New South Wales Bar Association v di Suvero - [2000] NSWCA 199 - NSWCA 2000 case summary — Zoe

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New South Wales Bar Association v di Suvero

[2000] NSWCA 199

Court of Appeal (NSW)|2000-10-17|Before: Geddes J

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Court

Court of Appeal (NSW)

Decision date

2000-10-17

Before

Geddes J

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Judgment (12 paragraphs)

[1]

CITATION: di Suvero -v- Bar Association (LSD) [2001] NSWADTAP 9 APPLICANT PARTIES: Henry Millo de Suvero RESPONDENT Council of the Bar Association of New South Wales FILE NUMBER: 009016 HEARING DATES: 17/10/2000 18/10/2000 SUBMISSIONS CLOSED: 10/18/2000 DATE OF DECISION: 03/29/2001

[2]

Determination as to unsatisfactory professional conduct; penalty DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Officer D QC - Judicial Member; Geddes J - Member CATCHWORDS: statutory interpretation - Unsatisfactory Professional Conduct- behaviour during trial MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 9824 DATE OF DECISION UNDER APPEAL: 05/05/2000 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 New South Wales Bar Association v di Suvero [2000] NSWADT 194 & 195 Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8 Mayhew v A [1999] NSWADTAP 1 Attorney General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653 (CA) R v A & B [1999] NSWADTAP 2 Director General, Department of Transport v Rasheed [2000] NSWADTAP 16 R v Dyers [2000] NSWCA 335 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 CASES CITED: Clyne v NSW Bar Association (1960) 104 CLR 186 Batchelor & Co Pty Ltd v Websdale [1963] SR NSW 49 Y.Z. Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 Dilworth v Commissioner of Stamps [1899] AC 99 (Privy Ccl) Lewis v Judge Ogden (1984) 153 CLR 682 NSW Bar Association v Hamman [1999] NSWCA 404 R v Gray [1900] 2 QB 36 Pashuram Detaram Shamdasani v King-Emperor [1945] AC 264 Re Bellanto [1963] SR NSW 190 Hinch v Attorney General (Vic) (1987) 164 CLR 15 Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8 Soulemizis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 APPLICANT REPRESENTATION: F McAlary QC with M Thangaraj, barristers RESPONDENT P Garling SC with P Skinner, barristers ORDERS: 1. The appeal as it relates to grounds 1 to 16 of the amended notice of appeal (the liability issues) is dismissed. ; 2. The matter is to be relisted by the Registrar within 28 days, unless otherwise directed, to hear any submissions in relation to grounds 17 and 18 of the amended notice of appeal (the penalty issues) and as to costs.

[3]

1 This is an appeal by a barrister against the adverse decisions of the Legal Services Division of the Tribunal (the Tribunal) arising out of an information laid pursuant to Part 10 of the Legal Profession Act 1987 (the Legal Profession Act) by the Council of the Bar Association (the Bar Council). The information alleged that the barrister had engaged in unsatisfactory professional conduct in several respects during the course of his appearance as counsel for a defendant in a trial at the District Court: see New South Wales Bar Association v di Suvero [2000] NSWADT 194 & 195. (In contradistinction to the usual position in unsatisfactory professional conduct matters, the barrister is identified in the case-title at his request.) 2 The trial took place before Her Honour Judge Karpin in February and March 1996. The barrister represented the defendant, Mr Ken Dyers. Both Her Honour and the Crown Prosecutor, Mr Desmond Carmody formally complained over the barrister's conduct to the Legal Services Commissioner, who referred the complaints to the Bar Council. Following investigation and after considering the barrister's responses the Bar Council resolved not to lay any information in respect of many of the matters raised. It decided to proceed with the matters as itemised in the ten particulars contained in the information. Some of the particulars included sub-particulars. The information was filed in the Tribunal on 10 July 1998. 3 'Unsatisfactory professional conduct' is a category of charge, lower than a charge of professional misconduct, which may be laid against a barrister by the Bar Council pursuant to the disciplinary provisions of the Legal Profession Act. The Act defines 'unsatisfactory professional conduct' as follows (s 127(2)): 'Unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner…'. 4 Whether this definition is exhaustive is one of the issues in the appeal to which we will return later. 5 The Tribunal heard the case over 5 days in November and December 1999, and delivered its decision on liability on 5 May 2000. The barrister was found guilty of unsatisfactory professional conduct in respect of Particulars 1, 3, the second part of 5 (i.e. 5.2), 7 and 10. He was found not guilty in respect of the whole of Particulars 2, 4, 6, 8 and 9 and the first part of 5 (i.e. 5.1). 6 A penalty hearing was held on 28 June 2000, and the decision on penalty delivered on 28 July 2000. The penalty (order 1) was that the barrister be suspended from practice for a period of 3 months. A further order (order 3) required that a practising certificate not be re-issued until a lapse of 3 months from the date that the cancellation of the practising certificate takes effect. The Tribunal suspended the operation of that order until further order of the Appeal Panel. On 13 September 2000 the Appeal Panel stayed the penalty pending determination of this appeal. Charges Found Proven 7 The charges of which the barrister was found guilty were as follows (the transcript references are references to the trial transcript): Particular 1: 'When addressing the Court he made the following statements which:

