BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Vocational regulation - Legal practitioners - Professional misconduct - Whether practitioner knowingly misled the Magistrates Court by stating to the Court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her - Whether practitioner was consistently discourteous and offensive to a Magistrate during a hearing - Whether practitioner sent emails to a police officer that were offensive and discourteous - Whether practitioner sent an email to a police officer that was offensive, discourteous, and threatening - Whether practitioner behaved in a discourteous and abusive manner to a security supervisor at the Central Law Courts building

Criminal Investigation Act 2006 (WA), s 117(1), s 120(1), s 120(2)

Criminal Procedure Act 2004 (WA), s 35, s 42, s 61, s 95

Legal Profession Act 1987 (NSW), s 127(2)

Legal Profession Act 2008 (WA), s 402, s 403, s 410, s 413, s 414(1), s 414(3), s 428(1), s 438(1), s 442, s 622(1), Pt 13

State Administrative Tribunal Act 2004 (WA), s 60(2)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Chin v Legal Practice Board of Western Australia [2011] WASCA 110

Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56

Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163

Legal Practitioners Complaints Committee and Segler [2009] WASAT 205

Legal Profession Complaints Committee and Caine [2010] WASAT 178

Legal Profession Complaints Committee and in de Braekt [2011] WASAT 1

N v K [2009] NZLCRO 1

New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85

S v J [2009] NZLCRO 3

Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202

1 The Legal Profession Complaints Committee brought professional disciplinary proceedings against Ms Megan Maree in de Braekt, a legal practitioner, alleging that Ms in de Braekt engaged in professional misconduct by:

1. knowingly, or alternatively recklessly, misleading the Magistrates Court on 4 June 2009 and 6 July 2009 by stating to the court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her;
2. being persistently discourteous and offensive to Magistrate Woods during a hearing in the Magistrates Court on 4 June 2009;

1. sending emails to Detective Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous;

1. sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and
2. behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on or about 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice.

2 The Tribunal found that Ms in de Braekt is guilty of professional misconduct in each of these respects. In relation to allegation (a), the Tribunal found that Ms in de Braekt misled the Court intentionally.

3 Allegation (a) turned largely on the credibility of three witnesses, namely, Constable Sharon Squire, Senior Constable Rachel Neas and Ms in de Braekt. The Tribunal found Constable Squire and Senior Constable Neas to be honest, impressive and impartial witnesses, with a distinct recollection of the disclosure of documents, including colour digiboards (photoboards enabling a witness to make an identification without an identification parade), to Ms in de Braekt. The Tribunal, therefore, accepted the police officers' evidence that colour digiboards relating to the prosecution of Ms in de Braekt's client were served on Ms in de Braekt, by leaving them in the locked post box of her office on 26 May 2009 and 25 June 2009 and by sending them to her by registered post on 27 May 2009 and 25 June 2009. As the Tribunal accepted the police officers' evidence, and as, on Ms in de Braekt's evidence, there was no possibility that disclosure documents placed into the post box of her office would have gone missing, the Tribunal did not accept Ms in de Braekt's denial of having received the colour digiboards. Furthermore, in light of the Tribunal's findings in relation to aspects of Ms in de Braekt's evidence, the Tribunal expressed significant doubts as to her truthfulness and credibility. The Tribunal found that Ms in de Braekt knowingly and intentionally misled the Magistrates Court on 4 June 2009 and on 6 July 2009 by stating to the court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her, and is therefore guilty of professional misconduct.

4 In relation to allegation (b), after Ms in de Braekt had completed her submissions and Magistrate Woods was about to give a ruling on an adjournment application, Ms in de Braekt persistently interrupted her Honour five times, each time demanding to 'finish' her submissions in a belligerent tone. On the first four occasions, her Honour directed Ms in de Braekt to 'have a seat' (at the Bar table). On the fifth occasion, her Honour directed Ms in de Braekt to 'have a seat at the back of the court' and stood the matter down. Rather than complying with her Honour's direction, and although the matter had been stood down, Ms in de Braekt then made an entirely unfounded allegation of actual bias against her Honour.

5 The Tribunal found that Ms in de Braekt's persistently discourteous and offensive conduct in court constituted professional misconduct. While the Tribunal recognised counsel's duty to advocate fearlessly for their client, especially for a client in custody, as an officer of the court concerned in the administration of justice, counsel has an overriding duty to the court, to the standards of the legal profession and to the public. Ms in de Braekt's conduct in court would be regarded as disgraceful or dishonourable by practitioners of good repute and competence.

6 In relation to allegation (c), Ms in de Braekt sent a series of six emails, over a period of about two weeks, to Detective Andrew Broadley, the tone and content of which was so grossly offensive and discourteous as to constitute professional misconduct. In his emails to Ms in de Braekt, the officer showed courtesy and appropriate regard for the protection of confidential material. Ms in de Braekt's responsive emails included the following statements:

• Just because you are a Police officer does not mean you can make up your own laws & impose them on other people.
• Police aren't above the law, Detective Broadley.
• So do your job in accordance with the law & stop attempting to bully me into doing things I am not legally obliged to do, & will not do.
• You do remember the law, don't you?
• Do you want me to have to explain your ridiculous approach to the Court?
• Am I going to have to make a complaint about you in order to have that DVD sent to me?
• It would seem you're not used to a Lawyer standing up against your bullying & unlawful attempts to impose unlawful conditions on the provision of accused's VROI's.
• You just don't get it do you[?]
• Have you not ever posted anything before Detective Broadley? and
• You need to realise Detective Broadley that just because you are a Police Officer does not mean you have limitless powers, nor does it mean that you have the lawful ability to change, alter or add to laws in any way that suits your fancy & enables you to 'get your own way'.

7 In relation to allegation (d), Ms in de Braekt sent an email to Detective Inspector Paul La Spina which was significantly discourteous and offensive and included the following statements:

What a load of absolute rubbish!

He hasn't made any efforts to serve the materials on me.

It would also appear that you don't understand the law either.

The Police can't require me to adhere to any of their 'policies or practices,' or whims.

8 The email to Detective Inspector La Spina concluded with the following threat:

I look forward to cross-examining you sometime in the future, in a trial.

9 The nature of the threat, which was plain from Ms in de Braekt's words, was that she would be in a position of power over Detective Inspector La Spina, because she was a lawyer and he would be a witness subject to her cross­examination. The Tribunal found that the combination of the tone and content of Ms in de Braekt's email being so significantly discourteous and offensive to a senior police officer, and her threat to him, were such that Ms in de Braekt's conduct constituted professional misconduct.

10 Allegation (e) ultimately turned on the credibility of Mr Kanapathy, two other witnesses who were present at the incident in question, and Ms in de Braekt. The Tribunal found that Mr Kanapathy, who was subjected to intense and protracted cross-examination by Ms in de Braekt, gave truthful evidence and was an honest and credible witness. Furthermore, his evidence was materially corroborated by two other witnesses, one of whom was called by Ms in de Braekt, and was consistent with an incident report Mr Kanapathy prepared within 30 ­ 40 minutes of the events in issue. Where there was a difference between the evidence of Mr Kanapathy and Ms in de Braekt, the Tribunal preferred the evidence of Mr Kanapathy, both because he was an honest and credible witness, with an actual recollection of the events, and because Ms in de Braekt gave evidence on particular matters which the Tribunal found to be untruthful and which significantly reduced her credibility more broadly.

11 The Tribunal found that Ms in de Braekt, while visiting the Central Law Courts in the course of carrying out her legal practice, behaved in a discourteous and abusive manner to Mr Kanapathy by:

• saying words to the effect, 'I know you're from Singapore, go back to your country, we don't need people like you here, you prick';
• calling Mr Kanapathy a 'Singaporean prick' on one occasion;
• calling Mr Kanapathy 'a prick' on approximately six occasions;
• making a comment to the effect that Mr Kanapathy has 'short man's syndrome' on two occasions; and
• calling Mr Kanapathy a 'short prick' on one occasion.

12 The Tribunal found that Ms in de Braekt's extraordinary display of discourtesy and abusive conduct to a member of the court security staff compromised not only the good standing of the legal profession, but also the important relationship between the legal profession and security staff in courts and tribunals. Ms in de Braekt's conduct therefore constituted professional misconduct.

13 The Tribunal required the parties to file submissions in relation to penalty and costs and directed, subject to any further order, that these remaining issues are to be determined entirely on the documents.

14 The Legal Profession Complaints Committee (Committee) has brought this proceeding against Ms Megan Maree in de Braekt, a legal practitioner, pursuant to 438(1) of the Legal Profession Act 2008 (WA) (LP Act), alleging that Ms in de Braekt has engaged in professional misconduct in five respects. The Committee alleges that Ms in de Braekt engaged in professional misconduct by:

1. knowingly, or alternatively recklessly, misleading the Magistrates Court on 4 June 2009 and 6 July 2009 by stating to the court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her;
2. being persistently discourteous and offensive to Magistrate Woods during a hearing in the Magistrates Court on 4 June 2009;

1. sending emails to Detective Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous;

1. sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and
2. behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on or about 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice.

15 The Tribunal will address each of these allegations in turn after referring to the legal framework and principles which are applicable to these proceedings.

16 Section 401 of the LP Act provides that the purposes of Pt 13 of that Act, which is entitled 'Complaints and discipline', are as follows:

(a) to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

(b) to promote and enforce the professional standards, competence and honesty of the legal profession;

(c) to provide a means of redress for complaints about lawyers.

17 Section 402 and s 403 of the LP Act provide inclusive definitions of the key concepts of 'unsatisfactory professional conduct' and 'professional misconduct'. Section 402 of the LP Act states as follows:

For the purposes of this Act ­

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

19 Section 410 of the LP Act enables a complaint to be made to the Committee about the conduct of an Australian legal practitioner to which Pt 13 of the Act applies. Section 413 of the LP Act relevantly requires the Committee to give written notice of a complaint to the practitioner. Section 414(1) of the LP Act enables a practitioner about whom a complaint is made to make submissions to the Committee, and s 414(3) of the LP Act requires the Committee to consider the practitioner's submissions in deciding what action is to be taken in relation to the complaint.

20 Section 428(1) of the LP Act enables the Committee to refer a matter to the Tribunal if the Committee determines that the matter should be heard by the Tribunal. Section 438(1) of the LP Act confers jurisdiction on the Tribunal to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct. Section 442 of the LP Act provides that the Tribunal may find a person guilty of unsatisfactory professional conduct even though the referral by the Committee alleged professional misconduct.

21 As the Tribunal held in Legal Practitioners Complaints Committee and Segler [2009] WASAT 205 at [97], in relation to the definition of 'professional misconduct' in s 403 of the LP Act:

The use of the word 'includes' in the definition in s 403 of the 2008 Act suggests that (a) and (b) are intended to be examples of conduct which will constitute 'professional misconduct' and are not intended to be exhaustive of what constitutes 'professional misconduct': see DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th ed, 2006) at 239 [6.56] and the cases cited therein. In that context, we view (a) and (b) as discrete examples of conduct which will constitute professional misconduct. In order to constitute 'professional misconduct', it is not necessary that the conduct both meets the description in (a) and justifies a finding that Mr Segler is not a fit and proper person to engage in legal practice under (b). Para (b) of the definition in s 403 of the 2008 Act clearly covers a far wider range of conduct than that described in (a) of that definition, including conduct which occurs otherwise than in connection with the practice of law. The essential characteristic of the range of conduct which is encompassed by s 403(1)(b), however, is that that conduct justifies a finding that a practitioner is not a fit and proper person to engage in legal practice. That is not an essential characteristic of the conduct described in s 403(1)(a) of the 2008 Act. In other words, not all instances of 'professional misconduct' will involve the conclusion that a practitioner is not a fit and proper person to engage in legal practice.

22 Furthermore, as the Tribunal held in Legal Profession Complaints Committee and Caine [2010] WASAT 178 (Caine) at [15] and [19]:

1. The common law concept of 'unprofessional conduct' (sometimes expressed as 'professional misconduct', sometimes signifying more serious misconduct) is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence; or that, to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. See Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle) for a recent restatement and application of this notion in Western Australia, which is not to be treated as codified or exhaustive.

1. It cannot have been intended by the legislature that only conduct involving 'competence' (to do with skill, capacity and ability) and 'diligence' (to do with application to the task) should (in addition to conduct establishing unfitness to practice) fall for consideration and that other instances of unprofessional conduct (for example dishonesty or impropriety) which exist at common law should no longer constitute conduct covered under the LP Act. (Professional standards include but are not limited to consumer protection). So much follows as a matter of common sense and from the operation of s 622 as described above. Moreover, s 401 includes as the purposes of Part 13 'to promote and enforce the professional standards, competence and honesty of the legal profession'. (See also the matters discussed in the following paragraphs).

23 In Caine, the Tribunal referred, at [15], to the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle). In Kyle, Parker J (with whom Ipp J, at [1], and Steytler J, at [22], agreed) held at [61] as follows:

... This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a Practitioner of the Supreme Court [1927] SAStRp 9; [1927] SASR 58: see, eg, Re a Practitioner (unreported, Supreme Court, WA, Full Court, Library No 4989, 18 July 1983). It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to 'professional conduct'. While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions.

24 Conduct by a legal practitioner which falls within either limb of the common law concept of unprofessional conduct could also, if sufficiently serious, constitute 'professional misconduct' under the LP Act. Conduct by a legal practitioner, in the course of legal practice, which falls within either limb of the common law concept of unprofessional conduct, and which is less serious than 'professional misconduct' under the LP Act, could also constitute 'unsatisfactory professional conduct' under the LP Act.

25 The limitation that a legal practitioner's conduct must take place in the course of legal practice in order to be capable of constituting 'unsatisfactory professional conduct' under the LP Act is suggested both by the terminology of 'unsatisfactory professional conduct' (emphasis added) and by the fact that the only example of 'unsatisfactory professional conduct' given in s 402 of the LP Act refers to conduct 'occurring in connection with the practice of law'. In contrast, the terminology 'professional misconduct' and the fact that one of the two examples of 'professional misconduct' given in s 403 of the LP Act refers to conduct 'whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law' indicates that, if sufficiently serious, conduct by a legal practitioner outside the course of legal practice may constitute 'professional misconduct' under the LP Act.

26 In Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163, the Tribunal made the following observations in relation to the Briginshaw principle or approach (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) at [62] ­ [65]:

1. In dealing with conflicts of evidence or apparent conflicts of evidence in relation to an issue like this and evaluating the evidence in vocation proceedings such as these, the Tribunal usually applies what is called the Briginshaw approach see: Briginshaw v Briginshaw [1938] HCA 34; (1939) 60 CLR 336.
2. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171 ­ 172; [1992] HCA 66; 110 ALR 449 at 450, Mason CJ, Brennan, Deane and Gaudron JJ explained this approach when they observed:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud [footnote omitted]. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear [footnote omitted] or cogent [footnote omitted] or strict [footnote omitted] proof is necessary 'where so serious a matter as fraud is to be found' [footnote omitted]. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct [footnote omitted] and the judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

1. The Tribunal has, as have former adjudicators, consistently applied this approach in the context of vocational or disciplinary inquiries where serious allegations of professional or occupational misconduct have been made and the reputation of a person or their capacity to engage in their registered livelihood is at stake. Examples of the application of the Briginshaw approach in this Tribunal may be found in Legal Practitioners Complaints Committee and Bragg and Monaco [2005] WASAT 217; Legal Practitioners Complaints Committee and Williams [2006] WASAT 108; Physiotherapists Registration Board of Western Australia and Lipscombe [2005] WASAT 314.
2. Thus it is conventionally said in proceedings such as these that the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that an allegation against a person has been made out.

Allegation (a) ­ Did the practitioner knowingly, or alternatively recklessly, mislead the Magistrates Court in relation to disclosure of a colour digiboard?

27 A 'digiboard' is a photoboard of 12 numbered photographs, including that of the accused, prepared by the Forensic Imaging Unit of the Forensic Division of the Western Australian Police. Each digiboard has a specific number. The use of a digiboard enables a witness in a criminal proceeding to identify a person without the need for an identification parade.

28 In 2009, Ms in de Braekt acted as defence counsel for APC in a criminal matter before the Magistrates Court that was listed for hearing on 4 June 2009. When the proceeding was called over before her Honour Magistrate Woods to be allocated to a magistrate for hearing on 4 June 2009, the prosecutor applied for an adjournment of the trial on the basis that the victim had undergone an operation the previous day. Ms in de Braekt opposed the application for an adjournment on behalf of APC. In the course of her submissions, Ms in de Braekt said that:

The matter was also adjourned on 19 February, when it last came before this court for hearing because the prosecution failed to provide full disclosure and an example of that was the digiboard identification process which is central to the prosecution's case.

His Honour Magistrate Lawrence on that day issued an order requiring the prosecution to disclose that material amongst other things to the defence. As at today, 4 June 2009, some four months later, the defence still does not have the digiboard material and the prosecution seeks yet another adjournment ... .

(Exhibit 2, 24.8-.9)

29 After her Honour granted the adjournment, Ms in de Braekt made an application 'for the prosecutions to be dismissed for want of prosecution ... on the basis of failure to disclose' the colour digiboard used by a witness in identifying the accused. When the prosecutor said that the colour digiboard had previously been disclosed by posting it to Ms in de Braekt's office, Ms in de Braekt said:

Well, your Honour, I can tell you that we have not received it, posted to our office.

(Exhibit 2, 29.8)

30 When the prosecutor told Magistrate Woods that he would only be able to immediately provide Ms in de Braekt with a black and white copy of the digiboard, rather than a colour copy, Ms in de Braekt said:

Well, we need the colour one, your Honour, because I can't tell the colour hair and other features of the other people in the photoboards. You can't tell from black and white copies. You can't tell if it's blonde or black hair and I need to be able to see those features so I can assess whether or not it's a fair selection of photos.

(Exhibit 2, 30.2)

31 Magistrate Woods then ordered the prosecutor to provide 'a further copy of the digiboard ... at your earliest convenience'. Following discussion in relation to a new hearing date, which resulted in the proceeding being listed for hearing on 6 July 2009, Ms in de Braekt said:

Can I also just say that I have never heard before of materials such as digiboard materials being disclosed by way of post, ordinary post to the defence. I've never ever heard or encountered that before. I can assure your Honour that it did not arrive at my office.

(Exhibit 2, 30.9)

32 When the proceeding against APC came on for hearing before his Honour Magistrate Calder on 6 July 2009, the following exchange took place:

HIS HONOUR: There is an objection being foreshadowed as to identification evidence. Ms in de Braekt?

IN DE BRAEKT, MS: Yes. Your Honour, firstly I don't understand its relevance really because of the admissions made by my client in his video record of interview; but further, since January of this year I have been attempting to obtain a colour copy of the digiboard so I can see whether it's a fair selection of photos and so forth and orders have been made by Chief Magistrate Heath, Deputy Chief Magistrate Woods and Magistrate Heaney for a colour copy of that digiboard to be provided to myself and here we are in July and I still don't have one.

I have the DVD of the identification process but I still don't have the colour digiboard, so really I just don't - I have a difficulty with that, your Honour, because obviously I can't see the hair colour or anything like that of the people on the digiboard.

HIS HONOUR: Yes.

PROSECUTOR: Sir if I may respond. I have the original here. I've spoken with the case officers. My friend is correct, there have been a number of issues with this brief, to say the least, but I am advised, Sir, that the case officers had great difficulty in meeting Ms in de Braekt to provide service.

They advised me that colour photos ­ in fact disclosure was done again on 25 June 2009 by personally delivering an envelope to the address of 336 Albany Highway, Victoria Park. It was left in the box at 336 ­ Victoria Park, which I understand is the box of my friend. It was also sent by registered post on the same date, Sir. I have the digiboard here before me if my friend wishes to view the original, but my friend tells me she was provided with black and whites but the officer assures me on my question that colour ones have been provided.

HIS HONOUR: Alright. Have you seen them this morning?

IN DE BRAEKT MS: No, I haven't and the only thing that I received by registered mail is this application for an adjournment of the last hearing date by the police which is a form 6. The only thing that I received in my box was another black and white copy of the trial brief and that's it. There is no colour, and that's the only things I have received. I have never received a colour copy your Honour.

(Exhibit 2, 72)

33 The Committee contended that the statements made by Ms in de Braekt to the Magistrates Court on 4 June 2009 and 6 July 2009, that she had not received the colour digiboard, were untrue and she knew that the statements were untrue, or acted with reckless disregard as to whether they were true, because colour copies of two colour digiboards had previously been delivered to her office and posted to her by registered post. In particular, the Committee called and relied on the evidence of Constable Sharon Squire and Senior Constable Rachel Neas, who were both based at Gosnells Police Station in May and June 2009. Both of these officers were subjected to detailed cross­examination by Ms in de Braekt.

34 Constable Squire gave evidence that, on 26 May 2009, in the company of Senior Constable Neas, she attended the office of Ms in de Braekt at No 336 Albany Highway, Victoria Park:

... to hand deliver all the material constituting full disclosure relating to the criminal prosecution of her client, [APC], and which included black and white photocopies of the signed original digiboard numbered 09.00397 and coloured printout of the original coloured digiboards numbered 09.06567 and 09.00397 which were unsigned. (Exhibit 6, para 2)

35 Digiboard no 09.06567 and digiboard no 09.00397 were the digiboards used by witnesses in the proceedings against APC.

36 Constable Squire also said that, on 26 May 2009, she had with her an application to adjourn the hearing in relation to the charges against APC on 4 June 2009 which was a so­called 'form 6'. Constable Squire gave evidence that there were signs on Ms in de Braekt's office door containing words to the following effect:

ATTENTION POLICE & DPP COURIERS: If office is unattended please call [mobile number]. If no answer, lawyer is in court: please slip documents under door or leave in mail box next to door. Please write return fax number for proof of service form to be faxed to.

ATTENTION POLICE & DPP COURIERS: This door may be locked even when this office is attended. Please knock on door and wait &/or telephone [mobile number] or [land line number]. (Exhibit 6, paras 3 and 4)

37 Constable Squire gave evidence that Ms in de Braekt's office appeared to be unattended, although the light was on inside. She said that both she and Senior Constable Neas knocked on the door and, after waiting some time, she placed the 'disclosure documents', including the colour digiboards and the form 6, into 'the secured silver mailbox located outside the practitioner's office'.

