Court of Appeal (WA)|2007-07-17|Before: Steytler P, Wheeler JA

ISMAIL-ZAI -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 150 (17 July 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ISMAIL-ZAI -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 150

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Prosecutor previously represented appellant in unrelated matters - Grounds to restrain solicitors from acting against former clients - Protection of confidential information - Continuing duty of loyalty - Inherent jurisdiction to protect proper administration of justice - Duty on prosecutors to act fairly - Whether miscarriage of justice occurred

1 STEYTLER P: The appellant was convicted, after a trial, on a charge of aggravated robbery with violence. His appeal turns upon the question whether the prosecutor, Mr Gary Huggins, should have been permitted to prosecute him on that charge. Mr Huggins had previously represented the appellant in unrelated matters.

2 The evidence advanced at the trial was as follows. The complainant had been celebrating New Year's Eve at Cottesloe beach with two friends. The appellant and two co-offenders were among a group of people sitting on some steps adjacent to the beach. When the complainant went up the steps, the appellant stopped him. There was a brief exchange of words. The appellant head-butted the complainant. While the complainant was stunned, the appellant reached into his pockets and removed his mobile telephone and wallet. The complainant protested. The appellant, his two co-offenders and others then surrounded the complainant. One of the co-offenders head-butted or punched the complainant from behind and the other punched the complainant in the mouth. The complainant managed to get through the group. He joined up with his friends who were waiting on the sidewalk about five to 10 metres away. They immediately reported the attack to police at a nearby police post. They pointed out the appellant and his co-offenders. The offenders were apprehended and taken to the police station. The appellant admitted to police officers that he had been sitting on the stairs and, without prompting, said that he had not head-butted anyone.

3 In his evidence at the trial the appellant admitted that he had been present on the steps at the time of the incident. He denied that he had assaulted the complainant or that he took any part in the robbery. He said that he had been caught up in a confrontation, involving a group of aboriginal youths, that was not of his making. He said that he focused upon defending himself and that he had been punched and kicked. He said that, when he was apprehended by police, one of the officers accused him of stealing a wallet and head-butting someone. He denied volunteering the information, without being asked, that he had not head-butted anyone. Neither of the co-offenders gave evidence.

4 The principal issue in the trial was whether or not the appellant and his co-offenders had been correctly identified as the complainant's assailants. I have said that the complainant and his friends pointed out the appellant and his co-offenders to the police. This was done within minutes of the alleged robbery. A week or two later the complainant again identified the appellant and one of his co-offenders from a photo board. He was unable to identify the third co-offender. Each of the complainant's friends identified the appellant from the photo board, although both misidentified the co-offenders. All three of the accused persons contended, by their counsel, that they had been mistakenly identified.

5 I have said that Mr Huggins prosecuted the appellant and his alleged co-offenders. He was an independent practitioner, but had been briefed to do so by the Office of the Director of Public Prosecutions.

6 After the evidence had been led at the trial and the jury had retired to consider their verdict, the trial Judge was alerted to the fact that Mr Huggins had previously represented the appellant. Counsel who then represented the appellant told the court that she had just spoken to her client for the first time since he had given evidence on the previous day. She said that he had told her that "he had felt perhaps uncomfortable during the evidence being given, and in particular cross-examination". She said that this was because the prosecutor had represented him "on the only two relevant criminal convictions in his past" (transcript 224). The appellant's counsel applied for the discharge of the jury and submitted that the trial should be aborted upon the basis of at least a "perception of conflict" on the part of the prosecutor (transcript 225).

7 Mr Huggins, in turn, told the trial Judge that he did not recognise the appellant or recall representing him. However, he said that he accepted what the appellant had said and would check his records at his office in order to see what had been the extent of his representation of the appellant.

8 The trial Judge ultimately declined to discharge the jury. He said that the "trial [was] totally distinct from the matter in which the State prosecutor represented the accused" and that there was "no possibility of a reasonable onlooker apprised of all the facts reaching the conclusion that the confidential information given by the accused to his lawyer at the time could have been used by the lawyer, as the State prosecutor in [the] trial, to advance the interests of the prosecution to the detriment of his former client" (transcript 229).

9 The jury brought in its verdict and the appellant and the co-offenders were convicted.

The previous dealings between the prosecutor and the appellant

10 It is common cause that Mr Huggins had represented the appellant on two previous occasions. Both were in the Joondalup Court of Petty Sessions, during October 2004, almost two years prior to the trial. On the first occasion, the appellant had pleaded guilty to 10 counts of fraud and three of stealing. On the second occasion, he had pleaded guilty to traffic offences of failing to stop, reckless driving and driving without a valid driver's licence. On each occasion Mr Huggins made pleas in mitigation on his behalf.

11 The fraud and stealing offences to which the appellant pleaded guilty on the first occasion were committed over a six-hour period. The frauds involved the use of a stolen credit card at various service stations in order to obtain mobile telephone recharge cards and other items. The stealing offences involved the theft of copper pipe off-cuts. The appellant had driven a co-offender to various addresses where he had stolen the off-cuts.

12 Mr Huggins first met the appellant on the morning of the appellant's first appearance in the Court of Petty Sessions, on 22 October 2004. He spent about 30 minutes with the appellant, in the course of which he took instructions. He made a plea in mitigation on the appellant's behalf. His only prior contact with the appellant had been when the appellant had telephoned him seeking representation on 15 October 2004 and when they had discussed possible appointment times and fees in a series of telephone calls in the intervening days. After 22 October 2004, his next contact with the appellant was about a week later at the time of the appellant's next appearance in the Court of Petty Sessions. Mr Huggins took brief instructions, for no longer than 10 minutes, in respect of the traffic charges and then made another plea in mitigation on the appellant's behalf. He has not seen or heard from the appellant since.

13 In an affidavit sworn for the purposes of the appeal, the appellant says that he did not at first recognise Mr Huggins at the trial. He says that this was because Mr Huggins was wearing a wig and robes. After being cross-examined by Mr Huggins on the morning of the third day of the trial, the appellant asked his counsel to visit him in detention. She did not do so until the next afternoon. He told her that he had been very nervous while giving his evidence. He said that this was because Mr Huggins had previously represented him and "knew all about [his] background". He thought that this was unfair. He had previously said nothing to his counsel about this because he did not want his co-offenders to hear him.

