Jimenez v Watson

judgment

1. MACFARLAN JA: I agree with White JA that the High Court decisions in Giannarelli v Wraith, D'Orta-Ekenaike and Attwells to which he refers indicate that the respondent in the present case is protected by advocate's immunity. I therefore agree that the application for leave to appeal should be dismissed with costs
2. WHITE JA: The applicant sued his former solicitor in the District Court for negligence in the provision of legal services in connection with his prosecution on a charge of possession of child pornography. The applicant was ultimately acquitted of the charge by the Court of Criminal Appeal after a referral of the matter to that Court by Garling J, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635; Jimenez v R [2017] NSWCCA 1).
3. The applicant was initially convicted of the charge in the Local Court. An appeal against conviction to the District Court was dismissed. The applicant says that his conviction caused him serious loss. He deposed that his name was entered on the Sex Offenders Register. He deposed that he was a director of an accredited bus and coach transport company that provided transport to thousands of school children weekly and that as a result of his conviction he lost income and also lost his relationship with his then fiancée as well as other friendships.
4. The offence of which the applicant was convicted was an offence against s 91H(2) of the Crimes Act 1900. For the purposes of that section "child pornography" meant material depicting or describing in a manner that would cause offence to reasonable persons, a person who was or appeared to be a child engaged in sexual activity, or a sexual context, or as a victim of physical abuse. For the purposes of s 91H(2) section, "child" meant a person under the age of 16 years.
5. The applicant said that his solicitor, the respondent, told him that the relevant age for a person to be a child for the purposes of the offence was that the person be under the age of 18 years. Contrary to the applicant's submissions in this court, that is an allegation of the giving of negligent advice out of court in connection with the conduct of proceedings in court.
6. The relevant facts are summarised by the primary judge (Jimenez v Watson [2020] NSWDC 419 (P. Taylor SC DCJ). His Honour said: "3. On 2 June 2010 Mr Jimenez was arrested and subsequently charged with an offence of possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), and using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth). 4. Mr Watson, as Mr Jimenez's solicitor, successfully made representations to the Commonwealth Director of Public Prosecutions that the Commonwealth offence be withdrawn and the State offence be dealt with summarily. 5. Among the differences between the State and Commonwealth offences was that under the Commonwealth offence "child abuse material" was defined, in part, as "material that depicts a person...who...is, or appears to be, under 18 years of age" whereas for the State offence a "child" was defined to be "a person who is under the age of 16 years". Mr Watson was apparently unaware of this lower age applicable to the State offence, and Mr Jimenez was not advised of the different age defining a child. Mr Jimenez pleaded guilty to the State offence. 6. At the sentencing hearing on 10 January 2011, the prosecution, the magistrate, and Mr Watson all acted upon a belief that the relevant age was "under 18 years". Mr Watson sought an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 that there be no conviction recorded, but the magistrate convicted Mr Jimenez and imposed a fine of $6,600. 7. On appeal to this Court, Mr Jimenez sought leave to change his plea. On 5 September 2011 the trial judge refused that application on the basis that he was "satisfied beyond reasonable doubt that the images were clearly of a girl well below the age of 18". Thus, the mistake concerning the relevant age of a child persisted. 8. In about 2016, Mr Jimenez made an application under s 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry into his offence. The Attorney-General accepted on that hearing that the "erroneous approach may itself be sufficient to give rise to a question or doubt" as to Mr Jimenez's guilt, and although that matter could have been resolved by the judge looking at the images, they were no longer available. 9. The matter was referred to the Court of Criminal Appeal, which in 2017 quashed the conviction stating: "It seems certain that the appellant was advised, for the purposes of the proceedings and, in particular, the plea, that the offence was committed if the images were of a child aged less than 18 years. The admission of fact, therefore, actually implicit in his plea was that the child was under the age of 18 years. In my view, the plea could not be regarded as an admission that the child was under the age of 16 years. It must follow 'that the plea of guilty was not really attributable to a genuine consciousness of guilt': R v Boag (1994) 73 A Crim R 35 at [2]; R v Thalari [2009] NSWCCA 170. The submissions of the Crown, therefore, to the effect that the appellant had in substance otherwise admitted that the images were those of a girl under the age of 16 years, is not to the point.""