38 Constable Squire gave evidence that, on her return to Gosnells Police Station, she faxed a Receipt and Certificate of Service for Ms in de Braekt to endorse and return in relation to the disclosed documents, including the colour digiboards, which Ms in de Braekt did not return. Constable Squire gave evidence that, although a Receipt and Certificate of Service would normally go on the original brief, and although Constable Squire looked at the original brief, she could not find the faxed Receipt and Certificate of Service for the disclosure documents, including the colour digiboards, that she said she left in Ms in de Braekt's secured silver mailbox on 26 May 2009. When Constable Squire was cross­examined about this by Ms in de Braekt, she gave the following evidence:

You looked in there and you couldn't find the Certificate of Service for the on about 26 May date for more than one page? --- No, I could not.

No. I suggest to you the reason for that is, Constable Squire, is because you didn't actually provide any disclosure to me other than a form 6 on or about 26 May 2009? --- That's incorrect. The reason I know this is because the prosecutor called me and said there was a problem with disclosure. So I know I made full disclosure again in addition to the form 6.

What did the prosecutor say to you was the problem with disclosure? --- That you hadn't received the colour digiboards or photoboards.

So then you would have just then undertaken to disclose the colour digiboards wouldn't you? --- No, because it was made clear to me to complete disclosure each and every time in its entirety.

Even though what was being relayed to you was the defence want the colour digiboards? --- That's correct. (T:83.8-84.1, 15.11.11)

39 Constable Squire also gave evidence that, on 27 May 2009, she posted another copy of the disclosure documents, including the colour digiboards, to Ms in de Braekt's office by registered post. Constable Squire received a delivery confirmation and Customer Receipt signed by 'AMH Braekt', which Ms in de Braekt later identified as the signature of her grandmother.

40 Constable Squire gave evidence that, by email dated 5 June 2009, she was requested by Sergeant Derek Grimes:

... to again provide the material to the practitioner. The email attached two colour digiboards no. 09.06567 and no. 09.00397 from which I printed out further colour copies to provide to the practitioner.

41 Constable Squire also gave the following evidence:

On 25 June 2009 I again attended the practitioner's office in company with Constable James Brooks who remained in the parked vehicle. I again hand delivered to the practitioner's office the material constituting full disclosure (minus the interview videos) including black and white photocopies of the signed digiboard and colour copies of the two original coloured digiboards which were unsigned. I placed the material in the mailbox located outside the practitioner's office as the office was unattended. (Exhibit 6, para 12)

42 Constable Squire also gave evidence that, on 25 June 2009, she sent a copy of all of the documents that she had placed into Ms in de Braekt's office mailbox located outside her office to her office by registered post. The Committee tendered a copy of the Receipt and Certificate of Service signed by Constable Squire on 25 June 2009 indicating that she had left the documents at Ms in de Braekt's office and had posted the documents to Ms in de Braekt's office by registered post on 25 June 2009. This document does not bear the signature of Ms in de Braekt or anyone on her behalf confirming that the documents had been received. Although this document includes in the 'description' of documents served 'two (CD's) Photoboards & eight pages', Constable Squire explained in oral evidence that the photoboards were included within the eight pages referred to. She explained that the eight pages comprised a colour photoboard and a matching black and white signed copy for each of two witnesses and two pages that relate to the interview with each witness. Therefore, although the 'description' in the Receipt and Certificate of Service in relation to the service of disclosure documents on 25 June 2009 refers to 'Photoboards & eight pages', Constable Squire said that the photoboards were included in the eight pages. When Ms in de Braekt suggested to Constable Squire in cross­examination that the 'eight pages' did not include the colour digiboards because the eight pages comprised two black and white copies with signatures, four pages of the witness conversation sheets and two pages of digital photoboard running sheets, which contained the names and dates of birth of each of the 12 persons shown on the digiboard itself, Constable Squire said that she 'wouldn't have disclosed the list of running sheets to you ... The running sheet, the one that has the list of names on it, I do not think I disclosed to you' (T:49.5-.6, 15.11.11).

43 Senior Constable Neas' evidence strongly corroborated Constable Squire's evidence in relation to the disclosure of documents to Ms in de Braekt on 26 May 2009, including the two colour digiboards in relation to the proceeding against APC. In her witness statement (Exhibit 9), Senior Constable Neas gave the following evidence:

1. On 26 May 2009 I telephoned the practitioner, Ms Megan in de Braekt to advise that I would be attending her office shortly to provide disclosure of documents in the [APC] matter.
2. The practitioner spoke to me aggressively and advised that she may not be there when I arrived and to leave the documents in the mailbox. The practitioner then hung up on me.
3. Together with Constable Sharon Squire I then attended the practitioner's office, 336 Albany Highway Victoria Park.
4. A sign of the door of the practitioner's office stated that if the office was unattended, documents should be slipped under the door or left in the mailbox.
5. Both Constable Squire and I knocked on the door but there was no answer.
6. Lights were on inside the office, and I could see the key in the lock on the inside of the door.
7. Constable Squire placed an envelope containing colour copies of the colour digiboard in the [APC] matter ('the material'), in the mailbox located outside the practitioner's office.
8. Following our return to the office I telephoned the practitioner again to advise that we had provided disclosure.
9. The telephone call went to voice mail and I left a message to that effect.

44 Under cross­examination, Senior Constable Neas emphatically maintained that her witness statement, which was signed on 17 February 2011, was based on her own recollection of events. She said that she 'remember[ed] that day very well' (T:7.3, 16.11.11). When, in re­examination, Senior Constable Neas was asked about her earlier evidence that the contents of her statement were based on her recollection and that she remembered the events of 26 May 2009 very well, she gave the following evidence:

What is about that day that you remember very well? --- Ms in de Braekt hanging up on me after being quite rude on the phone. And then from there I remember where we were when we called her, and then I remember ­ that just jogged my memory, because obviously that impacted on how things went that day.

So what impacted on how things went that day? --- I remember the phone call and just how she spoke to me, and I've never been hung up by a barrister or solicitor before, or spoken to in that tone when I was just trying to just explain that we were going to her office to serve disclosure and documents, and just that she would - just didn't appear to want to be helpful at all. And then I remember that when we got there, obviously, you know, we were knocking on the door, the lights were on. I thought there was a key in the door, I guess I was wrong. I remember I rang the office while were standing outside and it went through to Message bank. I remember reading the signs on the door, seeing the mailbox there. I remember First Class Constable Squire put the envelope containing the disclosure in the mailbox. We had to go to the chemist to photocopy one of the documents so we could ­ I could witness it, I think it was. And I remember returning back to the station and phoning and letting her know ­ I left a message, I think it was, that we had served the disclosure, and then I remember that First Class Constable Squire said that she was going to organise to have it registered posted to her as well.

It was suggested to you that the service of documents was a routine function that you undertook at that time. I think you disagreed with that and said it was just part of your job. Is that right? --- It's not something you do everyday. It is part of my job. It's not routine. It depends on where you work exactly. In this instance, you know, obviously I was with First Class Constable Squire because this was her case, and basically she was the one that was serving disclosure, I was just the one who happened to be with her at that time. So, you know ---

What I want to ask you is, I think you said that service of documents is just part of your job, and indeed any police officer's job. Is that right? --- Yes. Yes, it is.

How long have you been a police office for? --- Fifteen years. ...

In your time as a police officer, have you ever had an occasion such as this one when you have served documents on a legal practitioner? --- Absolutely not, and that's ­ I think that's why I recalled this, because I've never had it made so difficult to serve documents on anybody. (T:18 ­ 20, 16.11.11)

45 Senior Constable Neas was also cross­examined by Ms in de Braekt in relation to a statement that Senior Constable Neas had made at Constable Squire's request on 27 May 2009 which referred to service of the form 6 relating to the adjournment application in the matter of APC on Ms in de Braekt on 26 May 2009, but did not refer to the service of any other documents on her on that day. In re­examination, Senior Constable Neas gave the following evidence:

It was suggested to you that statement only refers to the service of a form 6 on Ms in de Braekt. Do you recall that being suggested to you? --- Yes.

Is that right? --- No, that's incorrect. It was full disclosure.

If you have a look at the statement there in front of you - can you just have a look through it? --- Yes. I have put 'namely a form 6'.

Yes? --- But it was a form 6 and disclosure. I actually saw the disclosure, I was reading through it in the car on the way there, due to the fact that not ­ obviously First Class Constable Squire is a very competent and able police officer, but being a senior constable, I always like to check that things are in order. That's why I noted it was disclosure. (T:21.3, 16.11.11)

46 When leave was granted for further cross­examination of Senior Constable Neas, she gave the following answer to the question 'The only document that was served on my office on 26 May 2009 was the form 6?':

No, the full disclosure with colour copy of digiboards as well. It wasn't just the form 6 that was served on 26 May [2009] at [Ms in de Braekt's] office. (T:26.7, 16.11.11)

47 Ms in de Braekt did not cross­examine Constable Squire to show that Constable Squire had somehow colluded with Senior Constable Neas in relation to their evidence to the Tribunal. Ms in de Braekt did ask Senior Constable Neas whether she had spoken to Constable Squire about the matter, and Senior Constable Neas replied 'Possibly between May and October', which appears to be a reference to 2009. There was no detailed cross­examination of Senior Constable Neas on this point and it was not suggested to her that there had been any collusion between her and Constable Squire in relation to the evidence that they gave to the Tribunal in this matter. Furthermore, neither Constable Squire nor Senior Constable Neas was cross­examined by Ms in de Braekt to the effect that either of them had any animosity towards Ms in de Braekt, whether before or after the events in relation to which they gave evidence.

48 In addition to the Receipt and Certificate of Service that Constable Squire signed on 25 June 2009 stating that she left the disclosure documents at Ms in de Braekt's office and posted the disclosure documents to Ms in de Braekt's office by registered post, there are two other documents in the evidence that support Constable Squire's evidence that she provided copies of the colour digiboards to Ms in de Braekt by placing the documents in the mailbox located outside Ms in de Braekt's office and by sending the documents to her on 25 June 2009.

49 First, as noted earlier, Constable Squire referred to the email request dated 5 June 2009 from Sergeant Derek Grimes 'to again provide the material to the practitioner'. Sergeant Grimes' email to Constable Squire attached two PDF documents and stated:

Please find attached the original email for the photoboards used in this case. This way you can just print it out in colour and give it to the lawyer for disclosure.

50 Second, as noted earlier, at the hearing of the matter involving APC before Magistrate Calder on 6 July 2009, the prosecutor said the following to his Honour after Ms in de Braekt said that she still did not have the colour digiboards:

Sir, if may respond. I have the original here. I've spoken with the case officers. My friend is correct, there have been a number of issues with this brief, to say the least, but I am advised, Sir, that the case officers had great difficulty in meeting Ms in de Braekt to provide service.

They advised me that colour photos - in fact disclosure was done again on 25 June 2009 by personally delivering an envelope to the address of 336 Albany Highway, Victoria Park. It was left in the box at 336 ­ Victoria Park, which I understand is the box of my friend. It was also sent by registered post on the same date, Sir. I have the digiboard here before me if my friend wishes to view the original, but my friend tells me she was provided with black and whites but the officer assures me on my question that colour ones have been provided.

(Exhibit 2, 72)

51 Ms in de Braekt submitted that Constable Squire and Senior Constable Neas were both 'unimpressive witnesses' for essentially 12 reasons.

52 First, during her cross­examination of Constable Squire, Ms in de Braekt produced, for the first time, a bundle of documents which she tendered as 'a bundle of served documents dated 18/6/2009' (T:70.4, 15.11.11) and which became Exhibit 7. At T:52 ­ 54, 15.11.11, Ms in de Braekt cross­examined Constable Squire as to whether Constable Squire disclosed the documents that became Exhibit 7 to Ms in de Braekt. Constable Squire specifically identified certain documents in Exhibit 7 which were not disclosed to Ms in de Braekt by her. In re­examination, Constable Squire was asked 'Did you serve this bundle of documents [Exhibit 7] on Ms in de Braekt?', to which Constable Squire replied 'No' (T:125.8, 15.11.11). Constable Squire was then asked about certain documents in Exhibit 7, including summonses to civilian witnesses in the matter of APC showing the home addresses of the witnesses. When Constable Squire was asked whether she had 'ever known summonses to witnesses to ever be served upon counsel acting for an accused person ... as part of disclosure?', she replied 'No' (T:132.8, 15.11.11).

53 In her submissions, Ms in de Braekt criticised Constable Squire's evidence in this respect and said that it was inconsistent with an email she sent to Superintendent Lawrence Panaia on 14 July 2009 in relation to 'disclosure to defence [counsel] Megan in de Braekt' in relation to the APC matter in which Constable Squire said:

At all times the defence was supplied with new witness summons and any other material or documentation which came to light prior to the trial dates ...

54 However, Constable Squire's evidence that she had never known of summonses to civilian witnesses showing their home addresses being disclosed to defence counsel is not inconsistent with the statement that 'the defence was supplied with new witness summons and any other material or documentation which came to light prior to the trial dates ...'. It is hardly remarkable that, in criminal cases, the home addresses of civilian witnesses are not disclosed to the defence.

55 Second, Ms in de Braekt criticised Constable Squire's statement in her email of 14 July 2009 to Superintendent Panaia that:

I made every effort to serve disclosure on the defence [counsel] personally and including the Certificate of Service each time. Each time this was requested to be signed and returned, the defence failed to cooperate.

56 Ms in de Braekt pointed to a Receipt and Certificate of Service in relation to the form 6 which she signed on 27 May 2009 and faxed to Gosnells Police Station on 28 May 2009 (Exhibit 12). However, it appears that, on each other occasion that documents were served by Constable Squire on Ms in de Braekt, and in particular when the disclosure documents, including the colour digiboards, were left in Ms in de Braekt's office post box on 26 May 2009 and 25 June 2009, Ms in de Braekt failed to cooperate by signing and returning the Receipt and Certificate of Service.

57 Third, Ms in de Braekt submitted that Constable Squire cannot be relied upon to give accurate evidence about the service of the colour digiboards, because, in cross­examination in the hearing in relation to the charges against APC on 2 September 2009, Constable Squire conceded that she made a mistake in her evidence in chief when she said that she had taken photos of cuts to the victim's hand, but had lost them. When Ms in de Braekt presented Constable Squire with the Constable's contemporaneous incident report which stated 'No photos taken', the Constable readily agreed that the narrative in the incident report was correct and that consequently 'quite possibly' her memory in relation to the victim's injuries was incorrect.

58 However, the Tribunal does not consider that Constable Squire's error, which she readily conceded in the proceeding against APC, has the result that she can be characterised as 'a poor historian', and much less as an 'unimpressive witness', as suggested by Ms in de Braekt. In this case, Constable Squire gave clear evidence from her own recollection in relation to her service of the colour digiboards on 26 May 2009, which was strongly corroborated by Senior Constable Neas, and in relation to her service of the colour digiboards on 25 June 2009, which is supported by the three documents referred to earlier.

59 Fourth, Ms in de Braekt submitted that Constable Squire's evidence 'is tainted by having obtained information from [the Committee's solicitor]' and that this 'cuts the legs out' of allegation (a) made by the Committee. In cross­examination, Constable Squire said that, when she asked for further information to clarify her statement, she was provided with the original brief in the APC matter by the Committee's solicitor. However, given that Constable Squire's witness statement is dated 11 May 2011, whereas she said that she was provided with the original brief by the Committee's solicitors four to six weeks before she gave evidence on 15 November 2011 (T:83.6, 15.11.11), and that her evidence was clearly based on an actual recollection of the events in issue, Constable Squire's reference to the original brief provided by the Committee's solicitor does not mean that her evidence was 'tainted' or 'unreliable', as suggested by Ms in de Braekt.

60 Fifth, Ms in de Braekt suggested that a chain of emails between the Committee's solicitor, Superintendent Panaia and Constable Squire, showed 'contamination of the witness' evidence'. The email from the Committee's solicitor to Superintendent Panaia dated 8 June 2010 stated as follows:

Dear Superintendent

I wish to clarify whether Constable Squire recalls there being a sign on Ms in de Braekt's office door on May/June 2009 to the following effect:

ATTENTION POLICE

& DDP COURIERS:

IF OFFICE DOOR IS UNATTENDED

PLEASE CALL ...

IF NO ANSWER, LAWYER IS IN COURT:

PLEASE SLIP DOCUMENTS UNDER

DOOR, OR LEAVE IN MAILBOX

NEXT TO DOOR. PLEASE WRITE RETURN

FAX NUMBER FOR PROOF OF

SERVICE FORM TO BE FAXED TO.

This is the wording that was on a sign in January 2010. Even if Constable Squire cannot recall the exact wording, if she can say it was words to the effect of the above that would be sufficient.

61 On 8 June 2010, Superintendent Panaia forwarded the email to Constable Squire as follows:

Good afternoon Sharon

The LPCC are continuing their inquiry into Ms in de Braekt.

Can you answer the question below.

Superintendent Panaia

Yes ­ signs displaying something to that effect was displayed.

63 However, this email exchange does not 'undermine the integrity of the evidence', as suggested by Ms in de Braekt. Constable Squire said that there were signs displaying 'something to that effect' on Ms in de Braekt's office door. It was clear to the Tribunal from the way in which Constable Squire gave her evidence that it was based on her own recollection. Furthermore, there was no dispute between the parties that signs to the effect of those described in Constable Squire's evidence were displayed at the relevant time.

64 Sixth, referring to the Receipt and Certificate of Service signed by Constable Squire on 25 June 2009 stating that documents including 'Photoboards & eight pages' were served by being left at Ms in de Braekt's office and by registered post, Ms in de Braekt suggested that, if colour digiboards had been served, there would have been more than eight pages, because the eight pages could not include the digital photoboard running sheets for each of the digiboards. However, as noted earlier, Constable Squire gave evidence that 'I wouldn't have disclosed the list of running sheets to you ... The running sheet, the one that has the list of names on it, I do not think I disclosed to you' (T:49.5­.6, 15.11.11). Constable Squire's evidence in this respect is entirely reasonable and the Tribunal has no hesitation in accepting it. Disclosure of the digital photoboard running sheet would involve advising the defendant's counsel of the names and birthdates of 11 people who have no involvement in the matter.

65 Seventh, Ms in de Braekt submitted that Constable Squire's evidence that she disclosed both the colour digiboards and black and white signed photocopies of the digiboards was inconsistent with her statement in her email of 14 July 2009 to Superintendent Panaia that 'all photoboard evidence and other images supplied to the defence were displayed in colour'. However, there is no inconsistency between Constable Squire's evidence and this statement. Constable Squire was cross­examined specifically about this point and gave evidence that there is no inconsistency because:

... you received the colour photoboards, yes, and the other images I provided were in colour, in addition to the signed one to certify the non­signed original photoboard. (T:75.7, 15.11.11)

66 We have no hesitation in accepting Constable Squire's evidence in relation to this point. Disclosure of both colour digiboards and black and white copies with the witness' identification of the selected photograph number and the witness' signature, name and the time and date of the identification, are both essential aspects of disclosure. Furthermore, as Ms in de Braekt agreed when asked by the Tribunal, the context of the email between Constable Squire and Superintendent Panaia was '[Ms in de Braekt's] complaint that [she] hadn't received the colour images' (T:75.9, 15.11.11). It is entirely understandable that the email, therefore, emphasised that disclosure had been made of colour images. The email does not say that there was no disclosure was made of black and white copies of the digiboards signed by the witnesses.

67 Eighth, Ms in de Braekt pointed out, correctly, that Constable Squire was not able to locate a Receipt and Certificate of Service in relation to the disclosure documents that she said were served on 26 May 2009. However, the Tribunal does not consider that the absence of this document renders either Constable Squire or Senior Constable Neas 'unimpressive witnesses', or calls into any serious doubt their evidence, given the totality of the evidence given to the Tribunal. In particular, as noted earlier, Constable Squire's evidence about the service of colour digiboards and other documents on 26 May 2009 was strongly corroborated by Senior Constable Neas. Both witnesses gave evidence clearly based on a distinct recollection of what occurred on 26 May 2009. In particular, Senior Constable Neas gave evidence based on a distinct recollection, with her memory 'jogged' by Ms in de Braekt's 'aggressive' tone and manner, including Ms in de Braekt having hung up on Senior Constable Neas. As Senior Constable Neas said 'I've never been hung up by a barrister or solicitor before, or spoken to in that tone when I was trying to just explain that we were going to her office to serve disclosure and documents, and just that she would ­ just didn't appear to want to be helpful at all' (T:19.2, 16.11.11). Although Senior Constable Neas referred to Ms in de Braekt's 'aggressive' telephone conversation and the fact that Ms in de Braekt had hung up on her, Ms in de Braekt did not cross­examine Senior Constable Neas in relation to the telephone conversation. Rather, in a witness statement she filed the day after Senior Constable Neas gave her evidence, Ms in de Braekt denied that she hung up on Senior Constable Neas and said instead that:

I advised Senior Constable Neas that I could not continue to talk to her as I had to leave for court urgently, & that if I continued to speak with her, I would be late for court. I apologised for having to be abrupt, but that I had to go or I would be late. I remember this specifically, because she was very aggressive towards me, & insisted that I could not end the telephone call until she had finished saying what she wanted to say. I remember her getting very angry at me & telling me to 'Now listen here ... ' I remember explaining to her again, that I had to go because otherwise I would be late for court, but that she could call me back later, or if she had documents to give me, she could fax them to me or put them in my letterbox.

(Exhibit 11, para 9)

68 We accept Senior Constable Neas' evidence about her telephone conversation with Ms in de Braekt on 26 May 2009 and do not accept Ms in de Braekt's evidence about that telephone conversation. As noted earlier, Ms in de Braekt did not question Senior Constable Neas in relation to the telephone conversation. Furthermore, having carefully observed Senior Constable Neas while giving her evidence, the Tribunal finds her to be an honest, impressive and disinterested witness, with a genuine recollection of the events on the date in question, prompted by what was clearly an unusual, if not unique treatment by a legal practitioner. Finally, Senior Constable Neas' evidence as to Ms in de Braekt's verbal aggression is entirely consistent with the evidence which we accept below and our findings in relation to her conduct in respect of other allegations made by the Committee in this proceeding.

69 Ninth, Ms in de Braekt submitted that Senior Constable Neas' statement of 27 May 2009, which refers only to the service of the form 6 on 26 May 2009, demonstrates that no other documents could have been served on her on 26 May 2009. However, as noted earlier, Senior Constable Neas was specifically asked about this statement and said that, although she only referred to the form 6 in the statement, 'it was a form 6 and disclosure'. It was then that she gave evidence that:

I actually saw the disclosure, I was reading through it in the car on the way there, due to the fact that not ­ obviously First Class Constable Squire is a very competent and able police officer, but being a senior constable, I always like to check that things are in order. That's why I noted it was disclosure. (T:21.4, 16.11.11)

70 Having observed and heard this evidence, the Tribunal considers that it was an example of genuine recollection by an honest and impressive witness. There is no clear explanation in the evidence as to why Senior Constable Neas' statement of 27 May 2009 referred only to the form 6. The statement was prepared and signed a few days before the application foreshadowed in the form 6 was made to the Magistrates Court for an adjournment of the hearing in relation to APC, although there is no evidence before the Tribunal that the statement was prepared for the purposes of that application. In any case, whatever the reason for the omission from the statement of 27 May 2009 of reference to the disclosure of other documents, including the colour digiboards, the Tribunal accepts Senior Constable Neas' evidence that those documents were provided to Ms in de Braekt on 26 May 2009.