were discourteous to the Court and disrespectful to Her Honour;
had the potential or tendency to bring the Court and the presiding Judge into disrepute, namely, 1.1 "Yes. This is what I have to say to your Honour's suggestion. Firstly, never since my representation of Mr Reubin in front of the House Un-American Committee have I been in a Court room that is so oppressive as this." (Transcript page 278.35 of 19.2.96) 1.2 "… We will have a star chamber in the proceedings where sometimes the court is closed and sometimes open …" (Transcript page 279.30 of 19.2.96) 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" (Transcript page 280.10 of 19.2.96)' Particular 3: 'When addressing the Court (sometimes in the presence of the Jury) he made the following statements which:
were offensive or insulting to;
questioned or attacked the integrity of;
displayed a lack of professional courtesy to;
had the potential or tendency to inflame the jury against, the Crown Prosecutor who was his opponent in the case, namely,' Particular 3.1: '"3.1 Your Honour, I object to that. My friend is not permitted to lead on re-examination. This is a classic leading question. He wants to ask the witness to explain what she did. I have no objection to that. This is leading and it is improper." (Transcript page 447.15 of 21.2.96)' Particular 3.2: '"No, that is not correct. I don't have to give her the statement. That is totally improper on the part of the Crown." (Transcript page 753.55 of 28.2.96)' Particular 3.3: '"I object to this, it's quite improper." (Transcript page 824.55 of 29.2.96)' Particular 3.4: '"This whole procedure is improper. What he is doing is rerunning his own case during a cross-examination. If he wants to put a particular question, I don't have an objection to that. But this is what he is trying to do, and that is improper." (Transcript page 1597.20 of 18.3.96)' Particular 3.5: '"It's inappropriate for the Crown to interrupt the witness when the witness is trying very hard to answer a question, and he jumps on top of her with a loud voice seeking to intimidate and harass her. That's improper conduct and I ask your Honour to control this." (Transcript page 1973.30 of 25.3.96)' Particular 5: '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 statement which:
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 under cross examination;

[5]

63 Again items (a) to (c) of appeal ground 6 challenge the fact-finding process. There is no question of law raised. 64 Appeal ground 7 raises the issue of the methodology followed by the Tribunal in stating its reasons. While the provision is not directed cited, the ground alludes to s 89(3) of the Tribunal Act, which provides: '(5) If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.' 65 This is not a case to which subsection (3) applied in that the written reasons were not the subject of a formal request by one of the parties made after giving a decision orally. Nonetheless it is accepted that the standard reflected in subsection (5) should apply to all reasons for decision delivered in writing by the Tribunal. These requirements are in line with the common law standard: as to which see generally, Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8 at [74]-[81] discussing in particular Soulemizis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA). 66 In this instance the objection is that the prescriptions contained in subsection (5) were not followed by the Tribunal in its treatment of this particular. We do not consider that it is necessary for a Tribunal to divide its reasons relating to each category of the fact-finding task before it into the three matters required to be addressed in subsection (5). It may be appropriate and efficient for some matters to be dealt with compendiously only once in the written reasons. This is the course, as we perceive it, that was adopted by the Tribunal on this occasion. In dealing with the first Particular it outlined its understanding of the applicable standard as it related to in-court insulting and offensive conduct. It also explained (at the passage cited at para [46] the reasoning processes that it had engaged in to form its conclusions as to fact. It also dealt compendiously at the end of its decision with the question of the applicable standard: see further para [44]. 67 In any case in dealing with particular 3 the Tribunal refers to substantial extracts from the transcript in support of its conclusions, and in the final two paragraphs of its reasons on this point at p 26, finding that the repeated use of the term 'improper' had been done 'deliberately and intended to cause offence to the Crown Prosecutor.' In light of that finding, we have no difficulty with the Tribunal's conclusion that such conduct amounted to 'unsatisfactory professional conduct.' The Tribunal had already explained that 'unsatisfactory professional conduct' could embrace in-court insulting or offensive conduct directed to the judge or opposing counsel. 68 There was no need for it to repeat that reasoning at this point of its reasons. No error of law is revealed in relation to the adequacy of the reasons. Particular 5.2 69 This particular also dealt with statements by the barrister directed at the conduct of the Crown Prosecutor. The Tribunal found against the barrister in relation to his statement made during the cross-examination by him of a Crown witness (one of the mothers) that an intervention by the Crown Prosecutor which the judge had permitted 'was designed to protect the [Crown] witness and for no other purpose.' 70 Appeal ground 8 deals with alleged errors in respect of this particular. '8. The Tribunal erred in law in ruling Particular 5.2 constituted "unsatisfactory professional conduct" by failing to have proper regard to its finding that there was "considerable heat in the proceedings at this time" and that such finding required in the circumstances a determination the barrister's conduct was either excusable or justifiable.'

[7]

72 The appeal ground is without substance. Again it seeks to challenge the fact-finding process. Particular 7 73 This particular deals with remarks directed to the presiding judge. One suggested that the judge was hampering the barrister's ability to effectively represent his client because the judge was prone to make personal remarks in reply commenting on his facial behaviour (7.1); another (7.2) because he was being 'scrutinised with great care by your Honour'; another (7.3) because 'I always come out second best' and another (7.4) was to the effect that he was being treated unequally in comparison to the Crown Prosecutor. 74 Appeal grounds 9-12 deal separately with particulars 7.1 to 7.4: '9. The Tribunal erred in finding the barrister's statements the subject of Particular 7.1, in the circumstances and context properly construed:- (a) offensive, deliberately calculated to be offensive, and insulting; (b) an assertion that the trial judge was untruthful' (c) were not justified having regard to the trial judge's remark to which the barrister was responding and the heatedness which the Tribunal found (at 33 and 34) was a feature of the trial at that stage; and (d) constituted "unsatisfactory professional conduct". 10. The Tribunal erred in finding the barrister's statements the subject of Particular 7.2:- (a) constituted "unsatisfactory professional conduct" without giving any or any proper reasons; (b) offensive, deliberately calculated to be offensive and insulting; (c) were not justified having regard to the circumstances and context properly construed; and (d) constituted "unsatisfactory professional conduct". 11. The Tribunal erred in finding the barrister's statement the subject of Particular 7.3 was:- (a) offensive, deliberately calculated to be offensive and insulting; and (b) "unsatisfactory professional conduct". 12. The Tribunal erred in finding the barrister's statement the subject of Particular 7.4 was, in the circumstances and context properly construed:- (a) not made in the course of a submission; (b) offensive, deliberately calculated to be offensive and insulting; and (c) "unsatisfactory professional conduct".' 75 Most of the items within each of these grounds again seek to challenge the fact-finding process and do not involve questions of law. Ground 10(a) is to the effect that insufficient reasons were given in relation to the finding in respect of 7.2. 76 The Tribunal dealt with the allegations set out in 7.1 to 7.4 compendiously. It commenced by reciting the whole of particular 7. It then made the following comments: '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. A judge could make remarks which a barrister found offensive, including allegations about body language and demeanour, which 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 a barrister could amount to unsatisfactory professional conduct even if the judicial conduct which provoked them was unwarranted.'

