New South Wales Bar Association v di Suvero

Court of Appeal (Qld)|1999-11-19|Before: Blackman J

CITATION: New South Wales Bar Association v di Suvero [2000] NSWADT 194 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the New South Wales Bar Association RESPONDENT Henry Millo di Suvero FILE NUMBER: 9824 HEARING DATES: 16,18,19 November 1999 6 & 9 December 1999 SUBMISSIONS CLOSED: 12/09/1999 DATE OF DECISION: 05/05/2000

BEFORE: Finnane MJ - Judicial Member; Blackman J - Judicial Member; Bubniuk L - Member APPLICATION: Unsatisfactory Professional Conduct - conduct below expected standards of competence and diligence - Unsatisfactory Professional Conduct - conduct below expected standards of proper conduct, dignity and courtesy MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 ex parte Bellanto re Prior (1963 63 SR 190) Carus Wilson case (1845 QB 984) CASES CITED: ex parte Pater (1864 5 B&S 299) Lewis v Judge Ogden (1984 153 CLR 682) Bradshaw v Attorney General of Queensland ([1998] QCA 224) APPLICANT REPRESENTATION: P Garling SC, barrister RESPONDENT F McAlary QC, barrister ORDERS: 1. That there be a finding of unsatisfactory professional conduct by the Respondent; 2. That there be a further hearing to take submissions on the question of penalty and costs

Introduction: 1 The New South Wales Bar Association has by an Information alleged that the Barrister, Henry Di Suvero is guilty of unsatisfactory professional conduct. It has claimed that the conduct of the barrister was unsatisfactory in 10 particular ways. At the outset of the hearing, counsel for the barrister, on instructions, requested that the proceedings be conducted in public and that the name of his client be disclosed publicly. We agreed that this course be followed and it follows that his name is able to be published. 2 The conduct alleged to have been unsatisfactory arises from the participation by the barrister in 1996 in a trial as defence counsel. The trial was a criminal trial, the accused person being a Mr. Dyers and the case against him being that he, as the founder of an organisation known as Kenja, had unlawful sexual intercourse with a number of young women who were at the relevant time, under the age of 18 years. 3 The trial judge was Her Honour Judge Karpin and the Crown Prosecutor was Mr. Desmond Carmody. There was a jury. The trial was quite lengthy, going over many weeks and it was clearly a trial which involved considerable stress for all concerned. The accused was 74 years old and at the trial, a noticeable group of his supporters sat in the public gallery. It would seem that supporters of a group opposed to Kenja also were present in the public gallery. This obviously created a deal of tension. 4 During the trial, there were many hostile exchanges between the barrister and Mr. Carmody. There were also angry remarks passing between the barrister and Her Honour Judge Karpin. A number of matters occurred which on our examination of the evidence, provoked angry exchanges. There were disputes about whether the Court should be closed to the public during all or part of the evidence. There was a dispute about the publication of a pamphlet during the trial which attacked the prosecution case. This led to Her Honour and Mr. Carmody taking exception to the actions of the supporters of Kenja and the solicitor for the accused. There were also accusations by the barrister that the Crown Prosecutor was acting improperly and was suppressing evidence which should be led and the barrister also alleged that the prosecution was improper and tainted from the beginning because of political interference. 5 Clearly, any findings which we make must be made on the basis of the evidence put forward by the Bar Association to establish the information. To understand the allegations the subject of the particulars, it was necessary, as counsel for the parties agreed, that the allegations be put into context and this meant that some of the transcript of evidence given at the trial of Mr. Dyers was put before the us and oral evidence was given concerning various parts of the criminal trial. 6 The Bar Association also, through its counsel, tendered a large amount of material of a documentary nature, much of which was not directly relevant to the particulars in the information. However, much of this material was relevant for the purpose of enabling us to be certain that we were correctly exercising jurisdiction in that we had to be satisfied that there had been proper compliance with the procedure for dealing with complaints laid down by the Legal Profession Act, 1987. 7 Thus, the written complaints of Mr Carmody and Judge Karpin were put into evidence because those complaints were then, in accordance with the accepted procedure, referred to a Committee of the Bar Association for investigation. Each of the complainants was asked to provide further information and their responses were sent to the barrister who was given an opportunity to reply. The Committee considered all the material provided by the complainants and by the barrister and ultimately recommended that a number of the complaints should be dismissed. The Bar Association dismissed those complaints. The matters now before this Tribunal are the complaints which the Bar Association considered should be brought before this Tribunal. 8 Thus, many of the original complaints and the response of the barrister to those complaints are no longer the subject of any proceedings against the barrister. The material is before us but in our view, we must ignore the material concerning the dismissed complaints, except: 1. For the purpose of considering and determining whether, because there was an investigation carried out properly in accordance with the provisions of the Legal Profession Act, we have the jurisdiction to determine these matters which are before us for consideration: 2. To understand the context of the matters before us: 3. To the extent to which such material was the subject of oral evidence before us, or was referred to for purposes directly relevant to the matters which were before us for consideration.

Jurisdiction 9 We are of the opinion that we do have jurisdiction to consider and determine the matters which are before us.

FACTS Background of the Barrister 10 The barrister, who is now 63 years old is a citizen of the United States of America and a permanent resident of Australia. He qualified in law in the United States and commenced practice in New York in 1961. He has a Bachelor of Arts degree with Honours from the University of California (Berkeley) and a Doctorate of Laws (cum laude) from Harvard Law School. 11 According to written evidence supplied by him, which we accept, he practised as a trial lawyer in the United States in the states of New York, California, Vermont and South Carolina as well in various Federal Courts, including military courts in the United States until he came to live permanently in Australia in 1987. 12 He was admitted as a barrister in New South Wales on the 22nd of May 1987 and he has in fact practised as a barrister since the 1st of August 1988. 13 In the United States, the barrister, according to material supplied by him, appeared in over 100 jury trials. It would seem that much of his work in the United States involved appearing for persons charged with criminal offences and he appeared in at least one hearing by the House UnAmerican Activities Committee of the United States House of Representatives. (HUAC). Additionally, he has lectured at a senior level in recognized university law schools in Australia, the United States of America and Papua New Guinea. He has published 3 papers and given papers at conferences. 14 He has said in his affidavit that his practice has mainly been in common law and criminal law whilst he has been in New South Wales. Before the Dyers trial he had appeared in NSW in more than 40 criminal trials with juries and since the Dyers trial he has appeared in about 20 more criminal jury trials. These trials have involved serious criminal offences including murder, fraud and drug and sexual offences. He has also appeared in criminal appeals. 15 In every sense, he is an experienced barrister.

What We are required to do 16 These proceedings, involving as they do, allegations of unsatisfactory professional conduct, require us to determine a standard of professional conduct and to decide whether the conduct the subject of the information fails to comply with that standard. We are conscious that what we decide may well have general importance within the legal profession, not only for barristers but also for solicitors who act as advocates before courts in this State. 17 Any advocate appearing before a Court in this State does so as a member of a learned and noble profession. He or she has the privilege granted by law of appearing for citizens, corporations and governments. Courts are entitled to expect from the advocate competence, honesty, integrity and learning. The advocate is immune from suit for defamation in respect of anything which he or she says during the course of Court proceedings. This privilege is one which can be abused and if it is abused, in our opinion, serious harm is caused not only to the persons involved in the matter but to the legal profession. Apart from this, such abuse of privilege, harms the reputation and standing of the advocate and damages the relationship of trust which should exist between advocates and the Bench. 18 Of course, there are many occasions during the life of an advocate when he or she will clash with other advocates and sometimes with a Judge or Magistrate. Sometimes these clashes arise because those concerned are tired or tense and sometimes they occur because advocates clash about the admissibility of evidence, perceived unfairness of an opponent or perceived unfairness of the trial judge. 19 The question with which we have to grapple is whether any or all of the matters which are particularised in the Information are of such a nature as properly to be characterised as unsatisfactory professional conduct. 20 We have been referred to a number of authorities, but none of them concern conduct of the type presently alleged against the barrister. Most of them were cases of contempt of court and whilst they were of obvious importance in understanding what conduct by a barrister would be regarded as being contemptuous of a court, we must decide whether conduct which may not be contemptuous could amount to being unsatisfactory professional conduct.

