Council of the NSW Bar Association v Power

[2008] NSWCA 135

Reported Decision: 71 NSWLR 451

New South Wales

Court of Appeal

CITATION:	Council of the NSW Bar Association v Power [2008] NSWCA 135
HEARING DATE(S):	6 May 2008
JUDGMENT DATE:	17 June 2008
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; McColl JA at 44
DECISION:	(1) Declare that the opponent is guilty of professional misconduct. (2) Declare that the opponent is not a fit and proper person to remain on the Roll of Legal Practitioners. (3) Order that the name of the opponent be removed from the Roll of Legal Practitioners. (4) Order that the opponent pay the costs of these proceedings.
CATCHWORDS:	LEGAL PRACTITIONERS – Removal from Roll – Professional misconduct – Whether proceedings are for civil penalty – Whether there is privilege against self-incrimination – Practitioner does not give evidence or explanation of matter within practitioner’s knowledge – Whether this can be taken into account in drawing inference against him.
LEGISLATION CITED:	Crimes Act 1900 s 312, s 317, s 319 Evidence Act 1995 s 128
CATEGORY:	Principal judgment
CASES CITED:	Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd [2001] FCA 1800; (2001) 201 ALR 502 Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 Briginshaw v Briginshaw (1938) 60 CLR 336 Coe v New South Wales Bar Association [2000] NSWCA 13 Health Care Complaints Commission v Wingate [2007] NSWCA 326 Jones v Dunkel (1959) 101 CLR 298 Munro, ex parte; re the Legal Practitioners Act (1969) 71 SR(NSW) 448 New South Wales Bar Association v Cummins [2001] NSWCA 284, 52 NSWLR 279 New South Wales Bar Association v Meakes [2006] NSWCA 340 Petty v the Queen (1991) 173 CLR 95 Rich v Australian Securities and Investment Commission [2004] HCA 42, 220 CLR 129 The Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 The Prothonotary of the Supreme Court of New South Wales v Ritchard (NSW Court of Appeal, 31 July 1987, unreported) The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 Re Veron (1966) 84 WN(NSW) (Part 1) 136 Weissensteiner v The Queen (1993) 178 CLR 217 Wentworth v Lloyd (1864) 10 HL Cas 589, (1864) 11 ER 1154
PARTIES:	COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION (Claimant) Patrick John Piers POWER (Opponent)
FILE NUMBER(S):	CA 40529/07
COUNSEL:	Ms C E ADAMSON SC/ P J BRERETON (Claimant) A P CHESHIRE (Opponent)
SOLICITORS:	Hicksons (Claimant) TD Kelly & Co (Opponent)

CA 40529/07

BEAZLEY JA
HODGSON JA
McCOLL JA

17 JUNE 2008

COUNCIL of the NEW SOUTH WALES BAR ASSOCIATION v Patrick John Piers POWER

Judgment

1 BEAZLEY JA: I agree with Hodgson JA.

2 HODGSON JA: By its amended Summons filed 14 August 2007, the claimant claims the following orders against the opponent:

(1) A declaration that the opponent is guilty of professional misconduct.

(2) A declaration that the opponent is not a fit and proper person to remain on the Roll of Legal Practitioners.

(3) An order that the name of the opponent be removed from the Roll of Legal Practitioners.

(4) An order that the opponent pay the costs of and incidental to these proceedings.

(5) Further or other orders.

Agreed Statement of Facts

3 The parties have agreed on the following facts:

1. The Opponent is 55 years of age having been born on 12 May 1952. As at 4 July 2006 he was a Deputy Senior Crown Prosecutor and Senior Counsel in NSW.

2. Records maintained by the Office of the Director of Public Prosecutions establish that between 2 June and 30 June 2006 (inclusive), the Opponent was on annual leave. It has been established that at 1345 hours on Thursday 1 June, he left Australia on board on aircraft. He returned to Australia at 0555 hours on 3 July 2006.

3. At his home in Darlinghurst, the Opponent has a computer. It was a black "Tsunami” badged ATX personal computer which, at some stage, had two internal hard disks fitted to it. One of those hard disks contained a 134-gigabyte volume known as Drive F. The computer contained a single user account, "Patrick Power". This account, which was password protected, was the only one that had been used to log onto the system.

4. An examination of the Opponent's home computer has revealed that at 1022 hours on 1 June 2006 (the day on which the Opponent left Australia), whilst it was being used by a person who had logged onto the computer using the password associated with the user account "Patrick Power" at 0943 hours on 31 May, it suffered a fatal system error which effectively disabled the computer. At the time that the computer crashed, "Drive F" was installed in the computer alongside the other disk drive. A thumbnail database on the computer (ACDSee) was being updated at 0507 hours on 1 June 2006 by a user logged into the system as "Patrick Power".

5. At about 0930 hours on 3 July 2006 the Opponent rang a computer systems analyst in the Information, Management and Technology Branch of the ODPP and informed him that he had returned from holidays and had a problem with his home computer and was wondering if the analyst could give him some advice. The Opponent explained that when the computer boots up the screen is black and nothing comes up. As the analyst was unable to solve the problem over the phone, he asked the Opponent to bring the computer in to the office and he would look at it.

6. At about 1300 hours the next day, 4 July, the Opponent brought his home computer into the IT Branch of the ODPP. When the computer was booted up by the ODPP technician, Drive F was not in the machine.