[9]

79 There is in our view no difficulty identified in the reasoning process. It is not necessary to isolate each particular. This is a case where there is no question that the statements upon which the case relies were made. The case is one about context, meaning and intent. The Tribunal in the above passage makes clear, compendious findings of fact and then applies the standard that it established as applicable at the beginning of its reasons (a standard with which we agree), and finds negatively to the barrister. There is no error of law attributable to the reasoning process. 80 All the items of grounds 9-12 seek to challenge the fact-finding process and do not raise any questions of law. Particular 10 81 This particular dealt with the barrister's statement in court that the Crown Prosecutor had engaged in 'trial tactics of deception' in his handling of the case. 82 Appeal grounds 13-15 are: '13. The Tribunal erred in law with regard to Particular 10 by failing to state:- (a) its reasons on the material question of fact of whether the Crown Prosecutor had engaged in "trial tactics of deception"; (b) its understanding of the applicable law as to a prosecutor's duties; and (c) its reasoning process when making its determination of "unsatisfactory professional conduct". 14. The Tribunal erred in law in finding that the barrister's statement the subject of Particular 10:- (a) was not justified by virtue of the Crown Prosecutor's conduct including:- (i) his having first raised the issue in his opening statement to the jury of whether the trial was a political trial; and (ii) failing to comply with Bar Rules 62, 66 and 70 and DPP Guideline 15 in relation to the evidence concerning "the Bondi Counts". 15. The Tribunal erred in law in finding "unsatisfactory professional conduct" as to Particular 10 and denied the barrister natural justice by not addressing the barrister's submission that Particular 10 as pleaded in the Information only related to the words "trial tactics of deception" and was not concerned with the statement of a "political trial"; and by determining the Particular in terms of the meaning of the words a "political trial" and not in terms of the words "trial tactics of deception".'

[10]

83 The essential submission is that the Tribunal in its reasons did not address the principal element of the particulars of charge contained in sub-para (1) of the Particular. Sub-para (1) asserts that the barrister 'made an unjustified allegation of deception' against the Crown Prosecutor. 84 In its reasons, the Tribunal followed a similar course to that employed in dealing with the earlier Particulars. It recited the whole of the Particular, then recited relevant passages from the barrister's affidavit. 85 Its conclusions were as follows at pp 44-45: '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. 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. 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. 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. 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. 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 In our opinion, his conduct amounts to unsatisfactory professional conduct. This conduct is the most serious instance of unsatisfactory professional conduct.' 86 The submission for the barrister was that the Tribunal misconceived its role in dealing with the charge. It interpreted the charge as one alleging that the Crown Prosecutor had been involved in a political process that had commenced with the statements made in Parliament in 1993 and had not been dispassionate in performing his role in the case. 87 Mr McAlary contended that properly construed the primary task for the Tribunal was to assess whether the Crown Prosecutor had been the subject of an 'unjustified allegation' that the Crown Prosecutor had engaged in 'trial tactics of deception'. To reiterate, the statement which was the subject of charge reads - '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 has continued, even into the conduct and performance by the Director of Public Prosecutions in the trial of this case …'. 88 The barrister in his affidavit before the Tribunal sought to explain that those comments related only to the issue of the amendment made as to the time of the alleged offences after the close of the Crown case. In opening the Crown case the Crown Prosecutor had said that the Crown would lead evidence from one of the complainants that the alleged acts of unlawful sexual intercourse took place on a 'pupil free day' during the period specified in the relevant count which was 1 August to 13 September 1988. 89 After closing its case, the Crown moved to amend the relevant counts to specify the period as 1 June to 30 July 1988. The complainant had already given evidence that the offence occurred on a pupil free day and reiterated that evidence under cross-examination. The barrister opposed the application for leave to amend the charge. He expressed concern that there was evidence available to the Crown that there were no pupil free days in the period the subject of the amendment. 90 The Crown did not call any evidence on this matter. The defence did so. The complainant was not recalled to deal with the question of there being no pupil free period in the newly alleged period during which the offence was said to have occurred. 91 According to the barrister's affidavit, it was this series of events that lay at the heart of the barrister's statement that the Crown Prosecutor had been involved in 'trial tactics of deception'. 92 The failure of the Tribunal, according to Mr McAlary, was that it failed to assess whether this allegation was 'justified' thereby failing to address the key element of the charge. 93 It is clear that the Tribunal was aware that this was the explanation given by the barrister for making the comments giving rise to charge. At the third paragraph of the text quoted above, the Tribunal noted that the barrister 'explained when he used the expression 'political' he did not mean party political, but rather abuse of process.' Read in context, we are satisfied that the reference to 'abuse of process' is a reference to the barrister's submission that the comments related to what he saw as the gross unfairness involved in the Crown's amendments as to the time of the alleged events. 94 We consider that the Tribunal rejected that explanation, and formed a different view to that put forward by the barrister as to the intended meaning. It approached the question of justification or lack of justification for the statements on a broader front than that proposed to it by the barrister. It was entitled to take that course as part of the fact-finding process. 95 As to the issue of natural justice, the submission as we understand it in essence is that the Tribunal did not consider the charge before it but a reformulated view of the charge which was never put to the barrister, and to which therefore he had no opportunity to reply. As explained we do not see the Tribunal's reasons in that way. 96 As we read the reasons, the Tribunal did not accept that it should view the matters particularised in Particular 10 as being as limited in their context and meaning as the barrister had submitted. It did not see the statements placed in issue by the charges as merely being related to the question of the late amendment as to time of the counts. It is plain that it considered that view, but reached the conclusion, as it was entitled to, that their context and meaning was broader than was submitted by the barrister. The rejection of an explanation does not give rise to a denial of natural justice. The Tribunal considered the barrister's reply to the charge. 97 There is in our view no error revealed by any of the matters itemised in grounds of appeal 13-15. Ground of appeal 16 98 This is a catch-all ground, expressed as follows: '16. The Tribunal erred in law in concluding the conduct of the barrister even if unsatisfactory, was neither justifiable or excusable under the circumstances of each Particular.'