The Obligations of a Barrister 21 The obligations of a barrister have developed over centuries by practice in the Courts of England and Australia. 22 In recent years, the NSW Bar Association has enacted Rules having statutory force which apply to the practice of barristers. The preamble to those rules sets out some of those duties in the following words: "PREAMBLE These Rules are made in the belief that: The administration of justice in New South Wales is best served by reserving the practice of law to officers of the Supreme Court who owe their paramount duty to the administration of justice. As legal practitioners, barristers must maintain high standards of professional conduct. The role of barristers as specialist advocates in the administration of justice requires them to act honestly, fairly, skilfully, diligently and bravely. Barristers owe duties to the courts, to other bodies and persons before whom they appear, to their clients, and to their barrister and solicitor colleagues. Barristers should exercise their forensic judgements and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients. The provision of advocates for those who need legal representation is better secured if there is a Bar whose members: a) must accept briefs to appear regardless of their personal prejudices; b) must not refuse briefs to appear except on proper professional grounds; and c) compete as specialist advocates with each other and with other legal practitioners as widely and as often as practicable. 23 Barristers should be free to choose how they lawfully practise as barristers except only in those cases where the unchecked exercise of that freedom would threaten harm to the greater public interest that barristers' conduct be honourable, diligent, especially skilled, disinterested and competitive and that access to barristers' services be enhanced." 24 The preamble identifies the duties that barristers owe to court, their opponents, their clients and the community generally. Particular aspects of those duties are dealt with in later, more specific rules. 25 Clearly a barrister must put the client's case fully and forcefully, but is required to act courteously, impartially and honestly. 26 Thus, in subsequent rules ( Rule 16 -18) it is said: "Duty to client 16. A barrister must seek to advance and protect the client's interests to the best of the barrister's skill and diligence, uninfluenced by the barrister's personal view of the client or the client's activities, and notwithstanding any threatened unpopularity or criticism of the barrister or any other person, and always in accordance with the law including these Rules. 17. A barrister must seek to assist the client to understand the issues in the case and the client's possible rights and obligations, if the barrister is instructed to give advice on any such matter, sufficiently to permit the client to give proper instructions, particularly in connexion with any compromise of the case. Disinterestedness 18. A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgements called for during the case independently, after appropriate consideration of the client's and the instructing solicitor's desires where practicable" 27 Often in a Court, a barrister must put questions which attack the integrity of a witness and he or she is entitled and indeed, obliged to do this despite the views of the Judge or an opponent provided that he or she has a proper basis for doing so. A barrister acting firmly and fearlessly is upholding the highest standards of the profession. 28 However, a barrister cannot under the guise of firm and fearless advocacy engage in behaviour which is insulting to his or her opponent and/ or the Judge. In our opinion, this must be so even if the opponent or the Judge or both of them have themselves failed to live up to the standards expected of them. 29 The authorities on contempt of court are important because they lay down standards of conduct which are acceptable in a court and they also deal with duties of barristers and others towards courts 30 Thus in ex parte Bellanto re Prior (1963 63 SR 190) reference is made (p196) to the following passage in the Carus Wilson case (1845 QB 984) (referred to with approval by Lord Cockburn C.J. in ex parte Pater (1864 5 B&S 299): " But here it appears that a contempt was supposed to have been committed. That is a case in which it becomes the unfortunate duty of a court to act as both party and judge, and to decide whether it has been treated with contempt. We cannot decide upon the face of this return that they have come to a wrong conclusion. A court may be insulted by the most innocent words uttered in a peculiar manner and tone. The words might or might not be contemptuous according to the manner in which they were spoken" 31 The facts of Bellanto's case arise out of a criminal trial and disputes between Mr Bellanto, counsel for the accused and Judge Harvey Prior. During the course of cross examination by Mr Bellanto of the prosecutrix, the Judge disallowed some questions which Mr Bellanto wished to ask the prosecutrix on the ground that they were not relevant. Mr Bellanto then indicated that he wished to make an application. TheJudge, without hearing what it was, refused to grant it. Mr Bellanto, the jury having left the court, then sought a discharge of the jury, which was refused. He then said: "If I withdraw from the trial, would your Honour grant this accused an adjournment?", to which his Honour replied, "The trial will go on today, with or without counsel". Mr. Bellanto said, "Then I will not desert my client". 32 In their judgment, the Full Court remarks that : "From a reading of the entire transcript an inference could arise that Bellanto harboured resentment against the ruling of the judge, and that he later lost his temper, which distorted his sense of proportion." 33 Later, during further cross examination of the prosecutrix, in which Mr Bellanto was taking her to evidence she had previously given, the Judge intervened by reading out additional questions and answers given by the complainant. Mr Bellanto objected to this questioning by the Judge and the following exchange took place: " Mr. Bellanto: I ask Your Honour not to interfere or interrupt my cross-examination of this witness. Your Honour knows Butler's Case in point on the matter ...." 34 After the reference to Butler's Case, his Honour said: "Would you sit down, please? I am pointing out that lower down in the evidence in the page from which you read, this appears: Q. You were going home to Marrickville this night, were you not? A. No. Q. A moment ago did you not say you were not going home to Marrickville that night? A. I did not know what you meant." 35 The Full Court then went on to detail what followed, including the judge's comments on it (p 196): "We shall later refer to the nature of the contempt charged in greater detail, but his Honour described Mr. Bellanto's conduct at this point over the matter of the depositions as a gross want of regard and respect to the Court and as outrageous and disgraceful and unbecoming a member of the Bar. He also found it was insulting and disrespectful, an outrageous outburst in the face of the public and the jury. His Honour expressed the view that Mr. Bellanto had insulted the Court by his manner of address and mode of shouting and cited an instance of Mr. Bellanto having "shouted back" at an observation by the judge. His Honour further said: "I had no control over you at all, for a time. You let yourself go in a manner in which I have never seen any counsel perform in my experience at the Bar. What you did yesterday, I refuse to tolerate in court. You have gone close to the borderline on a number of occasions, not only with me but also with other iudges. Mr. Bellanto: I have not had complaints from other Judges. His Honour: I have. Quite a number of judges object to your manner of conducting a case; as to the way you shout and the way you and the way you go on in court." Again, during argument his Honour later said that Mr. BeIlanto's conduct was more than offensive. "It was disgraceful", he said, and "over the odds", and he reiterated that it was "more than offensive" and demonstrated a gross want of that regard and respect to which a court is entitled. 36 The Full Court then referred to an affidavit of Mr Bellanto in which he said: "Although I had not intended to be insulting or disrespectful to the court, I then apologised for any disrespect of which I might have been guilty and was fined twenty pounds". "Upon resumption of the court's business the following day I submitted that I had not been guilty of contempt of court and pointed out that I had been convicted without being heard and asked that the fine imposed be vacated. This application was refused and, upon instructions, I withdrew from the proceedings." 37 The Full Court then went on to say: "It may be observed that during the discussion Mr. Bellanto suggested that he was provoked by his Honour who had invited such conduct: "Mr. Bellanto: Your Honour may feel sometimes the court itself, by its relationship with counsel and by the conduct of the trial, may invite such conduct". The end result of the incident about the depositions was that his Honour said there and then: "I know you are trying to manoeuvre yourself into the position where I will ask you to take yourself out of this Court; I know that is your object. Mr. Bellauto: I ask your Honour to withdraw that, as it is most improper. His Honour: At the end of this case I may take certain action unless you behave yourself. Mr. Bellanto: Is your Honour threatening me? That is entirely a matter for Your Honour. I am not concerned about what Your Honour does to me but I am concerned about what your Honour does to the accused, in the interests of justice. His Honour: At the end of this case I may call on you to show cause why I should not commit you for contempt. Mr. Bellanto: I am not concerned with how you deal with me but only with justice for the accused. His Honour: Do not raise your voice to me, that is a matter which I will take into account if I am committing you for contempt." This view was again expressed by His Honour later the same day when he said:"My view is that having asked me to discharge the jury, which application I refused, you deliberately went out of your way to be as insulting and disrespectful to the Court as you were able in the hope that you would be ordered from the court, thus necessitating a further trial of your client." This was not then denied by Mr Bellanto, nor does he do so in his affidavit. Rather,he appeared to concede the truth of it for his answer to the judge was: "I can only say if your Honour feels I have done anything to impugn the dignity of the court or that I have done anything which would be likely to reflect upon your judicial dignity, then I am sorry I cannot say any more. I do agree I am an emotional type and might identify myself too much with my client's interests, but this morning I do feel the evidence led by the Crown from the witness Baines, that the accused had bashed her, was so highly prejudicial that the accused could not possibly have a fair trial in the face of that evidence. And it was on that basis I submitted to your Honour at one stage that you were interrupting my cross -examination and I asked your Honour to bear with me on the particular point. If I have done anything, I am sorry, and I suppose I will have to take the consequences but I do ask your Honour to give sympathetic consideration to any action which I feel your Honour might want to take." 38 The Full Court went on to consider the nature of contempt and said this (inter alia): "For words or action used in the face of the court or in the course of proceedings__for they may be used outside the Court--to be a contempt, they must be such as to interfere or tend to interfere with the course of justice: Parashuram Detaram Shamdasani v. King-Emperor ([1945 AC 264]). If in the course of a case a person, whether layman or barrister, persists in a line of conduct or use of language in spite of the ruling of the presiding judge, he may well be guilty of contempt of court, the offence being disregard of the ruling and setting the court at defiance. But the use of summary procedures to suppress methods of advocacy which are merely offensive, e.g. to an opposing barrister, or as a measure of reprisal by a judge after a brush with counsel, is to use it for a purpose for which it was never intended." 39 The Full Court went on to make these pertinent observations (at p 203): Our jurisdiction is not to attempt to decide this application on the weight of the evidence which was before the learned chairman. The words uttered by Mr. Bellanto, as they appear in the transcript, may in proper circumstances have been uttered in the honest discharge of his duty and to vindicate the interests of his client and to try and prevent the learned chairman from interrupting his cross-examination on what he felt was a critical point. If the words were harsh and disrespectful to the judge, although in breach of good manners, they may have been within the legal right and privilege of counse1. Counsel may, for instance, in appropriate circumstances and in a proper manner request the judge to refrain from interfering with his cross-examination on what he honestly believes was a critical point:. But if his words took the form of insults to the judge or of setting at defiance his ruling as to the discharge of the jury, or if the manner of their utterance was insulting and offensive, then they could amount to an abuse of a barrister's privilege and the judge might treat the utterances as contempt and deal with them accordingly. On the materials before us, can we hold that the learned chairman came to a conclusion so unreasonable and wrong that he had no jurisdiction to fine Mr. Bellanto for contempt? We cannot say so. We are of opinion that there was a basis on which the words and conduct of the applicant might have been adjudged by the learned chairman to have been a contempt. The case is not one as to which there is no reasonable ground for his Honour so treating them. 40 In Lewis v Judge Ogden (1984 153 CLR 682), a barrister was found guilty summarily of the offence of contempt of the County Court of Victoria. In his final address to the jury he had pointed out that the judge obviously had views on the facts and that they did not have to take any notice of them. He told them that the judge could be likened to a football umpire. He was required to be unbiased and they would be annoyed if in the middle of a grand final one of the umpires came out wearing Collingwood colours. 41 The High Court set aside the conviction for contempt, holding that the remarks had been made in a legitimate framework emphasising the distinction in roles of the judge and the jury. The remarks were "extremely discourteous, perhaps offensive and deserving of rebuke by the trial judge, but they could not be considered to be deliberately insulting and did not constitute a contempt of court" (see p 693). 42 Bradshaw v Attorney General of Queensland ([1998] QCA 224) concerned a case where it was agreed that a barrister had wilfully insulted a judge during a criminal trial. He was dealt with summarily for contempt and on appeal the conviction was set aside on the grounds of denial of natural justice. The exchange which all agreed was wilfully insulting is as follows; "MR BRADSHAW : Now in the record of interview you not only find out the accused's version but you also put to him various witness's statements MR BURGESS: Your Honour, I object to this line of questioning. HIS HONOUR: It's not relevant, is it? MR BRADSHAW: Yes, it is, of course it's relevant. HIS HONOUR: No it's not. I rule it's irrelevant. MR BRADSHAW: Jesus.Well, during the record of interview you find out potential witnesses from the accused's perspective ----- MR BURGESS: Just asking the question another way, Your Honour. HIS HONOUR: I rule it's irrelevant. MR BRADSHAW: For God's sake. HIS HONOUR: Look, watch yourself, my boy. MR BRADSHAW: I'm not your boy. HIS HONOUR: Step out, ladies and gentlemen. THE JURY RETIRED AT 11.07 A.M. MR BRADSHAW: I'm now asking for this trial to be aborted. Your Honour's antics in front of the jury are most unprofessional, most unjudicial, reflect poorly on the defence. I ask Your Honour to abort this trial. It's well known Your Honour's animosity towards me and you should not present that to this jury. I ask for this trial to be aborted. And I would ask for a ruling on it, Your Honour. The Crown come along here because White DCJ is on the bench and they chuck up this nonsense. Let them dare present this sort of case in front of any other Judge. What is - what is inadmissible ----- HIS HONOUR: Mr Bailiff, would you get a policeman here, please? MR BRADSHAW: What about me asking a question for the record of interview? It's up to the Crown to put a record of interview in. HIS HONOUR: Adjourn the Court for a few minutes please, Mr Bailiff. THE COURT ADJOURNED AT 11.12 A.M. HIS HONOUR: Mr Bradshaw, pursuant to section 129 of the District Court Acts, I charge you that on the 4th of December 1997 you wilfully insulted a Judge of the District Court of Queensland, in particular you used the words, `The Crown can come along here because White DCJ is on the bench and they chuck up this nonsense. Let them dare present this sort of case in front of any other Judge.' Those words were meant and were intended to mean that I am biased in favour of the prosecution in any case in which you act as defence counsel. Do you have anything to say in answer to the charge? MR BRADSHAW: Yes, I say I'm not guilty. HIS HONOUR: Yes, anything further you want to say? MR BRADSHAW: I am going to defend myself. HIS HONOUR: Go ahead. MR BRADSHAW: Now? HIS HONOUR: Yes. MR BRADSHAW: All right. Well, let's abort this trial. I'm not going to stand here in trepidation about my future and say I can adequately represent my client. HIS HONOUR: I'm not aborting the trial at this stage. I have charged you with contempt. The evidence is there, it's in the transcript. Have you got a copy of the transcript? MR BRADSHAW: I have got a copy of the transcript. HIS HONOUR: Do you dispute it? MR BRADSHAW: I don't dispute the transcript. HIS HONOUR: The evidence is there. What do you want to say? MR BRADSHAW: Does Your Honour recall then in my defence Your Honour going to a Halloween party? And how Your Honour describes yourself, not me, how Your Honour describes yourself? HIS HONOUR: Do you wish to defend this charge? MR BRADSHAW: I raise that in my defence. HIS HONOUR: Anything else you want to say? MR BRADSHAW: No. HIS HONOUR: I order that you be fined the sum of $500. MR BRADSHAW: What's the default period? HIS HONOUR: How long do you want to pay? MR BRADSHAW: Well, I may as well start serving it now. The trial can't go on, can it? And anyway, I'm just walking out of this trial. I can't adequately represent my client after this. HIS HONOUR: It's a matter for you. MR BRADSHAW: A month to pay? HIS HONOUR: I beg your pardon? MR BRADSHAW: A month to pay I'm asking for." 43 The courts draw a line between words of counsel spoken to assert his entitlement and duty to see that the case of his client is presented fairly and forcefully and words and conduct which is insulting. The words themselves may not carry insult in them, but body language may. Shouting and belligerence may constitute contempt. 44 In our opinion, if the conduct alleged against a barrister in proceedings before this Tribunal amounts to a contempt of court, then that would also be conduct which was unsatisfactory professional conduct. 45 However, conduct which is not sufficiently serious to be regarded as a contempt of court could still amount to unsatisfactory professional conduct. 46 During the hearing, counsel for the parties said that they were not going to call expert evidence as to what constituted unsatisfactory professional conduct and that it was left to us to determine the question. 47 We are of the opinion that in New South Wales the following matters would be regarded as unsatisfactory professional conduct: 48 The making of unsubstantiated allegations of dishonesty against another legal practitioner, 49 The making of insults directed to another legal practitioner or the judge, unsubstantiated allegations of bias on the part of the judge, 50 The unjustified attribution of bad motives to another legal practitioner in the conduct of a trial and 51 Conduct which aims without justification to procure a discharge of a jury.

The Conduct referred to in the Information 52 There were 10 particulars which were said to amount to unsatisfactory professional conduct. As we make plain, we consider that some of them could not constitute unsatisfactory professional conduct, some of them did constitute unsatisfactory professional conduct and some which could in combination with others. 53 We considered in each instance the particular concerned, the evidence at the trial which gave some context to the particular, what the barrister said in his affidavit and what he said in evidence before the Tribunal if he gave evidence concerning it. He was not questioned at all about some particulars. We also had regard to other evidence in the Tribunal proceedings, such as the evidence of Mr Carmody and of the Judge's Associate. Their evidence was of assistance particularly in enabling us to get an appreciation of the body language of the barrister at the trial and his tone of voice when various statements were made. The proceedings before the District Court were not sound recorded and without the evidence of the Mr Carmody and the Judge's associate we would not have been in any position to form any view on these matters.

