The Prothonotary v Del Castillo

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1 MASON P: I agree with Heydon JA. 2 PRIESTLEY JA: This case was unusual. The Prothonotary applied in 1999 to have the name of Mr F. del Castillo removed from the roll of New South Wales legal practitioners. The grounds of the application were all connected with events which led to Mr del Castillo being tried, in 1992, for murder. The jury's verdict at the trial was "not guilty". 3 The hearing of the Prothonotary's application in this court developed in such a way that the issues were limited and the evidence concerning them was restricted in the way described in Heydon JA's reasons. Questions relating to Mr del Castillo's good fame and character had necessarily to be considered by this court by reference only to the issues litigated and the actual evidence before it. Heydon JA has set out in detail his reasoning and conclusions on those matters. I agree with what he has said. 4 Taking a more general approach, on the materials before the court the picture was as follows. There was no suggestion that before September 1991, when Mr del Castillo was involved with the death of Mr Wilder, that Mr del Castillo was not of good fame. Nor is there any suggestion that from the date of his acquittal on 17 February 1992 until the date of his application in 1998 for admission in New South Wales he behaved otherwise than as a man of good fame and character. Indeed, on the evidence concerning his behaviour and activities during that period looked at in isolation, the only possible conclusion is that at the time of his application for admission he was positively of good fame and character. Having considered the evidence of events since his application for admission and having watched and heard him giving evidence and being cross-examined in this case, I do not think anything done since his application for admission has detracted from his good fame and character. 5 That leaves as the only matters upon which the Prothonotary can rely as showing that his name should be removed from the roll those matters from September 1991 to February 1992 which were alleged in the Prothonotary's summons and litigated in this court. When I take into account the evidence of Mr del Castillo's character before September 1991 and after February 1992, in conjunction with the fact that he was acquitted at his trial, I do not think the Prothonotary has shown even a prima facie case justifying the removal of Mr del Castillo's name from the roll. 6 In my opinion the order proposed by Heydon JA should be made. 7 HEYDON JA: Background This is an application for an order that the name of the opponent be removed from the roll of the Supreme Court of New South Wales. He was admitted as a legal practitioner on 17 July 1998. 8 The claimant contends that the opponent was guilty of professional misconduct as defined in s 127(1)(b) of the Legal Profession Act 1987, namely: "conduct … occurring otherwise than in connection with the practice of the 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". 9 The opponent was born on 7 March 1937 in the United States of America. In 1965 he was honourably discharged from the United States Air Force after service in Vietnam. In that year he visited Australia for a few months. He then obtained a Bachelor's and a Master's degree from the University of Hawaii. 10 On 12 February 1977 he married Susan Killion (Mrs Killion). The marriage produced three children. 11 In 1987 the opponent and his family came to Australia and began to live here permanently. 12 On 1 July 1991 the opponent separated from his wife. On the evening of 5 September 1991 the opponent went to the Banjo Paterson Motel, Narrabundah, to visit Christopher Kenneth Wilder ("the deceased"). The opponent had been a friend of the deceased for 26 years. 13 The opponent and the deceased began discussing the infidelities of the opponent's wife with the deceased and with another man. They began arguing. The deceased produced a knife owned by the opponent. They began struggling for the knife. In the course of the fight both men became injured by reason of the knife, and both men were bleeding. In circumstances to be examined in much more detail later, the opponent left the deceased's room and went to a police station at Civic. The motel staff summoned an ambulance, which took the deceased to Royal Canberra Hospital. The deceased died at about 9am on 6 September 1991. The opponent, who had already been charged with other offences, was then charged with the murder of the deceased on 6 September 1991. 14 On 18 November 1991 committal proceedings took place, and the opponent was committed to stand trial. 15 On 3 February 1992 the opponent's trial before Higgins J and a jury commenced. On 17 February 1992 he was acquitted. 16 It was common ground that the opponent must have been acquitted on the basis that the jury must have had a reasonable doubt as to whether the death was not accidental (i.e. was not intentional or was not the result of a voluntary act). In fact the claimant fairly accepted that the opponent should be treated in this application not merely as having benefited from the operation of the criminal onus and standard of proof, but as in fact being innocent of any crime. 17 The opponent pursued legal studies which he completed in 1997. On 22 April 1998 he was admitted to the degree of Bachelor of Laws by the University of Canberra. 18 On 10 June 1998 the opponent applied to the Legal Practitioners Admission Board for admission as a legal practitioner. Paragraph 2 of the Certificate of Character in Support of Application for Admission as a Legal Practitioner, which was dated 9 June 1998, stated: "I have not done or suffered anything likely to affect adversely my good fame and character, nor am I aware of any circumstance which might affect my fitness to be admitted to practise as a legal practitioner."

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The document was a pro forma document in that it had been supplied, presumably in the first instance by the Board, with blanks for the opponent's name, the opponent's address, the place of execution, the date of execution, the witness's name, and the opponent's signature. The opponent did not reveal the fact that he had been charged with and acquitted of murder, and he did not reveal any detail relating to those events. As indicated above, the opponent was admitted on 17 July 1998. 19 On 10 June 1998, the opponent had also made an application to the Board of Admission of the Supreme Court of the Australian Capital Territory as a legal practitioner. Again, he made no disclosure of the charge and acquittal. However, the opponent was sent certain requisitions about the trial, which he answered. On 23 July 1998 he received approval for admission. On 24 July 1998 the court which was to hear the opponent's application for admission, consisting of Higgins ACJ, Crispin J and Master Connolly, disqualified itself. Higgins ACJ had been the judge who presided over the opponent's murder trial, and Crispin J had appeared for the Crown. In due course the opponent's application was heard on 10 and 11 November 1998 by Miles CJ, Gallop J and Madgwick J. On 12 December 1998 they dismissed the opponent's application for admission. The primary reason for this course was that the opponent's status as a legal practitioner in New South Wales needed to be resolved before the merits of the opponent's application in the Australian Capital Territory could be determined. An appeal to the Full Federal Court was dismissed on 12 May 1999. 20 After the hearing on 10 and 11 November 1998, by letter of 17 November 1998 to the New South Wales Board, the opponent disclosed the charge and acquittal and referred to prior legal advice that he had not been obliged to do so before admission. On 23 November 1998 the Board acknowledged receipt of the letter of 17 November 1998. On 15 December 1998 the Board wrote and asked for "all relevant information also the facts and circumstances relating to the charge and full details of proceedings against you". On 20 January 1999 the opponent sent a closely typed three page letter in response, enclosing among other things the transcripts of the committal hearing and of the trial. On 1 June 1999 the Board wrote a letter to the opponent in which it said: "The Board has referred your file to the Acting Prothonotary observing that it was not concerned that you had failed to disclose (since you had legal advice that you need not disclose), but that the matters which were not disclosed may, if they had been disclosed, [have] affected adversely the Board's assessment of your fame and character". 21 On 29 October 1999 a Summons seeking the order now sought was filed. On 10 March 2000 the Amended Summons was filed.

