Blobel v RYAN
[2010] SADC 107
•13 August 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BLOBEL v RYAN
[2010] SADC 107
Judgment of His Honour Judge Nicholson
13 August 2010
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - PROFESSIONAL PERSONS
TORTS - NEGLIGENCE - PROOF OF NEGLIGENCE - WEIGHT AND CREDIBILITY OF EVIDENCE
TORTS - NEGLIGENCE - MISCELLANEOUS DEFENCES - OTHER DEFENCES
Plaintiff convicted before judge and jury of certain criminal offences and imprisoned - Appeal successful and a re-trial ordered. At second trial, plaintiff again convicted and imprisoned. Second appeal successful and acquittal ordered - Plaintiff alleges that the defendent, a solicitor and barrister, admitted to practice in the fused profession in South Australia, negligently breached his professional duty in a number of respects when preparing for and presenting the plaintiff's defence at the first criminal trial.
HELD: Plaintiff failed to establish all but one of the alleged breaches of professional duty and, in any event, failed to establish a causal link between the impugned conduct and the wrongful conviction.
HELD ALSO: That each alleged negligent breach of duty fell within the immunity from suit available to an advocate (whether solicitor or barrister) for work done in court or work done out of court which lead to a decision affecting the conduct of the case in court.
Legal Practitioners Act 1981, referred to.
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12; R v Blobel [2000] SASC 322; R v Blobel [2001] SASC 374; Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52; Arthur J S Hall and Co. v Simons [2002] 1 AC 615; Lai Sun Poi v Chamberlains [2005] NZCA 37; Symonds v Vass [2009] NSWCA 139; Keefe v Marks (1989) 16 NSWLR 713; Rondel v Worsley [1969] 1 AC 191; Feldman v A Practitioner (1978) 18 SASR 238; Tame v New South Wales (2002) 211 CLR 317; Blobel and Ors v Blobel and Ors [2005] SADC 117, considered.
BLOBEL v RYAN
[2010] SADC 107Introduction
The plaintiff has sued the defendant, a legal practitioner, for alleged professional negligence in the conduct of the plaintiff’s defence to certain criminal charges before a judge of this court and jury at Port Augusta in July 2000. The plaintiff was charged with three counts of the rape of his then wife and one of assault. He was convicted of two counts of rape and sentenced to a term of imprisonment. His appeal against conviction was successful. However, following a re-trial before the same judge but different jury and with different defence counsel, the plaintiff was again convicted of two counts of rape and again sentenced to a term of imprisonment. His appeal against the second conviction also was successful but the Court of Criminal Appeal this time ordered that the plaintiff be acquitted of both charges rather than undergo a further re-trial.
It is common ground that the first appeal succeeded because of certain errors in the presentation of the plaintiff’s defence case by the defendant. These errors were conceded by the defendant and the prosecution put no submission in opposition to the appeal.
The plaintiff at all times has maintained that he was wrongly imprisoned both after the first trial and after the second trial, that he suffered substantial ill health, and that he suffered substantial financial loss, all as a result of or caused by the defendant’s negligent conduct of the plaintiff’s defence at the first trial.
Initially, the plaintiff’s pleaded complaints were very extensive and included the matters conceded by the defendant as the basis of the first appeal. He also, initially, claimed against 15 defendants. Following a number of successful interlocutory challenges, the plaintiff’s claims against 14 of the defendants were struck out or withdrawn and his particularised claims against the present defendant were significantly reduced in scope. Indeed, the errors committed by the defendant, as conceded at the successful first appeal, are not part of the plaintiff’s pleaded allegations against the defendant prosecuted in the trial before me. These allegations together with others previously pleaded against the defendant were struck out at the interlocutory stage for the reason that they were found to fall within the advocate’s immunity, still available in this country in accordance with the decision and reasoning of the High Court in D’Orta-Ekenaike v Victoria Legal Aid.[1]
[1] (2005) 223 CLR 1; [2005] HCA 12.
The defendant denies that, in so far as the pleaded allegations are concerned, he acted negligently, denies that any such conduct on his part caused the plaintiff to be wrongly convicted, denies that the time spent in custody and any of the plaintiff’s claimed ill health, financial and other losses were caused by the defendant’s conduct and maintains that, in any event, all of the defendant’s impugned conduct falls within the advocate’s immunity such that as a matter of law, the plaintiff has no cause of action.
In order to understand the nature of the plaintiff’s claim against the defendant in these proceedings, it will be helpful if I first set out some general background concerning the plaintiff and his former wife followed by a short history of the criminal proceedings leading up to the present claim.
General Background
The plaintiff and his wife (the complainant) were married in 1983. The complainant had twin sons from a former marriage and the plaintiff had two sons from a former marriage. In 1999, and at about the time of the alleged offences, the four boys were adults and assisted the plaintiff and the complainant in running a family café in the country town in which they lived. Earlier in 1999, the plaintiff had had a heart attack and had stopped physically working in the café but the rest of the family continued to operate it. The marriage had been an unhappy one for some time prior to 1999. One of the major contributors to tension within the family was the plaintiff’s accusations that one of the complainant’s sons had been regularly taking money from the café takings. The complainant rejected these accusations and lent her support to her son. The plaintiff and the son had a number of arguments about the plaintiff’s complaints of missing money and after one such argument, in early August 1999, the plaintiff insisted that the son leave the business and leave the family home. This lead to a further argument between the plaintiff and the complainant and she also left the family home. She later returned but the relationship remained strained and arguments between them continued.
The events that gave rise to the criminal charges occurred on 18, 19 and 20 October 1999. On the evening of 18 October, the plaintiff attended a meeting of the local Council. For reasons which are not relevant, he was excluded from this particular meeting.[2] After speaking with others, he left the Council meeting and visited the home of his friends John and Joanna (Yoka) Dunstan. He left the Dunstan house between 9pm and 9.30pm. The Crown case at each trial and the evidence of the complainant was to the effect that the plaintiff arrived home between 10pm and 10.30pm, that he and the complainant argued and that, at some time between 10pm and midnight, the plaintiff forced the complainant to engage in sexual intercourse without her consent.
[2] An issue arose on the night as to whether or not the plaintiff and certain others had been validly or effectively appointed members of the Council.
The plaintiff’s case has always been that after leaving the Dunstan house, he went to his local club where he played cards with friends and ate a meal. He returned home shortly after midnight at which time consensual intercourse took place. The time at which the plaintiff returned home that evening was a major forensic issue at both trials. Essentially, it was the Crown case that forced intercourse occurred prior to midnight on 18 October 1999 whereas the defence case was that consensual intercourse occurred after midnight, that is very early on 19 October. It was this incident that gave rise to the first count, being a charge of rape, of which the plaintiff was convicted at both trials.
The only evidence adduced by way of corroboration of the complainant’s account was that of her friend, Lesley Horvat, who said that when the complainant came to work at the café on the morning of 19 October, she was shaking, tearful and complained of the rape.
The Crown case concerning the next night was that the complainant went home after work at the café and stayed upstairs avoiding the plaintiff. She said that she went to bed alone, at about 11pm, shortly after which the plaintiff came into the room and again forced her to engage in sexual intercourse without consent. The defence case, with respect to this incident, was that the plaintiff arrived home at about 11.30pm, again after spending time at the local club, and that consensual intercourse was attempted but not completed. The complainant again went to work in the café the next day. The events of the night of 19 October formed the basis of the second and third counts of rape.
Another argument was said to have taken place on the night of 20 October during which the plaintiff was alleged to have thrown the complainant’s handbag onto the roof of the house. In the course of this argument, it was said that the plaintiff grabbed hold of the complainant as she was attempting to retrieve her handbag from the roof of the house. A charge of assault (count 4) was brought against the plaintiff arising out of this incident.
After 20 October the plaintiff and the complainant slept in separate rooms but arguments continued. In due course family court proceedings were commenced, the marriage was ended and a property settlement entered into. It was not until 7 December 1999 that the complainant formally reported the alleged offences to the police.
The Two Criminal Trials
The defence case at all times was, and the plaintiff still maintains, that the complainant made up the allegations of rape so that she could exclude her husband from the café business from which she and her sons had been unlawfully taking money.
At both criminal trials, as would be expected given the nature of the charges and the absence of any independent eye witnesses, the question of whether or not the jury accepted as beyond reasonable doubt the account of the complainant, insofar as it related to the essential elements of the offences charged, was central to its determination.
The allegation that the first alleged rape occurred before midnight on 18 October was not an essential element of the charge. However, it was forensically very significant. If the plaintiff’s account that he did not arrive home until after midnight had been accepted or, perhaps more precisely, if the jury had accepted on the evidence that this was a reasonable possibility, the jury may have been prepared to doubt the reliability of the complainant’s evidence as to her allegations generally. For this reason, significant time was devoted to this timing issue at both trials.
The plaintiff lead evidence from other witnesses in an effort to demonstrate that he had remained at the club on the night of the 18th until approximately midnight and the Crown lead evidence from other witnesses attempting to undermine this “alibi” evidence. The reasoning process of either jury can never be known. All that can be said is that both juries accepted the Crown case as to the essential elements of two of the rape charges and either rejected the plaintiff’s claim that he came home shortly after midnight or, if prepared to accept this as a reasonable possibility, still found proved that the sexual intercourse which occurred on 18 and 19 October, whether before or after midnight, was not consensual.
The plaintiff was charged initially with three counts of rape (one relating to the night of 18 October and two relating to the night of 19 October) and one count of assault (relating to the events of the evening of 20 October). The matter first came to trial on 5 July 2000. At the end of the prosecution case the trial judge directed the jury to enter a verdict of acquittal with respect to the second count (alleged digital rape on 19 October) and the fourth count (the assault charge) on the basis that no or insufficient evidence had been lead in support of those two counts. On 11 July, the jury returned verdicts of guilty of the remaining two counts of rape, one relating to events on the evening of 18 October and one relating to events on the evening of 19 October. On the following day, the plaintiff’s bail was revoked and he was remanded in custody pending sentence.
The plaintiff’s appeal to the Court of Criminal Appeal was allowed and a re-trial on both counts ordered on 18 September 2000. However, it would appear that the plaintiff was not granted bail and released from custody until 3 October 2000.[3] The second trial took place in July 2001 and the plaintiff was again convicted of the two counts of rape. He was taken into custody for a second time on 4 July 2001. The matter again went to the Court of Criminal Appeal. The appeal was allowed on 9 November 2001. An acquittal was directed and the plaintiff was released from custody for the last time on 9 November 2001.[4] On this basis, it would seem that the plaintiff spent approximately 7 months in custody. However, I note that Bleby J observed in his judgment following the second appeal, that the plaintiff spent a total of nearly 5 ½ months in custody following the two trials. Further, at the time of delivering its judgment at the first appeal (18 September 2000), the Court of Criminal Appeal appeared to order “bail to continue as before.” If the latter was so, it is inconsistent with the inference to be drawn from Exhibit P39. I am not satisfied that I have a sufficiently clear evidentiary basis before me upon which to ascertain the precise amount of time spent in custody. In the event that the plaintiff were to be entitled to compensation for time spent in custody, I would require further assistance from the parties on this matter.