7. In Jimenez v R, Adams J said: "13…. The Magistrate viewed the images and made the assessment that the young person "would be between the ages of 12 and 16, early to mid-teenage years". This statement appears to contemplate at least the reasonable possibility that the person was aged 16 years and, hence, the offence charged had not been committed. The appellant's solicitor responded that, he did not cavil with the assessment adding, (mistakenly), "whether it be 16 or less is perhaps ultimately of little moment".
8. A verdict of acquittal was entered rather than an order for a new trial, because by the time the matter reached the Court of Criminal Appeal, the relevant device containing the images the subject of the charge had been mislaid either by the court, by the police or possibly by the Office of the Commonwealth Director of Public Prosecutions (Jiminez v R at [10]). The Crown acknowledged that given the loss of the primary material, it was virtually inevitable that the charge would be withdrawn if the matter were remitted to the Local Court (Jiminez v R at [17] and [20]).
9. By statement of claim filed in the District Court on 15 May 2019, the applicant claimed damages from his former solicitor for breach of contract or in tort for not exercising reasonable, care, diligence and skill in the provision of legal services. The particulars of that allegation were that the solicitor did not advise him that a "child" for the purposes of the definition of "child abuse material" (semble "child pornography") was a person who was or appeared to be under the age of 16 years rather than 18 years.
10. The primary judge recorded that the applicant submitted that his solicitor's negligence cost him the opportunity to submit to the prosecuting authority that the proceedings should be discontinued in the light of the requirement that the images be of a child under the age of 16 and led him to enter the plea of guilty from which he suffered serious adverse consequences (at [10]).
11. The respondent did not file a defence but instead filed a notice of motion seeking summary dismissal of the claim. It was accepted that if a defence were filed, the respondent would have pleaded a defence of advocate's immunity.
12. The primary judge carefully considered the reasoning of the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16, D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 and Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 and determined that the applicant's claim was clearly barred by the principle of advocate's immunity. His Honour noted that the applicant did not assert that Giannarelli v Wraith and D'Orta-Ekenaike were distinguishable. Rather it was argued that the immunity provided for in those cases had been narrowed by Attwells in a way that allowed the present claim (at [15]). The primary judge concluded that the applicant's plea of guilty given on a false basis (that is, on his and his lawyer's assumption that the offence related to the possession of images of a person under 18 years rather than under 16 years) did not distinguish the applicant's situation from the position of the appellant in D'Orta-Ekenaike which decision had been confirmed by the High Court in Attwells. The primary judge applied D'Orta-Ekenaike in concluding that the solicitor was entitled to advocate's immunity (at [18]).
13. The primary judge said: "19. Ultimately, Mr Jimenez submitted that his proceedings did not challenge the judicial determination, but rather challenged the failure of Mr Watson to make effective submissions to the prosecuting authority that the State offence could not be maintained. Yet the damage claimed is that consequent upon the guilty plea, and only if the guilty plea was set aside could Mr Jimenez maintain the claim. It is sufficient to enliven the immunity that the conduct or advice of Mr Watson was intimately connected with the plea, even if it was also connected with the exercise of prosecutorial discretion. 20. Arguments may exist that the negligent avoidance of a criminal trial by a plea is in some relevant way analogous to the negligent avoidance of a civil trial by an unfavourable settlement, the latter being found in Attwells to fall outside the immunity. But the analogy has not found favour with the High Court. The Court has drawn a bright line distinction between faulty advice leading to a guilty plea and faulty advice leading to a settlement of civil proceedings. Only the first is within the immunity. If that immunity is to be narrowed, it is not open to this Court to do it, in the face of the repeated endorsement in Attwells and Kendirjian v Lepore of the decisions in Giannarelli and D'Orta-Ekenaike."