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That the conduct of the Opponent following the stabbing of Christopher Kenneth Wilder in leaving the scene concealing the whereabouts of the weapon used and not ensuring appropriate assistance was rendered to the deceased was inconsistent with his being a person of good fame and character." 23 Ground 4 need not be set out, since it was abandoned at the start of the second day of the hearing before the court. The court noted on the first day of the hearing that paragraph 3 could not be treated as an independent ground supporting the application, essentially because it had not been particularised before the hearing, and the "particulars" supplied orally during the hearing were contradictory and confusing. 24 For that reason, the opponent has not been heard on the appropriateness of his having failed to disclose the charge and acquittal when he applied for admission to this Court. Accordingly it would not be right to state a concluded view on that subject. There is material strongly supportive of the view that the opponent's conduct was innocent in the sense that it was based on legal advice. Further, it must be viewed in the light of the fact that the opponent was making simultaneous applications in two jurisdictions, in one of which there would have been no point in concealing the charge because of its notoriety, as the claimant conceded, in Canberra legal circles. The principles determining when applicants for admission should disclose charges of which they have been acquitted may one day call for consideration, but it is not necessary or desirable to consider them in the present case. It is sufficient to note that in general the prudent and desirable course for persons in the position of the opponent in future would be to disclose at least the fact of the charge and the acquittal and to offer to supply any further details required. 25 Underlying ground 5 were two complaints. 26 The first complaint underlying ground 5 was that when the opponent went to the police after leaving the motel, he told them that he had thrown the knife which had been used in the fight into Lake Burley Griffin. That was untrue to his knowledge. He later said that he had placed it on top of a water heater outside the motel. According to the evidence of two police officers at the murder trial, it was found behind the heater the next day, and removed only with some difficulty. 27 The second complaint underlying ground 5 was that the opponent told his solicitor the day after his arrest that he had brought the knife to the motel, whereas in fact, to his knowledge, he had not. He did not reveal the fact that he had lied in this respect to his solicitor and to his counsel until the latter raised the issue during the trial. 28 In relation to these two complaints the opponent did not deny before this Court, or indeed before the jury in 1992, that his statements were lies. Matters were factually more complicated in relation to the two complaints underlying ground 6. 29 The first complaint underlying ground 6 was that the opponent had concealed the knife by placing it where it was found - that is, in a place where it was not immediately obvious to view. This the opponent denied; as has just been seen, he said he placed it on top of a water heater. 30 The second complaint underlying ground 6 was that the opponent had failed to telephone for an ambulance, had failed to procure the motel management to supply medical assistance either from guests at the motel or by calling for outside help, had failed to examine the deceased's wounds, and had left the motel room. While the opponent admitted these allegations, there was a substantial controversy as to what the opponent's perception of the deceased's condition was.

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The Evidentiary Position Before This Court 31 The inquiry which this Court must undertake is controlled by four cardinal matters. 32 The first is that the claimant could have contended that the opponent was in fact guilty of murder or manslaughter. There was no res judicata, issue estoppel, doctrine of autrefois acquit or other rule of law preventing it from doing so: Law Society of New South Wales v Weaver [1977] 1 NSWLR 67 at 72-74 and 76-77. An acquittal does not inhibit disciplinary proceedings arising out of the same facts: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635-636. But the claimant chose not to contend that the opponent was guilty of the crimes of which he had been acquitted. Indeed, as has been seen, the claimant conceded that this Court should proceed on the basis that the opponent was innocent. 33 The second cardinal matter was that even on the limited issues before the court, the claimant did not seek to call any witness who had given evidence in the murder trial. 34 The third cardinal matter was that the claimant tendered, and the court admitted, the whole of the opponent's evidence at the murder trial. It was admitted without any limitation on the legitimate uses to which it might be put. 35 The fourth cardinal matter was that the claimant tendered the whole of the rest of the transcript of the murder trial as evidence of the truth of the matters asserted in it. After argument, the court ruled that that part of the transcript would be admitted, but on three limited bases only. First, it was admitted as evidence of what was disclosed to the Board under cover of the letter of 20 January 1999: as such, the material went to the limited issue of the extent of disclosure. Secondly, the material demonstrated the issues at the murder trial so far as they were relevant to grounds 5 and 6 of the Amended Summons. The third basis was that evidence of witnesses other than the opponent would be admitted pursuant to s 190(3)(a) of the Evidence Act 1995. That provides: "In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if: (a) the matter to which the evidence relates is not genuinely in dispute …"

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Among the provisions mentioned in s 190(1) are the provisions regulating the admission of hearsay evidence. It was left to the parties to indicate which parts of the transcript were tendered on this basis. 36 The claimant relied on the evidence of witnesses other than the opponent (in particular the deceased's parents, but also the manager of the motel, his wife, the motel receptionist, police officers, other guests and an ambulance officer) as to the condition of the deceased shortly before and after the opponent left him. Except in so far as that evidence is to the same effect as that of the opponent, and in particular to the extent that it indicates that the deceased was in a worse condition than was indicated by the opponent's evidence, it was genuinely in dispute. Some of it was in dispute in the criminal proceedings. The fact that much of it was not in dispute in those proceedings in the sense that it was not the subject of cross-examination does not prevent it being genuinely in dispute in these proceedings. 37 The complainant also relied on the evidence of Dr Jain as to the nature of the deceased's injuries. Their objective nature was not genuinely in dispute, and this evidence is admissible. The opponent's perception of the deceased's injuries differed from their objective nature, and while Dr Jain was in a much better position to ascertain their objective nature, many of the injuries were covered by the deceased's clothing and invisible to the opponent. Accordingly, though admissible, Dr Jain's evidence does not go very far. 38 The effect of the evidentiary position was that, subject to any adverse view of the opponent which might be formed either as a result of considering his credibility while giving evidence to this Court or because of the inherent improbability of any part of his evidence at the murder trial, his version of events stood without effective contradiction or qualification. This followed from the fact that there was no limitation in relation to the reception of his evidence at the murder trial, and the fact that the evidence of persons who might contradict his version of events was admitted only for the limited purposes described. To some extent the opponent's version of events was supported so far as the evidence of other witnesses at the murder trial was to the same effect as his: their evidence was admissible because to that extent there was no genuine dispute between the parties. 39 The consequence of the evidentiary position just described is in a sense unsatisfactory, however. Aspects of the opponent's behaviour just after the deceased was wounded and in the ensuing days had to be examined, but only against a constricted background and with the aid of light highly refracted through an unusual prism. In ordinary circumstances, a court asked to consider the opponent's state of mind from the time when the fight ceased and from the time when he left the motel would be able to take into account all relevant events up to those times - not only the opponent's version of them, but the version which might be inferred from the evidence of other witnesses. Yet the only material which can be considered in evaluating the opponent's mental state is that which he has placed before the jury at the murder trial or before this Court, together with anything else from the murder trial which supports it. Further, the examination of the evidence must be conducted bearing in mind the claimant's concession that the opponent was innocent of the crimes charged. 40 Whether satisfactory or not, however, that position is the necessary outcome of the narrow issues propounded by the claimant, the claimant's failure to tender more evidence, and the opponent's objections to the evidence which was tendered. It is not intended to criticise either party for the stand they took. It is understandable that the complainant selected narrow rather than broad issues, and understandable that an endeavour to call witnesses from the trial, nine years later, would present extreme practical difficulties. And whatever the appropriate role of persons in the position of the opponent towards the court, there can be no criticism of the opponent, particularly in view of his entry into the witness box, for requiring that the evidence against him comply with the strict rules of admissibility.