[3] See Exhibit P39.
[4] See Exhibit P45.
The Two Court of Criminal Appeal Decisions
At the first appeal,[5] the defendant conceded that he had made a number of errors during the conduct of the trial such that the plaintiff’s defence was so mismanaged as to result in a miscarriage of justice. This was not disputed by the prosecution.[6] At the trial, the defendant when cross-examining the complainant put to her that no sexual intercourse occurred on 18 October 1999. The plaintiff’s Alibi Notice (which the defendant maintains was prepared in accordance with instructions received from the plaintiff) stated that the plaintiff had witnesses who would depose to the fact that “at the time of the offence alleged on the 18th day of October 1999 the accused was present at the International Club at Coober Pedy and was not at his home”.
[5] [2000] SASC 322.
[6] See the respondent’s Outline of Argument on the appeal, Exhibit D63.
It was the prosecution case that the rape alleged on 18 October occurred prior to midnight and, forensically, issue was joined on this basis. However, the defendant did not make it plain in his cross-examination, and failed to put his instructions, that consensual intercourse occurred shortly after midnight, that is, very early on 19 October 1999. The defendant told the Court of Criminal Appeal that when he cross-examined the complainant he put, as the plaintiff’s case, that no intercourse occurred “on the night of the 18th” because the prosecution had alleged and the complainant’s evidence in chief was, to the effect, that intercourse occurred before midnight on 18 October and because his instructions, as set out in the Alibi Notice, were to the effect that that could not have happened because the plaintiff was not at home prior to midnight on 18 October. The plaintiff, when he came to give evidence, volunteered in chief that he had engaged in consensual sexual intercourse with the complainant but after midnight on 18 October, that is, early on 19 October 1999.
The problem was compounded by other evidence lead in the prosecution case. The prosecution lead evidence from Eric Mavropoulos, one of the plaintiff’s nominated “alibi” witnesses, which had the effect of challenging the plaintiff’s evidence that he did not leave the club until shortly prior to midnight. It also lead evidence from Angelo Gountounas which challenged the credit or accuracy of another of the plaintiff’s nominated “alibi” witnesses who had given evidence to the effect that he had spent time with the plaintiff at the club on the night of 18 October.
The fact that the plaintiff’s evidence on this issue was inconsistent with the defendant’s cross-examination of the complainant was drawn to the defendant’s attention by the trial judge. The defendant was invited to consider making an application to recall the plaintiff for the purpose of the plaintiff giving further evidence clarifying the instructions that he had given to the defendant. The defendant did not take up this invitation.
In the result, the prosecutor submitted to the jury that the plaintiff should be seen as having changed his story between his counsel’s cross-examination of the complainant and the giving of his own evidence concerning the events of the evening of 18 October. In addition, the prosecutor submitted that the plaintiff had attempted to set up a false alibi by bringing along friends who would depose to him being at the club until close to midnight when the prosecution evidence from Mavropoulos and Gountounas was consistent with the complainant’s evidence that the plaintiff, in fact, arrived home at about 10.30pm that evening. Plainly, these submissions, if accepted by the jury, might have had very damaging consequences with respect to its view of the plaintiff’s credibility.
In addition, the apparent disconformity between the defendant’s cross-examination of the complainant and the plaintiff’s evidence on this topic moved the trial judge to include the following in his summing up.[7]
From both the questions put by [the defendant] to [the complainant] in cross-examination, and/or from the Alibi Notice, you can, if you see fit, infer that up until very recently the accused was saying that no sexual intercourse, which was the subject of count 1, took place, but when he came to give his own evidence in this trial yesterday, he changed his story and admitted that intercourse took place and he adopted a new tack of saying yes, it occurred, but it was by consent. You may think, if you see fit, but it is entirely for you, that that change of story might have occurred because between the cross-examination of [the complainant] and the accused giving evidence, you had heard the evidence of Mavropoulos and Gountounas and perhaps having heard their evidence he decided that his alibi was not looking too good, and therefore he changed his story so he could give evidence that, in fact, there was consent.
In a rape trial it is very difficult for an accused to run defences of both the intercourse did not occur, but if it did occur it was by consent. Normally, it is illogical to run both together and an accused has to confine himself to one of them. It is for you whether, in fact, you think the accused changed horses in midstream. If you agree with the prosecutor’s submissions on the point, and that is, I say, entirely for you, and it may be there are other innocent explanations of it, it does not mean that therefore the accused is automatically guilty on count 1 but it may make you hesitant to give any weight to what he has said about the other surrounding events on count 1 and also possibly about count 3.
[7] Exhibit P29 at page 9.
The defendant conceded other errors in his conduct of the defence at trial.[8] The Court of Criminal Appeal[9] allowed the appeal and in so doing said the following.
The trial judge, doubtless confused by counsel’s cross-examination of the appellant’s wife, was of the view that counsel had put one version to the victim but elicited a different one in his examination of the appellant. Counsel wrongly agreed with the trial judge’s proposition, that the night of 18 October meant from dusk on that day to dawn on 19 October. Counsel also failed to adopt the trial judge’s suggestion to have the appellant affirm that his instructions had always been that consensual sexual intercourse had occurred during the early hours of 19 October. Against these events, the prosecution suggested that the appellant had changed his story and created a false alibi. The judge’s directions were consistent with what the prosecution put. His Honour also directed the jury that a conviction was open whether the intercourse complained of occurred on the evening of 18 or early in the morning of 19 October. The verdict of the jury was consistent with it believing the evidence of the complainant and disbelieving what the appellant said in his evidence.
It is plain that the appellant’s counsel, at trial, failed to adequately put his client’s instructions to the appellant’s wife. That, together with the concessions made by counsel, means that the appellant did not receive a fair trial. A miscarriage of justice has occurred because of mismanagement by the appellant’s counsel. We therefore allow the appeal, set aside the conviction and order a re-trial. Bail to continue as before.
[8] See the affidavit sworn by the defendant on 1 August 2000, Exhibit P4 and statement of the defendant taken on 1 August 2000, but signed on 11 August 2000, Exhibit P5.
[9] [2000] SASC 322 Prior J apparently speaking on behalf of the CCA which also included Debelle and Lander JJ.
The plaintiff was again convicted of two counts of rape on 5 July 2001 following the re-trial. At the re-trial the plaintiff was represented by different counsel. At the second appeal,[10] various criticisms were levelled at the judge’s summing up and conduct of the trial but no criticisms were made about the manner in which (new) counsel conducted the trial. Errors in the conduct of the trial by the trial judge were identified, a number of which formed the basis of the Court of Criminal Appeal’s ultimate conclusion that insufficient emphasis had been given to deficiencies in the prosecution case and that the jury had not been cautioned strongly enough with respect to the important consideration of the complainant’s credibility. It followed that there was a perceptible risk of a miscarriage of justice. The convictions were set aside. However, the Court of Criminal Appeal went further and said that, in the circumstances, the administration of justice and fairness to the plaintiff required a direction that he be acquitted of both counts.
[10] R v Blobel [2001] SASC 374.
The reasons why the Court of Criminal Appeal reached this conclusion are summarised in the judgment of Bleby J[11] with whose reasons on this topic the Chief Justice agreed.[12]
I am persuaded that, on the deficiencies in the prosecution case to which the Chief Justice has referred, a properly directed jury would probably acquit. Those deficiencies include the fact that, in a number of respects, [the complainant] was shown to have lied; that the only evidence of corroboration depended on the jury’s acceptance of the genuineness of [the complainant’s] subsequent complaint to Mrs Horvat and that there was no reasonable possibility that it was the result of other aspects of her relationship with [the plaintiff] about which she had also previously complained in a similar manner; the delay in the complaint to the police; the existence of a motive for the complaint and to have the [plaintiff’s] movements and access restricted while on bail; inconsistencies in the evidence of [the complainant] and prosecution witnesses; and credible evidence tending to support the evidence of the [plaintiff].
I am also persuaded that a retrial might allow the prosecution an unfair opportunity to make good some obvious deficiencies in its case. Some of the witnesses might be able to make good their perceived inconsistencies or deficiencies, although I do not overlook the possibility that on a third trial the [plaintiff] might be able to exploit some of the inconsistencies. However, this could only enhance the possibility of acquittal.
None of the children of either [the complainant] or [the plaintiff] were called by the prosecution. [The plaintiff’s two sons] were called for the defence. Their evidence was that television was usually watched by the boys in the television room which opened off the lounge. [The complainant] was uncertain whether any of the [plaintiff’s] or her sons were home on the occasion of the first alleged rape. Nevertheless, she claimed to have been embarrassed on that occasion at the possibility of being seen by “the kids” on being dragged down the stairs by her husband. As to the second alleged rape, she said the “kids must be in the bedrooms again”. The failure to call those who were or who could have been at the house at the relevant times must raise an inference that their evidence would not have assisted the prosecution case: Jones v Dunkel (1959) 101 CLR 298. If they were now to be called, the opportunity to draw that inference would be lost.
A further relevant factor is that the [plaintiff] has now endured two trials and two appeals, although I understand that the first appeal was conceded by the prosecution without argument. If a retrial were ordered it would be the appellant’s third trial. He has now spent a total of nearly 5½ months in custody following the two trials.
Taking into account all these factors I consider that both the administration of justice and fairness to the [plaintiff] require that the appropriate order be to direct that the [plaintiff] be acquitted of both counts.
[11] At paragraphs [85] – [89].
[12] Doyle CJ at [70].
The Court of Criminal Appeal’s findings in the second appeal are of no direct assistance in determining whether or not any deficiencies in the conduct of the first trial as, in fact, conducted by the defendant caused the plaintiff to be convicted in circumstances where he otherwise might or ought to have been acquitted. What the events of the second trial and the findings of the Court of Criminal Appeal at the second appeal do suggest is that the first appeal and/or the second trial operated to break any chain of causation between the defendant’s conduct at the first trial, if negligent, and the additional time spent in custody suffered by the plaintiff as a consequence of being convicted again at the second trial. In other words, the defendant by his frank concessions at the first appeal and the Court of Criminal Appeal’s decision at the first appeal operated to restore the plaintiff to the position he was in prior to the first trial, that is, presumed innocent and awaiting trial of the charges brought against him. Of course, the extent to which the plaintiff’s first conviction and the first period of incarceration can be said to have caused or contributed to his ongoing health and financial problems raises different considerations.
