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[2015] QCAT 510
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2015-12-23
Margaret Steinberg AM, Mr J
Original judgment source is linked above.
Legal Services Commissioner v Winning [2015] QCAT 510
Upon the respondent undertaking to consult with Mr Davis QC, and if Mr Davis QC is not available to consult with Ms Elizabeth Wilson QC, or other senior colleagues of Mr Davis QC as the need arises on all matters of law, practice, procedure and ethics, this Tribunal orders that:
PROFESSIONS AND TRADES - LEGAL PRACTITIONERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT - where respondent made comments directed at crown prosecutor in course of trial that were offensive, discourteous, provocative and/or compromised the integrity of the legal profession - where psychiatric report attributed indiscretion to cessation of prescribed medication by the respondent on day of trial - where respondent apologised for and admitted to professional misconduct - where past similar conduct - where support network regime constructed by respondent's colleagues so as to provide respondent with future mentorship - whether mentorship regime would deter future misconduct - appropriate penalty.
Legal Profession (Solicitors) Rule 2007 (Qld) rr 21, 32(2)(b)
Adamson v Queensland Law Society [1990] 1 Qd R 498
Counsel for Queensland Law Society Inc v Whitman (2003) QCA 438
Legal Services Commissioner v Winning [2008] LPT 13
[1] The amended discipline application contains two charges each asserted to involve a breach of the Legal Profession (Solicitors) Rules 2007.
[2] It is alleged that Mr Douglas Winning:
Breached rule 21 by making comments during a District Court trial about the Crown Prosecutor that were:
- offensive
- discourteous
- provocative, and/or
- compromised the integrity and reputation of the legal profession.
Breached rule 30(2)(b) by making a comment at the District Court hearing that was likely, to a material degree, to diminish public confidence in the administration of justice.
[3] Charge 1 involved 17 statements (some before the jury) in open Court in which Mr Winning accused the Crown Prosecutor of dishonesty, of misleading the Court and of having instructed a witness to be difficult in giving evidence, in circumstances where the Judge was forced to intercede on a number of occasions and admonished Mr Winning for his behaviour in very strong terms.
[4] The charge involved four profanities used by Mr Winning in Court.
[5] Charge 2 involved a statement by Mr Winning to the Judge following a ruling by the Judge when Mr Winning said 'so your Honour is seriously ruling that in a criminal trial he's allowed to do that?'.
[6] Initially Mr Winning did not admit to making some of the alleged statements and profanities which were not recorded in the transcript or audible on the audio hearing, and about which the Legal Services Commissioner relied upon witness evidence. His reason for doing so was that he could not recall having made the statements. However, as at the date of the hearing, Mr Winning had admitted all of the allegations made by the Legal Services Commissioner without reservation.
[7] As a result of the approach which was initially taken by Mr Winning, the Legal Services Commissioner indicated that a submission would be made to the effect that Mr Winning is not a fit and proper person to remain admitted to the legal profession.[1]
[8] Mr Winning's conduct in his repeated abuse of the Crown Prosecutor over the duration of the hearing, his use of profanities in open Court, and the disrespect he showed to the Judge and the Court was entirely unacceptable conduct. There are no circumstances in which such conduct is acceptable, or justified.
[9] Conduct, such as Mr Winning's conduct, will have a tendency to undermine the confidence of the public in the administration of criminal justice in Queensland.
[10] In the case of Adamson v Queensland Law Society Inc,[2] Thomas J suggested the following test in relation to professional misconduct:
the test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.
[11] Mr Winning's conduct falls substantially short of the standard of professional conduct which is expected of the legal profession and which would be approved by members of the profession of good repute and competency.
[12] Mr Winning's conduct amounts to professional misconduct.
[13] I note Mr Winning accepts that his conduct should be categorised as professional misconduct.
[14] A number of affidavits have been filed on behalf of Mr Winning.
[15] Dr Joan Lawrence has provided a psychiatric report which is exhibited to an affidavit sworn on 17 November 2015.
[16] The report of Dr Lawrence indicates:
- The internal cause of the conduct is summarised as a degree of identification with his client and his innate strong desire to assist the underdog.[3] The external cause was his awareness of 2 actions on the part of the prosecutor which he viewed as deceptive, wrong and threatening of the welfare and desired outcome for his client. This accentuated his natural anger and combativeness during the trial, leading to a boundary violation in the expression of his anger and his personal vilification of the prosecutor.[4]
- At the time of the conduct, Mr Winning was taking prescribed anti-depressant medication but had ceased the medication a few days prior to the trial because he feared possible interference with his best work performance due to a side effect which was sedation and inertia on first waking.[5]
- Mr Winning would be wise not to persist in his brief cessation of prescribed medicine in the future.[6]
- Mr Winning should establish a clear and acknowledged relationship with a mentor. Mr Winning should develop a formal mentoring relationship.[7]
- Mr Winning understands his behaviour and responses and has determined that there will be no repetition.[8] Awareness of his own dereliction has, in the past, lead to successful actions maintained over time to avoid the negative or undesirable behaviour.[9] In the opinion of Dr Lawrence, the past predicts the future. There has been no evidence subsequent to this event of similar behaviour. Dr Lawrence would expect he would be capable of maintaining his position in the future.[10]
- There is no evidence of the presence of any psychiatric disorder or illness and no evidence of any alcohol abuse disorder.[11]
Affidavit of Douglas John Winning sworn 23 July 2015
[17] Mr Winning was not subject to cross examination concerning this affidavit.