14 The appellant said that he had also been nervous when cross-examined because he still owed Mr Huggins money. He had thought that Mr Huggins "would try to get [him] convicted because [he] had not been able to pay him $1,400". The existence of the debt was confirmed by Mr Huggins who said, in an affidavit filed in the appeal proceedings, that he had sent the appellant an account for outstanding fees on 29 October 2004. However, he received no further correspondence from the appellant and was not contacted by him. On 23 December 2005 he wrote a letter to his debt collector telling him, amongst other things, that an account was outstanding from the appellant and asking that debt recovery action be taken. He had not had a report from the debt collector as to what had been done in relation to collection of the debt.

15 The appellant says that the information disclosed by him to Mr Huggins during the subsistence of the two retainers related to his education, his work, his earnings and his family circumstances. He says that he told Mr Huggins "about how [he] was not a thief". He also told Mr Huggins that he gave most of his money to support his family and that he "would not get into trouble again and [he] would not hang around with people who use drugs". There is nothing surprising in any of this, given that the instructions were provided for the purposes of pleas in mitigation.

16 The first ground of appeal is that there was a miscarriage of justice because the appellant was denied a fair trial. The particulars to this ground assert that, having previously acted for the appellant, and having received personal information from him, Mr Huggins owed a continuing duty of loyalty to the appellant. The particulars also contend that, because the role of prosecutor required Mr Huggins to be hostile to the appellant and, in cross-examination, to question his honesty and credibility, "the appearance to a reasonably informed person would have been that the prosecutor had changed sides and had an unfair advantage in the proceedings by reason of the previous relationship".

17 The second ground of appeal contends that the trial Judge "erred in law in failing to discharge the jury when it became apparent that the prosecutor had previously acted for the appellant in circumstances which rendered the trial unfair".

18 Counsel for the appellant accepted that the two grounds come down to a single proposition, being whether or not there was a miscarriage of justice arising out of the fact that Mr Huggins was the prosecutor at the appellant's trial: s 30(3)(c) of the Criminal Appeals Act 2004 (WA).

19 There is a considerable body of case law touching upon the circumstances in which a lawyer may not act against a former client. Most of the cases have arisen in a civil context. They reveal that, when lawyers have been restrained from acting against former clients, it has been for one or more of three reasons. The first is that of ensuring the protection of confidential information that has been provided by the client to the lawyer in the course of the lawyer/client relationship: see, for example, Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831; D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118; Carindale Country Club Estate Pty Ltd v Astill [1993] FCA 218; (1993) 42 FCR 307. The second is when the court, acting under its inherent supervisory jurisdiction, considers that it is necessary to do so in order to ensure the due administration of justice: see, for example, Black v Taylor [1993] 3 NZLR 403; Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446; Newman v Phillips Fox (a firm) [1999] WASC 171; (1999) 21 WAR 309 at [21] - [25]; Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 at 571 - 582 and the cases there cited. The third is that of preventing a breach of a supposed fiduciary duty of loyalty owed by the lawyer to the former client notwithstanding the termination of the retainer: see, for example, Wan v McDonald [1992] FCA 4; (1992) 33 FCR 491 at 512 - 513 per Burchett J; Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467 at 489 - 490; McVeigh v Linen House Pty Ltd [1999] VSCA 138; [1999] 3 VR 394. I will discuss these three categories in turn, starting with the notion of a continuing duty of loyalty.

20 There is conflicting authority concerning the question whether a duty of loyalty survives the termination of the retainer. In Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52; [1999] 2 AC 222 at 234 - 235 Lord Millett concluded that it does not. In his opinion, the jurisdiction to restrain a lawyer from acting against a former client has its basis only in the protection of confidences imparted during the subsistence of the retainer. He considered that this was the only duty that survived the retainer, the fiduciary relationship having ended with it.

21 Since then, cases in which the duty of loyalty has been said to survive termination of the retainer include McVeigh (in which Bolkiah was not cited); Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501 at [52] - [53], [55] - [57] per Brooking JA (obiter); Sent v John Fairfax Publications Pty Ltd [2002] VSC 429 at [98] - [104] per Nettle J (obiter); Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202 at [13] - [14] per Whelan J; Gugiatti v City of Stirling [2002] WASC 33; (2002) 25 WAR 349 at [8] - [13] per Templeman J; Holborow v Macdonald Rudder [2002] WASC 265 at [23], [25] per EM Heenan J and Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2004] ACTSC 75; (2004) 155 ACTR 39 at [55] per Higgins CJ.

22 Cases in which the duty has been held not to survive the retainer include Beach Petroleum NL v Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1 at [204] - [205]; Belan v Casey [2002] NSWSC 58 at [21]; PhotoCure ASA v Queen's University at Kingston [2002] FCA 905; (2002) 56 IPR 86; British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70; Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 at [54] - [55]; Kallinicos at [76] per Brereton J and A v The Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152.

23 In my opinion, the weight of authority currently supports the proposition that the duty of loyalty does not survive the termination of the retainer. Moreover, some of the cases which support the existence of a continuing duty of loyalty seem, in my respectful opinion, to draw no clear distinction between a fiduciary obligation of that kind, on the one hand, and the court's inherent supervisory jurisdiction to protect the integrity of the judicial process, on the other. In Wagdy Hanna (at [55]) Higgins CJ referred to conduct which "would or would appear to be a breach of an obligation of loyalty which breach would be regarded as reprehensible conduct by the ... reasonable impartial observer". In Gugiatti (at [12]) Templeman J said that "a solicitor may assume a hostile relationship against a former client if such conduct would not give rise to an apprehension of impropriety in the mind of a reasonable bystander".

24 In any event it seems to me that there may be little distinction, for any practical purpose, between the question whether there is a breach of a continuing duty of loyalty, on the one hand, and the questions whether there is a real risk of a breach of confidence and whether there is or will be other impropriety of a kind that is likely to undermine the integrity of the judicial process and the due administration of justice (which comprehends the appearance of justice), on the other hand. The cases suggest that there will be a breach of a continuing duty of loyalty if a solicitor acts against a former client in the same or a closely related matter: Fordham at 489 - 490; Spincode at [53] per Brooking JA. I find it difficult to envisage circumstances in which a lawyer who acts in the same or a closely-related matter against a former client will neither be in a position in which there is a real risk of a breach of a duty of confidence nor be acting in such a way as to undermine the integrity of the judicial process or the due administration of justice.

