The matter of references
104 Mr Morrissey provided references to the Board with his initial application of 21 January 2005 which included letters of commendation from newspaper editors, three Attorneys practicing in Virginia, familiar with Mr Morrissey's history, the present Commonwealth Attorney in Virginia, the head of the Law School and LLM Course Co-ordinator in Dublin where he studied and gave lectures, a member of the House of Delegates in Richmond and Senator Henry L Marsh III, a member of the Senate of Virginia, and Henry J Schrieberg, a retired judge of the Thirteenth Judicial District in Virginia. Judge Schrieberg said in his letter that he saw Mr Morrissey in court on many occasions and speaks in exemplary terms of his trial skills. The judge said:
"As a judge who saw Mr Morrissey so often, I say unconditionally and unreservedly that I found his character, integrity and honesty to be of the highest caliber and beyond reproach. While he was always a zealous advocate for his client, Mr Morrissey was always mindful that he was, first and foremost an officer of the Court."
105 The judge made these comments with knowledge of Mr Morrissey's suspension from the practice of law in 1993 and 1999 as well as his disbarment in 2001. He says:
"I and many of my colleagues, felt that the actions taken against Mr Morrissey were unwarranted, unfair and highly charged by political motivations."
106 Senator Marsh said of Mr Morrissey:
"… in regard to Mr Morrissey having been barred from the practice of law, I shall simply say, I am intimately familiar with the facts and circumstances surrounding Mr Morrissey's suspension and subsequent disbarment from the practice of law. I tell you with every fiber of my being that Mr Morrissey was treated unfairly and with a complete and utter regard for due process. In 1993, Mr Morrissey, as Chief Prosecutor, approved a plea bargain whereby a defendant was ordered to pay money both to the victim and charitable causes. He was charged with approving an improper plea agreement three days before his reelection (today such an agreement would be proper indeed; it would be normal). In 1999, he was suspended and ultimately disbarred because he held a press conference to highlight the injustices done to his client.
In conclusion Mr Morrissey was a high profile criminal defense attorney who was the victim of politics - attacked by opponents from the opposite political party. Everything that Mr Morrissey did was done to benefit his client. Preventing Mr Morrissey from practicing law was terribly wrong. It is my fervent hope that the terrible injustice done to Mr Morrissey will some day be corrected. Please call me directly if I can be of any assistance."
107 Mr Morrissey also provided references from the surf life saving club and a community church in Coogee, as well as commendations from several legal academics. After coming to Australia Mr Morrissey lectured for a short time in the Faculty of Law at Adelaide University. The Dean of the Faculty and Professor of Law, Paul Fairall gave evidence. In a letter which he wrote to the solicitors for the Bar Association, Professor Fairall says that Mr Morrissey was engaged by the University as a visiting academic. Apparently, he provided a reference from John O'Keefe the Head of School of Portobello College, Dublin who described him in very positive terms. However, Professor Fairall also said:
"At the end of August 2003 I became aware of certain matters involving Mr Morrissey in the United States. My information was that he had lost his licence to practice in Virginia, and suffered punishment for contempt of court. He was also successfully sued in relation to assault. It appeared that these matters arose out of a politically charged prosecution that Mr Morrissey was involved in. These matters were discovered by some law students and drawn to my attention. Mr Morrissey had not disclosed any of these matters prior to his engagement, and did not believe that they were relevant to his academic assignment. I discussed the matter with him at some length and it was agreed that it would be preferable for him to pursue his career options in Sydney, as he had expressed some interest in that regard."
108 After leaving Adelaide University Mr Morrissey gained employment with the University of New South Wales. He was interviewed by Associate Professor Hunter for a casual lecturer position. Professor Hunter gave evidence and said that Mr Morrissey provided written references and gave her an account of his suspension and disbarment from practice in Virginia. Professor Hunter was concerned about those matters and consulted with the Dean of the Law School before Mr Morrissey was employed.