[18] Mr Winning deposes that over the period he has been in practice in Rockhampton, he has had the carriage of thousands of files and appeared as an advocate on thousands of occasions. A significant number of appearances have been on a pro bono basis.[12]
[19] Mr Winning accepts that his conduct was a case of 'robust advocacy gone too far', and admits he crossed the line. He apologised for the conduct and he remains sorry and embarrassed about it. He says he knows he must do better in the future. He has obtained professional assistance from a psychologist and has had considerable support and advice from a solicitor who he has known for over 35 years.[13]
[20] The name of this deponent, who was Mr Winning's client in the criminal proceedings, has been redacted.
[21] The client refers to the difficult circumstances associated with the multiple criminal proceedings in which he was involved and to the fact that, by the time of the proceedings in question, the client was so drained of funds that he could not afford a barrister. He explained the position to Mr Winning who agreed to represent the client at the second trial.
[22] The client deposes to the fact that Mr Winning was supportive of him during the time that Mr Winning was acting for the client and, so far as the client was concerned, 'if I did not have him representing me there is a good chance I would be wallowing in prison for offences I did not commit'.[14]
[23] The client also deposes to the fact that whilst he acknowledges he is not completely neutral, he does not believe he saw any evidence of public confidence in the administration of justice being diminished during the trial.
Affidavit of Peter John Davis sworn 17 November 2015
[24] Mr Davis is a barrister of the Supreme Court of Queensland and High Court of Australia having become Senior Counsel in November 2005. As a former member of the Bar Council, Mr Davis was involved in making determinations as to the Bar Association's opinions on disciplinary matters and, as Vice President, Mr Davis had a prime responsibility for the handling of disciplinary matters referred to the Bar Association by the Legal Services Commission.[15]
[25] Mr Davis has known Mr Winning for some 36 years, from the time Mr Davis commenced articles of clerkship. Mr Davis is also related to Mr Winning by marriage.
[26] Mr Davis appeared for Mr Winning in the previous disciplinary matter involving Mr Winning before the Legal Practice Tribunal.[16]
[27] Mr Davis describes Mr Winning's personality as "combative".[17]
[28] Mr Davis expresses the view that, whilst there was a basis upon which Mr Winning may have had concerns as to whether proper disclosure has been made by the Crown, he would not so readily have drawn an inference against the Crown Prosecutor concerning dishonesty. In any circumstance, the correct course for Mr Winning would have been to ask the Judge to stand the matter down so that the concern could be raised with the Crown Prosecutor. Had the dispute not been resolved, the appropriate course would have been to reconvene the Court where the issues could be ventilated before his Honour in the absence of the jury.[18]
[29] Mr Davis describes the disadvantage faced by solicitor advocates because of the lack of a support network provided by membership of a chamber group.
[30] Mr Davis expresses the view that, in the case before Judge Searles, Mr Winning "obviously acted inappropriately".[19] However, his general performance was thought to be solid and his cross examination seems to be well organised and focussed.[20]
[31] Mr Davis refers to a conversation he had with Mr Winning on 14 November 2015, when Mr Davis expressed the view that Mr Winning's conduct was completely unacceptable and that it was inappropriate for Mr Winning to assume that the opponent was acting dishonestly. Mr Winning agreed and acknowledged these observations.
[32] Mr Davis confirms that he offered to Mr Winning to make himself available to consult with Mr Winning as the need arose "on all matters of law, practice, procedure and ethics". He also offered to make arrangements so that senior colleagues would, in a like way, make themselves available where it not possible for Mr Davis to be available.[21]
[33] Mr Davis obtained an undertaking from Mr Winning that when preparing cases he would pay special attention to identifying issues that might arise and to which he did not know the answer and to seek advice before the case started.[22]
Affidavit of Elizabeth Sybil Wilson sworn 18 November 2015
[34] Ms Wilson is a barrister of the Supreme Court of Queensland and High Court of Australia, having become Senior Counsel on 31 October 2012.