14. In Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 , Kirby P said (at 5) that it is usually better to consider the viability of a cause of action when the facts have been ascertained: "testimony gives colour and context to the application and development of legal principle." In D'Orta-Ekenaike, his Honour repeated the same sentiment (at [228]-[229] 74, 75). But in D'Orta-Ekenaike Kirby J was in dissent. In D'Orta-Ekenaike, the scope of advocate's immunity was determined on an application for summary dismissal. In Attwells and in Giannarelli v Wraith, the question of the availability of advocate's immunity was decided as a separate question.
15. The primary judge said that there was no factual dispute that could affect the application of the immunity and there was therefore no reason to allow the proceedings to go forward to trial ([21]). The applicant did not point to any factual dispute or other reason to suggest that this was erroneous.
16. In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J said at [25]: "Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success."
17. The same principle applies to an application for summary dismissal (Ea v Diaconu [2020] NSWCA 127).
18. In Attwells, French CJ, Kiefel, Bell, Gageler, and Keane JJ said that D'Orta-Ekenaike established a clear basis in principle for the existence of the immunity. Their Honours said: 34. To speak of the exercise of judicial power to quell controversies as an aspect of government is to make it clear that the immunity is not justified by a general concern that disputes should be brought to an end, but by the specific concern that once a controversy has been finally resolved by the exercise of the judicial power of the State, the controversy should not be reopened by a collateral attack which seeks to demonstrate that that judicial determination was wrong. Their Honours [in D'Orta-Ekenaike] said: "[T]he central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society." 35. Their Honours explained that, where a final order has been made resolving litigation, a claim that "but for the advocate's conduct, there would have been a different result" is objectionable as a matter of public policy. That is because the consequences of the decision about which the claimant wishes to complain are "consequences flowing from ... a lawful result ... lawfully reached. "The advocate's immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully. … 52. …The advocate's immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack. The operation of the immunity may incidentally result in lawyers enjoying a degree of privilege in terms of their accountability for the performance of their professional obligations. But this incidental operation is a consequence of, and not the reason for, the immunity. Because this incidental operation of the immunity comes at the expense of equality before the law, the inroad of the immunity upon this important aspect of the rule of law is not to be expanded simply because some social purpose, other than ensuring the certainty and finality of decisions, might arguably be advanced thereby.
19. The public interest in the finality and certainty of judicial decisions both provided the rationale for continued recognition of advocate's immunity and determined the scope of that immunity (at [37]). The High Court held that the immunity did not extend to acts or advice that did not lead to a judicial determination but to a settlement (at [38], [46], [54], [59].)
20. In Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13, the majority of the High Court held, following Attwells, that advocate's immunity did not attach to advice not to accept a settlement offer, just as it did not apply to advice to compromise.
21. In Attwells, the plurality explained the distinction between an advice giving rise to a compromise to a civil suit and advice leading to the entry into a plea of guilty. The plurality accepted that: "43. …negligent advice to plead guilty, as had been allegedly given in D'Orta, when accepted by the client, does affect the determination of the case by the court. The court cannot proceed to conclude its function until a conviction is recorded. In D'Orta, McHugh J explained: "A decision about a plea of guilty cannot be described other than as intimately connected with the conduct of a criminal cause. It is a decision made preliminary to the hearing of a charge which affects the conduct of the accused's matter before the court. ... The connection of a plea of guilty at committal with the conduct of a criminal matter is intimately connected with the hearing of that matter because the timing of the plea affects the sentence imposed, in particular, whether the plea was entered at the first reasonable opportunity." 44. In addition, the judicial function is squarely engaged in determining whether to accept a plea of guilty. A court may not accept the plea of guilty unless it is satisfied that it is freely made by the accused."
22. The applicant submitted that he did not receive "advice" from his solicitor. Rather, he said that in answer to a specific question the solicitor wrongly told him that the relevant age of a child for the purposes of the offence was that the child be or appear to be under the age of 18. As I understood the submission, the applicant sought to distinguish between a statement of that kind, which was simply a wrong statement of law, and guidance as to the course the client was recommended to take, such as was the subject of the alleged advice in D'Orta.