109 Mr Morrissey apparently completed 15 hours of teaching between March and May 2004 and Professor Hunter expressed the view that he was an excellent teacher and teaching colleague. She was asked to and provided him with a reference to support his application for admission as a legal practitioner. She provided a reference which was directed to his competence as a teacher and practitioner. Later, Professor Hunter came to learn of Mr Morrissey's disbarment which was confirmed by the United States Court of Appeals for the Fourth Circuit in the judgment of 11 September 2002. She had not previously been aware of that judgment, Mr Morrissey only having informed her of his disbarment by the Virginia Bar. She was asked about these matters by the solicitor for the Bar Association and responded in a letter in the following terms:
"In response to my questioning Mr Morrissey indicated that he had been disbarred in Virginia. He gave an account of his disbarment that left me with the impression that he had been treated harshly in a highly politicised context relating to a particular criminal trial - one that bore little relationship to scenarios that would be relevant to his teaching brief at UNSW. As admission to practice is not a requirement for teaching in the Law School and as Mr Morrissey's explanation appeared plausible I relied on this account.
I discussed the information I received from Mr Morrissey concerning his disbarment with the Dean … .
I gave my reference to the LPAB of 19th January 2005 relying on my initial enquiries and my experience of Mr Morrissey as an excellent teaching colleague. My reference for Mr Morrissey was given on the basis of his assurance that he would disclose his disbarment in Virginia to the LPAB - and he did. In giving my reference I believed his fame and character would be assessed by the Legal Practitioners Admission Board after taking his disbarment into account."
110 Professor Hunter then expressed the following:
"In the light of the judgment of the US Court of Appeals, 4th circuit, 11 September 2002 and an order before the Virginia State Bar Disciplinary Board, both received from your office recently I now realise Mr Morrissey's disclosures to me were far from complete. His lack of candour is such that were I to be asked now to provide a reference for Mr Morrissey's LPAB application I would not do so."
111 Professor Hunter was asked about her concerns when she gave evidence. Her evidence was as follows:
"Q. … I would like to understand whether it was just the fact of the judgment or the content of the factual findings that caused you to change your mind in the way you indicated?
A. First and foremost, I believe it was proper of Mr Morrissey to have told me about those incidents and to have given me the opportunity of hearing an explanation from him in relation to those incidents. And so the very fact that they weren't disclosed to me I perceive as a betrayal of my trust. So that is a separate issue. In relation to the particular incidents, those that reflect on an inability to control his temper cause me concern in relation to the teaching duties that he was performing. It's very difficult to give an observation -
Q. Can I ask you to focus back on your letter. You say his lack of candour is such that asked now to provide a reference for his practitioner's application you would not do so, is your lack of preparedness, now provided that reference, confined to the lack of candour? The letter suggests that it is?
A. I would say that's the primary reason, yes. Is it confined to that ... not sure really. I think the aspects that relate to the issue of temper would concern me."
112 An affidavit by Mr Phillip Boulten SC was read in these proceedings. Mr Boulten, who is an experienced criminal defence barrister, was not required for cross-examination. In his affidavit Mr Boulten states that Mr Morrissey approached him for a reference in support of his application to the LPAB in July 2005. At this time Mr Boulten was supplied with the 11 September 2002 judgment of the Fourth Circuit Court. Mr Boulten states that he met Mr Morrissey in late 2003, and was made aware that he was not licensed to practice in the United States. Mr Boulten has had the opportunity to work closely with Mr Morrissey when Mr Morrissey assisted him in a criminal trial for a period of approximately two or three weeks, accompanying him to court and undertaking some research work.
113 Mr Boulten notes in his letter of reference that Mr Morrissey's record outlined in the judgment indicates problems in managing his temper, but the reference goes on to express the view that "the recommendation of the LPAB report of 20 June 2005 that the Board declare that it is satisfied that Mr Morrissey is a person of good fame and character … is a sound recommendation."