7. As the Opponent was concerned about losing financial records that he said were on the computer, arrangements were made for the analyst to do a back up of his personal data on to a portable hard drive. As the Opponent had an appointment that afternoon, it was arranged to leave the computer with the analyst and for it to be picked up the next morning. During the back up process, the analyst kept an eye on the screen to check that the file download was running smoothly. While looking at the screen he noticed a file bearing the name -"P 101 – mikea01 I0yo boy rides his dads big cock, fucked hard - pthc gay boy -.avi". Because of the file name, the analyst conducted a folder search on the computer and discovered a folder entitled "Good" that contained 31 video files with descriptive names suggesting that their contents were of a sexual nature.

8. The analyst located the file whose title he had seen on the screen during the back up process. It was a video file which contained footage of a middle aged man having anal sex on a sofa with a young Asian boy. The analyst decided to check another video file entitled "(pedo gay) man fucks 5yo thai boy.mpg". The opening scene of the video was of an Asian boy, seemingly aged less than 10 years, with his head near the genitals of a man who was masturbating in front on his face. The scene then shifted to that of a middle aged white man preparing a young Asian child for sex by smearing lubricant on his anus, and then having anal intercourse with the child.

9. The analyst who found this material on the Opponent's computer reported his find to his Program Manager who, in turn, notified the Manager of the IT Branch. Shortly after that, the Deputy DPP, Mr Gregory Smith, was advised of what had occurred and he directed that the hardware be brought to the Director's Chambers.

10. At about 5.20pm that day, 4 July, Mr Smith rang the Opponent on his mobile phone and directed him to come immediately to chambers for a meeting. In the presence of Lou Lamprati SC, the other Deputy DPP, and Mark Tedeschi QC, the Senior Crown Prosecutor, Mr Smith detailed to the Opponent what had been found on his computer and advised him that there was evidence that he had breached Section 91H of the Crimes Act (possession of child pornography). The Opponent was invited to step down voluntarily from his position while the matter was investigated by the police. According to Mr Smith, the Opponent was visibly shaken by what he had been told and then said -"I have been away for a while and two other people have been staying at my house. But I understand what a prima facie case is and I agree to voluntarily stand down". Mr Lamprati recalls the Opponent looking concerned but reacting little to what Mr Smith said. When invited to stand down, Mr Lamprati recalls the Opponent saying -"I am well able to recognise a prima facie case. I will accept suspension". Mr Tedeschi's recollection of the meeting is that when confronted with what had been found on his computer, the Opponent said -"I know what a prima facie case is. Of course I will stand down. You know that I have been away for some weeks. There have been two people in my house that could have had access to my computer".

11. Shortly after his discussion with Mr Smith, the Opponent left the room. He spoke briefly to Gary Corkill, the manager of Personnel Services at the ODPP. Mr Corkill offered him counselling if he felt that he needed it. The Opponent said simply to him -"I am just stunned".

12. After the Opponent left Mr Smith's chambers, Mr Smith rang the Chief of Staff of the NSW Police Commissioner and informed him of what had occurred. The next morning, 5 July, Mr Smith spoke with the OIC of the NSW Police Child Protection and Sex Crimes Squad about the matter.

13. At about 12.30pm on 5 July, the Opponent spoke on the phone to Mr Corkill and after some discussion about obtaining access to financial records on his computer and some papers in his chambers said -"I am deeply embarrassed. I didn't purchase it. It was a free download and it satisfies a long term sexual fantasy but I don't engage in that type of behaviour". Mr Corkill replies- "We'll just have to see where all this goes and I will ring you by Friday". Mr Corkill observed that the Opponent's voice was very flat and quiet throughout this conversation and that it gave the impression of deep sadness. Mr Corkill made a contemporaneous note of his conversation with the Opponent.

14. Later that day, police executed two search warrants at the ODPP. During the execution of the first, the Opponent's home computer (which he had brought in for repairs) was seized from the DPP's boardroom where it had been taken at the direction of Mr Smith. During the execution of the second warrant, the Opponent's chambers were searched, his work computer examined and a number of computer disks seized. A preliminary examination of the home computer conducted at the State Electronic Branch revealed the presence of a number of child pornography videos.

15. During the afternoon of 6 July 2006, the Opponent was arrested at his home in Darlinghurst for possession of child pornography. After preliminary processing at the Surry Hills Police Station, the Opponent was taken whilst still in custody to his home where he was permitted to be present whilst it was searched. Although a number of computer disks were seized during the search, the hard disk containing Drive F that had been in the computer when it crashed, but was missing when the computer was booted up in the ODPP on 4 July, was not located.

16. It is worth noting that the police search of the Opponent's home occurred two full days after he became aware that his colleagues at the ODPP had located child pornography on his personal computer. In that two-day period, the Opponent was not subject to any significant restraints on his liberty, movements or activities other than being requested not to attend his chambers.

17. At the completion of the search of his home, the Opponent was returned to Surrey Hills Police Station where he was charged with possession of child pornography.

18. A full examination of his computer was conducted by an expert attached to the State Electronic Evidence Branch, Sergeant John McCulloch.

19. A summary of his principal findings is as follows:

· "At 1022 hours on 1 June 2006 the computer suffered a fatal system error. At that time, Drive F was installed in the computer alongside the existing disk. At the time, "Patrick Power" was logged on to the computer and was performing file maintenance operations.

· The computer remained off until the next boot which occurred at 1326 hours on 4 July 2006 (this corresponds to the time when the analyst in the IT Branch at the ODPP turned on the computer to examine it). The hard drive containing Drive F was not attached to the computer at that time. Between 1022 hours on 1 June and 1326 hours on 4 July, this hard drive had been removed from the Opponent's computer.

