Council of the Law Society of New South Wales v DWO [2020] NSWCATOD 123 | Case summary

Judgment (6 paragraphs)

[1]

Introduction

The Council of the Law Society of NSW ('the Law Society') made an application to the Tribunal for disciplinary findings and orders under the Legal Profession Uniform Law (NSW) ('the Uniform Law') on 11 January 2019 ('the first application').
The first application was affected by the process issues which gave rise to the decision of the Tribunal in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101. Accordingly, the first application was dismissed on 4 September 2019.
The Law Society filed the application for disciplinary findings and orders which is the subject of this decision on 6 March 2020. The subject matter of the current application is the same as the subject matter of the first application.
The Legal Profession Uniform Law Application Act 2014 ('the Application Act') provides, in Schedule 9, clause 23(5): (5) Any proceedings commenced in a court or tribunal by an authorised delegate or subdelegate that were terminated on a relevant invalidity ground during the relevant period at the instigation of an authorised delegate or subdelegate - (a) may be recommenced under the authority of this clause by the same delegate or subdelegate in the court or tribunal on the basis of the applications and other documents by which those proceedings were last commenced, and (b) any thing done in the terminated proceedings (other than the termination of the proceedings) is taken to have been done in the recommenced proceedings.
The first application was terminated and proceedings have been recommenced under Schedule 9, clause 23(5) of the Application Act. We will therefore treat the application and material which was before the Tribunal in relation to the first application as being before the Tribunal in relation to the current application.
Both parties submitted that a hearing can be dispensed with and the proceedings determined on the basis of the documents before the Tribunal under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW). We are satisfied that the issues for determination can be adequately determined in the absence of the parties by the consideration of the documents before the Tribunal.

Outline of facts

At all material times, the respondent held a New South Wales practising certificate as a solicitor.
The Law Society alleged that the respondent was guilty of professional misconduct in that he acted in a conflict of interest.
The Law Society alleged that, in 2008, the respondent was acting as the solicitor for two clients, JB and A107.
A107 was charged with two counts of making a false statement to obtain money. The respondent acted for him in relation to these charges from January 2008.
JB, a minor, was charged with murder. The respondent acted for JB in relation to that matter from 21 April 2008.
When JB was arrested in relation to the murder charge, A107 attended at the police station, as his support person. Subsequently, the respondent came to the police station to advise and represent JB. JB instructed the respondent that he would not make a statement to the police. The respondent was not told that JB had, prior to the respondent's arrival at the police station, given certain information to A107 which was relevant to the murder, and nor was the respondent told that A107 had, without JB's knowledge, communicated that information to the police prior to the respondent's arrival at the police station.
On 21 July 2008, the communication of that information formed part of an affidavit provided to the respondent by the police ('affidavit of assistance') for use in the Local Court in relation to the sentencing of A107 for the two counts of making a false statement to obtain money.
The affidavit of assistance was provided to the respondent in a sealed envelope. The respondent tendered the affidavit of assistance to the Local Court in the sealed envelope. He was not provided with a copy of the affidavit of assistance and he did not read the affidavit of assistance. The police officer who was providing the affidavit of assistance told the respondent that it contained his observations and his endorsement of A107's assistance to the police and to the community. The respondent was not told and did not know that A107 was a registered police informant.
The respondent acted for A107 until 30 September 2008, when A107 was sentenced.
In July 2009, the respondent became aware that A107 was listed as a witness for the Crown in the trial of JB for murder. The respondent contacted A107 and told him that he, the respondent, could have no further dealings with him and told A107 that he was not to contact JB.
The respondent was provided by the Office of the Director of Public Prosecutions (DPP) with a copy of the 'record of interview' of A107. However, the copy of the 'record of interview' provided to the respondent had been edited to remove references to the status of A107 as a registered police informant.
The respondent continued to act for JB. The trial of JB on the charge of murder began on 11 August 2009. On 10 September 2009, the jury returned a verdict of guilty. On 21 May 2010, JB was sentenced.
JB appealed from his conviction and sentence, and was unsuccessful in the Court of Criminal Appeal in 2012 and unsuccessful in an application for special leave to appeal to the High Court in 2013.
In 2014, JB applied under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction. The matter came before Hulme J who referred it to the Court of Criminal Appeal.
The Attorney-General, in written submissions, conceded at an early stage in the proceedings under s 78 of the Crimes (Appeal and Review) Act 2001 that there was non-disclosure by the prosecution at the trial of JB for murder of the status of A107 as a registered police informer. It was conceded that the 'record of interview' of A107 had been 'edited' before being provided to JB's legal representatives before his trial so that it did not contain any reference to A107's status as a registered police informer. Further, it was conceded that the police did not disclose to the Office of the DPP, or to JB and his counsel, that the affidavit of assistance had been provided to the Local Court in relation to the sentencing of A107. It was conceded that the affidavit of assistance included a reference to the assistance provided to the police by A107 in relation to the murder with which JB was charged.
The Attorney-General, in his written submissions, indicated that DWO may have had a conflict of interest because, without JB's knowledge, he had been, for a period of time in 2008, acting for A107 at the same time as he was acting for JB.
In April 2016, JB's conviction for murder was quashed and a verdict of acquittal was entered in his favour.
The first application to the Tribunal under the Uniform Law was made, as we have said, in January 2019. It was subsequently dismissed, and these proceedings were instituted on 6 March 2020.
The allegation the subject of these proceedings is that DWO acted in a conflict of interest when he acted for JB in the criminal proceedings, including the appeal, in that DWO also acted for A107.

