Council of the New South Wales Bar Association v Ghabrial

[2010] NSWADT 306

CITATION:	Council of the New South Wales Bar Association v Ghabrial [2010] NSWADT 306
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Jehane Isabelle Ghabrial
FILE NUMBER:	102004
HEARING DATES:	22 and 23 November 2010
SUBMISSIONS CLOSED:	23 November 2010
DATE OF DECISION:	24 December 2010
BEFORE:	Patten D - Deputy President; Blacket P SC - Judical Member; Fitzgerald R - Non-Judicial Member
CATCHWORDS:	Email alleged to constitute professional misconduct - interpretation contended for not proved
LEGISLATION CITED:	Crimes Act 1900 Legal Profession Act 2004
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 McAuliffe v The Queen [1995] 183 CLR 108 The Queen v Barlow [1996-1997] 188 CLR 1 The Queen v Keenan [2008] 236 CLR 397
REPRESENTATION:	J Giles, barrister P Morris SC
ORDERS:	1. Application dismissed. 2. Subject to 3, no order as to costs. 3. Leave to each party to apply for an order for costs by lodging and serving submissions in support thereof with the Tribunal within 30 days. Any such submission may be answered by the opposing party within a further 21 days. Thereafter the matter to be decided on the papers.

REASONS FOR DECISION

1 By its Amended Application in this case, the applicant seeks a finding that the respondent, a barrister, be found guilty of professional misconduct and as a consequence the making of one or more of the orders provided for in s 562 of the Legal Profession Act 2004 (the Act).

2 The underlying facts are not in dispute. In May 2008, Ms Ghabrial (hereafter ‘the barrister’) was briefed by solicitor Mr Michael Abboud to appear for brothers Mostafa Azary (Azary) and Ali Houssain (Houssain). They had been charged together with three other individuals Weria Fathullah, Pshtiwam Shaik Benzi and Ehab Faris with a variety of offences including malicious wounding and affray.

3 The comprehensive brief delivered to the barrister revealed a prosecution case wherein in brief summary it was alleged that the five accused went to the Shark Hotel, Liverpool Street, Sydney on 11 August 2007 at about 10.30pm. In the early hours of 12 August, Azary and Houssain were ejected from the bar of the hotel by security officers Justin Jindi and Ramsay Hajaj for breaches of the hotel’s dress code. Fathullah and Faris left the hotel at the same time. Azary, Houssain, Faris and Fathullah drove to their home in Western Sydney where they loaded into the boot of their silver Lancer a collection of bats and sticks. The four then returned to the city in the Lancer and having met up with Benzi, confronted Mr Jindi and Mr Hajaj who, having finished their security duties for the night, were walking towards their cars parked nearby at a Wilson Parking Station. They set upon Mr Jindi and Mr Hajaj with the weapons they had brought with them. Mr Jindi suffered injuries including what appeared to be a knife wound in his back. In his statement to the Police, Mr Hajaj said that he saw Faris holding a knife in his left hand. Mr Jindi in his statement said that he saw no weapon except two baseball bats and some wooden poles. He did not realise he had a stab wound in his back until after he had escaped from the scene. Both he and Mr Hajaj had however heard the sound of a bottle or glass smashing shortly before they were attacked. This circumstance was supported by independent bystanders.

4 Included in the brief were ERISP interviews with all 5 accused conducted on the morning of 12 August 2007. They all denied any involvement in the attack on Mr Jindi and Mr Hajaj.

5 The brief also included a certificate by Dr Ien Ly to the effect that he examined Mr Jindi at 0504 hours on 12 August 2007 in the Emergency Department of the Royal Prince Alfred Hospital and found “a horizontal 3cm wide stab wound to the back at the level of the 1^st lumbar vertebra to the left of the midline approximately 2cm deep”.

6 Finally it is appropriate to record that the brief contained statements indicating that the accused were stopped and arrested while travelling away from the city in the silver Lancer. In the boot of the vehicle Police located two wooden poles and a baseball bat.

7 After receipt of the brief, the barrister participated in discussions with prosecuting officers with the object of having the charge of malicious wounding withdrawn, her clients by then having admitted being involved in the fight with Mr Jindi and Mr Hajaj. The Crown in the event refused to withdraw the malicious wounding charge but agreed to a version of facts whereby the barrister’s clients became aware that one of their co-offenders had a knife only as they rushed towards Mr Jindi with a view to assaulting him with their various weapons yet continued with the assault notwithstanding.

8 Houssain and Azary would not consent to this course and accordingly before the Magistrate at committal proceedings on 17 June 2008 they pleaded guilty to common assault and affray but not guilty to the charge of malicious wounding in company. They were committed to stand trial in the District Court.

9 We note that the barrister was apparently under a misapprehension as to the law regarding the offence of malicious wounding in company. Initially, at least, she thought that for her clients to be convicted of that offence the Crown needed to prove that they knew that one of their co-offenders was armed with a knife. As cases such as McAuliffe v The Queen [1995] 183 CLR 108, The Queen v Barlow [1996-1997] 188 CLR 1 and more recently, The Queen v Keenan [2008] 236 CLR 397 make clear in determining common purpose the focus must be on the purpose of the criminal enterprise not on the means employed for achieving it.

10 On 3 July 2008, the barrister in anticipation of her clients being arraigned in the District Court the following day, sent an email to Mr Abboud which (omitting references to her available hearing dates) read:

At the AZARY arraignment tomorrow, please ensure that the clients confirm their plea of guilty to the Affray charge and not guilty to the more serious charge.