· Although the hard drive containing Drive F was not in the computer when it was booted up by the ODPP technician on 4 July, and was not found during the execution of search warrants on his chambers or home, it has been possible to reconstruct much of what was contained on the missing hard drive. It contained catalogued homosexual pornography, some of it with names strongly suggestive of it being child pornography. Some of the files bore names such as "Naughtyboyz -Weekend House Party, Two boys playing in bed hardons, Gay porn...threesome rape of blond boy, Boy tucked by dad, 10yo Indian boy loves his rubber dildo man fucks him hard, Gay porn young boy tied gets raped begs for them to stop, Two gorgeous young boys jerkoff cum facial and kiss".

· Located on the hard drive in the computer was a Quicken accounting automatic back up folder containing 31 video files of child pornography. These videos contained scenes of adult males engaged in a variety of sex acts with young children aged 10 years and less and with adolescents aged under 16 years including penetrative oral and anal sex, bondage and masturbation and sex acts between adolescent (meaning under 16 years old) males. The vast majority of the child pornography was homosexual, although there was one still image of an adult female masturbating an adolescent male's penis. The videos were of varying duration from a few seconds to 37 minutes, the average being about 15 minutes. Full details of the contents of the videos can be found in the annexures to the statements of Detective Senior Constable Laura Beacroft dated 11 September and 12 October 2006.

· Also located on the hard drive of the Opponent's computer was a database containing 28,981 thumbnail images, the vast majority of which were homosexual pornography (there were about 200 personal images of a non-pornographic nature). Of the approximately 29,000 images, 433 were of child pornography. The majority of these images depicted males under the age of 16 years and a much smaller number depicted males under the age of 10 years engaged in a variety of sex acts with each other, or males depicted in a sexualised context. Details of the 433 images are to be found in the annexure to the statement of Detective Senior Constable David Shaw dated 4 November 2006.

· Also found on the computer was a 188-page novel entitled "The White Glove" which contained a number of passages describing sexual acts between males under the age of 16 years. The document appeared to have been forwarded by email to the Opponent's computer. The relevant emails can be found in Annexure 17a, b and c to the Computer Forensic Analysis Report prepared on 6 September 2006 by Sergeant John McCulloch.

· The Opponent had on his computer a software application called "Shareaza" that enabled a user to share files on his computer with other uses on a network, such as the internet, running a similar piece of software. The examination of the computer located many file names with references to child pornography which indicated that the files had been downloaded to the Opponent's computer using Shareaza. There is no evidence; however, of the Opponent having distributed to any third person any of the files or material downloaded by using Shareaza.

· The Opponent had also "bookmarked" a very large number of internet web sites. Some had names suggesting that the sites contained child pornography Examples include -"Gay boy's club, Welcome to teen gay, Gay youth links, teenlover, Daddy fuck me in the butt again". Some of the sites contained links to sites containing child pornography. The full list of the bookmarks can be found in Annexure 15b, 15c and 16 of the forensic computer report referred to previously.

· Evidence was found on the computer of an attempt having been made at 0739 hours on 4 May 2006 to bum to 14 video files to a DVD. The disc session was extracted from the disc image file and was examined. Ten of the video files had names suggesting that they may contain child pornography (Annexure 11 to Computer Forensic Analysis Report) -names such as "Dave 13 yo masturbates, pre boys, preteen boys sex...fuck, 2 Thai preteen boys fuck in bamboo forest, Jap boy and Man in garden, Friends from Poland Part 3 (Pthc Gay Pedo)." Eleven of the 14 video files were corrupt and unable to be examined. The 3 that were examined all contained child pornography (see 4.5.3 of Computer Forensic Analysis Report)."

20. During the search of the Opponent's home on 6 July, police found a number of 3.5" diskettes. Those diskettes contained 20 graphic image files depicting child pornography and a list of bookmarks containing references to web sites with names suggesting that child pornography was available on those sites. That particular diskette was actually labelled "Thesis Backup".

21. No one accessed the Opponent's own computer PC0I when he was absent overseas.

22. The computer PC01 was powered off the whole time the Opponent was overseas.

23. At some time prior to bringing PC0I into the Office of the DPP on 4 July 2006, the Opponent removed Drive F, believing that in doing so he had removed all child pornography from PC0I since it contained some files that constituted child pornography.

24. The Opponent, at the time he took his computer into the Office of the DPP on 4 July 2006 did not believe that the hard drive which was then installed in PC0I contained any child pornography.

25. In the exercise of his right to silence, the Opponent did not respond to the letter dated 29 September 2006 to his solicitors from the solicitor for the Director of Public Prosecutions in which the solicitor sought information as to the whereabouts of the F Drive.

26. Acting Judge Boulton found: "The only rational inference in the circumstances is that [the Opponent] did something to put [the F Drive] beyond the reach of the search warrant [that was executed at his residence] on 6 July 2006."

27. On 4 July 2006 the Opponent was in possession of a great deal of material that fell within the legal definition of “child pornography".

28. It is an offence to possess child pornography (Section 91H(3) of the Crimes Act 1900). "Child Pornography" is defined in Section 91H(I) of the Crimes Act as "material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context."

29. The Opponent was charged pursuant to section 91H of the Crimes Act with possession of child pornography. The charge first came before the Local Court on 27 July 2006, when orders were made that required the prosecution to serve a brief of evidence on the Opponent.