114 In order to complete the College of Law requirements Mr Morrissey had to undertake professional experience in a legal office. He approached the office of the Director of Public Prosecutions who engaged him for a period of 13 weeks so that he could carry out practical training. During that time he significantly impressed a number of the prosecutors with his ability and talent in communicating advocacy skills to others. One person he impressed was Mark Tedeschi QC, the Senior Crown Prosecutor for New South Wales. In an affidavit he says that he was so impressed when he met Mr Morrissey by his background and experience that he discussed with him the possibility of developing an advocacy mentoring program for the New South Wales crown prosecutors and using Mr Morrissey as a mentor. He arranged for him to act as the mentor for three experienced prosecutors, James Bennet SC, Mark Hobart and Mr Tedeschi himself. This undertaking, so far as Mr Tedeschi was concerned, proved highly successful. Mr Tedeschi says in his affidavit that he discussed the reasons why Mr Morrissey left the United States with him on two separate occasions. He says that:
"On each occasion he stated some vague reason about wanting to do other things and see the world. On no occasion did he mention to me that he had been disbarred in the United States."
115 Mr Morrissey told Mr Tedeschi in late 2004 that he was going to apply for admission as a legal practitioner in New South Wales. He asked Mr Tedeschi for a letter of support. Mr Tedeschi provided that letter addressed "to whom it may concern." The second paragraph of that letter reads as follows:
"During the short time that I have known Joe Morrissey, I have found him to be an able, intelligent and diligent overseas lawyer. It is my intention, if possible, to have him provide instruction in advocacy to junior Crown Prosecutors next year. I know that he intends to go to the New South Wales Bar. I know of nothing which would preclude him from admission as a Legal Practitioner."
116 In December 2004 Mr Tedeschi decided to make further inquires about Mr Morrissey "because of a slight concern about the vagueness of his reasons for leaving what must have been a successful legal practice in the United States." He looked up Mr Morrissey's old firm on the internet and contacted Robert Jacobs, who was a partner in the firm. He requested a confidential reference from Mr Jacobs. Mr Jacobs did not disclose in his response the reasons why Mr Morrissey was disbarred from practice in Virginia beyond saying that "he ruffled some feathers of the very conservative local Richmond and Virginia State Bars with his aggressive lawyering style." Mr Jacobs said: "It is speculation on my part, but he may have wanted a change of scenery, and he could afford to do so."
117 In May 2005 Mr Morrissey indicated to Mr Tedeschi that he was making an application to the Department of Immigration and Multicultural Affairs for a Distinguished Talent Visa. Mr Tedeschi provided a letter of support for Mr Morrissey's visa.
118 In mid-August 2005, Mr Tedeschi became aware from an internet site of the Fourth Circuit judgment of 11 September 2002. As a result of reading the judgment and after consultation with Mr Nick Cowdery AM QC the Director of Public Prosecutions he suspended Mr Morrissey from involvement in the prosecutor's advocacy mentoring program. Mr Tedeschi also informed the Department of Immigration of this suspension and withdrew support for him to be admitted as a legal practitioner.
119 In his affidavit Mr Tedeschi says:
"The disclosure of Morrissey's disbarment has caused me much personal embarrassment. I feel betrayed that he failed to notify me of his disbarment prior to me using his services as a mentor. I consider that Mr Jacobs deliberately failed to notify me of Morrissey's disbarment, and that this was a gross professional discourtesy. I have since referred by email to Mr Jacobs and he has admitted that he knew about the disbarment at the time he wrote the reference.
Having read the judgment in the US Appeals Court and thought long and hard about it, I know that some of the offences for which Morrissey was disbarred involve dishonesty as well as a complete lack of balance and self-control. As integrity and a balanced approach are essential aspects of being a good Crown Prosecutor, I can say, after much deliberation, that I would not have allowed Morrissey to become a mentor of the New South Wales Crown Prosecutors if I had known about the circumstances leading to his disbarment. I am somewhat dismayed at Morrissey's lack of candour to me about his disbarment. This is particularly so in the light of having asked him on two separate occasions what led to him leaving Virginia and going to Ireland. Having said all that, I consider that it is a great shame that he has fallen from grace in this way, as he was a fantastic and inspiring mentor. All of those who have had the benefit of his mentoring have spoken very highly of him."