The Crown will not accept our plea of guilty in full satisfaction of the indictment, so a trial date will be set.

I have spoken with Kate Chater and she agrees the trial for the 5 offenders (including our guys) will take up to 2 weeks particularly if we give evidence which is highly likely. We will be calling our guys given their ERISPS denying the offence and their subsequent pleas of guilty. We will have to explain this to the jury. I imagine the others might give evidence.

11 It appears that the arraignment was in fact adjourned until 26 September when the barrister appeared before Chief Judge Blanch. She subsequently sent an email to Mr Abboud and the solicitors for the other defendants as follows:

Morning everyone

Just confirming my appearance this morning at the Azary et al arraignment listing before Justice Blanch.

As you know, all our clients were excused today. I think Bruce Smith appeared for the Crown.

The Crown filed the attached indictment. A couple of small matters that I have noted myself (but not told the Crown about):

1. They have named 6 offenders (not 5) – two of them being the same person “Pshtiwan Shaik” and “Pshtiwan Shaik Benzi”.

2. They have spelt Shaik’s surname wrong, which really is not an issue but should be corrected at some stage.

3. If you look at the back sheet, they have stated that the affray is under section 93(1), which obviously is not correct. Section 93 being “bigamy”.

I confirmed in court that my guys Azary and Houssian tried to plead guilty to the affray charge in the Local Court but that the Crown refused to accept those pleas.

The trial is listed for 4 weeks commencing 9 March 2009. This was the only period during which we were ALL available at the same time. Fresh notices to issue to all our clients given they were excused today.

I think it would be prudent for all of us to have a meeting to discuss our approaches to this matter.

I don’t think any of us pointing the finger at anyone else re possession of the knife will assist any of us.

My view at this stage is the more we each muddy the waters re the knife and who it was who had it (by all saying we knew nothing of the knife), the more chance of succeeding re the Mal Wound. At this stage, only 1 person out of all the Crown witnesses at the scene actually saw a knife coming. Obviously that means it was not clearly visible to all, which it is a reasonable possibility that it was also not visible to the offenders. Knives are easily concealed. If we all deny seeing a knife, rather than say X was carrying the knife and stabbed the victim, obviously the jury is going to think one of us is lying because the knife had to have been presented by someone, but they have to be satisfied who that was and that all of the others knew of its presence at any stage before or during the affray. I think they have problems on this issue given only one out of the 5 crown witnesses (including the victim) at the scene saw it. Let’s chat about it at some stage, shall we?

Until then, if any of you have any questions about today, please don’t hesitate to call or email me.

Cheers, Jehane

12 It was the transmission of that email (to which we will hereafter refer as “the email”) which triggered these proceedings although not immediately. Indeed it seems that the barrister continued to prepare her clients’ case for trial with some diligence. In evidence are references to discussions with the Crown and a perfectly appropriate exchange of emails between the barrister and a representative of the prosecution on 26 and 27 February 2009 in which the Crown outlined its position in relation to the criminal liability of the barrister’s clients and she in turn provided details of their current instructions to her presumably in a further attempt to persuade the Crown to accept a plea to offences other than malicious wound in company in discharge of the indictment. However any further negotiation was terminated by the barrister’s email of 5.37pm on 27 February when she informed the Crown that she had withdrawn from the case. So far as the evidence relates up to that time neither the meeting contemplated by the email took place nor was the subject of the email discussed except as mentioned in the barrister’s letter of 2 March 2009 referred to hereafter.

13 In the afternoon of 27 February 2009 the barrister was requested to call upon Mr Selth, Executive Director of the Bar Association. He told her of a complaint about her professional conduct and presumably handed to her a letter in evidence dated 27 February signed by the Bar Association Director, Professional Conduct. The letter reproduced that part of the email which suggested a meeting of those representing the various accused and indicated that the email had caused the Bar Council to resolve to make a complaint against her alleging professional misconduct. She was invited to make submissions about the complaint or its subject matter to the Bar Council.

14 Her letter of 2 March 2009 responded to that invitation and it is appropriate that we set it out in full (omitting formal parts):

Thank you for your letter dated 27 February 2009.

This has been a most distressing situation for me to find myself in. It is all such a terrible misunderstanding and misinterpretation of the intended meaning of my email.

I can only assume that the person who read and interpreted a speculatively sinister meaning to it came to the matter with no knowledge of the brief and did not know of the context in which I wrote it. Had I had any inkling that any person would have read a sinister meaning into the email, I would never have sent it.

I have worked hard for many years to establish a reputation as a good, ethical, hard working and competent lawyer. My reputation and integrity are of the utmost importance to me and I would never intentionally do anything to jeopardise either. I would never compromise my integrity.

Background to the email

I was briefed by Michael Abboud, solicitor, to act for the Mostafa Azary and Ali Houssin (brothers).

Mostafa & one of his coaccused, Weria Fathullah, were charged with Affray, Assault and Malicious Wounding in Company . Morad/Ali was charged with Affray and Malicious Wounding in Company and I understood that the two other coaccuseds, Ehab Faris and Pshtiwan Bzeni, were charged with the same charges.