The Council's application for termination of the complaint

The Application Act provides, in s 147: 147 Early termination of proceedings before Tribunal (1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal. (2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest.
The Council submitted, in support of its application, that the evidence is insufficient to establish the complaint.
The Council submitted that, in order to prove the complaint against the respondent, it would have to prove, among other things:

that the respondent knew that A107 had received a benefit in relation to his sentencing for obtaining an admission from JB
that the respondent knew that A107 had received a benefit in relation to his sentencing on account of the prospect that he would give evidence against JB
that the respondent relied upon the affidavit of assistance from the police in the A107 proceedings, knowing that the affidavit of assistance detailed the information that A107 had given the police and thereby benefitted his client A107 to the detriment of his client JB
that the respondent knew all of the above as he acted for JB in the appeal proceedings
that the respondent did not disclose to JB that he had acted for A107 in circumstances where A107's assistance to the police in relation to JB was relied upon to reduce A107's sentence in 2008.

The Council submitted that it had intended to prove these matters by relying on the affidavit of assistance. However, the respondent consistently maintained that he did not open the sealed envelope containing the affidavit of assistance, that he did not read the affidavit of assistance and that he was not provided with a copy of the affidavit of assistance. The Council concedes that there is no evidence to the contrary.
The Council submitted that it would not be able to establish the complaint to the requisite standard of proof, and that it would not be in the public interest for the proceedings to continue to a hearing in these circumstances.
The Council submitted that the early termination of the proceedings will 'facilitate the just, quick and cheap resolution of the real issues in the proceedings' in accordance with s 36 of the Civil and Administrative Tribunal Act.
The Council pointed out that to continue the proceedings would result in a futile hearing, with attendant costs and inconvenience to the parties.
The respondent consents to the application for early termination and does not seek costs.
The utility of the continuation of the proceedings is relevant to the question of whether the continuation of the proceedings is in the public interest (see Council of the New South Wales Bar Association v DBW [2017] NSWCATOD 71 at [36]-[41])
Disciplinary proceedings in relation to a legal practitioner are pursued for a number of purposes, including the protection of the public from misconduct by the legal practitioner in question and from the misconduct of other legal practitioners who might conduct themselves in a similar way. Such proceedings also seek to set, clarify and maintain the appropriate standard of conduct for legal practitioners and to denounce, publically, misconduct, and, in doing so, maintain public confidence in the legal profession.
Plainly, the continuation of these proceedings would achieve none of the objectives of disciplinary proceedings. The accusation against the respondent that he acted in a conflict of interest is denied and cannot be proven.
The continuation of the proceedings is not warranted in the public interest.
The application by the Council must be granted.

Council of the Law Society of New South Wales v DWO

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Judgment (6 paragraphs)

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