23. The distinction that the applicant sought to draw is not arguable. The statement that the solicitor apparently made about the ingredient of the offence was clearly advice given about the law and it was, on the applicant's own case, central to his decision to plead guilty. However the statement be characterised, it involved the provision of legal services which moved the case when it was in the Local Court and the District Court to a judicial determination (Attwells at [39] and [43]).
24. On a proper analysis, the applicant's claim for damages would be for the loss of a chance of acquittal, or the loss of a chance of persuading the Director of Public Prosecutions or the police not to pursue the charge, to which the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 at 639-640, 643; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4; and Tabet v Gett (2010) 240 CLR 537 [2010] HCA 12 at 585, [136]; Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 at [19], [100] apply.
25. But framing the claim as one of loss of chance does not thereby avoid the concern about the finality and certainty of judgments. As counsel for the respondent submitted in argument: One doesn't avoid the public policy that underpins the immunity by, as it were, softening the challenge to finality by saying they had a chance of avoiding whatever the outcome was in Court.
26. It may be asked, how is the finality and certainty of judicial decision-making called into question when the judicial decisions which the applicant contends caused him loss, and for which he claims damages, have already been set aside by the Court of Criminal Appeal? The final judicial determination of the prosecution was that the applicant's conviction was quashed and he was acquitted of the charge.
27. The respondent submitted that as he was not a party to the criminal proceedings, it would be open to him to contend at trial that even if correct advice had been given the applicant should or could have been convicted.
28. A similar argument was advanced by the unsuccessful respondents in Attwells and in Kendirjian v Lepore. They submitted that if a client accepted advice not to settle and the matter proceeded to judgment which was less advantageous than the rejected offer, then it would be open to the lawyer in defending the action for damages for negligent advice to argue that his or her advice was correct and the judgment was wrong. The High Court by majority rejected that submission (Attwells 25, at [51]; Kendirjian v Lepore 287, at [34]).
29. It may be that Attwells and Kendirjian v Lepore would not necessarily preclude the respondent from challenging the correctness of the final decision of the Court of Criminal Appeal acquitting the applicant.
30. It is arguable that in Attwells the majority proceeded on the basis that on the facts in that case, and in what was assumed to be most cases, a challenge to a lawyer's advice that gave rise to a disadvantageous compromise, would not put in issue the correctness of the judgment (at [51]).
31. Likewise it is arguable that in Kendirjian v Lepore the majority proceeded on the same basis (at [34]).
32. It is also arguable that although the Crown would be precluded from challenging the correctness of the acquittal (Rogers v The Queen (1994) 181 CLR 251 at 273-4; [1994] HCA 42; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [53]-[59], 625-626; D'Orta at [77], 29) the respondent would not be so precluded.
33. Nonetheless, for the purposes of this leave application it should be assumed that in a trial for damages for negligent advice leading to the applicant's conviction, the respondent could not contend that even if correct advice had been given the applicant would or might have been convicted. That is, it should be assumed that the respondent could not dispute the correctness of the ultimate decision of the Court of Criminal Appeal that acquitted the applicant.
34. It may seem counterintuitive that as advocate's immunity is justified by the public interest in the finality and certainty of judicial decisions which should not be reopened by a collateral attack that seeks to demonstrate that the judicial determination was wrong (Attwells at [34]), it should apply if the plaintiff does not and the defendant could not attack the final decision.
35. But that was the case in Giannarelli v Wraith and in D'Orta-Ekenaike. In Giannarelli v Wraith, the plaintiffs sued their barristers who appeared for them in criminal proceedings which led to their conviction on the basis of their alleged failure to advise that evidence upon which the prosecution was founded (being the evidence given in a Royal Commission) was inadmissible and on the basis of their alleged failure to object to the tender of that evidence. The plaintiffs were convicted at trial. Their convictions were upheld on appeal to the Supreme Court of Victoria, but quashed in the High Court. It would have been no part of the plaintiffs' case that their initial convictions were not lawful. Nonetheless, the High Court held that the barristers were entitled to advocate's immunity for work done in court or work done out of court which led to a decision affecting the conduct of the case in court.