It was alleged by the victim that there may have been 5 to 8 attackers in the affray. One witness said there were about 8 attackers. It was also alleged that bats and poles were wielded by some of the attackers and one of a number of witnesses saw that one of the attackers carried a knife, which the Crown alleged was used against the victim of the stabbing. The above five males were pulled over by police in a silver laser and arrested, interviewed and charged. Police found a bat and two poles in the boot of the car.

I received a brief that contained the transcripts of interviews of all five accused persons, including my clients. Those statements contained denials of the offences alleged against each of them.

In those interviews:

1. the clients also said they knew nothing about seeing any bats, poles or knives;

2. Faris also denied having a knife. He also said (i) nobody had a weapon, (ii) he had no knowledge of anyone attacking the victim and (iii) he knew nothing of the bat and poles in the car;

3. Bzeni also said he knew nothing of the bat and poles in the car and that he couldn’t remember anything because he was so drunk; and

4. Fathullah also said that he saw a bat in the car but he knew nothing of a knife. He also said that everyone was drunk except Faris.

The clients both offered to plead guilty in the local court to the Affray . Mostafa additionally attempted to plead guilty to assault . These offers entailed admissions to being part of an assault on the victim, but no knowledge of any knife being used by anyone to stab him. I communicated to the DPP, as per their instructions, that they said they did not know of, or see any, knives at the time of the assault. The DPP rejected this offer.

At committal the clients pleaded guilty to Affray . Mostafa additionally pleaded guilty to the assault . Both pleaded not guilty to the malicious wounding in company . I recall the others appeared at the same time, but pleaded not guilty to all charges against them, including the affray. I understood this to mean that they were maintaining their above positions of denying everything including any knowledge of any knife.

On 26 September 2008, I appeared on behalf of everyone at the District Court to obtain a trial date. I confirmed my clients’ plea of guilty to the Affray on the indictment but not guilty to the malicious wounding in company . I also confirmed that the others were seeking a trial date on both charges. I was not asked by any of the other representatives to plead guilty to the charge of Affray on the indictment for their respective clients, as my clients had done. This confirmed to me that they were maintaining their above positions.

The email dated 26 September 2008

As I had attended the arraignment on behalf of all counsel on 26 September 2008 to obtain the trial date, the main purpose of my email was to let everyone know what happened at the arraignment and what the trial date was. As I wrote the email, I went through the brief to share the observations I had already made on the contents of the brief at that stage.

When I said “I think it would be prudent for all of us to have a meeting to discuss our approaches to this matter”, I was intending to convey message that I thought it would be helpful for all of us to let the others know what approach they were taking (to the extent of not compromising any specific client legal privilege) so we could all properly prepare for the trial for our own separate clients which, as I understand it, is normal in trials where there are multiple accused and multiple counsel.

When I next said “I don’t think any of us pointing the finger at anyone else re possession of the knife will assist us”. I have had limited experience with trials involving cooffenders, but from that exposure I have noticed that some accused persons lie quite obviously to the jury about their own involvement, despite the evidence against them, and point the finger at others untruthfully to try and deflect the evidence against them. Their lies do not assist themselves or anyone else in the trial. This was the view I was trying to convey. I did not mean to convey any sinister meaning in that sentence.

When I next said “My view at this stage is the more we each muddy the waters re the knife and who it was who had it (by all saying we knew nothing of the knife), the more chance of succeeding re the Mal Wound. I assumed from the contents of the brief I was reviewing, and from the pleas of not guilty, that everyone was still denying knowledge of the knife. I thought that it was possible from the brief that none of them did know anything about the knife because (1) there were up to three other people involved in the attack, (ii) only one of several witnesses at the scene saw a knife, and (iii) no knife was ever found in the car or near the scene or on any of the accused persons (only an old rusted stanley knife was found in the car but had no hallmarks of having been used). I was intending to convey the message that if everyone was maintaining what they told police then, because of the above observations I had made of the Crown brief, it would be problematic for the Crown. I thought this would have the effect of muddying the waters.

When I said “by all saying we knew nothing of the knife”, I was reiterating a statement of fact as disclosed to me in the material that I was reviewing on the brief at that time; that everyone was saying they knew nothing of the knife. I was just sharing my thoughts on how our positions sat with the Crown evidence and could impact on the Crown case.

When I said “if we all deny seeing the a knife, rather than say X was carrying the knife and stabbed the victim …”, I was trying to convey the following meaning – that if all of the accused were still maintaining what they told the police, and were truthfully not in a position to point the finger at anyone in particular, then a jury might not believe it but it would still, as I perceived it, cause problems for the Crown case. I was not intending to suggest to anyone to lie.

Overall, the purpose of the above parts of my email were to just openly discuss my views on what I thought the impact of all of the accused persons’ positions (as I understood them to be), would have on the Crown case, and what evidence in the Crown case supported their positions.

The email was sent openly to everyone that I understood was involved in the matters. No one was copied into the email blindly.

Events after the email of 26 September 2008

Since the email, I never followed it up with anyone.

A short time after sending the email, however, I recall having seen Charles Moschoudis (counsel for Faris) in chambers. I vaguely recall him agreeing it was a good idea to meet and discuss our respective positions before the trial. I also recall him saying his client was saying that one of my clients was carrying the knife. I did not tell him to tell his client to change his evidence. I was happy to know in advance of the trial that this was what his client was going to say, so I could prepare cross-examination of his client on this. I would be happy for you to speak with Mr Moschoudis about this.

