Ethics

Question 1

Ziems v Prothonotary of SC of NSW

Answer 1

Barrister attacked in hotel by seaman. Subsequently crashed into and killed a motorcyclist. Alleged that he was drunk, however, his condition may have been due to shock and concussion. Convicted of manslaughter and his name was removed from the roll.

Sergeant Phillis who witnessed the attack was not called by the prosecution - meaning that the defence had to call him, and, therefore, could not cross examine him. During the coronial inquest, the police officer acknowledged that the Barrister’s behaviour could have been a result of the attack (he thought that there would have been a cerebral injury caused by the violent attack). The police sergeant’s evidence at trial was not as favourable and he could not be cross examined by the defendant as he was not called by the prosecution but by the defendant.

Appeal allowed. Suspended from practice during term of imprisonment.

Fit and proper person:

1. Many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar, and to draw the dividing line is by no means and easy task.
2. Conviction does not require automatic disqualification. Must look at all the circumstances surrounding the conviction and lying behind them should not be taken into consideration before determining that the appellant should not remain a member of the Bar. Must be examined with “meticulous care”. Professional misconduct must have a much more direct bearing on the question of a man’s fitness to practise than personal misconduct. It was not a conviction of premeditated crime and no connection with professional function. Personal misconduct may be a ground for disbarring because it may show that the person guilty of it is not a fit and proper to practise as a barrister, however, the approach is different to professional misconduct
3. The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. The answer must depend upon one’s conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister.
4. Power to disbar and suspend is incidental to the power to admit.
5. A barrister must possess more than honesty, learning and forensic ability. A barrister is in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community - requiring exceptional privileges and exceptional obligations.

LPUL: ss 15(b), 17(1)(c) and (2), s 45(2)-(4), 75, 297 and 298.
LPUGR: rr 13.

Prosecutor’s duty of failing to call key witnesses:

1. Sergeant Phillis was not called and ultimately called by the defence with a disadvantage as could not be cross examined.

LPUCBR: rr 83, 89 and 90

Question 2

Clyne v NSW Bar Association

Answer 2

Client formed the view that, if his wife’s lawyers ceased to act for her, the proceedings brought by her would be abandoned or could be readily compromised.
The client immediate purpose for contacting the appellant was to get his wife’s solicitor to cease to act for her. The appellant thought of a number of lines of attack on the solicitor. He decided the best plan would be to institute a prosecution of the solicitor for common law misdemeanour of maintenance. The appellant hoped that, rather than facing a criminal trial, the solicitor would agree to cease to act for the wife. In the opening before the Magistrate, the barrister deliberately used the occasion to make a savage public attack on the professional character of that solicitor. He made that attack in extravagant terms, alleging fraud, perjury and blackmail. He knew that he had no evidence to substantiate such allegations. Intimated that, if he were to cease to act for his client, the criminal proceedings would have achieved their object and could be discontinued. The Full Court of the NSW Supreme Court struck the barrister of the roll of barristers.

1. Whether a person is shown not to be a fit and proper person to be a member of the Bar. This is not capable of a more precise statement
2. Generally accepted standard of common decency and common fairness.
3. The privilege, to which the barristers is subject [i.e. absolute privilege from defamation, may be abused if damaging irrelevant matter is introduced into a proceeding. The privilege … is grossly abused where if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence.
4. Disbarment is made for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege [i.e. to protect the public and to deter like conduct].

LPUL: ss 15(b), 17(1)(c) and (2), 297 and 298.
LPUGR: rr 13.
LPUCBR: 8, 23, 24, 25, 42 [compare with 43], 49 and 50, 60, 61, 64 and 65.

Question 3

NSW Bar Association v Evatt

Answer 3

Veron and Miles, 2 seperate solicitors, engaged in systematically grossly overcharging clients. Barrister was briefed by those solicitors and charged excessive fees knowing they would be paid in part from the amounts so charged by the solicitors. In some of those matters he had given advice to client to settle including on terms allowing the solicitors fees. Disbarred [initially suspended].

1. The barrister assisted the solicitors in grave malpractice and did so knowing that their malpractice would provide the source of part of his own excessive fees.
2. Facts proved and found demonstrated unfitness to be a member of the Bar – not some isolated or passing departure from proper professional standards amounting to something less than proved unfitness.
3. The power of the court to discipline a barrister is ‘entirely protective’ and not punitive.
4. The barrister’s failure to understand the error of his ways of itself demonstrates his unfitness.

LPUL: ss 172, 207, 297 298.

Question 4

Kelly v London Transport Executive

Answer 4

It was a case brought by Mr Kelly against his employer for injuries that Mr Kelly allegedly sustained in the course of his employment. Mr Kelly’s employer, London Transport, asserted that Mr Kelly’s disabilities were caused by his chronic alcoholism. At trial, Mr Kelly ultimately succeeded, but he received only £75 by way of compensation.It was a case brought by Mr Kelly against his employer for injuries that Mr Kelly allegedly sustained in the course of his employment. Mr Kelly’s employer, London Transport, asserted that Mr Kelly’s disabilities were caused by his chronic alcoholism. At trial, Mr Kelly ultimately succeeded, but he received only £75 by way of compensation.

The solicitors for London Transport sent copies of their medical reports to the solicitors for Mr Kelly. One in February 1980, and the others as soon as they were received in July 1980. But Mr Kelly’s solicitors did not reciprocate. They only sent at one stage the ‘doctored’ report of Dr Denham.

Lord Denning condemned Dr Denham for changing his report at the request of the plaintiff. He said, ‘I do not think the solicitor should have asked him anyway to have changed his report and, secondly, if a consultant was asked, knowing that he is delivering a forensic report, one that is going to be used in the courts, he should not have obliged and therefore he falls down in my estimation.

Counsel had advised the obliteration of references to previous medical reports. But, whoever it was, it is quite plain to my mind that the specialist’s report should not have been changed at the request either of the solicitor or counsel.

They must not ask a medical expert to change his report, at their own instance, so as to favour their own legally aided client or conceal things that may be against him. They must not ‘settle’ the evidence of the medical reports as they did in Whitehouse v Jordan.

In essence, alterations to expert reports that alter or disguise the expert witness’ genuinely held opinion are improper.

LPUCBR: rr 69 [possibly 23 - 24]

Question 5

In the matter of James Lindsay Glissan

Answer 5

Counsel strongly advised client to settle a matter because he formed the view the cases was “completely unwinnable”. Counsel was of the view the client was at risk of losing his house and taking his children from private schools. Guilty of unsatisfactory professional conduct and reprimanded.

1. He persisted in that course until settlement was agreed.
2. The pressure exerted upon the client was such as to convey to him the impression that if he wished the case to proceed he would have to conduct it himself.
3. Instructions were to fight the case. His persistence overbore the instructions.
4. Honest conviction of the rightness of the lawyer’s advice does not entitle him to deprive his client of a free choice.
5. The barrister must always, should his advice not be accepted, return his brief.
6. Counsel is his client’s adviser briefed only to advise and argue, that he has no personal interest in the outcome of the litigation.
7. It is not consistent with counsel’s duty to his client that his determination to settle should, directly or indirectly, overbear his client’s will.

LPUL: s 296 and 298.
LPUCBR: rr 35, 36 and 37 [compare 42 and 43], possibly 105(m) depending on the terms of the costs agreement, as 105(g) as it is questionable whether or not it involved compromise, 110 and 111.

Question 6

Chamberlain v Law Society of the ACT

Answer 6

Mistake made by officers of the Deputy Commissioner of Taxation in preparing the endorsement on the writ in an action commenced by the Deputy Commissioner of Taxation against the appellant in the Supreme Court. It was agreed that the amounts set out were correct. It was, however, common ground that although the arithmetically correct total of the amounts claimed by the DCT, after allowing for the credits to the appellant, was $255,579.92, the endorsement showed the total as $25,557.92 and the DCT’s claim was expressed to be for that sum. Evidently, the decimal point was put in the wrong place by mistake, resulting in the amount claimed being $230,000 less than it should have been. The appellant was well aware of the mistake and determined to take advantage of it. He got the DCT, by his employed solicitor to sign a document entitled ‘Terms of Settlement’ and to consent to judgment for the wrong sum. Appeal allowed in part. The order of the Supreme Court of the ACT that the right of the appellant to practise in the ACT be suspended for a period of six months be set aside and in lieu thereof it be ordered that the appellant be reprimanded [given the isolated nature of his conduct and his good character].

1. In some circumstances there is a positive obligation to draw the attention of an opponent to a mistake, except when to do so might prejudice a practitioner’s own client.
2. In appropriate cases, advantage may properly be taken of a procedural mistake or oversight that may involve the other practitioner’s client in unnecessary expense or delay, but it does speak against a practitioner doing or saying anything to “induce or foster a mistake”. A practitioner should not do anything to induce or foster a mistake that may result in unnecessary expense or delay to the other practitioner’s client [i.e. it would have been ok to pay the amount on the writ or to allow default judgment to be entered].
3. The appellant was “using his knowledge and skills as a legal practitioner” and his conduct should be looked at as professional misconduct, despite the fact that he was acting with respect to his private affairs.
4. The standard owed to an unrepresented opponent cannot be lower than that owed to a fellow practitioner and the standard is not to be lowered when a solicitor is acting for himself against an unrepresented opponent.
5. Professional misconduct should not be categorically defined, but includes conduct which may reasonably be held to violate, or fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.

LPUL: s 297 and 298.
LPUCBR: rr 8, 23, 24, 25 [although questionable whether he misled the court by signing the writ], 49, 50 and 51.

Question 7

Re Glen Gould

Answer 7

Barrister double-booked with part heard matter. Returns part heard brief only of Friday morning preceding the Monday on which both matters to be heard. Also, made misleading comments to the NSW Bar Association and mislead client and instructing solicitor by conferring with them on Thursday morning when he knew that he accepted another brief on Monday and could not be in 2 places at once. Held to be guilty of professional misconduct and publicly reprimanded.