71 Tenth, Ms in de Braekt submitted that there is evidence of collusion between Constable Squire and Senior Constable Neas, because, in her email of 14 July 2009 to Superintendent Panaia, Constable Squire, after referring to her provision of 'full disclosure [by] delivering it by hand to [Ms in de Braekt's] secured mailbox and again by registered mail on 26 May 2009', said:

72 However, this reference in the email of 14 July 2009 does not demonstrate collusion between the witnesses in relation to their evidence to the Tribunal. It simply shows that, when Superintendent Panaia made enquiries in relation to disclosure following Ms in de Braekt's complaint that she had not received colour digiboards, Senior Constable Neas confirmed Constable Squire's statement that full disclosure was given on 26 May 2009. As found earlier, Senior Constable Neas' recollection of the events on 26 May 2009 strongly corroborates Constable Squire's evidence. As noted earlier, Constable Squire was not cross­examined to the effect that there was any collusion between her and Senior Constable Neas in relation to their evidence.

73 Eleventh, Ms in de Braekt submitted that there was prior hostility between Constable Squire and herself, because Constable Squire's email of 14 July 2009 to Superintendent Panaia demonstrates that she was 'aggressive and nasty' to Ms in de Braekt and because Constable Squire 'no doubt felt antipathy' to Ms in de Braekt in consequence of her cross­examination of Constable Squire in relation to the photographs in the trial of APC on 2 September 2009. However, there is nothing in the email of 14 July 2009 showing any hostility on the part of Constable Squire to Ms in de Braekt. As noted earlier, Ms in de Braekt did not cross­examine Constable Squire to the effect that she had any animosity to Ms in de Braekt. In the cross­examination in the APC trial on 2 September 2009, Constable Squire readily conceded the points suggested to her in cross­examination by Ms in de Braekt. Finally, Constable Squire's evidence to the Tribunal is consistent with her email to Superintendent Panaia on 14 July 2009 which pre­dated the cross­examination in the APC matter on 2 September 2009. The Tribunal therefore finds that Constable Squire did not feel any antipathy or animosity to Ms in de Braekt, either before or after the dates in relation to which Constable Squire gave evidence.

74 Twelfth, Ms in de Braekt submitted that Constable Squire gave inconsistent evidence in relation to the number of times that she provided disclosure of documents, including the colour digiboards, to her. In the email of 14 July 2009 to Superintendent Panaia, Constable Squire referred to disclosure on six occasions, whereas in her evidence, she referred to disclosure of documents, including the colour digiboards, to Ms in de Braekt on four occasions, namely, by leaving the documents in the secured silver mailbox located outside Ms in de Braekt's office on 26 May 2009 and 25 June 2009, and by sending a copy by registered post on 27 May 2009 and 25 June 2009. However, it is clear from both the email of 14 July 2009 and from Constable Squire's oral evidence that the six occasions of disclosure referred to in her email included provision of the form 6 by leaving it in Ms in de Braekt's secured mailbox and by faxing it to her on 26 May 2009.

75 Having carefully observed the evidence of Constable Squire and Senior Constable Neas, and having considered each of the submissions made by Ms in de Braekt in relation to their evidence, the Tribunal finds that Constable Squire and Senior Constable Neas were each honest, impressive and impartial witnesses with a genuine recollection of the relevant events which occurred on 26 May 2009 and (in the case of Constable Squire) on 27 May 2009 (sending a copy of disclosure documents to Ms in de Braekt by registered post) and on 25 June 2009.

76 Under cross­examination, Ms in de Braekt conceded that, while she sometimes occasionally misplaces a document, she 'always find[s] it again' (T:57.5, 17.11.11). Ms in de Braekt also conceded that the letterbox at the front of her office is always locked and indeed 'it has to be locked in order to be kept together' (T:57.7, 17.11.11). Ms in de Braekt also conceded that 'there's no chance ... that if things such as disclosure documents had been put into [her office post] box, that they'd just [have] gone missing, ... [because] the slot is too [small] ­wouldn't allow that. The slot also ­ the edges of the slot are sharp, so it would cut [a person's hand]' (T:57.9­58.1 and T58.9­59.1, 17.11.11).

77 However, it was Ms in de Braekt's evidence that:

Despite having made numerous & oral requests for the WA Police to provide me with colour copies of photo digiboards they intended to rely on in the [APC] matter, & despite the Court Ordering the Police to do so, the Police never provided me with my own colour copies of photo digiboards. I am 100% positive about this.

The first time I saw colour copies of the photo digiboards in the [APC] matter, was when the Prosecutor showed me his copies, on the first trial date on 6th July 2009, before His Honour Magistrate Calder, in the District Court building.

I never recklessly or intentionally or deliberately misled the court at any time about not having received colour copies of the photo digiboards in the [APC] matter. (Exhibit 11 paras 3 ­ 5)

Had I received colour copies I would have been overjoyed because I wouldn't have needed to go to the frustrating effort to try and obtain colour copies so I could ensure as I mentioned before her Honour Deputy Chief Magistrate Woods on 4 June 2009, so that I could ensure that the selection of photos of my client was fair and make sure as a matter of thoroughness that there weren't any grounds to object to the tendering of the evidence at trial against my client, [APC]'. (T:10.3, 17.11.11)

79 Ms in de Braekt also gave the following evidence:

There are issues with colour printers and colour copiers ­ that's all I'm going to say ­ within the WA Police. So this is not an unusual situation in terms of the colour aspects ­ the provision of coloured hard copies of documents, and on no occasion that I can ever recall have I been provided with colour digiboards at first instance. I can't recall any occasion of disclosure where I have received that. You ­ in my ­ the only recollections I have of disclosure in all of the hundreds of matters I've dealt with is black and white copies. Then I always have to go back to the investigating officer and ask, 'Please could I have colour copies so I can examine the fairness of the selection of photos?', as I have already mentioned (T:16.3, 17.11.11).

80 Ms in de Braekt also gave evidence that '[w]hen I receive colour digiboards from Police, they always (as far as I can remember) describe them specifically in the certificate of service form' (Exhibit 11 para 15) and she provided, as an example, a Receipt and Certificate of Service form in relation to a different matter that specifically stated 'colour copy of digiboard' (attachment to Exhibit 11). Ms in de Braekt also referred to the issue of a summons to the Commissioner of Police for 'log of the colour printer (for the period January to August 2009) as used by Constable Squires [sic], or any other person at her direction, to print off colour copies of the photo digiboards in the matter of [APC]' (Exhibit 25), in answer to which no documents were produced. Ms in de Braekt suggested that it would have been 'very risky' (T:43.2, 17.11.11) for her to seek these documents had she in fact been provided with colour digiboards. She also cross­examined Constable Squire in relation to the production of the colour digiboards as follows:

So you used the colour photocopier at Gosnells Police Station to produce colour copies that you served on me? --- Yes, I did.

Did you have to type in your PD number to the photocopier when you used it? --- No, I do not.

You didn't? That wasn't required? --- It's a print thing, I don't know how it works. It just prints out a colour copy if you request it to do so.

How do you do that, do you put the colour copy of the digiboard into the photocopier and then it takes a copy? --- I don't recall how I photocopied it. I requested a copy in colour and I got a copy in colour. I don't know the procedure in which - - -

Did you have it electronically on your system so you hit print? --- I'm sure I did, yes. (T:104.7-105.1, 15.11.11)

81 Specifically in relation to the events on 26 May 2009, Ms in de Braekt gave the following evidence:

I remember 26th May 2009 well, & I only received a form 6 application in a prosecution form from the Police on that day. I am 100% positive about this. Senior Constable Neas & Constable Squire have deliberately lied about serving any other documents on me on that day. I distinctly remember being very frustrated that I received at least 3 copies of that form 6 application form. 1 by fax, 1 by deposit into my letter box & 1 by registered post a few days later. I distinctly remember being very frustrated that the Police would give me 3 copies of that application in a prosecution form, but not be able to give me any colour copies of the colour digiboards. That is why the Police cannot find a certificate of service for 26th May 2009 for anything other than a form 6. (Exhibit 11 para 14)

82 In her oral evidence in chief, Ms in de Braekt identified four reasons on account of which she had a distinct recollection of what occurred on 26 May 2009 and, in particular, that she only received the formִ6, and not any colour digiboards, on that day:

So my grandmother had very kindly gone to the post office for me, and I also remember that because that doesn't happen very often so that also was part of my memory. I remember opening it in front of her and explaining to her my frustration that this was a third copy of the form 6. I remember it clearly. ...

This was a couple of days ­ two or three days after the 26th [May 2009] because that was by registered post and I received that third form 6 and I remember explaining to her particularly that I could not believe this was the third copy of that same document I received. ...

I remember that because my grandma very rarely goes to the post office to collect registered mail for me, very rarely, and that's what makes it memorable. The other thing that makes 26 May memorable for me ­ and I remember exactly what happened with Senior Constable Neas and Constable Squire, is because that is a date of significance for me. It might sound funny or whatever but that is the birthday of one of my dogs which is significant for me. Red, 26 May, and that's another reason why I remember. I also remember because of the manner in which Senior Constable Neas spoke to me over the phone and was so indignant about me needing to end our telephone conversation ­ well, I suppose it was abruptly but I apologised for that. I said I didn't mean to be abrupt but I had to go. ...

I couldn't continue speaking because I had to go back to court and if I continued speaking I would be late. So I asked her to call me back later. If she had something to deliver to me she could leave it in my letterbox or, alternatively, she could send it by fax. She didn't need to hand it to me personally because that's usually why Police call me to arrange for provision or disclosure of materials. That's nearly always why I get telephone calls from Police. I couldn't speak with her further about that and I remember she got ­ sorry. I just keep getting myself tangled here. She got very angry and aggressive with me and said, 'Now, listen here.' It seemed to me that she didn't take kindly to me saying I couldn't continue to speak with her, I had to go. I had to cut her off. I said, 'I'm sorry, I don't mean to interrupt but I have to go. I have to leave for court.['] Then I had to hang up but she didn't want me to hang up. She didn't want to finish the conversation but I had to go because if I keep talking to people then when I put the phone down there will be another call, somebody else will want to speak to me. I can keep doing that for ages and then I'll never get to court or I'll be late and I can't have that so I've learned my lesson previously with those sorts of things and I just have to apologise for being abrupt and I have to go. So I remember that happening on that occasion. I also remember very specifically, although I have hundreds of communications with Police every year, I remember it also specifically because the second after I put down the phone I got a very bad blood nose and I also remember that and I still had to try and manage that while racing to the car and driving to court because I didn't want to be late. So that's what makes it memorable for me, plus it being Red's birthday. That's why I can distinguish that from many other incidences of receiving documents from Police and having telephone conversations with Police and so forth. Some are more memorable than others. That one was memorable for me. I was taken aback by Senior Constable Neas' aggression and found it very hard to stomach to listen to the description provided by Senior Constable Neas obviously (T:18.8­20.3, 17.11.11).

83 For reasons given earlier, the Tribunal accepts Senior Constable Neas' recollection of the telephone conversation that Ms in de Braekt spoke with her aggressively and then hung up on her, and does not accept Ms in de Braekt's evidence that Senior Constable Neas was angry and aggressive in the telephone conversation. However, Ms in de Braekt's statement that police usually telephone her 'to arrange for provision for disclosure of materials' is entirely consistent with Senior Constable Neas' evidence that that is why she telephoned Ms in de Braekt that day.

84 The fact that the Tribunal prefers Senior Constable Neas' recollection of the telephone conversation with Ms in de Braekt on 26 May 2009 removes one of the four factors on account of which Ms in de Braekt said that she had a specific recollection of the events of that day. The Tribunal also does not accept Ms in de Braekt's evidence in relation to the other three factors on account of which she said that she has a specific recollection of the events of 26 May 2009, namely, the conversation with her grandmother, her dog's birthday and her nosebleed. Ms in de Braekt made extensive submissions to the Committee pursuant to s 414(1) of the LP Act between January and June 2010 in relation to the matter that is now allegation (a) in this proceeding, amounting in total to about 34 pages of correspondence. Ms in de Braekt did not refer to her grandmother's involvement, her dog's birthday or her nosebleed in any of her submissions to the Committee. If, on account of these factors, Ms in de Braekt had a distinct recollection of the events of 26 May 2009, it is reasonable to expect that, in her extensive correspondence with the Committee, she would have referred to these factors. The fact that she did not strongly suggests that these are not factors on account of which she has a distinct recollection of the events.

85 As noted earlier, while cross­examining Constable Squire, Ms in de Braekt produced a bundle of documents which she referred to and tendered on the basis that they were 'a bundle of served documents dated 18/6/2009' (T:70.4, 15.11.11) and which became Exhibit 7 in the proceeding. While Exhibit 7 does not include any colour digiboards, the Tribunal considers that it does not cast any doubt on Constable Squire's and Senior Constable Neas' evidence in relation to service of the colour digiboards on Ms in de Braekt, and is simply irrelevant in relation to their evidence. Exhibit 7 contains documents, such as the 'brief jacket' containing the prosecutor's notes of court appearances, summonses to civilian witnesses showing their home addresses and correspondence from Ms in de Braekt to police officers, which we find, on the evidence of Constable Squire, she did not disclose to Ms in de Braekt. It is unclear where Exhibit 7 came from. However, it does not call into question the evidence relied on by the Committee in relation to allegation (a).

86 During her oral evidence in chief, Ms in de Braekt herself posed the question:

So one has to wonder what would be the point. What would be the point of me claiming I hadn't received those colour digiboards? What was my motivation in doing that? I find it very frustrating to have to continually follow up disclosure issues with the Police and the DPP. I find it very frustrating. I'm not the world's most patient person and I find it very frustrating and I like to ­ any ­ an ability not to have to do that, because proper disclosure has been complied with, I welcome wholeheartedly ­ I would like to devote my attention to substantive work, in any event. ... (T:24.3, 17.11.11).

87 Shortly before she posed the question about her motivation, Ms in de Braekt herself volunteered that she had made an application in the APC matter on 4 June 2009 for that proceeding to be dismissed for want of prosecution, because of the failure to provide the colour digiboards. Ms in de Braekt was also cross­examined about the application to dismiss the APC proceedings on account of the photo digiboards as follows:

Well, let's start again. You made an application to dismiss the prosecution for want of prosecution, amongst other things, on the basis of a failure to disclose? --- That's right.

The alleged failure to disclose was the failure to disclose the digiboard material? --- That's right.

Now, was that the reason why you maintained that you had not received the digiboard material? --- So are you asking me whether or not I maintained I hadn't received the digiboard material deliberately so as to strengthen or create a position whereby the charges against my client would be dismissed for want of prosecution? Is that what you're asking me?

That's what I'm asking you. Is that what you were doing? --- Absolutely not and it is very offensive. I understand you're just doing your job, Mr Vandongen, but gosh. No point, really, in being a lawyer if I was of that mind I can tell you.

Because you knew you'd been successful previously, hadn't you, in getting matters dismissed for want of prosecution on the basis of nondisclosure? ­­- Well, I can ­ at the moment I can only recall one. I can't recall any more. There might have been another one - I can only recall one and I'm sorry, the name of that client at the moment escapes me, but I certainly could check my records at my office to establish that name.

You knew there was a basis upon which a prosecution could be dismissed without there being a hearing, didn't you? --- Well, of course. Any competent defence counsel would know that.

You took advantage of that, didn't you? --- What do you mean by did I take advantage of it?

Well, you told the court that you had not received the digiboard material didn't you? --- Yes, because that was the truth.

I suggest to you that it wasn't the truth, that you had in fact received it on a number of occasions? --- I would never, ever say to the court that I hadn't received something if I had. There is just no way. No way. I've never done it, and I never will.

So you say, do you, that you were making a point about the nondisclosure of the digiboards, and in particular colour digiboards because it was an important part of the case against your client that you wished to challenge? --- Those were my instructions at the time, that's right. My client was not willing to concede that he had been at that location.

Your client gave a video record of interview didn't he? --- Yes, he did.

Did he make admissions in the video record of interview? --- He made some admissions.

When you appeared before Magistrate Calder on 6 July 2009, at page 72, Magistrate Calder asked you directly for the first time, I'd suggest to you, that anyone did, asked you directly about whether there was going to be an objection or challenge to the identification evidence, didn't he? --- That's correct.

You told him on page 72, 'Why yes, your Honour. Firstly, I don't understand its relevance, really, because of the admissions made by my client in his video record of interview,' didn't you? --- That's right.

So what you're telling his Honour was that the digiboard material you failed to see the relevance of in the case against [APC], didn't you? --- That's because my client had changed his instructions to me because he was becoming increasingly agitated about his incarceration period being delayed because of these outstanding charges.

You're telling the magistrates that the digiboards, the identification procedure was irrelevant because your client had made admissions in his video record of interview, didn't you? --- That was also because my client had changed his instructions to me.

Regardless of your client's instructions, you told the Magistrate that it was not relevant ­ not relevant because of the admissions made by your client in his video record of interview, didn't you? --- That was in the context of my client having changed his instructions to me, Mr Vandongen.

On page 72, at the bottom of that interchange you were offered the opportunity to look at the digiboard over lunchtime and you said, 'I have to look over it at lunchtime, but given that my client admits that he was present at the scene, it's just he disputes what occurred so I don't even think it's necessary to tender that evidence'. ...

Your client admitted it in the video record of interview. What difference could your client's instructions have made? --- Because I had previously got instructions from my client as to his state of stupefaction at the time of that video interview or that he wasn't in a fit state for various reasons. So I had anticipated making application to exclude the video record of interview, but that changed as my client's instructions ---

You never made an application to exclude the video, did you? --- Because my client's instructions changed.

Despite the matter going on for a number of months, you never made that application or even hinted at making the application? --- Because the hearings didn't proceed. The first one got adjourned in [sic] 19 February because of lack of full disclosure. The second hearing didn't proceed because, again ­ it wasn't again lack of disclosure, it was the [victim]'s issue and his medical unfitness. So the opportunity had not yet arisen. They don't have voir dires in the Magistrates Court to decide these admissibility issues before hearing. It's done at the hearing.

You were required under the Criminal Procedure Act to give the prosecution at that stage 14 days notice of any objections to evidence, weren't you? --- That's never done.

You were required as a matter of law to give 14 days notice weren't you? ... Yes, I probably was.

And you did not, did you? --- No, I did not.

Because there was never going to be any objection? --- No that's not true. The instructions I had from my client changed, as instructions from clients frequently do. They advise you that they didn't know what they were talking about in the interview and so forth, and then later on they concede that they did know what they were talking about. (T:60.5­63.3, 17.11.11)

88 Ms in de Braekt called Mr Graham McCorry to give character evidence on her behalf. Mr McCorry has known Ms in de Braekt since 1994 when they were both employed with the Department of Productivity and Labour Relations, as it was then known. Mr McCorry said that he knows Ms in de Braekt very well and has interacted with and observed her in a variety of professional and social settings and situations. Mr McCorry gave the following evidence:

I find it impossible to believe that Ms in de Braekt would ever recklessly or deliberately mislead a court or tribunal.

For Ms in de Braekt to have recklessly or deliberately misled a court, she would be acting in a manner quite inconsistent with everything I have seen her do, since I first met her, & observed her work performance in 1994. I am aware of at least one instance when Ms in de Braekt refused to comply with the Department's wishes in relation to a matter because she considered it an improper interference with her statutory duty as an industrial inspector.

(Exhibit 20, paras 13 and 14)

89 However, very little weight that can be placed on Mr McCorry's evidence for two reasons. First, Ms in de Braekt did not inform Mr McCorry of a finding made against her by the Tribunal in another disciplinary matter that, in the course of legal practice, she made allegations or alternatively conveyed allegations of impropriety, unsatisfactory professional conduct or professional misconduct about another legal practitioner in circumstances where Ms in de Braekt had no, or alternatively no reasonable, grounds for making or conveying such allegations (Legal Profession Complaints Committee and in de Braekt [2011] WASAT 1). Second, when, in cross-examination, Mr McCorry was asked whether, if the finding made by the Tribunal in the other proceeding were true, it would change his assessment of Ms in de Braekt's character, Mr McCorry said:

I would have to know the circumstances. I don't think so. (T:206.2, 22.2.12)

90 Similarly Mr McCorry gave the following evidence in cross­examination:

Now, you've given some assessments of Ms in de Braekt's character in your statement. I just want to put a proposition to you and see whether or not that affects your assessment of her character. If it were true that Ms in de Braekt had deliberately refused to comply with orders made by a tribunal, would your assessment of her character change? --- I'm not sure. Not necessarily. It depends on who's made the finding.

Well, if a tribunal constituted by law under a statute of this state had made binding orders upon Ms in de Braekt which she flouted, would your assessment of her character change? --- I'd be surprised if that was the case, but it wouldn't change my assessment of her character.

So let's take that in two steps. Firstly it wouldn't change your assessment of her character? --- No.

Secondly, it would be surprising to you, based on the person that you know? --- Yes.

So based upon your interactions with her, that sounds out of character? --- Yes.

(T:199.9-200.3, 22.2.12)

91 As Mr McCorry was not aware of relevant information in relation to Ms in de Braekt's character, and would not alter his opinion of her when he was advised of this information or a hypothetical situation that might be seen to cast doubt upon her character, we do not consider that he has assessed Ms in de Braekt's character in a balanced and objective way, and we therefore place very little weight on his evidence.

92 Allegation (a) turns largely on the credibility of three witnesses, namely, Constable Squire, Senior Constable Neas and Ms in de Braekt. The Tribunal has earlier found Constable Squire and Senior Constable Neas to be honest, impressive and impartial witnesses, with a distinct recollection of the disclosure of the documents in question. The Tribunal, therefore, accepts their evidence that the colour digiboards in relation to the APC matter were served on Ms in de Braekt, by leaving them in the locked post box of her office on 26 May 2009 and 25 June 2009 and by sending them to her by registered post on 27 May 2009 and 25 June 2009. As we accept Constable Squire's and Senior Constable Neas' evidence, and as, on Ms in de Braekt's evidence, there is no possibility that disclosure documents placed into the post box of her office would have gone missing, we do not accept Ms in de Braekt's denial of having received the colour digiboards. Furthermore, in light of the Tribunal's findings above and below in relation to aspects of Ms in de Braekt's evidence, the Tribunal has significant doubts as to her truthfulness and credibility.