25 Even if there is still scope for the existence of a duty of loyalty surviving the termination of a retainer, I would not be prepared to find that there has been any breach of it in this case. The offence in respect of which Mr Huggins prosecuted the appellant is distinct from and entirely unrelated to those in respect of which he had formerly represented him. There is no reason why any duty of loyalty that continued to subsist in respect of those matters after the termination of the retainer should have prevented Mr Huggins from prosecuting the appellant in the present matter, at least if notions of breach of confidence and undermining the integrity of the judicial process and the due administration of justice are put to one side.

26 It is trite that a lawyer is ordinarily under a duty not to communicate to others information which is confidential to a former client. In Bolkiah, Lord Hope said (at 227) that the duty extends to ensuring that the former client is not put at risk that confidential information which the solicitor has obtained from that relationship may be used against him in any circumstances. This duty protects every person's entitlement to seek and obtain legal advice in the conduct of their affairs without the apprehension of being prejudiced by any later breach of confidence: Newman at [38] - [41]. It has been said, in this respect, that the judicial system could not function properly if doubt or suspicion existed in the mind of the public that confidential information disclosed by a client to a lawyer might be revealed: MacDonald Estate v Martin [1990] 3 SCR 1235 at 1266 per Cory J. Accordingly, in Bolkiah the House of Lords held that a solicitor who possesses information confidential to a former client will be restrained from acting against the former client unless there is no real risk of disclosure of the confidential information. In order to be a real risk, the risk does not need to be substantial but it must be more than merely fanciful or theoretical (at 237 per Lord Millett, the other law Lords agreeing). Lord Millett also said (at 237):

"Once the former client has established that the defendant firm is in possession of information which was imparted in confidence and that the firm is proposing to act for another party with an interest adverse to his in a matter to which the information is or may be relevant, the evidential burden shifts to the defendant firm to show that even so there is no risk that the information will come into the possession of those now acting for the other party."

The test in Bolkiah, and Lord Millett's comments concerning the shifting of the evidential burden, have since been adopted in this State (Newman at [62]; Gugiatti at [5]) and in other States (see, for example, Belan at [17] - [19] and the cases there discussed).

27 In the course of applying the test, it must be borne in mind that the lawyer's lack of any particular recollection of the earlier matter will not be determinative. There remains "the possibility that his recollection might be refreshed" during the course of the later matter: Gugiatti at [37] per Templeman J; Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357 at 367 - 368 per Ipp J.

28 It has been suggested that confidential information might include general knowledge obtained about the former client during the subsistence of the retainer. In Yunghanns v Elfic Ltd, unreported; SCt of Vic; 3 July 1998, Gillard J went so far as to say (at 10 - 11):

" ... the relationship between solicitor and client may be such that the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics. These are factors which I would call the 'getting to know you' factors. The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client."

29 These comments were made in the context of a case where the former client had had a very close relationship with a firm of solicitors spanning some 30 years. The former client had initially worked as an employee solicitor for the firm for five years and, subsequently, the firm had acted for him in many commercial transactions. The firm consequently had "many opportunities to form opinions as to [the former client's] modus operandi in business and legal work" (at 13). The case was consequently unusual. If these so-called "getting to know you" factors, to the extent that they involve knowledge of the client rather than of anything imparted in confidence by the client concerning his or her affairs, can constitute confidential information (a proposition that seems to me, with respect, to be questionable: see Black at 412 per Richardson J), they will only rarely do so: Mintel International Group Ltd v Mintel (Australia) Pty Ltd [2000] FCA 1410; (2000) 181 ALR 78; and see Black at 406 per Cooke P, at 408, 412 per Richardson J. However, the misuse of information of that kind might be such as to undermine the due administration of justice.

30 As I have foreshadowed, the courts have often exercised their inherent jurisdiction to restrain lawyers from acting against former clients when the consequences of doing so would be to undermine the proper administration of justice: see Newman at [21] - [24] and the cases there discussed; Black at 406, 408, 412; Holborow at [28] - [29]; Bowen v Stott [2004] WASC 94 at [51] - [52]; Grimwade at 452; Williamson v Nilant [2002] WASC 225 at [25]; Frankland River Olive Co Ltd v Charters Securities Pty Ltd [2004] WASC 88; Tottle Christensen v Westgold Resources NL [2003] WASCA 224 at [6] - [7]; Kallinicos at [76]. The test to be applied is that stated by Brereton J in Kallinicos at [76] as follows:

"The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice ... "

31 The importance of the appearance of justice has often been emphasised in this context: Mallesons at 374 per Ipp J; Black at 406, 408; Kallinicos at [76]; R v Khazaal [2006] NSWSC 1353 at [28] per Whealy J; Woodgate v Leonard [2007] NSWSC 495 at [35] per Barrett J.

32 There are cases in which it has been said that there is a potential for public confidence in the administration of justice to be undermined if there is an appearance that a lawyer can readily change sides: D & J Constructions at 123 per Bryson J; Mallesons at 374 per Ipp J; PhotoCure at [60]. In D & J Constructions Bryson J's comments were made in the context of a discussion concerning the protection of confidential information. The same is true of the comments made by Ipp J in Mallesons. In PhotoCure, Goldberg J said (at [60]) that, as against this concern, he had "to balance the application of relevant principles which accept that a lawyer, in certain circumstances, can change sides and act against a former client where the lawyer is able to establish that there is not a real risk of misuse of confidential information".

33 In Black, the New Zealand Court of Appeal dealt with the misuse of information that was not confidential in the strict sense of that word, in the context of an appeal against a declaration that a long time family solicitor should not act on behalf of the estate of a deceased member of the family in an action brought against it by another family member. Cooke P said (at 406):

" ... approaching the case by considering simply the danger of misuse of confidential information, I do not think that [the primary Judge] has been shown to have been wrong in his view that the practitioner ... is definitely disqualified on the ground that the reasonably informed person would not be satisfied that no use of confidential information would occur. Further, I would adopt another passage at p 48 in the Judge's reasons:

'Last, the lawyer (and particularly the family solicitor) gets to know personalities. He gets to know something, and often a good deal, of a former client's weakness, fears and reactions. It is as much information passed on as is verbal or written description. Like all information, it can be misused for another person. There could be cases, perhaps with a former client witness' credibility crucial, where such knowledge of personality inevitably acquired by virtue of the former solicitor/client relationship could amount to a real information consideration. There will be cases where a former client's very real fears that he will be cross-examined from a position of unfair superiority should be given due consideration.'

