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Lawyers for the former ACT top prosecutor Shane Drumgold have argued that The Australian journalist Janet Albrechtsen "infected" bias into the mind of Walter Sofronoff, the chair of the inquiry examining the prosecution of Bruce Lehrmann.
Mr Sofronoff, a former Queensland solicitor-general, was hired to chair a board of inquiry last year, which examined the conduct of criminal justice agencies during the prosecution of Mr Lehrmann.
Mr Lehrmann's trial over the alleged rape of Brittany Higgins was abandoned due to juror misconduct, and there have been no findings against him.
Mr Sofronoff's final report was scathing of Mr Drumgold's conduct as the lead prosecutor for the ACT, which led to Mr Drumgold's resignation when the findings were made public last year.
Mr Drumgold is now asking the ACT Supreme Court to strike out Mr Sofronoff's report, arguing it was written with the apprehension of bias against him and denied him natural justice.
Of 91 calls to journalists, 51 were to one person
Mr Drumgold's barrister Dan O'Gorman on Tuesday argued hours of phone calls and text messages between Mr Sofronoff and The Australian journalist Janet Albrechtsen had "infected" the report's findings with bias.
Telstra phone records provided to the court showed 91 phone conversations occurred between Mr Sofronoff and journalists between February 9 and August 2, 2023 — a total of 13 hours and 37 minutes.
Of those 91 phone calls, the records showed 71 were with journalists from The Australian — 51 of those being specifically with Janet Albrechtsen.
And of those 13 hours and 37 minutes, Mr Sofronoff's time on the phone with Albrechtsen added up to 11 hours and 27 minutes, the court heard.
It was also revealed Mr Sofronoff initiated eight phone calls to Albrechtsen throughout the inquiry between May 8 and June 6 last year.
"A reasonable assessment of those figures would lead a fair-minded observer to have real concerns about what's going on here," Mr O'Gorman said.
He argued a fair-minded observer might think "this inquiry fellow hasn't kept an open mind", and may consider Albrechtsen to have received favoured treatment.
"She was treated differently to any other media person," Mr O'Gorman said.
Lawyer says text message reveals bias before Drumgold's testimony
Part of Mr Drumgold's case relies on a text message exchange between Albrechtsen and Mr Sofronoff in the days before Mr Drumgold was due to give evidence to the inquiry.
It included a discussion about previous evidence given to the inquiry by two witnesses who were junior staffers who worked under Mr Drumgold when he was in the position of director of public prosecutions (DPP).
"What a thing to do to two young professionals under your mentorship," Mr Sofronoff said of the evidence about Mr Drumgold in his text message to Albrechtsen.
Mr Drumgold's lawyers argued that the message indicated Mr Sofronoff had "poisoned his mind" about the former DPP prior to Mr Drumgold giving the inquiry his own evidence.
"Here he is expressing an adverse opinion about Mr Drumgold before Mr Drumgold even approaches the witness box," Mr O'Gorman told the court.
"This is particularly concerning."
The court heard Mr Sofronoff was introduced via text message to Albrechtsen by her colleague, Australian journalist Hedley Thomas, who told Mr Sofronoff in an email in February 2023 that she had expressed "great confidence" to his appointment as chair of the inquiry.
In a separate email to Mr Sofronoff, Thomas said Janet Albrechtsen would be "best placed" to report on the board of inquiry because of her history "breaking several recent and very interesting stories about complaints levelled against Drumgold and his behaviour," the court heard.
"I think it would be fair to speculate that Janet's relationship with the defence case would be much more rosy than with the DPP," an email from Thomas to Mr Sofronoff said.
Mr O'Gorman alleged Mr Sofronoff must have known Albrechtsen's reporting would be adverse against Mr Drumgold and favour Mr Lehrmann.
The text messages also included Albrechtsen providing commentary, documents and other information to Mr Sofronoff, including the personal contact details for Bruce Lehrmann.
A message on April 20 was sent shortly before a phone conversation between Albrechtsen and Mr Sofronoff, the phone records presented to the court show.
"But it is clear that there had been discussion between Albrechtsen and [Mr] Sofronoff relating to [Mr] Lehrmann," Mr O'Gorman said.
"At the same time Mr Drumgold was the brunt of this [Albrechtsen's] negative reporting, Ms Albrechtsen was in regular contact with Mr Lehrmann," he said.
Inquiry head's private lunch with journalist
Prosecutors argued Albrechtsen had unprecedented access to Mr Sofronoff when she flew to Brisbane to meet him for a private lunch on March 31, 2023.
"There is no evidence to suggest that another journalist was extended the privilege of a private luncheon with Mr Sofronoff … at a restaurant chosen by Mr Sofronoff and booked by Albrechtsen," Mr O'Gorman said.
The court also heard that once the inquiry had ended, Mr Sofronoff provided Albrechtsen with several draft versions of his final report, including copies marked with annotations by way of "tracked changes" made in the development of the report.
She had sent him a text message requesting a draft copy of his report, which she noted would make "very welcome weekend reading".
"No other journalist was given drafts of Mr Sofronoff's draft changes, which one would imagine would include notes from counsel assisting, notes from solicitors employed by the inquiry," Mr O'Gorman said.
Sofronoff used four different emails
The court heard Mr Sofronoff used four different emails to communicate with journalists beyond his formal address associated with the board of inquiry, including a Gmail email address he used to send eight emails to Albrechtsen.
"What is striking, and what follows from this, is that if these communications were all appropriate and above board, why use that email address to provide [Albrechtsen with] documents?" Mr O'Gorman said.
Mr Drumgold has abandoned another ground of his challenge to the report, which had accused Mr Sofronoff of breaching section 17 of the Inquiries Act after disclosures about the content of the report.
The court also heard Mr Drumgold and Mr Sofronoff have agreed that neither would make an application for costs against the other pending the outcome of the proceedings.
The hearing is set to continue until Thursday.