93 The Tribunal therefore feels an actual persuasion on the evidence, in accordance with the Briginshaw principle, that the colour digiboards in relation to the APC matter were disclosed to Ms in de Braekt by Constable Squire on four occasions in May and June 2009, namely, by being placed into the locked post box outside Ms in de Braekt's office on 26 May 2009 and on 25 June 2009, and by being sent by Constable Squire to Ms in de Braekt by registered post on 27 May 2009 and again on 25 June 2009. As Ms in de Braekt gave evidence that it is not possible for disclosure documents placed into the locked post box of her office to have gone missing and that, while she occasionally misplaces a document, she always finds it again, the Tribunal is satisfied on a balance of probabilities that Ms in de Braekt knowingly and intentionally misled the Magistrates Court on 4 June 2009 and on 6 July 2009 by stating to the court that she had never received disclosure of a colour digiboard from the police in the APC matter when such disclosure had been made to her.

94 While it is unnecessary for the Tribunal to come to a finding in relation to Ms in de Braekt's motivation for misleading the court on 4 June 2009 and 6 July 2009, it appears that she did so on 4 June 2009 in order to support an application for the proceeding against APC to be dismissed on the basis of the failure of the police to provide disclosure of the digiboards. Although the proceeding in relation to APC was listed for hearing on 4 June 2009, and although Ms in de Braekt was required as a matter of law to give 14 days' notice of any objections to evidence, she did not provide notice prior to the hearing on 4 June 2009 of any objection to the video record of interview in which APC made admissions that he was present at the scene. As Ms in de Braekt conceded at the hearing on 6 July 2009, the digiboard identifications were not in issue, because of the admissions made in the video record of interview (to which no objection was foreshadowed or taken). Ms in de Braekt's failure to give notice prior to the hearing on 4 June 2009 of an objection to the video record of interview shows that she did not intend to dispute that her client was present at the scene. She therefore did not require the colour digiboards for any legitimate forensic purpose. Thus, it appears that she misled the court on 4 June 2009 that she had not received disclosure of the colour digiboards in order to enable her to make a technical argument for the dismissal of the proceeding on the basis of non­disclosure. The Tribunal did not find Ms in de Braekt's evidence that her client's instructions changed (between 4 June 2009 and 6 July 2009) convincing, because Ms in de Braekt had not given notice of an objection to the video record of interview prior to the hearing scheduled for 4 June 2009. It is unclear why Ms in de Braekt misled the court on 6 July 2009 that she had not received disclosure of the colour digiboards, other than perhaps for consistency. However, as noted earlier, it is unnecessary for the Tribunal to come to a finding as to Ms in de Braekt's motivation for misleading the court on either 4 June 2009 or 6 July 2009, and we do not do so.

95 Ms in de Braekt's conduct in knowingly making misleading statements to the court would constitute professional misconduct of a most serious nature at common law and is professional misconduct under the LP Act, in that it was conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence. Ipp J held in Kyle at [6] as follows:

It is the essence of a charge of unprofessional conduct involving misleading the court that the practitioner concerned is guilty of having done something dishonourable: see Re Cooke (1889) 5 TLR 407 at 408, per Lord Esher MR (with whom Fry and Lopes LJJ agreed). The dishonourable quality lies in knowingly misleading the court: see Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297, per Denning LJ; Vernon v Bosley (No 2) [1997] 3 WLR 683; [1997] 1 All ER 614. A practitioner who knowingly misleads a court will do so dishonestly. Therein lies the unprofessional conduct. ...

96 As Parker J (with whom Ipp J, at [1], and Steytler J, at [22], agreed) held in Kyle at [66]:

The duty of counsel not to mislead the court in any respect must be observed without regard to the interests of the counsel or of those whom the counsel represents. No instructions of a client, no degree of concern for the client's interests, can override the duty which counsel owes to the court in this respect. At heart, the justification for this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by counsel is essential to maintain and justify the confidence which every court rightly and necessarily puts in all counsel who appear before it.

97 Furthermore, as the Court of Appeal observed in Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61]:

For a practitioner, in the course of his or her practice, intentionally to mislead anyone is a serious breach of the practitioner's professional duty. But the finding in the present case that the appellants intentionally misled the court is of particular significance. It goes to the very heart of a practitioner's duty as an officer of the court and therefore to the proper administration of justice. ...

Allegation (b) ­ Was the practitioner persistently discourteous and offensive to Magistrate Woods during a hearing?

98 As noted in relation to allegation (a), on 4 June 2009, the prosecutor made an application before Magistrate Woods for the adjournment of the trial in relation to APC, which was listed for hearing that day, because the victim had undergone an operation on the previous day. The prosecutor made a brief submission in support of the application for an adjournment and then Magistrate Woods called on Ms in de Braekt to make her submissions. Ms in de Braekt made submissions in opposition to the application for an adjournment which are recorded over about one and a half pages of the transcript, and then said 'Those are my submissions'. Ms in de Braekt conceded in cross­examination that she finished her submissions at that point (T:69.8, 17.11.11). The magistrate then invited the prosecutor to make any submissions in reply and the prosecutor made a brief reply submission. The magistrate then asked the prosecutor about the disclosure of the digiboards which Ms in de Braekt had raised in her submissions. When the prosecutor said that the material was back at his office, the following exchange took place:

IN DE BRAEKT, MS: That's not good enough, your Honour, and furthermore that ---

HER HONOUR: Ms in de Braekt, I didn't ask you. Have a seat.

IN DE BRAEKT, MS: Well, I've got further submissions to make.

HER HONOUR: Have a seat.

(Exhibit 2, 26.3-.4)

99 Following further discussion between Magistrate Woods and the prosecutor in relation to disclosure of documents, the following exchange took place:

HER HONOUR: Okay. Ms in de Braekt?

IN DE BRAEKT, MS: Well, I find that remarkable. Obviously the sergeant's presuming that this adjournment application is going to be approved because otherwise how would he proceed with the case if the digiboard stuff was back at the office? Furthermore, there's no evidence before this court that the procedure that [the victim] underwent was urgent or necessary or lifesaving; none at all.

HER HONOUR: It's not necessary, Ms in de Braekt. The simple fact of the matter ­

IN DE BRAEKT, MS: Well, with respect, your Honour, it is necessary because if [the victim] didn't go ---

HER HONOUR: Ms in de Braekt, I make the decisions in this court not yourself.

IN DE BRAEKT, MS: Excuse me, your Honour, I'd like to finish my submissions.

HER HONOUR: Have a seat.

IN DE BRAEKT, MS: I'd like to finish my submissions.

HER HONOUR: Have a seat.

IN DE BRAEKT, MS: I'd like to finish my submissions.

HER HONOUR: Have a seat.

IN DE BRAEKT, MS: I'd like to finish my submissions. I don't think this court can make a proper informed decision without me finishing my submissions.

HER HONOUR: Have a seat, Ms Ms in de Braekt.

IN DE BRAEKT, MS: I'd like to finish my submissions and if your Honour doesn't allow me to finish my submissions, then with ---

HER HONOUR: Have a seat in the back of the court. The matter will be stood down. Thank you.

IN DE BRAEKT, MS: I respectfully submit that your Honour should disqualify herself in this matter and should send it to another magistrate to determine. Clearly, your Honour is not able to deal with this matter impartially or not maintain a perception ---

HER HONOUR: Ms in de Braekt.

(Exhibit 2, 27)

100 The Tribunal listened to the recording of the hearing before Magistrate Woods on 4 June 2009 and the recording became Exhibit 10 in the proceeding. It was apparent from the recording that there was a distinct pause between Magistrate Woods saying that 'the matter will be stood down. Thank you.' and the application made by Ms in de Braekt that her Honour should recuse herself on the grounds of actual or perceived bias.

101 Magistrate Woods later recalled the matter. The following exchange then took place:

HER HONOUR: In relation to this matter, Ms in de Braekt, you wanted to make some further comment.

IN DE BRAEKT, MS: Yes, the further comment that the defence wish to make, there is no evidence before the court about the kind of procedure that it was other than what was provided to his Honour, Magistrate Heaney, last Friday. So the indication that it had to be done yesterday, there's no evidence before the court that any efforts were made by the witness to schedule that procedure for a time that didn't interfere with the witness summons commitments. No evidence of that nature at all. Nothing before the court to say that he couldn't do it on another day and what efforts were made because presumably he is under witness summons and there's no evidence before the court whatsoever to say that he went to any endeavour to schedule that so it wouldn't clash with his witness summons commitment and also, with respect, that we also say that your Honour is not able to deal with this matter due to a perception of bias.

Telling defence counsel to have a seat at the back of the courtroom like they were an accused person is with respect beyond the pale and it is something that I took great offence at and it does cause a reasonable person to perceive that your Honour wouldn't be able to bring a fair and impartial mind free of pre-judgment of the determination of the adjournment application. May it please, your Honour.

HER HONOUR: Thank you. Did you want to make any other comments, Sergeant?

PROSECUTOR: No, your Honour.

HER HONOUR: In relation to this matter, I don't intend to disqualify myself. The application has properly been brought before the court. The outcome of the matter is of no consequence to me. ...

(Exhibit 2, 28)

102 Her Honour then allowed the adjournment application on the basis of the medical certificate.

103 It is clear from the recording of the hearing, supplemented by the transcript, that Ms in de Braekt interrupted the magistrate at a point when it was obvious that her Honour was about to give a ruling in relation to the adjournment application. When cross­examined about this, Ms in de Braekt said that she thought that the ruling was 'imminent', but she did not think that she had interrupted the ruling (T:72.6, 17.11.11). Ms in de Braekt said that she thought Magistrate Woods 'was just cutting off my submissions and not allowing me to finish them' (T:73.3, 17.11.11). However, as Ms in de Braekt conceded, she had completed her submissions in relation to the adjournment application earlier when she said 'Those are my submissions'. The prosecutor then made a brief reply and her Honour raised the question of disclosure of the digiboards. After the prosecutor explained the situation, as he understood it, in relation to disclosure of the digiboards, her Honour allowed Ms in de Braekt to comment on that issue. Ms in de Braekt did that and completed her comment with the sentence:

Furthermore there's no evidence before this court that the procedure that [the victim] underwent was urgent or necessary or lifesaving; none at all.

104 It was obvious that her Honour was about to give a ruling in relation to the adjournment application when she said:

It's not necessary Ms in de Braekt. The simple fact of the matter ---.

105 If, as Ms in de Braekt said, she considered that the ruling was only 'imminent', but her Honour was not about to give the ruling at that point, it would have been obvious to Ms in de Braekt that the ruling was about to be given when her Honour responded to Ms in de Braekt's interruption by saying:

Ms in de Braekt, I make the decisions in this court, not yourself.

106 Ms in de Braekt then said 'I'd like to finish my submissions', and was told by her Honour to 'have a seat' on four separate occasions. Each time Ms in de Braekt was told to 'have a seat', she replied 'I'd like to finish my submissions'. The audio recording reveals that Ms in de Braekt adopted a belligerent tone in each of these statements. When, after being told for the fourth time to 'have a seat', Ms in de Braekt again, in a belligerent tone, said 'I'd like to finish my submissions and if your Honour doesn't allow me to finish the submissions, then with ---', Magistrate Woods, quite understandably, decided to stand the matter down and therefore told Ms in de Braekt to 'have a seat in the back of the court'. As noted earlier, there was a distinct pause in the recording at this point. Rather than complying with her Honour's direction, and although the matter had been stood down, Ms in de Braekt then made a submission for Magistrate Woods to disqualify herself on the basis of actual or perceived bias.

107 Under cross­examination, Ms in de Braekt gave the following evidence:

You were directed on four occasions to have a seat, weren't you? --- And can I say to you that ---

The answer to my question is either a yes or a no? --- Yes, but not to have a seat at the bar table.

Are you suggesting that on those four occasions that Magistrate Woods said, 'Have a seat,' that you thought you were being directed to sit at the back of the court? --- Yes, because that is where her Honour's head was going as she was saying it. She was saying 'Have a seat. Have a seat,' and she was turning her head to the back left area of the courtroom. But the transcript doesn't show that and neither does the recording.

When you gave evidence this morning, which expanded beyond the very limited 16 paragraphs of your statement, on no occasion did you tell the Tribunal that Magistrate Woods indicated with her head or otherwise that you were to sit in the back of the court, did you? --- No, I didn't. But it was clear from my testimony that that's what I thought that she was saying to me, and that's what she was saying to me, and then she eventually articulated it orally in addition to the physical movements. Because she said, 'Have a seat in the back of the court.'

Did you sit down in the back of the court, Ms in de Braekt? --- I couldn't sit down at the back of the court, there were no seats. (T:74.3­.7, 17.11.11)

108 When Ms in de Braekt was later asked questions by the Tribunal in relation to the physical configuration of the courtroom in which she had the exchange with Magistrate Woods on 4 June 2009, Ms in de Braekt said that there was a Bar table with one seat on her side and one seat on the prosecutor's side. Ms in de Braekt gave the following evidence in response to questions from the Tribunal:

So when, so I understand what happens in the Magistrates Court when a magistrate is making a ruling, if there's a prosecutor and a defence counsel, the counsel sit at those two seats you just described typically? --- If the ruling is directed to one particular party, so if it was directed to, like, defence counsel, then I would actually stand for that, as a sign of respect, if it was being directed to one party. If the ruling was being directed to both parties, having equal effect on both parties, then, in my experience, both parties sit.

Yes? --- That's my experience.

At those seats at the bar table. Is that right? --- Yes, that's right. One seat on each side, in that courtroom. In some - in a lot of courts there are two, but in that court it's very small, there's only one. (T:83.1­83.3, 17.11.11)

109 The Tribunal does not accept the veracity of Ms in de Braekt's evidence that Magistrate Woods was 'turning her head to the back left area of the courtroom', as if to direct her to sit at the back of the court, when she told Ms in de Braekt to 'have a seat' four times. Ms in de Braekt had not made any suggestion of this sort in her submissions to the Committee in relation to this allegation, in her witness statement (Exhibit 11), or in her oral evidence in chief which occupied some 30 pages of transcript. Furthermore, this evidence is not consistent with the physical configuration of the courtroom, which included a Bar table with a seat for defence counsel, at which Ms in de Braekt said counsel would sit during a ruling addressed to both parties, or with Ms in de Braekt's evidence that 'there were no seats' free at the back of the courtroom. Furthermore, as noted earlier, Magistrate Woods had to twice direct Ms in de Braekt to 'have a seat' on an earlier occasion during the discussion about the disclosure of the digiboards, because Ms in de Braekt interrupted her Honour when she was not being asked to address the court. It appears that Ms in de Braekt did take a seat (at the Bar table) on that occasion after being told to do so for the second time. The Tribunal therefore finds that Ms in de Braekt's evidence that Magistrate Woods indicated with her head that Ms in de Braekt was to take a seat at the back of the courtroom when, on four occasions, she told her to 'have a seat', was not truthful and, indeed, appeared to have been made up on the spot.

110 It is certainly the case, as Ms in de Braekt contended, that counsel is required to 'advocate fearlessly for their clients, particularly clients in criminal matters who are remanded in custody', as was APC. However, that is not an excuse for being persistently discourteous and offensive to a judicial officer, as was Ms in de Braekt in this case. As Lord Reid said in Rondel v Worsley [1969] 1 AC 191 at 227:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. ...

111 The Tribunal can well understand that, when the liberty of a client is at stake and in the heat of argument, counsel may have to be told to sit down once or twice by a judicial officer, although in such a case, the Tribunal would expect an immediate and genuine apology from counsel. However, for counsel to have to be told by a judicial officer to 'have a seat' on four occasions and for counsel to still argue with the judicial officer such that the judicial officer has no practical alternative but to stand the matter down, would be regarded as disgraceful or dishonourable by practitioners of good repute and competence. This is the case whether or not counsel had completed their submissions and the judicial officer was about to give a ruling, which was the case in this matter. Ms in de Braekt's persistent interruptions and repetitive demands of Magistrate Woods on a total of five occasions, and her belligerent tone, without offering any apology to her Honour whatsoever, is such serious conduct as to, in our view, transcend unsatisfactory professional conduct and constitute professional misconduct under the LP Act.

112 In her Respondent's Answer to the Committee's application filed on 6 December 2010, Ms in de Braekt referred to the decision of the Administrative Decisions Tribunal of New South Wales in New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85 (Caffrey), in which a barrister was found to have engaged in 'unsatisfactory professional conduct' (within the meaning of s 127(2) of the Legal Profession Act 1987 (NSW)) in the course of an arbitration in the Local Court. The barrister's conduct in Caffrey included accusing the Arbitrator of being 'already prejudiced against us', saying to the Arbitrator 'Have you ever heard of the rule in Browne v Dunn?', describing the Arbitrator's conduct as 'abominable', and saying to the Arbitrator 'You scare me' and later 'I'll bring another pair of underpants along'. In her Answer, Ms in de Braekt said that the barrister in Caffrey 'was only found guilty of unsatisfactory conduct & not professional misconduct'. Ms in de Braekt did not refer to Caffrey in her closing submissions. In any case, it is clear from [66] of Caffrey that the NSW Bar Association only sought a finding of 'unsatisfactory professional conduct' against the barrister, not professional misconduct. Furthermore, each case needs to be assessed on its own facts. Caffrey does not warrant a different result in the present case from that to which the Tribunal has arrived earlier.

113 Furthermore, Ms in de Braekt conceded that she then made a legal submission that Magistrate Woods was '(a) actually biased, or (b) that there was a perception that she was biased' (T:77.4, 17.11.11). Ms in de Braekt explained her understanding that submissions of actual or perceived bias 'are always made' together (T:77.6, 17.11.11). Ms in de Braekt gave the following evidence in cross­examination:

Well, the submission was made on the basis of actual or perceived bias, and that submission, and there weren't separate submissions made for each of those things, there was one joint submission, and that submission was well-founded because she wouldn't let me finish my submissions. (T:79.5, 17.11.11)

114 By way of re-examination, Ms in de Braekt gave the following evidence:

With regards to submissions about perceived or actual bias, on the rare occasions that that sort of submission is made, I always make submissions in the alternative like that, and also the reasons for making those submissions are the same for perceived or actual bias. That's how I always approach it, so it's not a separate submission made for each of those limbs. The arguments that apply to one apply to the other one, so there's no some separate argument for perceived or actual basis. The same arguments are used. The reason why then I only mentioned a perception of bias afterwards, later on in the appearance, is because I probably just focused on the lowest hurdle that needed to be met. You don't need to meet an actual bias hurdle for the application to succeed. It only needs to meet the perception of bias hurdle, so there's not really any need to address the higher hurdle. (T:87.9-88.1, 17.11.11)

115 In her evidence to the Tribunal, Ms in de Braekt suggested that she had four reasons for making the application for Magistrate Woods to disqualify herself on the grounds of actual or apprehended bias. First, at the commencement of the hearing, her Honour had a conversation with the judicial support officer about other available trial dates. Second, Magistrate Woods would not allow Ms in de Braekt to finish her submissions. Third, her Honour told Ms in de Braekt to 'have a seat at the back of the court'. And fourth, Magistrate Woods stood the matter down to later in the list, when there would not be any magistrates left to hear the proceeding.

116 Ms in de Braekt's evidence revealed a fundamental misunderstanding about when an application for a judicial officer to disqualify themself on the grounds of bias can properly be made. Actual bias and apprehended bias are separate concepts in law and they are not properly the subject of 'one joint submission', as Ms in de Braekt suggested. As Newnes JA held in Chin v Legal Practice Board of Western Australia [2011] WASCA 110 (Chin) at [3]:

The test to be applied in determining whether, in a case like the present, a judge is disqualified by reason of the appearance of bias is whether a fair­minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492. The plurality in that case pointed out (493) that in applying that test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.

117 In contrast, as Newnes JA held in Chin at [5]:

Where a party contends that actual bias exists, the applicant must show that the mind of the decision­maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision­maker has pre­judged the case against the applicant, or acted with such partisanship or hostility as to show that the decision­maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].

118 Given that, when the matter was recalled by Magistrate Woods and Ms in de Braekt was given the opportunity to make further comments, the only basis upon which she made an application for Magistrate Woods to disqualify herself was 'telling defence counsel to have a seat at the back of the courtroom like they were an accused person', the Tribunal does not accept Ms in de Braekt's evidence that the other three matters she referred to were factors in her mind when she made the application for her Honour to disqualify herself. The Tribunal considers, with respect, that her Honour handled Ms in de Braekt's persistent discourtesy and offensive behaviour with equanimity and in an entirely appropriate way. Having directed Ms in de Braekt to 'have a seat' four times, to no avail, her Honour stood the matter down. Telling Ms in de Braekt to 'have a seat at the back of the court' could not, in the circumstances, possibly provide an arguable basis for a submission of actual bias, nor, indeed, even for a submission of perceived bias. A fair­minded lay observer of the exchange between Magistrate Woods and Ms in de Braekt on 4 June 2009 would not reasonably apprehend that her Honour might not bring an impartial and unprejudiced mind to the resolution of the question she had to decide. Rather, a fair­minded lay observer would consider that her Honour acted entirely appropriately.

119 Furthermore, none of the factors on account of which Ms in de Braekt said in evidence that she made the application for Magistrate Woods to disqualify herself on the basis of actual bias provided a reasonable basis, in the circumstances of the case, for an allegation of actual bias. Making an enquiry as to alternative available trial dates, if such an enquiry was made, may be relevant in the exercise of discretion as to whether to grant an application for an adjournment and does not demonstrate that the mind of the decision-maker is so committed to granting an adjournment as to be incapable of alteration, whatever evidence or arguments may be presented. It does not demonstrate pre­judgment. Ms in de Braekt had completed her submissions in relation to the adjournment application when she said 'Those are my submissions'. If she had wished to seek leave to make further submissions, then she should have said so, although it appears that the submissions that she ultimately made when the matter was recalled were largely repetitive of submissions that she had originally made. Finally, the fact that the matter was stood down was due to Ms in de Braekt's extraordinary display of discourteous and offensive behaviour, and hardly demonstrated any pre­judgment of the adjournment application.

120 It follows that Ms in de Braekt made an entirely unfounded allegation of actual bias against a judicial officer. The making of an allegation of actual bias against a judicial officer, in circumstances where there is absolutely no basis for the allegation, involves conduct that would be regarded as disgraceful or dishonourable by practitioners of good repute and competence and is sufficiently serious to constitute professional misconduct under the LP Act. The Tribunal therefore finds that Ms in de Braekt was offensive and discourteous to Magistrate Woods and thus guilty of professional misconduct in this respect as well.

