth, irrespective of judicial warnings. And you only need one or two jurors to turn a case. If there were no juries, these appeals to emotion and stereotypes would not work at trial and complainants’ ordeals would be less onerous.

Moreover, without juries, there would be less chance of media conduct jeopardising trials and no chance of jurors doing their own internet “research” on cases.

Failing that, something should be done to restrain attack-dog conduct by barristers in these cases.

But back to the Lehrmann case, the inquiry, and the media. Sofronoff found that police were reluctant to charge at first. But once the DPP decided there was enough evidence to prosecute, what police saw as media pressure caused them to rush to charge and prosecution and in doing so made two errors. They handed over critical material to the defence which they should not have. And they did not warn the complainant first.

Sofronoff also found the police had no clear guidelines on when to prosecute or when recommend prosecution. Surely, police should be above being pressured by the media and should have clear guidelines on one of their primary functions.

But Sofronoff let them off lightly with his belief that they would fix these things themselves so they would not recur. Not so the DPP who was vilified and hounded out of his job with hints that he deserved disbarment for his admitted errors.

That has been compounded by the ACT Bar Association chiming in with a public statement that Drumgold’s practising certificate had been restricted from the time of his appointment as DPP to government service and that he cannot therefore now practice as a barrister. Surprisingly, that public statement came the day after and despite a plea from Chief Justice Lucy MacCullum warning about the “personal toll on practitioners” and urging them “to show kindness and respect towards each other”.

The case also highlighted the “media circus”, whose complement of clowns has been vastly supplemented by the addition of social media.

It was on again this week with Higgins posting directly to social media without the benefit of the checks, balances, and judgment of traditional media.

But even that has gone by the by. In this case, The Australian newspaper took on the role of cheerleader and received more leaks than a urinal over the course of the whole saga.

That leads us to the bizarre decision by Sofronoff to give The Australian and the ABC alone advanced copies of his report before giving it to the ACT Government.

The Australian says it did not break the embargo when it published details of the report several days before the Government got it. Either way, it shows either slack security by the inquiry or the folly of handing out embargoed copies.

And even if Sofronoff thought it important than the media be given time to digest the report, he went about it the wrong way. 

First, he showed favouritism and bias in giving it to just two outlets, particularly The Australian which had been waving its anti-MeToo bias since the case began. It was an appalling lack of judgment which might make reasonable people question his judgment overall.

Second, this was an ACT case, surely the main news outlet in the ACT – The Canberra Times – would have priority over The Australian. That bespeaks of bias.

But his duty was to report to the ACT Government. If he was worried about time for the media to digest the report, he should have left it to the Government, perhaps suggesting something like a Budget lockup for all media.

But will Sofronoff be sanctioned in any way? No. The ACT Inquiries Act sets up the equivalent of a Royal Commission, but the ACT has an aversion to the word “Royal”. An ACT inquiry and its inquirers have the same powers and immunities as a federal or state Royal Commissions which easily cover gross errors of judgement like the injunction against premature disclosure that applies to everyone else.

At least Chief Minister Andrew Barr was cautious enough to only SUGGEST that Sofronoff was legally out of bounds and not to erroneously conclude it, despite his justified outrage.

Crispin Hull

This article first appeared in The Canberra Times and other Australian media on 14 August 2023..