Plaintiff’s Claims in the Present Proceedings
Initially, the plaintiff brought proceedings against five police officers involved in the investigation of the rape allegations and other matters involving the plaintiff and arising out of the strained relationship with the complainant, the State of South Australia, the complainant, one of her sons, three other witnesses who gave evidence during the first trial, an officer of Family and Youth Services in the Department of Human Services who had spoken with the complainant from time to time about her allegations against the plaintiff, the present defendant in these proceedings and the solicitor who had the conduct of the first appeal, the second trial and the second appeal. During the interlocutory stages of this matter, the claims against all defendants other than the present defendant were either withdrawn or struck out and multiple versions of a proposed statement of claim were proffered by the plaintiff.
Ultimately, and in accordance with his reasons for decision (number 10) posted to the parties on 13 April 2007, a Master of this court gave leave to the plaintiff to file a Final Amended Statement of Claim in the form contained in the copy documents. As I have indicated, the plaintiff was unable to proceed with many of the allegations he wished to bring against the present defendant, including those that formed the basis of his successful appeal following the first trial, because they were held to fall squarely within the advocate’s immunity.
The plaintiff was permitted to plead his present case on the basis that the defendant who assumed the role of both solicitor and counsel with respect to the first trial, breached his duty of care, in his capacity as solicitor, by the manner in which he instructed himself, in his capacity as counsel, with respect to a number of issues. In this respect, the final version of the statement of claim is restricted to a relatively small number of complaints. However, during the trial and after hearing evidence from the plaintiff, I granted leave to further amend his pleading so as to include additional particulars of matters about which the plaintiff maintains the defendant breached his duty as solicitor, in failing to properly instruct himself, as counsel, at the trial.
The plaintiff’s pleading is not easy to understand. However, I will summarise what I understand to be the essence of his complaints as pleaded. It is my view that most of these complaints also fall within and are not maintainable by virtue of, the advocate’s immunity. I will need to spend some time on a discussion of the D’Orta-Ekenaike case in order to support this conclusion. Notwithstanding that this means that the plaintiff’s claim must fail, I propose to consider, to the extent open to me on the evidence, the merits of the plaintiff’s complaints in connection with the issues of whether or not the defendant might have breached his duty and, if so, whether it can be said that any such breach was causal of the plaintiff’s loss. I will do this because it may be that my conclusion that the advocate’s immunity applies is wrong but also in recognition of the importance of these issues to the parties and of the amount of time and effort each has expended in prosecuting and defending, respectively, this claim. Before canvassing these matters, I need to say something about the oral evidence.
Oral Evidence
The plaintiff gave evidence on his own account and called one of his sons to give short evidence essentially concerning events in the café on the morning of 19 October 1999. The defendant gave evidence on his own account.
There is no doubt that the plaintiff believes that he has been grievously wronged by the legal system and that the defendant’s conduct was significantly instrumental in causing this. The plaintiff still believes that the conduct of each of the other 14 former defendants to this action also was significantly instrumental in causing the plaintiff’s wrongful convictions and all of the harm he has suffered since. The plaintiff has held these opinions since the day of the first jury verdict. He, quite understandably, has been obsessed with correcting the many injustices that he believes to have befallen him and has dedicated himself during the period from the time of the first trial to the hearing of this civil claim before me to achieving this aim. I heard directly from the plaintiff - when opening his case, when giving evidence, whilst cross-examining the defendant and in making submissions - over many days. He is a man that sees only ‘black’ and ‘white’. Other people either tell the truth or tell lies – there is no scope for genuine mistake. If a person does not explain something in a way that accords with the plaintiff’s recollection of or even belief about what occurred, his first inclination is to assume the person is lying.
During the trial, it became plain that the plaintiff believes that not just the complainant and her friend Lesley Horvat lied in their evidence but that the various police and other Crown witnesses also lied as part of a conspiracy to wrongfully convict the plaintiff. Much of the ‘evidence’ the plaintiff gave concerned matters about which he had no first hand knowledge. Much of what he told the Court was the product of assumption and reconstruction based on his consideration over the many years that have elapsed since the first criminal trial of the various witness statements and other documents relevant to the criminal proceedings. At no time during the trial was I confident that I was receiving an accurate account of events said, heard, done or observed by the plaintiff as opposed to a reconstructed account borne of the plaintiff’s long, albeit genuinely, held case theory.
In contrast, the defendant was an impressive witness. In general, he confined his evidence to matters of which he had direct knowledge. He was willing to indicate if he was unable to recall particular events. He frankly conceded at the first appeal the serious errors that he made during the trial and in so doing, to my mind, demonstrated an understanding of the duty he owed his former client in this respect and that he was prepared to observe it at some potential cost to himself.
During the trial and after, I formed a clear preference for the defendant’s evidence over that of the plaintiff in those areas where their accounts differed. In terms of the nature of their relationship leading up to and during the first trial and as to the type of instructions given by the plaintiff, the defendant’s description was realistic and had an intrinsic likelihood about it, particularly given what I have now come to discern about the plaintiff’s personality. The defendant’s evidence also was more or less consistent with the limited documentary record that was made available in evidence.
The Plaintiff’s Pleaded Complaints Summarised
The plaintiff’s first complaint[13] alleges that the defendant, in his capacity as solicitor, was negligent in engaging himself, rather than some other more competent criminal barrister, as counsel to conduct the trial.
[13] Paragraphs 6 and 7 of the Final Amended Statement of Claim dated 7 May 2007.
A second, overarching, complaint is that the defendant was negligent and in breach of his duty of care, as a solicitor, by failing to take proper instructions from the plaintiff and failing to communicate to and to properly instruct himself, as counsel, with respect to certain matters.[14]
(i) The plaintiff alleges that the defendant, in his capacity as solicitor, failed to obtain copies of certain photographs said to have been taken on 25 October 1999. The photos (which are not in evidence) were said to show all of the complainant’s clothing in the upstairs bedroom of the house and not in the master or marital bedroom and to demonstrate inconsistency in the evidence given by the complainant under oath at the first trial. It is further alleged that the defendant failed to instruct himself, as counsel, to use these photographs during the cross-examination of the complainant.
(ii) The next complaint under this heading is an allegation that the defendant failed to obtain full or proper instructions and therefore failed to instruct himself, as counsel, with respect to alleged inconsistencies in witness statements provided by and evidence given in court by Constable McLaren, one of the investigating police officers.
(iii) The third particularised complaint under this heading is the allegation that the defendant failed to obtain proper instructions and failed to instruct himself, as counsel, to call a particular witness, Joanne Dunstan, on behalf of and in the defence of the plaintiff.
[14] Paragraphs 8 and 9 of the Final Amended Statement of Claim as further particularised in paragraph 15.
The third group of complaints or allegations concern the Alibi Notice filed on behalf of the plaintiff during the preparation for the first trial.[15] The plaintiff alleges that, in his role as solicitor, the defendant failed to take proper instructions from the plaintiff, failed to obtain a witness statement from Mr Eric Mavropoulos, included the name of Eric Mavropoulos in the Alibi Notice without being instructed so to do and failed to take steps to amend the Alibi Notice by excluding the name of Eric Mavropoulos prior to trial.
[15] Paragraphs 10 to 14 of the Final Amended Statement of Claim.
The fourth group of complaints are those set out in the amendments made during the trial to paragraph 15 of the Final Amended Statement of Claim and are to be found in subparagraphs (V) to (XI) of paragraph 15, as amended. These allegations can be further categorised as follows.
(i) The defendant, in his capacity as solicitor, failed to take proper instructions and failed to convey proper instructions to himself, as counsel, concerning inconsistencies and contradictions in witness declarations provided by police officer Helen McLaren, the complainant and the witness Lesley Horvat. The inconsistencies were said to exist both as between the accounts of these various witnesses but also within each of their various statements including, in particular, those of Lesley Horvat.[16] Ultimately, the plaintiff would seek to allege that the defendant, as counsel, failed to properly cross-examine these witnesses so as to demonstrate these inconsistencies and cast doubt on their evidence and ultimately prove each of them to be lying at the first trial. However, allegations of this nature were struck out during the interlocutory stage as being within the advocate’s immunity.
(ii) Another complaint or allegation[17] is that the defendant, in his capacity as solicitor, failed to instruct himself sufficiently, in his capacity as counsel, concerning what has been described during the trial as “the handbag” incident.
(iii) Related to this is the complaint that the defendant, in his capacity as solicitor, failed to properly instruct himself, in his capacity as counsel, with respect to that aspect of the handbag incident where the plaintiff assisted the complainant down the wall of the house rather than assaulted her in the manner described by Police Officer Smith in his apprehension report.[18]
(iv) Finally,[19] the plaintiff complains that the defendant, in his capacity as solicitor, failed to properly instruct himself, in his capacity as counsel, concerning a number of trial issues. Late in the trial, and for the first time, the Director of Public Prosecutions gave notice that it intended to call the witnesses Gountounas and Mavropoulos. The plaintiff complains that this allowed insufficient time for the defendant to obtain proper instructions from the plaintiff and that the defendant should have objected to the late calling of these witnesses for this reason. The plaintiff also complains that the defendant “failed to make use of the letter dated 7 July 2000”[20] and a letter dated 10 July 2000 from Allen March, Manager of the Coober Pedy District Centre for Family and Youth Services.[21] The latter should have been used, it is alleged, to demonstrate further inconsistencies in the evidence of the complainant.
[16] These allegations are set out in general terms in paragraphs (V), (VI), (VII) and (VIII) of paragraph 15 of the Final Amended Statement of Claim.
[17] Subparagraph (IX) of paragraph 15 of the Final Amended Statement of Claim.
[18] Subparagraph (X) of paragraph 15 of the Final Amended Statement of Claim.
[19] Subparagraph (XI) of paragraph 15 of the Final Amended Statement of Claim.
[20] The reference here appears to be to the letter of Detective Smith setting out the evidence expected to be given by Gountounas, Exhibit P24.
[21] Marked for identification as MFI P25.
The Merits of the Complaints
The defendant was Negligent in Briefing Himself as Counsel at Trial (paragraph 39)
Legal practitioners in South Australia are admitted to practice as both a solicitor and a barrister. It is, in law, a fused profession.[22] However, there is in place a voluntarily established separate bar which operates under the auspices of the South Australia Bar Association, the members of which agree to observe rules and practices similar to these observed by the independent bars seen in England and Wales and in other States. Other than where a voluntary commitment is made to the rules and practices of the South Australia Bar Association, there is nothing to prevent, and it is not uncommon for, a sole practitioner to perform both solicitor and counsel work for a client. This is commonly seen amongst those practitioners who regularly practice in the criminal field.