Allegation (c) - Did the practitioner send emails to Detective Constable Broadley which were offensive and discourteous?

121 In June 2009, Ms in de Braekt acted as defence counsel for an accused, PV. On 15 June 2009, Detective Andrew Broadley sent Ms in de Braekt the following email:

Megan

Two discs in relation to [PV] (the vehicle stop and the search of his home) have been copied and delivered to me - they are now ready to be served.

Let me know what your movements are this week and we can choose a mutually suitable time to serve them, either at your office or at mine. Thank you.

122 On the same day, Ms in de Braekt responded to Detective Constable Broadley as follows:

Please see the bottom of each of my email messages for instructions on delivery of materials to my office.

I am in court nearly all day, every day this week. When I am not in Court this week, I will be at prisons visiting my clients.

I will also be in the Supreme Court every day, all day, next week, in the trial of The State of WA -v- [B & C].

123 Later that day, Detective Constable Broadley responded to Ms in de Braekt by email as follows:

Megan

Material will have to be signed for when it is handed over.

Let me know when you are free.

124 On 16 June 2009, Ms in de Braekt responded to Detective Constable Broadley by email as follows:

NO other officer requires this, only you.

You are taking the wrong approach with my client & I Detective Broadley.

Which statute requires me to sign for it when it is handed over?

Answer: NONE.

The Criminal Investigation Act does not impose this as a requirement, & the Magistrate did not impose this as a requirement either.

Therefore please follow the previous instructions I have provided you with for service & stop being so obstructive.

125 On 17 June 2009, Detective Constable Broadley responded to Ms in de Braekt by email as follows:

Megan

Every officer I know follows policy which is that when material is handed over to accused persons or their counsels [sic] a signature is received to say that it has been delivered. Some officers choose not to and that is there prerogative, however it was only last month a lawyer representing an accused person I had charged attempted to claim to the court that we had not disclosed material, however this was negated by the signature on the receipt of service. This is why signatures are obtained - to cover the police and ensure accurate records of all movements of material are kept.

If you feel I am being obstructive then I am sorry, however I would suggest you meet me half way instead of directing that I jump to your every demand and following your directions to the full.

Again ... you will have to sign for ANY material served in relation to this matter, and any other matter. This is something I have done with every lawyer, in every criminal case I have been a part in for the last 7 years. And you are the first and only person to take such an issue with it.

As I said, lets [sic] find a mutually beneficial time ... I drive through Vic Park most morning[s] at around 7 - 7[.]30am. If you are in (or meet me half way and head into your office a little early to meet me) then I can stop off and serve it. Alternatively if you are in Perth Court come to Curtin House or I can meet you at the court. Alternatively, send your client into Curtin House and he can get it.

There are a vast number of ways to do this and if you make a little effort then we both achieve our desired outcomes.

Let me know.

Regards,

126 On the same day, Ms in de Braekt responded to Detective Constable Broadley by email as follows:

I don't have to do anything you request of me & I certainly don't have to 'meet you half way'.

Policy is not law Detective Broadley.

I don't care what your or the Police in general's policy is, the POlice have no power to apply any policy to me, nor to require me to do antyhing [sic] to meet one of their 'policies'.

You know my policy, as it has been explained in detail to you in previous emails.

My policy is to adhere to the law & not to exceed legal obligations.

Of course, you have not been able to point to any law requiring I personally receive these DVDs & you have no 'prerogative' over me or my client.

You are not Parliament & you cannot impose additional requirements on top of what the Criminal Investigation Act requires.

Just because you are a Police officer does not mean you can make up your own laws & impose them on other people.

So provide the DVD's to me as I have previously directed.

You are already in breach of the CIA by not having provided my client VROI to me within 14 days of my request.

Police aren't above the law Detective Broadley.

So do your job in accordance with the law & stop attempting to bully me into doing things I am not legally obliged to do, & will not do.

That sort of approach does not work with me.

Therefore stop refusing to comply with the Magistrates' Order & the CIA & give me those DVD's as per my previous directions & as you are legally required to do.

You do remember the law don't you?

How about also answering those questions I have put to you numerous times in emails but which you have refused to answer?

I always become extremely suspicious about the strength & veracity of the Police case against a client when they refuse to answer such questions, as you have done.

If I don't receive those DVD's by this Friday I shall take the matter back to Court. (Emphasis in bold added)

127 On the same day, Detective Constable Broadley responded to Ms in de Braekt by email as follows:

I have tried to get this disc to you. I do not know why you are refusing to simply sign a receipt to simply say you have received it.

And let me point out what the CIA actually says:

s 117(1) Criminal Investigation Act

If an audio visual recording is made of an interview and the suspect is charged with an offence to which the interview relates, a copy of the recording must be made available to the suspect or the suspect's lawyer within 14 days after the suspect is so charged or, if that is not practicable, as soon as practicable after that period.

I fulfilled my obligations by making this available to you within the time period and have tried to get it to you. Even today, I suggested you let me know a mutually beneficial time for it to be served. You spent however long typing your previous email - you could have let me know you were in the office and I could have served it by now.

I will now, again, fulfil my obligations under the CIA and tell you the disc is available for collection at Perth Police Station, Curtin House, 60 Beaufort Street, Perth. I will leave it at the front counter and it will be accompanied by a receipt for its service. Either attend personally or have your client collect it.

I will not answer questions you put to me over email - disclosure will be made in time. You will be served all material that is to be disclosed and which is relevant to the charge.

128 On 24 June 2009, Ms in de Braekt replied to Detective Constable Broadley by email as follows:

you have not tried because you have not sent it to me now please send it to me straight away!

129 On 25 June 2009, Detective Constable Broadley responded to Ms in de Braekt by email as follows:

Megan

As I have said, it is available at the below address. Please attend and collect it.

130 On the same day, Ms in de Braekt responded to Detective Constable Broadley by email as follows:

I am unable to attend, please mail it to me.

You have to provide it to me.

Please post it like everyone else does.

Do you want me to have to explain your ridiculous approach to the Court?

Am I going to have to make a complaint about you in order to have that DVD sent to me?

If you don't advise me by COB tomorrow that you have mailed it to me, I will complain about you.

131 On 26 June 2009, Detective Constable Broadley responded to Ms in de Braekt by email as follows:

Megan

I have tried repeatedly to serve it and you have refused to accommodate in any way, shape or form. All I asked for was a signature so we have a record of what has been served. I don't think this is unreasonable.

In order to obtain this, I told you I would attend your office at a time you wanted, or meet you in Court, or anywhere. These are the numerous accommodating attempts I have made, and you continue to refuse anything except for me to drop it in an unsecure box at your office door or mail it.

I take the security and confidentiality of accused persons very seriously ­ disclosure material contains information that should not be in the hands of anyone but the authorised persons. Mail and the like are not secure forms of handing over material and I will not do it. I will hand material over and you can then do with it what you will.

You have repeatedly refused to simply sign a receipt. A simple signature so that the prosecution have an accurate record of what has been disclosed to the defence.

And again, I do not have to provide it, I have to make it available to you, which it is.

We are of the belief we are not being unreasonable in our approach in saying we will accommodate the service in order to obtain a receipt of service. I am sure the court will agree.

132 On 29 June 2009, Ms in de Braekt responded to Detective Constable Broadley by email as follows:

It is not a lawful requirement for me do so, & I am not going to be bullied by you.

It would seem you're not used to a Lawyer standing up against your bullying & unlawful attempts to impose unlawful conditions on the provision of accused's VROI's.

I am not going to & I cannot wait around in my office to sign something that I am not legally required to sign & give in to you [sic] disgraceful bullying & unprofessional behaviour.

You just don't get it do you.

You cannot lawfully impose extra conditions to suit your fancy on the provision of this VROI to me, when there is no requirement under the CIA for me to sign for its receipt.

NO other officer has ever had a problem - ONLY YOU!

Simply post it, that's all you have to do.

Have you ever posted anything before Detective Broadley?

You need to realise Detective Broadley that just because you are a Police Officer does not mean you have limitless powers, nor does it mean that you have the lawful ability to change, alter or add to laws in any way that suits your fancy & enables you to 'get your own way'. (Emphasis in bold added)

133 Ms in de Braekt gave the following evidence in relation to this email exchange:

... In respect of that looking back on those emails now they probably were written in a way which was more forceful than what would have been most preferable. However, the things that I say in those emails are factually correct. I should also say that I have never encountered another police officer as being as difficult as what Detective Broadley was. Perhaps it may have been a case that he is a stubborn person and perhaps I am a stubborn person and two stubborn persons interacted there and that was the result. But I have not had that sort of difficulty with any other officer since or before then. Detective Broadley was the only who I encountered such problems with. I was very frustrated with Detective Broadley because he refused to even post the video record of interview of my client to me and the suggestion by La Spina that - Officer La Spina that it was inappropriate to post such sensitive materials in the mail as what is said in the email is ludicrous because other police officers do it all the time including Constable Squire and the DPP does it all the time. Barely a fortnight goes by when I don't receive a copy of a video record of interview in the mail. So the explanation as to why they refuse to send me the video record of interview in the mail because of its sensitive nature is entirely spurious and simply was a - well, has no factual accuracy and does not explain the lack of willingness to provide that material by post. I should also say that I did in my email replies ask or tell Detective Broadley my whereabouts for the following week and on the basis that he could attend there and provide the video record of interview to me personally. ... (T:30.9-31.4, 17.11.11)

134 Ms de Braekt also gave evidence that her statement in her email on 15 June 2009 that:

I will also be in the Supreme Court every day, all day, next week, in the trial of The State of WA -v- [B & C].

was an attempt to 'break the impasse' (T:32.1, 17.11.11) in that it was 'implicit' in those words that she would be 'available at sometime for [Detective Constable Broadley] to effect service of those documents' upon her (T:46.5, 17.11.11).

135 The Tribunal does not accept Ms in de Braekt's evidence that it was 'implicit' in the paragraph of her email dated 15 June 2009 set out above that she would be available for Detective Constable Broadley to effect service of the video record of interview on her at the Supreme Court the following week or that she was trying to 'break the impasse' in sending that email. The effect of Ms in de Braekt's statement about the Supreme Court proceeding was, and could have only been intended by her to mean, that she would not be available the following week for Detective Constable Broadley to effect service, because she would be in a trial for the whole of the week. The first paragraph of the email directed Detective Constable Broadley to 'the bottom of each of my email messages for instructions on delivery of materials to my office'. Rather than attempting to 'break the impasse', Ms in de Braekt was being difficult and obstructive.

136 Whether the Criminal Investigation Act 2006 (WA) (CI Act) required personal service and a signature from defence counsel for a video record of interview or not, the request made by Detective Constable Broadley was polite, reasonable, and involved an offer to find a mutually convenient time, including for Detective Constable Broadley to come to Ms in de Braekt's office when she is available. A video record of interview is a confidential document that, under s 120(2) of the CI Act, can only lawfully be in the possession of an 'authorised person' (within the meaning of s 120(1) of the CI Act), the suspect or the suspect's legal practitioner, a person who has possession of the recording in a sealed package as part of his or her duties as a person engaged by an authorised person or the suspect or the suspect's legal practitioner to transport it, or a person who was served with the recording under s 35, s 42, s 61 or s 95 of the Criminal Procedure Act 2004 (WA). Furthermore, as Detective Constable Broadley pointed out to Ms in de Braekt in his email dated 17 June 2009, s 117(1) of the CI Act only requires 'a copy of the recording [to] be made available to the suspect or the suspect's legal practitioner within 14 days after the suspect is ... charged or, if that is not practicable, as soon as practicable after that period'. As Detective Constable Broadley pointed out, this requirement could be fulfilled by making the recording available for collection at Curtin House.

137 Detective Constable Broadley showed courtesy and appropriate regard for the protection of confidential material by offering to bring the video recording to Ms in de Braekt at a mutually convenient time, including bringing it to her office when she was there and could sign for it. Ms in de Braekt's responsive torrent of discourtesy was uncalled for and unnecessary. Ms in de Braekt's statements that:

• Just because you are a Police officer does not mean you can make up your own laws & impose them on other people.
• Police aren't above the law, Detective Broadley.
• So do your job in accordance with the law & stop attempting to bully me into doing things I am not legally obliged to do, & will not do.
• You do remember the law, don't you?
• Do you want me to have to explain your ridiculous approach to the Court?
• Am I going to have to make a complaint about you in order to have that DVD sent to me?
• It would seem you're not used to a Lawyer standing up against your bullying & unlawful attempts to impose unlawful conditions on the provision of accused's VROI's.
• You just don't get it do you[?]
• Have you not ever posted anything before Detective Broadley? and
• You need to realise Detective Broadley that just because you are a Police Officer does not mean you have limitless powers, nor does it mean that you have the lawful ability to change, alter or add to laws in any way that suits your fancy & enables you to 'get your own way'.

are particularly unacceptable statements from a legal practitioner to a police officer.

138 The maintenance of a civil and constructive relationship between legal practitioners and police officers is essential to the proper functioning of the criminal justice system. However, the Tribunal recognises that email communications are both a blessing and a curse; they enable instantaneous communication, but sometimes too easily enable an intemperate communication that, on more mature reflection, the sender would rather not, and should not, have sent. Consequently, a legal practitioner sending a single discourteous email in connection with their legal practice, followed by a prompt and genuine apology, may not, depending on the circumstances, even amount to unsatisfactory professional conduct, or may not result in any substantive penalty, much less amount to professional misconduct.

139 However, the sending by Ms in de Braekt, in the course of her legal practice, of a series of six emails which were grossly offensive and discourteous in their tone and content, to a police officer, over a period of about two weeks, constituted professional misconduct in that it was conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, which compromises the maintenance of the relationship between legal practitioners and the police, to the detriment of not just the good standing of the legal profession, but also the proper functioning of the criminal justice system.

140 In her Respondent's Answer to the Committee's application filed on 6 December 2010, Ms in de Braekt referred to the decisions of the New Zealand Legal Complaints Review Officer in N v K [2009] NZLCRO 1 and S v J [2009] NZLCRO 3. Relying on N v K, Ms in de Braekt said that 'communications between litigants such as defence counsel and Police, are often brusque and aggressive & there is nothing wrong with this'. Relying on S v J, Ms in de Braekt said that 'a lawyer not being pleasant to another lawyer, to a Police officer or to another persons [sic], could never justify disciplinary proceedings being taken against such Lawyer'.

141 Ms in de Braekt did not refer to either of these decisions in her closing submissions. In any case, while in N v K the Legal Complaints Review Officer said at [8] that it is 'a usual incident of professional practice for letters sometimes to be sent in a brusque and aggressive tone', he then said that the letter in question in that case 'was not overtly discourteous'. In S v J one of three complaints against a lawyer was that the lawyer was discourteous to a client at a meeting. The Complaints Review Officer found that, assuming the complainant's version of events were accepted, the lawyer 'acted in a rather forceful manner' in giving advice about the withdrawal of an application to vacate a guilty plea. The Complaints Review Officer considered, at [46], that it is important, as no doubt it is to enable lawyers to give objective (and sometime unwelcome) advice to their clients, that 'parties (including lawyers) do not feel that they need to tiptoe around matters', and said that '[i]t is not the role of professional discipline to require lawyers to act pleasantly'. However, importantly, the Complaints Review Officer found in the same paragraph that:

... it does not appear, even on client S's version of events, that [the lawyer] was discourteous or rude to such an extent as to warrant any disciplinary sanction.

142 Neither N v K nor S v J warrants a different result in the present case from that to which the Tribunal has arrived earlier.

Allegation (d) ­ Did the practitioner send an email to Detective Inspector La Spina which was offensive, discourteous and threatening?

143 Understandably, Detective Constable Broadley forwarded the chain of emails with Ms in de Braekt which are the subject of allegation (c) to his superior, Detective Inspector Paul La Spina. On 29 June 2009, Detective Inspector La Spina sent the following email to Ms in de Braekt:

Ms in de Braekt,

I am the Officer in Charge of the Organised Crime Squad. I have been advised by Detective Broadley of the email correspondence received regarding service of video recorded interviews for an accused, [PV,] who I understand you represent.

I have been monitoring the email correspondence from you and it is clear from the tone of your emails that it is inappropriate to have further correspondence with you over this matter and I have instructed Detective Broadley not to enter into any further correspondence with you.

Detective Broadley has quite correctly declined your request to send sensitive material through the mail. He has made every effort to serve the material by offering to attend court or meet with you at a mutually convenient time. His only obligation is to make the material available, as soon as practicable, which has been done by advising you it is available for collection at the City Police Station. The request for a signature on collection (or delivery) is a widely accepted practice for all law firms across the state and is appropriate for the security of the material.

Regards,

144 On 30 June 2009, Ms in de Braekt responded to Detective Inspector La Spina by email as follows:

What a load of absolute rubbish!

He hasn't made any efforts to serve the materials on me.

He has acted inappropriately, unlawfully & obstructively.

What about his repeated failures & refusals to answer my very basic questions I have asked him about the charges against my client?

You condone that do you?

You think that is professional do you?

It would also appear that you don't understand the law either.

Where is the statutory provision which prevents VROI's being sent through he [sic] mail or deposited into my secured letterbox?

There isn't one.

The Police can't require me to adhere to any of their 'policies or practices,' or whims.

The DPP sends such DVD's through the mail all the time, therefore proving that you both are just being obstructive, & highly unprofessional.

You are police officers, _not l_egislators.

You both are a discredit to the WA Police Force, & a stark contrast to a number of other officers I deal with who are a credit to the WA Police Force.

I look forward to cross-examining you sometime in the future, in a trial.

(Emphasis in bold added)

145 Ms in de Braekt gave the following evidence in relation to her email to Detective Inspector La Spina:

In relation to my remark that, 'I look forward to cross-examining you in the future,' that email response that I sent, I was interrupted in replying, I started replying to that and that was La Spina who had sent it to me. But then I got interrupted and I didn't go back until later to finish it. In the meantime I had become distracted and when I was finishing that email and I wrote that line I had in my mind that I was writing back to Detective Broadley. Now, I know that might sound silly or whatever, but that is the truth and that is what I was thinking that I was replying to but it was actually replying to La Spina. Anyway, I had Broadley in mind because these communications emanated from communications with Broadley, that was the subject matter. I did say that, 'I look forward to cross-examining you in the future in a trial' but that wasn't in any way threatening because I do look forward to cross-examining in the future in a trial and the reason is because Detective Broadley was very obstructive and he didn't seem to have much regard for the law and he seemed to think that whatever the police said was law and it seemed to me to be a complete disregard and disrespect for the law. That in my usual experience matches police officers who are evasive when they are asked questions and so forth and that they are not then the kingpin of the law when they come to a court but the judge is and the court is and they have to do what they're told and they have to submit to the law and they are not mini unofficial parliaments then, they have to submit to the law and I do like to see police officers like that subjected to that sort of thing because then they understand what the real effect of the law is and they are then not above the law or the law kingpins but the court is and that's how it should be and they need to remember that in their duties because Detective Broadley's approach was not facilitative of justice or the court procedure, it was just he was just being obstructive and difficult. So that's why I look forward to cross­examining him. Now, how that is threatening I don't understand. I don't understand. I have asked the LPCC a number of times to explain what it is I was threatening. (T:32.8-33.5, 17.11.11)

146 The Tribunal does not accept the veracity of Ms in de Braekt's evidence that, when she wrote the email to Detective Inspector La Spina, she was interrupted and wrote the email in two sessions, with the last line written after the interruption and thinking it was being sent to Detective Constable Broadley, for two reasons. First, Ms in de Braekt did not refer to this in her extensive submissions to the Committee in relation to the matter that became allegation (d) or in her Respondent's Answer to the Committee's application filed on 6 December 2010. Given the obvious importance of the last line of Ms in de Braekt's email dated 30 June 2009 to allegation (d), if it were true that Ms in de Braekt wrote the email in two sessions and when she returned to it she mistakenly believed that she was writing to Detective Broadley, it would be reasonably expected that she would have said so in her submissions to the Committee and in her Answer filed in this proceeding. Second, Ms in de Braekt's evidence is inconsistent with her words in the last paragraph of the email 'sometime in the future' and 'in a trial'. As Ms in de Braekt conceded in cross­examination, at the time when she wrote the email Ms in de Braekt did not have a trial on the horizon involving Detective Inspector La Spina. However, there was a trial on the horizon involving Detective Constable Broadley, namely, the trial involving Ms in de Braekt's client, PV. Ms in de Braekt gave the following evidence under cross-examination:

There was a trial on the horizon in relation to Detective Broadley though, wasn't there? --- There was, the [PV] trial.

That was in relation to [PV], wasn't it? --- That's right.

So when you said, 'I look forward to cross-examining you sometime in the future in a trial,' you weren't referring to the [PV] trial, were you? --- I honestly can't remember exactly what I was thinking there, but 'a' would seem to indicate something more general, but I honestly can't recall what exactly I was thinking there.

Had you been saying that about - or to Detective Broadley, surely you would have said 'the trial'? --- I'm sorry, that wasn't an important thing to me when I was typing out that sentence. (T:51.2-.4, 17.11.11)

147 Had the 'you' Ms in de Braekt was referring to in the final paragraph of her email been Detective Constable Broadley, she would have said 'the trial', and she would not have said 'sometime in the future'. The Tribunal therefore finds that Ms in de Braekt gave untruthful evidence in relation to this matter.

148 While Ms in de Braekt requested 'particulars' from the Committee of the allegation that her email to Detective Inspector La Spina on 31 October 2011 was 'threatening', she did not seek any orders from the Tribunal to compel the provision of 'particulars' after the Committee's Amended Application was filed on 15 December 2010. Furthermore, the nature of the threat was plain on the face of Ms in de Braekt's email. The threat was, as suggested to Ms in de Braekt in cross-examination, that she looked forward to being in a position of power over Detective Inspector La Spina where she could make him 'squirm', because she was a lawyer and he would be a witness subject to her cross-examination.

149 The Tribunal finds that the tone and content of Ms in de Braekt's email to Detective Inspector La Spina dated 30 June 2009 was significantly discourteous and offensive and that the final paragraph was threatening. Although Ms in de Braekt sent only a single email to Detective Inspector La Spina, the combination of the tone and content of the email being so significantly discourteous and offensive to a senior police officer, and her threat to him, are such that Ms in de Braekt's conduct in sending that email transcended 'mere' unsatisfactory professional conduct and constituted professional misconduct, because it was serious misconduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence.

Allegation (e) ­ Did the practitioner behave in a discourteous and abusive manner to Mr Kanapathy in the course of carrying out her legal practice?