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The Events of 5 September 1991: The Background 41 It is convenient to take the allegations against the opponent in chronological order: first, the leaving of the deceased at the motel on the evening of 5 September 1991, then the alleged concealment of the knife a very short time later, then the lie about throwing the knife into the lake some minutes later, and finally the lie to the opponent's solicitor a day later about having brought the knife to the motel room on the evening of the fight. 42 At the outset, however, it is desirable to set out the background. After earlier attempts that day to visit the deceased at the motel, at about 8.30pm the opponent found the deceased in his room. The opponent was weary and had influenza. He wanted to discuss what the deceased had said to his parents about the affair the deceased was having with the opponent's wife. They drank beer and whisky. For about an hour and a half they discussed the relations of the opponent's wife with the deceased and with another man, but also other things. The conversation was intermittently, but not always, acrimonious. The deceased then produced a knife owned by the opponent. The opponent grabbed for it. It fell to the ground. The opponent leaned over to pick it up, while the deceased grabbed for it. They pivoted and fell on the bed, with the opponent on top. The opponent gave the following evidence of what then happened (635.2-9): "Well, you go on? When we fell down I ended up with my arm around him and he was on his back and with his left hand he snatched the knife. He had the knife completely. I don't know if he grabbed the blade or the handle. I knew that it was easily taken. I was in a panic and I grabbed his wrist. I hung onto his wrist for all dear life. I just didn't like - it's a huge knife and it seemed much bigger. On his back he slid to the - he slid on his back to the centre of the bed. I went with him and scurried and scrambled for a position on top of him so that I was straddling him. The knife was over his head and my head was still on his wrist. It was bobbing around. By this time I was in a sitting position on his stomach and so I grabbed the blade of the knife with my left hand and I sat back and the knife ended up right on top of his chest pointed at me and we stayed in this position for a while. And when you say 'pointed at you' do you mean the point of it was pointing at you? Yes. It was straight up. Have you got any idea which part of the blade was pointing in which direction? I believe the cutting part, the sharp part was facing me and the blunt side was facing him. And what was happening then? Wait a minute, I'm not sure on that, okay. I don't know whether it was facing us or this way, right now. And what happened after that? We stayed in this position for a while. I asked him to let go and just to let go and that if he let go I'd leave. And it was just a stalemate position. We were both really wound up. The adrenalin was going and my heart was pounding a lot, and we stayed this way for a good minute. Nothing happened. What about the knife itself? Did it stay absolutely still during that time or not? Well, about a minute into it or two minutes, I don't know if Chris did it or it just happened in the point of struggling with it, the knife turned in a clockwise position, I think, and the blood began to flow down my hand, down Chris's hands and down the knife and onto his shirt. At that time things really began to change."

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(v) would not have left the scene …". 44 The opponent's evidence in chief to this Court was as follows (affidavit paragraphs 13-16): "13. Christopher Wilder had been my friend for about 26 years. He had come to Canberra and was staying at the Banjo Patterson Motel in Narrabundah. On 5 September 1991 at about 8.00 pm, I had gone to the motel to visit him. However, we had an argument. Mr Wilder had been having a relationship with my ex-wife and we argued about her fidelity. The argument turned into a scuffle. There was [a] fight between us involving the use of a knife. Both Mr Wilder and myself were injured. He was bleeding slightly from a wound to his side that occurred during a fall. I received wounds as I hung on to the blade of the knife out of fear of letting go. 14. As soon as we realised we were bleeding, we stopped fighting. I went outside to collect my thoughts. When I returned to the motel room, Mr Wilder was on the phone. After he hung up, he told me he had been talking to his parents. We then talked about what we should do. A conversation took place in words to the following effect: Del Castillo: We've both been hurt. I think we should go to the hospital. Wilder: No, I don't want to go to the hospital. I can't believe this. I have to be back in Sydney. What am I going to do about work? Del Castillo: Don't worry about that now. Let's go to the hospital. Wilder: I don't want to go. Del Castillo: Well, I am going to go to the police and then I'm going to the hospital - are you coming? Wilder: No, you go if you want to. 15. Mr Wilder did not say that he was in pain and the bleeding from his wounds was not significant. He was sitting on the bed and did not appear to be too distressed although every now and then he flinched. Emotions were charged but Mr Wilder appeared more concerned about missing work the next day than getting medical attention. Neither of us was aware or concerned that Mr Wilder might be dying. 16. I then decided that I would leave since I could not get Mr Wilder to agree to come with me. When I left Mr Wilder was alert and conscious. He didn't appear to be bleeding very much, if at all, and was talking on the telephone. I left, closing the door behind me." 45 The claimant made the following submission in opening (transcript 9 lines 19-50): "Mr Del Castillo's cross-examination … clearly shows that at the time he left the victim the victim was in extremis, he was bleeding, he was moaning, he was lying on a bed obviously seriously injured having been stabbed with a knife at a time when Mr Del Castillo didn't know the nature of the injuries that had been occasioned to him other than that he appeared to have been stabbed and he was bleeding. This is in a motel at Canberra where there's a receptionist and various people close at hand, the deceased rang his father after he'd been stabbed and said in effect, 'Dad, I'm dying, I've been stabbed by Frank'. That was the evidence of the deceased as to his condition at the time. Mr Del Castillo's evidence is that at that time he left him, the deceased was not in extremis but we say his evidence will clearly show no attempt to render proper assistance bearing in mind that this man was a friend of his, he'd known him for 26 years, he described in his affidavit to this Court as a friend and we say that that behaviour properly viewed, objectively viewed, if it was an accidental death which we for the purposes of these proceedings we accept, this is not the way that a person of good fame and character behaves when they have accidentally stabbed a long standing friend whether or not he was having an affair with their wife, if it was an accidental stabbing you do not leave a human being in that situation and leave him unattended without ascertaining the nature of his condition, staying with him and seeking appropriate assistance. He put out the light and shut the door. We say in the circumstances that's reprehensible conduct." 46 In his evidence in chief to the jury at the murder trial, after the opponent described how during the struggle the knife cut his hand, causing blood to flow down his hand, down the deceased's hands, down the knife and onto the deceased's shirt, as set out above, he said: "At that time things really began to change. I mean, the whole atmosphere was now very very frightening. I was frightened and I could see Chris was frightened too" (at 635.9).