[22] Legal Practitioners Act 1981, s6.
Apart from the specific complaints alleged by the plaintiff concerning the defendant’s preparation for and conduct of the plaintiff’s first criminal trial, the plaintiff adduced no evidence capable of bearing on the issue of whether or not the defendant was sufficiently experienced and competent to undertake the plaintiff’s matter either as solicitor or as counsel or as both.
The defendant gave some brief evidence concerning his experience as a legal practitioner which evidence I accept. He was admitted to practice in 1971. Between 1972 and 1984, he conducted a general litigation practice with a firm of solicitors in Port Augusta. During this period, between a third and half of the work undertaken by the defendant was criminal work in the summary courts and in the District and Supreme Court circuits. From 1984 until 1991, he worked as ‘in-house counsel’ for the same firm of solicitors in Adelaide. About half of the defendant’s work during this period was of a civil nature and half was of a criminal nature. In 1991, he and the other partners of the firm had their names removed from the role of practitioners kept by the Supreme Court of South Australia. The defendant was readmitted in November 1997 after which he practiced on his own account, initially in Mt Gambier. At first he worked only as counsel but then recommenced practicing as solicitor and counsel. The defendant estimated that, as at December 1999, he had been involved in between “70 to 100 at least” criminal trials with “probably more than half of those” being District or Supreme Court trials.
The plaintiff’s criminal matter was of the type, both as to the nature of the charges and the difficulty of the factual enquiry and law involved, typically undertaken by numerous members of the junior criminal bar in Adelaide including practitioners who act as both solicitor and counsel from time to time. The onus of proving that the defendant was not sufficiently experienced or competent to do both the solicitor and the counsel work involved in this matter rests with the plaintiff. I am not satisfied on the evidence before me that this onus has been discharged. It has not been demonstrated by the plaintiff that the defendant was negligent, in his capacity as solicitor, in instructing himself, in his capacity as barrister, to do the counsel work. This allegation of negligence fails.
The Failure to Obtain the Photographs (paragraph 40(i))
The alleged photographs were not tendered. It is not possible to ascertain what these photographs might have demonstrated or what influence they may have had on the jury’s ultimate determination had they been deployed in some way during the first criminal trial. It was difficult to obtain from the plaintiff’s evidence and submissions a full appreciation of the plaintiff’s concern with respect to this issue. The plaintiff asserts that by reference to the police day sheet of 25 October 1999[23] and the complainant’s declarations, particularly that given to the police on 2 July 2000,[24] the defendant should have been able to demonstrate through the cross-examination of the complainant that she had lied in saying that a particular incident concerning the complainant’s clothes being taken from the matrimonial bedroom to the spare bedroom occurred on 18 October rather than, as the plaintiff would have it, on 25 October 1999. This, together with other inconsistencies in the complainant’s evidence, according to the plaintiff, would demonstrate that she was lying about when she first reported the rape to the police and that the rape, in fact, occurred at all.
[23] Exhibit D66.
[24] Last paragraph on p3 of Exhibit P23.
The argument put by the plaintiff is set out in its most complete form in the plaintiff’s written opening[25] and in the annexure to the Final Amended Statement of Claim in the copy documents.[26] This argument as presented by the plaintiff contains gaps in its logic. In addition, on the evidence before me and, in particular, given the absence of the alleged photographs in question, I am unable to be satisfied that any inconsistencies in the evidence of the complainant in this area, had they been drawn out during the first criminal trial, necessarily would have affected the complainant’s credit before the jury in that trial.
[25] MFI P1 at pp 13-14.
[26] At pp 33-34.
However, and in any event, I accept the evidence of the defendant before me that after reviewing the various witness statements available and the instructions of the plaintiff, he formed a view about how best to conduct the plaintiff’s defence. It may not have been the view that other solicitor and counsel would have taken. It may not have been the view that the solicitor and counsel engaged for the second trial would have taken, although there is no evidence before me as to how this particular issue was dealt with, if at all, in the second trial. Nevertheless, I am not satisfied on the evidence before me that any failure to obtain the alleged photographs and to deploy them at the trial was a negligent exercise of the defendant’s professional judgment as to how best to conduct the plaintiff’s defence.
The Failure to Call Joanna Dunstan (paragraph 40(iii))
In the trial before me, the plaintiff insisted that Joanna Dunstan was his “star witness” and that the defendant negligently failed to call her to give evidence. According to the plaintiff, she could have given evidence on two topics: first, by way of corroboration of the plaintiff’s evidence, that after leaving the Council meeting and before going to the club on the evening of 18 October, the plaintiff visited Joanna and John Dunstan’s house; second, that she was absent from Coober Pedy on 21 October 1999. The significance of the latter evidence, if given, is that it would serve to contradict a statement of Police Officer Helen McLaren[27] that when she met with the complainant on 21 October 1999 in the café, Joanna Dunstan was also there. The ultimate purpose of this latter, expected, evidence was to support the plaintiff’s claim that Police Officer McLaren deliberately lied about this and other matters in her statements and that she was part of the conspiracy to have the plaintiff wrongly convicted of the rape charges.
[27] Exhibits P6 and P13 and see the police day sheet for 21/10/1999 in Exhibit P66.
Joanna Dunstan was not called to give evidence in the trial before me, nor was she called in the first criminal trial. I have no direct evidence of what she would have said, if called at the first criminal trial, on either of these topics.
Joanna Dunstan was called to give evidence in the second criminal trial. However, there is nothing before me that indicates what she said when giving her evidence. What is clear, is that she was not asked anything about the first topic. One of the grounds of appeal at the second appeal was that the trial judge erred in refusing an application by the plaintiff’s counsel to recall Joanna Dunstan because he had overlooked asking her about the plaintiff’s visit to the Dunstan house on the evening of 18 October. The Court of Criminal Appeal accepted that this evidence, if given, might have undermined the evidence of Eric Mavropoulos that he and the plaintiff had gone straight from the Council meeting to the club and, if so, also have cast doubt on the reliability of his evidence that the plaintiff left the club well before midnight.
The plaintiff was specifically told in court that it would be difficult to succeed with his complaint of a failure to call Joanna Dunstan in the absence of evidence from her as to what she would have said. In the absence of admissible evidence on this topic and in the absence of seeing Joanna Dunstan in the witness box it is difficult, if not impossible, to form any view as to the effect her evidence might have had on the jury at the first trial.
As far as the first topic is concerned, the defendant gave evidence that he considered calling Joanna Dunstan but decided against it for two reasons. The first reason was that he could (and did) call John Dunstan on this topic and that Joanna Dunstan could add nothing other than corroboration of her husband’s evidence. John Dunstan gave evidence at the first trial (on Tuesday 11 July) that the plaintiff came to his house after tea, at about 8.30, on the evening of 18 October and left at about 9.30pm saying that he wanted to go to the club restaurant for something to eat. This evidence was not challenged during cross-examination nor was anything made of the discrepancy between his evidence on this topic and that of Eric Mavropoulos during prosecuting counsel’s summing up. As it happened, neither the plaintiff nor the defendant were on notice of the proposed evidence of Eric Mavropoulos until they received a copy of his statement given to police on 6 July 2000 (the second day of trial). However, it was clear from Eric Mavropoulos’ evidence in chief that, on his account, he and the plaintiff went straight to the club from the counsel meeting at about 7.45pm.
The defendant gave a second reason for not calling Joanna Dunstan. He said that he attended at the Dunstan’s house in June 2000 to proof both John and Joanna Dunstan with respect to the “alibi” evidence. He said that John Dunstan confirmed the plaintiff’s account of the visit to the Dunstan house on the evening of 18 October and that Joanna Dunstan’s account was consistent with this. He said that he formed a view at that stage that he would call John Dunstan but not Joanna Dunstan. When asked for his reason for this, he said that as he was leaving the Dunstan home, John Dunstan and the plaintiff walked ahead of Joanna Dunstan and himself. He said that she hung back in the kitchen and spoke to him about the difficulties that she had because she regarded herself as both a friend of the plaintiff and of his wife, the complainant. According to the defendant, Joanna Dunstan made a comment which caused him some disquiet and as a result of the things said to him by Joanna Dunstan, he decided only to call John Dunstan. He told the plaintiff that Joanna Dunstan added nothing to the evidence of John Dunstan and that it would not be necessary to call her at the trial.[28] The plaintiff in his evidence confirmed that the defendant said to him that he was concerned that Joanna Dunstan might give “wrong answers” in court.[29]
[28] T 859-860.
[29] At T 428.
It is easy with hindsight and with the benefit of the Court of Criminal Appeal’s view, to conclude that it might have been better had Joanna Dunstan been called on this topic. In dealing with the ground of appeal concerning the unsuccessful application to recall Joanna Dunstan at the second trial, the Chief Justice observed[30] that the failure to allow Joanna Dunstan to be recalled did not allow for the risk of the jury attaching significance to the failure to ask her about the visit to her house even though that failure received no emphasis from the prosecutor and would receive no emphasis from the trial judge. The Chief Justice ultimately refused to uphold this ground of appeal for other reasons. His Honour also observed that the foreshadowed evidence whilst not insignificant, was nevertheless “somewhat peripheral to the main issue, and even to the issue of the time at which [the plaintiff] came home. There was quite a lot of other evidence on that point. In my opinion, the refusal of the application did not give rise to an acceptable risk of a miscarriage of justice.” However, both Mulligan and Bleby JJ would have upheld this ground of appeal.
[30] [2001] SASC 374 at paragraph [35].
It is not clear to me whether John Dunstan was also called at the second trial. If not, this would strengthen any conclusion that the foreshadowed evidence of Joanna Dunstan on this topic was of potential significance at the second trial.
In the circumstances that confronted the plaintiff and the defendant during the preparation of the first trial and on the basis of the evidence given by the defendant in this respect, which I accept, I am not satisfied that the defendant committed any error of professional judgment in deciding not to call Joanna Dunstan to give evidence on this first topic at least prior to the time that he became aware of the evidence of Eric Mavropoulos (that is the second day of trial). Even at that point, the defendant was in the position to call contrary evidence from John Dunstan and might reasonably have taken the view that the evidence of Joanna Dunstan on this topic still would add little, particularly once it transpired that John Dunstan’s evidence on this topic was not challenged during cross-examination.