Whether that kind of consideration should be put exclusively under the heading of confidential information is in my view unimportant. As to those who may be allowed to represent parties to argue cases, the Courts have an inherent jurisdiction ... The jurisdiction extends to the propriety of a representative appearing in a particular case: it is not then a question of the right of practice generally ... but a question concerning what is needed or may be permitted to ensure in a particular case both justice and the appearance of justice."

34 Richardson J (at 408) considered that knowledge of personalities and relationships derived from a professional relationship may not be confidential information in a strict sense. However, he said that "it would not be unreasonable for a family member to feel chagrin and concern to find a lawyer who had built up knowledge of that kind was able consciously or unconsciously to draw on it when acting against that member of the family". He was satisfied (at 412) that reasonable members of the public knowing of the solicitor's association with the family, in that case, would consider that justice would not be seen to be done if, when dissension developed within the family, he took sides as counsel and acted against the plaintiff. He also considered (at 412) that:

" ... the inherent jurisdiction of the Court provides a more satisfactory basis for determining the question than the indirect and somewhat artificial development of a special rule, which treats knowledge of a client (as distinct from knowledge of his or her affairs) gained through a professional association as confidential information under the umbrella of protection of misuse of confidential information."

McKay J, in that case, also relied upon the inherent power of the court to control the conduct of proceedings before it as a sufficient justification for upholding the decision (at 417 - 420).

35 The courts have often remarked that the inherent supervisory jurisdiction in this respect is an exceptional one and that it should be exercised with circumspection and caution: Black at 406 per Cooke P; Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 at [34] per Bergin J; Kallinicos at [76] per Brereton J; Geveran Trading Co Ltd v Skjevesland [2002] EWCA Civ 1567; [2003] 1 WLR 912. This was also emphasised in Tottle Christensen (at [4] - [5]). In that case the court (Malcolm CJ, Murray and Anderson JJ) went on to say (at [6]):

"Whatever might be the ambit of the inherent jurisdiction of the Court, in our opinion it must encompass those cases where the representation of a litigant by solicitor and/or counsel may be seen objectively to involve a real risk of actual or apparent conflict of interest - the risk of conflict between a duty owed to the client of the solicitor or counsel and a duty owed to some other interest to be served in the litigation. Alternatively, there must, we think, viewed objectively, be seen to be a real need for an order preventing a solicitor or counsel from acting to imperil the due administration of justice and to protect the integrity of the judicial process. In both respects, the test adopted by the Court will, we think, be an objective one - the matter will be viewed from the perspective of a fair-minded, reasonably well-informed, disinterested bystander."

36 There are cases in which prosecutors of criminal proceedings have been restrained from acting. Prosecutors owe a duty to the court to act fairly. The court's ability to oversee this duty is important in order to enable it to ensure that the accused person has a fair trial and that the criminal justice system is properly administered: Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 at [56] - [59].

37 A recent illustration of this is provided by MG v The Queen [2007] NSWCCA 57. In that case the Court of Criminal Appeal in New South Wales restrained a lawyer from prosecuting a matter in circumstances in which she had made public comments concerning it in breach of the New South Wales Bar Rules and the guidelines of the Office of the Director of Public Prosecutions. The court referred (at [54]) to the overriding principle that a prosecutor has a duty to act fairly. It mentioned (at [83]) that, in an exceptional case, it might be necessary for the courts to intervene to ensure that public confidence in the criminal justice system is maintained. The court concluded (at [95]) that, because of the prosecutor's public statements (in the course of which she had made known her belief in the guilt of the accused), a reasonably informed fair-minded person would inevitably conclude that she might not discharge her obligations with appropriate fairness and detachment. Consequently, the court said (at [95]) that, in the "unusual circumstances" of the case, if the prosecutor was to prosecute the applicant at his trial, justice would not be seen to be done.

38 In Everingham v Ontario (1992) 88 DLR (4th) 755, the court emphasised (at 761) that the power to deny the right of audience to counsel in the interests of justice "does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached". The court said (at 761 - 762) that the issue was "whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor".

39 In R v Robinson, unreported; SCt of WA (Scott J); Library No 950240; 15 May 1995, the accused had been charged with a number of sexual offences against minors. Seventeen years previously, the prosecuting counsel had represented the accused in respect of a charge of rape of which the accused had been convicted. Scott J adjourned the trial until the Crown was able to appear by a different counsel. He said that it was readily appreciable that the instructions or information that the accused had given to the prosecutor as his then counsel might influence the course of the trial in at least two ways. The first of these was that "a decision by the accused as to whether or not he would give evidence may be influenced by the fact that he may be cross-examined by somebody who was once his lawyer and who has information which the law requires and acknowledges was confidential to his then counsel" (at 2). The second was that, while the prosecutor may have had little or no recollection of the previous trial, the accused was concerned about the possibility that revealing a particular piece of evidence, perhaps in the course of his testimony, might reveal something common to both trials and trigger an unconscious memory in the prosecutor (at 2 - 3). Scott J concluded that public policy required the adjournment of the trial because of the possibility that, in the course of it "something may emerge which may make [the prosecutor's] position untenable" (at 6). He stressed that his decision was largely based upon the fact that the two matters were "of almost the same character" and said that an application of this kind was unlikely to succeed where the charges were different in character (at 4). He also placed some reliance upon the fact that, as he saw the position, there were considerations that were peculiar to a sexual assault trial that did not apply to other cases in this respect.

40 The reverse situation occurred in Grimwade. There, a lawyer had been retained as counsel to prosecute the plaintiff in respect of criminal offences involving commercial dishonesty. The first trial in which he had prosecuted the plaintiff had been aborted. The second had been a trial of "exceptional and probably unexampled" length. The plaintiff had been convicted at that trial. However, in a subsequent appeal he was successful in having the conviction overturned. The Court of Criminal Appeal decided that a third trial should not be ordered and was critical of the conduct of the prosecution case during the second trial. Then, when related civil proceedings were brought against the plaintiff by a number of parties, the former prosecutor agreed to act against the plaintiff. On an application by the plaintiff, Mandie J restrained the lawyer from acting. He considered that a fair-minded observer would apprehend a real risk that the lawyer would be unable to appear and act with "that objectivity and detachment which the court expects of counsel appearing before it" (at 454). He also considered that there was a real risk that the lawyer would be unable to properly distinguish or avoid a conflict between his personal interests (the justification of his conduct of the prosecution) and his duty to his clients in the civil action (at 454). He also said that there was "a real and sensible risk of a lack of objectivity" on the part of the lawyer which "not only gives rise to an undue risk of unfairness or disadvantage to the plaintiff but gives rise to a substantial concern that a fair trial would not be had and hence gives rise to a concern for the integrity of the judicial process and the due administration of justice" (also at 454).