[11]

99 It challenges in another way the standard applied by the Tribunal which we have found already did not involve any error of law. Application for Leave to Extend to Merits 100 As no error of law has been found, the application for leave to extend to the merits is denied. Other Matters 101 The submissions filed on behalf of the barrister on 4 October 2000 are lengthy. Several shorter supplementary submissions were filed on 16 October 2000. We have not made any detailed reference to much of their contents as in our view they simply sought to re-try the findings of fact of the Tribunal. 102 At the commencement of the proceedings the Panel advised the parties that junior counsel for the Bar Council was a member of the Tribunal assigned to its General Division, and to that extent an association existed between junior counsel and the Presiding Member of the Appeal Panel, who is also President of the Tribunal, and with the other members of the Appeal Panel though they were only assigned to the Legal Services Division. The respondent submitted that the President should disqualify himself. The President declined to disqualify himself: separate oral ruling, 17 October 2000. There was also an application from the New South Wales Council of Civil Liberties for written submissions prepared by it to be considered on an amicus curiae basis. The Panel declined to consider the submissions on the basis that the statutory provisions governing conduct of proceedings before the Tribunal did not provide for appearance by non-parties whether on an amicus or other basis: separate oral ruling, 18 October 2000. Alleged Errors of Law in respect of Penalty 103 Grounds 17 and 18 deals with this matter: 'Penalty 17. The Tribunal erred in failing to find that the circumstances of the trial provided any mitigation of the seriousness of the conduct. 18. In all the circumstances the penalty was manifestly excessive.' 104 The penalty decision was a separate one handed down on 28 July 2000. 105 As noted earlier at para [10], the Panel agreed at the hearing not to go on to deal with the submissions in relation to penalty until it had ruled on the liability issues. Determination 106 The appeal as it relates to grounds 1 to 16 of the amended notice of appeal (the liability issues) is dismissed. Further Directions 107 The matter is to be relisted by the Registrar within 28 days, unless otherwise directed, to hear any submissions in relation to grounds 17 and 18 of the amended notice of appeal (the penalty issues) and as to costs.