The Particulars Particular 1: 54 This particular alleges that the barrister made statements which were discourteous to the Court and disrespectful to Her Honour and that those statements had the potential or tendency to bring the Court and the presiding Judge into disrepute. 55 The first such statement was in these terms: "1.1. Yes. This is what I have to say to Your Honour's suggestion. Firstly, never since my representation of Mr. Rubin in front of the House Un-American Committee have I ever been in a Court room that is so oppressive as this." (Trial transcript p 278.36 of 19.2.96). 56 The second statement was in these terms: "1.2 We will have a Star Chamber in the proceedings where sometimes the Court is closed and sometimes open........" 57 (Trial transcript p. 279. 3 0 of 19. 2. 96.) 58 The third statement was in these terms: "1.3 We are in favour of a public trial under all the circumstances. We are not going to engage in horse trading in terms of who is allowed in and who is not allowed, but we have always been in favour of the press being allowed in..... So my answer to Your Honour in terms of the question is, we do not oppose the press being here, we welcome the press being here and we thank you, Your Honour, for at least giving us that." (Trial transcript page 280.10 of 19. 2. 96. 59 These three statements were all made by the barrister on the same day and very close in time to one another. In his Reply to the Information, the barrister said in relation to these particulars that he did not admit and disputed that the three statements in light of the overall context and the surrounding circumstances of the trial: (a)were discourteous to the Court and disrespectful to Her Honour; (b) had the potential or tendency to bring the Court and the presiding Judge into disrepute and further he claimed that the statements should not be read as having the meaning and implications as alleged in the particulars in the overall context and the surrounding circumstances of the trial.

The Affidavit: 60 In his affidavit filed in these proceedings, at paragraphs 22 to 42, the barrister provided an explanation of the context and the circumstances as he gave oral evidence during his cross examination before us of the context and circumstances in which these words were uttered. 61 The words the subject of particular 1 were all uttered by the barrister during the course of an application made by him for the proceedings at the trial, except for the evidence of the complainants, to be conducted in public. It seems clear that during the course of this application there was considerable friction between both of the Counsel in the Court and between the barrister and the Judge. The barrister had a very firmly held belief that the proceedings must be in public and it would seem that this issue was ventilated subsequently in the Court of Criminal Appeal. 62 A consideration of paragraphs 21 to 32 reveals that he considered the conduct of the Crown Prosecutor and of the Judge to have been unsatisfactory. Indeed, in paragraph 24 he says: "the conduct of the Crown however degenerated, in my opinion." 63 In reference to the Judge, he refers to her asking him whether his solicitor was a member of Kenja as being "a disturbing question in light of the fact that her Honour asked it in the course of chastising Kenja for issuing a press release. (See paragraph 22)". 64 He also referred to the conference at the back of the Court between Counsel and Her Honour. This conference was held apparently for the purpose of further discussing who should be allowed in Court during the proceedings and during the course of discussions, Her Honour apparently suggested that if the accused so applied, she would permit members of the press to be present during the trial. 65 The barrister in paragraph 32 of his affidavit set out his reaction in the following words: "I said to Her Honour that I will get instructions. I was concerned that I was being put in a position where by agreement to have only press present and the public excluded, I would be waiving my clients (sic) rights to a public trial. I was also concerned by her Honour's action in engaging in discussion of a matter of substance in chambers. I said to her Honour words to the effect: "I do not want to engage in substantive discussions in chambers in the future." 66 No doubt, there would be room for argument that the rulings of Her Honour concerning whether the trial should be in public were not correct. It also seems clear that the dispute about the issue of a press statement by Kenja during the trial obviously created heat between Counsel and between the barrister and Her Honour. 67 We are not examining the correctness of Her Honour's rulings nor the appropriateness of the submissions of the Crown Prosecutor on the various issues that arose during this segment of the trial, nor are we determining whether the views of the barrister about the conduct of Her Honour and of the Crown Prosecutor are well founded. Rather, we are examining the conduct of the barrister himself.

Tribunal Evidence: 68 The barrister gave evidence before us and was asked specifically about his attitude to the complaints which are contained in particular 1. He was asked a series of questions by senior counsel for the Bar Association, Mr P Garling S.C., which we set out: "Q. Now, I will ask you this question generally first and then I will go to individual particulars. Is there anything about your behaviour covered by the information in this proceeding in this Tribunal, that you say now was contrary to your obligations as Counsel of the kind I have put to you? A. There is. Q. Would you like to tell us? Do you have a copy of the particulars in front of you? A. I don't. Q. Just for the moment, Mr. Di Suvero would you be good enough to identify by particular number those particulars that include conduct which you now accept infringed your obligations as Counsel? A. With respect the particular one, I would agree today that what I said was language which was too vivid for the Court and that I should have been more circumspect . PRESIDING JUDICIAL MEMBER. This is 1.1? A. That is 1.1 and1.2. MR. GARLING. Q. You make the same remark? A. I do. Q. Yes? A. And I would use different terminology for those two as well as for1.3. JUDICIAL MEMBER: Q. What do you mean by "I would use different terminology"? A. Right. What I would say today would be this, and that is that Your Honour, we decline to withdraw the application that we have made to have the Court open. We accede to your Honour's suggestion that the Court be open to the media, but in acceding to it, we do not in any way waive any of our right to a public trial. .......And if that wasn't clear, I would continue by saying and by that, by the entrance of the press into the room, we don't in any way waive that right. "(Tribunal transcript 232.48 - 233.38) The Reply: 69 In his Reply, the barrister in relation to particulars 1.1 and 1.3, denied discourtesy and disrespect to the Court, denied that what he said had the potential or tendency to bring the Court and the presiding judge into disrepute, and denied that the statements set out in paragraphs 3.1,3.2, 3.3, 3 .4, and 3 .5 were offensive or insulting to the Crown Prosecutor or questioned or attacked the integrity of the Crown Prosecutor or displayed a lack of professional courtesy to him or had the potential or tendency to inflame the jury against the Crown Prosecutor. 70 However, he admitted in relation to particular 1.2 that he did have a duty of fairness to a witness. (Nb, balance of sentence deleted). 71 The barrister also raised as a defence in relation to these particulars and indeed in relation to all particulars, that in the context and surrounding circumstances of the trial, the relevant statements did not have the effect claimed in the Information. 72 We therefore examined the context of each of the matters which were particularized in the Information. The Bar Association also led oral and affidavit evidence from the Crown Prosecutor, Mr. Carmody and from Kerrie Gale Andrew, who was the Judge's Associate at the trial.

Assessment of the evidence: 73 In our opinion, the evidence of these witnesses did not assist greatly in determining context or what was said or done by the barrister, other than to confirm that Mr Carmody was certainly offended by the conduct of the barrister which is the subject of the particulars. Ms Gale also gave evidence orally of the layout of the Trial courtroom and the positions of counsel, solicitors, witnesses, the accused and supporters and opponents of Kenja. The transcript of evidence, however, did provide the context of what was said and the words which were actually used. Ms Gale and Mr Carmody also gave evidence of the barrister using " a very loud voice", of speaking sarcastically, of smiling inappropriately and of being red in the face. This evidence was of particular value in enabling us to gain some understanding of the atmosphere of the trial and of the effect on them and on the Judge of the conduct of the barrister. This was important because the evidence of the trial was recorded by shorthand writers, rather than by sound recording and it was not possible for us to hear the words uttered.

The Barrister's explanation during evidence at the Tribunal. 74 The barrister in his own evidence gave an insight into his thinking and what caused him to make the various remarks which he made. 75 Thus, in dealing with particular 1.1 in his affidavit (pp 10,11) he said this: "34. My description of the courtroom as "oppressive" was an honest characterisation of my past experience in front of the House of Un-American Committee (HUAC). Only two days before, my instructing solicitor had been the subject of an inappropriate question from she(sic) Honour when her Honour asked if my instructing solicitor was a member of 'Kenja'(see 205.20). It reminded me of the question commonly asked at HUAC: " Are you now, or have you ever been a member of the Communist party?" 76 In his oral evidence (Tribunal transcript 234-5), the barrister said that he appeared before HUAC in 1965 on behalf of Mr Jerry Reubin, who was a Yippee, subpoenaed to appear before the Committee. Mr Reubin chose to appear in the dress of a revolutionary of 1776 for the purpose of making the Committee look ridiculous. The courtroom in which the hearing took place was crowded with members of the press, security staff and other people. He said: " What it triggered for me was the question that her Honour had asked a day or two before, that is of my solicitor, " Are you a member of Kenja?" 77 I had never heard a judge ask a solicitor whether that person was a member of the group that they were appearing on behalf of. In the transcript that was read to you the other day, it is unclear as to who makes that response. The response is " I will not respond to that", but it was made by Mr Koops. It was not made by me and it was in that context that I made the statement that I made. 78 I realise now that it was unnecessary for me to make that, to preserve the claim of public trial that I was attempting to make at that point and if I had not had all the build up that went into this, including a decision that had been made one day and reversed ten days later, plus what had intervened in between, I would not have made that kind of a statement." (Tribunal transcript p 235).

Particular 1.2. 79 In his affidavit, paras 38- 40, he dealt with this topic in the following manner: " 38. This particular needs to be placed in its proper context. At 279.29 I said: 'That is the exact problem that is, that the Court may be closed as to the complainant witnesses but not as to other witnesses. We will have a Star Chamber in the proceedings where sometimes the Court is closed and sometimes open. The jury will then speculate why is that and speculation can only hurt and prejudice the accused. It can only help the Crown in the prosecution. The accused has done nothing in this case to warrant that kind of prejudice.' 39. The jury was never told why the Court was closed. I was very concerned that the jury would speculate as to why the Court was closed at certain times and draw inferences adverse to my client. The term ' Star Chamber' was used no higher than I stated; the Court would be sometimes open and sometimes closed. There was no insinuation that the Court was deliberately and maliciously causing prejudice to the accused. 40. This area of my submission was made again where the above point was repeated but with different words. These words confirm the use of the term' Star Chamber' as explained above. At 286.47 I said: "I cite that as indirect authority for the proposition that the jury should not be put in a position of having to speculate why the Court is in effect used in an accordion type of way, sometimes open sometimes closed, and in that regard would be their (sic) speculating as to why it is that some witnesses enjoy closed Court while other witnesses do not. That speculation can only lead to prejudice against the defendant. It could not in any way lead to prejudice against the Crown." Tribunal Evidence: 80 During the hearing before us, he was asked what he meant by referring to the "Star Chamber" he said this: " É...What I meant by that when I said Star Chamber, and I was not very familiar with what happened in the Star Chamber. I only used it as an adjective to describe secret proceedings. I think it is used generally in that sense. I have heard it and I have seen it in the press about the Royal Commission, for instance, people complaining that in the closed sessions it is then likened to a Star Chamber or the National Crime Authority. Q. So it is in that sense that you were speaking? A. Because it dealt with the question of it being closed and that's what I was dealing with at that point." (Tribunal transcript p. 235). Particular 1.3. Affidavit Evidence of Barrister: 81 In his affidavit, the barrister provided the following explanation about this allegation: "41. This particular involves the continuing debate about whether the media would be allowed into the proceedings given that the public would not. 42. I used the term ' horse trading' to state that the defence would not be engaging itself in horse trading in its own applications as to whom should be allowed into the trial. I was primarily concerned on my client's behalf to have a public trial and was not prepared to be seen to be waiving that right by making application to allow the media. I therefore, at 280.20, informed the Court that there would be no opposition to the presence of the media. My instructions were not to oppose rather than to make application for the inclusion of the media."

Tribunal Evidence: 82 During the hearing before us we also raised with the barrister the meaning of the expression "horse trading". He was asked this question: "Q. Then in the third excerpt you say, "We are in favour of a public trial. Under all the circumstances we are not going to engage in horse trading in terms of who is allowed in and who is not allowed. We have always been in favour of the press being allowed in". What did you mean by horse trading? How did this horse trading arise? What do you mean by it? A. It was an unfortunate phrase on my part. What I meant by it was that I didn't want to waive a public trial by saying that I was happy to have the press come in. That's what I meant by horse trading. The Judge herself could have made that change to the order without asking me. She could have done that. She didn't need to call me into a chambers conference. She didn't have to ask whether I could get instructions on it. She could have amended the order herself. When I saw that what she was trying to do was get me to waive a public trial right that I had on behalf of the client, by having the press come in and I wanted to make the record clear I was not going to engage in that kind of waiver. Q. You didn't want to be involved in a bargaining exercise? A. Yes. Q. That's what you were saying? A. Yes, sir."

