Council of the NSW Bar Association v Thorpe

NCAT Occupational|2020-08-04

The Application Act s 144

The Application Act provides, in s 144: 144 Consent orders (1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were initiated in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were initiated, an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated. (4) This section does not apply to consent given by the respondent lawyer unless the lawyer and the NSW Commissioner have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the respondent lawyer. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the initiation of proceedings in the Tribunal where consent was given before the proceedings are initiated. (8) If consent was given before the proceedings are initiated, the proceedings are nevertheless to be initiated with respect to the complaint in the same way as if the consent had not yet been given. (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. (10) In deciding whether to make orders pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.
We are satisfied that the consent of both parties has been given to the instrument of consent.

The parties' submissions

The Council pointed out that the relevant conduct of the practitioner occurred between 27 July 2009 and 21 May 2010. The Council submitted that the proceedings were, nonetheless, able to proceed under the Uniform Law because of the transitional provisions in Schedule 4, Part 3, Division 6 and 7. In Division 7, clause 27, provision is made for complaints and investigations to proceed under the Uniform Law where conduct happened, or is alleged to have happened, before the commencement of the Uniform Law and could have been the subject of a complaint under the superseded legislation.
We accept this submission. There was no challenge to jurisdiction.
The Council referred to the definition of unsatisfactory professional conduct and professional misconduct in the Uniform Law: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
The Council relied upon the following discussion in the decision of Meagher JA in Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 at [22] and at [26]-[27]: 22. The distinction made by that definition is between conduct which involves a "substantial" failure to reach or maintain the required standard and conduct which involves a "consistent" failure to do so. The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer's competence and diligence and thereby warrant the description "substantial". The reference to a "consistent failure" is to ongoing or persisting acts of failing on different occasions to reach or maintain the required standard. The same or similar failures which occur on a series of related occasions and are explained by an overarching error of judgment on the part of the lawyer (which is not itself the or a relevant failure which is the subject of complaint) do not involve a "consistent failure" in the sense in which that expression is used in this definition. … 26. …The references to the need for the failures or mistakes to occur in a "variety of situations" or for them to be "repeated in other transactions" emphasise that it is the persistent occurrence of the same or similar failures to reach or maintain a reasonable standard of competence and diligence on separate occasions which gives them the quality of being "consistent". The fact that they have that quality makes it likely that the explanation for the conduct is a want of fitness or competence rather than a series of casual or uncharacteristic lapses or, as in this case, a single overarching mistake made in the context of related transactions. 27. …The Tribunal was justified in concluding that "the repetition of the same error by the Solicitor should not be treated as a 'consistent' course of unsatisfactory professional conduct"; and is not shown to have erred in not characterising that conduct as professional misconduct.
The Council submitted that the practitioner's conduct constituted a consistent failure to reach or maintain a reasonable standard of competence and diligence. This was because the failure to disclose the information set out in the grounds of the application persisted through the preparation for trial and continued during a voir dire into the admissibility of the alleged admission. The consequences of this conduct were very serious. The accused was convicted and imprisoned for nearly 7 years. Had disclosure been made, the trial would certainly have been conducted differently. The outcome of the trial may have been different.
In relation to grounds 4 and 5, the Council submitted that the respondent misled or attempted to mislead the defence barrister and the court by providing them with notes which purported to be typewritten notes of a conference with a witness when, in fact, to the knowledge of the respondent, those notes had been edited in a material way.
The respondent was admitted to practice on 4 November 1983. Between 1984 and 1988, he practised almost exclusively in the criminal jurisdiction of the Supreme and District Courts of NSW.
The respondent was appointed as a Crown Prosecutor for the State of NSW in February 1988. In early 2000, he was based in Sydney and was regularly briefed in the Supreme Court to conduct murder trials.
In 2006, the respondent took up a position as a Senior Crown Prosecutor in the Solomon Islands as part of the Regional Assistance Mission, Solomon Islands. He took leave without pay from the Office of the Director of Public Prosecutions.
In 2007, the respondent returned to Sydney to take up the role of Deputy Senior Crown Prosecutor for New South Wales.
In about 2010, the respondent was appointed as the Secretary of the Australian Association of Crown Prosecutions. He held that position until 2017.
The respondent held a practising certificate as a Crown Prosecutor until 20 July 2017, when he notified the Bar Council that he had resigned from the Office of the Director of Public Prosecutions.
On 12 October 2017, the Council resolved to issue the respondent a practising certificate authorising him to engage in legal practice as a barrister. He continues to hold a conditional practising certificate.
The respondent has accepted that the trial of JB was affected by a grave miscarriage of justice.
At the time of JB's trial, the respondent, in his own mind, based upon the enquiries that he had made, and the opinion that he had formed of A107 in his interactions with him, did not believe that A107 was a registered informant. The respondent was unaware of the affidavit of assistance which had been provided to the Local Court by the police in the sentencing of A107 until 2014.
The respondent fully acknowledged that he should have disclosed the statements made by A107 at the interview to the defence counsel and to the court.
The respondent submitted that, at the time of JB's trial, he genuinely believed that he was justified in providing the edited notes of the interview on the basis of public interest immunity. He points out that the trial occurred prior to amendments to s 15A of the Director of Public Prosecutions Act 1986 (NSW) following the decision of the Court of Criminal Appeal in R v Lipton [2011] NSWCCA 247. He acknowledges, however, that he should have made further enquires of the police and ascertained the true situation; that A107 was a registered informer. He says that the Crown case against JB would then have been put on a different basis.
The respondent resigned his position as Deputy Senior Crown Prosecutor on 20 July 2017, with immediate effect. In doing so, he acknowledged that he had come to an understanding of the seriousness of his conduct in the matter of JB. His resignation involved loss of status, tenure, a secure income and future entitlements to paid leave, including long service leave and sick leave.
The respondent acknowledged that he was under stress at the time that he was preparing JB's matter, including stress from his work in the Solomon Islands.
We accept that the respondent has enjoyed a good reputation, both as a prosecutor and as a barrister.
We accept the factual findings and the determinations set out in the Instrument of Consent at [10] and we make those findings and those determinations without repeating them.