"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)' Grounds of Appeal - Overview 8 The amended notice of appeal filed 22 August 2000 has 16 grounds relating to the liability ruling and two grounds relating to penalty. As to the liability ruling, twelve grounds are expressed in terms of errors of law, while four speak of errors in the fact-finding process. 9 The notice of appeal also contains an application to extend the appeal to the merits. Before dealing with the application to extend the appeal to the merits it is necessary to ascertain whether there is any error of law in the reasons for decision of the Tribunal below: see generally Administrative Decisions Tribunal Act 1997 (the Tribunal Act), ss 113-115. 10 In the case of the penalty decision the barrister contends that the Tribunal erred in not having regard to the circumstances of the trial as a factor in mitigation, and also contends that the penalty was 'manifestly excessive'. At the appeal hearing the Panel agreed to defer consideration of the submissions in relation to the penalty orders until this decision on the liability issues had been delivered: see appeal transcript 144 (18 October 2000). Questions of Law versus Questions of Fact 11 This distinction is a vital one in this case, as it is in many appeals to the Appeal Panel. This is not the place for another detailed examination of the distinction by an Appeal Panel of the Tribunal: see further Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8 at [39]-[81]; Mayhew v A [1999] NSWADTAP 1. For a recent authoritative exposition of this distinction and its jurisprudence: see Attorney General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653 (CA) per Spigelman CJ at [25]-[59] and [118]-[136]. 12 Further, if a question of law is identified in relation to which there is error, the error of law needs to be one of significance before it would proper to set aside or vary the decision under appeal: see R v A & B [1999] NSWADTAP 2; Director General, Department of Transport v Rasheed [2000] NSWADTAP 16 at [29]. The Context of the Trial 13 Before turning to the questions of law it is helpful briefly to outline some aspects of the background to the trial and its outcome. The following outline is primarily drawn from the submissions to the Appeal Panel by the barrister (prepared and filed by his counsel, Mr McAlary QC). A fuller account is set out in the original decision of the Tribunal. 14 The defendant had been arrested and charged on 17 September 1993 with 16 counts of sexual assault or acts of indecency on four girls. Five counts were dropped prior to the commencement of the trial, and it proceeded in relation to the other 11. 15 Three of the four girls were sisters. The mother of the three sisters and the mother of the other girl had been members of a group known as 'Kenja' of which the accused was the founder and leader. The alleged offences were said to have occurred in 1988. The barrister said in his submissions that the mother of the three sisters had left 'Kenja' in July 1988; and the other mother left in February 1989; with the result it was said that the children would no longer have been involved in 'Kenja' activities. 16 According to the submissions, the group 'Kenja' had in April 1993 been the subject of 'well publicised attacks of being a 'cult' and Dyers as a 'cult leader' in Parliament by a then member of the NSW Legislative Council (Mr Stephen Mutch). Soon after, the television program 'A Current Affair' ran two stories several days apart on the 'cult'. In the first of these stories, Dyers was criticised. The item included allegations from another former member of the group, a woman who according to the barrister's submissions, had said she had been 'processed naked' in 'energy conversion' sessions with Dyers and that she had been masturbated by Dyers in one session, allegations which Dyers emphatically denied. 17 The barrister's submissions go on to state, in summary, that after the second program in which allegations were made that Dyers had engaged in sexual activity with girls under 16, two of the girls had decided after discussions between the four girls and their mothers to make complaints to the police. The submissions go on to assert: 'These matters were extensively ventilated in the voir dire; they poisoned the atmosphere and lead to erroneous rulings and bias by the trial judge.' 18 According to the submissions, the woman who appeared on the 'A Current Affair' program and the member of Parliament worked together with the girls' mothers, and used the program to provide a 'trigger' for the girls complaints to appear to be genuine, when in fact the complaints were false and contrived. 19 The trial commenced on 12 February 1996. According to the submissions, the Crown case at trial was that the accused had conducted 'personal development' or 'energy conversion' sessions with the girls during which he had sexually assaulted them. (Further background can be found in two appeals that have been considered by the Court of Criminal Appeal: R v Dyers (24 October 1997); R v Dyers [2000] NSWCA 335.) 20 According to the submissions, the trial lasted 42 days over 8 weeks, with 10 days devoted to pre-trial motions (2 days) and voir dires (8 days). It is clear that during the voir dire and at the trial there were heated exchanges between the barrister and the Crown Prosecutor, and there were heated exchanges between the barrister and the presiding Judge over a range of issues. The jury deliberated for 7 days and returned 3 not guilty verdicts, and as to the other 8 counts were unable to agree. Can 'Unsatisfactory Professional Conduct' be charged in relation to the conduct of advocacy at trial? 21 The most fundamental proposition put to the Appeal Panel was that the proceedings below had miscarried because the Tribunal did not have jurisdiction to deal with charges of 'unsatisfactory professional conduct' where they related to the in-court conduct of a barrister. 22 The first ground of appeal is that: '1. The Tribunal erred in law in misconstruing the meaning of 'unsatisfactory professional conduct' in s 127 of the Legal Profession Act by incorrectly applying that term to the conduct of advocacy in the context of a highly contentious and lengthy criminal proceeding.' 23 Part of s 127, relating to the definition of 'unsatisfactory professional conduct' was referred to earlier in these reasons. To understand the present submission, part of s 126 and the whole of s 127 needs to be considered. 24 Section 126 relevantly provides: 'professional misconduct and unsatisfactory professional conduct are defined in section 127'. Section 127 provides: ' 127. Professional misconduct and unsatisfactory professional conduct (1) For the purposes of this Part, "professional misconduct" includes: (a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or (b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or (b1) (Repealed) (c) conduct that is declared to be professional misconduct by any provision of this Act. (2) For the purposes of this Part: "unsatisfactory professional conduct" includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. (3) Maintenance or champerty by a legal practitioner (except in connection with a conditional costs agreement under Part 11) may constitute professional misconduct despite the Maintenance and Champerty Abolition Act 1993 .' 25 The contention was that, properly construed, the Legal Profession Act left in-court conduct to be regulated only by two means, either through a charge of professional misconduct or by way of contempt proceedings. This construction, it was said, was supported by the definition of 'unsatisfactory professional conduct' which it was said did not cover actions or omissions where competence and diligence was not in issue. 