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  • Writer's pictureCreevey Horrell Lawyers

Right to a Fair Trial

The presumption of innocence is a fundamental pillar of our legal system that has been entrenched in human history dating back to the Roman empire. Put simply, a person is presumed innocent until they are proven guilty, beyond a reasonable doubt, usually by a group of their peers. This presumption can only be discharged if, after a fair trial conducted by law, the allegations are proved beyond a reasonable doubt.

What makes a fair trial?

Many things. The primary requirements for a fair trial are that the accused is informed of the charges, given early and timely disclosure, allowed time to prepare and have legal representation.

Who is responsible for ensuring trials are fair and conducted in accordance with law?

Judges, prosecutors and lawyers. Prosecutors hold enormous power in prosecuting charges, therefore this power must be exercised diligently and fairly.

In Queensland under the Director of Public Prosecutions Act 1984, The Director and their office are given many functions, including to ‘prepare, institute and conduct on behalf of and in the name of Her Majesty [sic] criminal proceedings, proceedings in the Court of Appeal and proceedings in the High Court of Australia that arise out of criminal proceedings.

The Director is given the power under the Act to ‘furnish guidelines in writing to crown prosecutors and other persons acting on the Director’s behalf with respect to prosecution in respect of offences.

In Queensland the Prosecutor Guidelines can be found at:

The fundamental principles discussed above are entrenched in the guidelines. Rightly so, because when prosecutors exercise their powers a person’s freedom and liberty is often at stake.

The first guideline in the document is the duty to be fair. Essentially, the prosecutor must present the case properly and with fairness to the accused and must never seek to persuade a jury by introducing prejudice or emotion.

Having regard to these principles, which are relatively similar amongst Public Prosecution offices around Australia, the initial reports of the Inquiry into the prosecution of Bruce Lehrmann by retired Queensland Court of Appeal President Walter Sofronoff KC, are of grave concern.

Sofronoff made several findings of misconduct against ACT director of Public Prosecutions Shane Drumgold SC, who prosecuted the case. Some of the findings include:

  • lost objectivity and did not act with fairness and detachment

  • deliberately advanced a false claim of legal privilege and misled the court

  • withheld disclosure

  • egregiously abused his authority and betrayed the trust of his young staff member

  • knowingly lied to the chief justice

It is an utter disgrace that the ACT’s Director of Public Prosecutions has conducted a case in this way. Drumgold SC has completely disregarded, not only the important duties and responsibilities that apply to prosecutors but the fundamental pillars of our entire legal system. If the prosecution had been successful, Lehrmann would have served time in custody, taking away his rights to freedom and liberty. His rights would have been taken away based on an unfair trial where the prosecutor lost objectivity and did not act with fairness and detachment and misled the court. If Drumgold SC was accused of something, he would expect a fair trial and be outraged if the prosecution against him was conducted in the way it was conducted against Lehrmann.

In a complete lack of insight into his conduct, Drumgold SC, was the person who asked for the inquiry into the prosecution. Drumgold SC alleged that police campaigned to pressure him not to prosecute the matter and accused the investigators of being aligned with the defence. The inquiry resulted in the damning findings against Drumgold SC.

In relation to Drumgold SC’s statements which misled the Chief Justice, he instructed his counsel at the inquiry to submit it was a mere mistake. Sofronoff said that this was “a grievous lack of insight into his behaviour and shows that even now, he is not prepared to admit what he did.”

Drumgold SC is exactly the type of person who should not be prosecuting offences. This inquiry has to call into question all of the matters Drumgold SC has previously prosecuted. Did he uphold his duties as a prosecutor?

Prosecutors must adhere to their guidelines and fundamental pillars of a legal system. It is an extremely dangerous precedent to set if prosecutors are allowed to conduct themselves in a way remotely close to how Drumgold SC did. Prosecutors have the power to take away people’s freedoms and liberties. This power must be exercised with the greatest caution in accordance with the law and guidelines. Better training may be needed for prosecutors, to entrench the fundamental important laws and guidelines into their practices so this never happens again.


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