The second topic, that is, the anticipated evidence from Joanna Dunstan that she was not in Coober Pedy on 21 October and therefore could not have been in the café at the time that Police Officer Helen McLaren said that she saw her, was one, relatively minor, element directed at establishing the plaintiff’s belief that Police Officer Helen McLaren was lying generally and involved in some conspiracy to have the plaintiff convicted. The defendant gave evidence that he had discussed with the plaintiff the question of whether or not to attack Police Officer McLaren and the police generally as part of presenting the plaintiff’s defence. The defendant advised the plaintiff against seeking to assert that Police Officer Helen McLaren was lying because he thought that this would be detrimental to the plaintiff’s defence. The defendant acknowledged in his evidence that the plaintiff had given him instructions in relation to Police Officer McLaren’s statements which instructions included various alleged inconsistencies which the plaintiff characterised as lies. The defendant gave this evidence in chief.[31]
[31] At T 862-863.
It extended further than that, in that there were discrepancies and possible differences in detail between his wife and the police, and the police running sheets and the police statements, to the extent that he was suggesting that the police were in cahoots with his wife and conspiring with her also to effect the purposes of getting her into the business. I discussed the problem of that with [the plaintiff] prior to trial and the dangers of setting up an area of conflict which was not likely to be resolved in his favour; that is, the challenge to the police on the basis that they were co-conspirators with his wife and [Lesley Horvat] and recommended to him that we conduct the trial on the basis that the areas of dispute be limited to his wife and [Lesley Horvat] being involved in a conspiracy.
A little further on, the following exchange occurred.
QSo you had discussions with [the plaintiff] about these allegations of conspiracy?
AYes.
QAnd about the shape of the conduct of the defence?
AYes. The issue was – his defence clearly was that there was no lack of consent and therefore no rape. I was to attack the credit of [the complainant] and Ms Horvat on the basis that they had got their heads together and had told lies for the purpose of getting him arrested, off the scene, and to enable [the complainant] to take over the conduct of the business.
QThere have been a number of complaints made or evidence given by [the plaintiff] that he wished you to cross-examine the police about inconsistencies in the statements of Constable McLaren, the police reports, the day sheets and other statements which are not in evidence. What, if anything, do you say about those instructions?
AHe raised matters of that type before the trial and, for the reasons which I have explained, I discussed them with him. He did refer to those matters on occasion during breaks in the trial, and again I discussed with him – and this was while the police were giving evidence – my decision to not set up that conflict and he acquiesced in that.
Later, in cross-examination, the defendant acknowledged that he formed a professional judgment after discussing these matters with the plaintiff that it was not in the plaintiff’s interests to present as part of the defence an attack on the integrity of the police involved.
I am satisfied that the strategy of attacking the credibility of the police including Police Officer McLaren was discussed, that the defendant advised against it and that the plaintiff accepted this advice at the time of trial. In the circumstances, as described, I am not satisfied that the defendant acted negligently in failing to call Joanna Dunstan to give evidence at the first trial. However, if I am wrong here, the plaintiff faces the difficulty that there is simply no evidence before me as to what Joanna Dunstan would have said had she been called.
The Inclusion of Eric Mavropoulos on the Alibi Notice (paragraph 41)
I have already outlined the difficulty caused to the plaintiff’s defence by the evidence of Eric Mavropoulos, particularly in the context of the failure of the defendant to cross-examine the complainant in accordance with his instructions and to properly put the plaintiff’s case that consensual sexual intercourse occurred shortly after midnight on 19 October, the plaintiff having been at his club until shortly before midnight on 18 October. The plaintiff, at all times, has maintained that the evidence of Eric Mavropoulos was false. The plaintiff maintains that Eric Mavropoulos would not have been called as a witness in the Crown case but for the defendant’s negligence in including his name in the Alibi Notice without instructions.
The plaintiff’s evidence on this topic was to the effect that after he was committed for trial in March of 2000 in Port Augusta, he was told by the defendant that the rules required any Alibi Notice to be filed within a certain period of time. He was asked to nominate any alibi witnesses. The plaintiff said that he told the defendant to include in the Alibi Notice Mr Dragan Ilich who played cards with him at the club on the night of 18 October. He nominated Jimmy Nikouloudis who also was at the club and he nominated John and Joanna Dunstan, who could give evidence about his visit to their house on that evening. He also nominated Nick Kambouris who also was playing cards at the club. According to the plaintiff, he took Dragan Ilich, Nick Kambouris and Jimmy Nikouloudis around to see the defendant in Port Augusta but the Dunstan’s were unavailable. This meeting took place on 29 March.[32] At the meeting with the defendant, Jimmy Nikouloudis said that he did not want to be involved and declined to give evidence. The plaintiff then gave this evidence.[33]
I also said to [the defendant], and I remember this distinctly because I had a conversation with Mr Mavropoulos about a week or so – a week or 10 days before that in the Greek Club and he was telling me, why do this and why do this but … and why don’t you just make up with your wife, and I said to him, I said “listen, this is a … and you should know because you would make a good witness for me because you know I was there all night in the Greek Club and you know what happened in the Council meeting” and he started to lie to me “no no no, this – he said no, I don’t want to get involved, I wasn’t there in the meeting and I didn’t see or hear and so on.” That I repeated to [the defendant] and I said to him “listen … we should subpoena that guy to give evidence because he lied, you know, and that’s a good way to trap me in, you know” and [the defendant] told me, at that moment, and his exact words were “no, Mr Mavropoulos is in the other camp and that is of no benefit to us”. That’s what he answered me. And that was the only time in all the lead up that Mavropoulos was mentioned, you know. Not as an alibi witness.
[32] Exhibit P37A.
[33] At 392.
The Alibi Notice was filed on 5 April 2001, some seven days after the conference on 29 March 2001. The material terms of the Alibi Notice[34] are as follows.
[I] provide notice of the names of the following witnesses who will depose to the fact that at the time of the offence alleged on the 18th day of October 1999, the accused was present at the International Club at Coober Pedy and was not at his home.
The witnesses who will depose that facts [sic] are as follows:
1. Dragan Ilich of Coober Pedy.
2. Nick Kambouris of Coober Pedy.
3. John Dunstan of Coober Pedy.
4. Eric Mavropoulos of Coober Pedy.
[34] Exhibit P30.
The defendant maintained in his evidence that after committal he discussed the potential for alibi evidence with the plaintiff. The defendant told the court that he was aware at this stage, from instructions he had taken from the plaintiff earlier in the year at a conference in Mt Gambier, that the timing of the alleged offences was an issue and that the plaintiff maintained that he was able to establish that he could not have committed the offences at the relevant time because he had been in the company of a number of other people. The following exchange occurred during the defendant’s evidence in chief.[35]
QWhat, if anything, progressed from that?
AHe – I then advised him that if he had witnesses that could establish, for want of a better word, an alibi for that period of time, we were obliged to disclose it to the prosecution within 7 days or run the risk of not being entitled to call that evidence or having comment made about the fact of recent invention if it was not disclosed at that time, and he then provided me with the names of a number of persons who could verify his whereabouts on – at the relevant times.
QDo you recall who those persons were?
AYes, there was a Dragan Ilich, a person called Mavropoulos, John Dunstan, another person whose name now I can’t now recall, and a Jim Nikouloudis.
QWhat, if anything, did you do about it when you received the names of these people?
AAsked Mr Blobel to get those people in to see me while I was in Coober Pedy that week so I could take a proof of evidence from them and prepare the Alibi Notice.
[35] T 851-852.
The defendant went on to say that he knew that John Dunstan and Eric Mavropoulos were not then available but that the plaintiff brought Dragan Ilich and Nick Kambouris to his room at the motel where he was staying so that he could take a proof of evidence from each of them. He said that he told the plaintiff to arrange for Mavropoulos and Dunstan to provide him with statements as soon as they could. The defendant then said this.[36]
I told him it was necessary to get the Notice into the prosecution within that time limit and by the time I got back to Mt Gambier and prepared the Notice, I would need to have that in. He instructed me to file the Alibi Notice because Dunstan and Mavropoulos would confirm the statements that have been made by the other two that I had already taken.
The defendant was reminded of the plaintiff’s evidence concerning the exchange the plaintiff said he had with Eric Mavropoulos which has been set out above and the defendant said that none of this was said to him.
[36] At T 852.
I am satisfied that the plaintiff did instruct the defendant to include Eric Mavropoulos in the Alibi Notice. I am satisfied of this for these reasons.
(i) I’ve already indicated that I am confident that the plaintiff has engaged in reconstruction to a significant extent when giving his evidence and that I have a clear preference for the evidence of the defendant over that of the plaintiff on topics where their recollections differ. In my view, the plaintiff’s evidence that he never instructed the defendant to include Mavropoulos is an example of reconstruction by the plaintiff after having seen the damage potentially caused to his defence by the Mavropoulos evidence.
(ii) The taking of instructions for and the completion of an Alibi Notice is not a particularly challenging task. The Alibi Notice in this case was completed soon after the conference during which the plaintiff gave instructions and at a time when it is likely that the defendant retained a clear recollection of those instructions.
(iii) On the plaintiff’s case, and given that I do not accept that he has accurately recounted either the terms of or the timing of the conversation he said, in his evidence, that he had with Eric Mavropoulos, Eric Mavropoulos could have been expected to be one of the plaintiff’s stronger alibi witnesses. The plaintiff’s view of the potential role of Eric Mavropoulos can be seen at p10 of Exhibit D53. This is a statement that the plaintiff acknowledged preparing setting out his detailed account of the events. It is signed by the plaintiff and dated 22 June 2001 although the top page has a hand written notation “received 27/9/2000”. It is headed “Harry Blobel’s Statement February 2000” and the plaintiff acknowledged during his cross-examination that he prepared this as a chronology in February 2000. The plaintiff has recorded the following on page 10 in the paragraph dealing with 18 October 1999.
I talked with my fellow Counsellors until 8pm after which I went to visit my friends Yoka and John Dunstan.I stayed there until about 9.20pm and then went to the Greek Club above the café and looked around for 5 minutes and saw Nick Kambouris and Jimmy/Diesel and others. … Eric Mavropoulos turned up and I then spoke to him about the Council problems and Eric’s problems with Council. Eric and I also spoke about my problems at home. He was impartial and tried to help both of us. I said that I had tried but that I had had enough. I was not going back to the way it was. Eric said that he would talk to Katarina. About 10pm I then spoke to Jimmy of Tracey’s and ordered a light meal for $10.00. I then played cards there and ate my meal. There were about 15 people in all there. I left for home about midnight and arrived home about 12.05am. …
If the plaintiff saw the need to include John Dunstan, it made sense also to include Eric Mavropoulos.
(iv) Had the plaintiff told the defendant that Eric Mavropoulos was threatening to lie about events that night, in the terms of the conversation the plaintiff asserts he had with Eric Mavropoulos and that he asserts he recounted to the defendant, it is almost inconceivable that so soon after such a conversation, the defendant would include the name of Eric Mavropoulos in the Alibi Notice.