I also vaguely recall seeing Sophia Paras (solicitor for Faris) in our chambers. I cannot recall if it was before or after I saw Charles. I recall her saying something about it being a good idea for everyone to meet, but how hard it would be to get everyone together at the same time. I do not recall her saying anything to me about Faris’ instructions. It was a very short chat. I would also be happy for you to speak with Ms Paras about this.

I also received a phone call earlier this year from man who said he was just briefed as counsel for one of Mr Matouk’s clients. I was away on leave and unable to speak with him at that time. He said he would call me back when I returned from leave. I did later receive a message from the same man but I did not return his call. I did not keep his name and number and I do not remember his name.

Recent events

On Thursday 26 February 2009, I was preparing for the trial based on the assumption that Faris was saying one of my clients carried a knife and that the other two accused were denying everything. I had become aware of a recent case which caused me concern about the legal positions of my clients in defending the malicious wounding in company charge.

I had a discussion with the Crown about the possibility of my clients pleading to that charge on the basis that they knew nothing of the knife and nothing of the stabbing. I also indicated that I would talk to my clients about giving evidence for the Crown in the trial against the other three accused persons. She agreed to this and sent me a set of proposed agreed facts for sentence.

I then set a conference for 4 pm on 27 February 2009 to discuss the above proposal with each of the clients and my instructing solicitor. I was going to indicate to them that my view was that pleading and assisting the Crown would be the better course for them to take out of all of their options.

But at about 3.30 pm on 27 February 2009, I received a call from Mr Selth of the Bar Association to come in and talk to him about a complaint that had been made. I was shocked because I could not understand what the complaint could be about. I cancelled the conference immediately so I could see Mr Selth instead.

As soon as Mr Selth advised me of the complaint I was horrified. Until Mr Selth pointed it out to me that the email could convey a sinister meaning, I never imagined that anyone would derive such a meaning from it.

Reading the email again, with the allegation of a sinister meaning in mind, I can now see that it is open to such a terrible interpretation. I should have made it much more clear what assumptions I was making and that I was simply making observations about what I had thought about the brief and was not telling anyone what to say. I assumed everyone understood what I meant.

Conclusion

Having previously worked for the Crown, the Crown Solicitor’s Office and at the Private Criminal Bar for a total of 11 years now, I am well aware of my ethical obligations and duties to the Court, the profession and under the law. I take my duties and obligations as counsel very seriously. I would never ask/direct others to give false evidence or contort their instructions for any reason.

At no time have I ever put my client’s interests ahead of my ethical obligations as a lawyer or ahead of my obligations to the Court, profession, or at law. I would never do this. It is inconsistent with who I am as a person and my own character. I always encourage clients to tell the truth and do the right thing. This is why my clients offered to plead guilty earlier.

Without compromising the clients’ position, after my meeting with Mr Selth, I called my solicitor to return the brief, to assuage any concern regarding my continuing in the matters and to ensure that there is no adverse reflection on the clients’ positions at any trial or sentence proceedings in the future.

I can only say that perhaps my carelessness of expression was due to how overworked and tired I felt during the latter part of last year. I was in desperate need of a break but could not take one till Christmas. I felt my financial obligations would not let me take a break. My health was poor. I was very depressed. My diary was overloaded. I was working long days and late nights. I also have two young daughters (who were aged just under 2 and about 3¼ at the time), and I was very sleep deprived because my youngest was rarely sleeping through the night during that period and disturbing my sleep. She has been a bad sleeper since she was born till only recently. But I am managing my diary better this year, because of how tough last year was for me.

I am truly sorry for the mischief this email has caused. I will be far more careful in how I express myself the future.

15 As we have indicated and as she said in the letter, the barrister, immediately following her meeting with Mr Selth, withdrew from the case and returned her brief.

16 On 5 March 2009 the applicant resolved to suspend the barrister’s practising certificate until 30 June 2009 pursuant to s 61(1) of the Legal Profession Act. She was invited to make submissions as to why that action should not be taken which she did on 16 March commencing with these paragraphs:

Thank you for your letter dated 9 March 2009.

I apologise if my last submission appeared emotional. I have since been receiving counselling and medical assistance which has enabled me to think, act and respond more clearly in relation to the issues at hand.

In response to the section 61(1) notice, I make the following submissions as to why the Bar Council should not suspend my practising certificate:

1. Whilst I did not intend to convey anything improper, and did not have improper motives in mind, I completely accept that it was inappropriate and wrong of me to write this email.

2. I accept that with the benefit of hindsight my email was capable of carrying the interpretation alleged. I unreservedly apologise to the Bar Council and my colleagues for this and for the mischief that this has caused.

3. I accept full responsibility for sending the email and fully understand why the Bar Council is taking this matter seriously.

4. It was a serious error of judgment by me to express my views about the evidence with everyone involved in the matter. I completely accept that I should not have done so.

17 The submissions which were accompanied by a letter from Mr A J Bellanto QC went on to state that she had asked Mr Bellanto and Mr P Bodor QC to act as her mentors and supervisors. She offered to accept any restrictions that the Council thought appropriate and said that she was in receipt of regular counselling from Barcare and had sought professional medical assistance. She concluded with this paragraph:

I give my unreserved assurance to the Members of the Bar Council that I understand and accept how serious this matter is and that am doing everything I can, and putting all systems in place, to ensure that I do not make another error in the future.