30. The Opponent formally entered a plea of guilty to the offence on 25 January 2007.

31. By judgment delivered on 9 May 2007, Chief Magistrate Henson imposed a sentence, which was then the subject of an appeal to the District Court.

32. On 19 July 2007, Acting Judge Boulton confirmed the aggregate term of imprisonment of 15 months imposed by the Chief Magistrate and varied the non-parole period from 8 months to 6 months.

33. On 19 July 2007 the Opponent was taken into custody pursuant to the sentence imposed by Acting Judge Boulton.

34. The Opponent tendered his resignation as Deputy Senior Crown Prosecutor effective as of 7 February 2007. Since he held a Crown Prosecutor's practising certificate, he no longer held a practising certificate as of 7 February 2007. The Opponent has not applied to renew his practising certificate since that date.

4 The claimant contends for a finding of the following additional fact, which is contested by the opponent:

1. The Opponent did something to put the F Drive beyond the reach of the search warrant that was executed at his residence on 6 July 2006.

Ambit of Dispute

5 The opponent consents to the relief sought being granted on the basis of his possession of child pornography and his conviction for this offence, as set out in the Agreed Statement of Facts. That is, there is no opposition to the Court making orders (1) to (3) sought by the claimant.

6 However, as noted earlier, the claimant also seeks findings that the opponent disposed of drive F or otherwise put it out of reach of the search warrant, thereby committing an offence under s 319 and/or s 317 of the Crimes Act 1900; and that by referring to people who could have had access to his computer, the opponent attempted to pervert the course of justice.

7 The opponent contends that, once he has accepted that the Court should exercise its power to remove him from the Roll as a result of the opponent’s criminal conviction, the purpose behind the Court’s power is satisfied; and that accordingly there was no need for the Court to consider the additional matters alleged by the claimant, and the Court ought not do so.

8 I will consider in turn the following three issues:

(1) What approach should the Court take to determining additional facts, when the opponent has admitted facts which, the opponent concedes, justify findings that he was guilty of professional misconduct and was not a fit and proper person to remain on the Roll of Legal Practitioners, and an order that he be removed from the Roll?

(2) What is the significance of the opponent’s exercise of his right to silence at the time of investigation of the offence with which he was convicted, and his failure to give evidence at the hearing before this Court?

(3) What, if any, additional findings of fact should the Court make?

Approach of Court

9 I note first that, although the opponent concedes orders should be made, the Court must satisfy itself that it is appropriate to do so: The Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [12] per McColl JA (with whom Sheller JA and Beazley JA agreed) and cases there cited.

10 Consistently, the Court should make findings of fact in appropriate detail as to the basis of its orders, particularly as this could be of significance in the event that there is a subsequent application for readmission: Bridges v Law Society of New South Wales [1983] 2 NSWLR 361; The Prothonotary of the Supreme Court of New South Wales v Ritchard (NSW Court of Appeal, 31 July 1987, unreported); New South Wales Bar Association v Cummins [2001] NSWCA 284, 52 NSWLR 279 at [24] per Spigelman CJ (with whom Mason P and Handley JA agreed).

11 This does not necessarily require the court to make findings on every matter alleged against a legal practitioner in an application such as this; but generally it is appropriate to make findings on significant matters concerning the conduct which is the subject of the complaint: cf The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 at [18] to [20].

12 In my opinion, it is appropriate for this Court to make findings, if it can, as to the additional facts alleged by the claimant.

Right to Silence

13 The question here is whether any inference can more readily be drawn against the opponent because he exercised a right of silence at the time of the investigation of the offence of which he was convicted and because he did not give evidence in the proceedings before this Court.

14 Mr Cheshire for the opponent relied on the principle that no adverse inference should be drawn from a person’s exercise of a privilege against self-incrimination: Petty v the Queen (1991) 173 CLR 95, and cf the similar approach in relation to legal professional privilege supported in Wentworth v Lloyd (1864) 10 HL Cas 589, (1864) 11 ER 1154. Mr Cheshire also relied on the view expressed by Basten JA in Health Care Complaints Commission v Wingate [2007] NSWCA 326 at [43] to [50] to the effect that disciplinary proceedings could be considered proceedings for a civil penalty affected by the decision of the High Court of Australia in Rich v Australian Securities and Investment Commission [2004] HCA 42, 220 CLR 129.

15 In that case, the judgment of the majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) was very critical of an alleged distinction between punitive and protective proceedings, and said nothing to suggest that their comments would not apply to disciplinary proceedings against professionals or that such proceedings would not be considered proceedings for a civil penalty. The concurring judgment of McHugh J at [42] to [43] gave reasons why proceedings seeking disqualification of directors were not purely protective, some of which reasons could suggest that disciplinary proceedings against professionals were purely protective. In his dissenting judgment, Kirby J at [100] and [125] expressed concern that if disciplinary proceedings against professionals were regarded as proceedings for a civil penalty, this would justify a professional in refusing to give access to relevant documents.

16 The application of that decision to disciplinary proceedings against professionals was discussed by Basten JA in Wingate as follows:

[42] There were further inferences drawn by the Tribunal for the purpose of formulating Os (3) and (4) and in particular the reprimand with respect to the failure to provide accurate information to the Board. In that regard, the Tribunal made two additional findings:


90. Looking at the lack of truthfulness, this was clearly motivated by a desire to minimise his conduct in the eyes of the Medical Board, its delegates and this Tribunal, but in our view that motive does not excuse his conduct …

…

93. We think that his failure to provide a frank account of his proclivities and the nature of his offending is a matter of concern for which he ought also be reprimanded. We are anxious to ensure that practitioners who have transgressed understand that failure to provide honest and frank accounts of matters relevant to the manner in which the Board deals with them may well impact upon an assessment of their character, quite apart from the Tribunal’s views of the original offending.