41 Of course, the present case is not one concerning the restraint of a solicitor from acting. Rather, the question is whether there has been a miscarriage of justice as a result of Mr Huggins' prosecution of the appellant. The principles that I have discussed appear to me nevertheless to be apposite. If there was no basis upon which the prosecutor might have been restrained from acting, it must follow that no miscarriage of justice resulted from the failure to restrain him from doing so. The trial would not have been unfair in those circumstances, and nor could it sensibly have been regarded by a fair-minded reasonably informed observer as unfair. Because I have rejected the contention that there was a breach of a continuing duty of loyalty, it remains only to be considered whether either of the other bases for restraint existed in such a way as to have led to a miscarriage.

42 It seems to me, first, that there was no confidential information held by the prosecutor as a result of his prior representation of the appellant that was in any sense relevant, or potentially relevant, to the prosecution. As to the prior convictions, any prosecutor would have been aware of them. They were on the public record. There was, in any event, nothing in the circumstances of those convictions which, in my opinion, had any bearing on the manner of prosecution, or defence, of the robbery charge. As to the balance of the information that has been referred to, I do not consider that the necessarily limited information provided by the appellant to Mr Huggins about his education, his work, his earnings and his family circumstances, or about the fact that he "was not a thief", was in any way relevant to the prosecution of the robbery charge. Indeed, I doubt that much of that information was confidential, in the traditional sense in which that word has been used in this context.

43 Nor, is there anything in the fact of the prior representation, or the knowledge of the appellant and his circumstances obtained by the prosecutor in the course of it, which rendered the trial in any sense unfair. There is no suggestion that Mr Huggins actually used confidential information (to the extent that there was any) in the course of cross-examining the appellant, or that he used any information at all that had previously been supplied to him for that purpose. His cross-examination of the appellant focused on inconsistencies between the appellant's evidence and his prior statements to the police and on inconsistencies between his evidence and the version of events offered by the police as regards his behaviour when first apprehended. He was also cross-examined as to why it was that he had left the area of the police post when he saw the police speaking to one of his co-offenders.

44 Counsel for the appellant urged upon us the proposition that, because Mr Huggins had acted for the appellant some two months prior to the commission of the robbery offence, any personal information that the appellant had provided to the prosecutor was likely to be relevant to his circumstances and motivations at the time of the offence. However, it is difficult to see why that should be so. The fact of the appellant's prior convictions (which, as I have said, were anyway on the public record) could not have been introduced into evidence save in exceptional circumstances that were not present. It is difficult to see how the circumstances of those prior offences, or of events surrounding them, could have been relevant to the prosecution of the robbery charge. Counsel for the appellant suggested that, in circumstances in which the appellant's credibility was in issue, the fact of his previous dishonesty in obtaining mobile telephone recharge cards, his prior association with a drug user (his co-offender in the fraud and stealing charges), the fact of his unemployment and his limited education were matters that could potentially have been relevant in cross-examination. However, none of these matters was made the subject of any cross-examination and it is difficult to see why any of them might have been thought to be relevant in the circumstances of this case. In any event, all of that information would have been available to any prosecutor who took the trouble to read the transcript of the prior sentencing proceedings.

45 Counsel for the appellant also mentioned that it had emerged, during the course of cross-examination of the appellant, that he had had two mobile telephones and "plenty" of money on him at the time of the alleged robbery and that he consequently had no need to steal anybody's telephone or wallet (transcript 179). However, this comment was volunteered by the appellant on the basis that it was exculpatory. It was not prompted by any question from Mr Huggins. Nor did Mr Huggins pursue any line of cross-examination in relation to it.

46 Next, counsel for the appellant argued that the mere fact of the appellant's additional nervousness as a result of his prior dealings with the prosecutor made the trial unfair. He also submitted that it would have been perceived by a fair-minded and informed member of the public to have been unfair for that reason.

47 It is difficult to see why the appellant should have been prejudiced simply because he was more nervous than would otherwise have been the case (if that was so), because of his prior dealings with the prosecutor. There is no suggestion that he answered any question incorrectly as a consequence of his nervousness or that he failed to volunteer any information which he might otherwise have volunteered. There is no concrete suggestion that his evidence was affected in any relevant way: see, in this respect, Bazley (1986) 21 A Crim R 19 at 25 - 26 per Young CJ (Marks and Southwell JJ agreeing).

48 I am also unable to see any reason why an ordinary fair-minded citizen, whether in the position of the appellant or observing the trial as a member of the public and having knowledge of all relevant circumstances, should have entertained any reasonable suspicion that justice had miscarried: R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 at [6], [9] per de Jersey CJ, at [15] - [16] per Davies JA, at [60] per Thomas JA. There is nothing that should have led such a person to believe that, were it not for the prior relationship between the prosecutor and the appellant, the trial would have been conducted differently in any way or that the appellant was prejudiced in any sense as a consequence of the prior relationship. A reading of the transcript of the appellant's evidence discloses nothing of concern in that respect. I am unable to accept the contention advanced by counsel for the appellant, that, regardless of his inability to point to any specific deficiencies in the appellant's evidence, it is enough for the appellant to assert that he had not given a "good account" of himself as a result of his increased nervousness. Some basis for that contention must be shown. As I have said, my reading of the transcript discloses none. I am also unable to accept that any fair-minded

and informed observer might have considered that the fact of the prior association, given its limited nature and circumstances, might have led to a sense of anxiety sufficient to prevent the appellant from giving a good (and honest) account of himself.

49 There remains the fact that the appellant owed Mr Huggins money. I am satisfied, in this respect, that this was not a matter which influenced the prosecutor. He was not even aware of it until such time as the jury had retired in order to consider their verdict. Nor do I consider that any fair-minded observer, knowing of the existence of the debt, would have entertained a reasonable apprehension that, as a consequence, the trial was somehow conducted differently. I have stressed that a reading of the transcript discloses nothing out of the ordinary. The prosecutor appears to have acted with fairness and moderation throughout the proceedings. While it may be the case that, being aware of the debt, the appellant might have had some concern that he would be more harshly treated by the prosecutor than would otherwise have been the case, there is nothing to suggest that his concern proved to have any substance and nor, as I have said, is there anything to suggest that any nervousness on the part of the appellant (over and above that which might anyway be expected) adversely impacted upon the evidence that he gave.

