New South Wales Bar Association v di Suvero

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:

1. were discourteous to the Court and disrespectful to Her Honour;
2. 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:
3. were offensive or insulting to;
4. questioned or attacked the integrity of;
5. displayed a lack of professional courtesy to;
6. 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:
7. 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;

60 None of the matters itemised at (a) to (e) give rise to a question of law. Each is an attack on the fact-finding process of the Tribunal. There is no substance to this ground of appeal. Particular 3 61 This is the particular that relates to comments directed at the conduct of the Crown Prosecutor. The five items particularised all involved statements addressed to the judge in which it was alleged that the Crown Prosecutor had engaged in improper conduct either in relation to steps he was taking in the case or in challenging steps the barrister was taking. 62 Appeal grounds 6 and 7 deal with alleged errors in respect of this particular. '6. The Tribunal erred in law in holding that the barrister's use of the word "improper" subject of Particular 3 was:- (a) capable of imputing dishonesty to the Crown Prosecutor; (b) did, in the circumstances and context properly construed, suggest unfairness and dishonesty on the part of the Crown Prosecutor; (c) was, in the circumstances and context, deliberately and intentionally offensive to the Crown Prosecutor; and (d) constituted "unsatisfactory professional conduct". 7. The Tribunal erred in law by failing to state its reasons on material questions of fact, its understanding of the applicable law and its reasoning process when making its determination of "unsatisfactory professional conduct" as to each of the Particulars involving the use of the word "improper".'

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.'

71 The barrister agreed at the Tribunal hearing (see p 30 of the reasons) that he should not have attributed an ulterior motive to the Crown Prosecutor. The Tribunal's reasons continued: '[The barrister] 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 make a remark which was indefensible in the circumstances. In our opinion the remark made in the context in which it was amounted to unsatisfactory professional conduct.'

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.'

77 The Tribunal then recited relevant passages from the barrister's affidavit, in which he sought to explain his conduct. 78 The Tribunal then dealt generally with the whole of particular 7: '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. Furthermore, the remarks, in our opinion, were insulting.'

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".'

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.'

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.

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