[43] At a general level, these comments may be said to reflect the duty of full and frank disclosure of misconduct which applies both to members and applicants for membership of professions such as law and medicine. However, the scope of this obligation requires more detailed attention as to its application in particular circumstances. One well-known example is the case of In re Davis (1947) 75 CLR 409, involving an applicant for admission as a barrister who many years before, as a young man, had been convicted of house-breaking for the purpose of theft. His application was refused at least in part upon the basis that he had failed to disclose the conviction to the Barristers Admission Board. Dixon J, after noting the difficulty of establishing good character in the light of such a crime, stated at p 426:

But a prerequisite, in any case, would be a complete realization by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted.

[44] A further well-known example of the obligation may be found in Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Part 1) 136 at 141 where the Court (Heron CJ, Sugerman and McLelland JJA), after noting that the solicitor had not filed an affidavit or offered to give oral evidence, described the course as “irregular” and continued:

The respondent is an officer of the court. The Full Court of the Supreme Court held in November 1965 that on the material presented to it by the Law Society a prima facie case of misconduct was made out and called upon the respondent to show cause why he should not be dealt with. The matter arises within the disciplinary jurisdiction of the Court and if the respondent after consideration declines to give his account on oath of the matters charged he cannot complain if the Court holds against him that the facts as deposed to … are substantially true … The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and to engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument.


[45] It may be noted that neither of these examples involves any suggestion that the obligation of candour overrides the general law privilege against self-incrimination. Absent an express statutory provision, or a necessary implication arising from statute, to that effect, the privilege will generally be available. On the other hand, the privilege does not entitle a practitioner to make untruthful or misleading statements nor, if the practitioner declines to answer particular questions, will it prevent the Board or a tribunal taking steps in order to protect a relevant public interest.

[46] In Police Service Board v Morris (1985) 156 CLR 397 at 403, Gibbs CJ accepted that the privilege might apply in relation to a penalty imposed in disciplinary proceedings against a police officer. In Bowen-James v Walton (NSWCA, 5 August 1991, unrep) (Samuels, Meagher and Handley JJA) Morris was distinguished on the basis that the power to discipline a medical practitioner was entirely protective. Their Honours noted that Parliament had expressly provided in the Medical Practitioners Act 1938 (NSW) that disciplinary proceedings might be pursued despite the existence of uncompleted criminal proceedings: see Edelsten v Richmond (1987) 11 NSWLR 51. However, in Edelsten the conflict of interests created in that situation had not lead the Court to conclude that the privilege against self-incrimination was overridden. As noted by Hope JA (Clarke JA agreeing) at 61D:

The discretion given to the Tribunal involves a balancing of the public interest in the investigation of the complaint with the public interest in the observance of the right to silence. This involves, among other things, a consideration of the nature and gravity of the complaint and of the criminal charge, and of the circumstance that while the medical practitioner cannot be required to give a self-incriminating answer, he may be embarrassed in his defence to the complaint if he does not do so, and, if he does give evidence, he may be prejudiced in relation to the criminal proceedings.
(Priestley JA made a similar point at p 65F-G.)

[47] In Bowen-James , after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued:

In our opinion there is no right to silence or any privilege against self-incrimination upon which a medical practitioner, answering a complaint before the Tribunal, is entitled to rely. Indeed, we would endorse the observations made by Hope AJA in Ibrahim . There is a public interest in the proper discharge by medical practitioners of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients. They are not, of course, officers of the Supreme Court and, accordingly, the precise force of the decision in Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136, particularly of what was said at 141–2, cannot apply. Nevertheless, we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts.


[48] To the extent that there was an attempt to distinguish Morris from disciplinary cases involving the protective jurisdiction of the Court, the comments in Bowen-James may need to be followed with caution in the light of Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at [28]–[32] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). Further, although the Court in Bowen-James spoke in terms of there being no applicable privilege against self-incrimination, that was not the approach adopted in Edelsten , set out above, nor in Veron .

[49] The issue in Bowen-James involved an objection by the practitioner to an order that he file a statement of his evidence in response to the complainant’s evidence. His challenge to the order was rejected. However, what approach would be adopted today in that regard might need to be considered in the light of the recent decision in MacDonald v Australian Securities and Investments Commission [2007] NSWCA 304, dealing with a question as to whether a person subject to civil penalty proceedings brought by ASIC could be required to file a defence.

17 On the other hand, in New South Wales Bar Association v Meakes [2006] NSWCA 340, considerable weight was placed by Tobias JA (with whom Bryson JA and Basten JA agreed) on a barrister’s failure to give evidence in disciplinary proceedings brought against him:

[70] In my opinion, the Tribunal also erred in declining to criticise the respondent’s decision not to give sworn evidence at the hearing. It is true that in professional disciplinary proceedings the onus of proving misconduct lies with the party bringing the charges and, it should be noted, a practitioner is not required to give evidence. However, as this Court observed in Coe v NSW Bar Association [2000] NSWCA 13, there is an expectation that legal practitioners will mount the witness box to provide some explanation as to their conduct, rather than simply relying upon evidence from the Bar table. In Coe , Meagher JA (at [21]), with the agreement of Priestley JA, repeated with approval the following observations made by the Tribunal in that case and which are apposite to the present case:

In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.