50 I am consequently not persuaded that there was any unfairness or that the trial miscarried in any way.

52 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with them. I would stress, however, that my conclusion that there has been no miscarriage of justice stems from the very limited previous contact between the prosecutor and the appellant in this case.

53 I would unhesitatingly accept that the conduct of a prosecution by counsel who had previously acted for an accused could well give rise to a miscarriage of justice. Even where no specific confidential information is relevant, and even where nothing in the transcript suggests that an accused has not been able to give a good account of himself, in my view, a trial would be unfair if the prosecutor were able to cross-examine from "a position of unfair superiority" (Black v Taylor [1993] 3 NZLR 403 at 406 per Cooke P; see also Yunghanns v Elfic Ltd, unreported; SCt of Vic; 3 July 1998).

54 However, whether there is such an unfairness depends upon the nature and degree of previous familiarity. It cannot arise from every former retainer, however brief, remote in time, or unrelated in subject matter.

55 In the present case, the prosecutor would have had almost no opportunity to learn anything of the appellant's personal circumstances, character, motivation, reaction to stress, and so on. Leaving aside the time spent in court in making the pleas in mitigation, the prosecutor seems to have spent less than one hour in conversation with the appellant. His failure to remember the appellant, and the appellant's initial inability to recognise him, emphasise the brevity of that previous connection.

56 EM HEENAN AJA: The background of the prosecution which led to the conviction of the appellant, and his present grounds for appeal, have been described in the reasons for decision of Steytler P which I have had the advantage of reading in draft and which I gratefully adopt.

57 The two grounds of appeal can effectively be combined into one proposition; namely, that the appellant was denied a fair trial because the prosecutor who appeared and conducted the trial had, on two previous occasions, been retained by, and appeared for, the appellant to make submissions in mitigation following the entry of pleas of guilty in the Court of Petty Sessions at Joondalup to 10 charges of fraud, three charges of stealing and three driving offences in October 2004. That was about 20 months before the appellant's trial before a Judge and jury in the District Court of Western Australia in June 2006 which led to the conviction now under appeal.

58 For this reason it was submitted that counsel for the prosecution at the appellant's recent trial was possessed of "confidential information" which could be potentially used to the detriment of the appellant at his trial, and that because of this the appellant had felt "psychologically disadvantaged" when confronted with a former counsel as his prosecutor and cross-examiner. This, it was said, could give rise to a reasonable apprehension that the prosecutor would make improper use of the knowledge gained from the previous relationship and that this reasonable apprehension or suspicion could tinge the perception of fairness of the overall trial process. This, so the submission went, was sufficient to create a miscarriage of justice and require the quashing of the conviction and a new trial. The submission for the appellant is that this should follow regardless of questions of whether or not the appellant was properly convicted on the merits. The submission relied upon

observations of the Full Court in Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467 at 489 - 490. See also Bazley (1986) 21 A Crim R 19; R v Robinson, unreported; SCt of WA (Scott J); Library No 950240; 15 May 1995 at 5; and Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446.

59 It would not be enough to support a conclusion that there had been a miscarriage of justice in a case such as the present, if there were no more than a possibility that there might have been misuse of confidential information or other exploitation of the fiduciary relationship previously existing between the prosecutor and the appellant during the period of the earlier retainer. Bazley (supra) is a case in point where (at 25 and 26) the Court of Criminal Appeal of Victoria decided that mere suspicion or apprehension of impropriety was insufficient, and that some proof of misuse of the position or of misconduct would be needed - such that the accused person is in fact prejudiced - before a miscarriage of justice could be found. Generally, with respect, I agree with these observations; although allowance must always be made for a case where the relationship between the parties is so close, or the nature of the confidential information is so significant, that an inference of probable communication of confidential information or of collateral advantage being taken because of the protected relationship is so great, that the mere possibility that it was or would be used, wittingly or unwittingly, should be enough. One example of very close relationships of this kind is provided in the decision of R v Batt [1996] Crim LR 910.

60 In the present case, it was not possible for the appellant to point to, or otherwise to identify, what confidential information had come into the possession of the prosecution which was, or which might potentially have been, misused in the course of the prosecution at the appellant's recent trial. The prosecutor, when retained by the appellant on the earlier occasions, had been given instructions to enter pleas of guilty to each of the charges in the Court of Petty Sessions, and had been provided with information to make a plea in mitigation in relation to all of them. He did this and the information which he presented was all given in open court and, therefore, was not confidential.

61 It is, of course, possible that there may have been other details, background or sensitive information provided to this counsel when he was retained by the appellant which was never disclosed and which was potentially discrediting, harmful, or of such a nature as to put the appellant in a position of disadvantage if faced by his former counsel as a prosecutor or cross-examiner. While the potentiality for this to occur in an abstract sense cannot be denied, there was no suggestion, still less any allegation, of the disclosure, or possession by the prosecutor, of any such additional, sensitive and confidential information in this instance. A scrutiny of the cross-examination conducted by counsel at the trial does not suggest, let alone reveal, that use had been made of any background information or previous knowledge in the course of the cross-examination or otherwise. There is simply no basis whatever to conclude that the prosecuting counsel at the appellant's trial actually misused any confidential information or in any way exploited the association which had existed during the previous retainer.

62 There is a passage in the judgment of Templeman J in Gugiatti v City of Stirling [2002] WASC 33 at [5]; [2002] WASC 33; (2002) 25 WAR 349, at 350 - 351, where it is pointed out that:

"It has been settled law for nearly a century that the mere fact that a solicitor has acted for a client in a particular matter does not of itself entitle the client to restrain the solicitor from acting against him in the same matter: see Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831. However, if a solicitor is possessed of information which is confidential to his client, the solicitor cannot be permitted to act against his client unless there is no risk of disclosure. The risk must be real, and not merely fanciful or theoretical: but it need not be substantial. That is the test established by the House of Lords in Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 226 at 236 - 237 per Lord Millett. The test was adopted by Steytler J in Newman v Phillips Fox (a firm) (1999) 21 WAR 309 at 322."