Ground 3 is not pursued

Ground 3 of the application alleged, in summary, that the admissions made by JB to A107 were unlawfully obtained, and that the respondent had reasonable grounds to believe that they were unlawfully obtained, on the basis that A107 was an informant. The respondent's omission to disclose the possible unlawfulness of the admissions was alleged to be a breach of rule 67 of the Bar Rules.
The Council has requested that Ground 3 be dismissed. We note the provisions of s 147 of the Application Act. On the basis of the material before us, there is reason to doubt that Ground 3 could be made out. We are satisfied that, in all of the circumstances, the maintenance of Ground 3 is not in the public interest. Pursuant to s 147 of the Application Act, we give leave for Ground 3 to be withdrawn and note its withdrawal.

Protective Orders

The principles to be considered in relation to the appropriate protective orders to be imposed were summarised in Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [24]: It is well-established, without the necessity for resort to authority, that there are four principal aspects to be considered in determining what protective orders are appropriate in any particular case. These are; (1) the gravity of the misconduct (2) the deterrent effect of any protective order on the further conduct of the practitioner (3) the deterrent effect of any protective order on the conduct of other practitioners (4) the enhancement of confidence in the public in the integrity of the profession
We bear in mind that the orders we make under the Uniform Law do not have the function of punishing the practitioner. They are to be made for protective and deterrent purposes.
A finding of professional misconduct does not require a conclusion that the practitioner is unfit to practise and nor does it require that an order be made recommending the removal of the practitioner from the roll (A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1 at [15] and [21]; Council of New South Wales Bar Association v Sahade [2007] NSWCA 145 at [7], [9], [73] and [88].
The circumstances in which professional misconduct occurred, and the events which flowed from it, are relevant to the assessment of which protective orders are appropriate. We have regard to the practitioner's affidavit, in which he clearly expresses the manner in which he views his conduct in 2009 with the benefit of hindsight. We take into account the character references exhibited to the practitioner's affidavit. We accept that the practitioner is remorseful and deeply regrets the impact of his conduct on JB. The practitioner, in his affidavit, apologises to JB and his family and friends. We accept that the events the subject of this matter have had a significant effect on the practitioner personally, professionally and financially.
We are satisfied, in all of the circumstances of this matter, that the practitioner will not engage in any similar conduct in the future. The practitioner has never been the subject of any other complaint. We are satisfied that the practitioner is sufficiently aware of the gravity of his conduct, and that the significant impact of that conduct on the practitioner's own career and life, together with the reprimand proposed, will be a sufficient deterrent for other practitioners. In all of the circumstances, we consider that the confidence of the public in the integrity of the justice system will not be compromised if the protective order is a reprimand.