(v) There was correspondence from the defendant to the plaintiff in which the defendant reminded the plaintiff that he still needed to obtain a statement from Eric Mavropoulos. The plaintiff, at no time, it would appear, objected to this or queried why it was that the defendant needed a statement from Eric Mavropoulos. A letter dated 4 May 2000 to the plaintiff[37] contains the following paragraph.
You should advise your alibi witnesses that they are likely to be approached by the police and although I have not yet obtained statements from John Dunstan and Eric Mavropoulos, if their statements are to the same effect as those of Dragan Ilich and Nick Kambouris I see no problem with them co-operating fully with the police.
A letter of 23 May 2000 sent from the defendant to the plaintiff[38] contains the following paragraph.
Could you please ensure that Dragan Ilich, Nick Kambouris, John Dunstan and Eric Mavropoulos are available during that week to be briefed [sic].
[37] Exhibit P37A.
[38] Exhibit D52A.
At the time the Alibi Notice was completed, in early April 2000, the plaintiff and the defendant faced a number of alternatives given that the defendant had not had an opportunity to proof Eric Mavropoulos. They could do what they did and include Eric Mavropoulos in the Alibi Notice and provide the completed Alibi Notice to the prosecution within the time permitted by the rules, they could have held off providing an Alibi Notice at all until such time as all proposed alibi witnesses had been satisfactorily proofed or they could have provided an Alibi Notice containing only the names of Ilich and Kambouris with a view to providing an amended notice if and when Mavropoulos and Dunstan were to be satisfactorily proofed. Finally, the defendant could have amended the Alibi Notice, as given, by deleting Eric Mavropoulos once it became apparent that he would not be of assistance to the defence.
The first and fourth alternatives would expose the plaintiff to or enhance the risk that the Crown would obtain access to Mavropoulos. However, had Mavropoulos not been nominated, the Crown may not have approached him for a statement at all. In effect, the first and fourth alternatives potentially exposed the plaintiff to an attack on credit in the event that Mavropoulos did not come up to expected proof as in fact, happened.
As a general rule, it is prudent to only include a person as a potential alibi witness after they have been satisfactorily proofed on the issues in question. There was nothing to stop the defendant in this case from not including Mavropoulos as an alibi witness unless and until he had been satisfactorily proofed. Of course, this runs the risk that a late nomination of an alibi witness might itself attract adverse comment but this would seem to be the lesser of the two potential evils. At the end of the day, the events as they turned out at the first trial and on the first appeal demonstrated the prudence of not including an alibi witness without first obtaining a satisfactory proof.
As I have said, I am satisfied on a balance of probabilities, that the plaintiff instructed the defendant to include Eric Mavropoulos on the Alibi Notice. However, these instructions can only be assessed in the light of advice given as to the prudence or otherwise of undertaking that course of action. I am not satisfied that the plaintiff was fully and properly advised about the potential risks of proceeding in this way. In these circumstances, the defendant negligently breached his professional duty when he sought, obtained and implemented the plaintiff’s instructions to include Eric Mavropoulos in the Alibi Notice.
The Defendant’s Alleged Failure to Instruct Himself as to Alleged Inconsistencies and Contradictions in the various Declarations (paragraphs 40(ii) and 42(i))
The plaintiff, in this context and generally, also complained bitterly about the asserted failure of the defendant to obtain all relevant police day sheets prior to the trial. According to the plaintiff, these assist in demonstrating various inconsistencies and inaccuracies in the Crown case. Much time was spent on this issue during the trial. I remain unpersuaded, on the evidence available to me, as to the probative value of any of the police day sheets. The one day sheet, in particular, that the plaintiff repeatedly referred to and relied upon during his evidence and in submissions was that for 21 October 1999. According to the plaintiff, this assisted in showing that Police Officer McLaren deliberately lied in her statement about seeing Joanna Dunstan at the café on 21 October and that this lie was part of the general conspiracy in which Police Officer McLaren was involved. However, I did not hear any evidence from Police Officer McLaren and, as I have indicated, nor was Joanna Dunstan called to give evidence on this or any other topic. I do have the evidence of the plaintiff to the effect that it was not possible for Joanna Dunstan to have been at the café on that day because she had left Coober Pedy urgently with her husband soon after finding out on the evening of 18 October that a family member had died. I will assume for present purposes that, in fact, Joanna Dunstan was not in Coober Pedy on 21 October. However, I am not prepared to find that Police Officer McLaren necessarily lied in this or any other respect. It is quite possible that Police Officer McLaren made a mistake and confused the occasion of 21 October when she was speaking to the complainant with another occasion at the café when Joanna Dunstan was present.
In any event, having reviewed the evidence of the plaintiff and the defendant on this topic together with the relevant documentary evidence, I accept the defendant’s submissions and I am satisfied that by the time the first trial commenced, the defendant had obtained access to all potentially relevant police day sheets.[39]
[39] See the defendant’s written submission under the heading “Police Day Sheets” provided during final submissions and the various evidentiary references contained therein.
As far as the various witness declarations are concerned, the plaintiff’s evidence was to the effect that during a conference in January or February 2000, during various telephone conversations and at the trial he explained to the defendant the numerous inconsistencies and contradictions apparent, to his mind, in the declarations provided by the complainant, Lesley Horvat and Police Officer McLaren. The defendant also gave evidence to this effect.
I am satisfied on the basis of the plaintiff’s and the defendant’s evidence that, prior to or as at the commencement of the trial, the defendant, in his capacity as solicitor and in his capacity as barrister, was aware of the contents of the various witness declarations, the contents, in so far as relevant, of the police day sheets and of the plaintiff’s instructions with respect thereto. The allegation that the defendant failed to take proper instructions and to instruct himself, as counsel, in this respect is not made out. Whether or not the defendant thereupon fell short of his professional duty in some way in failing to make proper use of his instructions in cross-examining the complainant, Lesley Horvat and Police Officer McLaren, is not a matter available for consideration in this trial.
The Handbag Incident (paragraphs 42(ii) and (iii))
The plaintiff’s evidence on these topics was confused and confusing. Ultimately, the evidence given by the complainant about the handbag incident at the first criminal trial was of such a nature that the judge directed an acquittal on the assault charge. I am not satisfied that the defendant failed to obtain the plaintiff’s instructions on these topics in his capacity as solicitor and barrister when preparing the defence. Once again, whether or not he fell short of his professional duty in the way in which he made use or in failing to make proper use of these instructions when presenting the plaintiff’s defence at the first criminal trial, is not a matter available for consideration in this trial.
Defendant’s Failure to Object to the Calling of Mavropoulos and Gountounas and to make use of Certain Documents during the Trial (paragraph 42(iv))
Once again, I am not satisfied on the evidence before me that the defendant, in his capacity either as solicitor or barrister, was not fully aware of the plaintiff’s instructions with respect to each of these matters. Whether or not the defendant fell short of his professional duty in the way in which he made use or in failing to make proper use of these instructions in failing to object to the calling of these witnesses with sufficient vigour or at all and when presenting the plaintiff’s defence at the first criminal trial is not a matter available for consideration in this trial.
Advocate’s Immunity
The defendant maintains that each of these particularised allegations of negligence by the defendant fail at the first hurdle, that is, that even if they were to be made out on the facts, they all fall within the advocate’s immunity that is still part of the law in this State, such that the plaintiff can have no cause of action against the defendant in respect of any of these allegations.
At common law, an advocate cannot be sued by his or her client for negligence in the conduct of a case in court or for work done out of court which leads to a decision affecting the conduct of a case in court.[40] The immunity applies to the acts or omissions of a solicitor which, if committed by an advocate, would be immune from suit.[41] This immunity, unlike the situation in many other common law based jurisdictions,[42] remains part of the common law in this country. There is still an ongoing debate as to the extent of the immunity and as to its proper application.
[40] Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 and D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12.
[41] D’Orta-Ekenaike v Victoria Legal Aid.
[42] For example, as for England and Wales see Arthur J S Hall and Co. v Simons [2002] 1 AC 615 and as for New Zealand, see Lai Sun Poi v Chamberlains [2005] NZCA 37.
In D’Orta-Ekenaike v Victoria Legal Aid[43] the authors of the plurality judgment[44] held that the central justification for the advocate’s immunity (be it that attaching to a barrister or a solicitor) is the principle that controversies, once resolved, are not to be re-opened except in a few narrowly defined circumstances. As a general principle, in attempting to demonstrate that an advocate’s negligence in the conduct of litigation has caused damage to the client, re-litigation of the controversy would be an inevitable, but unacceptable, step.
[43] Above.
[44] Gleeson CJ, Gummow, Hayne and Heydon JJ.
In D’Orta-Ekenaike, the applicant had been charged with rape. At his trial in the County Court of Victoria, an earlier plea of guilty at the committal proceeding was lead in evidence. He was convicted and sentenced to a term of imprisonment. On appeal against conviction, the Court of Appeal set aside the verdict, quashed the conviction and directed a new trial on the ground that although the evidence of the applicant’s guilty plea at committal had been properly admitted in evidence, the trial judge had failed to give sufficient directions about the use that might be made of the plea. On the re-trial, evidence of the guilty plea at committal was not admitted and the applicant was acquitted. In civil proceedings brought against his barrister and against Victoria Legal Aid (as solicitor) the applicant alleged that each owed him a duty to exercise reasonable skill and care and that each breached that duty in the giving of advice prior to committal that he should plead guilty to the charge both as to the content of that advice and as to the manner of giving that advice. The merits of these allegations were never tested. Both respondent’s applied for orders terminating the proceedings summarily and a judge of the County Court ordered that the proceedings be stayed permanently on the basis that the advice allegedly given by both the Victoria Legal Aid solicitor concerned and the barrister “was so intimately connected with the conduct of the trial as to come within the immunity defence principle”. The Court of Appeal refused a grant of leave to appeal and it was from that refusal that the applicant sought special leave to appeal to the High Court.
The High Court held that the advice given in this case by both the solicitor and barrister concerned fell within the provision of work which an advocate did out of court but which lead to a decision which affected the conduct of the case at the subsequent trial and that the immunity from suit at common law applied. The solicitor was held not to stand in any different position from the barrister. The advice which the solicitor was alleged to have given, either separately from or in conjunction with that of the barrister, was alleged to have been given at the same time and for the same purposes as that of the barrister.
… No relevant distinction could be drawn between the junior of two counsel retained to appear for an accused tendering advice of the kind of which the applicant complains and the instructing solicitor tendering that advice. Neither junior counsel nor the instructing solicitor may have addressed the court in any subsequent court appearance. The duties which each owes the client are identical. The content of the advice is identical. It cannot be said that the advice of one is more closely related to the court proceedings than the other, let alone one being intrinsically superior to or more effective than the other (if such a distinction were possible or relevant). What this example reveals is that the considerations of finality which require maintenance of the advocate's immunity require that the immunity extend to the advice allegedly given by [the solicitor].