150 In late October 2008, changes were made to the security arrangements at the entrance to the Central Law Courts Building (CLC) at No 30 St George's Terrace, Perth. Whereas, previously, lawyers were exempt from having their bags checked by security personnel, from about 30 October 2008 onwards, lawyers were also required to submit all bags for a security check at the front door.

151 Ms in de Braekt attended the CLC on 30 October 2008 in order to represent a client, who was in Hakea Prison, in a video link court. When she was requested to allow the security personnel to check her handbag, she refused to do so. Ms in de Braekt took 'great offence' (T:162.6, 21.2.12) at this request and, indeed, considered it to be 'outrageous' (T:163.5, 21.2.12). She left the CLC and sat down on a bench outside. She contacted her client in prison and informed him that she would not appear for him that day because of the security arrangements. Her client, therefore, had to appear for himself. The next day, Ms in de Braekt sent a six page facsimile to Chief Magistrate Heath in which she described the requirement for lawyers to undergo bag searches at the CLC as, variously, 'ridiculous', 'unnecessary', 'offensive', 'insulting' and 'very upsetting' (Exhibit 13, 5­7). Ms in de Braekt proposed a 'solution' to the Chief Magistrate involving the issue of security access cards/identity cards for lawyers, instead of having their bags searched, and offered to meet his Honour to discuss the matter.

152 It is common ground that, on 16 January 2009, there was an incident involving Ms in de Braekt and Mr Rajandran Kanapathy, who was, at the time, a Security Supervisor employed by the security contractor G4S which provided security by way of checkpoints at the CLC. The Committee called and relied on the evidence of Mr Kanapathy in relation to allegation (e).

153 Mr Kanapathy gave evidence that, at approximately 11 am on 16 January 2009, he was in attendance at the CLC and was observing the security checkpoint in the lobby at the St George's Terrace entrance to the building. He said that one of his co-workers, Mr Kevin Morgan, was at the primary security checkpoint at the entrance to the building.

154 Mr Kanapathy gave evidence that he recognised a legal practitioner, who he knows to be Ms in de Braekt, enter through the front door. He said that Ms in de Braekt 'hastily bypassed the security checkpoint and proceeded to the noticeboard containing the daily list of matters before the Court' (Exhibit 14, para 7). He said that Ms in de Braekt 'then proceeded to walk quickly to the lifts without going through the security checkpoint' (Exhibit 14, para 8). Mr Kanapathy said that he indicated to Mr Morgan that he should approach Ms in de Braekt and that he heard Mr Morgan ask Ms in de Braekt to pass through the security checkpoint, but she 'indicated by her behaviour that she did not wish to do so' (Exhibit 14, para 10). Mr Kanapathy said that he then approached Ms in de Braekt and asked her politely to comply with the search procedure and to proceed to the security checkpoint, but that Ms in de Braekt refused to do so and said something to the effect of 'you don't know what you're talking about' or 'you don't know what you're doing', and made some comment to the effect that she had written to the Chief Magistrate in regard to security check searches and that she had objected to being searched (Exhibit 14, para 12). Mr Kanapathy asked Ms in de Braekt what the response of the Chief Magistrate was and she indicated that she had not received a reply. Mr Kanapathy gave evidence that he then said to Ms in de Braekt that if a reply were received from the Chief Magistrate and that reply indicated that she was exempt from searches, then she would not have to go through the procedure, but until then, she had to submit to the appropriate search.

155 Mr Kanapathy gave evidence that, at that point, Ms in de Braekt became upset and said 'Are you from Singapore?' and 'I know you're from Singapore, go back to your country, we don't need people like you here, you prick' (Exhibit 14, para 15). Mr Kanapathy said that, at this point, Ms in de Braekt also called him a 'Singaporean prick' (T:31.3; 49.2; 50.2­.5, 20.2.12). He said that Ms in de Braekt called him a 'prick' approximately six times and also made some comment to the effect that Mr Kanapathy had 'short man syndrome' (Exhibit 14, para 16).

156 Mr Kanapathy gave evidence that Ms in de Braekt eventually proceeded to the security checkpoint and placed her bag on the table. Mr Kanapathy followed her to the table and she said, 'There, you prick', referring to him (Exhibit 14, para 18). Mr Kanapathy said that he indicated to Ms in de Braekt that he did not intend to open her bag and that she must open her bag as it was not permitted for security guards to go through entrants' bags. According to Mr Kanapathy's evidence, Ms in de Braekt then said 'You've got short man's syndrome' and 'you prick, go through my bag, you prick' (Exhibit 14, para 20). Mr Kanapathy said that, eventually, he arranged for a female security officer to open the bag and it was checked by her, in Mr Kanapathy's presence, using a pen, as security officers are not allowed to use hands to search bags. Mr Kanapathy said that Ms in de Braekt was then allowed to proceed past the security checkpoint into the building and, as she went into a lift, she said to him 'you short prick' or something to that effect.

157 Within 30 to 40 minutes of this incident, Mr Kanapathy completed and signed an incident report which is generally consistent with his evidence to the Tribunal.

158 Mr Kanapathy was subjected to intense and protracted cross­examination by Ms in de Braekt. The cross-examination exposed some relatively minor inconsistencies between Mr Kanapathy's oral evidence, witness statement, and incident report. However, Mr Kanapathy maintained his version of the essential elements of the incident on 16 January 2008, including the insults that he said Ms in de Braekt directed to him, as set out above. Although the cross­examination was, at times, argumentative, Mr Kanapathy maintained his composure and his version of the events. Having carefully observed Mr Kanapathy during a lengthy and heated cross­examination, the Tribunal is satisfied that the evidence set out earlier is truthful and that he is an honest and credible witness with a specific recollection of the events in issue.

159 An important aspect of Mr Kanapathy's evidence, namely, that Msִin de Braekt called him a 'Singaporean prick' was corroborated by an independent witness, Ms Benita Wood, who was, at the time of the incident, the receptionist at the reception desk in the lobby area of the CLC near the St George's Terrace entrance. Ms Wood gave evidence that, at approximately 11 am on 16 January 2009, she witnessed a legal practitioner, who she knows to be Ms in de Braekt, enter the CLC building and proceed to the noticeboard situated next to the reception desk. Ms Wood said that Ms in de Braekt did not attend the security checkpoint as required by all entrants to the building and she recalled seeing Mr Morgan speak to Ms in de Braekt. Ms Wood could hear their conversation from where she was and could hear Mr Morgan ask Ms in de Braekt to attend the security checkpoint and comply with the search procedure. She described the search procedure as usually requiring the person to place their bag on the table in an open position so that the contents can be seen.

160 Ms Wood said in evidence that she recalls that Mr Kanapathy approached Ms in de Braekt and asked her to comply with the security procedure. Ms Wood heard Ms in de Braekt ask Mr Kanapathy, in a raised tone, if he was Singaporean, and then heard Ms in de Braekt refer to Mr Kanapathy as a 'Singaporean prick' (Exhibit 15, para 8).

161 Ms Wood was cross-examined by Ms in de Braekt in relation to a complaint that Ms in de Braekt had made concerning Ms Wood to the Chief Magistrate. Ms Wood immediately acknowledged the complaint and recognised that it was in relation to a comment which was 'inappropriate' and for which she gave an apology (T:95.4, 20.2.12). In re­examination, Ms Wood said that the complaint by Ms in de Braekt was made considerably later than when Ms Wood gave her first statement in relation to this matter two months after the incident, which was different in some respects from her witness statement in this proceeding, but which included the recollection of her hearing Ms in de Braekt refer to Mr Kanapathy as a 'Singaporean prick'. Ms Wood was also cross­examined to the effect that she had told a security officer, Mr David Cox, that the only reason she was giving evidence against Ms in de Braekt is that she does not like Ms in de Braekt, which she rejected, saying that 'I did not say that to Mr Cox' (T:95.9, 20.2.12). Ms Wood was also cross-examined in relation to the physical configuration of the foyer area and her capacity to hear the statements about which she gave evidence. Ms Wood agreed that the reception booth in which she was seated comprises a solid concrete portion and 10 millimetre thick glass surrounds, with no gaps between the concrete and the glass, up to about 200 millimetres from the ceiling. She gave evidence that the only opening to the booth, other than the 200 millimetre gap at the top, is a 600 millimetre by 900 millimetre opening at the front. Ms Wood agreed that the floor of the foyer at the relevant time was a hard floor, with nothing to absorb sound, and that it could be 'pretty noisy' (T:98.2, 20.2.12). It appears from Ms in de Braekt's measurements of the foyer area, which were not disputed, that the reception booth was located approximately 7 metres to 9 metres from the tables near the front door at which security personnel undertook security checks of bags. Ms Wood gave evidence that, notwithstanding these factors, 'you could hear very well in [the reception booth]' (T:100.2, 20.2.12). Ms Wood gave the following evidence under cross­examination:

I suggest to you, Ms Wood, that the number of people there and the amount of noise and the thick glass that surrounded you, did not allow you to reliably or accurately hear anything that was being said on the other side of the tables between the tables and the glass entry doors? --- The thing was, without being rude, you were quite loud. ...

Yes. I suggest to you, Ms Wood, that you couldn't hear what was being said at least 7 metres away from you, and that you did not ever hear me saying anything in relation to 'Singapore' or 'Singaporean'? --- You did, and I did hear.

I suggest to you, Ms Wood, that you are seriously mistaken? --- Well, whatever you want, but I know what I heard. ...

I suggest to you, Ms Wood, that you did not ever hear me say anything to the effect that Mr Kanapathy was a 'Singaporean prick'? --- Well, whatever, but that is what I heard.

What do you mean, 'whatever'? --- I can only say - well, whatever you want to think. All I can say here, like, I don't like it either, but they asked me what I heard. I said what I heard, and that's what I heard. (T:99.8; 100.8; 101.4, 20.2.12)

162 Mr John Declan Hawkins, a legal practitioner, also gave evidence that Ms in de Braekt 'was talking in a rather loud voice' at the time of the incident, although he could not hear what she was saying (Exhibit 17, para 5).

163 Having carefully observed Ms Wood's evidence, the Tribunal has no doubt that she is an honest and disinterested witness who heard Ms in de Braekt ask Mr Kanapathy if he was Singaporean and call him a 'Singaporean prick'.

164 Important elements of Mr Kanapathy's evidence were also corroborated by evidence that Mr Morgan gave to the Tribunal. It appears that Mr Morgan had initially provided a statement to the Committee, but in an email dated 9 April 2009, he advised the Committee that he wished to 'withdraw my statement'. The Committee advised the Tribunal that, nevertheless, the Committee sought to contact Mr Morgan by email in September 2011 in order for him to give evidence, but the emails were not responded to. Ultimately, on 22 February 2012, Ms in de Braekt filed a document entitled 'statutory declaration' signed by Mr Morgan on 19 March 2010 and witnessed by Ms in de Braekt, as Mr Morgan's witness statement, and called Mr Morgan to give evidence in her case. The document became Exhibit 22 in the proceeding and Mr Morgan, who was in the United Kingdom, gave evidence by telephone on the afternoon of 22 February 2012. Mr Morgan said in Exhibit 22 that, on 16 January 2009, he did not hear Ms in de Braekt make any racist remarks to any person and did not hear Ms in de Braekt say anything racist to the effect of, or anything similar to, 'Are you from Singapore? You don't belong here, you don't know anything, why don't you go back to Singapore?' However, under cross­examination, Mr Morgan gave the following evidence which is consistent with Mr Kanapathy's evidence:

• When Ms in de Braekt entered the CLC building at approximately 11 am on 16 January 2009, she 'flew to the board' (T:253.3, 22.2.12) which was attached to the wall of the lobby area on the right hand side from St George's Terrace and on which were 'in the main lists of accused persons who were due to appear in the Magistrates Court that day' (T:254.3, 22.2.12);
• Mr Morgan could see Ms in de Braekt reading the noticeboard (T:254.4, 22.2.12); although the transcript records an indistinct answer to this question, Judge Parry noted, in overruling an objection, that Mr Morgan's 'evidence was that he did see that' (T:254.6, 22.2.12);
• Ms in de Braekt refused to undergo the routine bag check and proceeded to argue with Mr Morgan that he had no right to search her belongings (T:255.2, 22.2.12);
• Ms in de Braekt called Mr Kanapathy 'a prick' at least three times (T:257.2, 22.2.12); and
• Ms in de Braekt told Mr Kanapathy that he had 'small man syndrome' (T:257.6, 22.2.12).

165 The Tribunal finds Mr Morgan to be an honest and credible witness. Mr Morgan did not hear Ms in de Braekt call Mr Kanapathy a 'Singaporean prick' or say to him 'I know you're from Singapore, go back to your country, we don't need people like you here, you prick'. However, in his incident report that he completed and signed on 16 January 2009, Mr Morgan said 'some of what was said I would have missed as I was busy processing people at the door'. In oral evidence, Mr Morgan described himself as 'the muscle on the door' and 'keeping an eye on people and just trying to keep the peace' (T:263.5, 22.2.12). It is entirely conceivable, therefore, that Mr Morgan did not hear all of the insults made by Ms in de Braekt that Mr Kanapathy and Ms Wood referred to in their evidence.

166 Mr Kanapathy's evidence that Ms in de Braekt called him 'a prick' and said that he had 'short man's syndrome' is also supported, to an extent, by the character evidence of Mr McCorry, called by Ms in de Braekt. Mr McCorry gave evidence that Ms in de Braekt has 'always demonstrated, often in quite uncompromising terms, a very low tolerance towards those who assert any prejudice towards others based on their race, religion, ethnicity, colour or other innate characteristics' and that:

There is simply no way that Ms in de Braekt would or could have ever said words to the effect of:

'You Singaporean prick', 'go back to where you came from, we don't need/want you here' (Exhibit 20, paras 19 and 21).

167 As discussed in relation to allegation (a) above, as Mr McCorry was given incomplete information and was not willing to alter his assessment of Ms in de Braekt when he was made aware of that information or a hypothetical situation that might be seen to cast doubt upon her character, very little weight can be given to his (positive) character evidence of Ms in de Braekt. However, Mr McCorry gave evidence in relation to what he considers Ms in de Braekt would regard as acceptable behaviour towards other people, which supports Mr Kanapathy's evidence, and which is all the more significant given our finding that, in his (positive) character evidence of Ms in de Braekt, Mr McCorry has not assessed her character in a balanced and objective way. Mr McCorry gave the following evidence:

Ms in de Braekt ... shares my tendency to not tolerate bureaucrats, fools and incompetents gladly and to equally make it quite clear that she does not do so. If Ms in de Braekt has faults in this area it is that she has yet to learn the ability to do it in ways that don't upset them to the point that they want to get even and to do it only in circumstances where they cannot get even. (Exhibit 20, para 11)

168 Mr McCorry also gave the following evidence in cross-examination:

Now, in paragraph 11 of your statement, you talk there about a tendency she has not to tolerate bureaucrats, fools and incompetents gladly. Do you see that? --- Yes.

And to equally make it quite clear that she does not do so. Do you see that? --- Yes.

So what you mean by that is that she has in her character a tendency when she's dealing with bureaucrats, fools and incompetents to make it clear to them that she doesn't tolerate them? --- She makes it clear to them that's what she thinks.

She makes it ­ in your experience and your assessment of her character, she makes that clear by telling them on [sic] no uncertain terms what she thinks about them. Is that right? --- Yes. (T:197.4-.6, 22.2.12)

169 Mr McCorry also gave the following evidence in his witness statement:

I'm quite prepared to believe that Ms in de Braekt called someone a 'prick' or said they had 'small man syndrome', when there were circumstances which justified this, (as I understand there were on the day in question). I am only surprised that the remark was not prefaced by the copulatory adjective. I do [not] believe or accept that Ms in de Braekt added remarks about the person's ethnicity or nationality to such comments. Dickhead, thickhead and wanker is well within the likely repertoire of descriptors she may have used but certainly not anything to do with a person's ethnicity or nationality. (Exhibit 20, para 20; the word 'not' was not inserted by the witness by way of correction, but is consistent with the remainder of the paragraph)

170 Mr McCorry gave the following evidence in cross­examination:

I think that later in your statement at paragraph 20, in your assessment of Ms in de Braekt it's quite possible - quite probable that Ms in de Braekt would, in those circumstances, call someone a prick? --- Yes, certainly.

To shout at them? --- I don't know about shout. She'd certainly speak loudly.

To speak loudly. So in a circumstance in which she's dealing with bureaucrats, fools and incompetents she might, in your assessment of her character, call that person a prick and do so quite loudly? --- I don't know what you mean by quite loudly, but she would not be muttering it under her breath. She would say, 'you're a prick,' and probably use a copulatory adjective in front of it.

By that you mean 'fucking', don't you? --- Yes.

A fucking prick? --- 'You're a stupid fucking prick.'

In your knowledge of her, that's something that you'd be quite prepared to believe she would say? --- Yes.

You also talk about - there about a small man syndrome. That's also something that you would be quite prepared to believe she would say? --- She would be quite scatological in addressing a person, but whether she'd actually say 'small man syndrome', I've never heard her say something like that. I've certainly heard her say - make quite a lot of scatological remarks about people over time.

LESLIE, MS: Sorry, for the benefit of one who doesn't understand, what is a scatological remark? --- A pejorative, swearing ---

Yes. Got it.

VANDONGEN, MR: What you're saying at paragraph 20 is that you're quite prepared to believe that Ms in de Braekt called someone a prick or said they had small man syndrome? --- Yes.

By 'small man syndrome', a pejorative term referring to, in part, a man's height? --- The metaphor is in relation to people having an exaggerated sense of their importance in compensation for their stature, yes. A Napoleon complex.

So people who might be wearing uniforms? --- Yes. ...

Now, in paragraph 11 if you can just turn to that for me for a moment, in the last sentence you say, 'If Ms in de Braekt has faults in this area, it is that she has yet to learn the ability to do it in ways that don't upset them.' Do you see that? --- Yes.

When you say, 'She has yet to learn the ability to do it,' what are you talking about there? --- To tell people off in no uncertain terms without necessarily offending them.

So your assessment of her is that she is a person that is yet to understand or yet to learn to deal with people, bureaucrats, fools and incompetents, in ways that don't offend them? --- Don't overly offend them. We share a similar characteristic in that respect, but age has moderated my comments.

You then go on to say in the same breath that, 'She's yet to learn the ability to do it in ways that don't upset them to the point that they want to get even.' Do you see that? --- Yes.

What did you mean by that? --- Don't say or do anything which is going to invite a response. For example, in the public service, if you are frank, scatologically frank to your superior officer, you may very well face disciplinary charges. ...

She's yet to learn she's unable at this stage to deal with people such as bureaucrats, fools and incompetents to the point where they get upset, to the point where they want to get even? --- She's got a damn the consequences - doesn't think about the potential consequences of, 'Can that person get back at me if I ­ if they get too upset?'

You go on to say, 'And to do it only in circumstances where they cannot get even.' Do you see that? So from your point of view, it's OK, is it, for someone to offend somebody, a bureaucrat, fool or incompetent, but to only do it in circumstances where they can't get even with you? --- Certainly.

It's OK is it? --- Certainly. They frequently deserve it. (T:197.6­199.8, 22.2.12)

171 Ms in de Braekt's position in relation to allegation (e) changed, to a degree, during the course of the proceeding. In 45 pages of faxes to the Committee in relation to the matter which became allegation (e) and in her Respondent's Answer to the Committee's application filed in the proceeding, Ms in de Braekt denied that she had insulted Mr Kanapathy. In her witness statement, which was filed on 21 February 2012, Ms in de Braekt said that she 'may have called Mr Kanapathy a "prick" after I unsuccessfully tried to reason with him about not requiring me to tip out my handbag' (Exhibit 19, para 17). In her oral evidence in chief, Ms in de Braekt said:

Now, yes, I'm pretty sure that I did call him a prick, but that was only after I had tried for what seemed like an eternity, but it was probably only a matter of a minute or so or a couple of minutes, to convince him not to make me tip out my handbag into a pink plastic tray that he'd shoved underneath me - by that, I mean shoved in front of me ... (T:147.8, 21.2.12)

172 Under cross­examination, Ms in de Braekt gave the following evidence:

You did call him a prick didn't you? --- I think I probably did call him a prick after my attempts to make him see sense that I didn't need to tip my bag out were failing. ...

You called him a prick on a number of occasions, didn't you? --- No. If I'd called him that, I'd only call him it once.

You said something about him having short man syndrome, didn't you? --- I did say that he had short man syndrome, and I only said that once.

You remember saying that, do you? --- I do remember saying 'short man syndrome'. ...

When Mr Kanapathy said that you called him a prick and that you said something about short man syndrome, we can accept that evidence, can we? --- Well, no, you can't, because he said ­ his evidence was that I called him also 'Singaporean prick' and that I called him a prick numerous times, which is not how I ­ is not me. I don't do that. No point. If you call a person a prick once, that's it. Why would you need to repeat it? We're not in a schoolground. (T:160.5 and 161.3-.6, 21.2.12)

173 Ms in de Braekt gave a great deal of evidence about not being a racist and, indeed, being opposed to racism. She said:

I did not ever make any remarks to Mr Kanapathy about being Singaporean or that he should [go] back to where he came from, or anything similar.

Indeed, I did not even know Mr Kanapathy was Singaporean until after he made these appalling accusations against me. ...

I have never ever had any racist thoughts in my life. I was brought up to be an egalitarian. None of my family members are racist & we all hate racism. (Exhibit 19, paras 1, 2 and 5)

174 In her oral evidence in chief, Ms in de Braekt said that her step-mother, her half-brother, her chemist, her hairdresser, and her best friend in high school, are all Singaporeans (T:146.5, 21.2.12). She said that she spent 'many years as a child wearing a Free Nelson Mandela t­shirt until it fell to pieces, and then I was devastated when that happened' (T:147.4, 21.2.12). She spoke of her recitation, in Year 5, of Rev Martin Luther King Jr's famous 'I have a dream' speech (T:147.5, 21.2.12). She spoke of African American boyfriends she had in high school (T:149.4, 21.2.12) and her grandparents having saved Jewish families from the Germans during the Holocaust (Exhibit 19, para 25 and T:150.1­.3, 21.2.12).