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The evidence continued (635.9-637.2): "What happened after that? Well, I was still in this position and I told him to let go, that I was hurt and that I would get out of there as soon as possible. I told him I would leave, and try - I tried to keep the blade from twisting any more and - so that I wouldn't get cut, but that was about it. I sort of leaned back a little bit and I noticed there was blood on Chris's left side. And I told him, 'Chris, you're hurt as well.' We were both hurt. And, 'You gotta let go.' And he wouldn't let go. But I don't think I would have either, because we were both scared of the knife. Eventually we both calmed down a little bit, not a lot, but we both calmed down. We were very very tired from struggling with that position, and then he said it, that it hurt him. And after he calmed down he released the knife gently and I lifted it away. After he let go, I was overwhelmed with what happened. I was terrified and scared of all the blood, and just the idea of the knife. I was sorry for him, me, my family, everyone. I don't know, everything just rushed across. Chris expressed that he was very concerned over the blood. He couldn't see his own wound so he zeroed in on my hand and saw all the blood just gushing from my hand. I wanted to run away. I wanted to run away home. I was hot, very flushed, I remember and I wanted to cry. I told him that 'We got to take you to the hospital. I mean, you look more hurt than I am', and he was - started to moan by this time every now and then. But I didn't know whether he was more hurt or less hurt than I was. I just felt that we had to go to emergency or something. He said, 'No, no.' 'Well then, I'll call an ambulance.' He said, 'No, no, I'll do that.' So I says 'All right, do it.' I got up and went over to the sink and ran water over my big gash that you guys saw in that picture, and it was free flowing with blood, and I let it run under the sink to cool if off. I also had the knife, so I ran water over the knife and I remember running my finger on it. Can you recall why you did that? No. I just did it. I was watching Chris telephoning and it was just something to do. I don't know. I put the knife down and I went into the toilet and tried to relieve myself, but I couldn't. It was - I was too upset. I remember blood falling down in the toilet area, and then I decided to go outside because I was so flushed and hot that I decided to go outside to cool off. And by that time had you heard any conversation over the telephone from ---? Chris was talking to somebody, yes, but I don't remember who he was talking to. And when you decided to go outside, did you take the knife with you or not? Yes, I did. I went outside and stood beside my car. One time or another I believe I put the knife on top of the car. I accept now, that I put it on top of the water heaters as well but that part is very fuzzy. On top of the water heaters or ---? Well, whatever they were in that corner, I don't remember what they were. All right? My eyes were - I wasn't - cries - but my eyes were really watery and tears were coming down. It wasn't that I was sobbing, it was just continuous flow of tears. And after you had been out at your car, what happened then? I tried to collect myself. I tried to come together with all the survival training and everything that I have ever had but it didn't do any good. I was very, very upset, I was scared. Here was I was bleeding. Chris was bleeding. I didn't know what to do about the knife. I didn't know what that meant and I was thinking about getting Chris to the hospital." 47 The opponent then returned to the room. The evidence continued (637.6-638.5): "And then when you got back to the room, how far - did you go into the room? Yes, I went in the room. I believe that I stood in front of the bed near the TV set near the door somewhere. I told Chris, 'We have to go to hospital.' And what happened then? He still didn't want to go and it was - everyone tells me it was only 15, 10 minutes but it seemed like a long time and the ambulance seemed never to come. But anyway, I told him, I says, 'Well, Chris, I am going to go tell the police what has happened' and he said, 'Well, I won't tell' and I said, 'Yes, yes, you will tell but please don't make it a big story, you know. Don't play - I know you will play it for all it is worth.' Yes? And then he said, 'No, I promise' he promised and he promised that he wouldn't tell and that he was sorry and I said, 'Not as sorry as I am, Chris, not as sorry as I am' and he promised that he wouldn't tell and I told him that 'What did he mean by that?' Well, he said he wouldn't tell anything and I said, 'Well, we will get together couple of days and we will make up a story so neither one of us gets in trouble with the police.' He asked me for a drink of water and I remembered my wife telling me rules about not giving liquids to people in stress so I didn't, I told him why. He asked me if Susan was really seeing someone else and I said, 'What difference does it make, Chris?' and I actually said - I actually said, 'Here we are, both bleeding to death and you are worried about what Susan is doing. She couldn't care less about you or me'. And he said, 'You are wrong Frank, she loves you, she worries about you.' And I said, 'Chris that doesn't mean very much coming from you.' I told him that I was - no, no, before that, we went off on another tangent completely. He was worried about how long he would be out of work, he was worried about getting back to Sydney because he had to go to work on Monday. He was worried about his - he had some computer, he had something very important to do on Monday with computers and I told him, 'Well, I don't know how long you are going to be laid up' and so I told him 'I have to leave because Susan, I know, will be here and it will get ugly' so I told him I was leaving and I left. I remember closing the door, I don't remember locking it and I accept that what everyone else has said, that I turned off the light but I don't remember that either. Everything was very upset, my heart was still pounding away like crazy …". 48 In cross-examination the opponent described events from the end of the fight thus (676.2-677.4): "You told him you were hurt? Yes. He saw the blood coming down. Did he tell you he was hurt at any time? He did after I told him several times that he was bleeding and there was blood on my right side. He wasn't moaning or anything like that, no. He then released the knife, did he? Yes. What sort of condition was he in at that stage? I think we were both very exhausted and he just released it. Did you notice blood on his shirt at that stage? The blood that was from my hand, yes, sir. Blood from your hand on his shirt? Yes. You didn't notice any wounds to his chest? No, sir. Or any blood on his shirt that hadn't emanated from your hands? There could have been more blood. I was just - my concern was getting out of there. I wasn't looking at things that carefully. And he was obviously in a great deal of pain, wasn't he? Not obviously. Well, wasn't he moaning in pain? He started to moan after all the excitement and - yes sir. And then the two of you had a conversation? Yes, sir. And you say you offered to take him to the hospital? Several times, sir. And on each occasion he refused your offer? Yes. I take it you didn't actually try to ring an ambulance? No, I didn't because he said he would do it. Well, did you examine him to see how badly hurt he might be? No, sir. I was very excited then. My heart was pounding like crazy. I felt like running away. I didn't know what to do. Well, you got up I take it from the bed? Yes. And he continued to lie there? Yes. On his back? Yes. Made no attempt to get up? He sat back when he went to make the phone call, that's about it. What he moved himself back onto the bed, did he? Yes. And sit up? I don't recall that. I think he did. Half sitting, half laying." 49 A little later the opponent gave the following evidence (678.5-679.9): "You've offered to ring the hospital or an ambulance and he's refused? Yes. At that stage, you went over and washed your hand, didn't you? Sir? You washed your hand? Yes. I ran water over my wound. Prior to that, you'd already told Mr Wilder that he was hurt, hadn't you? Yes. Didn't you make any inquiry as to the nature of that hurt? No. Did you dry your hand on the towel? Possibly, yes, sir. You then rinsed the knife? While he was on the phone and the water was running in the sink. This was the knife and I went like that. That's all I did. Why did you do that? I don't know sir. And then you went to the toilet? Yes, sir. Do you remember - I think you said you remember blood falling down into the toilet area? Yes. Where was that coming from? My left hand. And was it at that stage you heard Mr Wilder talking to someone? Yes. Did you hear what he said? No. You came back out of the toilet, I take it? Yes. Make any examination of Mr Wilder's injuries at that stage? No. Did you ask him about them at that stage? No. Were you concerned about his condition at that stage? As I said before, this was a very, very stressful time. It was happening very, very fast. Yes and no I was concerned. Yes and no I was concerned for myself. Could you see blood on his clothing at that stage? I don't recall. I do remember seeing blood on the bed, that's it. I take it he was still lying on the bed when you came back out? Yes. Did you observe anything about the colour of his face? No. And did you ask him, 'Is there an ambulance on the way?'? No. Did you ask him that? No. Or anything like that? No. But I take it that although you may not have known the extent of his injuries, he obviously was injured? Yes, sir. And you walked outside, did you? Yes, sir. Was that because you felt hot? Flushed, hot and everything else, sir, yes, sir. But you didn't just walk outside the door, did you, you went all the way to the car? Yes." 50 The opponent then gave the following evidence under cross-examination about events after he returned from the car, five or ten minutes later (681.4-684.6): "It didn't occur to you to go back within that time to see how Mr Wilder was getting on? That's why I went back. You went back to look after Mr Wilder, did you? I went back to take Chris if I had to drag him to the hospital, yes. I see. What sort of condition was he in when you got back? He was on the phone. Did you hear any of that conversation? No. But he told you he'd been talking to his parents? Yes. He was just hanging up, or ringing up, or whatever. What sort of state was his voice in? I don't recall that, sir. What sort of condition did he appear to be in? He looked all right, I don't know. I was overly concerned with myself at that time, sir. I see. You didn't notice anything disturbing about his condition, lying on the bed? No, sir. And you had another conversation running for some minutes, did you? Not some minutes, I think it took about 30, 45 seconds. Right. Well, you had a conversation about you wanting to take him to the hospital? Yes. And about him still refusing to go, is that right? Yes. You had a conversation with him about making up a story to tell the police? Yes. You had a conversation with him about whether Susan was really seeing somebody else? Yes. You had a conversation with him about how long he was likely to have off work? Yes, but these were all - those conversations are almost verbatim and if you repeat them out, there was no lull or anything, it was just direct. You were back in the room, I think you said, some four to five minutes? You said that. I said 45 seconds. Well, I suggest to you that in your evidence in chief after lunch you said you went back for four to five minutes maybe? --- HIS HONOUR: No, it was 45 seconds to a minute? That's what I said, 45 seconds to a minute. MR CRISPIN: Thank you, your Honour. My note is obviously an error. HIS HONOUR: I can understand the error, it is very close. MR CRISPIN: Now, by then it was obvious, wasn't it, that this man was quite seriously hurt? Not so obvious, no, sir. Well, there were obvious blood stains on his shirt by then, were there not? Yes. And on the pillow case? Yes. And the bed? I remember on the bed, yes. And his condition was obviously a serious one, wasn't it? He was hurt and moaning and everything was happening very fast. As I said, I tried to explain my condition. I was very flush, my heart was pounding, I was excited. I didn't notice all these little things, no sir. I see. Well, I suggest to you that his condition was painfully obvious, wasn't it? You can suggest that, yes, sir. Were you in the room when you saw two people walk past, a man and a woman? Yes. And did you observe them look across to the doorway? Yes. And at the time that occurred I suggest to you his condition was obviously serious? I don't know, sir. I see. Did that occur while you were having these conversations with the accused - with the deceased? Yes. And after that period of approximately 45 seconds to a minute, had you obtained any assurance from Mr Wilder that an ambulance was on the way? I wanted to take him and he said that the ambulance was coming. That's all I heard. Right. And by then was he obviously bleeding heavily? I told you before I didn't notice those things. Right. And you didn't look? No. And you didn't stay to offer him any assistance or first aid? I wanted to get out of there before Susan came and cause all kinds of problems. Well, what made you think that your wife was coming? Pardon? What make you think your wife was coming? I had sort of guessed that he had called her. He was calling his mother. He was calling somebody - I'm sure he was calling Susan. And you thought that she might arrive before the ambulance, did you? Yes, it only takes two minutes to get from the house. And then I think you said - you said to Mr Wilder, 'Susan will be here. It'll get ugly'? Something like that. What did you mean by that? That she'd be hysterical and accusatory and everything else. And so when you left you had nothing in mind other than to avoid that confrontation with your wife, is that right? Yes. Was Mr Wilder on the phone again when you left? No. What was he doing? Just laying there, I think. So far as you knew, waiting for the ambulance? Yes. I told him them [sic] were people outside and that the ambulance was coming. Well, why did you tell him there were people outside? Because I could see people outside. Where were they? In the periphery of my vision, just like the two people that walked by. Well, there other people moved by then, were there? I think so, yes, sir. Did you speak to any of them? No. So you thought that help was at hand, is that the position? Yes, I did. But you walked out and locked the door? I don't remember doing that but I do remember closing the door, yes, sir. And you turned the light off? I have been told that I did that, yes sir. Can you offer any explanation, other than pure callousness for doing those things? Sir, I was walking around like a zombie, I didn't know what I was doing then. You see sir, I suggest to you that when you came back Mr Wilder said in a quite loud voice, 'No, no, don't, I will leave, stop. I will leave, it hurts, I will leave' didn't he? Are you saying he did this. I am suggesting to you that that is what Mr Wilder said? All right, go ahead. I beg your pardon? Go ahead. Yes. Well, that is what he said, wasn't it? I don't think so, no." 51 Later the opponent said (698.2-699.3): "Did you at any stage ever notice blood on your shirt? On my shirt? His shirt? Yes. Where was that? Right in front of him where it had gone down my hand and down his. That was in the middle of his chest, was not it? Since we were moving around it could have been in three or four different little spots. When you returned to the room did you notice any blood to the side of his shirt? No, sir. Did you notice any blood in the vicinity of that wound on the left hand side? No, sir. If you look at photograph 11 in exhibit 35? Yes, sir. I take it, if that blood was there, you did not see it? No sir. I think people had said that he had a towel over that side of himself. Now when you walked in on that second occasion, that is, after you had returned following this incident, Mr Wilder was on the phone? Yes, sir. And he told you he had been speaking to his parents? Yes, sir. I think you have heard his parents give evidence that he had in fact - that his voice had been strangulated and they could not recognise who he was initially? I believe so, sir. And he told you he was dying? I do not know, sir. But in any event you say, do you, that he put down the phone and you had quite a chat about a number of things? Yes, sir. And among that chat he told you he was worried about how long he would be out of work. He was worried about getting back to Sydney because he had to go to work on Monday? Yes, sir, he did. Is that right? Yes. You still say that happened? Yes, sir. His voice was reasonable [sic] clear, was it? That has always been a shocking thing. He was a conscious and alert and talking reasonably well. Reasonably well? He spoke very softly anyway, sir. You say his voice was not strained, do you? Every now and then but not - I could tell he was hurt, yes, sir. But there was nothing in his voice that gave you the impression that he might be seriously injured; is that right? No, sir, neither one of us thought he was dying." 52 There are two aspects of the claimant's submissions which must be put on one side at the outset. First, the claimant put submissions turning on a preference for witnesses other than the opponent called at the murder trial. To the extent that the submissions do turn on that preference, they must be disregarded, because the evidence of those witnesses is inadmissible for that purpose. Secondly, the claimant's submissions also to some extent contend that the opponent's evidence before this Court was "tailored" to "minimise the suggestion" that the deceased suffered "any great harm" and was inconsistent with his duty of candour in disciplinary proceedings. Though submissions of this kind may be legitimate in relation to the opponent's credibility, they should not be entertained as an independent ground in support of the orders sought unless the Amended Summons is amended further. No application to do this has been made. 53 The claimant submitted (para 13(a)-(l)): "It is now conceded by the Opponent: a) He did not telephone for an ambulance at all. b) He did not actually hear the deceased call one (see T90 line 41). c) He accepted (T85 line 10) that the deceased told him that he was hurt. d) He accepted that he did not examine him to see how badly he was hurt (T22[?]). e) It was obvious that the weapon was sharp and dangerous and had a pointed end (T85-6). (f) He took no steps to ascertain how far the knife had penetrated (T[85]). g) He took no steps to ascertain whether the deceased's wounds needed bandaging or tourniqueting (T86). h) He made absolutely no investigation or inquiry to determine where the wounds were or what their extent was (T 86). i) At T86 line 50 he made no investigation or inquiry as to the nature of Mr Wilder's hurts. j) At T682 at the trial he conceded that the deceased was hurt and moaning. At the trial (T683) it was put to him that the deceased was obviously bleeding heavily. A. I told you before, I didn't notice those things. k) At T676 he was asked this question: Q: Did he tell you he was hurt at any time? A: He did after I told him several times that he was bleeding and that there was blood on my right side. He wasn't moaning or anything like that, no.