63 Steytler P has explained in his reasons for decision in this case that there is a line of authority which refers to the existence of a continuing "duty of loyalty" by a counsel or solicitor to a former client which may, in certain circumstances, endure after the termination of the retainer, or the relationship of solicitor and client, as the case may be. It is unnecessary in this case to determine the question of whether or not such a duty exists after the termination of the relationship between the former counsel or solicitor and the client, but because of the frequent recourse to the term "duty of loyalty" in this and similar contexts, it is necessary to emphasise that that eloquent, but elastic, term is not itself precise. The measure of the obligation upon the former counsel or solicitor should not be deduced from that description alone but, rather, from an examination of the principles on which courts have acted to regulate or restrict actual or anticipated conduct of former legal advisors.

64 To undertake this analysis first requires recognition that the conduct and obligations of solicitors or counsel in these cases may derive from one or more of a number of legal or equitable duties, or from considerations of public interest in the protection of the administration of justice. Different cases will involve the application of duties arising from different origins; although, in many of these cases, similar or concurrent obligations may exist simultaneously and overlap. The obligations and duties of the legal practitioner in this setting may derive wholly or in part from the terms of a contract, express or implied, between the former legal adviser and the client. Otherwise, they may arise independently of contract by reason of the fiduciary relationship which arises between solicitor and client or counsel and client. The relationship between the legal practitioner and the client is a fiduciary one, however, it may take on conditional dimensions: Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449.

65 Concurrently, with the obligations to the client, will be the practitioner's obligations to the court which have been described as an "overriding duty" by Mason J in Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 555 - 556, where the Chief Justice cited a passage from the judgment of Pollock J in Swinfen v Lord Chelmsford [1860] EngR 838; (1860) 5 H & N 890 at 921; [1860] EngR 838; 157 ER 1436 at 1449. This, as will be seen, is the primary obligation of the legal adviser. It fashions the obligation of the solicitor or counsel to the client and cannot be qualified or modified by any express or implied terms of any contract which, otherwise, would apply. So, for example, a client who engages a solicitor, in order to advance a fraud or some other illegal activity, does not have the benefit of any privilege or confidentiality and the solicitor concerned can be compelled to disclose information divulged to him or her if called upon to do so.

66 The much acknowledged obligation by a practitioner not unlawfully to disclose confidential information obtained from, or via, a client will usually be implied as a term of the contract of engagement: Prebble v Reeves [1910] VicLawRp 19; [1910] VLR 88 at 108. Similarly, a contract between a client and a solicitor will usually include an implied term obliging the solicitor to keep his client's affairs secret and not to disclose them to anyone without just cause: Parry-Jones v Law Society [1969] 1 Ch 1. In Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 29 (reversed on other grounds in Tottle Christensen v Westgold Resources NL [2003] WASCA 224), I observed that where such contractual obligations exist, it would generally be sufficient to determine the obligations of the parties with reference to the terms of their contract, rather than by having to resort to equitable principles: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VicRp 17; [1979] VR 167 at 190 - 191; although, there is authority for recourse to equitable principles even where they overlap with contractual obligations: Mense v Milenkovic [1973] VicRp 78; [1973] VR 784.

67 Even in the absence of an express or implied contract, there may be information obtained by a legal practitioner which is confidential to some third party who, by appropriate means, whether by injunctions or otherwise, can prevent disclosure or misuse of that information.

68 The protection against unauthorised use or disclosure of confidential information, not involving any breach of contract, tort or some fiduciary duty, is also now a recognised equitable jurisdiction of a court: Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414 at 438; and Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 50 - 51. This principle recognises that a recipient of confidential information may not take unfair advantage of it and may not make use of it to the prejudice of the person who supplied it without consent: Seager v Copydex Ltd [1967] 2 All ER 415 at 417. One consequence of this principle is that it will be a breach of duty by the recipient if the confidential information is used for any purpose other than that for which it was supplied: Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services & Health [1989] FCA 384; (1990) 22 FCR 73 (affirmed on appeal in Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services & Health [1991] FCA 150; (1991) 28 FCR 291).

69 This is not meant to be an exhaustive list of situations where such obligations on a legal practitioner may originate, but it is sufficient for this present case.

70 I addressed some of these issues in Holborow v Macdonald Rudder [2002] WASC 265. In the course of doing so, I observed that the power of a court to restrain a solicitor from acting because of an alleged conflict of interest is not limited to those instances in which the future action of the solicitor concerned might imperil confidences of the client to whom the solicitor previously acted. It is an ample power to supervise the conduct of legal practitioners, as officers of the court, to ensure that they do not act in any way contrary to their obligations to their former client. The broader scope of this power has frequently been referred to as ensuring "that the solicitor's duty of loyalty to the former client is respected, notwithstanding termination of retainer, and to uphold as a matter of public policy a special relationship of solicitor and client": McVeigh v Linen House Pty Ltd [1999] VSCA 138; [1999] 3 VR 394 per Batt JA at 398; and Wan v McDonald [1992] FCA 4; (1992) 33 FCR 491 per Burchett J at 512 - 513. Examples of this rationale for the intervention of a court are to be found in Clay v Karlson (1997) 17 WAR 493; Afkos Industries Pty Ltd v Pullinger Stewart (a firm) [2001] WASCA 372; Williamson v Nilant [2002] WASC 225; and Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501. Those cases include instances where there was a potential that the legal practitioner might be a witness in the case; where the subject matter of the litigation was likely to involve an evaluation of the conduct of the solicitor concerned and the efficacy of documents prepared by his firm; and, where a solicitor was acting for a liquidator in connection with the liquidator's investigations into the prior activities of an insolvent company where the solicitor had, prior to the insolvency, been acting for the company.

71 Clearly enough, in some of those cases, particularly those dealing with the protection of confidential information, it is appropriate to describe the obligation as a duty of loyalty by the solicitor to the client which continues after the termination of the professional relationship. However, this seems to be a broad means of describing the scope of the duties arising from the special relationship existing between legal advisers and clients. In National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 228 - 229, Gummow J said that "even among fiduciaries, solicitors stand in a special position". With respect, I adhere to the view which I expressed in Holborow v Macdonald Rudder (supra), that it is the existence of the compendious obligations of a fiduciary to act always in good faith towards the person to whom the duties are owed, to avoid conflicts of interest or of duty, as well as to provide the fullest of disclosure, which controls the situations which may arise when a solicitor may be asked to act against a former client. In my view, this approach fully accommodates the position that a solicitor must not adopt a "hostile" position to his former client, as explained by Malcolm CJ in Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467 at 489.