[71] In this case there were many questions left open which only the respondent could answer. This was illustrated by five inferences that this Court was asked by the respondent to draw with respect to his conduct. The first was that the respondent had not charged for work that he did not perform or hours that he did not spend.

[72] The second was that the gross overcharging was explained by the achievement of a good outcome in the circumstances; and that the respondent’s exuberance in that success caused him to charge what he thought was appropriate, which amounted to no more than an error of judgment on his part.

[73] The third was that as the respondent had no diary entries for the time spent in the provision of the services itemised in his memoranda of fees, he only charged what he thought was reasonable in the circumstances.

[74] The fourth was that in any event his solicitor accepted the charges as reasonable (or at least did not complain about them) and it was his expectation that if there was a problem with the charges, the matter would have been taken up between the client and the solicitor.

[75] The fifth was that he did not intend to “rip off” Mr Chitty and that he was unaware when he rendered his memoranda of fees on 4 December 2000 that his fees were excessive — an allegation he did not admit until his solicitor’s letter to the appellant of 30 August 2004 stating no more than that those solicitors had been instructed by the respondent that “in some respects, his fees were excessive”. How these inferences could be drawn in the absence of any evidence from the respondent to support them was never explained.

[76] It is also pertinent to observe that the appellant’s senior counsel was unable to provide a responsive answer when asked what inferences the Court should draw as to how or why the respondent charged fees which were grossly excessive, and as to the basis on which he charged the fees he did.

[77] Yet these were the very matters which were wholly within the knowledge of the respondent and which he was did not offer to answer in the witness box. On the contrary, he chose the safety of the well of the Tribunal. Notwithstanding the advice of his then senior counsel, the respondent’s refusal to enter the witness box and provide evidence with respect to the matters referred to should have been the subject of harsh criticism by the Tribunal. Moreover, if that evidence had otherwise been relevant to the issue, his refusal to provide it would have significantly detracted from the weight to be attached to the tendered character references. In these circumstances, the only inference one can draw from the respondent’s refusal to give sworn testimony in this matter was that his evidence would not have assisted his case in resisting a finding of professional misconduct.

[78] The Tribunal should not have been required to speculate as to the basis upon which the respondent charged the fees he did. As an experienced barrister with an unblemished record, one would have expected him, as Meagher JA expressed it in Coe, to have mounted the witness box and explained the mysteries surrounding charges which had been found to be grossly excessive. In my opinion the failure of the respondent to give sworn evidence was inexcusable.

18 As appears from that extract, this approach followed similar views expressed in Coe v New South Wales Bar Association [2000] NSWCA 13.

19 In my opinion, there is a question whether proceedings seeking removal of a legal practitioner form the Roll should be regarded as proceedings for a civil penalty, of the kind considered in Rich. The considerations adverted to by McHugh J in Rich support a view that such proceedings are overwhelming protective. However, for the following reasons, I do not need to decide this.

20 I accept that no adverse inference can be drawn against the opponent by reason of his exercise of his right to silence at the time of the investigation of the offence of which he was convicted; but in my opinion, the question of whether any adverse inference can be drawn from his failure to give evidence before this Court is informed by the High Court decision in Azzopardi v The Queen [2001] HCA 25; 205 CLR 50.

21 That case concerned what comments a trial judge can make to a jury concerning the failure of an accused person to give evidence at a criminal trial. In general terms, the majority of the High Court ruled to the effect that there should be no comment to juries suggesting that any finding against the accused can more readily be made because the accused did not give evidence. However, there was a significant qualification to that view, expressed in the following passages from the majority judgment, in which the earlier High Court decision in Weissensteiner v The Queen (1993) 178 CLR 217 was considered:

[60] The critical part of the trial judge's direction which fell for consideration in Weissensteiner was:

"The consequence of that failure [of the accused to give evidence] is this: you have no evidence from the accused to add to, or explain, or to vary, or contradict the evidence put before you by the prosecution. Moreover, this is a case in which the truth is not easily, you might think, ascertainable by the prosecution. It asks you to infer guilt from a whole collection of circumstances. It asks you to draw inferences from such facts as it is able to prove. Such an inference may be more safely drawn from the proven facts when an accused person elects not to give evidence of relevant facts which it can easily be perceived must be within his knowledge. You might, for example, think in this case it requires no great perception that the accused would have direct knowledge of events which can be canvassed only obliquely from the point of view of seeking to have you draw an inference from the evidence which has been led by the Crown. The use that you make of the fact that there is no evidence given or called by the defendant in these proceedings is that."


[61] What was important in Weissensteiner , and what warranted the remarks that were made to the jury in that case, was that, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person or source. In other words, Weissensteiner was not a case in which the accused simply failed to contradict the direct evidence of other witnesses. If that were sufficient to warrant a direction of the type given in that case, there would be, in truth, no right to silence at trial.

….

[64] There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence.

[65] In RPS, McHugh J expressed the view that, if the circumstances of a case are such that some comment is permissible, the preferable course is for comment to be made in terms of a failure to offer an explanation, rather than a failure to give evidence. That was the approach that Gaudron J and his Honour endorsed in Weissensteiner , saying:

"it is the failure to provide an 'explanation or answer ... as might be expected if the truth were consistent with innocence' ... which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of evidence ... Accordingly, directions should be given in terms of the unexplained facts, rather than in terms of the failure to give evidence or to meet the prosecution case ... or the failure to answer questions from investigating police." (footnotes omitted)


[66] In Weissensteiner , Gaudron and McHugh JJ were in dissent. Subject to one important qualification, however, the approach taken by their Honours in that case is one that conforms to s 20(2) of the Evidence Act. More to the point, to refer to the failure of an accused to give evidence, rather than his or her failure to offer an explanation is to risk contravention of the prohibition in s 20(2) against suggesting that the accused failed to give evidence because he or she was guilty or believed himself or herself to be so.