OUR FINDINGS 83 We have carefully considered the evidence given by the barrister concerning these matters and the matters referred to in his reply and in his affidavit. It is clear that the barrister now appreciates that the remarks which he made and which are the subject of these particulars could and should have been expressed differently. 84 Particular 1.1 sets out what must have seemed to the Judge to be a most peculiar comparison between her Court and a committee of the United States House of Representatives. The terms which were used would have given the impression that this committee was one whose proceedings notoriously were oppressive in the manner in which evidence was taken. By analogy, Her Honour Judge Karpin also conducted a trial in an oppressive manner. 85 In our opinion, Counsel are entitled, and indeed, obliged, to point out to the Bench impropriety on the part of the Judge, if it exists. From time to time, Counsel make application that a judge should disqualify himself / herself because of perceived or actual bias. It would also be appropriate for Counsel to take objection to undue or unfair interference by the judge in the conduct of the trial. If a judge were physically or mentally incapable of continuing to hear a trial, it would be perfectly appropriate for Counsel to submit that he / she should cease to have any further involvement in the trial. 86 Thus, in our opinion, the barrister was entitled to make any submission to Her Honour concerning her conduct of the trial provided that it had a foundation in fact and was respectfully, even if forcefully put. 87 The barrister clearly was entitled to argue forcefully that the trial should be, to the extent permitted by law, held in public and he was entitled to put his arguments fully, even if the trial judge did not seem willing to countenance them. 88 Earlier, in this decision, we referred to evidence given by him to us that the language used by him in relation to the matters particularized as 1.1 and 1.2 was "too vivid for the Court" and to his concession that he should have been "more circumspect". These concessions were properly made. 89 Our examination of the transcript of the trial certainly shows that Her Honour made a number of different rulings concerning the question of whether the Court should be completely open to the public and no legitimate criticism could have been made of the barrister if he had chosen to make the submission which he indicated to us that he now realises he should have made. 90 However, to suggest that Her Honour's rulings on the subject of closing the Court could be equated to an unfair hearing conducted by American politicians investigating "UnAmerican Conduct" could not reasonably be regarded as having any factual foundation. Even if there were some basis in fact for the making of such comparison, it was not made in the course of a submission by the barrister to the Judge, but rather was made as a statement, which in our opinion, was bound to cause offence to Her Honour. 91 The subject of Particular 1.2, namely the allegation that suggested the court could be regarded as a version of the Star Chamber, since at times it would be closed to the public and at times, open, was also, in our opinion, not made in the course of a submission, but was made as a statement which was bound to cause offence, since the Barrister was making this comparison on the basis that the Star Chamber was notoriously a closed court and hence, an unjust one, in his opinion. 92 The third matter particularised in this particular concerns the "horse trading" allegation. In substance, the barrister was accusing the Judge of trying to bargain with him about who should be allowed to be present at the trial. It seems that the Judge and counsel held a conference in a corridor at the back of the Court during which the Judge made a suggestion that she would be prepared to allow journalists into the trial, but not members of the public. The barrister apparently left this conference making clear his disagreement with the notion of holding such a conference in private. 93 There could have been no legitimate criticism of his conduct if he had pointed out in submissions in open court that he was not prepared to confer privately on such issues. He could also have pointed out, as he said to us, that he did not agree with the ruling, but accepted it, making it clear that in no way was he abandoning his client's entitlement to a public trial. 94 What he did say, however, in our opinion, was intended to annoy and embarrass the Judge, if not also to insult her. It amounted to an attack on her integrity. 95 We are unable to see that any of the circumstances obtaining at the trial justified the making of these statements. Certainly there was tension at the trial, the two counsel appear not to have enjoyed good relations, the accused was an elderly man and the charges involved sexual assaults on girls under the age of 18 years and the barrister believed the judge was making inconsistent rulings. However, none of those matters separately or together entitled the barrister to make these remarks. Furthermore, he was an experienced criminal trial barrister, with over eight years' experience in New South Wales and another twenty years in the United States of America. His experience should have enabled him to cope with the difficult trial conditions without becoming upset and unnecessarily offensive. The conduct in our opinion was unsatisfactory professional conduct.

Particular 2. 96 In this particular, it was alleged that the barrister in the presence of the jury, made two statements with respect to the cross examination of a witness, which statements "in the context in which they were made, wrongly indicated that the barrister: 1. Was entitled to be selective in the cross examination of a witness in the proceedings without any regard to his duty of being fair to a witness; 2. Did not have a duty of fairness, only a duty to his client."

The two statements: 97 The statements which were made by the barrister were as follows: "2.1. The second point in terms of selectivity, that's the entire art of the cross examination, to be selective in what you do. 2.2 I don't have a duty of fairness. You may and the Crown may have, I only have a duty to my client."

A. Affidavit evidence of the barrister. 98 In his affidavit, the barrister dealt with this particular as follows: "43. I acknowledge that counsel has a duty of fairness to a witness during cross examination. In fact, at 438.15-20 I stated: 'Your Honour, I always try to be fair to a witness and in this particular cross examination I asked the witness questions as to her own understanding. That was what I was asking and that was the area I was cross examining.' 44. I was not suggesting in the particularised remarks I made that I was entitled to be selective in cross examination of a witness without any regard to my duty of being fair to a witness. My primary duty, however, was to my client and to the Court. My comments were oversimplified reactions to Her Honour's particular comments at 437.16 and 747.19. 45. The comments I made which are within the particulars were made because I believed that what I was doing at the time was not unfair to the witness. I believe that part of the art of cross examination is selectivity with the overriding concern of fairness reflected in my statement above in paragraph 43. Selectivity includes not asking the wrong question, for example the' question too far', or asking a question which allows unwanted cross examination. By using the term' selectivity' I did not mean to assert that I could unfairly question a witness. 46. The cross examination of the witnesses however was not unfair. Particular 2.1 47. It is alleged that Particular 2.1 was made in the presence of the jury. This is incorrect. 48. Particular 2.1 relates to the use of three questions and answers at committal but not a fourth. It was contended by the Crown that the fourth question ought to be asked. It was during this discussion that the statement within particular 2.1 was made. The first three questions and answers are recited by the Crown at 435.25 during the argument on whether or not the fourth question was required. The fourth question is at 436.1. 49. It had been stated by the Crown, at 436.25 that I had opened by saying that the defence would prove that 'naked processing' never occurred. I never made that opening statement. I challenged the Crown on it and it was never cited. As a result, the issue of 'naked processing' sessions was not a relevant part of the cross-examination to which the first three questions related. The fourth question did not relate to the first three questions so there could not have been any unfairness on my part. In fact, the Crown then actually sought to ask the fourth question in reexamination at 436.5. The fact that the trial judge precluded the Crown from so asking, at 438.1, demonstrated that fairness did not dictate that either the final question be put to the witness or that it should become part of the evidence. Particular 2.2 50. The statement within the particular relates to a question I asked at 746. 5l: ''You didn't tell anybody before today whether or not there was any blood, did you? '' 51. The Crown objected and her Honour had concerns as expressed at 747 .1: '`She hasn't said there was any blood today, are you suggesting that is what she said?" To which I replied: "No I am not, not at all, not at all". 52. .Her Honour then stated that the question was unfair but based that assertion upon an incorrect representation of the question I put. At 747. 14 her Honour said "It is an unfair question to put, 'You have not told anybody before today about blood. "' 53. Her Honour missed the critical words "whether or not". My question was paraphrased and asked again at 747.32. There was no objection even though it was essentially the same question that I had asked previously. I concede my reaction as particularised was excessive but in the heat of the exchange it was made immediately after being accused by her Honour, in the presence of the jury, of putting an unfair question. Again, the words, as they read, do not reflect my beliefs which are properly stated in paragraph 43 above. The statement I made only goes so far as to inadequately reflect the different roles of the Court, the Crown and the defence For example, at 888. 49 I state that I do not have to do the work of the Crown and cross- examine on matters which legitimately can be re-examined upon." 99 In his reply, the barrister conceded that he had a duty to be fair to a witness under cross- examination and this was something Mr F. McAlary Q.C, Senior Counsel for the barrister conceded again on the first day of the hearing. 100 In para 53 of his affidavit (supra), the barrister again conceded that his reaction to Her Honour's ruling was excessive and in his evidence before us, (Tribunal Transcript p 236.51- 237.1) the barrister again conceded that his claim of not owing a duty of fairness to a witness was wrong and was only made in response to what Her Honour said. 101 The concession was clearly properly and responsibly made. A Barrister does have a duty of fairness to a witness, not merely a duty to his/ her client. 102 We accept that the statements were not made in the presence of the jury and to that extent, the allegations brought by the Informant are not made out. The statements were made erroneously but in the heat of argument about admissibility of evidence. They were made strongly but in our judgment, not discourteously. 103 In our opinion, the mere making of erroneous statements during the heat of argument could not of itself amount to unsatisfactory professional conduct. We, therefore, hold that that the matters particularised in Particular 2 do not in themselves justify a finding of unsatisfactory professional conduct.

Particular 3 104 This particular concerns statements directed by the barrister against the Crown Prosecutor. Substantially, it is concerned with 5 separate occasions in which the barrister made allegations of improper conduct or impropriety against the Crown Prosecutor. 105 It is charged against him that these statements were offensive or insulting to the Crown Prosecutor, questioned or attacked his integrity, displayed a lack of professional courtesy to the Crown Prosecutor and had the potential or tendency to inflame the jury against the Crown Prosecutor. 106 In his affidavit and in his evidence to us, the barrister sought to explain that he was using the word "improper" in a way which in his view was not intended to cause any offence. 107 Mr. Carmody, the Crown Prosecutor made it plain that he was offended and insulted by the conduct of the barrister but whilst we take his subjective views into account, we must form our own views on an objective basis. 108 In his Reply, the barrister denied that the words uttered could be regarded in the various ways alleged in the Information and also said that in the context in which they were uttered, they could not have the consequences alleged in the Information. 109 In his affidavit, the barrister set out in detail his answer to the various matters alleged in paragraph 3. We reproduce this below: Particular 3 "54. This set of particulars all relate to the use of the word improper'. There seems to have been a misunderstanding of the manner in which I used that term It was not intended to comment on the integrity of the Crown or to otherwise reflect upon him personally. It was used to describe what was being done, not whv it was being done. 'Improper' is a synonym for "irregular', inappropriate', wrong', incorrect', 'unfair', unwarranted', unauthorised' or 'legally unsustainable' It need not always be synonymous with an intentional impropriety. Particular 3. 1 55 This particular related to my objection to leading questions asked by the Crown in re- examination. I used the term 'improper' as an adjective describing the procedure; the pronoun it modifies is 'it', not 'he'. 56. The reaction of her Honour dealing as she did with the content of my objection, at 447. 16, to my use of the word 'improper' additionally demonstrates that the use of the term only reflected my concern about procedure. Further, her Honour's reasoning that the questions of the Crown, objected to on the basis of leading, should be allowed because of prior questioning by me did not comply with s 37 of the (NSW) Evidence Act 1995 (the Act). The asking of leading questions requires the leave of the Court. Such leave was not sought. The Crown's question was both irregular and inappropriate. Particular 3.2 57 'This comment related to my cross-examination about what a witness told the police. I specifically made sure that I did not ask what the witness had put into her statement. The Crown wanted me to give the witness the statement. The following, took place starting at 753.51: Crown:"If my friend wants to ask it , the witness should have the statement ." Me. No, that is not correct. I don't have to give her the statement. That is totally improper on the part of the Crown."Her Honour. .lt is not improper on the part of the Crown, Mr Di Suvero and do not say things like that. I take it you are putting specifically that she made a statement to the police in certain terms.. Me. No, I didn't say statement , Your Honour. I asked whether she said that to the police. That is two different questions." I was then allowed to ask the question without showing, the witness the document 58. I was concerned that the Crown, in the presence of the jury, rather than making an objection, was instead suggesting that I was being unfair to a witness. I believe that such a concern should only be expressed in the absence of the jury. 59. I further believe that the approach which the Crown had suggested was in fact improper in the sense of it being irregular, inappropriate or legally incorrect. The Crown's suggestion was not in accordance with the new Act. Section 43 specifically provides that there is no cross-examination requirement to show a witness a document for prior inconsistent purposes. Particular 3.3 60. This statement referred to the application by the Crown to amend the indictment in the presence of the jury. I had previously informed the Crown that I would object to any amendment see 682.19. I therefore thought it proper that such an application would he made in the absence of the jury. see 825.3-20. I also thought that it would be fairer to the accused if the application was not made in the presence ot the witness Georgina Barrow. Her Honour had earlier stated, at 377.35 " Mr Crown, perhaps if there is any discussion involved at all about the law, it ought to take place in the absence of the jury...." See also paragraphs 98-100 below. 61 The matter was then dealt with in the absence of the jury 62 Again my objection was as to the proposal and not to the speaker. It was during this debate about the changes to the indictment that the Crown made the personal comment about me in regard to the law of leading questions when he stated at 830: "As I understand it, my friend once lectured in law at the University . " 63. My response was to object to the repeated personal attacks with the Judge saying at 830 .35 (emphasis added): "Can I say to you, Mr Crown, I do not think you should make that remark So, I would ask you both please take out of this trial matters of personality" Particular 3.4 64. This particular relates to the Crown's cross-examination of Sue Capell, a receptionist at 'Kenja'. Capell was being shown a video with a sound track which had already been tendered in the Crown case. I took an objection when the Crown asked Capell to comment on the veracity of another witness .I asked to be heard in the absence of the jury. 65. The procedure of inviting such comment was improper at common law: Odgers- Uniform Evidence Law, commentary to Section 41 'Improper Questions', and cases cited therein. See also s 76 of the Act. 66 At 1597. 30 her Honour stated to me " That is not a proper way to make an objection." Particular 3.5 67. This arose during the Crown cross-examination of Michelle Ring. At 1971.11-40, the Crown was asking demeaning questions about how many psychology degrees that witness had in order for her to offer an opinion based on her friendship with one of the complainants. There was no suggestion made by the defence that this witness had any such degrees or expertise. I felt that this questioning offended a Bar Rule, namely Bar Rule 35, 'Responsible use of Court Process and Privilege' 68. The Crown also asked the witness at 1974.15 "Well why would she make it up" The law is clear that such questions should not be asked by a Crown because, inter alia, it infringes the rule about onus of proof. The defence has no onus and the jury should not be given an impression that the defence need demonstrate why a complainant would make something up. 69. During this same cross-examination the Crown, in my opinion, was harassing and intimidating the witness. That is why I said: "and he jumps on top of her with a loud voice, seeking to intimidate and harass" 70 I felt that this was improper conduct. It also offended s 41 of the Act - 'Improper questions' 71. The final part of the cross-examination by the Crown, at 1975.31, contained the following: "You see, I put it to you you're not telling the truth. I put it to you in fact what you're doing is giving evidence in relation to these matters as you've been told to give evidence in relation to these matters." 110 It might be observed that the barrister has an obvious good knowledge of the Rules of Evidence and proper procedure at a trial and is very alive to questions of unfairness as they might affect his client. He has obviously read the Rules of the New South Wales Bar Association. He seemed to understand the meaning of the word "improper". 111 Whilst an assertion made during a trial that a submission or a question of an opponent was not "proper" would not necessarily be taken to imply that the opponent was acting dishonestly or outside accepted norms of behaviour, it would seem obvious that on some occasions such a claim might amount to that. Such a claim might well be justified. The context of the exchange is obviously very important. In the present case, the barrister in his affidavit was obviously claiming that he did not use the word in such a way as to imply that the Crown Prosecutor was dishonest and in fact claimed that in one instance, no allegation was directed to him, but rather to the ' procedure'.