1. Inappropriate for him to accept or retain second brief.
2. Misled client and instructor into believing he could do matter.
3. How he conducted himself from the time he knew of the clash until the return of the brief was conduct that ‘fell well short of that expected of a barrister’ [i.e. basically ignored the conflict].
4. Attempted to mislead NSW Bar Association and found that he misled then in advising that he had discussed with instructing solicitor then equivalent of rr 108 and 110.

LPUL: ss 297 and 298.
ULPCBR: r 8, 17(b), 104, 105(b) [although r 104 is expressed stronger], 108, 110, 111 and 112.

Question 8

Hunter v R; Sara v R

Answer 8

This was a direct brief. Appellants each found guilty of aggravated robbery contrary to s95. Although there were significant differences between their respective cases, the appellants were represented by the same counsel on a direct access basis. On the prosecution case, it would have been open to the appellant Hunter to distance himself from the conduct of the appellant Sara. In addition, the appellant Hunter may have relied upon evidence of good character, a course which was not open to the appellant Sara. Barrister was inexperienced as he had practiced in employment law and this was the first criminal trial he conducted by himself. Both appeals allowed and convictions quashed. Hunter acquitted and Sara new trial ordered.

Both were represented by different counsel at sentence. A quantity of character evidence was called on behalf of Hunter including reference from his employer, trade qualifications, references from people for whom he had done work, he was getting married etc. This would have been available at trial. Sara had some evidence available including having been mostly in foster care he had managed to buy a house and was getting married. He had some earlier convictions. This evidence was called on sentence and would have been available at trial. It could have been used to water down, but not to eliminate entirely the suggestion of bad character conveyed by his criminal antecedents.

1. No single test of general application as to whether errors of counsel have led to a miscarriage of justice. Each case will depend on its own facts and upon an assessment of whether the incompetence displayed was of such a nature as to have led to a miscarriage of justice.
2. The errors made by counsel in this instance included: (a) not ensuring that the accused had separate representation (b) failing to recognise the different cases available to each; (c) failing to ensure that character evidence was put for one of the accused [as it was prejudicial to Sara]; (d) failing to object to inadmissible and prejudicial evidence; (e) and failing to fulfil basic standards of advocacy.

LPUCBR: rr 17(a), 21, 22 [not clear whether this was done, in particular r 22(v)], 35, 36, 37, 38, 107 [possibly as his lack of experience may be “exceptional and compelling circumstances within r 107(a)(i)] and 119.

Question 9

R v Kneebone

Answer 9

Convicted of offences relating to sexual assault of his step daughter and other non-sexual assault. Complainant alleged that on one occasion accused hit her causing her to bleed, threw her on bed and raped her. The mother opened door to room, looked at what was occurring and said “that’s enough”, the accused continued for short while, then got off her. She left the house and went to house of a third party where injuries consistent with physical assault. She was interviewed by police and later a doctor. Did not mention sexual assault to either. Accused charged almost immediately with physical assault [non-sexual. Complainant disclosed the sexual assault for first time in approximately 2 years. The mother was not called or interviewed by prosecution even though a material witness and no evidence of the reasons as to why the mother was not called during trial were given. Failure of prosecution to call mother amounted to miscarriage of justice. Appeal allowed and new trial ordered.

1. Role of prosecutor to assist court arrive at truth and have whole of relevant evidence. He has the responsibility for ensuring that the Crown case is properly presented. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused and to the court.
2. Prosecutor should call all available material witnesses even if they give accounts inconsistent with crown’s case.
3. Have a discretion not to call, if witness unreliable or untrustworthy. It is, however, not an adequate basis to conclude a witness is unreliable just because the witness’ account does not accord with the prosecutor’s case theory. Prosecutor must take appropriate steps to ascertain reliability of prospective witness including, if necessary, interviewing them.
4. It is up to the prosecution to act with fairness and has the objective of establishing the truth.
5. It is not an adequate basis to conclude that the witness is unreliable, merely because the witness’s account does not accord with some case theory which is attractive to the prosecutor or the witness is in the camp of the accused [i.e. defendant’s camp].
6. The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. The trial judge may, but is not obliged to, question the prosecutor in order to discover the reasons which led to the prosecutor to decline to call a particular person. He or she is not called upon to adjudicate the sufficiency of those reasons. the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as they appear to the judge at that stage of the proceedings, he or she cannot direct the prosecutor to call a particular witness.
7. Judge may then make such comment as he or she then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call the a particular person as a witness would appear to have had on the course of the trial.
8. Save in the most exceptional circumstances, the trial judge should not call a person to give evidence.
9. Not calling the witness without having a principled basis for not so doing accorded ill with the traditional notion of the functions of a prosecutor for the Crown. No basis or evidence was put forward which would have entitled the Crown prosecutor on the basis of unreliability to have formed the view that the witness should not properly be called in the Crown case. There was, for example, no evidence that the witness was unwilling to speak to the police; there was no attempt to conduct a conference with the witness and the witness’ statements to the police concerning the physical assault may have been explicable on a basis other than being in the accused’s camp. “Tactical advantage” would be suggested in the absence of principled basis.

LPUCBR: rr 83, 84 [as it was not full presentation of the case], 87, 89 and 90.

Question 10

R v McIntyre

Answer 10

Appellant was convicted by a jury on 2 counts, one to the effect that he broke and entered a dwelling house and therein maliciously damaged property by fire, and the second, that he stole a motor vehicle in that he took it and drove it without the consent of the owner. The conduct of which complaint is made was that of counsel then appearing for the appellant. It may be described as having been gratuitous rudeness to witnesses, to counsel appearing for the Crown, and to the judge, and the expression of personal views. In many of its aspects the conduct was repeated numerous times throughout the trial. The nature of counsel’s impropriety and the frequency with which they occurred cannot but have been calculated to lead the jury to doubt the worth of listening to anything defence counsel said.

1. Counsel’s misconduct may not necessarily mean that there was a miscarriage of justice.
2. Party is usually bound by the conduct of Counsel.
3. It is a question of whether, by reason of the conduct, the judge or jury was diverted from their tasks.

LUPCBR: rr 8, 44, [61 and 64 [against the judge and prosecutor] possibly, but mainly 44].

Question 11

Di Suvero v Bar Association

Answer 11

Barrister engaged in unsatisfactory professional conduct in several respects during the course of his appearance as counsel for a defendant in a trial at the District Court: see New South Wales Bar Association v di Suvero [2000] NSWADT 194 & 195. Case arose out of conduct and comments made by counsel and directed at Crown Prosecutor and trial judge, both of whom made complaints, leading to finding of unsatisfactory professional conduct. Comments were alleged to be discourteous and disrespectful to her Honour and had the potential or tendency to bring the Court and the presiding Judge into disrepute. When addressing the Court (sometimes in the presence of the Jury) he made statements which:

1. Were offensive or insulting to;
2. Questioned or attacked the integrity of;
3. Displayed a lack of professional courtesy to;
4. Had the potential or tendency to inflame the jury against,

the Crown Prosecutor who was his opponent in the case.The barrister asserted that judge did not let him speak and was not telling the truth. He, also, asserted trial tactics of deception by the crown prosecutor and and “unjustified allegation of deception” against the Crown Prosecutor. Made a comment that it was a political and conducted as such by the prosecutor. Argued that in-court conduct could not amount to “unsatisfactory professional conduct” per s127, because the LPA only allowed for 2 descriptions applicable to in-court conduct – contempt or professional misconduct and that he was not charged with professional misconduct. This construction, it was said, was supported by the definition of “unsatisfactory professional conduct” which it was said did not cover actions or omissions where competence and diligence was not in issue. This construction confines the scope of competence and diligence to matters relating to the immediate practitioner-client relationship. It was said that the allegations in this case dealt only with the barrister’s relationship with opposing counsel (the Crown Prosecutor) and with the Judge.

Suspended from practice for 3 months.

1. Not persuaded that the use of insulting and offensive words can not raise a question as to competence and diligence.
2. Conduct that does not amount to contempt may still amount to a breach of professional discipline.
3. The definitions of professional misconduct and unsatisfactory professional conduct referred to in s 126 and set out in s 127 are not exhaustive. Conduct on the part of a barrister which is intemperate or insulting to a judicial officer before whom he appears but which does not involve any lack of competence or diligence is not excluded as a matter of law from the concept of unsatisfactory professional conduct.
4. The standard set by the Act is not that of the client but that of the `reasonable expectation of a member of the public’. One reasonable expectation of a member of the public is, we consider, that barristers will behave in court in a way which maintains the public interest in the administration of justice, which includes acting in a way which accords appropriate respect to the Court. Failure to maintain the standard could be seen as involving incompetence on the part of the barrister.
5. Even if insulting and offensive language in-court is not within the sphere of `competence and diligence’ it can still amount to ‘unsatisfactory professional conduct.

LPUL: ss 296 and 298.
LPUCBR: rr 8, 44, 61, 64 and 65.

Question 12

NSW Bar Association v Cummins

Answer 12

For 38 years, Mr Cummins did not lodge any taxation returns relating to his professional practice, or for any other personal income. Guilty of professional misconduct and held not to be a fit and proper person to remain on the roll.

1. Mason P in Hamman: “I emphatically dispute the proposition that defrauding ‘the Revenue’ for personal gain is of lesser seriousness than defrauding a client, a member of the public or a corporation. The demonstrated unfitness to be trusted in serious matters is identical.” No legal or moral distinction between defrauding an individual and defrauding the Revenue.
2. The barrister’s complete disregard of his legal and civic obligations with respect to the payment of income tax was such that he must be regarded, at the present time, as permanently unfit to practice [due to his systematic conduct over a period of time].
3. A formal declaration of professional misconduct will go some way to assuring the public that conduct of this character cannot be and is not tolerated in the profession. Where, as here, the public interest is involved, the Court should formally record the result [Tobacco Institute of Australia].
4. Professional misconduct may include acts which do not occur in the ordinary course of practice but which are sufficiently closely connected to practice or which manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice.
5. The preparation and filing of taxation returns is sufficiently closely connected with the practice of a barrister as to justify a finding of professional misconduct.
6. Disbarment requires permanent unfitness - an order for removal is made only because of the probability that the practitioner is permanently (or at least indefinitely) unfit to practice.