[67] The qualification to which reference has just been made is this: as already explained, a judge may comment on evidence, not give directions with respect to the evidence. If the circumstances are such as to permit a comment with respect to the failure to offer an explanation, it should be made plain that it is a comment which the jury are free to disregard. If made, it should be placed in its proper context. That requires identifying the facts which are said to call for an explanation and giving adequate directions to the jury about the onus of proof, the absence of any obligation on the accused to give evidence, and the fact that the accused does not give evidence is not an admission, does not fill gaps in the prosecution's proofs and is not to be used as a make-weight. And the comment should not go beyond that made in Weissensteiner , as adapted to refer to the failure to offer an explanation rather than the failure to give evidence.

[68] It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Once that is appreciated, the supposed tension between Weissensteiner and RPS disappears. In Weissensteiner , the comment related to the absence of evidence of additional facts peculiarly within the knowledge of the accused; in RPS, there was no question of any additional fact known only to the accused merely the failure to contradict aspects of the prosecution case.

22 If this had been a criminal trial, then in my opinion what the High Court said in Azzopardi would have meant that a jury could have been told that inferences from proved facts could more safely be drawn because the opponent elected not to give any explanation in terms of additional facts peculiarly within his knowledge or any evidence of such facts. In my opinion, if such Jones v Dunkel reasoning is available to a jury in a criminal trial, it must a fortiori be available to a court in civil proceedings such as the present. That would be so, even if these civil proceedings are regarded as proceedings for a civil penalty. I note that a similar view was expressed by Hill J in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd [2001] FCA 1800; (2001) 201 ALR 502 at [33].

23 It could be argued that this approach only deals with the right to silence in relation to proceedings actually under way, and that the opponent had another right against self-incrimination in respect of any additional offence with which he might be charged; and since his failure to give evidence was supported by that right, it could not be relied on to assist any inference against him.

24 However, that topic is dealt with by s 128 of the Evidence Act 1995, which is in the following terms:

128 Privilege in respect of self-incrimination in other proceedings

(1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness:


(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b) is liable to a civil penalty.

(2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:


(a) that he or she need not give the evidence, and

(b) that, if he or she gives the evidence, the court will give a certificate under this section, and

(c) of the effect of such a certificate.


(3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence.

(4) The court is also to cause a witness to be given a certificate under this section if:


(a) the objection has been overruled, and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(5) If the court is satisfied that:


(a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and

(b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and

(c) the interests of justice require that the witness give the evidence,
the court may require the witness to give the evidence.


(6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence.

(7) In any proceeding in a NSW court:


(a) evidence given by a person in respect of which a certificate under this section has been given, and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence,
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

(8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:


(a) did an act the doing of which is a fact in issue, or

(b) had a state of mind the existence of which is a fact in issue.

(9) A reference in this section to doing an act includes a reference to failing to act.

25 In my opinion, the opponent cannot be in any better position, as regards a privilege against self-incrimination in other proceedings (or any inference that might be drawn from reliance on that privilege), than if he had given evidence before this Court and claimed the privilege as a basis for not answering particular questions; and in my opinion the content of s 128 (providing for the protection of a certificate with the effect stated in s 128(7)) is inconsistent with a view that a person not giving evidence because of a concern about self-incrimination in respect of another matter is in any better position, as regards inferences that may be drawn from failure to give evidence, than an accused not giving evidence at a trial, as discussed in Azzopardi.

26 On this approach, what was said in Coe and Meakes was probably correct in its application to the facts of those cases, although it may have been expressed too sweepingly if it is the case that Rich applies to professional disciplinary proceedings. In any event, for the reasons I have given, in my opinion the failure of the opponent to give any explanation or any evidence can be used in these proceedings at least to the extent that the failure of an accused to give an explanation or evidence in a criminal trial can be used, in accordance with Azzopardi.

27 Mr Cheshire submitted that, even if the failure to give evidence could possibly be used in that way, it should not be so used in this case. He pointed out that in Azzopardi it was said that cases on which a discretion of the kind under discussion may be given “will be both rare and exceptional”. Further, he submitted that such considerations cannot be used to fill gaps in the prosecution’s evidence, that it was the failure to provide an explanation and not the failure to give evidence that could be the subject of comment, that in many cases an explanation can be given without the need to give evidence, and that comment could be made only when it was reasonable to expect the accused to give evidence (or an explanation). He also submitted that it was not reasonable in this case to expect the opponent to give evidence, particularly in circumstances where he has consented to the relief sought, because to do so would expose him to cross-examination on all aspects of the facts underlying the conviction, and to considerable additional adverse media publicity.

28 There is force in these submissions. However, in the present case the opponent could have given an explanation of his knowledge of what happened to the F-drive without giving evidence. For example, he could have written a letter to the claimant giving this explanation, and could have sought to tender this letter should the claimant not have submitted it to the court. Furthermore, the reasons said to justify his not giving evidence have to be considered alongside the obligation of candour discussed in cases such as Re Veron (1966) 84 WN(NSW) (Part 1) 136, Coe and Meakes. In my opinion, this obligation of candour should not be overridden by a right to silence to any greater extent than is strictly required by that right.