Because the immunity now in question is rooted in the considerations described earlier, where a legal practitioner (whether acting as advocate, or as solicitor instructing an advocate) gives advice which leads to a decision (here the client's decision to enter a guilty plea at committal) which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account.[45]
[45] D’Orta-Ekenaike at paragraphs [90] – [91].
In the result, special leave to appeal was granted, the appeal was treated as instituted and heard at the same time as the special leave application but dismissed.
In considering the rationale for the immunity, the plurality judgment said this.[46]
As foreshadowed in what is written above, particular attention must be directed to whether rules about abuse of process provide a sufficient satisfaction of the principle that controversies, quelled by the application of judicial power, are generally not to be reopened. That requires identification of the nature of the complaint made by a disappointed client who seeks to sue an advocate; next, identification of the premise from which the applicant's argument proceeds; and then, consideration of whether a distinction can or should be drawn between “civil” and “criminal” proceedings, or between challenges to “final” or “intermediate” results. First, what is the nature of the complaint that is made?
In every case the complaint must be that a consequence has befallen the client which has not been, and cannot be, sufficiently corrected within the litigation in which the client was engaged. That consequence may take a number of forms. For the moment, it will suffice to identify what may appear to be the three chief consequences: (a) a wrong final result; (b) a wrong intermediate result; and (c) wasted costs.
A client may wish to say that the conduct of the advocate was a cause of the client losing the case because, for example, a point was not taken, or a witness was not called, or evidence was not led. The client may have no appeal, or no remedy on appeal, as, for example, would generally be the case if the evidence not called was available at trial.
A client may wish to say, as the applicant does in this case, that the conduct of the advocate (or here, the advocate and VLA) was a cause of the client suffering an intermediate consequence (conviction at the first trial and imprisonment) which was not wholly remedied on appeal. (The conviction was set aside but the client was incarcerated for a time and complains of that and what is said to have been caused by it.)
A client may wish to say that the conduct of the advocate was a cause of the client incurring unnecessary expense. That may be because a costs order was made against the client or because unnecessary costs were incurred in taking a step in the litigation.
What unites these different kinds of consequence is that none of them has been, or could be, wholly remedied within the original litigation. The final order has not been, and cannot be, overturned on appeal. The intermediate consequence cannot be repaired or expunged on appeal. The costs order cannot be set aside; the costs incurred cannot be recovered from an opposite party. And in every one of these cases, the client would say that, but for the advocate's conduct, there would have been a different result. In particular, leaving cases of wasted costs aside, the client wishes to assert that, if the case had been prepared and presented properly, a different final, or intermediate, result would have been reached. And yet the judicial system has arrived at the result it did. The consequences that have befallen the client are consequences flowing from what, by hypothesis, is a lawful result. So, to take the present case, the imprisonment of which the applicant seeks to complain is lawful imprisonment. In a case where the client would say the wrong final result is reached, the result in fact reached is, by hypothesis, one that was lawfully reached. Whether the lawful infliction of adverse consequences (such, for example, as imprisonment) can constitute a form of damage is a question that may be noted but need not be answered.
[46] At paragraphs [66] – [70].
Their Honours, saw no reason to distinguish between civil proceedings and criminal proceedings in this respect. They went on to consider whether or not a distinction should be drawn between final and intermediate outcomes.[47]
In cases where a client sues an advocate, the client will always have been a party to the proceeding the result in which is challenged. If effect is to be given to the principle that decisions of the courts, unless set aside or quashed, are to be accepted as incontrovertibly correct, it must be applied at least to the parties to the proceeding in which the decision is given. The final outcome of the proceeding, whether “civil” or “criminal” or a hybrid proceeding, must be incontrovertible by the parties to it.
If that is right, it follows that no remedy is to be provided if its provision depends upon demonstrating that a different final result should have been reached in the earlier litigation. Cases such as the present, in which the challenge made is to an intermediate result, can then be seen to be exceptional. The contention would be that, even if a client cannot say that a different final outcome should have been reached, the client may nonetheless complain about an intermediate result.
[47] At paragraphs [79] – [80].
In the present case, the plaintiff ultimately obtained the final outcome (a directed acquittal) that he maintains should have been obtained all along. But complains about the intermediate result that is, the conviction at the first trial which, on the plaintiff’s case, caused him to be imprisoned and to suffer various consequential losses. The plurality judgment went on to consider[48] whether an exemption to the general rule ought to apply where the challenge is to an intermediate outcome such as that in the case before me. It determined that there should be no such distinction drawn – “if final results cannot be challenged, intermediate results should not be treated differently”.[49]
[48] At paragraphs [81] ff.
[49] At paragraph [82].
The authors of the plurality judgment concluded that no sufficient reason had been proffered for departing from the test described by the High Court earlier in Giannarelli v Wraith[50] which focused on “work done out of court which leads to a decision affecting the conduct of the case in court”. Their Honours went on to say that the phrase often employed - “work intimately connected with work in Court” - was not a significantly different statement of the test. They concluded[51] that “where a legal practitioner (whether acting as advocate, or as solicitor instructing an advocate) gives advice which leads to a decision … which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account.”
[50] (1988) 165 CLR 543 at 560 per Mason CJ.
[51] At paragraph [91].
In D’Orta-Ekenaike, McHugh J in a separate judgment, agreeing in the result, said this.[52]
Accordingly, the immunity should extend to any work, which, if the subject of a claim of negligence, would require the impugning of a final decision of a court or the re-litigation of matters already finally determined by a court. On that basis, no distinction should be drawn between the role of a solicitor and a barrister in the context of advising a client regarding the entering of a plea in criminal proceedings. If the immunity were applicable to the barrister and not the solicitor in the present case, it would not serve the public policy purpose of preventing the rehearing of the applicant’s charge.
[52] At paragraph [168].
In Symonds v Vass[53], Ipp JA said this.
Put shortly, the principal rationale of the majority in D’Orta-Ekenaike is the finality of litigation principle. It is thus difficult to resist the proposition that advocate’s immunity applies to any claim that requires the re-litigation of a decided case on the alleged ground that any work done out of court (leading to a decision affecting the conduct of the decided case in court) was negligently done by a solicitor or barrister. On this basis, “work done out of court which leads to a decision affecting the conduct of the case in court” is work that is “intimately connected with the conduct of a case in court”. This explains the statement by the plurality in D’Orta-Ekenaike that the two expressions of the test do not differ in any significant way.
(emphasis in the original)
[53] [2009] NSWCA 139 at paragraph [105].
In Symonds v Vass, Beazley JA was troubled as to whether or not the immunity should extend as far as Ipp JA considered it should and held that on the facts of the case before her Honour, it was not possible to determine whether the advocate’s immunity applied without proper findings of negligence. Her Honour ordered that the appeal should be allowed and the matter remitted for a new trial on this basis. Giles JA also considered that there should be a new trial for this reason. His Honour said this.[54]
Ipp JA has considered in detail the extent and application of the immunity, and I do not unnecessarily repeat the valuable discussion in his Honour’s reasons. On the law as expounded in the High Court the immunity extends to the work of a solicitor, not acting as an advocate, done out of court which is intimately connected with work in court, or on another statement of the test the work which leads to a decision affecting the conduct of the case in court. Its central justification is the finality principle, that a controversy once quelled should not be re-litigated in demonstrating that the lawyer’s negligence in the conduct of litigation caused damage to the client. Re-litigation in which it is asserted that, had the case been prepared and presented properly, a different result would have been reached is regarded as offending the finality principle.
(emphasis supplied)
[54] At paragraph [14].
There are many examples, pre-dating and post-dating Giannarelli v Wraith and D’Orta-Ekenaike v Victoria Legal Aid, of conduct which has been held to fall within the advocate’s immunity. These are canvassed in some detail in the judgment of Ipp JA in Symonds v Vass and in the various text book treatments of the topic.[55] In Keefe v Marks[56] Gleeson CJ (of the New South Wales Court of Appeal, as he then was) gave as examples interviewing the plaintiff and any potential witnesses, giving advice and making decisions about what witnesses to call and not to call, working up any necessary legal arguments, giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended. In the early English case of Rondel v Worsley[57] a refusal by counsel to ask all of the questions or to lead all of the evidence suggested by the client was held to fall within the immunity.
[55] Including, for example, Law of Torts in Australia 4th Edition by Trindade, Cane and Lunney; OUP, at paragraph 9.6.2.3.
[56] (1989) 16 NSWLR 713 at 718.
[57] [1969] 1 AC 191.
Does the immunity apply to the plaintiff’s complaints?
There is no doubt that the defendant made mistakes in the presentation of the plaintiff’s case at the first trial. As already stated, a number of errors were conceded by the defendant at the first appeal and as a result the appeal was allowed and the initial convictions quashed. Those errors essentially concerned the defendant’s conduct, as barrister, in cross-examining the complainant and in failing to properly present the plaintiff’s case in accordance with the plaintiff’s instructions at trial. These admitted errors during the first trial are not part of the plaintiff’s pleaded claims before me. They were struck out of an earlier version of the plaintiff’s statement of claim on the basis that they fell squarely within the advocate’s immunity. I have no reason to doubt the correctness of that earlier interlocutory determination. The matters complained of and the subject of the first appeal were all matters of work done in court and were all matters affecting the conduct of the case in court. They were matters such that for the plaintiff to succeed in establishing civil liability, the trial leading up to the first jury’s decision would need to have been re-litigated with a view to determining whether or not the first jury would have come to a different conclusion. That is not the same thing as the Court of Criminal Appeal finding, on appeal, that the appellant did not receive a fair trial as a result of a miscarriage of justice such that a re-trial ought to be undertaken.
In my view, each of the plaintiff’s pleaded complaints in this trial, apart from perhaps the first,[58] can be similarly characterised. I accept that the plaintiff has now pitched his case at the level of complaint against the defendant in his role as solicitor rather than his role as barrister. However, in the circumstances as relied on by the plaintiff the distinction he has attempted to draw is specious.
[58] That is, the allegation that the defendant was negligent in instructing incompetent counsel, namely himself, to appear at the trial.
In this respect, I am mindful of the early observations of Bray CJ in Feldman v A Practitioner[59] in a context where his Honour was specifically addressing the situation where a practitioner in a fused profession, as is the case in South Australia, acted as both solicitor and barrister.