LPUL: ss 15(b), 17(1)(c) and (2), [51, 85, 86(b) unsure whether he was charged with a tax offence and 88], 297 and 298(e).
LPUGR: rr 13, 15 and 25.

Question 13

NSW Bar Association v Murphy

Answer 13

The respondent presented a debtor’s petition on 16 October 2000 and became bankrupt on that day. On 3 April 2001, in conformity with the notification regulation, he notified the appellant of that fact. His letter gave reasons for his bankruptcy and expressed his belief that he was a fit and proper person to hold a practising certificate. He essentially attempted to “trade out” of his position and was not the best at managing his affairs, conduct which is different to that of Cummins. Resolved to cancel the practising certificate. He appealed and appeal and it was ordered that a practising certificate be issued to the respondent for the period up to and including 30 June 2002. NSW Bar Association appealed.

1. To remove a person from the roll it was necessary to show that the legal practitioner was not a fit and proper person to be a barrister. The phrase fit and proper person is not capable of more precise statement. The ultimate ground for removal it unfitness to be a legal practitioner.
2. The test to be applied when determining fitness to hold a practising certificate are whether the circumstances in which the act of bankruptcy was committed are such as to persuade a Council that, at the time of its determination, such person is not a fit and proper person to hold a practising certificate. Fitness to hold a practising certificate is to be assessed having in mind the high standards required of legal practitioners in the practice of their profession. The circumstances must show that the legal practitioner is not a fit and proper person to hold a practising certificate. The Council must be persuaded. An even balance means that the circumstances do not show what must be shown. The respondent did not meet his taxation obligations. But it is necessary to ask why he did not meet them, and what was done and could have been done about addressing them.
3. A refusal, cancellation or suspension by a Council under s 38FC of the Legal Profession Act 1987 affects only the one application for a practising certificate or the one existing certificate, and if an applicant applies for a practising certificate for the next or any later certificate year there must be a fresh determination by the Council.
4. the circumstances as found do not reveal such deficiency in character or competence as a legal practitioner that the respondent is not fit to practise as a barrister. On the facts of this case, plainly very different from Cummins.
5. The respondent was not indifferent to his taxation obligations. There was not the regard to compliance with the taxation laws which there should have been in 1990, but apart from that the respondent’s failings were not in the probity required of a legal practitioner, but in the ability properly to order his affairs and cope with the taxation consequences of fluctuations in income. He could have been more questioning of his accountant’s performance, and more resolute in attempting to come to an arrangement with the Australian Taxation Office rather than let the situation overwhelm him (although I do not think deciding to trade on with a view to profitable sale of the kindergarten business was an unreasonable course).

LPUL: ss 15(b), 17(1)(c) and (2), 51, [85, 86(b) unsure whether he was charged with a tax offence and 88]
LPUGR: rr 13, 15 and 25.

Question 14

NSW Bar Association v Bryson

Answer 14

Charged with three offences arising out of an incident at the Bourbon & Beefsteak Bar in Darlinghurst Road, Kings Cross (“the Bourbon & Beefsteak”) on 3 November 1999 as a result of possessing 2 firearms. Convicted the Barrister in respect of each of the three matters, but deferred passing sentence on condition the Barrister enter into a bond to be of good behaviour for a period of 12 months. Guilty of professional misconduct, public reprimand, fine of $10,000, course in legal education and supervision by another barrister for 12 months.

1. The question is whether the conduct would justify a finding that the barrister is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners.
2. The aggravating factors referred to above clearly fall within the ambit of conduct which would justify a finding that the barrister is not of good fame and character. In particular, the fact that he took with him a loaded weapon and a second weapon which could be loaded in a short time with a view, if the circumstances arose, to “going down fighting” and that he then permitted himself to achieve a degree of intoxication which must have increased the danger to members of the public in his vicinity is a very serious matter. When it is added to this the alternatives available to him and the duty of a barrister to uphold the law, the conduct readily falls into the relevant category.

UPUL: ss 15(b), 17(1)(c) and (2), 51, 85, 86(b), 88, 297, 298, 302 and 303.
LPUGR: rr 13, 15 abd 25.

Question 15

Bryson v Bar Association

Answer 15

Order requiring Barrister to undergo 12 months legal education was set aside. Other penalties upheld. Professional misconduct does not necessarily required a lawyer to be struck off.

Question 16

Prothonotary of Supreme Court of NSW v P

Answer 16

An application by the Prothonotary for an order that the name of the opponent be struck off the Roll of Solicitors. Unbeknown to anyone but her close friends and unbeknown to anyone associated with her legal career, the opponent had been using cocaine from 1994. She first used heroin in 1995 and by September 1996 she realised that she was addicted to heroin. She endeavoured to detoxify from heroin and was put on a methadone program. However, she was unsuccessful in becoming drug free. The opponent had been cohabiting with a person called Wheeler since 1994. In January 2000 she went with Mr Wheeler for a holiday in Argentina and Uruguay. On 26 January 2000 Mr Wheeler obtained some cocaine in Argentina. The opponent knew this and knew that Mr Wheeler intended to bring back about 200 grams of cocaine into Australia. It would seem that the opponent completed her incoming passenger card when she was about one hour out from landing in Sydney. At that stage she personally had no cocaine on her person or in her luggage. However, between then and the time of landing Mr Wheeler persuaded her to carry some of the cocaine as he was having difficulty in carrying all of it. The opponent took what was later described as 52.7 grams of pure cocaine in a bulk of 78.2 grams. She put this in a money belt and secreted it in her underwear. Mr Wheeler retained the balance, described as 86 grams of pure cocaine in a bulk of 130.2 grams. The opponent admitted that she was importing cocaine to Federal Officers. She was then charged under s 233B(1)(b) of the Customs Act 1901 (Comm) with importing in Australia not less than the trafficable quantity of cocaine. On 12 April 2001, sentenced to 6 months imprisonment but he ordered she be released after three months upon entering upon a recognisance to be of good behaviour for three months from the date of her release.

See [17] for relevant propositions:

1. The onus is on the claimant to show that the opponent is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236. However Briginshaw v Briginshaw (1938) 60 CLR 336, 362 shows the particular standard that must be applied when working out the civil onus of proof.
2. An order striking off the Roll should only be made when the probability is that the solicitor is permanently unfit to practice: Prothonotary v Richard (NSWCA 31.7.1987 per McHugh JA) and see NSW Bar Association v Maddocks (NSWCA 23.8.1988).
3. The fact that the opponent has a conviction for a serious offence is not necessarily sufficient reason for an order striking that person off the Roll; see Ziems v Prothonotary (1957) 97 CLR 279, 283.
4. The fact of conviction and imprisonment is, however, far from irrelevant and may be regarded as carrying a degree of disgrace itself. See Ziems case at 288.
5. The Court needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the opponent should not remain a member of an honourable profession: Re Weare [1893] 2 QB 439, 446; Barristers’ Board v Darveniza (2000) 112 A Crim R 438 (QCA).
6. The fact that the opponent pleaded guilty to the charge will usually be counted in her favour: NSW Bar Association v Maddocks. Though we do not assume that all pleas of guilty necessarily show remorse, it is significant that in the instant case Keleman DCJ said that it did.
7. Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civic obligations: NSW Bar Association v Cummins (2001) 52 NSWLR 279, 289; NSW Bar Association v Somosi (2001) 48 ATR 562.
8. The concept of good fame and character has a twofold aspect. Fame refers to a person’s reputation in the relevant community, character refers to the person’s actual nature: McBride v Walton (NSWCA 15.7.1994 per Kirby P); Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455, 459.
9. The attitude of the professional association is that the application is of considerable significance.
10. The question is present fitness, not fitness as at the time of the crime: Prothonotary v Del Castillo [2001] NSWCA 75 at para 71.
11. Standards of the profession and the standards of the community change, what might have been considered disreputable by one generation may be accepted by a subsequent one and vice versa.
12. The ten points derived from the American authorities at [24] are: (1) absence of prior disciplinary record or criminal record; (2) absence of motive for personal enrichment; (3) honesty and cooperation with the authorities after detection; (4) the offences being unrelated to the practice of the law in that the addiction has not compacted on her professional duties and have not resulted in harm to her clients or other people; (5) the ignominy of having suffered a criminal conviction and the deterrent element; (6) the absence of premeditation with respect to the commission of the crime; (7) evidence of good character; (8) any voluntary self-imposed suspension or court imposed temporary suspension from practice; (9) delay in commencing disciplinary proceedings; and (10) most importantly, clear and convincing evidence of rehabilitation.
13. What good it would cause to remove the opponent’s name from the Roll of Practitioners? What would the public be protected from?
14. Was subject to conditions of urinalysis.
15. For references to have any weight it is necessary that they are made fully aware of all the relevant facts and circumstances.

UPUL: ss 15(b), 17(1)(c) and (2), 25, 51, 85, 86(b) and 88.
LPUGR: rr 13, 15 and 25.

Question 17

A Solicitor v Council of the Law Society of New South Wales

Answer 17

A solicitor pleaded guilty to four counts of aggravated indecent assault on persons under the age of sixteen years, contrary to s 61M of the Crimes Act 1900 (NSW). He was convicted and sentenced to three months imprisonment. On appeal against the severity of the sentence it was quashed and the solicitor was required to enter into a recognisance to be of good behaviour for three years. The victims of the offences were the children of a woman with whom he was in a relationship and whom he subsequently married. The solicitor, who had experienced difficult circumstances of life at the time he committed the offences, recognised their seriousness and underwent rehabilitation. Some years later, following a further complaint by one of the victims, further similar charges were laid. While those charges were pending the Law Society of New South Wales notified the solicitor that it was considering disciplinary action in respect of the four admitted offences. The solicitor did not inform the Society of the further charges. The Society commenced proceedings, alleging that the conduct constituted by the four admitted offences was professional misconduct, for the removal of the solicitor’s name from the roll of legal practitioners on the ground that he was not a fit and proper person to be a practitioner. Before the determination of those proceedings the solicitor was found guilty of the further charges and sentenced to two years imprisonment. The convictions were quashed on appeal. The solicitor then filed an affidavit in the disciplinary proceedings disclosing the further convictions and the decision on appeal. At the hearing of the disciplinary proceedings the Society alleged that the solicitor’s failure to disclose the later convictions was a breach of his duty of candour amounting to professional misconduct. It contended that because of the conduct comprising the admitted offences and the breach of duty of candour, he was not a fit and proper person to be on the roll of practitioners. The Society applied for a declaration and an order that he be removed from the roll. Court of Appeal ordered that the solicitor’s name be removed from the roll and made declarations. Appeal was allowed in part. Declarations 1(a) and 2 set aside, order that name be removed from roll set aside.