36. In D'Orta-Ekenaike, the plaintiff initially pleaded guilty to a charge of rape at a committal hearing but later changed his plea to a plea of not guilty before his trial. He was convicted after his first trial but his conviction was overturned on appeal on the basis that the instructions given to the jury by the trial judge concerning the guilty plea were inadequate. At the second trial, the trial judge ruled the guilty plea to be inadmissible and he was acquitted. The plaintiff sued his lawyers for alleged negligence in relation to advice allegedly given that led to his entering the guilty plea which, it was alleged, caused his loss of liberty during the period between his conviction at the first trial and the quashing of that conviction and loss of income (D'Orta-Ekenaike at 2-3).
37. In neither Giannarelli v Wraith nor D'Orta-Ekenaike was the immunity explained on the basis that the lawyers could defend the claims in negligence by challenging the acquittals.
38. Although the rationale for advocate's immunity as explained in Attwells is based on the need to preserve the finality of judicial decisions from collateral attack, in Attwells the High Court did not query the result of either Giannarelli v Wraith or D'Orta-Ekenaike.
39. As in the present case, in D'Orta-Ekenaike and in Giannarelli v Wraith the plaintiffs did not impugn the final determination of the criminal proceedings. Nor did they challenge the lawfulness of the initial convictions. Rather they claimed that their initial convictions were due to the negligent provision of legal services by their lawyers.
40. In D'Orta-Ekenaike the plurality stated (at [80]) that cases in which a challenge is made to an intermediate result can be seen to be exceptional and would require the intermediate result to be set aside on appeal (at [80] and [81]). The plurality said: "81. ... the grounds on which an intermediate result is set aside may be unrelated to what is now alleged to have been the advocate's negligent conduct. 82. Incompetence of counsel is not a separate ground of appeal. As was pointed out in TKWJ v The Queen, the relevant question on appeal in a criminal matter will be whether there was a miscarriage of justice. In general, then, if an intermediate result is set aside, it will be for reasons unconnected or, at best, only indirectly connected, with the client's contention that the advocate was negligent. It follows, therefore, that the class of cases in which an intermediate result would be open to challenge not only would be exceptional, in the sense of standing apart from challenges to final decisions, but also would be a class of case whose membership would depend upon the application of criteria unconnected with what, for present purposes, is the central focus of debate, namely the alleged negligence of the advocate. By this stage of the argument, in which attention is directed solely to exceptional cases, the proposition that for every wrong there should be a remedy has become too attenuated to be of any relevant application. Especially is that so when the very existence of the relevant exceptional case depends for the most part upon considerations that are irrelevant to the wrong that is to be remedied. If final results cannot be challenged, intermediate results should not be treated differently."
41. The applicant can say that even if "in general" an intermediate result is set aside for reasons unconnected with, or only indirectly connected with an advocate's negligence, that is not so in the present case. But nor was that necessarily so in Giannarelli v Wraith and D'Orta-Ekenaike. The plurality in D'Orta-Ekenaike was not addressing Giannarelli v Wraith, nor the alleged facts of D'Orta-Ekenaike, but a matter of policy. The policy, as identified by their Honours, was that cases challenging an intermediate result would generally depend upon the application of criteria unconnected with the alleged negligence of the advocate. Their Honours evidently accepted that not all cases would fall within their reasoning. In the penultimate sentence in para [82] quoted above their Honours stated that it would only be "for the most part" that a person wrongly convicted, whose conviction was ultimately quashed, could not say that the initial conviction was due to the negligence of his or her lawyers.
42. Nonetheless the High Court did not leave it open to the plaintiff to seek to establish that his initial conviction was due to his lawyer's negligence. Rather the High Court determined that intermediate results should not be treated differently from final results.
43. The High Court in Attwells did not disapprove of this reasoning. The reasoning is binding on this court. It follows that no purpose would be served in granting leave to appeal
44. For these reasons I propose that the application for leave to appeal be dismissed with costs.

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