18 In light of all the material before it, the applicant on 29 March 2009 resolved to amend her practising certificate by imposing a condition of supervised legal practice for a period of 2 years. It was stipulated that the supervision be conducted by Mr Bellanto or when he was unavailable, Mr Bodor, and the content of the supervision was described in some detail. She was also ordered to complete certain educational requirements.

19 The barrister accepted the restrictions placed on her right to practice and it seems she has complied with them. She was however informed that nonetheless the Professional Conduct Committee would continue to investigate the complaint and so it came about that these proceedings were instituted.

20 Prior to that occurring, a draft report recommending that the applicant refer the complaint to this Tribunal was made available to the barrister and she was invited to make submissions upon it. She accepted that invitation and on 7 August 2009 provided lengthy and detailed submissions responding to the reasons in the draft report upon which the recommendation to commence proceedings before this Tribunal was made. It is we think unnecessary to refer to this submission in detail. However, she made some points which should be mentioned, namely that at the time she returned her brief there were issues remaining to be explored as to the number of offenders, there being some evidence that the number was more than 5, as to whether it was a knife or perhaps a shard of glass which caused Mr Jindi’s wound, as to whether the witness who identified Faris as holding a knife was mistaken, and as to the absence of the victim’s blood on the clothing of any of the offenders. She made the point that the email was not a “technical letter of advice” but rather contained “observations about a peripheral matter in an email principally sent to report on the court result that day”. She also made the point that when after the email Mr Moschoudis, counsel for Faris, told her that his client was going to say that one of her clients had the knife she did not suggest that he should not do so.

21 In answer to the suggestion in the draft report that if at the time of the email she had thought that it was open to contend that there were more than 5 attackers, she would have mentioned it in the email she said that as it was not an advice to the other legal representatives as to the strengths and weaknesses of the Crown case, there was no need to do so. She added that in any event when she stated “it is a reasonable possibility that it was also not visible to the offenders”, she contemplated that someone other than the offenders was present with a knife.

22 Moreover the barrister in her submissions correctly made the point that the Crown being obliged to tender the 5 ERISPS would have put before the jury the denials of each accused without any of them having to go into the witness box.

23 Finally, in response to the draft report’s reference to an admission of impropriety in her letter of 2 March 2009, she submitted:

With the benefit of hindsight, I saw that an alternate interpretation was open in relation to the part of the email under scrutiny. I did not, however, see that the alternative meaning was available on my email until Mr Selth had suggested such meaning to me at my meeting with him at the Bar Association on 27 February 2009.

As noted above, the email was to report on the court result. I need not have shared my observations with the other legal representatives. My comments were not an admission of any criminal or unethical behaviour. I maintain that there was no intention to pervert the course of justice and there was no suggestion that the content of any witness’ evidence be affected. My above response reflected that if I had recognised, at the time I sent the subject email, that part of the email left open a criminal and/or unethical interpretation, I would have redrafted that part to remove the ambiguity.

24 The written material tendered in support of the complaint was voluminous. We have attempted to summarise sufficient of it to indicate the case relied upon to support the contention that the barrister was guilty of professional misconduct or alternatively, unsatisfactory professional conduct.

25 Before coming to the case advanced by the barrister at the hearing before us and the submissions made by counsel, we should record the terms of bar rule 43:

Integrity of evidence

43. A barrister must not suggest or condone another person suggesting in any way to any prospective witness (including a party or the client) the content of any particular evidence which the witness should give at any stage in the proceedings.

26 We also set out the terms of s 319 of the Crimes Act 1900 which was relied upon by the applicant:

319 General offence of perverting the course of justice

A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.

27 At the hearing, Mr P Morris SC, the barrister’s counsel, read her affidavit sworn 7 July 2010, the affidavit of Mr Chester Porter QC sworn 13 August 2010 and the affidavit of Mr Bellanto sworn 6 July 2010. Neither Mr Porter nor Mr Bellanto was required for cross-examination.

28 As appears from her affidavit, the barrister after a distinguished academic career was admitted as a solicitor in August 1996. Thereafter she worked for several employers, including the Director of Public Prosecutions. On 16 February 2004 she was called to the Bar and thereafter practised across most jurisdictions. She dealt with the subject of the complaint in paragraphs 30 to 36 of the affidavit as follows:

30. The complaint the subject of these proceedings concerns an email which I sent during my retainer by Michael Aboud, solicitor to act on behalf of Mostafa Azary and Ali Hussin (‘the Azary brothers’).

31. This was my first retainer to appear in a trial involving multiple accused. However, I understood at the time both from my training and from speaking to other counsel that it was not uncommon for one accused to make allegations against another in the hope of improving his own position. I also understood that such ‘ cut-throat defences ’ often led to the conviction of all of the co-accused in circumstances where acquittal was otherwise a real prospect.

32. As against the Azary brothers, my opinion at the time was that the charge of Malicious Wounding in Company was defendable. With respect to this charge, my clear instructions were that neither of my clients knew anything either before or during the attack on the victim about whether or not one of the other accused had a knife.

33. I also understood at the time from my training and from speaking to senior counsel that it was perfectly proper for the legal representatives of co-accused to meet in order to discuss tactics and in order to reach agreement if possible on a common approach by the co-accused to the defence of the prosecution.

34. I had appeared at the arraignment on behalf of all of the accused and the principal purpose for the email was confirm the hearing dates fixed for the trial and to propose a conference between legal representatives for the co-accused. My principal motivation for proposing the conference was my concern that one of the accused might be considering mounting a ‘ cut-throat defence ’ which implicated one or both of my clients.