175 The Tribunal has no reason to doubt that Ms in de Braekt is not a racist, nor that she is opposed to racism. However, allegation (e) does not charge her with 'racism'. Rather, allegation (e) is that Ms in de Braekt behaved in a discourteous and abusive manner to Mr Kanapathy in the course of carrying out her legal practice and Mr Kanapathy and Ms Wood gave evidence that Ms in de Braekt referred to Mr Kanapathy being a Singaporean in the context of insulting him. As Mr Vandongen SC suggested to Ms in de Braekt in cross­examination, there is a potential explanation, other than racism, on account of which Ms in de Braekt referred to Singapore, namely, 'because you were making a comment on what you perceived to be the autocratic security arrangements that were in place' and referring to 'the regime that you perceived to be in place in Singapore at the time' (T:166.9 & 167.1, 21.2.12). Ms in de Braekt did not accept Mr Vandongen's suggestion. However, ultimately, the Tribunal is not required to determine why Ms in de Braekt referred to Singapore. Rather, the Tribunal is required to determine, in the context of allegation (e), whether Ms in de Braekt behaved in a discourteous and abusive manner to Mr Kanapathy.

176 Ms in de Braekt also gave the following evidence:

On the occasion in question I was not attending the CLC to appear in Court or in the course of legal practice, but instead to pick up some muffins I had bought earlier, from the coffee shop (Caffisimo) in the CLC. That shop used to have the best muffins in the world, & my husband loved them. So whenever I went to the CLC, I would always buy their muffins to take home for my husband.

The muffins would get crushed in my bag if I carried them around with me when I was in court, so Rebecca, (the lady who used to work in the Caffisimo in CLC) would hang on to them for me after I had paid for them, until I'd finished in the CLC for the day.

On this day, I had forgotten to pick up my muffins before leaving the CLC & I had to go back to the CLC to get them. This is why I entered the CLC for the second time late in the morning, on this day in question. I specifically remember this because I remember regretting going back to get them after the very unpleasant experience with Mr Kanapathy. I also remember saying something to my husband later that day, along the lines of 'you had better enjoy those muffins because I went through hell to get them.' (Exhibit 19, paras 11-13)

177 Ms in de Braekt also gave the following evidence in relation to the muffins in cross­examination:

After you read ­ I suggest to you on 16 January [2009] shortly before you had an interchange with Mr Kanapathy, you went and looked to see what was on the list in the Magistrates Court that --- ? --- No, I didn't because I was picking up the muffins that I had forgotten to take with me when I left the building earlier, and it's a very strange time, 11 o'clock, to turn up for a court appearance. Magistrates Court appearances would be at 9.30, 10.00. Eleven o'clock is a time when you have appeared in court already usually. It's a strange time to turn up for court. It is consistent with having appeared in court and having forgotten your muffins and going back and getting them, but not with your first court appearance for the day, no. It's a strange time to turn up.

These are the muffins that you agree you made no mention of in your letters to the LPCC or in your respondent's answer? --- That's right, and nor was I required to. Mr Kanapathy said a lot of things in his evidence that he hadn't mentioned in his statement. (T:170.11­171.2, 21.2.12)

178 The Tribunal does not accept the veracity of Ms in de Braekt's evidence in relation to the muffins for two reasons. First, although Ms in de Braekt said a great many things in 45 pages of faxes to the Committee in relation to the complaint that founded allegation (e), and although she set out 12 paragraphs of contentions, in addition to her denials of the Committee's contentions, in her Respondent's Answer filed in this proceeding, the first time she referred to the muffins was in her witness statement filed on 21 February 2012. Given that the question of whether Ms in de Braekt was visiting the CLC in the course of carrying out her legal practice was a key consideration in relation to the matter, and is an express part of the allegation, if Ms in de Braekt's evidence about the muffins were true, the Tribunal would reasonably expect Ms in de Braekt to have made reference to the muffins in her submissions in relation to the complaint that founded allegation (e) and in her Answer filed in the proceeding. Second, Ms in de Braekt's evidence in relation to the muffins is inconsistent with the evidence of Mr Morgan, who she called, and of Ms Wood, an independent witness, and, indeed, of Mr Kanapathy, that Ms in de Braekt entered the CLC at approximately 11 am on 16 January 2009 and proceeded 'hastily' (Mr Kanapathy) or 'flew' (Mr Morgan) to the noticeboard containing the daily list of matters before the Court. It is clear to the Tribunal that Ms in de Braekt's evidence about the muffins is, as Mr Vandongen submitted, something that was 'dreamt up recently, in order to assist in a technical argument that she was not, at the time of being in the Central Law Courts, in the course of carrying out her legal practice' and has 'all the hallmarks of recent invention' (T:43.2­43.4, 23.2.12).

179 Ms in de Braekt also gave an unconvincing explanation, in re­examination, as to why it may have appeared that she stopped and read the Court lists when, in fact, she was on her way to pick up her muffins:

I could well have stopped to blow my nose or to wipe my nose or to deal with something, a bit of debris getting caught under a contact lens and I couldn't see properly. I've got to fix it straight away wherever I am. So something like that, could be anything like that, find tissues in my handbag quickly in order to blow my nose, and I could well have stopped in front of those boards and indeed if I was going to stop in that area, I would stop in front of those boards. The reason is because I would stop against a wall and get out of people's way. I wouldn't just stop in the middle of a walkway, you know, I mean a thoroughfare. I would move to the side, that's what I always do. So I would move against a wall, which is ­ would have been the noticeboards. That's not an unusual thing for me to have done, so maybe that was misinterpreted as me going to the boards and looking at them, but I am absolutely 100% sure I didn't go to the boards and look at them because I wasn't appearing in court anymore that day, so that was not right. (T:180.3-.6, 21.2.12)

180 Having heard Ms in de Braekt give this evidence, it appeared to the Tribunal that it was, like her evidence about the muffins, also 'dreamt up' on the spot, and was unconvincing.

181 Ms in de Braekt also gave evidence that, to the extent to which she ultimately conceded that she had insulted Mr Kanapathy, the insult was justified, because:

Mr Kanapathy required me to tip out the entire contents of my handbag into a pink plastic tray. My handbag is very large & full of medication, stationery & other things which would take me at least 30 minutes to put back in their correct positions in my bag.

182 The Tribunal does not accept the veracity of this evidence for three reasons. First, Mr Morgan gave the following evidence:

Did you see Ms in de Braekt tipping the contents of her bag into a tray? --- No, I don't think it was a tray. I don't think we had trays back then. But she opened her bag for Kilyani. (T:260.8, 22.2.12)

183 Second, Mr Kanapathy was cross­examined in relation to this and he said that he does not remember requiring Ms in de Braekt to tip out her bag (T:68.2 and 71.6, 20.2.12) and gave the following evidence:

Well, you said a minute ago that you did recall it. You said, 'that's right,' that you'd asked to clear my handbag. Isn't that what you just said? --- I said to you, we've got to look through into your handbag, and then we asked you to clear whatever is in there.

I asked you --- ? --- You asked us to do ---

I asked you, Mr Kanapathy that you required me, or attempted to require me, to tip my handbag into a pink tray, correct? --- We would have asked you to clear, but I don't remember that.

Yes, and then you said, 'yes, we asked you to clear your handbag,' didn't you?

LESLIE, MS: Sorry, what does that expression mean?

in de BRAEKT, MS: That's what I'm just trying to --- ? --- I just can't recall. What I remember is, Ma'am, we went through the bag. When she shows her bag, we went through with a pen and all that, and then the lady officer was looking through. That's it, I was ---

LESLIE, MS: But what do you mean by that? Do you mean that the bag is open and you're sort of moving things about --- ? --- Yes.

--- Or do you mean that you've tipped it up and gone through? --- No (indistinct) no. I didn't touch anything, I was just standing beside the lady officer. The lady officer has given reports too. So they should look at that report.

in de BRAEKT, MS: Well, I asked if you recall requiring me to tip my handbag upside down and tip out the entire contents of it into a pink tray, and you said, 'yes, we asked you to clear your handbag'? --- I don't think we looked through this bag. I don't remember.

I suggest to you, Mr Kanapathy, this is exactly the same bag that I had with me on that day? --- I don't remember.

I suggest to you, that as full as it is now, that's exactly how it was on that day? --- I don't remember. Like I said, the only thing I remember is when we asked you to open your bag, you refused. You asked us to go through - the female officer opened and then we just used a pen to go through, that's it.

I suggest to you that you put the pink tray across the table --- ? --- I don't ---

--- and rested it against my thigh on the edge of the table, and you demanded that I tip out the entire content of my handbag? --- You can suggest anything you want, I don't remember.

So you agree that could have occurred, but you just can't remember? --- As far as I can remember, we went with a pen to go through your bags, that's it. (T:68.3-69.3, 22.2.12)

184 Having carefully observed Mr Kanapathy while giving evidence, the Tribunal accepts his evidence that he did not require the bag to be tipped out.

185 Third, each of the witnesses who gave evidence in relation to the search said that Ms in de Braekt did not tip her bag out and that the search occurred in the manner described by Mr Kanapathy.

186 Ms in de Braekt also gave evidence that Mr Kanapathy had been very angry with her for 'interfering with his duties', as he described it, when Ms in de Braekt came to the defence of a female security officer who Mr Kanapathy had admonished prior to the incident in question. However, Mr Kanapathy did not recall this incident (T:60.5­60.7, 20.2.12) and did not recall speaking to Ms in de Braekt prior to 16 January 2009 (T:85.5, 20.2.12).

187 Ms in de Braekt also called Mr David Cox, a security officer employed by G4S, to give evidence. In his witness statement, Mr Cox gave evidence to the effect that Mr Kanapathy had taken a particular interest in Ms in de Braekt's movements into the CLC building and that Ms Wood had told him that she was only giving evidence against Ms in de Braekt because she did not like her. As noted earlier, this allegation was put to Ms Wood and she answered it in a convincing manner. Mr Cox gave detailed oral evidence that he was in the foyer of the CLC at the time of the incident on 16 January 2009, that he saw the incident, that Ms in de Braekt was asked to open her bag, which she did 'just like normal' as 'she's usually pretty compliant', and that he never heard Ms in de Braekt calling anybody 'a prick' (T:218.2­222.9, 22.2.12).

188 Mr Cox's witness statement was only served on the morning that he was called to give evidence. After Mr Cox had given his evidence, the legal representatives of the Committee discovered a document in the material produced by G4S on summons suggesting that Mr Cox was not rostered on 16 January 2009 at the CLC and, indeed, was on annual leave on that day. As the document was a photocopy which had been copied such that a strip of information along the right-hand side was cut off, including the end of a name that appeared as 'D Co' in the section in relation to annual leave, Judge Parry's Associate made enquiries of G4S' solicitor overnight for a complete copy of the document to be provided. The Tribunal also indicated to the parties, through Judge Parry's Associate, early the next day that the Tribunal required Mr Cox to be recalled in order for the document to be put to him.

189 Ultimately, Mr Cox was recalled by Ms in de Braekt and he conceded that he was not at work on 16 January 2009. As Mr Cox had given detailed evidence favourable to Ms in de Braekt as to what he said occurred on 16 January 2009 at the CLC building in his presence, and later had to withdraw the whole of that evidence, conceding that he was not there at the time, the Tribunal does not have any confidence in the veracity of Mr Cox's evidence on any aspect, and places no weight upon it.

190 Allegation (e) ultimately turns on the credibility of Mr Kanapathy, Ms Wood, Mr Morgan and Ms in de Braekt. As found earlier, Mr Kanapathy gave truthful evidence and was an honest and credible witness. Furthermore, his evidence was materially corroborated by that of Ms Wood and Mr Morgan, and is consistent with the incident report he prepared within 30 ­ 40 minutes of the events in issue. As discussed earlier, Mr Kanapathy's evidence is also supported, to an extent, by Mr McCorry's evidence as to what Ms in de Braekt would have regarded as acceptable conduct. It appears that, on Mr McCorry's evidence, in Ms in de Braekt's view, Mr Kanapathy would qualify as a 'bureaucrat, fool or incompetent', as he was insisting on Ms in de Braekt's compliance with the security procedures which Ms in de Braekt regarded as 'ridiculous', 'unnecessary', 'offensive', 'insulting' and 'very upsetting'.

191 Where there is a difference between the evidence of Mr Kanapathy and Ms in de Braekt, the Tribunal prefers the evidence of Mr Kanapathy. As discussed earlier, the Tribunal finds Mr Kanapathy to be an honest and credible witness, with an actual recollection of the events in question. In contrast, as discussed earlier, we have found that Ms in de Braekt gave evidence to the Tribunal on particular matters which is untrue, and this significantly reduces her credibility more broadly. Furthermore, Ms in de Braekt was argumentative and belligerent in cross­examination, which further reduces the weight to be given to her evidence.

192 In consequence, the Tribunal feels an actual persuasion on the evidence, in accordance with the Briginshaw principle, and finds on a balance of probabilities that, on 16 January 2009, while visiting the CLC in the course of carrying out her legal practice, Ms in de Braekt behaved in a discourteous and abusive manner to Mr Kanapathy by:

1. saying words to the effect, 'I know you're from Singapore, go back to your country, we don't need people like you here, you prick';
2. calling Mr Kanapathy a 'Singaporean prick' on one occasion;
3. calling Mr Kanapathy 'a prick' on approximately six occasions;
4. making a comment to the effect that Mr Kanapathy has 'short man's syndrome' on two occasions; and
5. calling Mr Kanapathy a 'short prick' on one occasion.

193 In her closing submissions, Ms in de Braekt suggested that it was 'quite understandable', in the circumstances, that she called Mr Kanapathy 'a prick'. However, on the evidence, there was no possible objective justification for Ms in de Braekt's discourteous and abusive conduct. Her conduct fell short, to a substantial degree, of the standard of conduct observed or approved by members of the legal profession of good repute and competence and would therefore constitute unprofessional conduct at common law. Good relations between members of the legal profession and security staff in courts and tribunals is important for the proper administration of justice. In our view, Ms in de Braekt's extraordinary display of discourtesy and abusive conduct to a member of the court security staff compromised not only the good standing of the legal profession, but also the important relationship between the legal profession and security staff in courts and tribunals. Ms in de Braekt's conduct therefore transcended unsatisfactory professional conduct and constituted professional misconduct.

194 Finally, the Tribunal notes that although the LP Act commenced on 1 March 2009, about six weeks after the conduct the subject of allegation (e), s 622(1) of the LP Act states that Pt 13 of the LP Act applies in relation to the conduct of Australian legal practitioners 'whether the conduct occurred before or after the commencement day'.

195 The Tribunal finds that Ms in de Braekt has engaged in professional misconduct in each of the five respects alleged by the Committee. The matter should now proceed to consideration of the appropriate professional disciplinary consequence of Ms in de Braekt's conduct, and the issue of costs. Unless either party specifically requests an oral hearing, these issues are to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

1. The Tribunal finds that Ms Megan Maree in de Braekt engaged in professional misconduct by:

(a) knowingly misleading the Magistrates Court on 4 June 2009 and 6 July 2009 by stating to the Court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her;

(b) being persistently discourteous and offensive to Magistrate Woods during a hearing in the Magistrates Court on 4 June 2009;

(c) sending emails to Detective Constable Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous;

(d) sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and

(e) behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice.

1. By 16 April 2012 the applicant is to file and serve its submissions in relation to penalty and costs.
2. By 7 May 2012 the respondent is to file and serve her submissions in relation to penalty and costs.
3. By 14 May 2012 the applicant is to file and serve any submissions in reply.
4. Subject to any further order, the issues of penalty and costs are to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

I certify that this and the preceding [196] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

ACT : LEGAL PROFESSION ACT 2008 (WA)

CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT [2012] WASAT 58 (S)

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Vocational regulation - Legal practitioners - Professional misconduct - Penalty - Practitioner knowingly misled the Magistrates Court - Practitioner was consistently discourteous and offensive to a Magistrate during a hearing - Practitioner sent emails to a police office that were offensive and discourteous - Practitioner sent an email to a police officer that was offensive, discourteous and threatening - Practitioner behaved in a discourteous and abusive manner to a security supervisor at Central Law Courts building - Report on findings to Supreme Court (full bench) with a recommendation that name of practitioner be removed from Roll of Practitioners - Interim suspension from practice pending determination of Supreme Court (full bench) - Costs

Legal Profession Act 2008 (WA), s 28, s 28(2), s 434, s 438, s 439, s 440, s 441

State Administrative Tribunal Act 2004 (WA), s 60(2), s 87(1), s 87(2)

Report on Tribunal's findings made and transmitted to Supreme Court (full bench) with recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA)

Suspension of practitioner's practising certificate pending the determination of the Supreme Court (full bench) with effect from seven days after publication of this decision

The practitioner is to pay the Legal Profession Complaints Committee's costs in terms of disbursements in the amount of $51,291 within four weeks of publication of this decision

In Re Davis [1947] HCA 53; (1947) 75 CLR 409

J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)

Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56

Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211

Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119

Legal Practitioners Complaints Committee v Pepe [2009] WASC 39

Legal Profession Complaints Committee and in de Braekt [2011] WASAT 1

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58

Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASATִ125 (S)

Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Re Maraj (a Legal Practitioner) (1995) 15 WAR 12

The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145

The Council of the Queensland Law Society Inc v Wright [2001] QCA 58

1 The Tribunal has found that Ms Megan Maree in de Braekt, a legal practitioner, is guilty of professional misconduct by:

(a) knowingly misleading the Magistrates Court on 4 June 2009 and 6 July 2009 by stating to the Court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her;

(b) being persistently discourteous and offensive to Magistrate Woods during a hearing in the Magistrates Court on 4 June 2009;

(c) sending emails to Detective Constable Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous;

(d) sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and

(e) behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice.

2 The Tribunal required the parties to file submissions in relation to penalty and costs, and directed, subject to any further order, that these remaining issues are to be determined entirely on the documents.

3 The Tribunal determined that the appropriate professional disciplinary consequence of Ms in de Braekt's professional misconduct in the circumstances of this case is to make and transmit a report on the finding to the Supreme Court (full bench) with a recommendation that Ms in de Braekt's name be removed from the Roll of Practitioners. The Tribunal also determined that Ms in de Braekt's practising certificate should be suspended pending the determination of the Supreme Court (full bench). Finally, the Tribunal ordered Ms in de Braekt to pay costs in terms of the disbursements incurred by the Legal Profession Complaints Committee in the proceeding in the amount of $51,291 within four weeks.

4 On 27 March 2012, following a hearing over seven days, the Tribunal found that Ms Megan Maree in de Braekt, a legal practitioner, is guilty of professional misconduct pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (LP Act) ­ see Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (earlier reasons). In particular, the Tribunal found that Ms in de Braekt engaged in professional misconduct by:

(a) knowingly misleading the Magistrates Court on 4 June 2009 and 6 July 2009 by stating to the Court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her;

(b) being persistently discourteous and offensive to MagistrateִWoods during a hearing in the Magistrates Court on 4 June 2009;

(c) sending emails to Detective Constable Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous;

(d) sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and

(e) behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice.

5 The Tribunal required the parties to file submissions in relation to penalty and costs, and directed, subject to any further order, that these remaining issues are to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Legal Profession Complaints Committee (Committee) was required to file and serve its submissions by 16 April 2012, Ms in de Braekt was required to file and serve her submissions by 7 May 2012, and the Committee was required to file and serve any submissions in reply by 14 May 2012.

6 In its submissions filed on 16 April 2012, the Committee sought the following orders:

1. An order that a report be transmitted to the Supreme Court (full bench) pursuant to s 438(2)(a) of the LP Act with a recommendation that Ms in de Braekt be struck off the Roll of Practitioners.
2. An order that Ms in de Braekt is suspended forthwith from practice until the determination of the Supreme Court (full bench).
3. An order for costs pursuant to s 87(2) of the SAT Act for counsel's fees and other disbursements incurred in the proceedings in the amount of $51,291.

7 On 10 April 2012, Ms in de Braekt applied for an extension of the date by which she was required to file and serve her submissions until 24 June 2012, essentially on the grounds that she does not have the same resources as the Committee and that she has to prepare her 'submissions for SAT in addition to, that is on top of, my usual work'. On 10 April 2012, Judge Parry refused to extend time because:

• three weeks is a substantial period of time for your submissions, and you will have the benefit of the [Committee's] submissions;
• three weeks is the same length of time provided to the [Committee];
• there is a significant public interest in the prompt finalisation of the proceeding given that the proceeding was commenced on 19 October 2010, almost one and a half years ago; and
• the Tribunal's findings.

8 On 7 May 2012, that is, the day by which she was required to file and serve her submissions, Ms in de Braekt again applied for an extension of the date by which she was required to file her submissions by 'at least two weeks' or, if that request were refused 'at least ... until the end of this week, or at the very least until the close of business tomorrow'. Ms in de Braekt sought this extension because she had been in a jury trial in the District Court at Perth for the previous two weeks and because her grandmother, for whom she cares, had been hospitalised. In light of Ms in de Braekt's grandmother's hospitalisation, Judge Parry extended the date by which Ms in de Braekt was required to file and serve her submissions by one week to 14 May 2012, and also extended the date by which the Committee was required to file and serve any submissions in reply to 21 May 2012.

9 Ms in de Braekt did not file any submissions by 14 May 2012. On 16 May 2012, the Tribunal sent Ms in de Braekt a letter by email advising her that 'unless you file and serve your submissions in relation to penalty and costs by 4 pm on Monday 21 May 2012, the Tribunal will proceed to consider and determine the issues of penalty and costs, without your submissions, next week'.

10 Ms in de Braekt did not file any submissions by 21 May 2012 or subsequently.

11 Section 438(2) ­ 438(4) of the LP Act states as follows:

(2) If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may ­

(a) make and transmit a report on the finding to the Supreme Court (full bench); or

(b) make any one or more of the orders specified in section 439, 440 and 441.

(3) If the State Administrative Tribunal transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under subsection (2)(a), the Tribunal may, pending the determination of the Supreme Court (full bench), make the following orders ­

(a) an order that the Australian legal practitioner's local practising certificate be suspended for a specified period;

(b) an order that specified conditions be imposed on an Australian legal practitioner's local practising certificate restricting the entitlement of an Australian legal practitioner to practise for a specified period.

(4) Where appropriate, a report forwarded under subsection (2)(a) may include either or both of the following ­

(b) a recommendation that the name of the practitioner be removed from the local roll.

12 The 'local roll' referred to in s 438(4)(b) of the LP Act is the 'roll of persons admitted to the legal profession under [the LP] Act', commonly known as the Roll of Practitioners, which the Supreme Court is required to maintain under s 28 of the LP Act.

13 Section 439 of the LP Act specifies the orders that the Tribunal may make following a finding that a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct, under s 438(2)(b) of the LP Act, requiring official implementation in this jurisdiction, including suspension of the practitioner's practising certificate, imposition of conditions on the practitioner's practising certificate, and reprimand of the practitioner. Section 440 of the LP Act specifies orders that the Tribunal may make following a finding that a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct, pursuant to s 438(2)(b), requiring official implementation in another jurisdiction. Section 441 of the LP Act specifies the orders that the Tribunal may make following a finding that a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct, under s 438(2)(b), requiring compliance by the practitioner, including the payment of a fine not exceeding $25,000 and counselling or medical treatment.