26 It was said that this was such a case, in that there was no allegation that the barrister had failed in his duty to his client. It will be seen that this construction confines the scope of competence and diligence to matters relating to the immediate practitioner-client relationship. It was said that the allegations in this case dealt only with the barrister's relationship with opposing counsel (the Crown Prosecutor) and with the Judge. The definition, it was said, did not purport to encompass the relationship between opposing counsel or the relationship between counsel and the judge. 27 Counsel submitted that the Parliamentary debates, the relevant objects clauses (ss 123-124) and the statutory definition (s 127, cited above) all pointed to the conclusion that these matters were left to be dealt with by contempt proceedings or professional misconduct proceedings but not 'unsatisfactory professional conduct' proceedings. 28 The relevant objects clauses provide as follows. ' 123. Objects of Part generally The general objects of this Part are: (a) to redress the consumer complaints of users of legal services, and (b) to ensure compliance by individual legal practitioners with the necessary standards of honesty, competence and diligence, and (c) to maintain at a sufficiently high level the ethical and practice standards of the legal profession as a whole. 124. Objects of Part relating to users of legal services The objects of this Part relating to the users of legal services are: (a) to give every person the right to complain about the conduct of legal practitioners, and (b) to give users of legal services access to sufficient advice and assistance in order to make and pursue complaints in accordance with this Part and to understand their rights and responsibilities under this Part, and (c) to provide an opportunity for mediation of consumer disputes relating to legal services, and (d) to give complainants immunity from civil liability for communications made by them in connection with the official complaints and disciplinary system, and (e) to provide complainants with a reasonable opportunity to rebut statements of the legal practitioner against whom the complaint is made before the complaint is disposed of, and (f) to ensure that complainants receive adequate notice of the institution and status of disciplinary proceedings at relevant stages of the proceedings (including notice of the dismissal of complaints and the reasons for the dismissal), and (g) to give complainants the right to seek an independent review of decisions of Councils to dismiss complaints or merely reprimand legal practitioners.' 29 Counsel for the barrister noted that while 'professional misconduct' had been defined so as to encompass some additional matters, there had been no attempt to disturb the common law definition of 'professional misconduct.' 30 He said, and we agree, that at common law the test was in essence whether the conduct in issue was in the opinion of one's peers disgraceful: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750; Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 at 203. He submitted that one's peers might find discourtesy towards an opponent or a presiding judge to be 'disgraceful'. But the Act, he said, used a different standard, not involving peer scrutiny, for assessing whether professional conduct was 'unsatisfactory': namely (see s 127(2)) whether the conduct 'falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.' 31 He submitted that the use of this standard revealed an intention on the part of the legislature to differentiate between conduct adjudged unprofessional by one's peers and conduct adjudged unprofessional by a reasonable member of the public. He submitted that this dichotomy supported a construction to the effect that unsatisfactory professional conduct charges could only be laid in relation to behaviour directed towards the public, in the sense of one's client. In this instance there was, and had never been, any complaint from the barrister's client in relation to the barrister's conduct. On this basis, alleged in-court misconduct directed to one's opponent or the bench could only be dealt with by (more serious) professional misconduct charges - not laid here, or in the alternative by the judge initiating contempt of court charges. 32 He submitted that the reference to 'competence and diligence' in the definition found in s 127(2) supported this analysis. The expression 'competence and diligence', it was said, solely related to how well a legal practitioner rendered services towards the client. 33 We have described what we understand to have been the submissions of counsel as finally presented. During the course of argument there were occasions when Mr McAlary put an even more fundamental alternative submission, i.e. that its contempt proceedings could be employed to deal with misconduct in the face of the court by a practitioner. He submitted that to bring any other form of proceeding, such as a disciplinary proceeding, would be to expose the practitioner to double jeopardy. 34 This issue was addressed by the Tribunal and rejected, see p 48 of the reasons. We agree with the Tribunal. Contempt powers and disciplinary proceedings each have a role to play in the administration of justice. In our view it is quite possible and appropriate that conduct found to be in contempt could in turn give rise to disciplinary proceedings that might lead to disciplinary penalties being imposed. This is not prevented by any scheme of the Act and there is, in our view, no common law bar. We agree with the Tribunal that conduct that does not amount to contempt may still amount to a breach of professional discipline. We agree with the submission of the Bar Council made at hearing that this view is consistent with the High Court's approach in Clyne v NSW Bar Association (1960) 104 CLR 186. 35 In relation to the primary submission that while professional misconduct might be chargeable in relation to in-court conduct, unsatisfactory professional conduct is not chargeable, Mr McAlary argued that the statutory definition of "unsatisfactory professional conduct", despite the use of the word 'includes', was an exhaustive one. Mr McAlary noted that the conduct charged, insulting and offensive conduct of various kinds, was not mentioned in the list of matters of conduct that s 127(2) referred to as being included in the meaning of 'unsatisfactory professional conduct.' He referred to authorities where a list following the use of the word 'includes' has been found to be exhaustive as to the meaning of the defined term (Batchelor & Co Pty Ltd v Websdale [1963] SR NSW 49; approved Y.Z. Finance Co Pty Ltd v Cummings (1964) 109 CLR 395) in contrast to the usual interpretation that the use of the word 'includes' does not set a boundary on the definition: Dilworth v Commissioner of Stamps [1899] AC 99 (Privy Ccl). 36 Similar submissions were considered in 1995 in In the matter of a Barrister, Legal Services Tribunal (JM Stowe QC, CA Needham, J O'Neill) in relation to charges of insulting and offensive conduct in-court. The original Tribunal in the present case stated that it expressed no opinion on the correctness of that decision (see p 47). 37 The 1995 case involved charges brought by the Bar Council against a barrister in relation to remarks he made to a Magistrate hearing criminal proceedings. The remarks were made in a context where the Magistrate had declined an application by consent from both the prosecution and defence for the proceedings to be dismissed. 