[35] Ms Wilson refers to having read the affidavit of Mr Davis and having been given assurances by Mr Winning that when preparing cases he would pay special attention to identifying issues that might arise and to which he did not know the answer, and seek advice before the case starts. Having been given those assurances, Ms Wilson agrees to make herself available to consult with Mr Winning on matters of law, practice, procedure and ethics.
Affidavit of Bruce Watson Acutt sworn 18 November 2015
[36] Mr Acutt is a consultant psychologist and met with Mr Winning on 11 November 2015.
[37] Mr Acutt refers to arrangements made with Mr Winning that Mr Winning will meet with Mr Acutt on a monthly basis or, if needed, at the time of any stressors. Mr Acutt will work with Mr Winning on techniques for dealing with anger and relaxation techniques including using mindfulness approaches and managing everyday stressors.
[38] Mr Acutt expresses the opinion that he does not consider Mr Winning's problems are novel or unique and is confident the treatment to be provided to Mr Winning will achieve a successful outcome.
Affidavit of Douglas John Winning sworn 23 November 2015
[39] By way of this affidavit, Mr Winning undertakes:
To consult with Mr Davis QC as the need arises on all matters of law, practice, procedure and ethics.
If Mr Davis QC is not available, to consult with Ms Elizabeth Wilson QC or other senior colleagues of Mr Davis QC as the need arises on all matters of law, practice, procedure and ethics and
To attend monthly sessions with clinical psychologist Mr Bruce Acutt for as long as Mr Acutt considers necessary and other sessions as may be needed.[23]
[40] It is well accepted that the primary role of disciplinary proceedings is not to punish the practitioner but to protect the public from persons who are not fit to be held out as officers of the Court and as proper persons to be entrusted with the very serious duties and responsibilities of a solicitor. One aspect of protection of the public is to deter other practitioners who might engage in similar conduct.
[41] As to whether Mr Winning is a fit and proper person:
The Legal Services Commissioner refers to the fact that the way in which a practitioner approaches disciplinary proceedings brought against the practitioner may be indicative of the practitioner's capacity to act professionally and may give an indication of the practitioner's judgment and also insight into the practitioner's own conduct.
The Legal Services Commissioner refers to the fact that Mr Winning's acceptance of the charges did not occur until late in the proceedings. The Legal Services Commissioner also refers to Mr Winning's previous disciplinary findings before the Tribunal which related to very similar behaviour.
However, ultimately, the Legal Services Commissioner submitted that the appropriate order to be made by the Tribunal depends upon the Tribunal's acceptance of Mr Winning's new position which is evidenced by the affidavits of Mr Winning, Mr Davis QC, Ms Wilson QC and Mr Acutt, which were all sworn in November 2015. Mr Bell QC, on behalf of the Legal Services Commissioner, submitted that the new position indicates a much better appreciation of 'the public interest which should have informed his professionalism'.[24] Mr Bell QC submitted that if the Tribunal were willing to accept that arrangements could be put in place so that Mr Winning's conduct would not reoccur then 'more serious orders would not be necessary'.[25] By more serious orders, Mr Bell QC was referring to striking Mr Winning's name from the local roll.
[42] On behalf of Mr Winning, Mr Morris QC referred to a number of issues which included:
Mr Winning provides an important service to the people of Rockhampton, particularly those who are unable to afford to brief counsel in relation to proceedings.
The charges involve no suggestion of dishonesty or neglect.
At the conclusion of the hearing in question Mr Winning made a fulsome and appropriate apology which Judge Searles described as 'a most appropriate course'.
Mr Winning shows remorse and has insight into his conduct.
Mr Winning made appropriate concessions about most of the conduct at an early time. It was only about conduct which he could not recall and which did not appear on the transcripts or the tape that Mr Winning did not make a concession. Mr Winning should not be criticized for considering that aspect in a fulsome way.
The conduct which gave rise to the current proceedings occurred in 2012, some 3½ years ago. There has been no suggestion of any further like conduct since that time.
The conduct which gave rise to the previous disciplinary matter occurred in June/July 2004. There is no suggestion of any additional misconduct between the June/July 2004 and the conduct which gave rise to the current proceedings.
Mr Winning is in his 30th year as a solicitor. Only two matters concerning alleged misconduct have arisen in that 30 year period.
Dr Lawrence suggests that it is not likely the conduct will reoccur.
The regime which can be put in place is appropriate in all the circumstances. That regime involves mentoring from two of Her Majesty's Counsel who are well experienced in criminal law matters and also regular treatment from a clinical psychologist. Mr Winning is prepared to authorise the clinical psychologist to inform the Legal Services Commission or the Queensland Law Society in relation to his treatment.
There is an explanation for this conduct. It lies in the fact that, in the interests of his client, Mr Winning made an ill-fated decision to discontinue medication for the purpose of the hearing. This would have influenced Mr Winning's conduct and is something which Dr Lawrence advises should not be repeated.
