Journalists, decision-makers and the risk of apprehended bias: lessons from Drumgold v Board of Inquiry – Criminal Justice System

The fallout of the aborted prosecution of Mr Bruce Lehrmann (who maintains his innocence of the charges brought against him) in the ACT continues. In the latest development of the rolling legal saga, Mr Shane Drumgold, the former ACT Director of Public Prosecutions, has successfully challenged some of the adverse findings made against him by an independent Board of Inquiry established to investigate the aborted criminal trial.

Acting Justice Stephen Kaye heard the judicial review proceedings over the course of three days and handed down his judgment on 4 March 2024. The decision in Drumgold v Board of Inquiry – Criminal Justice System (No. 3) [2024] ACTSC 58 gives rise to important issues regarding the role of the media in public inquiries and the need for decision-makers to balance the risk of apprehended bias against fundamental principles of open justice.

Background

The Board of Inquiry was established by the ACT government and commenced on 1 February 2023 with Mr Walter Sofronoff KC (former President of the Queensland Court of Appeal and former Solicitor-General of Queensland) as its head. It was triggered by a letter from Mr Drumgold to the ACT Chief Police Officer, in which he called for an investigation into police conduct in the lead up to, and during, Mr Lehrmann's trial.

Mr Sofronoff submitted his final report to the ACT government on 31 July 2023. The Report vindicated the police involved but levelled a number of criticisms at Mr Drumgold, who resigned as the ACT Director of Public Prosecutions shortly after its release.

On 25 August 2023, Mr Drumgold filed an application for judicial review in the ACT Supreme Court, naming the Board of Inquiry and the Australian Capital Territory as defendants. In his application, Mr Drumgold sought declaratory relief on three grounds, including that the conduct of Mr Sofronoff gave rise to a reasonable apprehension of bias.

Allegation of apprehended bias

Mr Drumgold's principal submission regarding apprehended bias was that throughout the inquiry, Mr Sofronoff regularly communicated with and provided documents to The Australian and in particular, journalist Ms Janet Albrechtsen, who Mr Drumgold alleged had been highly critical of him. In support of that submission, Mr Drumgold relied on a number of articles written by Ms Albrechtsen which he contended impugned his character and credibility, while casting Mr Lehrmann in favourable light. Mr Drumgold also pointed to evidence of text messages, emails, phone calls and a private lunch between the two in support of his submission that Mr Sofronoff had communicated extensively with Ms Albrechtsen in the lead up to and during the Inquiry.

The question before the Court was therefore whether the test for apprehended bias had been met. Namely, whether a fair-minded lay observer might reasonably apprehend that Mr Sofronoff might not have brought an impartial mind to the resolution of the question which he was required to decide, by reason of his contact with Ms Albrechtsen.

The fair-minded lay observer

This test for apprehended bias is distinct from the test for actual bias, which requires an assessment of the subjective state of mind of the decision maker. Rather, the test for apprehended bias is objective, concerned with possibility (real and not remote) rather than with actuality or probability. As the plurality in Johnson v Johnson (2000) 201 CLR 488 explained:

"[t]he hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, founded in the need for public confidence in the judiciary."

Justice Kaye set out the three-step test for apprehended bias:

1. First, it is necessary to identify the fact or circumstance, which it is said might have lead the decision-maker to decide a case other than on its legal and factual merits.
2. Second, there must be demonstrated to be a logical connection between that fact or circumstances and the apprehended deviation from the court of deciding the case or issue in question on its merits.
3. Thirdly, it is necessary to assess the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

Findings of Acting Justice Kaye

Due to the particular facts of this case, Justice Kaye's determination was necessarily two-fold. First, he had to consider whether the fair-minded lay observer might consider that Ms Albrechtsen held and/or publicly expressed a critical view of Mr Drumgold. If so, the second consideration was whether the fair-minded lay observer might apprehend that Mr Sofronoff was influenced by those views.

With respect to the first consideration, Justice Kaye conducted a detailed analysis of various articles written by Ms Albrechtsen and found that a "fair minded lay observer, acquainted with the articles written by Ms Albrechtsen, would readily conclude that she published and held views, which were strongly critical of the conduct by the plaintiff".

Turning to the second consideration, Justice Kaye considered the cogency of Ms Albrechtsen's views together with the nature, extent, frequency and context of the communications between her and Mr Sofronoff. For instance, his Honour considered that those communications:

1. were of a substantially greater volume than the volume of communications Mr Sofronoff had directly with other members of the media;
2. were markedly different to the method by which the Board of Inquiry ordinarily communicated with the media, noting there was a process by which the Executive of the Board of Inquiry received and responded to requests for information from the media, which generally kept the media "at arm's length from Mr Sofronoff";
3. demonstrated that Ms Albrechtsen felt free to communicate and express her opinions to Mr Sofronoff about the issues before the Inquiry and Mr Sofronoff in turn felt comfortable to express views about certain matters before the Inquiry, and Counsel for Mr Drumgold, to Ms Albrechtsen; and
4. would cause the fair-minded observer to be concerned as to the private and, to some extent, secretive nature of the communications.

Having assessed the communications between Mr Sofronoff and Ms Albrechtsen, Justice Kaye concluded that it was "unavoidable" the fair-minded lay observer might reasonably apprehend that Mr Sofronoff might have been influenced by the views held and publicly expressed by Ms Albrechtsen.

Principle of open justice

The apprehension of bias principle gives effect to the requirement that justice should both be done and be seen to be done. For justice to be seen to be done, it is critical that decision-makers preserve the fundamental principle of open justice. Broadly speaking, open justice dictates that court proceedings are open to the public and may be freely reported on.

Indeed, Mr Sofronoff was plainly aware of the critical role the media played in reporting the work of the Inquiry to the public. At the commencement of the first public hearing, Mr Sofronoff made a statement emphasising the importance of the work of the media in this respect. A few days later, he delivered a ruling that it was in the public interest to hold the hearings publicly, so that the community might know and be informed about the proceedings. He also made it plain that both he and Counsel Assisting had ‘freely engaged with journalists’ to ensure that they could obtain a full understanding of the evidence and the significance of it.

Justice Kaye noted that he was not required to consider whether the amount and nature of the communications between Mr Sofronoff and Ms Albrechtsen were "appropriate" or "prudent" as part of his determination of the apprehended bias allegation. Indeed, his Honour acknowledged that the processes of an Inquiry are distinct from those of a court, and some interchange between the Chairman of an Inquiry and the media might be fairly considered to be acceptable.

However, Justice Kaye also pointed to the fact that the communications between Mr Sofronoff and Ms Albrechtsen all took place in private and were never disclosed to the public at large or to Mr Drumgold. Further, while accepting that Mr Sofronoff's pronouncement that he and Counsel Assisting would engage with media was appropriate, his Honour found it did not reveal that Mr Sofronoff would be extensively communicating personally, and privately, with one particular member of the media.