Requirements of s 144 of the Application Act

On the basis of the agreed facts, and the written and oral submissions on behalf of the parties, we are satisfied that the findings and orders proposed in the Instrument of Consent are appropriate. We do not consider that it would be in the public interest to conduct any further hearing in relation to the matter.

Non-publication orders

We note that non-publication orders with respect to JB, A107 and DWO have been made in other matters. The Tribunal is bound by those non-publication orders, but, out of an abundance of caution, we will also make a non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) with respect to those persons.

Orders

We make the following orders: 1. With respect to the professional misconduct found in respect of Grounds 1, 2, 4 and 5 of the application made on 6 April 2020 in this matter, Terrance William Thorpe is reprimanded in accordance with section 300 of the Legal Profession Uniform Law (NSW). 2. Leave is given to the Council to withdraw Ground 3 of the application made on 6 April 2020, and the withdrawal of Ground 3 is noted. 3. The respondent is to pay the applicant's costs as agreed or assessed. 4. Under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the persons referred to in this decision as JB, A107 and DWO is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2020

REASONS FOR DECISION

The Council of the New South Wales Bar Association ('the Council') filed an application for disciplinary findings and orders against the respondent on 9 February 2018.
The application was affected by similar procedural defects to those discussed in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101. Consequently, the application was dismissed on 2 October 2019.
The Council recommenced the application, on 6 April 2020 pursuant to Part 5 of Schedule 9 to the Legal Profession Uniform Law Application Act 2014 (NSW) ('the Application Act').