14 In Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 (Maraj), Malcolm CJ, with whom Kennedy and Franklyn JJ agreed, said at 25:

... The object of disciplinary proceedings is the protection of the public and the maintenance of proper standards in the legal profession, rather than punishment. It is clear from ... the authorities which have been repeatedly followed in this Court that when the question is whether a practitioner should be struck off the roll [, ...] the only question is whether the practitioner is a fit and proper person to remain a member of the legal profession. [Citations omitted]

15 In Maraj, Malcolm CJ also said, at 24, that the object of disciplinary proceedings extends to 'the protection of ... the reputation of the profession'.

16 In Legal Practitioners Complaints Committee v Pepe [2009] WASC 39, Murray and Beech JJ said the following at [10] ­ [12]:

1. ... the purpose of the maintenance of proper standards in the legal profession for the protection of the public may require this court to consider matters, particularly the seriousness of the offending behaviour, which go beyond what might strictly be required to secure the outcome that the practitioner is appropriately punished and would be unlikely to offend in the same manner again. Not every instance of unprofessional or illegal conduct will require the extreme penalty of striking off, or even suspension from practice, but there will be cases where the seriousness of the conduct demands such a disposition because it demonstrates unfitness for practice: Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279, 298.
2. In the final analysis, however, the question remains that with which this discussion of the applicable principles started ­ easy to state, but not always so easy to apply. As it was put by the High Court in A Solicitor v Law Society (NSW) [2004] HCA 1; (2004) 216 CLR 253 at 265 [15]:

Where an order for removal from the Roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner's name presently appears.

It is plain that under the statute, the judgment of the Full Bench upon that issue is to be made as at the time when the court is called upon to exercise its disciplinary powers.

1. Where the choice presented is, as in this case, effectively between suspension and striking off, useful guidance can be obtained from the judgment of Thomas JA, McMurdo P and White J agreeing, in Barristers' Board v Darveniza [2000] QCA 253; (2000) 12 A Crim R 438 at 446 ­ 447ִ[38]:

Striking off is of course reserved for the very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice. Suspension is a less serious result, firstly because a limited period is specified and secondly because the right to resume practice is then preserved without any further onus upon the practitioner to prove that he or she is now a fit and proper person to practice.

The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner. (In Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ.)

Appropriate disciplinary consequence of Tribunal's findings of professional misconduct

17 In our view, the Tribunal's findings of Ms in de Braekt's professional misconduct in the earlier reasons demonstrate that she is not a fit and proper person to remain a legal practitioner. Her character and conduct as disclosed in the findings of professional misconduct is inconsistent with the privileges of further practice. Moreover, in our view, nothing short of removal of Ms in de Braekt from legal practice is sufficient to protect the public, the maintenance of proper standards in the legal profession, and the reputation of the legal profession. Ultimately, however, the determination of whether Ms in de Braekt is shown not to be a fit and proper person to be a legal practitioner is a matter for the Supreme Court (full bench) under s 434 of the LP Act.

18 The Tribunal has arrived at the conclusion that Ms in de Braekt is shown by the Tribunal's findings of professional misconduct in the earlier reasons not to be a fit and proper person to be a legal practitioner for the following two reasons.

19 Firstly, the seriousness of the finding that Ms in de Braekt knowingly and intentionally misled the Magistrates Court on 4 June 2009 and on 6 July 2009. Knowingly misleading the Court involved dishonesty. As Ipp J held in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle) at [6]:

A practitioner who knowingly misleads a court will do so dishonestly. Therein lies the unprofessional conduct.

20 As Martin CJ, with whom Simmonds and Blaxell JJ agreed, said in Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 at [8]:

... honesty and integrity are essential prerequisites to the right to practise law and the conduct most likely to result in striking-off of the Roll is that which undermines the trustworthiness of the practitioner or which suggests a lack of integrity, so that the practitioner cannot be trusted to deal fairly within the system within which he or she practises.

21 Similarly, Basten JA, with whom Mason P and Santow JA agreed, said in the New South Wales Court of Appeal in The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [58]:

... willingness to engage in deceptive or dishonest behaviour will generally be a matter of central relevance. Such a characteristic may be revealed by conduct in the practice of law or in conduct unrelated to the practice of law. Whatever the context of the conduct, the elements of character thus revealed is likely to be relevant although if based on conduct in the practice of law, that context will usually give rise to heightened concern.

22 Furthermore, Ms in de Braekt's conduct involved a serious breach of 'the confidence that every court rightly and necessarily puts in all counsel who appear before it' (to quote Parker J, with whom Ipp and Steytler JJ agreed, in Kyle at [66]). As the Court of Appeal observed in Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 (Vogt) at [61], the finding that a legal practitioner knowingly misled a court 'goes to the very heart of a practitioner's duty as an officer of the court and therefore to the proper administration of justice'. In Kyle at [61], the Court adopted the following statement from the decision of the Queensland Court of Appeal (McMurdo P, with whom Davies JA and Helman J agreed) in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 (Wright) at [67], made in the case of a solicitor who had intentionally misled a court in an affidavit resisting a summary judgment application:

A practitioner's duty to the court arises out of the practitioner's special relationship with the court; it overrides the duties owned by a practitioner to clients or others (citation omitted). The lawyer's duty to the court includes candour, honesty and fairness. The appellant abused her role as an officer of the court in relying on material she knew to be false and in deliberately and recklessly misleading the court in an attempt to further the interests of her clients and family. Her conduct was made more serious by its repetition. The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. This duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but also to reassure the public that such conduct on the part of lawyers will not be tolerated.

23 However, as the Tribunal recognised in Legal Profession Complaints Committee and Gandini [2011] WASAT 86 (S) (Gandini) at [12], referring to Vogt:

... while a departure from the duty of honesty to the Court must attract a substantial penalty, such misconduct does not compel a removal from the Roll.

24 As the Tribunal also observed in Gandini at [22], in reference to other cases in which practitioners have been or have not been struck off for having intentionally misled a court:

... the circumstances of each case differ and reference to this case law may be unhelpful. What one does derive from these cases is an uncompromising and justifiably severe approach to any conduct involving intentionally misleading a court, to be mitigated only by extenuating circumstances of varying degrees.

25 Ms in de Braekt knowingly and intentionally misled the Magistrates Court in her professional practice. In doing so, she acted dishonestly and abused the necessary trust and confidence that courts and tribunals place in legal practitioners appearing before them in the effective administration of justice. Her conduct, therefore, undermined the effective administration of the justice system and public confidence in it. Furthermore, as in Wright, '[Ms in de Braekt's] conduct was made more serious by its repetition', misleading the court on both 4 June 2009 and 6 July 2009. Significantly, also, as the Committee submitted, there are no extenuating circumstances in this case that can be relied on to mitigate the very serious nature of the practitioner's conduct.

26 We, therefore, agree with the Committee's contention that, in the circumstances of this case, the finding that Ms in de Braekt misled the Magistrates Court warrants a conclusion that she is not a fit and proper person to remain a legal practitioner.

27 The second reason for the Tribunal's conclusion in this case is that, while the other four findings of unprofessional conduct would not individually warrant the striking off of the practitioner, collectively, the Tribunal's findings in relation to those grounds demonstrate a character and course of conduct on the part of the practitioner which is inconsistent with the privileges of practice as a member of the legal profession. It is to be recalled that the practitioner:

• was persistently discourteous and offensive to a judicial officer during a hearing, making 'persistent interruptions and repetitive demands on a total of five occasions', adopting a 'belligerent tone' and not offering any apology (earlier reasons at [111]), and making 'an entirely unfounded allegation of actual bias against [the] judicial officer' (earlier reasons at [120]);
• sent a series of six emails over approximately two weeks to a police officer, in the course of her legal practice, that were 'grossly offensive and discourteous in their tone and content' (earlier reasons at [139]);
• sent an email to a senior police officer 'the tone and content of [which] ... was significantly discourteous and offensive and ... the final paragraph [of which] was threatening' (earlier reasons at [149]); and
• carried out an 'extraordinary display of discourtesy and abusive conduct to a member of the court security staff' (earlier reasons at [193]).

28 Legal practice in general, and advocacy in courts and tribunals in particular, involves great privileges and equally great responsibilities. As Dixon J observed in In Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 420:

The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges.

29 By the particular instances of professional misconduct which have been found, the practitioner has demonstrated a character and course of conduct that is discourteous, offensive or abusive to other participants in the justice system. Her conduct towards a judicial officer compromised the confidence necessarily placed by judicial officers in legal practitioners which is essential to the proper administration of justice. Her conduct, in the course of her legal practice, towards police officers 'compromise[d] the maintenance of the relationship between legal practitioners and the police, to the detriment of not just the good standing of the legal profession, but also the proper functioning of the criminal justice system' (earlier reasons at [139]) as 'the maintenance of a civil and constructive relationship between legal practitioners and police officers is essential to the proper functioning of the criminal justice system' (earlier reasons at [138]). Her conduct, in the course of her legal practice, towards a court security supervisor 'compromised not only the good standing of the legal profession, but also the important relationship between the legal profession and security staff in courts and tribunals' (earlier reasons at [193]).

30 Furthermore, the practitioner's conduct, being the conduct of a lawyer while engaged in legal practice, seriously undermined the reputation of the legal profession.

31 In our view, therefore, the other four findings of professional misconduct collectively demonstrate a character and course of conduct on the part of the practitioner which is inconsistent with the privileges of legal practice and shows that she is not a fit and proper person to be a legal practitioner.

32 Our conclusion that the practitioner is not a fit and proper person to remain a legal practitioner based on the foregoing two reasons is reinforced by three other factors discussed below.

33 However, in our view, for the two reasons set out earlier, the findings of professional misconduct made by the Tribunal are sufficient, by themselves, to warrant a conclusion that the practitioner is not a fit and proper person to practice and, consequently, for the Tribunal to make and transmit a report on the findings of professional misconduct to the Supreme Court (full bench) with a recommendation that the name of the practitioner be removed from the Roll of Practitioners.

34 The first factor which supports our conclusion that the practitioner is not a fit and proper person to remain in legal practice, based on the foregoing two reasons, is that, in the earlier reasons, the Tribunal made adverse findings about the practitioner's truthfulness in the evidence she gave. At [92], the Tribunal observed that it had 'significant doubts as to her truthfulness and credibility' in light of findings in relation to aspects of Ms in de Braekt's evidence. At [109], the Tribunal found:

That Ms in de Braekt's evidence that Magistrate Woods indicated with her head that Ms in de Braekt was to take a seat at the back of the courtroom when, on four occasions, she told her to 'have a seat', was not truthful and, indeed, appeared to have been made up on the spot.

35 At [118], the Tribunal did not accept Ms in de Braekt's evidence that three of the four reasons she gave to the Tribunal for having made the application for Magistrate Woods to disqualify herself 'were factors in her mind when she made the application for her Honour to disqualify herself' (at [118]).

[did] not accept the veracity of Ms in de Braekt's evidence that, when she wrote the email to Detective Inspector La Spina[,] she was interrupted and wrote the email in two sessions, with the last line written after the interruption and thinking it was being sent to Detective Constable Broadley ...

37 At [178], the Tribunal did not accept 'the veracity of Ms in de Braekt's evidence' in relation to having attended the Central Law Courts building at the time of the incident in relation to ground (e) in order to collect muffins, rather than in the course of her professional practice. The Tribunal said at [178]:

It is clear to the Tribunal that Ms in de Braekt's evidence about the muffins is, as Mr Vandongen submitted, something that was 'dreamt up recently, in order to assist in a technical argument that she was not, at the time of being in the Central Law Courts, in the course of carrying out her legal practice' and has 'all the hallmarks of recent invention' (T:43.2­43.4; 23.02.12).

38 After setting out Ms in de Braekt's explanation as to why it may have appeared that she stopped and read the Court lists when, in fact, she was on her way to pick up muffins, the Tribunal said at [180]:

Having heard Ms in de Braekt give this evidence, it appeared to the Tribunal that it was, like her evidence about the muffins, also 'dreamt up' on the spot, and was unconvincing.

39 As the Committee submitted, the way in which the proceedings were conducted by both the Committee and the practitioner, including the cross­examination of the practitioner, was such that it would have been obvious to the practitioner that she was at risk of the Tribunal finding that she was a dishonest witness and that such a finding could be used in considering her fitness to practice. In particular, given that the Committee alleged that Ms in de Braekt knowingly or recklessly misled the Magistrates Court, and the Tribunal found that she knowingly and intentionally misled the Court, the fact that she has given false evidence before the Tribunal is relevant to an assessment of whether she is a fit and proper person to remain in legal practice.

40 The second factor which supports our conclusion that the practitioner is not a fit and proper person to remain in legal practice, based on the two reasons referred to earlier, is, as the Supreme Court (full bench) held in Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35]:

... a practitioner's failure to understand the impropriety of his [or her] conduct, may be a factor of very great importance in determining whether he or she is permitted to remain on the Roll.

41 Throughout the proceedings, Ms in de Braekt has demonstrated an almost complete lack of insight and understanding as to the impropriety of her conduct. Even in relation to ground (b) (being persistently discourteous and offensive to Magistrate Woods), ground (c) (sending emails to Detective Constable Broadley which were offensive and discourteous) and ground (d) (sending an email to Detective Inspector La Spina which was offensive, discourteous and threatening), in respect of which there could be no question as to the facts, which were clear from the recording of the hearing, supplemented by the transcript, and Ms in de Braekt's emails to the police officers, Ms in de Braekt contended throughout that there was no impropriety in her conduct, other than a late and qualified statement in her final submissions on 23 February 2012 that 'now that I have realised that perhaps it was discourteous for me to continue to say, ''Excuse me, could I please finish my submissions"', to her Honour (T:85.6, 23.02.12). However, even then, Ms in de Braekt continued to demonstrate a lack of insight into her conduct, because she said, in relation to making an apology, 'although I shouldn't have had to do that'. She also still maintained that she 'should have been allowed' to make further submissions to her Honour. She then offered to make an apology as follows:

But anyway, in any event, I shouldn't have continued to say that. I realise that now and I'm happy to apologise. In fact, I will.

(T:85.6­85.7, 23.02.12)

42 However, this offer of an apology was made for the first time at the conclusion of the hearing, more than two and a half years after the conduct in question.

43 In relation to ground (a) (misleading the Magistrates Court), the practitioner demonstrated a profound lack of insight as to the impropriety of her conduct by giving false evidence to the Tribunal in relation to a number of matters.

44 In relation to ground (e) (behaving in a discourteous and abusive manner to a security supervisor at the Central Law Courts), even though she ultimately conceded that 'I'm pretty sure that I did call him a prick' (see [171] of the earlier reasons), and even though Mr Kevin Morgan, a witness called by Ms in de Braekt, said that she called the security supervisor 'a prick' at least three times (see [164]), Ms in de Braekt did not demonstrate the slightest appreciation that for a lawyer to call a court security supervisor 'a prick' is not acceptable behaviour.

45 The third factor which supports our conclusion that the practitioner is not a fit and proper person to remain in legal practice, based on the two reasons referred to earlier, is that the decision and observations made by the Tribunal in other professional disciplinary proceedings brought by the Committee against the practitioner show that her discourteous, offensive or abusive character and course of conduct to other participants in the justice system demonstrated by the findings in relation to grounds (b) ­ (e) in this case is not restricted to those incidents: see Legal Profession Complaints Committee and in de Braekt [2011] WASAT 1 (in de Braekt). That decision also shows that, in August 2007, one and a half to two years prior to Ms in de Braekt's conduct the subject of grounds (b) ­ (e) in these proceedings, a Master of the Supreme Court was critical of Ms in de Braekt's allegations of impropriety against a legal practitioner, including allegations of misleading the Court, and cautioned her 'to be extremely careful in relation to your dealings with other solicitors': in de Braekt at [63] and [139].

46 In in de Braekt, the Tribunal found the practitioner guilty of unsatisfactory professional conduct by making allegations of impropriety and unsatisfactory conduct against Mr Gough, the solicitor representing the other party in litigation 'when she lacked any reasonable foundation for those allegations': at [3]. Moreover, the tone and content of Ms in de Braekt's correspondence with Mr Gough was offensive and discourteous. For example, an email sent by Ms in de Braekt to Mr Gough, which the Tribunal set out in in de Braekt at [24], and which, in its tone, approach and expression, is strikingly similar to her emails to the police officers which are the subject of grounds (c) and (d) in these proceedings (see earlier reasons at [121] ­ [132] and [144]), stated as follows:

Your email incorrectly represents the content of my email, as my client believes you well know.

If my email is as clear as you claim, then point to specific parts which say exactly what you claim.

Is this the sort of response you give in Court, when Judges ask you to take them to the precise words? Courts won't accept you saying 'It's clear enough, I don't have to take Your Honour directly to it'.

You have made an allegation, so now you have to justify it Mr Gough.

Your failure to answer my question is proof of your claim having no substance - because you are again incorrectly representing information.

If you also incorrectly represent information in other matters, doesn't anyone point this out to you and the Court?

If you also incorrectly represent information in other matters, and other Lawyers point out your incorrect representations to the Courts and yourself, then why do you keep doing it?

47 In another email, set out by the Tribunal in in de Braekt at [26], Ms in de Braekt made what the Tribunal described as 'rather extraordinary requests' (at [26]) or 'demands' (at [132]) for Mr Gough and all other lawyers at Minter Ellison who had involvement in the matter to provide 'a handwriting sample and your fingerprint impressions to forensic experts engaged by my client' in a process 'likely to be video recorded'. At [132], the Tribunal found that 'the clear implication [from these 'extraordinary' demands] is that Mr Gough and Minter Ellison were acting misleadingly in denying any involvement [in sending an envelope to Ms in de Braekt's client]'.

48 At [139] in in de Braekt, the Tribunal said the following:

In these reasons we have set out at some length the communications between Ms in de Braekt and Mr Gough, and relevant portions of affidavits made or prepared by Ms in de Braekt. Those documents reveal a troubling tendency in this litigation for Ms in de Braekt to write in intemperate and offensive terms in relation to the opposing solicitor and the opposing client. As we have found, a number of those communications went beyond the bounds of acceptable professional conduct. In the proceedings before the Master, he cautioned Ms in de Braekt 'to be extremely careful in relation to your dealings with other solicitors'. That is advice with which we agree. The interests of clients and the proper administration of the law are served by practitioners extending to each other proper professional courtesy. Resort to personal abuse leads to a loss of the objectivity that is necessary for proper legal representation, and results in distraction from the real issues in the client's dispute. This case is a good example of that proposition.

49 Section 438(3) of the LP Act authorises the Tribunal, where it transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under s 438(2)(a), to order that the practitioner's practising certificate be suspended pending the determination of the Court. As we are of the view, in light of the findings of professional misconduct, that the practitioner is not a fit and proper person to remain a legal practitioner, and in order to protect the public, the maintenance of proper standards in the legal profession, and the preservation of the reputation of the profession, it is appropriate to impose an interim suspension. Although the Committee sought an immediate interim suspension, in order to enable the parties to be advised of this decision and clients to obtain alternative representation, the interim suspension should commence seven days after the publication of these reasons.

50 The Committee sought an order for the payment by the practitioner of counsel's fees and other disbursements incurred in the proceeding in the amount of $51,291. Senior counsel charged fees at a rate of $550 per hour or $5,000 per day (excluding GST) which he then discounted by 20%. The Committee did not seek a costs order in relation to its solicitor's fees.

51 Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30].

52 There is no reason why, in the circumstances of this case, the Tribunal should depart from its usual practice in relation to costs in vocational disciplinary proceedings. An order for costs in favour of the Committee should therefore be made.

53 In relation to the amount or quantum of costs, the Tribunal's usual practice is to determine the amount of work which was reasonable and necessary to properly prepare and present the case and then to apply, as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant hourly or daily rate specified in the Legal Practitioners (State Administrative Tribunal) Determination 2010 (Determination): J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [9] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASATִ125 (S) at [35] ­ [36] and [47] ­ [48]. The Determination prescribes the maximum amounts which can be charged without a written agreement as to costs with a client under s 282 of the LP Act. The Legal Costs Committee has not prescribed a scale of costs for the Tribunal in respect of party/party costs, because the Legal Costs Committee has recognised that 'the overriding philosophy of the Tribunal, as expressed through its enabling legislation, is that parties appearing before the Tribunal are to bear their own costs of proceedings': Legal Practitioners (State Administrative Tribunal) Report 2010 (WA) para 3b. The Determination is, therefore, not binding in the present case, but rather, is to be used as a guide as to the maximum rates which might be allowed on a party/party basis.

54 The Committee presented a detailed schedule of disbursements and copies of accounts. The time incurred by senior counsel for the Committee was reasonable and necessary to properly prepare and present the case, which occupied seven hearing days, and the other disbursements incurred by the Committee are also reasonable. Owing to the 20% discount applied by senior counsel to his account, the daily rate actually charged to the Committee is $220 less than the maximum daily rate for senior counsel in the Determination, although the hourly fee is $22 more than the maximum hourly rate in the Determination. Assessed overall, counsel's fees sought by the Committee are reasonable and an order should be made for the payment by Ms in de Braekt of the Committee's costs in terms of disbursements in the amount sought.

55 The appropriate professional disciplinary consequence of Ms in de Braekt's professional misconduct in the circumstances of this case is to make and transmit a report on the findings to the Supreme Court (full bench) with a recommendation that Ms in de Braekt's name be removed from the Roll of Practitioners. The report is to comprise the earlier reasons and these reasons, and is to be transmitted with a copy of the exhibits and the transcript of the proceeding.

56 Ms in de Braekt's practising certificate is suspended pending the determination of the Supreme Court (full court), with effect from seven days after the publication of this decision.

57 Ms in de Braekt is to pay the Committee's costs of the proceeding in terms of disbursements in the amount of $51,291 within four weeks of the date of this decision.

1. Pursuant to s 438(2)(a) of the Legal Profession Act 2008 (WA), a report be transmitted to the Supreme Court (full court) on the Tribunal's finding that the practitioner, Ms Megan Maree in de Braekt, is guilty of professional misconduct, with a recommendation, pursuant to s 438(4)(b) of the Legal Profession Act 2008, that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008. The report comprises the Tribunal's reasons in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 and Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) and is to be transmitted with a copy of the exhibits and transcript of the proceeding.
2. Pursuant to s 438(3)(a) of the Legal Profession Act 2008 (WA), the respondent's local practising certificate is suspended from 1 June 2012 until the determination of the Supreme Court (full bench).
3. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $51,291 by 22 June 2012.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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