Evidence of the barrister at the Tribunal 112 This matter was examined in oral evidence of the barrister. 113 The barrister was directed to particular 3 and asked whether he was not in that very extract of words using the words "improper" and "inappropriate" as words which had different meanings. He denied this and claimed that the word "improper" was not one which he had ever used in the United States of America and it was a word which he first saw in the Evidence Act in a section concerning improper questions. He claimed that he was using this expression in that sense, to indicate that what the Crown Prosecutor was doing was not proper. 114 When regard is had to page 1973 of the trial transcript, it seems clear that a consideration of his explanation requires consideration of the remarks made by Her Honour immediately before the comments which are the subject of particular 3.5. 115 Her Honour said this: "I wish you would desist from leaping to your feet and banging the bar table. It is inappropriate conduct. I've asked you before not to do it." What followed immediately was the reply by the barrister which started: "it's inappropriate for the Crown to interrupt....". 116 Whilst it may be the fact that the barrister used the word "inappropriate" because Her Honour had just used the same word it is difficult to accept that he was not using the word "improper", consciously knowing that it would give offence because it suggested unfairness and dishonesty on the part of the Crown Prosecutor. Certainly he did nothing at the trial to dispel this impression. He also seems to have made this comment heatedly and with a raised voice. 117 In our view, this conduct was not what should be expected of a barrister. We are of the opinion, that he was not entitled to make this allegation merely because he took exception to the conduct of the Crown Prosecutor. Nothing which the Crown Prosecutor did gave him an entitlement to make the allegation of acting improperly. We do not accept that because of his lengthy experience of United States courts, he failed to appreciate that the word "improper" had a meaning different from what he understood it to have been. In our view, he made the allegation deliberately and intended to cause offence and to insult the Crown Prosecutor. 118 In our opinion, his conduct was unsatisfactory professional conduct.

Particular 4- 119 This particular was in the following terms: "Particular 4: When addressing the Court he made the following statements to the presiding Judge which, in the context in which they were made: 1. were offensive, discourteous to the Court and disrespectful toHer Honour; 2. implied that Her Honour was biased against the legal practitioner and/or the Accused, namely, 4.1 "Then that may be a function of different perspectives that we have." (Transcript page 753.40 of 28.2.96) 4.2 "... with your perspective the court might not find much persuasive power in it..." (Transcript page 819.50 of 29.2.96) 4.3 "That is perhaps your view. It is not a view that I share, but would suggest that it doesn't have anything to do with the issue before your Honour." (Transcript page 820.50 of 29.2.96)"

120 The Barrister in his affidavit gave the following explanation: 74. This particular turns on a misinterpretation of the word perspective. I did not use the word to refer to bias but rather to acknowledge the different weight given to certain issues as between her Honour and myself Particular 4. I 75 This statement resulted from my cross-examination of Georgina Barrow in relation to the physical positioning of her and the accused and Serena Lee during one of the alleged assaults. Her Honour felt that there was a problem with a subsequent part of the police statement in terms of a question I had just asked. 76 Earlier in the proceedings, there had been the debate about selective cross examination which is particular 2.1 Her Honour had not agreed with my contention that in certain circumstances not all questions in a police statement need be put to a witness: see 437.38-48. From my perspective, as I had stated to the Court, not all questions from a statement need necessarily be put at the one time. With that prior knowledge of our respective perspectives, I made the statement in this particular. I did not see any problem with the question I had asked having regard to the balance of the police statement. It was simply a situation of her Honour and I having a different view as to what is required to ensure fairness. There was nothing sinister in my statement. By the use of the term perspectives I was not insinuating that the judge was biased Particular 4.2 77 Part of the defence case against Georgina Barrow was that she was happy in "Kenja' and in the company of the accused at the time of the said allegations. It was sought to demonstrate this point to show inconsistent conduct by tendering photographs and school reports: see 687-688. Her Honour did not agree that the issue was relevant to the issues before the jury: 690.45. Her Honour considered that expert evidence would be required before any use could be made by the jury of the evidence. I considered that the photographs and school reports were both relevant and persuasive. I thought that the jury would consider them relevant in their determination of the credibility of the complainant 78. This particular deals with an attempt to tender video and audio tapes further demonstrating the inconsistency of the conduct of the complainant and the allegations. For the same reasons as the photographs and school reports, I felt that the tapes would be very relevant for the jury to decide on whether or not to believe Georgina Barrow. However I also knew that I would have an uphill battle to have them tendered because I already knew that the judge did not believe the issue of the complainants' contemporaneous happiness to be relevant. On that basis, I said at 819 50: "... with your perspective the court might not find much persuasive power in it - however, it is my submission that that is a judgment of fact reserved for the jury, and the jury should not be prevented from deciding that issue of fact by your Honour withholding that issue from them, and that is that the right to a jury trial involves the right- " This shows that my use of the term 'perspective' related to the relevance and weight of the issue before the jury 79. I sought to tender the tapes on more than the basis of her happiness in 'Kenja'. I also sought to demonstrate that she lacked fear of the accused at that time: 819 91 This was not reflected in what her Honour said was the basis for my tender at 819. 28-34 " I have great difficulty with the relevance of it in terms of what you say it will assist to prove. There is going to be nothing as I understand, other than your assertions to the jury that they should accept that the child who is behaving in what would appear to be a normal child way, enjoying activities etcetera, cannot be a child who has been sexually abused." 80. I submitted to the jury that certain depictions of the complainants were inconsistent with the allegations. Her Honour invited the jury to reject that submission because it had no basis upon which to make a psychological assessment...... Particular 4.3 81. This statement followed the argument referred to in particular 4.2. When arguing the weight of the happiness of Georgina Barrow at the time of the alleged incidents, her Honour raised, at 820.24, issues in other child sexual abuse cases. Her Honour and I then aired our differences of opinion as to the timing of complaints. This was not related to the issue of whether or not a child would be happy at the time ongoing sexual abuse is being said to have occurred 82. On the basis that the two issues were unrelated, I made the comment: "That is perhaps your view. It is not a view I share, but would suggest that it doesn't have anything to do with the issue before your Honour. The issue is a narrow one, and that is that the jury can consider this for the purpose of making the determination of conduct, that is inconsistent. In my submission...that is something for the jury to decide, it is not something for your Honour to decide." 83. As I stated, the issue of happiness was one for the jury. There was no offence intended. Her Honour did not appear to take any offence at the remark". 121 What the Bar Council suggested through its counsel, Mr Garling S.C. was that these statements by the barrister could be taken as a suggestion that he was alleging that the judge was biased (See Tribunal transcript pp 313 and 314) and that this would be inappropriate if he was alleging bias. The barrister's reply was that "it would depend on the circumstances". 122 We do not view these words in the context in which they were spoken as being deliberately offensive and we find that they do not constitute unsatisfactory professional conduct whether viewed alone or in combination with other conduct of the barrister. 123 In our opinion, whilst the barrister was being assertive in his remarks, he was not doing anything which could reasonably be regarded as being unsatisfactory professional conduct.

Particular 5. 124 This particular alleges that the barrister made statements which: "After being requested by the presiding Judge in the presence of the jury to permit the Crown Prosecutor to bring to the legal practitioner's attention certain material in connection with the cross-examination of a prosecution witness, he made the following statements which: 1. attributed an improper motive on the part of the Crown Prosecutor for having attempted to do so, that is to say, as part of a design solely to protect the witness then under cross- examination; 2. without having any proper foundation for doing so, thereby questioned or attacked the integrity of; 3. were offensive or insulting to; 4. displayed a lack of professional courtesy to, the Crown Prosecutor, namely, 5.1 "It is a most uncommon practice to interfere with cross-examination the way the Crown is doing it." (Transcript page 880.20 of 1.3.96) 5.2 "It is designed to protect the witness and for no other purpose." (Transcript page 880.25 of 1.3.96) 125 In his affidavit, the barrister gave this account: "Particular 5.1 84. This particular re-visits the issue of what should be put to a witness when cross examining from a prior statement. In this case the extra material was not put nor did the trial judge consider it necessary to put that material to the witness at that time. Her Honour stated simply that the Crown could ask his questions in re-examination 85. I was cross-examining Pat Barrow about sessions held in September 1997. I was onlyinterested in that month because there were prior inconsistent statements in relation to that month: see 878.26 and 878.38. I was asking questions based on her evidence at committal. 86. The Crown at 879.6 asked that I put the next question and answer. I declined to do that and her Honour said: "Well, it is a matter that I will allow the Crown to put in re-examination." Her Honour had the committal evidence and made her ruling. The committal evidence referred to by the Crown did not relate to September 1997 and was therefore irrelevant to that aspect of my cross-examination which was aimed at impeaching the witness on inconsistent evidence about what occurred in September 1997. All of the evidence in relation to September 1997 was put to the witness by me such that rny cross-examination was fair. 87. A number of times during the trial I was berated for cavilling with a ruling. On a number of occasions I raised issues for a second time because of matters that had since come to hand or because I had inadvertently not raised aspects of them the first time. Her Honour chastised me during the trial for raising an issue on which she had already made a ruling. The Crown then sought to raise his issue again at 879.32. Her Honour however listened to him, did not require me to read the evidence considered relevant by the Crown, and again stated that it would be a matter for re-examination. See 880.30-40. 88. After the Crown interrupted me the first time at 879.7 her Honour made her first observation about re-examination. I did not protest the Crown's interference. When the Crown interrupted me a second time for the same reason within a very short time, 879.32, I said: 'I object to this. This is my cross-examination. If he wants to do something on re examination he is entitled to." 89. When her Honour said that she would listen to the Crown, again I asked for the jury to be excused. I did not want the jury to hear what her Honour said she would listen to from the Crown. Her Honour then stated that the Crown would simply bring something to my attention. My attention had already been brought to it by the Crown when he asked me moments earlier to read a part of the committal evidence, 90. Her Honour stated at 880.6 that it was common practice for attention to be drawn to parts of a transcript. I felt that to interfere twice with defence cross-examination in a very short space of time when the judge had already ruled was not proper. I therefore said: "It is a most uncommon practice to interfere with cross-examination the way the Crown is doing it." 91. This was particularly the case in light of the first ruling and what the Crown said at 891.1: "Some of your Honour's colleagues prefer it to be raised in re-examination without the objection being taken. " Particular 5.2 92. The repeated interference of the Crown was unwarranted especially in light of her Honour's ruling about re-examination. The material the Crown thought relevant served no legitimate forensic purpose." 126 When questioned about particular 5.2, the barrister agreed (Tribunal Transcript p879) that he should not have attributed this motive to the Crown Prosecutor but claimed that what was said was said in the heat of the moment. Certainly, our examination of the trial transcript would seem to confirm that there was considerable heat in the proceedings at this time. The barrister clearly lost the detachment which a barrister should always seek to maintain. This caused him to become personally involved and led him to make a remark which was indefensible in the circumstances. 127 In our opinion, the remark made in the context in which it was made amounted to unsatisfactory professional conduct. 128 The other claimed unsatisfactory professional conduct in 5.1 in our opinion was not such as to amount to unsatisfactory professional conduct. A barrister has to have a certain amount of latitude when addressing a court where he or she considers that there has been a perverse and adverse ruling on his or her submission.