35. I did not prepare the email in draft. The casual wording and conversational style of the email reflects the fact that it was composed as it was typed. Further, it was subject of only cursory review before it was sent.

36. Prior to the complaint, it had never occurred to me that the words I had used in the email could be construed as constituting a conscious attempt on my part to persuade another legal practitioner to encourage his client to give false evidence.

29 The barrister was cross-examined upon her affidavit by Mr J Giles, counsel for the applicant. During such cross-examination she agreed that she did not make known to the Crown the fact that she regarded, as open, the question whether there were more than 5 attackers. Nor could she recall whether she discussed this point with Mr Abboud, although she did discuss with both him and the Crown the difficulty in the Crown establishing that her clients were aware of the fact that one of the attackers was carrying a knife.

30 Pressed as to the state of her mind in September 2008 about the number of attackers, there was this exchange:

Q. Is it your evidence that as 26 September 2008 you thought that your client’s may have a possible defence that there were eight people present and not five.
A. It’s not necessarily a defence, it’s just - it’s a hole in the prosecution case that you might be able to raise either by bringing it through cross or if it out to evidence then making submissions to the jury. So it’s - it’s not a defence in the sense of “our defence is it’s - you know, there were more than five people there” it wasn’t - it wasn’t in that - for me it was a hole in the prosecution case.

Q. Was it a hole, you tell the Tribunal, you perceived there to be in the prosecution case as at 26 September?
A. Again, I can’t say exactly what it was that was going through my mind at the time that I wrote the email. All I do know in thinking back to that time and having had a look at the brief was that I had recognised that there was a problem there because of what Jindi had said in his statement and I had circled it in his statement. So, I don’t know whether - I - I - I can’t - I can’t tell you exactly what was going through my mind at the time that I wrote the email. All I can do is think about the brief and - and what I would’ve read by that - by that stage.

Q. Sitting here today, can you tell the Tribunal whether you had perceived the possible hole in the Crown’s case, namely that there were eight people rather than five, on or before 26 September 2008 or do you just not know?
A. No, I - I would have perceived it because I had circled it in the statement. So, yes I would have perceived it.

Q. When you say you would have, you have no present recollection of that, do you?
A. I’m - I’m aided by looking at the - the -the notes that I made on that statement, and I - I do remember making those notes before that time when I read the brief.

Q. So it is your evidence that you had perceived that hole in the case by 26 September 2008, is it?
A. I had perceived that as being one of the points of cross-examination or - or submission, yes.

31 Later there was a further exchange about the intended meaning of the words in brackets in the email “by all saying we knew nothing of the knife”:

Q. Doing the best you can, can you tell the Tribunal what it was you were trying to convey by the words in brackets?
A. Everyone had denied seeing the knives in their interviews and those interviews would be before the jury during the trial. Or you would expect those interviews would be before the jury during the trial and by adopting - by basically not adopting a cut-throat strategy or - or position but rather just putting the Crown case to proof which includes - the Crown case includes those denials, in those interviews, then that would be a greater success or I would’ve thought a better chance of actually succeeding in respect of that charge. But it was very poorly worded. It was - it - it didn’t come out the way that - that I had intended it.

Q. Can I identify the obvious point to you, are you saying in brackets (by all saying we did not know about the knife).
A. Yes I - I know I - I - I did not mean put your witness in the box and get them to say “we didn’t see the knife.” I did not mean it in that way, I accept completely that somebody could read it that way but I certainly did not mean it that way. It was - it was just more about putting - or having a joint approach to the matter of putting the Crown case to proof in which they had already denied seeing the knife.

PATTEN

Q. So you contemplated that requirement would be satisfied by tendering all the statements?
A. The statements - absolutely, they would be in the prosecution case and I - I - I honestly - I - it was very, very badly worded I did not mean it in the way that - that - that - that it comes across at all.

GILES

Q. Could I suggest to you that at the time of writing that, you still had the state of mind that it was highly likely that your two clients would give evidence?
A. I had earlier thought that would be something that I would do but I cannot tell you now whether I had that in my mind at the time that I wrote the email. No, and the other thing too is that you don’t know whether - you don’t know whether you’re going to call your client until the Crown case is finished and you don’t make that decision very lightly. It is a decision you make very carefully, very carefully.

Q. Can I suggest to you that is not what happened in this case and you had earlier made a decision because you indeed told your solicitor that it was highly likely that you would call the - your two clients.
A. Earlier in the matter, yes. I had thought that it was a - it was something that I thought I would do but I had not made a final decision in respect of it, no. I would not make a final decision of - in respect of calling the client until I see how the prosecution case pans out.

Q. But you saying, in this email, can I suggest that what the words plainly mean, namely that the accused would give evidence and so they all knew nothing of the knife.
A. No, I was not making that suggestion on purpose. That was not something I had intended at all.

32 And later on the subject of possession of a knife:

Q. You go on to then say in the second sentence “At this stage only one person out of all the Crown witnesses, at the scene, actually saw a knife coming. Obviously that means it was not clearly visible to all which it is a reasonable possibility that it was also not visible to the offenders. Knives are easily concealed,” just pausing there. The significance of whether the offenders or the accused had seen the knife goes to the - what you thought was the problem with the Crown’s case on section 35(2) namely the Crown had to prove that each of - or at least those accused who were going to be convicted knew of the existence of a knife before or during the affray. Is that correct?
A. Yes, that was one of the problems, yes.