The Instrument of Consent

The parties filed an instrument of consent in this matter under s 144 of the Application Act.
We convened a hearing in the matter and heard submissions from both parties.
The Instrument of Consent included an agreed statement of facts. We will set the agreed statement of facts out in full: Background 1. At all relevant times, the Respondent was a lawyer within the meaning of section 261 of the Legal Profession Uniform Law (NSW) 2015 (Uniform Law) and an Australian legal practitioner within the meaning of section 6 of the Uniform Law. 2. The Respondent was admitted to the Roll of Barristers (as it then was) in the Supreme Court of New South Wales on 4 November 1983. 3. Practising certificates were first issued to barristers on 1 July 1988. The Respondent has held a practising certificate as a barrister since 1 July 1988. The Criminal Proceedings giving rise to the Complaint 4. Between 11 August 2009 and 21 May 2010, the Respondent appeared as Crown Prosecutor in a murder trial before Latham J and a jury. The accused was a minor referred to by the pseudonym JB. 5. On 10 September 2009, JB was found guilty of murder. 6. A significant aspect of the Crown case were admissions alleged to have been made by JB to a support person (assigned the pseudonym, as variously described by the Court and parties, as witness 107A or A107). 7. On 21 May 2010, Latham J sentenced JB to a term of imprisonment of 23 years with a non-parole period of 16 years (R v JB [2010] NSWSC 543). 8. JB appealed the conviction to the Court of Criminal Appeal. The appeal included a ground that the alleged admission made to witness A107 should not have been admitted. The appeal was unsuccessful (see JB v R [2012] NSWCCA 12). A subsequent application for special leave to appeal to the High Court was unsuccessful (see JB v R [2013] HCA Trans 2). 9. In 2014, an application was made on behalf of JB under section 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry into the conviction for murder. 10. The application for review was based on material that was discovered after all avenues of appeal had been exhausted. That material included evidence that witness A107 was a police informant during the investigation that formed the basis of the proceedings against JB. In 2008, witness A107 had been charged with two offences of making a false statement to obtain money. On 29 September 2008, an 'Affidavit of Assistance' had been prepared for witness A107's sentence proceedings. That material included evidence that witness A107 was a police informant during the investigation that formed the basis of the proceedings against JB. When witness A107 was sentenced by Parramatta Local Court on 30 September 2008 his assistance in providing police with evidence against JB was taken into account as a mitigating factor. Additionally, the solicitor acting for JB in the murder trial was the same solicitor who acted on behalf of witness A107 in his sentence proceedings. 11. At the relevant time, the Respondent was not aware of the fact that an Affidavit of Assistance had been prepared for the sentence proceedings of witness A107 at Parramatta Local Court. 12. The application made pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 was successful and on 20 September 2014, R.A Hulme J. referred the matter to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW): JB - Application for inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2014] NSWSC 1714. 13. R A Hulme J stated in relation to the Crown's reliance on witness A107's evidence: The Crown relied upon other aspects arising from the evidence but its case was put to the jury on the basis that a verdict of guilty could be returned on the evidence of the alleged admission alone 14. On 29 April 2016, the Court of Criminal Appeal handed down a decision acquitting JB: JB v R (No 2) [2016] NSWCCA 67. 15. The majority of the Court of Appeal ordered that there was insufficient evidence to justify a retrial. In particular, Hoeben CJ stated at [14]: I have concluded that the evidence of the Crown, absent that of A107, is not capable of establishing beyond doubt that JB murdered Edward Spowart. 16. By letter dated 23 September 2016, the Director of Public Prosecutions made a referral to the Office of the Legal Service Commissioner of NSW (OLSC) requesting the Commissioner consider the question of whether the Respondent has engaged in professional misconduct or unsatisfactory professional conduct. 17. On 29 November 2016, the OLSC initiated a complaint in accordance with section 266(2) of the Uniform Law about the Respondent (Complaint). 18. On 16 January 2017, the OLSC waived the time requirement pursuant to section 272 of the Uniform Law with respect to allegations 1 to 5 of the Complaint. 19. On 16 January 2017, the OLSC referred the Complaint to the Bar Association in accordance with Chapter 5 of the Uniform Law. 20. On 21 September 2017, the applicant resolved that allegations 1 to 5 of the Complaint be referred to New South Wales Civil and Administrative Tribunal pursuant to section 300 of the Uniform Law and that allegation 6 be closed pursuant to section 277(1 )(h) of the Uniform Law. Previous application against the Respondent 21. On 9 February 2018, an Application for Disciplinary Findings and Orders was filed in the Tribunal by the Applicant naming the Respondent and was assigned proceedings number 2018/00044478 (Previous Application). 22. The Previous Application was commenced with the bona fide but mistaken belief that the Applicant could exercise the functions purportedly delegated by the Legal Services Commissioner (Commissioner) to the New South Wales Bar Association by Instrument of Delegation dated 18 June 2015 (Delegation). 23. The Applicant later considered that the Delegation was not authorised by s. 406 of the Uniform Law and was not effective to delegate any Chapter 5 functions to either the New South Wales Bar Association or the Applicant. 24. As a result of the matters outlined at paragraphs 22 and 23, by Application filed on 30 September 2019, the Applicant sought dismissal of the Previous Application. 25. On 2 October 2019, the Tribunal dismissed the Previous Application. Recommencement 26. On 6 April 2020, the Applicant recommenced the Previous Application pursuant to Part 5 of Schedule 9 of the Legal Profession Uniform Law Application Act 2014 (NSW). Facts relevant to the Respondent's conduct 27. A significant aspect of the Crown case was the contention that JB made admissions at a police station on 26 April 2008, following his arrest. The admissions were said to have been made to witness A107, as a support person, who was present because JB was a vulnerable person (due to his age). 28. On 27 July 2009, prior to the trial, the Respondent and his instructing solicitor, Ms Julie Davis, were in conference with witness A107 (the Conference), who was a witness in the prosecution case. During the Conference, the Respondent was informed by witness A107 that he was a 'registered informant'. 