38 As that decision is not readily accessible, it may be convenient to set out here at some length the relevant parts of its decision. The Tribunal said: '(ii) Can the conduct complained of constitute unsatisfactory professional conduct or professional misconduct as a matter of law? For the purposes of the argument on this issue, Mr Rushton acknowledged that the Council did not assert that the conduct complained of involved lack of competence or lack of diligence: it was the Council's assertion that the Barrister abused the privilege that he had in appearing in court by the use of intemperate and insulting language. Dr Woods QC submitted that conduct merely involving the use of intemperate or insulting language before a judicial officer and not involving any lack of competence or diligence, did not fall within the concepts of unsatisfactory professional conduct or professional misconduct for the purposes of Part 10 of the Act. He initially conceded that such conduct, if sufficiently serious, could amount to professional misconduct, but later withdrew that concession and submitted that the statutory definition of professional misconduct and unsatisfactory professional conduct referred to in s 126 and set out in s 127 of the Act should both be regarded as exhaustive in the sense that no conduct not expressly covered by the words used in those provisions may be regarded as falling within the relevant concept. He submitted that the statutory definitions should be regarded as exhaustive notwithstanding that each nominates only the conduct which the relevant concept 'includes', and in support of that contention he relied on the following considerations: (a) the circumstances that the conduct expressly included by the terms of the definitions was, as he contended, very 'extensive' and 'general'; (b) the circumstances that there had existed from ancient times an inherent jurisdiction empowering judicial officers to deal with and punish as contempt of court any intemperate or insulting conduct on the part of legal practitioners occurring in the face of the court; (c) in relation to the definition of unsatisfactory professional conduct, the provisions of s 155(3) of the Act. The Tribunal also rejects this submission. In our view the definitions of professional misconduct and unsatisfactory professional conduct referred to in s 126 and set out in s 127 are not exhaustive: conduct on the part of a barrister which is intemperate or insulting to a judicial officer before whom he appears but which does not involve any lack of competence or diligence is not excluded as a matter of law from the concept of unsatisfactory professional conduct. [s 126 as relevant and s 127(1) and (2) cited.] Both definitions are expressed inclusively. However, while that circumstance suggests that the definitions are not exhaustive, it does not conclude the matter. The scope of the definition depends on the construction of the provision as a whole. In Dilworth v Commissioner of Stamps [1899] AC 99 the Privy Council, whose judgment was delivered by Lord Watson, said at pp 105-106: 'The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.' Kitto J in YZ Finance Company Pty Limited v Cummings (1964) 109 CLR 395 said, at pp 401-2: 'Unlike the verb 'means', 'includes' has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of the subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watson in Dilworth v Commissioner of Stamps should not be taken so literally as to reduce the enquiry in a case like the present to an enquiry into the meaning of the word 'includes'. Strictly speaking, that word cannot be equivalent to 'means and includes'. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if 'means' had been the verb instead of 'includes'. The question whether a particular provision is exclusive although 'includes' is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole.' We do not agree that the first of the three considerations relied by Dr Woods QC supports an exhaustive interpretation. It is hard to see how the generality or extensiveness of the material included in a statutory definition can assist in resolving a question of this kind. In any event the conduct described in s 127(2) could hardly be said to be extensive: the relevant concept is expressed as including a narrow range of conduct, namely conduct which involves shortcomings of competence and diligence. Further, we are unable to see how the existence of a law of contempt can be of any assistance in construing this statutory definition in an Act dealing with the regulation of the legal profession. We can see no reason why the judicial power to punish for contempt in the face of the court cannot co-exist with a provision for the institution of disciplinary proceedings in respect of practitioners whose conduct in relation to a judicial officer is perceived as intemperate or insulting. No logical reason is apparent to us for regarding the existence of the former as excluding the latter. Certainly there is nothing in the Act which recognises any exclusive operation of the law of contempt in relation to conduct of this kind, and it must be the context of the Act itself by which the construction of the provision of the Act is to be determined. In any event, conduct of the kind in question might well constitute unsatisfactory professional conduct for the purposes of Part 10 of the Act, without necessarily amounting to contempt (see Lewis v Judge Ogden (1984) 153 CLR 682 at 693).' 39 The reasons then went on to deal with an argument based on s 155(3) of the Act. 40 We agree with these reasons with one reservation. It is apparent from these observations that the Tribunal accepted without further analysis submissions on behalf of the Bar Council that the use of insulting and offensive words did not raise an issue as to competence and diligence. A similar submission was not put on this occasion, and we are not persuaded that conduct of this kind can not raise a question as to competence and diligence. 41 The standard set by the Act is not that of the client but that of the 'reasonable expectation of a member of the public'. One reasonable expectation of a member of the public is, we consider, that barristers will behave in court in a way which maintains the public interest in the administration of justice, which includes acting in a way which accords appropriate respect to the Court. Failure to maintain the standard could be seen as involving incompetence on the part of the barrister. Such a view would be consistent with the general object of disciplinary proceedings which is not to punish the practitioner, but 'to protect the public and to maintain proper standards in the profession': NSW Bar Association v Hamman [1999] NSWCA 404 per Mason P at [21]. In any case we agree with the earlier Tribunal that even if insulting and offensive language in-court is not within the sphere of 'competence and diligence' it can still amount to unsatisfactory professional conduct within the meaning of the Act. 42 In its reasons in In the matter of a Barrister the Tribunal went on to deal with other 'stronger' considerations that supported their interpretation, in particular passages from the Attorney General's second reading speeches in 1987 (Legal Profession Bill 1987, 29 April 1987, Hansard 10752; and as revised after consultation, Legal Profession (Amendment) Bill 1987, Hansard 16276). Those passages explained the two tier system of discipline introduced in the form now found in Part 10 of the Act. The Tribunal's conclusion was that: 'The new definitions of professional misconduct and unsatisfactory professional conduct introduced by Act No 138 of 1987 were the same as those now contained in s 127 of the Act. It seems clear from the Attorney General's speech on 18 November 1987 that the legislative intention was that the new name 'unsatisfactory professional conduct' should denote the concept previously referred to as 'minor professional misconduct.' When that part quoted above of the Attorney's speech of 29 April 1987 is taken into account it appears to follow that the legislative intention was that the concept now denoted as 'unsatisfactory professional conduct' was intended to extend to other matters falling short of professional misconduct in addition to shortcomings of diligence and competence. This is perhaps the clearest available indication that the present definition of unsatisfactory professional conduct should not be regarded as exhaustive.' Does an Assessment of Unsatisfactory Professional Conduct occurring in court require an Evaluation of Conduct of Other Participants in Trial? 