1. Professional misconduct did not simply mean misconduct by a professional person. But, even though conduct was not engaged in directly in the course of professional practice, it might by so connected to such practice as to amount to professional misconduct. Even when it did not involve professional misconduct, a person’s behaviour might demonstrate qualities of a kind that require a conclusion that the person was not a fit and proper person to practise. In this case, the nature of the trust, and the circumstances of the breach, were so remote from anything to do with professional practice.
2. In determining whether the personal misconduct constituted professional misconduct it was appropriate to consider the circumstances in which that conduct occurred and whether the instances were isolated.
3. When the solicitor was aware that the Law Society was considering disciplinary action for conduct which was the subject of the first convictions frankness required him to inform the Society of the further convictions and sentences for similar offences, even if he regarded them as unjust and hoped that they would be overturned on appeal, and his failure to inform the Society was professional misconduct. The appellant’s duty of candour in his dealings with the Law Society was a professional duty, and its breach was professional misconduct. It is irrelevant that the convictions were later overturned.
4. In determining whether the solicitor was a fit and proper person to be a legal practitioner it was correct to consider the combined significance of the misconduct which was the subject of the first convictions and the separate conduct constituted by the subsequent breach of candour to the Society.
5. Making allowance for the need to consider the combined effect of the earlier misconduct and the breach of duty of candour, the appropriate order was that the solicitor should be suspended from practice for five years, not that he was unfit to practise.
6. Fitness is to be decided at the time of the hearing.

UPUL: ss 15(b), 17(1)(c) and (2), 25, 51, 85, 86(b) and 88.
LPUGR: rr 13, 15 and 25.

Question 18

Legal Services Commissioner v Mullins

Answer 18

The complaint is that the respondent knowingly misled an insurer and its lawyers about his client’s life expectancy. In expert report, calculations of future care costs were prefaced by a statement that the assessment reflected 80% of the life expectancy of a 48 year old male: 27 years 11 months. he mediation was set for 19 September 2003, based on the opinion of Dr Davies who wrote that the injuries sustained in the accident had reduced Mr White’s life expectancy by 20% of that of a normal male of his age. In preparation for the event, on 16 September, the respondent conferred with the claimant and his solicitor, Mr Garrett. One topic of discussion was a draft schedule of damages prepared by the respondent which was to be settled and presented to Suncorp. At the conference, the claimant said that: he was to receive chemotherapy treatment for cancer; he had been advised by his doctor that he had cancer spots on his lungs and in other places throughout his body; the cancer was described as secondary cancer and the doctor had been unable to find the primary cancer. On hearing this, the respondent told his client that it was his preliminary view that the cancer facts had to be disclosed to Suncorp before the mediation, and that the mediation was likely to be adjourned so that the insurer could investigate the issues. Afterwards, Mr White instructed Mr Garrett and the respondent that he did not wish to reveal the cancer facts unless he was legally obliged to do so, and that he wished the mediation to proceed because he wanted his claim resolved. On or about 16 September, the respondent gave Mr Kent a 2 page document headed “Plaintiff’s Outline of Argument at Mediation”. This was a version of the schedule of damages settled at the conference with the claimant. He then made assertions to the defendant’s barrister and defendant that assessment was based on the reports, however, none of them took into account the recent diagnosis of cancer. When this occurred barrister believed, on substantial grounds, that the stated life expectancy that was critical to important parts of the claim was, very probably, no longer sound, but did not disclaim that assumption and instead told the defendant barrister to have regard to the Evidex report on which the future economic loss claim was made. Section 45(3) of the Motor Accident Insurance Act 1994 mandated disclosure to the insurer of any “significant change in … medical condition” since the Notice of Claim had been given within a month after the claimant had become aware of the change. The mediation occurred inside that one month period. He came to the view that for as long as the claimant’s lawyers did not positively mislead Suncorp and its lawyers about the claimant’s life expectancy, they would not be violating any professional ethical rules. He then sought his client’s instructions. He provided advise that it was not appropriate to make positive assertions during the mediation that the facts were different from those they knew to be true, and that positive assertions could not be made that there were no impediments to the claimant’s life expectancy. During the mediation relied on the reports and represented to that the claimant would have worked until retirement age. The matter settled.

1. By continuing to call the Evidex reports in aid as information supporting Mr White’s claim after learning the cancer facts and recognizing their significance for the validity of the life-expectancy assumption, the respondent intentionally deceived Mr Kent and Suncorp representatives about the accuracy of the assumption.
2. The fraudulent deception the respondent practised on Mr Kent and Suncorp involved such a substantial departure from the standard of conduct to be expected of legal practitioners of good repute and competency as to constitute professional misconduct.
3. The misconduct warrants a public reprimand and a substantial fine. The reprimand publicly signifies disapproval of his misconduct. It and the fine should also deter similar misbehaviour, by the respondent and others. The protection of the public does not require more severe sanctions.
4. Publicly reprimanded and fined $20,000.00.

Note: It should be noted that he also sought the assistance of a senior colleague, namely senior counsel.

LPUL: ss 297, 298 and 302.
LPULCBR: 8, 49 and 50.

Question 19

New South Wales Bar Association v Meakes

Answer 19

The first complaint was that the respondent, when acting as a barrister for Mr J Chitty in the matter of Chitty v Opat Coatings Pty Ltd , overcharged for the provision of legal services as itemised in his memoranda of fees dated 4 December 2000. The second complaint was that the respondent did not provide a fee agreement or a fee disclosure as required by Pt 11 of the 1987 Act. Found guilty of professional misconduct in respect of gross overcharging and unsatisfactory professional conduct was respect to failure to provide a fee disclosure.

1. Gross overcharging of clients can clearly amount to professional misconduct. In this case, overcharged by approximately 66%, over what was considered to be reasonable. In considering whether there is gross overcharging, need to consider what is fair and reasonable. Do this by reference to the Act which sets out how to assess [i.e: skill, labour and responsibility displayed on part of the practitioner; complexity of matter; quality of the work and level of expertise; place where and circumstances in which work performed and outcome of matter.
2. The onus of proving misconduct lies with the party bringing the charges.
3. A practitioner is not required to give evidence. However, as observed in Coe v NSW Bar Association [2000] NSWCA 13, there is an expectation that legal practitioners will mount the witness box to provide some explanation as to their conduct, rather than simply relying upon evidence from the Bar table. The failure to give evidence to explain the mysterious charging was ‘inexcusable’. To avoid adverse inferences, of how the charges came about, the practitioner should have given evidence.
4. It was conduct which should reasonably have been held to violate, or to fall short of, to a substantial degree, the standard of professional conduct approved of by members of the Bar of good repute and competency.

LPUL: ss 169(b), 172, 178, 180, 182, 184, 207, 296, 297 and 298(d).
LPUGR: rr 72A
LPUCBR: rr 8.

Question 20

The Council of the New South Wales Bar Association v Sahade

Answer 20

Took steps to acquire securities in Telstra Corporation Ltd (“Telstra”) through a public offering conducted by the Government in the second half of 1999. The Government anticipated that the offering might be over-subscribed, but provided that members of the public who “pre-registered”, prior to 16 August 1999, were provided with a “green personalised application form” and were guaranteed an allocation of 400 shares. The information made available to the public noted that the Government “reserves the right to reject multiple applications that appear to be from the same person”. Between 26 July and 14 August 1999, the Barrister made 353 pre-registration applications each with slight variations of name and address. The Barrister then lodged 215 application forms for shares, together with a personal cheque for $1,800 for each application, making a total payment of $387,000. This conduct became the subject of proceedings brought by the Australian Securities and Investments Commission and by the Commonwealth Director of Public Prosecutions. On 31 May 2001, the Barrister was acquitted of the criminal charges. In November or December 1999, the New South Wales Bar Association was made aware of the conduct and referred the matter to a professional conduct committee for investigation. On 5 November 2003, the Council of the Association filed an Information in the Administrative Decisions Tribunal (Legal Services Division) seeking findings, and consequential orders, on the basis that the Barrister was guilty of professional misconduct. Guilty of professional misconduct under s 127(1)(b), in particular that he was not of good fame and character, and fined the Barrister $10,000 plus a public reprimand. Appeal and cross-appeal dismissed.

1. The conduct complained of involved share purchases and was, in that sense, unrelated to the practice of law. The conduct revealed a defect in character, because of its deceptive or deceitful nature. Whilst that aspect of character is of high importance in relation to practice as a legal practitioner, it may be accepted that individuals behave differently in different circumstances. It would be wrong in the present case simply to assume that a reasonably brief period of deceptive conduct in relation to private investments, is of weighty significance in relation to the practice of law.
2. The Tribunal was correct to place weight on the fact that the conduct occurred when the Barrister was 27 years of age and, as he stated in his first affidavit, relatively inexperienced personally in financial and commercial matters.
3. Tribunal was correct to conclude that, at the time of the conduct complained, in 1999, the Barrister was guilty of misconduct otherwise than in the practice of law, which would at least satisfy a general law finding of professional misconduct because it demonstrated dishonesty and deceit, being aspects of character which were inconsistent with the honesty and fairness which are essential attributes of a legal practitioner.
4. Conduct occurring other than in connection with the practice of law may be relevant to whether a practitioner is of good fame and character or a fit and proper person to remain on the roll, particularly where the conduct contains an element of dishonesty or deceit.
5. Good fame and character or fitness to practice be assessed at the time of the hearing and misconduct is assessed at the time of the conduct, regardless of what has occurred since that time.
6. It need not amount to an offence. It is enough that it amounts to grave impropriety affecting professional character and is indicative of a failure either to understand or to practise the precepts of honesty or fair dealings in relation to the Courts, clients or the public.
7. The inclusive definition suggests that there is conduct that would constitute professional misconduct that is not included in the statutory definition. However, for personal misconduct to constitute professional misconduct, it must be sufficiently serious if it would justify a finding of the kind identified in the definition (i.e. the definition identifies a higher standard for such conduct).
8. While there may be a finding of professional misconduct disbarment may not be needed, because the practitioner was found no longer to be unfit to remain on the roll at the date of the order.