Nevertheless, of course, a solicitor-barrister remains liable to an action for negligence for what he does while acting as a solicitor. Clearly he cannot by assuming the dual role acquire an immunity that he would not have had if he had acted as a solicitor alone and briefed other counsel. And when he performs both roles it will often be a question of some nicety whether any particular act, omission or decision emanated from the solicitor or from the barrister. For example, it is the duty of the barrister to advise, if asked, what evidence is necessary and the duty of the solicitor to be diligent in endeavouring to procure it.
[59] (1978) 18 SASR 238 at 239.
The report of the case goes on to note the following.
[His Honour then considered the allegations of negligence made by the plaintiff. In particular, the plaintiff alleged that the practitioner had failed to adduce evidence upon a certain topic. As to this allegation, his Honour found that any decisions by the defendant not to examine or re-examine the plaintiff, or not to call other evidence, were clearly barrister’s or advocate’s decisions made by the defendant as counsel. …]
Bray CJ then observed.
Whether they were right or wrong, they are covered by his immunity from suit for negligence. I could conceive, however, of a case of negligence against him as a solicitor in failing in the course of getting up the case to search for or obtain available evidence on the topic of damages.
If as counsel, he advised himself as solicitor at some stage in the pretrial history that there was enough evidence on the topic then, even if he acted negligently, he would be immune from suit. If, however, as solicitor he failed to obtain material which it was within his power to obtain to put before himself as counsel for advice on evidence, or if he failed to obtain such material after being advised by himself as counsel that it was necessary to do so, then it may well be that he would be liable in negligence.
I realise how artificial such a dissection of what he did or left undone must appear, but there is no other way, I think, of distinguishing between the liability of the solicitor to actions of negligence and the immunity of the barrister from such actions in a profession where the same person assumes both roles.
Whilst these observations of Bray CJ have been adverted to from time to time by other courts without apparent animadversion, I am not aware of any case where they have been directed applied. In any event, his Honour’s dicta must be read in the context of the decision of the High Court in D’Orta-Ekenaike in so far as it affects the advocate’s immunity as applied to a solicitor and in the context of what, in my view, is the clear guidance given by the High Court in the that case as to the ambit of the immunity.
Even on the assumption that each of the claims made by the plaintiff as set out above can be characterised as solicitor’s work involving the obtaining of instructions from the client, the obtaining of evidence related thereto and thereafter properly instructing himself as barrister to present that evidence either by way of cross-examination of witnesses or calling of witnesses, each of the allegations, in my view, is one that would require re-litigation of the first jury verdict in order to determine whether or not a different intermediate decision would have been arrived at had the defendant not committed any or all of the alleged errors. In my view, each of these complaints remains to be characterised as either work done in court or work done out of court which lead to a decision affecting the conduct of the case in court and falls within the immunity. To the extent that the work was done by the defendant out of court in his capacity as solicitor, it was in each case, to take up the contrast identified by Bray CJ, work or decisions made concerning what evidence was required rather than a failure of diligence in endeavouring to procure required evidence.
I should say something specifically about the one complaint with respect to which the defendant’s conduct can be criticised – the inclusion of Eric Mavropoulos in the Alibi Notice. This falls squarely within the example given by Gleeson CJ in Keefe v Marks[60] of giving advice and making decisions about what witnesses to call.
[60] (1989) 16 NSWLR 713 at 718.
Causation
On the basis of my findings to point, the plaintiff’s claim must be dismissed. However, I will briefly deal with the question of causation.
I have found that in only one of the respects pleaded by the plaintiff, did the defendant negligently fail to observe his professional duty owed to the plaintiff. That failure concerned the inclusion of Eric Mavropoulos on the Alibi Notice. I have also found that this failure, like all of the other pleaded allegations (with the possible exception of the allegation that the defendant was negligent in briefing himself as counsel) falls within the advocate’s immunity available to the defendant in his capacity as solicitor and barrister.
If I am wrong in any of these respects the plaintiff still must demonstrate, on a balance of probabilities, that had the defendant acted differently in these or any of these respects a different intermediate outcome would have resulted. In other words, the plaintiff would have to demonstrate that, if the defence at the first trial had been presented differently in one or more of these respects, the jury, properly instructed, would have acquitted. For the present, I will assume negligence in each of the respects as pleaded and that the advocate’s immunity does not apply.
An insuperable problem for the plaintiff is that I have not heard evidence from the Director of Public Prosecutions or more precisely counsel and instructing solicitor who appeared on his behalf at the first trial, members of the jury at the first trial or the trial judge. I also have no evidence as to how (in what form and to what extent) the various matters complained of would have been developed and presented to the jury during the first trial.[61] It simply is not possible to determine what additional evidence would have been put and what parts of the evidence, actually adduced, would not have been put before the jury, what additional or different submissions would have been made by prosecution and defence counsel and what effect, if any, all of this would have had on the jury’s decision, even on the assumption that the jury would have been properly instructed by the trial judge.
[61] For example, what evidence would Joanna Dunstan have given? How would it have stood up to cross-examination? Would Eric Mavropoulos have been approached by and called by the Crown in any event? How would the various inconsistencies in some of the witnesses’ declarations have been presented?
Ultimately, the outcome of the trial of the plaintiff for rape was always going to depend on the jury’s view of the credibility of the complainant and, in a practical sense, that of the plaintiff.[62]
[62] I recognise that the jury, properly instructed, would have been instructed along the lines that the Crown carried the onus of proving its case beyond reasonable doubt, that the defence assumed no onus of proof at all and that they should not approach the matter by asking themselves whether or not they believe the plaintiff. However, as a practical matter, the case before the jury was essentially one of oath against oath.
A retrial was ordered following the first successful appeal on the basis that a miscarriage of justice at the trial was found to have occurred because of mismanagement by the defendant. The Full Court was not prepared to direct an acquittal. Furthermore, the mismanagement of counsel identified on appeal concerned matters different from those the subject of complaint in this trial. The result of this first appeal cannot assist in demonstrating that the jury would have acquitted had the matters complained of in the present trial been dealt with differently.
It is true that the Court of Criminal Appeal directed an acquittal following the second successful appeal. However, this was on the basis of the evidence lead and submissions made at the second trial (which are not in evidence before me) before a different jury. The Court of Criminal Appeal’s decision here can be of no assistance in determining whether the first jury would have come to a different conclusion had the matters complained of in the present trial been dealt with differently at the first criminal trial. As the authors of the plurality judgment in D’Orte-Ekenaike observed[63] “the grounds on which an intermediate result is set aside may be unrelated to what is now alleged to have been the advocate’s negligent conduct”.
[63] At paragraph [81].
The plaintiff bears the onus of proving, on a balance of probabilities, that the first jury would have arrived at a different intermediate decision. That onus has not been discharged. The problems that confronted the plaintiff here – the difficulties inherent in this causation question – illustrate a central rationale underlying the applicability here of the advocate’s immunity.
The Plaintiff’s Loss and Damage
I turn to the plaintiff’s loss and damage claimed to have been suffered as a result of his wrongful conviction at the first trial and subsequent incarceration. Again, I will deal with this topic only briefly. The plaintiff’s first head of damage concerns his wrongful incarceration. The plaintiff’s claim here is that if it were to be established that the defendant’s negligence caused the plaintiff to be convicted rather than acquitted at the first trial, such negligence also would be a cause of the plaintiff’s initial incarceration. For the reason given above,[64] in my view, any causal effect of the defendant’s negligent conduct, that is, his responsibility in law, would be limited to the first period the plaintiff spent in prison. However, the defendant has submitted that the plaintiff’s incarceration was a legal consequence of a lawful conviction at the first trial and was not wrongful. The defendant further submitted that the incarceration was attributable to the decision of the jury not any alleged breaches of duty by the defendant. In making these submissions, the defendant relied on the reasoning in D’Orte-Ekenaike. However, the authors of the plurality judgment said this on this topic.[65]
Whether the lawful infliction of adverse consequences (such, for example, as imprisonment) can constitute a form of damage is a question that may be noted but need not be answered.
[64] At paragraph 29.
[65] At paragraph [70].
Given that I have found that the defendant is not liable to the plaintiff, it is unnecessary that I form a concluded view on this issue at this stage. If I am wrong on the question of liability, I would wish to hear further from the parties not just on the question of the period of time actually spent in custody[66] but also on this issue of whether time in custody would constitute a recoverable form of damage in any event.
[66] See paragraph 19 above.
The plaintiff has also claimed that the defendant’s negligence, in causing the plaintiff to be convicted rather than acquitted at the first trial and subsequently incarcerated, also caused significant ill-health and financial loss resulting from the loss of his opal cutting business and his partnership interest in the family café business and the incurring of legal fees in connection with the first and second appeals and the second trial.
I have reviewed the evidence given by the plaintiff concerning his health problems. The plaintiff called no medical evidence. I am not satisfied that the plaintiff has suffered from any recognised medical or psychiatric condition[67] other than ones that pre-dated the rape allegations (such as, for example, his heart condition diagnosed in 1999). I am not satisfied that any pre-existing ill health was materially exacerbated by the plaintiff’s incarceration. I have little doubt that the plaintiff suffered distress, alarm, fear and anxiety as a consequence of the guilty verdict and incarceration. However, this is insufficient to support a claim for damages under this head.
[67] See, for example, Tame v New South Wales (2002) 211 CLR 317 at [7] per Gleeson CJ, [194] per Gummow and Kirby JJ.
I also have reviewed the plaintiff’s evidence given with respect to the failure of his opal cutting business and the loss of his café business. The latter was disposed of as a result of the family court proceedings and District Court litigation engaged in by the partners to the business.[68] In any event, I am not satisfied, on the evidence before me that the plaintiff’s incarceration in any way caused or contributed to these claimed losses.
[68] Blobel and Ors v Blobel and Ors [2005] SADC 117.
As to the additional legal fees expended following the first, unsuccessful trial, the defendant maintains that these are not claimable because of the reasoning in D-Orte-Ekenaike. I accept that this case stands for the proposition that to permit a client to bring a claim against his or her advocate for wasted costs often will involve a direct or indirect challenge to the outcome on which the disposition of costs depended and therefore, ordinarily such a claim would fall within the immunity.[69] However, it does seem to me that if I am wrong, that is, if the defendant was negligent and if this negligence was not within the immunity and if but for the defendant’s negligence, the plaintiff would have been acquitted at the first trial, the legal costs that the plaintiff had to expend to redress that wrong should be recoverable.
[69] See paragraph [83].
The plaintiff gave evidence on amounts expended and borrowed but not repaid for this purpose. In the event that I am wrong on the issue of liability, I would like to hear further submissions from the parties concerning the recoverability of the amounts borrowed and expended for this purpose before finally ruling on this aspect of the plaintiff’s damages claim.
Conclusion
The plaintiff’s claim is dismissed. I will hear the parties on the question of costs.
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