43 Grounds of appeal 2, 3 and 4 challenge the alleged failure of the Tribunal to evaluate the conduct of the presiding judge or the opposing counsel: '2. The Tribunal erred in law by incorrectly rejecting the test for permissible advocacy as one requiring consideration to be given to the conduct of all the participants, meaning the judge and the opponent as well as that of the barrister, in order to determine whether the behaviour of the barrister was objectively insulting, offensive, or otherwise constituted 'unsatisfactory unprofessional conduct'. 3. The Tribunal erred in law by not directing itself to have regard to the conduct of or [sic] the trial judge and the Crown Prosecutor in determining whether the barrister's conduct constituted 'unsatisfactory professional conduct.' 4. The Tribunal erred in law by applying a strict liability test for the conduct of the barrister, that is, in assessing the conduct regardless of the failure of either an opponent or a judge to live up to satisfactory standards (at 6 & 14); it was error [sic] to apply a strict liability standard because the Tribunal recognised elsewhere that a less onerous standard applies in New South Wales, one which includes an advocate's duty to point out, for instance "impropriety on the part of the judge" (at 18) or sanctions an advocate's statements so long as they are substantiated or justified (at 11); it was an error of law as well as an inconsistent declaration of law to apply a more onerous test for the barrister's conduct than was required by law."' 44 These grounds of appeal essentially reiterate submissions considered and rejected by the Tribunal. See pp 47-48 of its reasons. The Tribunal said: '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'. 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. … 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 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 submissions as imposing on the complainant a test which is too high.' 45 As to the submission on behalf of the barrister that an explanation for his conduct can be found in the circumstances of the trial, the Tribunal said at p 48 of its reasons: '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.' 46 As to the reasoning process it followed the Tribunal said the following at pp 11-12 of its decision: '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 Mr Carmody and the Judge's associate we would not have been in any position to form any view on these matters.' 47 At page 14 of its reasons the Tribunal said: '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.' 48 The Tribunal stated what it regarded as the appropriate standard of conduct at p 18 of its reasons in the context of dealing with Particular 1. It said: '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. Thus, in our opinion, the barrister was entitled to make any submission to Her Honour concerning the conduct of the trial provided that it had a foundation in fact and was respectfully, even if forcefully put. 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.' 49 In the case of Particular 1, for example, the Tribunal then goes on at p 19 of its decision to refer to various aspects of the transcript of the trial, and makes it clear that the test it is applying is whether the statement in issue has any factual foundation or, even if it had a factual foundation, whether it was expressed in such a way that it was bound to cause offence. 50 We have no difficulty with the standard expressed by the Tribunal. There is nothing in the cases on contempt to which our attention was drawn, dealing variously with insults directed to judges or opposing counsel which alters our view (R v Gray [1900] 2 QB 36, Pashuram Detaram Shamdasani v King-Emperor [1945] AC 264, Re Bellanto [1963] SR NSW 190, Hinch v Attorney General (Vic) (1987) 164 CLR 15). 51 Mr McAlary referred in his submissions to the following passage from Re Bellanto at 203: '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 was felt to be 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 counsel… But if his words took the form of insults to the judge or of setting at defiance his rulings as to 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. …' 52 While this statement was made in the context of contempt proceedings, a similar dichotomy may apply to the examination of an allegation of breach of professional discipline. In our view this is precisely how the Tribunal approached the task before it. 53 The standard adopted by the Tribunal focuses, correctly, we consider on the exercise of professional judgment and skill by the barrister. The Tribunal did inform itself in that regard by scrutinising the transcript and getting evidence as to the behaviours exhibited at the trial. 54 It recognised the duty of counsel to their clients to make known their objections. It placed a restraint on the expression of those objections - i.e. an objection is improper where there is no factual foundation for it, and it is improper if expressed in a form, even with a factual foundation, that is bound to cause offence. The latter standard seeks, as we see it, to deal with plainly intemperate behaviour which seeks to, or has the effect of, undermining the ability of the judge to control the conduct of proceedings especially by attacking their integrity. 55 There is a reference in these grounds of appeal to the Tribunal having adopted a strict liability standard. As the submissions of the Bar Council point out, this is a concept drawn from the criminal law used in reference to offences where there is no requirement on the prosecution to prove a criminal intent. The suggestion appears to be that the Tribunal adopted a standard in regard to what constitutes unsatisfactory professional conduct which excluded from view the state of mind of the barrister and his motivations. We do not agree, and we agree with the Bar Council that there are numerous illustrations of such a concern in the reasons for decision of the Tribunal taking account of factors such as the barrister's explanations as to his intentions, strategy and concerns for his client's position in reaching its conclusions. 56 We are satisfied that the standard adopted by the Tribunal for assessing the conduct in issue in this case involved no error of law. Particular 1 57 This is the Particular to which we have drawn some attention in discussing appeal grounds 2 to 4. It related to comments critical of the judge's ruling that likened the situation in the Court room to that of the Un-American Activities Committee, Star Chamber and made reference to 'horse trading'. 58 Appeal ground 5 deals with alleged errors in respect of this particular. '5. The Tribunal erred in law in finding the barrister's statements the subject of Particular 1: (a) were not made in the course of a submission; (b) had no factual foundation; (c) were not justified having regard to the circumstances and context in which the statements were made including the conduct of the trial judge and further erred in law in holding that there was "room for argument that the rulings of Her Honour concerning whether the trial should be in public were not correct" when the Court of Criminal Appeal in R -v- Dyers (24 October 1997) had previously decided such closure constituted "a serious error, and had there been convictions, it would have provided grave concern'; (d) as to Particulars 1.1 and 1.2 were bound to cause offence to the trial judge; (e) as to Particular 1.3 was intended to annoy and embarrass the trial judge and amounted to an attack upon her integrity; and (f) constituted "unsatisfactory professional conduct".' 59 As to the matters alleged in Particular 1, the Tribunal said at pp 19-20: '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 that the judge was making inconsistent rulings. However none of these matters separately or together entitled the barrister to make these remarks. Furthermore, he was an experienced criminal trial barrister, with 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.'