[41]

When the opponent gave that answer he spoke with apparently deep emotion, and as it concluded he broke down. In my opinion, that emotion was not feigned and that distress was real. 55 The opponent submitted that the events complained of by the claimant took place in "very extreme circumstances". The opponent himself suffered substantial injuries causing profuse bleeding and was in a state of great stress and shock. The deceased appeared alert and conscious. He had been speaking on the telephone. He was half sitting and half lying against the bed head. He did not appear to be bleeding profusely or to be in severe distress: he seemed hurt, but not badly hurt. The opponent did not notice that the deceased was bleeding heavily. The opponent asked the deceased to accompany him to hospital several times, but the deceased refused. When the opponent left the room the deceased was alert and conscious and speaking on the telephone. The opponent went immediately to the police station, leaving a trail of blood confirming his own account of his wounds. On arrival he reported the stabbing, which was likely to have the result of an ambulance being summoned. When it came, the ambulance officer found the deceased to be conscious and able to speak (198). All these submissions appear sound. 56 The claimant in reply submitted that if the deceased's injuries were as non-mortal as the opponent allegedly perceived them to be, it could not be said that the circumstances were extreme. 57 There is no doubt that a reasonable person would have behaved differently from the way the opponent behaved on the evening in question. The opponent admitted that, and showed very great contrition about his behaviour. The events of the evening marked a great and extremely unusual crisis in the opponent's personal life. Those circumstances were so remote from those which a legal practitioner is likely to encounter in practice as not to be a safe guide to how the opponent would behave in practice. What was extreme about the circumstances was not the perceived nature of the deceased's injuries. The opponent's perception of them was clouded by his not implausible view that some of the blood on the deceased's shirt was that of the opponent. Rather what was extreme was the wholly unexpected way in which the deceased's injuries had come to be inflicted. A conversation over drinks had moved in a sickening, sudden and horrifying way to a desperate struggle causing bloodshed as a result of injuries to both men. The opponent's mental state and his judgment had become warped by the intense emotions which events had stimulated in him. The opponent was "in a panic", "really wound up", "frightened", "scared", "very tired", "overwhelmed", "terrified", "hot, very flushed", "very, very upset". His heart "was … pounding away like crazy" and "pounding like mad". He "thought I might even have a heart attack". "The adrenalin was going". He was "highly erratic, … frightened and scared …". He wanted to run away "like anybody would … from the tragic events, the knife, the blood, the ugliness" (92 lines 14-19). He was continuously weeping. Those characteristics of the opponent's condition led him to make a wrong decision about assisting the deceased. He accepted the deceased's word that an ambulance would be coming without ensuring that it or other effective assistance arrived. But the opponent's error of judgment in these circumstances does not evidence a present lack of fitness and propriety.

