Indefensible

The recent article in The Guardian about the wildly weird way a retired judge decided to conduct himself is good reading:

 After Lehrmann’s aborted trial, questions arose regarding the conduct of the police, the prosecutor and some politicians. Allegations and counter-allegations. An independent inquiry was the only way to get to the truth. A retired judge, Sofronoff, was appointed.

But things went awry straight away. A connection was made between Sofronoff and a “conservative columnist” at the Australian, Janet Albrechtsen. Albrechtsen had written many, many articles attacking the prosecution of Lehrmann as political and severely criticising Drumgold. It was clear that Albrechtsen had taken a position on the very matters which Sofronoff was supposed to be examining. They went to lunch together in Brisbane and commenced personal contact relating to Sofronoff’s inquiry.

Sofronoff has defended this, saying he was following a practice that commissioners make direct personal contact with the press. Sofronoff might think that, but no lawyer I know agrees with him. Everyone has been shocked by his conduct.

But even so there are varying degrees of personal contact. The constant contact between Sofronoff and Albrechtsen, as set out in the judgment, was pretty striking. It started even before the inquiry opened. It continued with a surprising intensity. Sofronoff and Albrechtsen shared more than 50 telephone calls for over 7.5 hours. They exchanged a huge number of text messages, many in a single day. Some emails were sent “secretively” to a private email address. Much of the traffic was initiated by Sofronoff. Meanwhile, Albrechtsen continued banging out negative articles about Drumgold on a daily basis.

The content of their contact was equally surprising. Even before the hearings started, Sofronoff sent Albrechtsen parts of the evidence with comments critical of Drumgold. During the public hearing, Albrechtsen even proposed to Sofronoff that he put particular questions to a witness – and Sofronoff agreed!

It gets worse. During the crucial phase during which Sofronoff was drafting his report, he was actually sending successive versions to Albrechtsen. Changes were made, but Kaye did not make a finding as to why the changes were made or who suggested them. We do know, however, that Sofronoff’s final report closely matched Albrechtsen’s anti-Drumgold narrative. Kaye found it would be reasonable to think that Sofronoff was under Albrechtsen’s “influence”. 

Lawyers can act very, very stupidly at times...

Update:   Oddly, Bernard Keane gives a quasi-defence of Albrechtsen which is more about admiring her ability as a quasi-journalist to entrench herself so deeply with a source!:

Albrechtsen was, clearly, a player in this inquiry, not a journalist. Nonetheless, she was doing her job of securing access to someone crucial to the issue she was covering. To obtain such high-level access to someone at the very heart of one of the biggest stories of the day was, bluntly, great journalism. I’d wager many journalists around the country can only envy the extent to which she got access to the head of a major inquiry. You can rebuke the use to which she put that access but still marvel that she obtained it.

But on the retired judge, he agrees it is bizarre:

The behaviour of Walter Sofronoff during the inquiry was, we now know, quite extraordinary — possibly unprecedented. It’s hard to recall any inquiry or royal commission in modern times that has been so characterised by such inappropriate contact between the inquiry head and a third party — let alone a member of the media engaged in campaigning directly on the issues being contested by that inquiry. Sofronoff’s justification that it was appropriate for him to have contact with the media doesn’t even come close to covering the sheer volume and time he dedicated to texting and speaking to Albrechtsen, lunching with her, sharing documents and evidence with her and, possibly, obtaining her input to drafts of his report....

Sofronoff, if he seriously thought part of his job was relations with the media — and that’s the first time I’ve heard the head of a major inquiry claim that — had the responsibility of appropriately managing those relations to the benefit of his inquiry, not giving privileged access and, potentially, a drafting role, to one member of the media.

I find it strange that Keane can find any degree of excuse making for Albrechtsen when he writes this as the big problem:

The problem is not with Albrechtsen, engaged in doing her job, so much as her employer. News Corp was — and is — engaged in a campaign of merciless character assassination of Brittany Higgins. It is devoted to the task of exemplary punishment of her for the damage she inflicted on the Liberal party — along with Liberal MPs and senators who continue to pursue her.

But Albrechtsen is one of the key assassins of Higgins.

I think Keane at times just likes to have eccentric takes for the fun of them.