Q. And that is the problem which you were addressing yourself to in this part of the email.
A. Yes, that is so.

Q. You then wrote “If we all deny seeing a knife rather than say ‘X’ was carrying the knife and stabbed the victim, obviously the jury is going to think one of us is lying because the knife had to have been presented by someone.”
A. MM-hmm, yes.

Q. You knew that if the five accused - when you wrote this email you knew that if the five accused all denied seeing the knife in evidence, one of them would be telling a lie, didn’t you?
A. No.

Q. I suggest that you - that is the reason why you said that it is obvious or obviously the jury is going to think one of us is lying because the knife had to - had to have been presented by someone.
A. I didn’t say it for that reason, no.

FITZGERALD: Wouldn’t it have been, if there were eight people, couldn’t it have been one of those other three?

WITNESS: That was what my thought processes were.

GILES

Q. Can I ask you to be very careful about that because you told me before the luncheon adjournment that you could not tell me, sitting here today, whether or not you had in mind that there might’ve been more than five people when you wrote this email.
A. No. The question that you asked me was whether I had in mind whether there - whether that particular piece of evidence about the five to eight, as I understood it, was specifically in my mind and I cannot say that specifically was in my mind at that precise time as I writing this email. What I do know is that I had noticed in the Crown brief that there was the possibility of other people at the scene and so that would have been something and again, I - I can’t tell you exactly what was going through my mind, but because it was something that I circled in the brief it was something that was significant to me. I can’t tell you that was precisely a thought that was in my mind exactly as I was typing this but that was something that had formed part of my view of the prosecution case.

Q. When you wrote “Obviously the jury is going to think one of us is lying because the knife had to be presented by someone,” the obvious inference on that is one of the persons who gave evidence was going to be lying. That’s what you were talking about.
A. No. No, if the jury accepts the prosecution case that there were only the five people there then it is entirely possible that they are going to think that one of us is lying if they accept that there were only the five people there. So, it was a thought process of well, if they accept - and it’s not worded very well, but if they accept the prosecution case that it is only the five there then they’re going to think one of us is lying about it.

Q. Can I speak very clear about that?
A. Yes.

Q. You have not said, you haven’t caveated this email with “if the jury accepts the prosecution case”--
A. No, I haven’t said that.

Q. You haven’t referred anywhere else in this email to your thought process that there might be more the five accused present.
A. No, I have not said that.

Q. And that’s in circumstances where you also have not written to your solicitor about that possibility.
A. Well I - I - I indicated earlier I wasn’t asked to advise on the brief and all of the different problems with the brief so I had not specifically done that, no.

Q. But you had advised about the possibility of the Crown not making out its case because the knife was not seen by the accused?
A. Because the clients had - had - well I don’t think you would call it advice but I had noted the possibility of the fact that it could not be seen yes.

Q. And you had not noted any such possibility with respect to there being more than five people present, had you?
A. At what stage?

Q. At the stage of 26 September.
A. In the email, no I did not say.

Q. No, at all to your solicitor.
A. I - I don’t know, I don’t know, I can’t remember whether I actually said anything to him. I can’t remember. I know that it’s not in any written email up until that time but I can’t say that I have a recollection of not saying about it before this email. But I do know that I noted it in the brief.

Q. And you used that for a tool for negotiating with the Crown?
A. No, I did not.

Q. The long and short of it is that when you wrote this email what you were thinking about was only the five accused giving evidence, isn’t that correct?
A. No.

Q. You did not have in your mind the possibility that there were eight people present?
A. I think I’ve answered that question in - in this sense that I can’t tell you that it was specific thought positively in my mind at the time writing this email but it formed part of my view of the prosecution brief as being - as being problematic. That there were problems with the prosecution brief but I - I wasn’t writing this as an advice to everybody it was just me loosely referring to the thoughts that were going on in my brain. In a very poorly worded fashion.

Q. Unless you had in your mind that there may have been more than the five accused present, the only reasonable construction of the sentence “the jury is going to think one of us is lying because the knife had to be presented by someone,” is that the jury would know that one of the five who gave evidence is lying. Do you accept that?
A. I accept that they could have formed that view if they accepted the prosecution case, yes.

33 Finally towards the end of the cross-examination:

Q. Your view was in part that you clients had more prospect of success on the malicious wounding charge if the Crown did not establish that they had seen the knife either before or during the affray, is that not correct?
A. That was one of the views that I had formed, yes.

Q. And it suited your client’s case, as you saw it, for each of the accused to deny seeing a knife before or during the affray, did it not?
A. Having read the Crown brief yes, it was - it was - it was - it was a good thing that everyone had indicated to the police that they had not seen the knife. It left open - it left open arguments.

Q. And you are suggesting in this email that the accused should all give evidence to the effect that they hadn’t seen any knife, weren’t you?
A. No, I was not specifically saying that they should give evidence. That is a matter for counsel running the trial for each of their own clients. I was not specifically saying give - get your client to give that evidence.

Q. You were suggesting that it would be a good thing if they did give that evidence though weren’t you?
A. No, that’s not what I was I suggesting.