[42]

Lying About the Location of the Knife 58 The relevant parts of the opponent's request for particulars, and the claimant's answers, are as follows: "(a) Please identify the date, time and place that the Opponent allegedly concealed the 'whereabouts of the weapon'? At about 10.45pm on 5 September 1991 at the City Police Station Canberra. (b) How is it alleged that the Opponent concealed the whereabouts of the weapon? By misleading investigating police as to its whereabouts. (c) Where was the weapon found? On or about a heater behind a tank at the Banjo Paterson Motel. (d) Upon what facts and circumstances does the Claimant rely to allege the weapon was concealed? The Opponent misled investigating police as to its whereabouts. The knife was concealed behind two water tanks against the northern wall of the block of units - TP274. There was a small blood spot on the water tank - TP275.5. The knife was retrieved by the use of a piece of coat hanger wire from an inaccessible spot between the tanks and was too narrow a space to place a hand in between the water tank and the wall abutting it - TP317." 59 The opponent did not give specific evidence in chief to this Court as to what he did with the knife beyond saying that it was at the motel and that the police later discovered it there. In oral evidence-in-chief, this was expanded on: he said he left the knife on the flat top of one of the water heaters outside the motel room, about ten to twenty feet from the room and about two feet from where his car was parked (66 lines 40-52 and 71 lines 18-20 and 40-42). The tanks were about four or five feet tall (71 lines 15-16). The opponent made no admissions about having deliberately hidden the knife while under cross-examination at the murder trial (695.1-.5). 60 The claimant pointed out that at the murder trial the opponent gave the following evidence (680.1): "That part of what I did out there with the knife is very fuzzy. At one time I knew that it was on top of the car. I accept from what I've been told that I put them on top of the water heater. I don't remember water heaters out there, then I saw them the other day. And I'll accept that I threw the knife there somewhere."

[44]

Lying About Throwing the Knife Into the Lake 62 The relevant parts of the opponent's request for particulars, and the claimant's reply, are as follows: "(a) What conduct is it alleged constitutes the allegation that the Opponent lied to the investigating police? The Opponent told the investigating police a version of events which was incorrect concerning the disposal of the knife used in the killing. (b) When and about what is it alleged the Opponent lied to the investigating police? On 5 September 1991 in relation to the whereabouts of the knife and how it got there. (c) What conduct is it alleged constitutes the allegation that the Opponent misled the investigating police? The Opponent told Constable P Cossatz that he had thrown the knife into the [lake] - TP223.7-.9; see also TP639.9, TP640.1. On the same day he told Detective R Kelland that he had thrown the knife off a bridge - TP 431.9. On the following day when questioned by Detective Tait who sought further particularity as to whereabouts the knife had been thrown - TP437.9; TP438 [he] permitted the fiction to continue that the knife had been thrown from the King's Avenue Bridge. At TP700 the Opponent admitted the account of the knife being thrown in the lake was a lie. His evidence to Constable Cossatz that he had thrown the knife off the bridge would have been a lie - TP700.6. The knife was found behind a tank at the Banjo Paterson Motel - TP694.9-695.5." 63 The opponent's evidence-in-chief about the lie was as follows (affidavit, para 21): "I was tired and very confused. When the police questioned me about the whereabouts of the knife, I panicked and told them that I stopped on the King's Avenue Bridge and that I had thrown it in Lake Burley Griffin. In fact the knife was at the motel and the police later discovered it there." 64 The opponent also said (para 22): "The knife was mine. I had bought it in Hawaii some time ago but had left it at the family home. I had believed that my ex-wife had given it to Mr Wilder and just prior to the fight he had been taunting me about it. When the police questioned me I wanted to protect my ex-wife and keep her out of things. As stated above, I had a very close relationship with her and even though we were separated, I cared for her very much. …" 65 At the trial the opponent gave the following evidence about his initial contact with the police (638.9-639.4, 639.9-640.5 and 700.2-.5): "And when you walked into the police station what happened then? I walked into the police station and there's dais about this high. You mean a bench? A bench or a desk or something, I don't know what it is. I gave the police officer my wallet and keys and I told him that I was involved in a stabbing in Narrabundah and one of the voices from behind there said, 'Yes, we know about it, we've had your wife on the phone. Did you know that she called while you were there?' And then another voice said, "And what about the gun?' Immediately I thought, 'Chris start blabbing about everything' and I clammed up then because I didn't know what Chris was saying. So, someone told me to sit down and wait for him and that was what I remember. Well, do you recall before you had any conversation with detectives or things like that, do you recall having a conversation with a uniformed policeman while he was taking notes? Yes, that's after I sat down. Someone told me to sit down and then I sat down and officer Kossatz came. … Now, part that he wrote down which is now an exhibit, there was reference to you saying something about throwing a knife off the bridge, do you recall that you at some point said that? Yes, I did say that. Yes, I believe I said it. It was suggested, 'Did you throw it off the bridge or did you do something like that?' and I says, 'Yes' and then - I did say that, yes, I was trying to hide the whereabouts of the knife. I said that, yes. And at that time did you recall where the knife was? No, only that it was somewhere maybe back at the Banjo Patterson, that's all. I was - somewhere on top of my car or somewhere there, yes sir, that's all I remember. I wasn't sure. At that time when they asked me I wasn't sure whether I had it or not. It's very fuzzy, I didn't know what happened to the knife, that part escapes me. By that time were you particularly worried about your hand? Well, it was still bleeding and there was a heavy numbness over everything. I was concerned about it but I was too pre-occupied with everything that was happening and that was incidental, almost. And did you ever give the police your account of what took place, similar to what you've just done today? Oh, no. Why was that? Well, initially, because I've promised Chris and - initially, because I'd promised Chris and because I'm American and I'd been taught all my life that you don't give evidence against yourself, ever. You don't say anything about yourself. An innocent man never has to defend himself. … And you told him, didn't you, that you'd probably thrown the knife in the lake? Yes, sir, I did. That, I take it, was a deliberate lie. Is that right? It was a suggestion that I hung on to, and I just perpetuated it, yes, sir. Well, when you say it was a suggestion that you hung on to, it was a suggestion that you made to Mr Kossatz that you knew to be a lie. Isn't that right? Someone said, 'Did you throw it in the lake.' And I said, 'Possibly, yes.' I accept that I said that. I don't recall it like I recall some things. It certainly wasn't true, was it? No sir, it was not true. But I don't know." 66 He did not admit repeating the lie to Detective Constable Kelland or Detective Constable Tait (700.5-701.1). The other evidence relied on in the particulars is inadmissible on that issue. 67 The claimant submitted that there was no doubt that the opponent had lied to the police about throwing the knife into the lake. At the time the lie was told the opponent did not know that the deceased was still alive. "The importance of the false information concerning the whereabouts of the knife should not be trivialised as a panicked response or a response to stress. The consequences of the wounding of Mr Wilder were potentially very serious for the Opponent. The failure to tell police of the true location of the knife could be seen as a deliberate act to buy himself time, especially as he did not at any time correct the lie and the real truth only emerged when the knife was found by police."