120 Mr Morrissey explained the circumstances of his initial involvement with the DPP. He said that he was concerned to start again and have the opportunity of doing his practical training within the Director's office. He was concerned that if he disclosed his difficulties in Virginia he may not have the opportunity of working in the office and establishing his credentials as a competent prosecutor. As time went on and he became more involved in the activities of the Director's office he found that he was unable to make the disclosure. It was not until he was speaking with Mr Brereton SC about the preparation for this hearing that he realised that he should have disclosed the true position to Mr Tedeschi.
121 In the course of giving evidence in these proceedings Mr Morrissey was asked by his counsel:
"Q. Let me try to bring you to the point. You didn't discuss with him the fact that you had been struck off?
A. No.
Q. In the United States?
A. Correct.
Q. Why?
A. Initially it was because I was just trying to get the work component experience out of the way. Thereafter, when I started mentoring crown prosecutors, Mark and I didn't have any direct contact other than e-mails. There is probably not, you know, a day that went by that I didn't think, okay, I have got to sit down and talk to Mark about this. That is when I met with Mr Brereton at the time and I told him that I had not told Mark. The only way I can - the only way I can put it in proper perspective is this: It felt like when I came to Australia, I wanted to start over, I wanted to show them what I could do. After showing them what I could do, then I could tell them and explain to them the circumstances in Virginia. I felt that the first part had been accomplished; showing them what I could do. Then I told Mr Brereton that I had not had that second component where I explained to him what had happened. That is when he told me to go see him, and I was on my way.
The thing that - when I read here about - I mean I understand exactly what is going on in his mind, and I put myself in his shoes, and I subsequently wrote him a letter about that. You know, he got a copy of the 2002 decision with nothing else, and if I were in the same shoes I would feel let down you know. And I understand it."
122 It seems to me there are two significant matters in Mr Morrissey's dealings with Mr Tedeschi. Firstly, Mr Morrissey allowed Mr Tedeschi to engage him to mentor crown prosecutors without being fully apprised of the circumstances of his disbarment in Virginia and giving Mr Tedeschi the opportunity to assess whether or not he was a suitable person to be involved in the mentoring program. Secondly, Mr Morrissey asked for, and obtained, a reference from Mr Tedeschi intending to lodge it in support of his application for admission without informing Mr Tedeschi that he had been disbarred in Virginia. Not only did he not tell him that he had been disbarred he did not inform Mr Tedeschi of the various other matters, both minor and serious which had led to various disciplinary actions, fines and prison sentences before Mr Morrissey was finally disbarred. Although, as it happens, Mr Morrissey did not ultimately use the letter he nevertheless allowed Mr Tedeschi to proffer a reference in which he said he knew of nothing which would preclude Mr Morrissey being admitted as a legal practitioner. Mr Morrissey, of course, knew in asking for and receiving this letter that he had not made frank disclosure or indeed any disclosure to Mr Tedeschi of the various matters.
123 Mr James Bennett SC is a Deputy Senior Crown Prosecutor for New South Wales. He met Mr Morrissey when he became involved with the work of the Director's office and Mr Morrissey assisted him in conducting a significant murder trial. He was asked by Mr Morrissey to provide a reference in support of his application for admission as a legal practitioner. Although that reference is directed primarily to Mr Morrissey's skills as a practitioner (a matter which Mr Morrissey emphasises) it touches upon ethical matters. The last two paragraphs of the letter read as follows:
"Our numerous discussions were not limited, however, to the effective presentation of evidence in a trial and the development of persuasive argument. As the trial unfolded we compared and contrasted the role of Crown Prosecutor within our jurisdiction to the role of the prosecutor in the United States where criminal proceedings are to a degree more adversarial than in our courts. These discussions extended to other areas of practice and the ethical standards required of counsel in the discharge of their obligations to clients in circumstances where they have overriding duties to the court.
In my opinion, based upon the skills Joseph demonstrated to me in the course of the trial and the high ethical standards he revealed in the course of our discussions, Joseph Morrissey will prove to be an adornment to the legal profession in this State and I have no hesitation in offering my support to his application for admission."