Particular 6 129 This particular was in the following terms: "Particular 6 When addressing the Court he made the following statement which: was offensive or insulting to the Crown Prosecutor; questioned or attacked the integrity of the Crown Prosecutor; "What I object to, paragraphs 20 to 23 refer to an interview that apparently was videoed. I object to that and I object to my friend having announced that to the jury when he knew that I had the objection, and that is in my language that is just not proper conduct on the part of the Crown." (Transcript page 945.30 of 4.3.96)" 130 An examination of the transcript reveals that a Detective Senior Constable Thurtell was called by the Crown and the Crown Prosecutor announced to Her Honour and the jury that the witness was being called primarily for cross examination and that she was present when a video recording was made. This recording was at the time in his Chambers. The Crown Prosecutor then stated that he would defer the cross examination and tender the recording after lunch. At this point, the barrister asked that the jury be excused so that he could raise a question of law. 131 When this occurred, he told Her Honour that he had told the Crown that he objected to the Crown leading certain paragraphs of the statement of Detective Senior Constable Thurtell and that he had warned the Crown of this. He then made the statement with which Particular 6 deals. 132 The barrister in his affidavit said this: "Particular 6 94. This particular concerns the tender of a walk-through video of the former ~Kenja' premises by Georgina Barrow accompanied by a police officer, Laura Thurtell. 95. I did not want the video to be tendered. In discussions about the said video with the Crown during the pre-trial motions I asked, with words to the effect "Do you intend to tender the video?" To which he replied, words to the effect: "I don't know, I haven't looked at it yet?" 96. The Crown never told me subsequently that he would tender the video. Further, I never told him, or implied, that I had no objection to its tender. 97. I subsequently had served on the DPP a letter objecting to the video being tendered. That letter, dated 4 March 1996, is annexed and marked "HDS 2". There was clearly going to be an argument as to the admissibility of the video if the Crown wanted to tender it. 98. I had come to understand that when the Crown is aware that there will be an objection to some evidence, it is on notice not to raise the issue in front of the jury until the issue is decided in a voir dire. I did not want the video raised in front of the jury. I asked for the jury to be excused, at 944.3, and said at 945.25: "What I object to, paragraphs 20 to 23 refer to an interview that apparently was videod. I object to that and l object to my friend having announced that to the jury when he knew that I had the objection. and that is that in my language that is just not proper conduct on the part of the Crown. " 99. The paragraph above should be read in light of what the Crown, as complainant, says at page 4 of his Further Particulars in paragraph 3: "In taking the objection, in the presence of the jury, he propounded aspects of the law ... which should have been raised in the absence of the jury." 100. This issue was also raised earlier at 377.35 when her Honour told the Crown: "Mr Crown. perhaps if there is any discussion of law involved at all it ought to take place in the absence of the jury ..." 10I. I adopt what I said in particular 3 about my use of the term 'improper'. I again was not happy with the manner in which the Crown did what he did; I did not think the Crown raised the video tender, given the circumstances, in an appropriate way. 102. The Crown did not deny that I had already raised the objection with him and he did not respond to my comment that it should not have been done in front of the jury. The Crown simply stated at 947.38: "I was letting my friend know that this witness would indeed be giving evidence for the Crown limited only to that video ..." The point was that he should not have presumed that the video would be allowed over my objection and therefore the video should not have been raised in the presence of the jury, especially in a manner which assumed its admission. 103. It was because of the attempt to tender the video that I sought a ruling about the evidence in the statement. That then caused the following debate at 947.21: Her Honour.' "Mr Di Suvero. why are you asking for a ruling on evidence which the Crown does not propose to adduce ?" Me: "Apparently they are going to adduce it because it referred to the video ..." Her Honour : "The Crown has not indicated that he is going to adduce the video." The last statement of her Honour was incorrect. See 947.38 referred to in paragraph 102 above. 104. After an adjournment I withdrew the objection to the video. The reason for that course of action involved a tactical reason which I am not able to divulge at this point because of the pending re-trial of Mr Dyers. The objection was not withdrawn because of any conversation I had had earlier with the Crown as speculated by the Crown in his complaint." 133 The barrister was not questioned about this particular before the Tribunal. In his Reply, he denied the statement was offensive or insulting to the Crown Prosecutor or that it questioned or attacked the integrity of the Crown Prosecutor. 134 We found this particular allegation troubling because there did seem some basis for the barrister to submit that the Crown Prosecutor should not have mentioned the subject matter of the video to the jury. On one view of the matter, the Crown Prosecutor had engaged in conduct that was not proper conduct on his part. It is also true that the comment was not made in the presence of the jury. However, the evidence is also capable of being understood as being simply that the Crown Prosecutor was producing a witness for cross examination, her only evidence being evidence concerning a video. The Crown Prosecutor may have overlooked the earlier communication from the barrister or may have misunderstood it. 135 We accept that the barrister did not intend to cause offence in this instance. Clearly matters at this part of the trial had become quite heated. The objection to the tender of the video had not been resolved and the barrister clearly considered that his client was not being treated fairly. 136 In our opinion, if a barrister insults another barrister in Court that conduct can amount to unsatisfactory professional conduct. In the present circumstances, we are of the opinion that the remark was not intended to be insulting. Mr Carmody may have regarded it as insulting, but we are not convinced, looking at the matter objectively that it was insulting. 137 In our opinion, the conduct did not amount to unsatisfactory professional conduct. 138 Particular 7 is in the following terms: "Particular 7 When addressing the Court he made the following statements which: 1. were discourteous to the Court and disrespectful to Her Honour; 2. were offensive or insulting to Her Honour; 3. accused Her Honour of being untruthful; 4. accused Her Honour of giving the Crown Prosecutor preferential treatment; 5. had the potential or tendency to bring the Court and the presiding Judge into disrepute, namely, 7.1 "1 am not permitted here in this Court to make a proper response without your Honour making comments about my facial behaviour. I object to that. I find it to be inaccurate and I find it to be offensive and also untrue." (Transcript 945.45 of 4.3.96) 7.2 "1 am very careful about my conduct because I know it is being scrutinised with very great care by your Honour and also by the Crown. I recognise that --" (Transcript 945.55 - 946.5 of 4.3.96) 7,3."...I have tried not to get myself in any kind of confrontation with your Honour, because I know that in a confrontation with your Honour I always come out second best because I am not allowed to speak, and because your Honour has the authority of being the Judge in this case. So I avoid those kind of issues --" (Transcript 946.40 of 4.3.96) 7.4 "He is allowed to do it, I take it, is that right?" (Transcript page 949.20 of 4.3.96)" 139 On their face, these remarks could be construed as being a very direct attack on the integrity of the Judge and at the very least to be discourteous. The remarks were made during an exchange with the Judge following the remarks which are the subject of Particular 6. Clearly both the barrister and Her Honour were quite heated during this exchange. 140 A judge could make remarks which a barrister found offensive, including allegations about body language and demeanour, which might not be accurate or true. The polite and firm rejection by a barrister of offensive allegations could not amount to unsatisfactory professional conduct, but in our opinion, offensive or insulting comments by the barrister could amount to unsatisfactory professional conduct even if the judicial conduct which provoked them was unwarranted. 141 The barrister dealt with the particular in his affidavit as follows: "Particular 7. 105. The comments in this particular follow immediately after particular 6 which deals with the Georgina Barrow video objection. Indeed particular 7 begins on the same page of the transcript as particular 6. The jury was still absent. Particular 7 occurred before the adjournment referred to in paragraph 104. 106. Because of the argument over particular 6, especially in light of the previous communications I had had with the Crown on the subject of the video, passions were inflamed at this point. Particular 7.1 107. The end of my statement in 7.1 at 945.49, demonstrates why I was upset at this point of the trial. I was saying: "and your Honour, in terms of what my friend has said- "I was attempting to point out the previous communications I had had with the Crown as stated in particular 6. 108. I was not smiling. There was rarely a reason and opportunity to smile in this trial. The statement by Her Honour at 945.40 that I was smiling was not correct. I therefore informed her Honour that any expression that she interpreted on my face was certainly not a smile. The comment by Her Honour was inaccurate. The statement by Her Honour that I was smiling while she was chastising me was something that I did find offensive . When I used the term "untrue" it meant no more than incorrect or simply not true. I was not suggesting that her Honour was being untruthful in the sense that she was deliberately lying. Particular 7.2 109. In an earlier discussion about the closing of the Court her Honour made comments about my choice of words and subsequently asked me to withdraw them. It was during this argument at 259 when the Crown, about my instructing solicitor, stated: "... my friend's attorney is wearing his heart on his sleeve .... to what length I ask a rhetorical question would a misguided zealot go ? ... and as I say, misguided zealotry knows no bounds." 110. Partially in light of the gross insult of my instructing solicitor I did not withdraw my words. Her Honour then stated at 265.18: "If you decline to do so it is a matter which ultimately at the end of the trial will have to be viewed with your professional body." 111. I took that to be notice that her Honour would be filing a complaint against me to the Bar Association. The Crown was not so warned but he had already made complaints about me in Court. I therefore understood that only my conduct had been put on notice. I therefore considered that in these circumstances I was being scrutinised by both her Honour and the Crown. Given that some otherwise negligible conduct becomes more important when grouped further, as has happened in the current complaint, my conduct was being scrutinised with more attention than a practitioner who had not been advised that he is under notice. Particular 7.3 112. This particular follows immediately alter particulars 6, 7.1 and 7.2. 113. It can be seen from the transcript that in the two attempts to address the Court immediately preceding the statement complained of, 946.2 and 945.50, I was interrupted on both occasions by her Honour. It was for that reason that I asked permission to speak. As it turned out, this statement was also interrupted at 946.45 before her Honour allowed me to continue. 114. Her Honour's authority as the presiding judge, and her role and obligations in that role, clearly gave her the discretion and power to interrupt me and to rule against me when she saw fit. My comment simply reflected that I understood that to be the position in the trial as it is in every trial. It was not intended to offend. Particular 7.4 115. This statement came during a heated discussion about the video which is described in particular 6. The statement therefore came after several statements by her Honour about my conduct. One of these is at 945.35 where her Honour said: "Mr Di Suvero, it does seem to me that you are somewhat lacking in traderstanding proper, professional conduct and courtesies." 116. I had also been chastised for raising my voice and had also been asked to sit down. Then at 949.11, when I was addressing the Court in the absence of the jury, the Crown interrupted me and I said: "He is interrupting me, There is no question about that. He is jumping up and yelling --" 117. All that I was expressing, although it was in the heat of the moment, was a request that the Crown be controlled so that I could speak uninterrupted by him. Her Honour appears to have understood that because she said immediately afterwards at 949.25: "What I was trying to ask the Crown to do is to sit down so l can hear flirther what you have to say and deal with it." 118. The luncheon adjournment was then taken." 142 During the Tribunal hearing, the barrister was asked only about particular 7.3 in the context of what he had said in the No Bill application. What he said did not throw any light on the context of Particular 7.3. 143 When the remarks relevant to Particular 7 are considered, it is our opinion that they should be regarded as offensive and deliberately calculated to be offensive. In particular, he twice asserted that the learned Judge would not let him speak and on one occasion asserted that the Judge was not telling the truth. These allegations against the Judge are not based on fact. Indeed it seems quite clear that the barrister made many submissions and we have not been referred to anything in the transcript to support a claim that she forbade him to speak. There is nothing to support any claim that the Judge was not telling the truth. 144 Furthermore, the remarks, in our opinion, were insulting. 145 We, therefore, are of the opinion that the barrister's conduct was unsatisfactory professional conduct. 146 Particular 8 is in the following terms: "Particular 8 When addressing the Court he made the following statements which, in the context in which they were made: 1. insinuated the existence of an inappropriate motive on the part of the Crown Prosecutor, namely, to seek to obtain a discharge of the jury, without having any proper foundation for making such insinuation; 2. were offensive or insulting to; 3. questioned or attacked the integrity of; 4. displayed a lack of professional courtesy to, the Crown Prosecutor, namely, "I certainly will not do anything at this point to in anyway provide the Crown with a basis for a discharge. Because it seems to me that is probably what he is..." (Transcript page 1842.20 of 21.3.96) 8.2 "I wouldn't know about that at all." (Transcript page 1843.5 of 21.3.96) 8.3 "I was just responding to your Honour's comment." (Transcript page 1843.20 of 21.3.96) 147 the barrister dealt with this in his affidavit as follows: "Particular 8 119. This part of the trial dealt with the evidence of the defence witness Michael Strang. It is the same part of the trial where the following statements, at 1845.45, are made: Crown: "... Well, Mr Koops of course being Objection Me: "I object to the personal comments" Her Honour: "Well I would say Mr Crown, you shouldn't make those comments." Crown "I probably shouldn't have your Honour, the trial has gone on too long." (emphasis added) 120. Mr Koops was my instructing solicitor. The comment certainly should not havebeen made, especially when it came so soon after the Crown wanted to put on therecord at 1843.10 that he was personally offended by the comment I made which is particular 8.2. Particular 8.1 121. The trial was almost complete and, in my opinion, was proceeding far better for the defence than the Crown. The result of some acquittals and no convictions was testimony to that perception. The last thing the defence wanted was a discharge. At 1842.12 the Crown states: "My friend is calling the witness. I am raising it on this basis: if all it does is go to credit, it could again place this trial in jeopardy." I end my next statement with the particular, at 1842.23: I certainly will not do anything at this point to in any way provide the Crown with a basis for a discharge. Because it seems to me that is probably what he is -- 122. I was not going to suggest that the Crown was manoeuvering for a discharge. I cannot recall exactly what I was going to say but in light of what the Crown had said about the possible effects of calling my witness I was probably about to say that that was probably what he is 'concerned about' or 'worried about'. 123. Particular 8.2 is also relevant in this regard. Particular 8.2 124. Her Honour then commented about the attitude of the Crown to a discharge without the Crown having said so. The following statements were made at 1843.1 Her Honour: ''I hasten to say that the Crown does not at all, on the contrary." Me: "I wouldn't know about that at all." 125. I accept that the Crown was not seeking a discharge because the trial was not moving in his favour. The Crown's preferred position would no doubt be that all trials continue to verdict. However I did not know whether or not he would have minded if, in the circumstances, the trial did not run to completion. It implies no fault on any counsel to 'not mind' if a trial is aborted instead of lost. 126. The comment I made about my lack of knowledge demonstrates that particular 8.1 cannot be read that in my opinion the Crown was looking for a discharge. Particular 8.3 127. A complaint was then made by the Crown against my statement which is particular 8.2. Particular 8.3 was my response. The following exchange from 1843.6 took place: Her Honour.' "Mr Di Suvero, I was hoping that you would not allow yourself the luxury of making that sort of comment, but there we are." "Might I say this your Honour, just so that it is on the record, I find that very personally offensive." Her Honour.': "Yes, I see absolutely no grounds for making a comment such as that Mr Di Suvero. As I say I did try and prevent you from saying what I perceived you were trying to say." Me. "I was just responding to your Honour's comment." Her Honour: "I think not Mr Di Suvero. " 128.Her Honour's insinuation on my part is completely incorrect. 129.I also rely upon what I say in relation to particulars 8.1 and 8.2." 148 It was put to him in evidence before the Tribunal ( see page 322) that the words spoken by him as particularised in particular 8.1 were a prelude to what was going to be a claim that the Crown Prosecutor was intending to procure a discharge of the jury. He denied that he had any such intention. This denial repeated what he said in his affidavit to which reference is made above. 149 We accept his denial. It seems to us that his comment that he would not do anything to provide the Crown with a basis for a discharge was an ill-judged comment which on one view of the matter could be understood as being an assertion by him that the Crown was searching around for some pretext to procure a discharge of the jury. However, it could also be understood as meaning no more than that the barrister would not do anything improper which would give a basis for the Crown to make such an application. 150 Because what was said is open to these two interpretations and because we accept his denial that he intended to make a claim that the Crown Prosecutor was intending to procure a discharge of the jury, we are unable with any degree of certainty to draw a conclusion that the conduct of the barrister amounted to unsatisfactory professional conduct 151 We also are of the opinion that the other parts of particular 8 do not establish any matter of unsatisfactory professional conduct. 