[45]

In relation to the opponent's contention that he lied because he wished to protect his wife, the claimant submitted: "It is now conceded that the wife was not a compellable Crown witness. She co-operated with the Crown authorities when she did not have to do so by giving evidence against her husband. It is difficult to reconcile this with the Opponent's stated need to 'protect' and clearly reflects adversely on his credit, particularly as his barrister cross-examined her as to her prior sexual history …." 68 It must be accepted that the opponent's evidence that he lied about the disposal of the knife in order to keep his wife out of the case is difficult to understand when considered now. However, in the stress and emotion of the period immediately after leaving the motel the opponent may have thought that lying to the police would assist his wife in some way which is now hard for him to articulate and for others to grasp. In one sense the claimant's criticism of the opponent's evidence about protecting his wife was inconsistent with another theme in the claimant's submissions to the effect that the motivation and character of the conduct did not matter, since it was enough that the lies were lies about important matters in an official investigation and prosecution. 69 Does the admitted lie reveal a present unfitness? In assessing its significance, it must be remembered that the opponent went to the police voluntarily: this conduct was inconsistent with an intention to obstruct them. By telling them there had been a stabbing, he placed himself at the centre of their inquiries. The lie was against interest in the sense that it did connect the opponent with the knife, for to admit disposal was to admit prior possession in circumstances where the opponent could have distanced himself from the knife by denying any possession of it. The claimant's version of affairs is, or must be, that the knife was the opponent's, was not brought to the motel by him, and was produced unexpectedly by the deceased. If that version were sound, the opponent would have been better off not going to the police, or saying nothing: to tell the lie he told moved him even nearer the centre of an investigation than he would otherwise have been. To dispose of a weapon used in a killing or in inflicting grievous bodily harm was likely to be seen by the police as a damning admission by conduct. The claimant submitted: "[The opponent's] attendance at the police station is … somewhat inconsistent with the conversation that he says occurred between him and the deceased in which they agreed not to tell the police about the circumstances. His presence at the police station is difficult to understand."

[47]

Lying To Solicitor 72 The particulars requested by the opponent, and the answers given by the claimant, are as follows: "(e) What conduct is it alleged constitutes the allegation that the Opponent lied to his Counsel? The Opponent told his barrister that he bought the knife to the room on the night of the killing - TP653. At all material times until the time that the Opponent realised that he was going to have to get into the box and give evidence about it [sic]. (f) When and about what is it alleged that the opponent lied to his Counsel? Between 5 September 1991 and 13 February 1992 the Opponent lied to his Counsel about his having taken the knife to the Banjo Paterson Motel. (g) What conduct is it alleged constitutes the allegation that the Opponent misled his Counsel? The Opponent did not initially instruct his Counsel about what actually occurred on 5 September 1991. (h) When and about what is it alleged that the Opponent misled his Counsel? Between 5 September 1991 and 13 February 1992 the Opponent misled his Counsel about having taken the knife to the Banjo Paterson Motel." 73 The opponent gave evidence soon after his arrest (affidavit, paras 23-26): "23. I prepared a statement for my solicitor, Mr Hockridge, which indicated that it was I who had brought the knife to the motel. This was not true. Mr Wilder brought the knife to the motel but I said this because, as stated above, I was trying to keep my ex-wife (and also my family) out of the investigation and the media attention. I believed that my wife had given the knife to Mr Wilder and I did not want to involve her or her affair with Mr Wilder in the matter. 24. In February 1992, just before the trial, my barrister, Mr Ben Salmon QC made a comment about how I had taken the knife to the motel. I did not correct him. Nothing was asked of me directly and I did not respond. Again, I was trying to keep my ex-wife's involvement in the matter to a minimum. 25. However, as it transpired, my ex-wife gave testimony at the trial for the prosecution. After that it was brought home to me that my wife was already involved and that there was no longer a need to try and keep her out of the picture. I then told Mr Salmon QC that I had not brought the knife with me to the motel. He said to me words to the effect of ' I never thought you did '. 26. When questioned on this matter at the trial I gave truthful evidence about all matters, including how the knife came to the motel and what happened to it after the scuffle." 74 The opponent's evidence at the murder trial was as follows (652.1-2, 652.3-9 and 653.5-654.1): "Do you remember that when this trial started, Mrs Killion gave evidence during the afternoon of the first day? Yes, sir, I do. Do you remember that Mr Salmon cross-examined her on the afternoon of the first day? Yes, sir, I do. … She left the witness box without the faintest suggestion ever being put to her that she had given the knife to Mr Wilder, hadn't she? Yes, sir. And then you remember on the third day, she had to be recalled and at that stage that suggestion was put? Yes, sir. Now, that suggestion was put for the first time, I suggest, on the third day of the trial because you hadn't thought it up before then. Isn't that the case? No, sir. It's not? Repeat the question. Yes. I suggest to you that the suggestion that Mrs Killion may have given the knife to Mr Wilder was put to Mrs Killion for the first time on the third day of this trial? Yes, sir. You agree with that, don't you? Yes. And I suggest to you that it wasn't put earlier because you hadn't thought up such a suggestion prior to that? I did not think up such a suggestion, sir. You say that wasn't a suggestion that was your idea. Are you? … When the trial started, yes, I hadn't instructed my barristers on what actually happened. I had to twist Mr Salmon's arm to keep him from admitting that I had brought the knife to the motel room because it was not true. He wondered about it at the time but went along with it. From the beginning I never wanted my wife to be involved in this craziness and so I had told them that I had brought the knife to the room and that I would go [to] trial with that. Mr Salmon, on the first day that he questioned me, said, 'How are you going to explain to Mr Crispin hiding that knife or keeping it in your pocket? How did you get that in the room, it's so big? I didn't know how big it was. I forgot. And that frightened the hell out of me because I hadn't remembered how big the knife was. I let it go, then they said they were going to go look at the evidence and I panicked again because I realised that I had done something that was done after the fact and that one of them would pick it up and it was - that when I went out from the hotel room and stood beside my car I tried to figure out, well, how can I say that I brought this knife, where am I going to hide - how can I hide a knife that big, and I - it wouldn't fit anywhere in the clothes I was wearing, and so I decided to put it in my back pocket and it would not fit, it was too big, so I made a hole in the back pocket. Unfortunately Mr O'Connell found blood in that little hole and my whole story began to unravel and then he said that Miss Judd, my psychologist that was appointed by the veteran's administration, was going to give testimony, and she knew the story, she knew it from the beginning, and so I had to tell Mr Salmon the whole truth and that's what happened." 75 He also said that the lie he told his lawyers was one which he had originally intended to tell the police, but did not (655.1-3): "Well, why did you want to put the knife in your back pocket at all? As I said, I was trying to compose a story where I would bring the knife. How much time had elapsed between the time that Mr Wilder had been wounded and the time that you tried to compose a story to the effect that you took the knife to the motel? I went outside and it wasn't a very good story and I was in a panic and - I don't know, 10 minutes. Now, you never told the police that you took the knife to the motel, did you? No, sir. Well, at the time you made up the story did you intend to tell the police that? Yes, I did, sir. Well, why didn't you? Because I went in and we talked - I talked to Chris and we decided to tell the police nothing." 76 Finally, he said (696.5-9): "It was your intention to tell lies on oath about having taken the knife to the motel, is that right? No, it was my intention not to say anything, Mr Salmon twisted my arm to take the stand. Mr Salmon twisted your arm to take the stand? Yes, sir. I see. So, you're only giving evidence because of pressure exerted by Mr Salmon, are you? No, sir, they said that the custom here in Australia is to give evidence more often than not to say anything. I chose not to say anything, that would've been my first choice. I see. But in any event, it was your intention, was it, that if you did give evidence you would tell lies about having taken this knife to the motel? The point is, sir, I did not lie to the jury. That's not the question, Mr Del Castillo. I asked you whether it was your intention if you did give evidence ---? It was not my intention because I did not do it." 77 To a considerable degree the claimant's submissions attacked the satisfactoriness of the explanation given by the opponent for his conduct so far as it turned on protecting his wife. As has already been said, the explanation is hard to understand from a sober and logical point of view, but the opponent's evidence may well reflect some aspect of the confused thought processes of the opponent on the night in question. It must be remembered that the lie was not one thought up a considerable number of hours after the event, but was thought up almost immediately after the fight had stopped as one which was to be told to the police, though it was not in fact told to them but to his solicitor. 78 The claimant submitted in addition: "The very fact of making the statement in writing concerning a most serious matter goes to the deliberate and intentional nature of the lie. That statement was briefed to his counsel and formed the basis of a decision about how the trial should be conducted. Mr Salmon's affidavit of 16 June 2000 indicates that he formed the opinion, having been briefed with the statement, that he had serious doubts about Mr Del Castillo's version of events. Mr Del Castillo's reasons for the false account, it is submitted, are unconvincing and show a want of candour on the part of Mr Del Castillo concerning the events … It was Mr Del Castillo's apparent intention not to inform his legal advisers of the lie until Mr Salmon indicated that it would be necessary for him to go into the witness box, at which point certain difficulties concerning the knife had become apparent: see cross-examination at T696. Whatever Mr Del Castillo's assessment of where his best interests lay concerning … his … admitted untruths to his legal advisers, his attitude demonstrates a flexibility concerning the truth which we would submit is indicative of the flexibility of the standard of truthfulness which is unacceptable in a legal practitioner." 79 The most striking feature of this lie to the solicitor was that it was against interest. The claimant accepts that the true position is that though the knife was the opponent's, he did not bring it to the motel: somehow the deceased had obtained possession of it. To have told the truth would have been much more favourable to the opponent's interests than to have told the lie. The statement that he brought the knife to the room was capable of supporting an inference that he did so with the intention of wounding or killing the deceased. The lie was even less self-serving than the lie about throwing the knife into the lake. Like it, it was the product of a mind at the end of its tether. 80 In further written submissions the claimant drew attention to the following evidence before this Court: "Q. And if it suits you, sir, you would lie if it's necessary to protect your family, will you? A. I will do anything for my family. Q. Including telling lies, is that right? A. I have lied. I don't know if I'd lie again (98 line 25)."