Q. That’s what the words say.
A. Well yes, that’s - that’s how they read but that’s not how they were meant.

34 Mr Porter annexed to his affidavit a report which after referring to his 52 years of practice at the Bar, 26 of them as Queen’s Counsel, said that there were a lot of reasons why the barrister should have a conference with counsel defending other accused. He said that it is a convention of criminal practice that one does not attack co-accused unless this is absolutely necessary and that “conflict between co-accused resulting in cut throat defences almost inevitably leads to the conviction of everyone” and should be “avoided if at all possible”.

35 As to the dangers Mr Porter warned “Obviously the conference between counsel should not be used to produce false evidence” adding “Rather it may well produce evidence much closer to the truth when the client tells a story based on his or her best recollection after seeing the full picture”.

36 Later, Mr Porter said “Such conferences between counsel should obviously be very carefully conducted so that there can be no question of attempting to pervert the course of justice”.

37 Mr Bellanto, in his affidavit sworn 6 July 2010, testified that he met the barrister in September 2005 when she joined Ada Evans Chambers of which he was floor leader, a role which he continued until April 2009 when he became leader of Samuel Griffith Chambers.

38 He said that during his association with the barrister at Ada Evans Chambers, he observed that she seemed to be hard working and to have developed a busy practice. She appeared as his junior in cases before the Court of Criminal Appeal. As mentor to her since March 2009, he said that she has sought his advice on numerous occasions and has always expressed a strong desire not to do anything improper.

39 Commenting on the email, Mr Bellanto, whilst conceding that he would not have used the same terminology, in effect agreed that it was entirely appropriate and desirable for the barrister to discuss issues with lawyers for co-accused “and their attitude in circumstances where a “cut throat” defence may potentially arise”.

40 The expressions “unsatisfactory professional conduct” and “professional misconduct” are respectively defined in sections 496 and 497 of the Act as follows:

496 Unsatisfactory professional conduct

For the purposes of this Act:

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

497 Professional misconduct

(1) For the purposes of this Act:

professional misconduct includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

41 The standard of proof which, as we accept, is required in this case is that referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362 where his Honour noted:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

42 All three of the particular factors identified by Dixon J are present in this case. The allegations against the barrister amount to an assertion that she has committed a very serious breach of the criminal law, the evidence of Mr Bellanto suggests that it is inherently unlikely that she would do so and the consequences to the barrister of adverse findings against her are extremely serious. It goes without saying that a barrister who seeks to pervert the course of justice is not a fit and proper person to remain on the roll of barristers.

43 It is appropriate at this stage to make an assessment of the barrister’s evidence. In our opinion she was a truthful witness whose testimony should be accepted, particularly on the critical question whether she intended or contemplated that what was being suggested in the email would or might involve a witness giving false evidence. We accept that she had no such intention or contemplation.

44 Once it is accepted that the barrister did not intend to suggest that any of the accused should perjure himself, or contemplate that this might be the consequence of what she had written, in our opinion professional misconduct is not established unless perhaps that is the only reasonable construction. In this case we do not think it was.

45 The relevant passages of the email were not expressed with precision and as exchanges between Members of the Tribunal and counsel revealed during the hearing were in a number of aspects quite ambiguous. Critical phrases are the one in brackets (by all saying we knew nothing of the knife) and “If we all deny seeing a knife”. Although the phrases are constructed clumsily and may, on one view, be read as her advocating that each of the accused should go into the witness box and deny seeing the knife, whatever the truth of the matter we do not regard that as a reasonable construction in light of the contents of the barrister’s brief and her evidence upon the subject. It is far from a construction we could bring ourselves to accept bearing in mind the observations of Dixon J in Briginshaw. In reaching that conclusion we put aside two other matters suggested to us, namely that there may have been more than 5 attackers, and that the use of a knife at all as opposed for instance to a shard of glass may have been open to challenge depending on the medical evidence which, as it was in the barrister’s brief, was not entirely unequivocal. Although neither of these points was mentioned in the email, at least the former was present in the barrister’s mind as she had circled the reference to “5 to 8” attackers on Mr Jindi’s statement in her brief.

46 It follows from what we have said that we are not persuaded to the appropriate level of satisfaction that the barrister was guilty of professional misconduct. This leaves open the question whether there was unsatisfactory professional conduct.

47 There is, in our view, a degree of unfairness to the barrister in exposing her email to the critical analysis which has occurred in this case. We accept her evidence that it was not first drafted but sent as typed without further reflection. We also accept that apart from reporting the proceedings before Justice Blanch its object was to avoid a “cut throat” defence and suggest a meeting of lawyers in effect to discuss tactics. These views were entirely appropriate and the email was sent only to lawyers bound by the same legal and professional constraints as she was. The email was certainly not and did not purport to be a formal advice.

48 Although it could be argued that the drafting of the email fell short of the “competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner” in that it was clumsily worded and in parts ambiguous, to categorise it as constituting unsatisfactory professional conduct would, in our opinion, place altogether too high a standard not only on the barrister but on other lawyers who inadvertently produce clumsy and ambiguous documents. We are not satisfied that the email constituted unsatisfactory professional conduct within s 496 of the Act.

49 As we are of the opinion that the complaint has not been proved, we make these orders:

1. Application dismissed.

2. Subject to 3, no order as to costs.

3. Leave to each party to apply for an order for costs by lodging and serving submissions in support thereof with the Tribunal within 30 days. Any such submission may be answered by the opposing party within a further 21 days. Thereafter the matter to be decided on the papers.