152 Particular 9 is in the following terms: "Particular 9 When addressing the Court he made the following statements which were: 1. discourteous to the Court and disrespectful to Her Honour; 2.offensive or insulting to Her Honour; 3. not withdrawn by the legal practitioner despite Her Honour's request that he do so; 4. persisted with by the legal practitioner without any apology to Her Honour; 5. had the potential or tendency to bring the Court and the presiding Judge into disrepute, namely, 9.1. "...I understand your Honour's ruling is that the document speaks for itself and you can't ask the witness what is in that document. If that is so I ask that my objection is sustained. Unless, of course, you have different rules." (Transcript 1894.35 of 22.3.96) 9.2 "1 do not withdraw the comment your Honour." (Transcript page 1895.5 of 22.3.96) 9.3 "It is not deliberately provocative, it is a statement of what I see is the truth." (Transcript page 1895.20 of 22.3.96) 153 In his affidavit, the barrister said: "Particular 9 130. This particular has a history that runs throughout the trial. It will be answered in toto. 131. To show collusion between the complainants and others I cross-examined the complainants, their mothers, Annette Stephens (Bianchi) and Stephen Mutch on the Telstra records we had subpoenaed. 132. In my cross-examination of Michelle Walmsley, the mother of the Park sisters, I cross-examined on statements contained in a letter she wrote praising 'Kenja'. The Crown objected and said at 337.45: "If my friend wants to get the document in he can tender it, he can't get it through the back door by reading it. I've let him go so far, it's a document he's obviously reading from. I ask that he tender it." 133. Her Honour did not require me to tender the document. 134. In my cross-examination of Rebecca Park I used two letters she had sent to a girlfriend, Michelle Ring, one approximately three months and the other six months after she left 'Kenja'. The letters reflected she had no animus towards the accused, in fact praised him. They also confirmed her presence at the 'Kenja' Eisteddfod where she had met the accused after she left 'Kenja'. The letters were used to demonstrate inconsistent conduct with her claims of molestation. 135. My cross-examination was initially without the first letter, at 1394-7, and then I showed Rebecca the letter at 1397.20. She confirmed that it was hers, at 1397.54, and then I tendered it at 1398. I0. 136. I then cross-examined on the second letter. Again I initially did not show the letter. The Crown objected and said at 1399.45: "I object to the cross-examination. He gets the document in, he doesn't get it in the back way." 137. I subsequently tendered the document. 138. It was against this history that another document surfaced. Lowth had given evidence in our case that she had encountered the complainant Angela Park and her mother in the Coles store on King Street, Sydney, during a crucial time period. Angela and her mother had denied the meeting. 139. The Crown then had a fax, purportedly from Coles management, stating that the store had been closed at the relevant time. This fax had not been provided to the defence. The following was said at 1885.45 after the Crown had shown the document to the witness (emphasis added): Crown: "Coles closed on 24 January 1987, didn't they?" Lowth." No." Crown. "That is what the document says, doesn't it?" Lowth: "Yes, it does." My objection was too late. 140. Section 44(3)(d) of the Act expressly precludes the cross-examiner and the witness from disclosing any of the contents in the documents. The final question should not have been asked. 141. The document was marked for identification. 142. Against the background referred to above, I said at 1886.6: "If he wants to tender the document, he knows the way to do it. He should not try to do it through the back way." 143. My objection was overruled. Then, at 1887.1, I objected on the basis of the Crown giving evidence. After this objection was overruled, the Crown asked at 1887.6: "You see, according to that evidence ..." 144. A document marked for identification is not evidence. 145. The next day, the Crown tendered the fax. The following then was said at 1892.24: Me.' "It hasn't been identified what this document is. Crown. "The document speaks for itself, your Honour. " Her Honour.' " "The document speaks for itself- I take it it is a document which forms part of some business record?" Me. ''I don't know anybody who says that." 146. Her Honour, not having seen the document (see 1892.37), admitted it on the basis of it being a business record. The Crown allowed her Honour to so act. The document was not a business record. It was a fax prepared specifically for litigation. It should not have been admitted as a business record. 147. The Crown then asked the witness to read from the document. Her Honour had already ruled that the document spoke for itself. The transcript then records my statements which are particular 9.1, 148. The trial was at a critical stage, Lowth being the second last witness for the defence. The evidence about the store being closed was damaging to that part of the defence. It seemed to me that her Honour had made an error which was harming the defence case. This was so even though I had in fact sought a ruling in accordance with the similar and recent ruling above which was also against my client. It seemed to me at the time that there was a degree of inconsistency in the rulings. I made the statements particularised at a very trying point of the trial. The trial had been progressing for some weeks and I was tired and frustrated to some degree. I was only attempting to secure consistent rulings from her Honour." 154 The barrister's claims on this matter , in our opinion, cannot be accepted. We can accept that he felt aggrieved because the Judge did not seem to accept submissions he made which he regarded as of vital importance to the case of his client. However, that is a situation which a barrister frequently encounters in Court. There was no basis for him to suggest that the Judge operated under different rules than those which would properly apply. However, whilst the remark was rude and ill judged, we do not regard it as having been uttered by him with the deliberate intention of insulting the Judge or causing her to be offended. If he had not become so personally involved in the trial, a moment's reflection should have caused him to refrain from making this remark. 155 In our opinion, the words spoken, whilst they were rude and ill-judged, were not such as to amount to unsatisfactory professional conduct and we find that the barrister was not guilty of unsatisfactory professional conduct for uttering them. 156 The other allegations under this particular, could not amount to unsatisfactory professional conduct. 157 Particular 10 was in the following terms: Particular 10 "When addressing the Court he made the following statement which: 1. constituted an unjustified allegation of deliberate dishonesty on the part of; 2. thereby questioned or attacked the integrity of; 3. was offensive or insulting to; 4. displayed a lack of professional courtesy to, the Crown Prosecutor, namely, 10. "What this goes to show your Honour is that the political nature of the trial as it began with Stephen Mutch, has culminated in the adoption of trial tactics of deception ... It is a matter which I seek to put before the jury because it shows that the political character of the case which commenced with the initiation of the prosecution which Stephen Mutch through the Minister of Police has continued, even into the conduct and performance by the Director of Public Prosecutions in the trial of this case..." (Transcript pages 1910.40 to 1911.5 of 22.3.96) 158 In his affidavit, the barrister says this: Particular 10 149. This particular concerns a key fact in the Georgina Barrow "Bondi counts", in which the complainant alleged two counts of intercourse at the accused's home in the presence of another 'Kenja' participant, Serena Lee. Serena Lee was also a schoolmate and the flatmate of Georgina Barrow. The key fact was that the incidents were alleged to have occurred on a "student free" or "pupil free day". The terms are interchangeable. During such days there is no school. This time is used by teachers for conferences, etc; it is a day off for the students additional to the normal holidays. The reason why it was a key fact was that otherwise the girls would either have attended school or it would have been a scheduled holiday or a weekend. Weekends and school holidays were carefully and fully scheduled days for the young people in 'Kenja'. The defence would have been able to call a series of witnesses for days other than 'student free' days to account for the complainants time. 150. The Crown opened that these events happened on a 'pupil free' day. 151. Georgina Barrow in both evidence in chief and cross-examination said the events occurred on a "student free' day (see 650.50-53, 673.24-32, 706.3-23, 762.33-60, 763.1-3 152. The Crown's original indictment charged those counts as occurring between 4 August and 13 September 1988. 153. Hospital records showed however that Georgina Barrow was in hospital between 1 August and 9 September (see 824.50-55 and Exhibit B), and school reports showed she was absent from school convalescing from 12 September to 23 September (see 1500.20-1502.30). 154. At the conclusion of the cross-examination the Crown amended the indictment, saying it had now examined the subpoenaed hospital records. The amended period was from 13 June to I August 1988. 155. However, in the amended period there were no student free days. 156. If the case had gone to the jury at the close of the Crown case, it would have gone with the evidence of Georgina Barrow saying the Bondi counts occurred on a 'student free' day, but there would not have been any school records to show that no 'student free' days fell during the amended period. The jury would have been left believing there was such a day in that period. 157. Margaret Wood was the Deputy Principal of Vaucluse High School from whom Officer Thurtell had taken a statement. She was able to establish attendance by the girls at the school and that there had been 'student free' days on 4 and 17 August, and 13 September. This was done at committal as part of the Crown case. 158. Although the police knew Georgina had gone into hospital they never checked Georgina's hospital records before charging the accused. 159. The defence subpoenaed those records and access was granted to both sides. 160. The pre-trial motions were argued on 29 and 30 January with the judge's rulings delivered on 6 February. A week's voir dire had been scheduled from 12 February so correspondence was clearly conducted in a trial context. 161. Margaret Wood was not on the Crown's witness list as set forth in a letter of 6 February despite being on an earlier list. 162. On 7 February we wrote to the DPP asking whether they proposed to tender the statement of Wood. The school records on their face do not detail in explicit language the student free days. They require deciphering and that occurred in the statement of Wood. I so informed her Honour at 1917.18-24. Wood was therefore a required witness. 163. On 8 February the DPP replied by saying that neither the statements nor the committal evidence of Wood would be tendered. 164. I called Wood as the first witness for the defence and proved the school attendance of Georgina Barrow and Serena Lee and the dates of the 'student free' days. 165. The Crown was obviously aware of the statements of Wood. The Crown stated, that in his opinion, there was no need to call Margaret Wood: see 1913.28. The Crown stated, at 1913.28, that the school records would speak for themselves. This was incorrect. The Crown has an obligation to put all relevant evidence, including that which points to innocence, before the jury. The Crown should do so in its own case. Any evidence that I would want to tender would have to wait until the defence case opened. As the Crown informed me at 283.50 in relation to another piece of evidence: "You are not going to tender them in my case." 166. The Crown opened to the jury that the incidents occurred on a 'pupil free' day. At the conclusion of Georgina Barrow's evidence an amendment was made to the dates of the indictment because the subpoenaed hospital records proved Barrow was in hospital during the indictment period. The Crown did not, but should have, led evidence that there were no 'pupil free' days during the new period. The Crown should not have allowed the jury to believe, at the end of its own case, that there was a 'pupil free' day in the period or that there might have been, when in fact there was no such 'pupil free' day as it then knew. 167. It was critically important that the evidence of Margaret Wood be admitted. I was explaining this to her Honour when I made the comment particularised The particular omits 14 lines of the transcript which put the entire matter into proper perspective. In response to her Honour's question as to the purpose of the committal transcript, I stated at 1910.28: "The purpose of this is in answer to the Crown's opening that this was not a political case. That is that the Crown opened on the basis thal it was not a political case. What we seek to show is that the Crown very deliberately did not call the evidence off Margaret Wood at trial when it was available to them, and which they called at committal, and withheld the documents referred to in the letter sent by the Director of Public Prosecutions, being the relevant evidence in this case from becoming evidence in this trial. What this goes to show your Honour is that the political nature of the trial as it began with Stephen Mutch, has culminated in the adoption of trial tactics of deception. That is that the Crown opened that it was a student free day that Georgina Barrow went to the Bondi home of Mr Dyers, when it alleged that it occurred in the month of August. Later when the Crown discovered through the hospital records that in the month of August Georgina Barrow was in hospital and that was at the conclusion of Georgina Barrow's cross-examination, they then amended the indictment successfully with your Honour granting them leave to do that. However, that left them in the position of not having a student free day in the period in which the indictment now reads. They had that knowledge at the time that they moved to amend the indictment. It is that conduct your Honour which is similar to that complained of in the Anderson case which resulted in the Anderson case ultimately being overturned It is a matter which I seek to put before the jury because it shows that the political character of the case. which commenced with the initiation of the prosecution which Stephen Mutch through the Minister of Police has continued even into the conduct and performance by the Director Public Prosecutions in the trial of this case." 168. At 1911.19 I concluded: "Also to show that the Crown has deliberately in this case not submitted to the jury in its case relevant evidence. The relevant evidence being the attendance records of Georgina Barrow at Vaucluse High School in the second third and fourth terms of 1988." 169. At 1913.1 the Crown informed her Honour that the DPP had sought an agreement to an agreed set of facts in relation to the school attendance. He goes on to state that there was no agreement. Given this situation, the Crown had an obligation to provide evidence of the existence, or lack thereof, of a 'pupil free' day in ihe amended period. 170. The assertions of the Crown at 1913.22 were misconceived: "The paranoia which is exhibited by my friend is a claim of political conspiracy, must I submit, be clouding his judgment and his submissions to this Court. Any competent counsel would have realised ..." 171. The Crown further stated that my submission was "at least negligent", at 1914.10, and that the tendering of the evidence of Wood was "nothing but a smoke screen". 172. The Crown should have tendered the evidence in the interests of a fair trial and in accordance with the obligations of a Crown (I refer to Bar Rule 62). My use of the words "trial tactics of deception" reflected the effect of the deliberate withholding of the whole of critically relevant evidence which the Crown had in its possession and was well aware of which would have assisted the jury to arrive at the truth. At the end of the Crown case, the jury was deceived. The Crown made a choice not to run the evidence of Margaret Wood. The decision was a deliberate one 173. I was attacking the integrity of the Crown, however I considered then, and on reflection still regard, the Crown's conduct as wrong." 159 This particular was, in our opinion, the most serious allegation against the barrister, because on the face of it, it was alleged that he made a claim in a criminal trial that the prosecution was a political one and conducted as such by the Crown Prosecutor. What was said by the barrister also was an allegation that the Crown Prosecutor had adopted deceptive tactics at the trial. 160 When questioned about this during the Tribunal hearing, the barrister maintained his entitlement to make these allegations, which he justified by reference to the conduct of the Crown Prosecutor and his instructing solicitor. He agreed that he had attacked the Crown Prosecutor and claimed that the attack was entirely justified. He explained that when he used the expression "political" he did not mean party political, but rather abuse of process. 161 However, his remarks included Stephen Mutch, a member of the New South Wales Parliament and we find it difficult to accept that "political" did not mean what it would ordinarily be regarded as meaning. Furthermore, the barrister had elsewhere both in writing and in evidence before the Tribunal spoken of his concerns about political interference in the trial, including his concerns about previous political connections of the presiding judge. 162 The remarks which the barrister made were not justified by the conduct of the Crown Prosecutor and/or his instructing solicitor. Arguably, the barrister was entitled to object to the conduct of the Crown Prosecutor and to seek appropriate directions from the judge. In evidence before us, the barrister also claimed that the Judge had been appointed on the recommendation of an Attorney General who was of the same political persuasion as Mr Mutch and that this was a matter which caused him to have concern because" I didn't know, given the fact that Stephen Mutch was involved in this, I didn't know what obligation she had and what connection she had to the Liberal Party" (Tribunal Transcript p 243). In our view, there was no basis for the barrister to have concern, but it may well have coloured his view about the trial as it seems that he had a belief that the trial was a "political" one and it may have been a factor in his making the claim that he made against the Crown Prosecutor. 163 There was no basis for making such a claim against the Crown Prosecutor. The remarks clearly alleged dishonesty on the part of the Crown Prosecutor and also alleged that he was acting in accordance with the political dictates of politicians. Plainly, the barrister also wanted to put these allegations before the jury as a matter for their consideration. 164 In our opinion, the conduct of the barrister shows that he was prepared to make allegations which were at the least reckless during the course of a trial. He may have felt that he would gain some forensic advantage or he may have had the belief that he must make the allegation because he had a belief that it was true. However, there was in fact no proper basis whatever for him to make this allegation, notwithstanding any subjective view he might have had. The attitudes expressed by him in his affidavit and in evidence before the Tribunal show, in our opinion, that he still has no appreciation that his conduct could not be regarded as acceptable for a barrister practising in the State of New South Wales. 165 In our opinion, his conduct amounts to unsatisfactory professional conduct. This conduct is the most serious instance of unsatisfactory professional conduct.