72 Significantly, however, this approach should also demonstrate that the "duty of loyalty" does not involve any connotation of partisanship or sympathy with the former client or any right of the former client to prevent the solicitor or counsel from acting against him in some other cause, not involving any encroachment on the solicitor's duty of good faith. It is not possible, nor would it be justifiable in the public interest, that by one act of engagement of a solicitor or counsel on a previous occasion, the client could achieve a position which would forever prevent the solicitor or counsel then engaged from acting against him in the future. This is why it is crucial, when any issue such as the present arises, to identify precisely what obligations towards the former client or to the court have been, or may be, breached or imperilled by the practitioner acting against the former client.

73 In Newman v Phillips Fox (a firm) [1999] WASC 171; (1999) 21 WAR 309 at 315 - 316, Steytler J explained that the court also possesses a jurisdiction over solicitors (and, I add, counsel), as its own officers, to ensure that the administration of justice is not brought into disrepute by their conduct and to ensure preservation of the objectivity and integrity of the trial process. His Honour cited the decision of Austin J in Oceanic Life Ltd v HIH Casualty & General Insurance Ltd [1999] NSWSC 292; (1999) 10 ANZ Ins Cas 61-438 at 74,978 for the proposition that, "[i]n the realm of conflicts of interest and conflicts of duty, the solicitor's duty to the court may not be much different from his or her fiduciary duties to the former or present clients. However, the duty of the court tends to be expressed in such a way as to emphasise the public interest in preserving confidence in the administration of justice, and therefore in the appearance as well as the reality of independence [of its officers]". This principle underlies the decisions in Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446 and Black v Taylor [1993] 3 NZLR 403.

74 Also, in Newman v Phillips Fox (a firm) (supra) at 315, Steytler J cited the speech of Lord Millett in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52; [1999] 2 AC 222 at 235 for the proposition that "where the court's intervention is sought by a former client the exercise of its jurisdiction cannot be based on any conflict of interest because, once the retainer has been terminated, the solicitor has no obligation, thereafter, to advance the interests of the client". There is no doubt that this proposition must be accepted because there is direct authority that, after the termination of the retainer, there is no obligation on a solicitor or counsel as a fiduciary to act positively in the best interests of the person to whom the duty of good faith might be owed: Pilmer v Duke Group Ltd (in liq) [2001] HCA 31; (2001) 207 CLR 165 at 195 - 197. See also Breen v Williams (1996) 186 CLR 71 at 113, where it was held that a fiduciary duty owed by a doctor to a patient did not extend to any obligation to provide the patient with copies of medical records held by the doctor.

75 It must be acknowledged that fiduciary relationships can be of different types, carrying different obligations, and that a test which might seem appropriate to determine whether a fiduciary obligation existed for one purpose might be quite inappropriate for another purpose: per Brennan CJ in Breen v Williams (supra) at 83, citing Gibbs CJ in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 69.

76 In my view, this accounts for the special care which is exercised by a court before restricting or controlling the conduct of a solicitor or counsel in situations where it is alleged that continued or proposed conduct by the legal adviser might imperil confidence in the administration of justice, be contrary to some sense of public expectation, or to a sense of "fairness". Accordingly, in Geveran Trading Co Ltd v Skjevesland [2002] EWCA Civ 1567; [2003] 1 All ER 1, a case where a debtor, against whom a bankruptcy petition had been presented, attempted to have counsel for the petitioner prohibited from acting because that counsel had some past social acquaintance with the debtor's wife which could give rise, so the litigant argued, to an impression that some special advantage had been obtained by counsel to the prejudice of the debtor, the application was dismissed by the English Court of Appeal. Arden LJ, speaking for the Court of Appeal, said, at 11:

"It is also well established that an advocate or other legal adviser who has acted for one party and has relevant confidential information may commit a breach of confidence, and be liable for an order restraining him from so acting, if he acts for another party against his former client unless he can show that there is no risk of disclosure (see the Prince Jefri case [[1992] 2 AC 222]).

We accept that the circumstances (other than those where he has relevant confidential information) where an advocate may be restrained by the court from acting as an advocate in litigation are likely to be very exceptional. However, such circumstances have occurred in the past. Thus, in R v Smith (Winston) (1975) 61 Cr App R 128, a pupil barrister met the accused and discussed his case with him and then subsequently appeared behind a prosecuting counsel at the accused's trial. The Court of Appeal assumed that no information which the pupil had obtained from the accused was divulged to the prosecution. Nevertheless, this court held that it was impossible to say that in the circumstances justice had been seen to be done. Accordingly, the conviction was set aside. Likewise in R v Batt [1996] Crim LR 910 ... the reason why the Court of Appeal considered that it was generally undesirable for a husband or wife or other cohabiting partners to appear as advocates against each other in a contested criminal matter was because -

'to do so may give rise to an apprehension, however unjustified that may be in any given case, such as the present, that the proper conduct of the case may have been in some way affected by that person or relationship.' "

77 Cases in which counsel have been prevented from acting because of prior hostile relationships with the client, or where convictions have been quashed because of undisclosed relationships, have been examined in Grimwade v Meagher (supra) and in Bazley (supra). In both those cases the situation was that there was reason to believe that the prior relationship could be exploited in a way which would be prejudicial to the former client, or that undisclosed relationships between counsel may shake confidence in the impartiality of the trial process.

78 There can be no suggestion in the present case of any reason to doubt the impartiality of the prosecuting counsel, or to doubt that the counsel exercised his responsibilities in a proper and independent professional manner. In Grimwade v Meagher (supra), there was no way of guarding against threatened misuse of a previous relationship without preventing the counsel concerned from acting at the new trial, and the relief granted there was, in a real sense, of a quia timet variety. That situation does not present here. The trial has run its course and the conduct of counsel has been fully scrutinised in the course of this appeal as explained by Steytler P. Consequently, the Court is not now examining the situation prospectively against the risk that such impropriety might materialise. Rather, it has been possible to look at the conduct of the trial retrospectively in order to scrutinise whether or not any impropriety did occur. None has been identified or suggested, and the merest possibility that this might have happened, when all the indications are that it did not, means that no miscarriage of justice has been established.

ISMAIL-ZAI -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 150 (17 July 2007)

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ISMAIL-ZAI -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 150 (17 July 2007)

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Cases Cited (25)