UPUL: ss 15(b), 17(1)(c) and (2), 51, 85, 86(b), 88, 297, 298, 302 and 303.
LPUGR: rr 13, 15 abd 25.

Question 21

Council of the New South Wales Bar Association v Howen

Answer 21

The Barrister knowingly made misleading statements to the AIRC on 22 December 1999. The submissions put by the Barrister to the Commission, presented a misleading explanation for the delay in commencement of proceedings. The Barrister failed to “advance and protect his client’s interests”. The Barrister placed his “own interest in avoiding exposure of his dilatory personal attention over his duty to put his client’s application for an extension of time as well as possible”. What the Barrister chose to do was to retain his role, as Mr Iverson’s advocate in the case and to avoid exposing his dilatory conduct, in preference to placing material before the Commission, which he cannot have failed to appreciate, was significant. He knew the material was significant because it constituted the true explanation for the delay [i.e. that the client kept calling him asking to commence and he did not do anything], which the Barrister sought to explain in a misleading fashion. As his submissions to the Commission indicated, he was well familiar with the fact that an application for extension of time could be based upon delay attributable to an applicant’s legal representatives.

1. The conduct amounted to a breach of the Barrister’s duty of honesty and candour to the court and an intentional preferring of his own interests over those of his client, would be regarded by the Barrister’s colleagues of good repute and competency as both disgraceful and dishonourable.
2. Found guilty of professional misconduct.

LPUL: ss 15(b), 17(1)(c) and (2), 297 and 298.
LPUGR: rr 13.
LPUCBR: 8, [17(b) possibly, as he was busy with other commitments], 23, 24, 25, 35, 36, 37, [44 possibly], 49, 50, 101(b) and (d).

Question 22

Council of the New South Wales Bar Association v Costigan

Answer 22

Over the period from 2011 to 2012, the respondent made inadequate disclosure to 2 direct access clients regarding his costs, and received moneys in advance from, or on behalf of, those clients for legal work to be performed, and applied such moneys for the purpose of discharging personal expenses without having rendered a bill to the clients. The applicant submitted that the respondent failed to comply with both subclause (b) and (c) of cl 106A. It requires the money to be deposited within a reasonable time after receipt by the barrister in an account maintained with an ADI “in connection with the barrister’s law practice”. Although the Act specifies that the money received from direct access clients is not trust money, the barrister receiving money on account of legal costs for services to be provided, must deal with the money in the prescribed manner. In the case of the respondent’s Account 72333, it is clear from the nature of the entries recorded in that account that it was used for the respondent’s personal financial affairs. The position is likewise in relation to the credit card Account 3725, and credit card Account 5500. None of these accounts were maintained by the respondent “in connection with” his practice as a barrister. The respondent made inadequate cost disclosures to the Mercer and Dan clients in his cost disclosure letters. The cost disclosure letter given to the Mercer clients by the respondent failed to inform them of the matters which a barrister must inform a direct access client as required by rule 24B, and also misrepresented to those clients that the respondent could undertake the role of both solicitor and counsel. The cost disclosure letter given to Ms Dan also did not comply with the requirements of s 309(1)(b), (d), (f), (g), (i), (j) and (k). The letter was misleading in suggesting that the respondent would be performing the role of both solicitor and counsel.

In July and August 2011, the respondent represented a party involved in proceedings in the Local Court at Waverley when he was not qualified to practice as a barrister.

Over the period 2002 to 2012, the respondent failed to notify the applicant of a number of “show cause events” either in a timely fashion or at all.

1. Although the respondent does not contest that orders should be made, the Court must satisfy itself that it is appropriate to do: Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470. Accordingly, it is necessary for the Court to make findings of fact in appropriate detail as to the basis for its orders, particularly as this could be of significance in the event that there is a subsequent application for readmission: Council of the NSW Bar Association v Power [2008] NSWCA 135.
2. The respondent’s conduct in failing to deposit moneys received from direct access clients into an account maintained in connection with his law practice is appropriately characterised as a reckless disregard of his professional obligations. The respondent’s conduct in applying those moneys to his personal needs before undertaking work or rendering any bill was dishonest. The respondent’s conduct was not an isolated incident. It occurred on three separate occasions between December 2011 and February 2012, relating to two clients.
3. The respondent was undoubtedly aware that he did not hold a current practising certificate at the time he appeared in the Waverly Local Court in July and August 2012. The respondent’s conduct on those two occasions, albeit there is no evidence that he was appearing for a fee, misled the Court, the other party in the AVO proceedings and, it may also be inferred his purported client for whom he appeared, that he was a barrister entitled to practice and appear in the local court for a party to the proceedings. The respondent’s conduct on both 26 July and 30 August 2012 was dishonourable and disgraceful and it should be found to be professional misconduct.
4. As to the respondents failure to notify “show cause” events: (a) The convictions in respect of a number of driving offences. The respondent’s conduct was undoubtedly unsatisfactory professional conduct. (b) The service on the respondent of creditors’ petitions. The respondent’s conduct disclosed a reckless disregard for his obligations of disclosure and a lack of candour in failing to notify the applicant that he had been served with a creditor’s petition within 7 days of service and in failing to disclose those matters when applying for renewal of his practising certificate for the period 2009/2010 and 2010/2011.
5. The respondent’s conduct would reasonably be regarded as “disgraceful or dishonourable” by his peers. He would not be regarded as a person of good fame and character for the purpose of admission, both because of the nature of his conduct in misleading courts and engaging in legal practice and holding himself out as a barrister when he did not have a current practising certificate, and his improper dealing with client moneys advanced on account of legal costs for legal services to be provided.

LPUL: ss 10, 11, 12, 15(b), 17(1)(c) and (2), 42, 43, 44, 45, 51, 86, 88, 129(1)(a), 133, 174, 178 297 and 298.
LPULAR: r 15.
LPUGR: r 8, 9, 10, 13 and 15.
LPUCBR: 8, 11, [13 possibly], 21 [in that he was not obliged to accept direct brief], 22, 23, 24, [25 in that he should have sought leave], 35, 49, 50.

Question 23

Kaye v Woods (No 2)

Answer 23

These proceedings involve a medical negligence claim against a doctor (the first defendant) and a hospital (the second defendant). The hearing of the proceedings was due to commence on 18 April 2016 before Penfold J. The first defendant had, well prior to the commencement of the hearing, served three reports by Dr B J Hudson, an infectious diseases physician and microbiologist. On Friday 15 April 2016, the Friday before the Monday on which the hearing was due to commence, the first defendant served on the other parties a fourth report by Dr Hudson dated 22 August 2014. The late service by the first defendant of Dr Hudson’s fourth report led to the proceedings not commencing as anticipated. During the week of 18 April 2016 there were proceedings designed to determine whether leave should be granted so as to permit the first defendant to rely upon the report and what consequences should flow from the service of Dr Hudson’s report. In support of the application for leave, the first defendant relied upon an affidavit of its solicitor, Ms Meadows sworn 17 April 2016. The first defendant was required (as a result of a call, a notice to produce and ultimately a subpoena issued to its solicitor) to produce documents relating to the decision to serve that report of Dr Hudson. Between the hearing on 22 April 2016 and the hearing on 29 April 2016, the first defendant indicated that he no longer wished to rely upon the fourth report of Dr Hudson. He contended at the commencement of the hearing on 29 April 2016 that, in those circumstances, there was no need to determine the privilege issue. The plaintiff did not accept that contention. It should be noted that the Mr Alexander had a conversation with the second defendant’s solicitor where he conveyed that the first did not intend to obtain another report from the medical expert [3 reports had previously been obtained and served in the proceedings], that no further expert reports were to be served on liability and causation and the reason for the first defendant’s decision for no further report being obtained and served was that it would adversely affect the first defendant’s case in relation to causation.

1. Communication between first defendant’s solicitor and second defendant’s solicitor in October 2014, was false or misleading and known to be false or misleading at the time.
2. The statement by Mr Gregg, of Counsel, that the report was “overlooked” was misleading and that Mr Cummings, the instructing solicitor in court, would be exposed to a civil penalty as a result of disciplinary proceedings by permitting that statement to be made and not subsequently corrected.
3. The relevant standard of conduct is that articulated in Mullins . The obligation not to make misleading statements to a lawyer acting for another party is one which applies in the context of an impending court hearing to at least the same extent as it does in the conduct of a mediation. By the making and reliance upon the affidavit, Ms Meadows was making statements to the Court and the other parties as to the circumstances surrounding and reasons for the failure to serve Dr Hudson’s fourth report prior to 15 April 2016.
4. The affidavit was drafted so as to invite the drawing of inferences which did not accord with the facts, and that in the absence of drawing those inferences the affidavit would contain nothing of relevance for the purpose for which it was brought into existence, it was misleading. Having regard to the involvement of Ms Meadows disclosed in the chronology set out above and to the apparently careful drafting of the affidavit, it is more likely than not that Ms Meadows was either reckless as to the potential for the affidavit to be misleading or intended it to mislead the Court or the parties.
5. Reliance upon the barrister’s advice was not a defence to the discipline application.
6. The statements made by Mr Gregg were misleading to the extent that they had a tendency to, and did in fact, give to the Court and the other parties the impression that the failure to serve the report was the result of an oversight and not some other cause.
7. Mr Cummings knew of the circumstances that led to the statements made to the Court being misleading, because he was the solicitor with carriage of the matter under the supervision of Ms Meadows and was involved with the issue arising from the non-service of the report from 6 April 2016 up until 18 April 2016, in particular, the discussions with Mr Gregg and Ms Meadows and the review of files and preparation of the schedule of the plaintiff’s served reports on 14 April 2016. There is no evidence that Mr Cummings took steps to obtain instructions to correct the misleading impression given by the affidavit or counsel’s statement to the Court, or in fact give those instructions to counsel as a matter of professional duty.