Submissions 166 We gave consideration to the submissions put by both parties.

Submissions on behalf of the Bar Association 167 The Bar Association submitted that we would be entitled to conclude that the barrister had beliefs at all stages of the trial that the Judge was pro- prosecution and biased, was inexperienced and incapable of adequately presiding over a difficult trial and that she was someone over whom a question mark existed as to whether she was politically indebted to Mr Stephen Mutch. 168 Further, it was submitted by the Bar Association that this "background material, when viewed in combination with the words actually used, the conduct of the barrister at the time he used the words, formed part of an overall approach by the barrister to this trial which involved him confronting the jury with a stark divide between the Judge and the accused, in a tactical attempt to gain sympathy from the jury for his client." 169 The Bar Association further submitted that the barrister had in effect admitted that this was his approach and indeed thought that it was not inappropriate behaviour in the circumstances. It was further submitted that nothing in the background facts or the context of the trial could assist the barrister in this regard and his conduct was in breach of his duty to the Court. 170 Following these general submissions, particular submissions were made in relation to each of the particulars. As well as this, oral submissions were delivered to amplify the written submissions. 171 We have had regard to the submissions on each particular and to the helpful oral submissions but we do not need to deal specifically with them for the purposes of this decision. 172 We accept that the matters referred to by the Bar Association as 'background matters' certainly influenced the conduct of the barrister and we have already set out our views on this. 173 Whilst there is a basis for the submission that the barrister deliberately employed tactics aimed at creating a stark divide between the Judge and his client, we are not able with any degree of certainty to come to accept this submission. 174 We have found that some of the conduct of the barrister was unsatisfactory professional conduct and we have come to the conclusion as a matter of probability that the "background material" caused him to hold beliefs about the Judge and the prosecution which may have been genuinely held beliefs but which were not justified by the facts. Further, it is our opinion, that he lost objectivity in the trial and became too personally involved in his client's cause. This caused him to say and do things which were not justifiable. 175 Finally we are also of the opinion that the barrister still finds it difficult to accept that some of his conduct was unsatisfactory. He has agreed that some things he said could have been better expressed, but generally he seems to hold the belief that what he did was justified by the circumstances of the trial and by his duty to act fearlessly on behalf of his client.

B. Submissions on behalf of the Barrister 176 The written submissions on behalf of the barrister referred to the Tribunal Decision of in the matter of a Barrister C and submitted that we should not follow it as it was wrongly decided. Our decision has been reached without any reference to the decision of Barrister C and we express no opinion on the correctness of that decision. 177 Reference was also made to some of the decisions on contempt to which we referred earlier in this decision, as well as to the cases of Toner and Costello. As we pointed out earlier in this decision, cases on contempt are useful guides but they are dealing with contempt of court, not with unsatisfactory professional conduct. There are no decisions of the Supreme Court or the High Court which are of direct application to the facts of the present case. However, we have looked at all of the decisions to which reference was made by counsel, before coming to any conclusion in the present case. 178 It was further submitted that the correct test to be applied was: "The issue is whether, having regard to the conduct of all participants, the behaviour of the barrister was objectively insulting or offensive to the complainant." 179 We do not accept that this is the correct test to be applied in determining whether the conduct in this case has been unsatisfactory professional conduct. As we have earlier pointed out, if the conduct of the barrister amounted to a contempt of court then that could amount to unsatisfactory professional conduct, but the fact that it was not in the legal sense, contemptuous, does not mean that the conduct could not be unsatisfactory professional conduct. 180 The courts, in our opinion, have made it clear that if a barrister insults a judge that may be a contempt of court, but mere rudeness or arrogance would not necessarily be a contempt of court. In our opinion, rudeness and arrogance by a barrister directed to a Judge, whilst it may not be sufficient to ground a charge of contempt of court, may be sufficient to ground a complaint for unsatisfactory professional conduct. However, the facts in each case necessarily determine whether the conduct is unsatisfactory professional conduct. Therefore, we reject the submission as imposing on the complainant the need to satisfy a test which is too high. 181 We have given consideration to the balance of the written submissions and to the oral submissions. In essence, the submissions point to the barrister accepting that some of his conduct was contrary to his duty as counsel, but even so, it should not be regarded in the circumstances of the case as amounting to unsatisfactory professional conduct. 182 We do not accept this submission. 183 The submissions then seek to justify the balance of his conduct by reference to the circumstances of the trial. We have accepted this submission in part, in the sense that we have found that some of the allegations of unsatisfactory professional conduct have not been made out. However, as our specific findings on other matters make clear, the circumstances could provide no justification for some of the conduct which we did find amounted to unsatisfactory professional conduct.

Summary of Findings 184 We find the respondent barrister guilty of unsatisfactory professional conduct in respect of Particulars 1,3,5.2,7 and 10. We find him not guilty of unsatisfactory professional conduct in respect of Particulars 2, 4,5.1, 6 ,8 and 9. 185 We will now need to receive further evidence and submissions on penalty and costs

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