[54]

(c) Misleading the court about Mr O'Donnell's role in reporting the charge and acquittal to the New South Wales authorities after 24 July 1998? 87 The next matter which the claimant relied on was the subject of the abandoned ground 4. At the admissions hearing before the Supreme Court of the Australian Capital Territory on 11 November 1998, the opponent said that he had not disclosed the charge and acquittal to the Supreme Court of New South Wales after 24 July 1998, when his counsel Mr O'Donnell told him to do so, because he wanted to wait until the result of his application for admission in the Australian Capital Territory was known so that it could be included in his communication to the New South Wales authorities. On the other hand, in his affidavit in this Court he said that the reason for the delay was that Mr O'Donnell told him that "he would take care of it and would look into what was required" (paragraph 38). In cross-examination before this Court it was put to the opponent that the true position was that no communication took place because of the opponent's failure to instruct Mr O'Donnell to make it, not because of Mr O'Donnell's failure to make it. 88 The contrast between the two positions is made less stark by paragraph 39 of the opponent's affidavit: "I did not get any sense that this task was urgent as I had no intention of applying for a practising certificate in New South Wales at that stage. In any event I understood from what Mr O'Donnell had told me that he would be taking care of the matter for me, making the appropriate inquiries and getting back to me." 89 At a time before the claimant abandoned ground 4, the opponent's counsel read an affidavit of Mr O'Donnell which was supportive of the opponent's version of events. That affidavit was not put to the opponent in cross-examination. The affidavit, and other like material, was read by counsel for the opponent on the assumption that ground 4 remained, and the court ruled that if ground 4 went, the court would put the material out of its mind (62 line 48-63 line 24). It follows that Mr O'Donnell's affidavit is not now evidence. The claimant should not be permitted to rely on a supposed contradiction between what the opponent told this Court and what he and Mr O'Donnell told the Supreme Court of the Australian Capital Territory, where Mr O'Donnell's version is not in evidence, where the opponent denied part of what the claimant would contend passed between him and Mr O'Donnell, where there was no evidence directly contradicting the opponent's version on a matter of credit, and where paragraph 39 of the opponent's affidavit offered a resolution of the competing possibilities, namely that Mr O'Donnell was to make preliminary inquiries before getting back to the opponent for instructions.

[55]

(d) Lying about the preparation of the opponent's affidavit? 90 The claimant submitted that the opponent told his counsel in evidence-in-chief that when he prepared his affidavit he did not have access to the trial transcript. The claimant pointed out that nevertheless the opponent "annexed a page of the transcript to his affidavit" as Annexure "A". The claimant said in evidence to this Court that he had prepared the affidavit "by myself", and in re-examination he said that the affidavit was in his words but before he swore it he had the benefit of legal advice. The claimant submitted: "It is very difficult to accept that the Opponent did not have access to the trial material in the initial preparation of his affidavit. Alternatively, it is hard to explain why he would have annexed Annexure 'A' and not all the parts of the trial transcript." 91 The proposition that the opponent "annexed a page of the transcript to his affidavit" would only be supported by evidence if paragraph 17, which stated that Annexure "A" was annexed, was in evidence, or if the opponent had admitted the proposition in cross-examination. Paragraph 17 was not read (because the page it annexed was already in evidence as part of the claimant's tender of the whole transcript): 62 line 50. The opponent made no admission in cross-examination. Of course anyone who examines the affidavit can see that Annexure "A" is annexed. But it is not a mere exercise in pedantry to reject the criticism which the claimant has made. The opponent may have had some explanation for why Annexure "A" was annexed and that explanation may have been consistent with the proposition that he did not read the whole transcript before preparing the affidavit. It may be, for example, as the opponent's counsel submitted, that in saying that he had not read the transcript, all that the opponent meant was that he had not read the transcript of his own evidence, and that Annexure "A", which is part of Dr Dyason's evidence, was annexed on legal advice. The opponent cannot be criticised for having failed to advance those or any other explanations since he was not asked to give explanations, and in all the circumstances the criticism put forward should be rejected.

[57]

Conclusion 97 In general the claimant submitted that the four incidents complained of revealed a continuing lack of good fame and character. The claimant submitted that the second, third and fourth matters revealed a "preparedness to deceive and continue a deception", which was "evidence of unfitness and lack of good fame and character". It was submitted that the alleged concealment of the knife and the two admitted lies to the police and to the opponent's lawyers constituted conduct which had a tendency to interfere with the administration of justice. The claimant submitted that the blameless life of the opponent since 1992 was only relevant in attempting to decide whether the opponent had "undergone a reformation of character and behaviour" and "whether the incidents can be viewed as isolated or passing departures from proper … standards": Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637 per Gleeson CJ, Meagher and Handley JJA. The submission also referred to the quotation in that case from Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461 per Walsh JA: "If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man." 98 The claimant has failed to establish that the opponent did deliberately conceal the knife. Of the remaining three matters, the failure to ensure that the deceased received medical treatment was an unreasonable act, but not an interference with justice. 99 Contrary to what the claimant submitted, the lie to the police and the lie to the solicitor were to some degree understandable, and to the extent that they were not understandable, they were to a considerable degree against the opponent's self-interest. Also, contrary to what the claimant submitted, it is necessary to assess their seriousness. The lies were defects in conduct, and it is easy for critics who have never been in a position like that of the opponent on 5 September 1991 to criticise them. The untrue statements ought not to have been said, and ought to have been withdrawn earlier than they were. But they were not persisted in in sworn evidence and were admitted without any prevarication at the murder trial and during this hearing. They were not serious defects in conduct. They were relatively venial. The first lie took place within minutes of leaving the motel; the second took place within a day or two of the death. On each occasion the opponent was under acute strain. To have withdrawn the lie to the police might have created further difficulties in the conduct of the opponent's defence to the murder charge. Indeed, the conduct complained of took place in extraordinarily unusual circumstances. The opponent had led a blameless life in the fifty-four years before 5 September 1991 and has continued to do so in the nine years since his acquittal. His conduct was defective in varying degrees, but the conduct did not exhibit "serious deficiencies in the opponent's standards of conduct and his attitudes". That is, his conduct fell below appropriate standards, but it did not reveal that he lacked standards. His conduct stemmed from a sudden response to a wholly unforeseen calamity placing extraordinary pressures on him nearly ten years ago. It does not suggest that he is presently unfit to be a legal practitioner.

The Prothonotary v Del Castillo - [2001] NSWCA 75 - NSWCA 2001 case summary — Zoe

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Judgment (59 paragraphs)

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Legislation Cited (1)

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