LPUCBR: 8, 23, [24, 25 question as to whether he was actually aware of it, but it seems that he was involved in settling the affidavit], 49, 50, 64 and [101(b) and (f) arguable, as he was excused from appearing further.

Question 24

Attwells v Jackson Lalic Lawyers Pty Ltd

Answer 24

Gregory Ian Attwells and Barbara Jane Lord guaranteed payment of the liabilities of a company to a bank. The company defaulted on its obligations to the bank and the bank commenced proceedings against the company and the guarantors. The guarantors and the company retained Jackson Lalic Lawyers Pty Ltd to advise and act for them in relation to the proceedings. The amount of the company’s indebtedness to the bank was almost $3,400,000. The guarantors’ liability under the guarantee was limited to $1,500,000 plus interest and enforcement costs. On the opening day of the trial on 15 June 2010, the bank certified that the total amount owing under the guarantee, including interest and enforcement costs, was $1,856,122. Later that day, senior counsel for the guarantors negotiated a settlement of the proceedings on terms that there would be judgment for the bank for $1,750,000, inclusive of costs, and that the guarantors would have until the end of November 2010 to pay that amount. Draft consent orders were prepared by the solicitors for the bank and forwarded to Jackson Lalic. They contained an order to the effect that judgment would be entered against the guarantors and the company for the full amount of the company’s indebtedness to the bank, but noted an agreement between the parties that the bank would not seek to enforce the order for payment of that amount if the guarantors paid to the bank the sum of $1,750,000 on or before 19 November 2010. The guarantors alleged that Jackson Lalic advised them to sign the draft consent order and consent to judgment in the terms recorded in the order because, if they defaulted in payment of the sum of $1,750,000 by the due date, it would not make any difference if the judgment in favour of the bank was for the full amount of the company’s indebtedness or any other sum. The guarantors signed the draft consent orders and the Court subsequently made orders by consent in that form.

The guarantors failed to meet their payment obligation. Accordingly, by reason of the consent orders, the guarantors were indebted to the bank in the sum of almost $3,400,000.

The solicitors contended that the defence of advocates’ immunity provided a complete defence to Attwells’ claim. They asserted that, in accordance with the principles outlined by the High Court in Giannarelli v Wraith and D’Orta-Ekenaike v Victoria Legal Aid, work done by them was done either in Court, or alternatively out of Court but in circumstances that then led to a decision affecting the conduct of the proceedings, or was intimately connected with work in Court.

The New South Wales Court of Appeal allowed the appeal, holding that Justice Harrison had erred in not answering the separate question, that advocates’ immunity applied, and that it acted as a complete defence to Attwells’ claim. Bathurst CJ found that: “The advice thus led to the case being settled. Put another way it was intimately connected with the conduct of the guarantee proceedings” Attwells sought, and were granted, special leave to appeal to the High Court.

1. The decisions in D’Orta and Giannarelli should not be disturbed as any abolition of the immunity, in the Court’s view, is a matter for the legislature.
2. Immunity did not extend to advice given out of court by the practitioner leading to a settlement; and that on a fair reading of D’Orta, the immunity was never intended to extend so far, even if the settlement led to consent orders made by the court.
3. The consent order in question and associated notation by the Court reflected an agreement of the parties for the payment of money in circumstances where no exercise of judicial power determined the terms of the agreement or gave it effect [i.e. the judge did not have to satisfy him or herself].

Question 25

Council of the NSW Bar Association v Dwyer

Answer 25

The Council of the NSW Bar Association applied for Mr Dwyer to be removed from the Roll. The Council has also asked for declarations that Mr Dwyer has been guilty of professional misconduct, is not a fit and proper person to remain on the Supreme Court Roll and is not a person of good fame and character. Mr Dwyer has consented to the making of declarations to that effect, as well as to an order that his name be removed from the Supreme Court Roll. The Council has also asked for an order that Mr Dwyer pay its costs of and incidental to this application. Mr Dwyer neither consents to, nor opposes, that order. After surrendering his practising certificate on 18 March 2013, Mr Dwyer continued to engage in legal practice as a barrister in breach of s 14(1) of the Legal Profession Act. Mr Dwyer contravened s 14(4) of the Legal Profession Act by receiving fees for the work done in breach of s 14(1). After surrendering his practising certificate on 18 March 2013, Mr Dwyer represented and advertised that he was entitled to engage in legal practice, contrary to s 15(1) of the Legal Profession Act. Mr Dwyer misled the Council on a number of occasions during the period from March 2013 to January 2014, by sitting that he did not practise when he did. With the knowledge that he did not hold a practising certificate, Mr Dwyer engaged in legal practice between 18 March 2013 and 14 October 2013 in relation to seven different matters. In two of the matters, Mr Dwyer had been briefed before surrendering his practising certificate, but continued to act after that surrender. In relation to the other five matters, it is more likely than not that Mr Dwyer accepted briefs after he had surrendered his practising certificate.

1. While Mr Dwyer has consented to the substantive orders, it is nevertheless necessary for the Court to be satisfied that the declarations and orders sought should be made.
2. Where an order for removal from the Supreme Court Roll is sought, the ultimate question is whether the practitioner is a fit and proper person to be a legal practitioner and officer of the Court.
3. While the Court may have regard to the statutory definitions of “professional misconduct”, the Court is not constrained by them. The Court has the capacity to determine and act on the basis of unfitness of a person where appropriate.
4. A person does something as a legal practitioner if the person does something that is usually done by a legal practitioner and does it in such a way as to lead to the reasonable inference that the person is a legal practitioner. merely doing something that is usually done by a barrister or solicitor, but which may be done by someone else, will not necessarily constitute engaging in legal practice. What constitutes the conducting of legal proceedings is a question of fact to be determined objectively.
5. The inherent jurisdiction is protective and is directed to maintaining and encouraging appropriate standards of professional behaviour.

LPUL: ss 10, 11, 12, 15(b), 17(1)(c) and (2), 23, 42, 43, 44, 45, 297 and 298.
LPUGR: r 8, 9, 10 and 13.
LPUCBR: 8, [11 as to what work of a barrister entails], 23, 24, [25 in that he should have sought leave], 49, 50.

Question 26

Nguyen v The Queen

Answer 26

Mr Nguyen was charged on indictment with offences against the Criminal Code (NT) when he allegedly threw a bottle of beer at someone after a singing game went awry. He had been interviewed by the police about the offences prior to being charged. The interview, which was recorded, contained admissions together with exculpatory statements in the form of a claim of self-defence (“mixed statements”). At the first trial the prosecutor played the recorded interview and the jury did not reach a verdict. At the second trial the prosecutor made a “tactical decision” not to tender the recorded interview as it would not assist the prosecution case. The defendant applied to stay the second trial. Following previous NT appellate authority, the Full Court of the NT Supreme Court held that the prosecutor was not obliged to tender the interview as there was no general principle requiring a prosecutor to tender a record of interview simply because it contained admissible material. Before the commencement of the second trial the prosecutor advised the Court that the Crown would not tender the recorded interview. The trial judge asked if that was because the prosecutor considered the Crown had “a better chance of winning” without the recorded interview, to which the prosecutor responded: “To be blunt, your Honour, yes it’s a tactical decision.” He said that if the exculpatory statements were given in evidence the appellant would not be subject to cross-examination on that account. He pointed out that the appellant could give evidence about the matters in the record of interview if he chose to do so.

1. It is well settled that if the prosecution seeks to rely upon an out-of-court admission or other incriminating statement the whole statement made by the accused must be put before the jury including those hearsay statements by which the accused tried to exculpate himself or herself. The prosecution may not “pick and choose” between statements which it says bear out its case and those which do not.
2. Section 190(1) provides that the parties to a proceeding may dispense with the application of provisions of those and other Parts in relation to particular evidence or generally. In criminal proceedings s 190(2) requires that an accused’s consent must be the subject of legal advice. In a case where a record of interview does not meet the requirements of s 81(2) there seems no reason in principle why a prosecutor ought not properly resort to this provision with the consent of the accused.
3. The Crown’s obligation to put its case both fully and fairly before the jury means that the Crown ought to tender an accused’s mixed record of interview unless there are proper grounds for not doing so. It follows that there may well be unexceptional cases in which a prosecutor would be perfectly entitled to choose not to tender available, cogent and admissible evidence without risk of unfairness to the accused. Of course, each case depends on its own facts and circumstances.
4. Where the reliability or credibility of the evidence is demonstrably lacking, the prosecutor may be justified in refusing to tender such evidence.
5. The principle that the prosecutor is obliged to present its case fully and fairly is “fundamental” to the conduct of a criminal trial.
6. Fairness requires the prosecutor to present “all available, cogent and admissible evidence”.
7. There may be circumstances where it would be unfair to an accused to tender a record of interview (eg. where the accused has refused to comment). However, the prosecutor should tender mixed statements in its case unless there is a good reason not to do so. It should only be in those rare cases where the reliability or credibility of evidence is demonstrably lacking that the circumstances may warrant the prosecutor refusing to tender mixed statements.
8. The admissibility of mixed statements is a separate question from whether the prosecutor has a duty to tender them (although usually mixed statements in a record of interview will be admissible). Here the defendant’s account was consistent and could not be described as demonstrably false simply because it differed from the account of others.
9. The prosecutor’s tactical decision not to tender the interview to favour the prosecution case did not accord with a prosecutor’s duties.

ULPCBR: rr 83 and 84.

Question 27

Barbaro v The Queen

Answer 27

The High Court unanimously dismissed two appeals against the decision of the Victorian Court of Appeal to dismiss the sentencing appeals of two convicted drug traffickers. Barbaro and Zirilli were convicted of drug trafficking offences for importing 15 million tablets of MDMA, with an estimated total wholesale value of $122 million, concealed in a shipment of tinned tomatoes. Both pleaded guilty to the charges, and were sentenced to life in prison and 26 years respectively. The appellants challenged the sentencing judge’s decision on the basis of denial of procedural fairness, namely that the trial judge, Justice King, refused to hear the Crown’s submissions on the appropriate sentencing range, and imposed sentences that were both higher than the maximum sentences recommended by the Crown. This is because plea agreements were made and the cases settled or resolved to pleas, because they expected the prosecution would advise the Court what it thought was the appropriate sentencing range. The Court of Appeal held that Justice King was not obliged to receive those submissions, and that the sentences imposed were not manifestly excessive. The High Court dismissed the appeal in that King J’s refusal to hear the prosecution on sentencing ranges did not amount to a failure to take account of a material consideration in fixing the sentences, and the applicants were therefore not denied procedural fairness.