124 Mr Bennett later became aware of the circumstances of Mr Morrissey's disbarment in Virginia. By letter dated 19 August 2005 he withdraw support for Mr Morrissey's admission. He says in that letter:
"Regrettably, yesterday evening and today I have received advice regarding Mr Morrissey's serious misconduct as a legal practitioner in the United States of America leading to, amongst other things, his disbarment in the State of Virginia and Federally.
At no time did he disclose to me any of the events or conduct that led to disbarment. Had he done so, it would not have been possible for me to form the opinion that he was a person suitable for admission to this profession as I expressed in my reference. His suitability is further challenged by his failure to fully and frankly disclose these matters.
It follows that I must withdraw my support for his admission."
125 In a letter in response to an inquiry from the lawyers representing the Bar Association Mr Bennett indicated that at no time did Mr Morrissey disclose to him anything of his disciplinary history as a lawyer in Virginia. In fact, when Mr Morrissey addressed the crown prosecutors at a conference he began with the proposition that the audience might be wondering why he had left Virginia to pursue his interests in the law in Ireland and Australia. The answer he gave that audience was that he had "lost the election when his term as Chief Prosecutor expired and after a period in private practice he chose to explore opportunities outside of his country."
126 Mr Bennett indicated that this was similar to the explanation which Mr Morrissey had given to Mr Bennett during the course of their association. Mr Bennett, in response to a letter from the solicitors for the LPAB wrote, on 28 September 2005:
"I view Mr Morrissey's failure to disclose, in the circumstances of my association with him, to be an integral component of a false pretence that there was nothing in his background that might detract from the perception of good fame and character, by means of which he sought admission to the legal profession of New South Wales notwithstanding his disciplinary history as a lawyer in Virginia. For an extended period he represented his history to be that of a successful lawyer from Virginia who had travelled from that place to extend his legal experience and explore new opportunities, and conducted himself so as to leave a favourable impression upon which one might draw for the reference he later sought.
This said, even if one was to allow Mr Morrissey the benefit of doubt as to whether he was engaged upon a deliberate process of misrepresentation, the matters which are the subject of the aforementioned judgments are of themselves destructive of the proposition that Mr Morrissey is a person of good fame and character. Moreover, his failure to disclose them even as allegations, the proceedings that evolved in respect of them, and the ultimate outcome in each case, reflect a misunderstanding of the importance that fame and character must have, and without which the community we serve could not maintain confidence in those of us blessed with membership of this profession."
127 The breach of trust with respect to Mr Bennett is no less than that which Mr Morrissey committed in relation to Mr Tedeschi. It is exacerbated by reason of the fact that he not only obtained a reference from Mr Bennett but he proffered that reference to the Board in support of his application.
128 Mr Morrissey also made application to the Bar Association for exemption from the New South Wales Bar exams in the event of his admission as a legal practitioner. That request was granted. Mr Christopher D'Aeth, the Director of Professional Development for the Bar, deposed to the fact that when he was considering his recommendation as to whether or not Mr Morrissey would be required to sit the Bar exams he was not aware of Mr Morrissey's full disciplinary history nor his disbarment in the United States.
129 Mr Philip Selth, the Executive Director of the Bar Association approved Mr Morrissey's application upon the recommendation of Mr D'Aeth. In his affidavit of 23 November 2005, Mr Selth says he was also not aware, when he considered the matter, of the judgment of the Court of Appeals for the Fourth Circuit of 11 September 2002 or the decision of the Virginia State Bar Disciplinary Board. He says that if he had been aware of that history he would not have approved Mr Morrissey's application.
130 The evidence in relation to Mr Morrissey's understanding of the material which he had provided to the Bar Association before his application for exemption was considered and granted is unclear. I am satisfied that Mr Morrissey believed that his solicitor had provided the Bar Association with documents which would have disclosed his disbarment in Virginia although not the decision of the United States Court of Appeals Fourth Circuit. Although undoubtedly Mr D'Aeth and Mr Selth believed that full disclosure was not made I could not find that this was the fault of Mr Morrissey. Rather it would seem that his solicitor failed to deliver copies of the application which had been made to the Board when Mr Morrissey understood this would occur.