[43] On behalf of Mr Winning, it is submitted that the appropriate penalty should be a public reprimand as well as an order putting into effect the regime which has been the subject of the submissions.
[44] As I have observed, the primary focus of the Tribunal is to protect the public from persons not fit to be held out as officers of the Court.
[45] The fact that a practitioner may be under particular stress and pressure with respect to a hearing may go some way to explaining conduct, such as that which was demonstrated by Mr Winning. However, it is not an excuse for such conduct which is entirely unacceptable.
[46] As Mr Bell QC correctly observed, the question for the Tribunal is whether the arrangements suggested are likely to lead to a result that the conduct does not reoccur.
[47] If that were the case, then the Tribunal could be satisfied that the public interest is protected by virtue of the regime which has been suggested.
[48] In this case, it seems that one of the contributing factors to the conduct was the fact that Mr Winning ceased taking prescribed medication. Dr Lawrence expresses the opinion that this should not be repeated in the future. Mr Morris QC indicated to the Tribunal that medication is now available which would not interfere with Mr Winning's work performance for his clients and Mr Winning will not cease taking medication.
[49] Dr Lawrence also recommends a clear and acknowledged relationship should be established with a mentor. Such a relationship is proposed as an aspect of the regime which is put forward by Mr Winning.
[50] Dr Lawrence expresses the opinion that Mr Winning should be capable of maintaining his position in the future.
[51] In the circumstances, the regime offered is consistent with the expert psychiatric opinion and recommendation which has been obtained and, based on that opinion, should mean that the conduct which led to this disciplinary action will not be repeated.
[52] The Tribunal also takes note of the fact that a significant number of appearances by Mr Winning have been on pro bono basis and that, in the regional city in which he practices, he provides an important service by providing what is a lower cost but very competent level of legal service. Striking his name from the role would disadvantage these people. Moreover, there is no suggestion of dishonesty or incompetence and there has been no reoccurrence of the conduct since 2012, with just two incidents in 30 years of practice.
[53] Upon Mr Winning undertaking to consult with Mr Davis QC and, if Mr Davis QC is not available, to consult with Ms Elizabeth Wilson QC or other senior colleagues of Mr Davis QC, as the need arises on all matters of law, practice, procedure and ethics, this Tribunal orders that:
- The respondent be publicly reprimanded.
- The respondent is ordered to accept mentoring from Mr Davis QC or Ms Elizabeth Wilson QC or other senior colleagues of Mr Davis QC as the need arises on all matters of law, practice, procedure and ethics.
- For a period decided by Mr Bruce Acutt, consultant psychologist (but not less than 3 years), the respondent will undertake treatment with Mr Acutt which will involve meeting on a monthly basis with Mr Acutt or, if needed, at the time of any stressors, with a view to working with Mr Acutt on techniques for dealing with anger and also relaxation techniques including using mindfulness approaches and managing everyday stressors.
- The respondent will authorise, and direct Mr Acutt:
- while such treatment continues, to provide a quarterly report to the Legal Services Commission as to Mr Winning's treatment.
- to notify the Legal Services Commission immediately if the treatment ceases.
[54] Upon a finding of unsatisfactory professional conduct or professional misconduct the Tribunal must order that the respondent pay costs unless exceptional circumstances exist.[26] The Legal Services Commissioner has sought an order that Mr Winning pay the costs of the Legal Services Commissioner to be assessed. Mr Winning has expressed a preference that the costs be fixed. Whilst the Tribunal will always aim to fix costs, this is only possible where sufficient information is provided to the Tribunal.
[55] In the circumstances, it is ordered that the parties file any further submissions which each wishes to make in relation to costs by no later than 29 January 2016.
[1] Applicant's reply to the amended response, paragraphs B and C.
[3] Psychiatric report of Dr Joan N Lawrence AM, following examination on 20 October 2015, paragraph 14.3.1.
[4] Psychiatric report of Dr Joan N Lawrence AM, paragraph 14.3.2.
[12] Affidavit of Douglas John Winning sworn 23 July 2015, paragraph 8.
[14] Affidavit of 'client' sworn 23 July 2015, paragraph 44.
[15] Affidavit of Peter John Davis sworn 17 November 2015, paragraph 5.
[16] Legal Services Commissioner v Winning [2008] LPT 013 (06/5544).
[17] Affidavit of Peter John Davis sworn 17 November 2015, paragraph 11.
[23] Affidavit of Douglas John Winning sworn 23 November 2015, paragraph 4.
[24] Counsel for Queensland Law Society Inc v Whitman (2003) QCA 438 at [36].
[25] Applicant's submissions, hearing 23 November 2015, paragraph 22.
Legal Services Commissioner
Winning [2015] QCAT 510