1. A prosecutor is not required, and should not be permitted, to make a submission as to the bounds of the available sentencing range or to proffer some statement of the specific result. Such a statement is one of opinion and is neither a proposition of law or fact which a sentencing judge may properly take into account. It is not the role of the prosecution to act as a surrogate judge. Allowing prosecutors to proffer a view of the sentencing range assumes they will determine the range dispassionately. But in cases where the offender has, or will, assist authorities or where a plea of guilty avoids a very long and costly trial, the prosecutor’s view cannot be dispassionate:
2. High Court also overruled the earlier decision of R v MacNeil-Brown [2008] VSCA 190 — a landmark ruling in which the VSCA held that a prosecutor should make submissions on sentencing range if asked by the judge (applied by the VSCA in this case) — to the extent that it supported the practice of counsel providing submissions on the bounds of the available range of sentences, noting that ‘[t]he practice to which MacNeil-Brown has given rise should cease.
3. Except where a mandatory sentence is prescribed, a judge fixing the sentence to be imposed on an offender exercises a discretionary judgment …The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process.
4. The High Court was only denying a role for the prosecution to submit its views about the range. But it is still open to the prosecution and defence — and probably required as a matter of practice and good advocacy, if not a matter of law — to refer to comparable cases and relevant sentencing statistics.
5. The duty of the prosecution at sentence is “… to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases [i.e. comparable cases and sentencing statistics)”. The court will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range.
6. The basic differences between criminal prosecution and civil proceedings provide a principled basis for excluding the application of Barbaro from civil proceedings and so the parties were therefore entitled to make submissions as to agreed penalty [Commonwealth of Australia].
7. Per Basten JA [in In “The prosecutor’s role in sentencing” (2014) 26(6) JOB 47 at 48] that the statement of a range is at least unhelpful and probably misleading if the underlying elements are not articulated. The underlying elements will include: (a) the facts of the particular case; (b) the maximum penalty and standard non-parole period (if any); (c) mitigating and aggravating factors identified by the relevant statute; (d) if parity is an issue, the sentences imposed on co-offenders; (e) sentencing statistics (if useful) and (f) details of comparable cases.
8. Did not alter the pre-existing duty of the prosecutor to assist the court by the making of submissions as to comparable and relevant cases.

ULPCBR: 23, 24, 25, 44 and 95.

Question 28

CMB v Attorney General for New South Wales

Answer 28

CMB was sentenced for a series of sexual offences against his daughter and sent to a treatment program called Cedar Cottage at which he was encouraged to make further disclosures to demonstrate a commitment to change. He made admissions to other offending which his daughter did not remember, was then charged for the further offences, and pleaded guilty to them. The District Court deferred imposing a sentence on the new matters so that CMB could finish at Cedar Cottage.

The Director of Public Prosecutions (DPP) publicly announced that he would not appeal, but the NSW Attorney General separately announced that he would exercise his own right of appeal. The Attorney-General appealed to the Court of Criminal Appeal (NSW) contending the sentence was manifestly inadequate. In 2014 this Court upheld the appeal and substituted a custodial sentence. CMB’s appeal to the High Court was allowed by all members.

1. The prosecutor has a “… duty to assist the court to avoid appealable error where a sentencing judge indicates the form (as opposed to the duration) of a proposed sentencing order and the prosecutor considers it to be manifestly inadequate”.

ULPCBR: r 95.

Question 29

HT v The Queen

Answer 29

HT was a registered police informer. In the District Court sentence proceedings, an affidavit by a police officer detailing HT’s assistance to authorities (Exhibit C), was admitted into evidence. The sentencing judge took Exhibit C into account in discounting HT’s sentence pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (‘C(SP) Act’). The Crown Prosecutor was given access to Exhibit C, but HT’s counsel was not. Rather, the Commissioner of Police had presented HT’s counsel with two options: first, if counsel were to have access to the affidavit to be provided to the court, the affidavit would be highly redacted (and much shorter); alternatively, if counsel agreed not to require access to the affidavit, the affidavit would be lengthy, and inferentially more favourable to HT. Counsel chose the latter. In the CCA, two affidavits relied upon by the Commissioner were disclosed to HT’s counsel. A third, which identified particular difficulties concerning disclosure in HT’s case, was not provided to HT’s counsel. The Crown had access to all three affidavits. The CCA upheld the Commissioner’s objection to HT’s counsel having access, on public interest immunity grounds. The CCA determined for itself the extent of the discount on sentence, taking into account all three affidavits. The appellant appealed to the High Court on grounds including that she was denied procedural fairness, and that the CCA had no power to deny her access to Exhibit C. Appeal was allowed.

1. Denied procedural fairness. The appellant ‘did not have the opportunity to test the accuracy of the evidence’ or of making submissions concerning the application of that evidence to s 23 of the C(SP) Act’.
2. It was not to the point that the information in Exhibit C was not adverse to HT. HT had no way of knowing if the exhibit detailed all of the assistance she had provided and the risks she had taken, and her counsel could not test the evidence and not to give instructions on it.
3. Gordon J found that the denial of procedural fairness arose because three different principles or sets of principles were not kept separate. First, what material was immune from production (public interest immunity); secondly, how confidential material might be produced to an opposing party before trial (confidentiality); and thirdly, how confidential evidence might be adduced but not otherwise disclosed (suppression or non-publication). Her Honour emphasised that these different principles applied at different stages of litigation, were intended to achieve different objectives and had different sources of power.
4. If a question arises as to the need to keep some of that information confidential from the other party, the sentencing judge should be approached to make appropriate orders. Further orders may be fashioned, as necessary, if such information is admitted into evidence.

LPUCBR: rr 83, 84, [87 and 88 may not be relevant as it was to do with sentencing and not guilt] and 95(c).

Question 30

McKell v The Queen

Answer 30

The appellant appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales (“the CCA”). The sole ground of appeal was that “[t]he Judge’s summing up to the jury caused a miscarriage of justice”. [10] The CCA (Payne JA, Fagan J agreeing and Beech-Jones J dissenting) dismissed his appeal. The High Court allowed the appellant’s appeal, quashed the convictions and ordered a new trial, where comments by the judge included: suggesting a consignment may have contained drugs, the importation of which was the appellant’s responsibility as part of “an organisation of great sophistication”, when no such suggestion had been made by the prosecution and suggesting a text message from the appellant to his co-accused showed the appellant was knowingly involved in drug importation. The statements were so lacking in balance as to be an exercise in persuading the jury of the appellant’s guilt, they were unfair and gave rise to a miscarriage of justice. The remarks were unnecessary for a fair and accurate summary of the cases by the parties. Their content and tone (in relation to the text message by the appellant) would not have been out of place in a powerful address by prosecution counsel. Also, his counsel, in addressing the jury, relied upon the online betting accounts as evidence of the appellant’s success as a gambler. In this his counsel was plainly in error, in that the net effect of the wins and losses was that the appellant lost money in the course of his online gambling activities.

1. A trial judge may comment on factual issues, however, is not bound to do so except to the extent that the judge’s other functions require it. The fundamental task of a judge is to ensure a fair trial of the accused within a framework where it is “for .. the jury alone, to decide the facts”: at [1]-[2]; RPS v The Queen (2000) 199 CLR 620.
2. Statements by the trial judge during the course of his summing-up were so lacking in balance as to be seen as an exercise in persuading the jury of the appellant’s guilt. The statements were unfair to the appellant and gave rise to a miscarriage of justice.

LUPCBR: rr 23, 24, 29, 49 and 50 [possibly with respect to the barrister for failure to correct his incorrect submission as to gambling profits] and 83, 84 and 85 with respect to prosecutor’s conduct, as failure to intervene may be bias by conduct.

Question 31

Re Davis

Answer 31

The appellant, having been approved for admission as a barrister by the Barristers Admission Board was in 1946 admitted as a barrister by the Supreme Court of New South Wales. In 1947 that Court disbarred the appellant on the ground that in 1935 he had pleaded guilty to an indictment for breaking, entering and stealing and that he had failed to disclose this fact to the Court or to the Board or to the persons from whom he obtained certificates of good fame and character. The applicant was not only guilty of a grave criminal offence in 1934, but in 1944, and again as recently as 1946, he induced two solicitors to give him certificates of character without disclosing to them that he had been convicted of that criminal offence, and he presented to the Board certificates so obtained.

1. The power of the Supreme Court to disbar may be exercised upon a ground that is antecedent to the admission of a barrister or the determination of the Board to approve him as a fit and proper person.
2. It would not be reasonable to require a candidate to disclose to the Board, or even to persons whom he approached with a request for certificates, every wrongdoing of his life. But a conviction for housebreaking is so obviously a relevant matter when character is under consideration that there can be no room for doubt in the present case as to the duty to disclose it both to the Board and to the persons from whom he obtained certificates of character.
3. If the appellant had frankly disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character.

LPUL: ss 15, 17(1)(c), 19(3)(b), 21, 22, 23, 51, 86 and 93.

Question 32

Wood v R

Answer 32

Mr Wood convicted of murder of his live-in partner, on the basis of circumstantial evidence. He applied for leave to appeal his conviction, one of the grounds included that there had been a miscarriage of justice by reason of prejudice occasioned by the Crown Prosecutor, who asked the jury 50 questions and inviting them to consider whether the accused had provided satisfactory answers (trial judge had previously refused permission to provide these questions as a written document to the jury).

