The ACT Government supports the ten recommendations contained in the Report of the Board of Inquiry into the Criminal Justice System arising from the trial of R v Lehrmann released today.
The Government agrees with eight recommendations and agrees in principle to two recommendations (subject to further consultation with the Office of the DPP, ACT Policing, Victims of Crime Commissioner and legal stakeholders).
The recommendations contained in the Report offer a pathway forward for the ACT criminal justice system and will further strengthen community confidence in the institutions that support a fair and just system for Canberrans.
On the release of this Report and the Government response, we acknowledge the distress caused to individuals affected throughout the matter. One of the purposes of this Inquiry was to address these concerns by examining the circumstances and actions leading up to, and during, the trial in R v Lehrmann.
A key finding by the Board of Inquiry was that it was appropriate to prosecute this matter, on the information available to ACT Policing and the Director of Public Prosecutions.
In response to the Board of Inquiry’s commentary on the conduct of the ACT’s Director of Public Prosecutions (DPP) Mr Shane Drumgold SC, the Attorney-General spoke with Mr Drumgold on Thursday and they agreed that his position as Director was no longer tenable.
As has already been reported, Mr Drumgold wrote to the Attorney General on Friday tendering his resignation. The acting DPP, Mr Anthony Williamson, will continue to act in the role whilst a recruitment process to permanently fill the position is undertaken.
It remains open to Mr Drumgold to provide the Government with a response to the Report’s findings and commentary.
The Government has also conducted a preliminary review of the 18 criminal cases that Mr Drumgold conducted, or in which he participated in, since his appointment as DPP in 2019.
This examination has found that Mr Drumgold’s practice whilst DPP was appellate, meaning that the facts and evidence had already been determined and what was in issue was the findings or sentence based on those facts.
He appeared at first instance, or was briefed to appear at first instance, in only three matters. Of those three matters, two were not the subject of any significant dispute between the parties and one of these two involved a plea of guilty where the facts were agreed between the parties. The other matter involved a trial for murder of which Mr Drumgold had carriage until approximately 2 weeks before the trial commenced, at which point it was re-briefed to a private barrister who appeared as counsel for the prosecution during the trial.
Therefore, on the material available at this point, the Government does not consider that a more detailed examination is warranted. Defendants in historic and current matters have the opportunity to raise any specific concerns through existing judicial processes.
The Government’s focus in the past week has been to properly respond to the Report and ensure, as much as possible, procedural fairness is afforded to all parties named in it.
Under the Inquiries Act 1991, the Chief Minister has up one month in which to release the Report or explain its non-disclosure. The Government was clear from the time of establishing the Inquiry that it would use this reporting period to conduct a proper Cabinet process to finalise our response, including any necessary communication with named parties.
The Government has been made aware that the Board of Inquiry Chair chose to provide the Report to two media organisations. In one instance this occurred prior to the Chief Minister receiving the Report as required under the legislation.
The release of the Report, which was not communicated to or approved by the Government, and possible other communication with journalists through the Board of Inquiry process, has interfered with the due process that should have been afforded to impacted parties.
The Government is extremely disappointed that this occurred.
Nonetheless, the Government maintains confidence in the Report recommendations and our focus remains on implementation.
The Government has written to the Board of Inquiry Chair and has received a response from him. That correspondence is now subject to a Freedom of Information (FOI) request. The release of the correspondence will be guided by normal FOI decision-making processes, including consultation with third parties.
The Government is currently seeking advice as to whether the premature release may have constituted a breach of the Inquiries Act 1991 and if any further action is required.
The Government will also consider changes to the Inquiries Act to strengthen provisions relating to the obligation of nondisclosure of information in section 17 prior to the formal release of an inquiry report. The intent of any changes will be to provide the ACT Government and the Canberra community with assurance that the unapproved release that occurred on this occasion will not occur for any inquiry that may be commissioned in the future.
The Government notes that extensive Appendices are attached to the final Report. These Appendices contain proposed adverse comments against named individuals and their submissions in response. Some of those named have requested that the Chief Minister not release the Appendices.
In deciding to release the full Report and Appendices, it is important to observe that in many instances, the Board of Inquiry chose not to include proposed adverse comments in the final Report after receiving submissions in response from those named. There is no basis to draw inferences from those proposed adverse comments contained in the Appendices.