29. Handwritten notes were taken during the Conference which included relevantly, the following (Application [18.17.3]): "am registered informant" "have a criminal record" "knew he was 14y (confusion as to age)" "DWO, [JB's solicitor] knows. I know good mate, I told DWO that JB told me, he told me to shut up.' "have seen pictures" "worked in police@ Blacktown, Dean Olsen - bridge b/w police, community + youth" "RM may swing. RM best bet. I've spoken to his mother + said he should. He took the knife ... concealed it" 30. On the same day as the Conference (27 July 2009), the following email exchange occurred between Ms Davis and the Respondent (Application [18.17.4]): (i) At 12.18pm, Ms Davis emailed the Respondent in the following terms: "Attached are notes from the conference with [A107]. They are quite detailed. Let me know if you want me to make any changes. The only things I've left out are his views about who may 'swing' and the fact he told DWO what [JB] had told him. Also, that he has a criminal record and is an informant". (ii) The email attached typed notes, which omitted the information referred to at 29 above (iii) At 12.38pm, the Respondent responded to the email, indicating that the typed notes and identified omissions "seems fine". (iv) At 12.57pm, Ms Davis emailed the following question: "Are you happy for me to serve the conference notes, as is, on the defence?" (v) At 1.04pm, the Respondent responded to the email, which included the following:"/ think you can serve the notes as they are". The typed notes were subsequently served on JB's legal representatives. (vi) At 1.11pm, Ms Davis forwarded an email to the Respondent, from the police. That email attached A107's criminal history, which was a 10-page criminal history. The email also contained the following text: "here is [A107's] criminal record. Do you agree I should serve it along with the conference notes? Given we are not calling [A107] as an informer witness I don't think the normal procedures would apply re accessing the witness informer index. do you want me to make enquiries about that?" (vii) The Respondent responded by email at 1.15pm, as follows: "is that all… Just one page????? I think you should try to find out what his status is as an informer and I think we need to know if anyone has formed an adverse view of his reliability as I think that would be relevant to his general credit even though he isn't being called as an informer." (viii) At 3.24pm, Ms Davis emailed the Respondent, noting that A107 "is not on the ODPP informer index". (ix) The Respondent responded at 3.27pm as follows: "OK You might just check with the OIC and see if he is on any police informer list to his knowledge. He probably (sic) just provides low level intelligence type information to the LAC cops. I gather he is a bit of a big noter!!" (x) Ms Davis responded by email at 3.30pm, as follows: "Alex told me he is aware that he is an informer for police (but police from another station). Do you want me to get further details?" (xi) The Respondent responded by email at 3.34pm as follows: "No I don't think so….public interest immunity and all that stuff. We have satisfied ourselves that he isn't adversely known on our system." 31. At no time during the proceedings, did the Respondent inform the defence representatives (his opponents) (Application [18.17.6]2): (i) Of the fact that A107 said the words that were omitted from the typed conference notes (being the notes appearing at paragraph 29 above), including the words "am registered informant"; (ii) Of the fact that handwritten notes of the Conference existed; (iii) Of the fact that the typed version of the conference notes was an edited version of the handwritten notes; (iv) Of the fact that the police had informed the DPP that A107 was an informer for police (at a different station). 32. The trial commenced on 11 August 2009. 33. Prior to the empanelment of the jury, there was a voir dire on the admissibility of the alleged admission to A107. During the voir dire the Respondent tendered and relied upon the edited conference notes. During the voir dire, the Respondent did not inform the Court of the matters referred to at paragraph 31 above. 34. The alleged admission was admitted into evidence. 35. During the trial the Respondent relied upon the alleged admission made by JB to witness A107 in the Crown case including addressing the jury. 36. At no time during the proceedings, did the Respondent inform the Court (including the jury), of the matters referred to at paragraph 31 above (Application [18.17.7]). 37. The Crown relied upon other aspects arising from the evidence, however its case was put to the jury on the basis that a verdict of guilty could be returned on the evidence of witness A107 alone, as noted at paragraphs 6 and 13 above. 38. JB was found guilty of murder and to a term of imprisonment of 23 years with a non-parole period of 16 years on 21 May 2010. Mitigation 39. The Respondent acknowledges and accepts that by failing to inform the defence, Court and jury of the facts outlined at paragraph 31 above, he fell below the standard of competence reasonably expected of a Crown Prosecutor of his seniority and standing and in so doing, is guilty of professional misconduct. 40. The Respondent, in submissions to the Bar Council, dated 21 July 2017 stated: I acknowledge and accept that my conduct amounted to unsatisfactory professional conduct. I accept that if I had pursued the matter further I would probably have discovered that A107 had provided assistance to police and had received a letter of assistance which, inter alia, related to his involvement in this case. Had I been aware of that fact I would have disclosed it, or more likely would have decided not to call him as a witness. Such a determination would have obviated any necessity to make any decision about disclosure or immunity. As indicated previously there were other basis upon which the Crown case could have been put. I now acknowledge and accept that my approach was inadequate and probably arose from the assessment I made of A 107. Regardless of that, once I was aware that he had given assistance of some kind to other police the fact I did not believe him should not have been the end of the matter.' 41. On 20 July 2017, the Respondent resigned his position as a Crown Prosecutor and commenced practice at the independent Bar as a defence barrister. 42. The incident giving rise to the Complaint occurred during the period 27 June 2009 to early 2010. 43. Throughout his career as a barrister, the Applicant has received no other complaint about the Respondent, with the exception of the Complaint the subject of these proceedings. 44. The Respondent accepts that his conduct amounts to professional misconduct. (footnotes omitted)

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