1. Invitation to the jury to consider a list of fifty questions which the prosecutor told the jury were “the salient questions in order to decide the outcome of the case.” The fundamental submission was that by adopting this approach to his address the prosecutor committed the error discussed in R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 at [57].
2. A prosecutor is a “minister of justice”. The prosecutor’s principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness. A prosecutor is not entitled to act as if representing private interests in litigation. A prosecutor represents the community and not any individual or sectional interest. A prosecutor acts independently, yet in the general public interest.
3. It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’
4. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.’
5. “[It is] quite impermissible [for a Crown Prosecutor] to embark upon a course of conduct calculated to persuade the jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial.”
6. In Livermore this Court held that a number of features of a Crown address, either alone or in combination, might require censure by an appellate court. These include:
   “(i) A submission to the jury based upon material which is not in evidence.
   (ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
   (iii) Comments which belittle or ridicule any part of the accused’s case.
   (iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.
   (v) Conveying to the jury the Crown Prosecutor’s own opinion.” Additionally, where submissions are made that contain matters which the appellant is asked to explain, the onus of proof is inappropriately reversed.

ULPCBR: rr 44, 83, 84, 85 and 86.

Question 33

Gilham v R

Answer 33

The applicant was convicted at trial of the murder of his parents on 28 August 1993. Mr and Mrs Gilham died as a result of multiple stab wounds. Their bodies were then set alight causing a fire in part of the house. Christopher Gilham was also found dead. He had sustained 17 stab wounds. The applicant maintained that on entering the house he saw that his parents had been murdered by his brother, Christopher. The applicant then stabbed his brother, killing him in anger over what he had done.
A complaint was also made about the failure of the prosecutor to call a medical expert retained by the defence and called on the voir dire on an issue over the admissibility of other medical evidence, on the basis he was critical of the other expert witnesses and undermined the cron’s case.

Complaints were also made concerning the conduct of the Crown Prosecutor in wielding a knife before the jury and in having Gilham demonstrate his dexterity with the knife.

It was also alleged that the prosecutor had cross examined the defendant in an improper manner, by asking questions about his deceased victims date of birth, generally about the relationship between troubled young people and their parents and failure to take certain action. The prosecutor used emotive language.

1. The court referred to well established principles in Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilides (1984) 154 CLR 563; R v Kneebone (1999) 47 NSWLR 450 and Velevski v R [2002] HCA 4 and concluded that the failure to call the witness lacked a legitimate scientific foundation and constituted a miscarriage of justice. The court was critical of the fact that the prosecutor at the second trial had not conferred with the witness but had relied upon an earlier decision that the witness was “plainly unreliable”, an approach which the court considered fundamentally flawed. The basis for this view was that: (a) the opinions were based upon the accused’s account; (b) the opinions were often argumentative; (c) the views were at variance with the views of other experts the crown intended to cal; (d) the Crown could only demonstrate the limitations and inadequacies of the report in cross-examination (the expert was not cross-examined on appeal). The view was formed without a conference with the expert.
2. The court noted that it would have been available to the prosecutor to seek leave to cross examine under s 38 of the Evidence Act, a process in which the court considered that the interests of justice are preserved and advanced.
3. The demonstration with the knife was found to have had no relevance to the issues in the trial and, given the likely consequence that the demonstration would provoke a response adverse to Gilham, the court concluded that it was unfairly prejudicial. The use of the knife during the final address was also said to be without justification and should not have been allowed.
4. Questions and submissions by the Crown Prosecutor such as her views on dealing with a child with problems and a person’s need for “their mum and dad” were considered inflammatory and inappropriate.
5. Fullerton J and Garling J both held that the manner in which the trial had been conducted by the Crown was a factor in their decision to acquit rather than order a new trial.
6. Whilst the court were critical of the language of the Crown Prosecutor in some respects it was mild compared with previous examples. In Libke v The Queen (2007) 230 CLR 559 comments by the prosecutor such as “I do not buy that explanation” and “we’ve heard about that one” and others were described as a sarcastic and repeated commentary which went too far and was described by Heyden J as being cross examination of a “wild and uncontrolled and offensive character”. In Livermore v R (2006) 67 NSWLR 659 the court considered that the use of the terms such as “idiot” in reference to a witness and “bizarre”, “silly” and “reminiscent of a plot worse than an episode of Desperate Housewives” inappropriately conveyed the personal views of counsel. In Gonzales v R (2007) 178 ACrimR 232 the use of the terms “pathetic” and “absolutely pathetic” should not have been used but did not amount to a “gratuitous denigration of the appellant or the defence case”.
7. While it is the Crown Prosecutor alone who bears the responsibility for deciding whether a person will be called as a witness for the Crown, that decision must be made consistently with the overriding obligation to act fairly and in strict accordance with what was then Rule 62 of the Barristers’ Rules (must fairly assist the court to arrive at the truth, and seek impartially to have the whole of the relevant evidence placed intelligibly before the court).

See also the relevant guidelines which also state that should generally call all apparently credible witnesses whose evidence is admissible and essential to the complete unfolding of the prosecution case or is otherwise material to the proceedings. Exceptions are repetitious evidence or identifiable circumstances clearly establishing that the witness is unreliable. Mere inconsistency with the prosecution case is not, of itself, grounds for refusing to call the witness. Where practicable, the prosecution should confer with the witness before making a decision not to call the witness. This is a continuing obligation until the case is closed. It is necessary that a prosecutor be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability.

LPUCBR: rr 44, 83, 84, 85, 87, 88, 89 and 90.

Question 34

R v Reardon [No 2]

Answer 34

Certain running sheets were relevant to Mr. Reardon’s defence that he never intended to import cocaine, but rather intended to defraud the witness W of the money that W was to provide for the supposed importation of cocaine (the “rip-off” defence). Entries in running sheets kept by the National Crime Authority (NCA) should have been disclosed by the Crown prior to the trial; and that the Crown’s failure to do so caused a miscarriage of justice, because Mr. Reardon was denied support to his “rip-off” defence that those running sheets could have provided. The issues were what is the Crown’s duty of disclosure? Was it breached in this case? If so, what use could have been made at the trial of the material that should have been disclosed? Has there been a miscarriage of justice?

1. Subject to the question of privilege and public interest, the prosecution must disclose documents which are material. A document is material if it can be seen, on a sensible appraisal by the prosecution to: (a) be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case; or (c) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence going to either (a) or (b) R v. Keane [1994] 2 All ER 478. An issue in the case must be given broad interpretation; and category (c) indicates that the duty is not limited to admissible evidence: R v. Brown (Winston) [1998] AC 367 at 376-7.
2. Unless disclosure is excused because of legal professional privilege or public interest considerations, contemporary documents created by the police in the course of surveillance or undercover operations should be disclosed if they fall within the Keane/Brown principles. Accordingly, it would seem that the NCA running sheets should have been disclosed.
3. Having regard to the limited use to which the undisclosed material could have been put, there was no miscarriage of justice. There was no real chance that the jury would have acquitted Mr. Reardon, had the material been available.
4. if in a criminal case the prosecution wished to claim public interest immunity for documents helpful to the defence, the prosecution is in law obliged to give notice to the defence of the asserted right so that if necessary the Court can be asked to rule on the legitimacy of this claim.
5. Duty did not extend to disclosing material relevant only to the credibility of defence (as opposed to prosecution) witnesses.
6. There is no onus on the defence to demonstrate a forensic purpose in relation to material said to be subject to the Crown’s duty of disclosure.
7. As to what to disclose by the crown should take a broad view of relevance and of what are the issues in the case. See generally the article “Unused Material and the Prosecutor’s Duty of Disclosure” by Martin Hinton in (2001) 25 (3) Criminal Law Journal 121.
8. If such documents merely repeat in second or third hand ways information which is otherwise disclosed, it seems likely that they would not fall within the Keane/Brown categories. However, it is also arguable that it could not be expected of the Crown that it should have recognised the possible relevance of the material in these respects, particularly when neither issue had been raised by Mr. Reardon before he gave evidence at the trial.

LPUCBR: 83, 84, 87 and 88.

Question 35

New South Wales Bar Association v Punch

Answer 35

In the District Court between 19 and 23 June 1995, the respondent adduced evidence from 5 witnesses, knowing that evidence to be untrue. On 18 November 1994 an armed robbery was committed at 1 Carol Crescent, Roselands, New South Wales. On 14 December 1994 Tony Haddad informed the respondent that Haddad was present during the commission of the armed robbery. On 19 June 1995 Tony Haddad, represented by the respondent, entered a plea of not guilty to the charges of armed robbery arising from the incident on 18 November 1994. On 21 June 1995 the respondent adduced evidence, knowing it to be untrue, from Tony Haddad to the effect that Haddad was not present at 1 Carol Crescent, Roselands, on 18 November 1994 and had never been to that address in his life. On 21 June 1995 the respondent adduced evidence, knowing it to be untrue, from Tony Haddad to the effect that, at the time the armed robbery was being committed at 1 Carol Crescent, Roselands, Haddad was in bed at his home at 26 Defoe Street, Punchbowl. On 22 June 1995 the respondent adduced evidence, knowing it to be untrue, from the following four persons: (i) Christine Kondos; (ii) Ahmad Farhat; (iii) Nabil Haddad; (iv) Shouhra Haddad, which evidence was to the effect that, at the time the armed robbery was being committed at 1 Carol Crescent, Roselands, Tony Haddad was present at 26 Defoe Street, Punchbowl. Barrister did not give evidence that he received instructions that were different to Haddad being present at the premises for which he was criticised [case of Meakes referred to and adopted with respect to evidence and inference drawn].

1. The fact that the barrister’s personal belief is that the client is not telling the truth as to the facts of the case, does not mean that the barrister is prohibited from conducting the case in accordance with the client’s instructions.
2. Knowledge in this context does not, of course, arise from direct knowledge but rather is the formation of a belief, a state of mind resulting from the instructions the respondent obtained from his client together with the available evidence.
3. The relevant standard of proof in these proceedings is that laid down in Briginshaw v Briginshaw (1938) 60 CLR 336.

LPUL: ss 15(b), 17(1)(c) and (2), s 45(2)-(4), 75, 297 and 298.
LPUGR: rr 13.
LPUCBR: rr 8, 23, 24, 25, [36, 37, 39, 40 as to what he should have done], 42, 49, 50, [79 if happened during or after hearing], 80, 101(f), 102, 107, 108 and 110.