29 In all the circumstances, in my opinion the Court can have regard to the opponent’s failure to offer any explanation of what happened to the F-drive, or to give evidence concerning the matter, in considering whether to draw inferences from the material before it.

Additional Facts

30 The claimant seeks findings of conduct in breach of s 319 or s 317 of the Crimes Act 1900 (NSW). Those provisions, and also s 312 of the Crimes Act, are in the following terms:

312 Meaning of “pervert the course of justice”

A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.

…..

317 Tampering etc with evidence

A person who, with intent to mislead any judicial tribunal in any judicial proceeding:

(a) suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or

(b) fabricates false evidence (other than by perjury or suborning perjury), or

(c) knowingly makes use of fabricated false evidence,

is liable to imprisonment for 10 years.

…..

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.

31 Ms Adamson SC for the claimant submits that inferences can be drawn that the opponent removed the F-drive prior to bringing the computer into the office of the DPP and at that time left it in his house; that because it was not found in his house by the police, he must have subsequently deliberately concealed or disposed of it; that this happened after he became aware that he would be charged with a criminal offence; and that his intention in concealing or disposing of it was to ensure that it was not available as evidence of criminal conduct.

32 Ms Adamson also submitted that the inference could be drawn that, by referring to other persons staying at his house, the opponent intended to divert investigations from himself to others, thus attempting to pervert the course of justice.

33 Mr Cheshire submitted that the Court needed to be satisfied that of matters alleged against the opponent to the standard discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 before making a finding against him. He submitted that the evidence was consistent with an account whereby the opponent had removed the F-drive prior to going on holidays, and then either concealed it or disposed of it so that persons coming to his house would not discover pornography. Police searches were conducted only at the opponent’s home and office, so that if the opponent had put the F-drive somewhere else, it would not have been discovered. Thus the evidence was at least equally consistent with explanations consistent with innocence, and no inference could be drawn against the opponent. Mr Cheshire also submitted that the numerous references concerning the opponent supported the view that, notwithstanding his criminal conduct arising from an addiction, the opponent had respect for the law and was unlikely to have set about perverting the course of justice.

34 As regards the other matter, Mr Cheshire submitted that the opponent said nothing untrue, and did not assert that he was not responsible for pornography found on the computer; and, by the next day, was admitting that he was responsible for it. Accordingly, the material did not justify a finding of a deliberate attempt to pervert the course of justice.

35 In my opinion, the issue concerning the F-drive can be approached in three stages. First, there is the question whether the F-drive was deliberately concealed or disposed of by the opponent. Next, there is the question of, if so, when was it concealed or disposed of. Third, there is the question of what the opponent’s intention was when the F-drive was concealed or disposed of.

36 The F-drive was in the computer on 1 June 2006, and it is highly probable that it was the opponent who was operating the computer on 1 June 2006. It was not in the computer on 4 July 2006, when it was taken to the office of the DPP, and no one accessed the computer in the meantime. It is agreed that it was the opponent who removed the drive, and it is common ground (Agreed Statement of Facts par [23]) that the opponent believed he had removed all child pornography from the computer. The evidence shows that there was a police search of the opponent’s house and garage, as well as of his office; and in my opinion it is highly likely that, if the opponent had not set about deliberately concealing or disposing of the F-drive, it would have been found in that search. This inference can more readily be drawn, in accordance with the principles discussed earlier, because any explanation of why the F-drive was not found is an additional matter peculiarly within the knowledge of the opponent.

37 As to when the opponent deliberately concealed or disposed of the F-drive, there is some hearsay evidence of other persons being in the opponent’s home while he was away. However, the computer had crashed to the knowledge of the opponent on 1 June 2006, and in any event was protected by a password. These circumstances make it likely that there would be no occasion to remove the F-drive from the computer and to conceal or dispose of it in order to prevent access by any such person. Again, if there were any circumstance to suggest that the opponent had a concern that those persons may have had access to the computer, although it had crashed and was protected by a password, again those circumstances are additional matters peculiarly within the knowledge of the opponent; and his failure to give any explanation or evidence of any such circumstances supports the drawing of an inference that the F-drive was not concealed or disposed of to prevent access to pornography on it by any such person.

38 Apart from the possibility of access by persons going to the opponent’s home while he was away, the only plausible reason appearing from the circumstances for the opponent to conceal or dispose of the F-drive is provided by what happened at the office of the DPP when the opponent was told that pornography had been found on his computer. The inference is available that the opponent was prompted by what happened then to deliberately conceal or dispose of the F-drive; and the only plausible reason for doing this was to ensure that the F-drive would not be available for use as evidence against him. Again, if there were any circumstances that could displace such an inference, those are additional matters peculiarly within the knowledge of the opponent.

39 As regards the weight to be given to the references, Ms Adamson referred to Munro, ex parte; re the Legal Practitioners Act (1969) 71 SR(NSW) 448 at 451-2. In that case, the Court of Appeal gave little or no weight to references supporting the integrity of a person who had misappropriated and used trust funds for himself. The references in the present case are different, because the persons giving the references were aware of the opponent’s offences, and express the view that, notwithstanding these offences, the opponent had respect for the law.

40 I think these references are entitled to some weight; but in the circumstances I have outlined, in my opinion the inference can and should be drawn, on the balance of probabilities and to the Briginshaw standard, that the opponent did deliberately conceal or dispose of the F-drive at a time when he knew he was being investigated for a criminal offence and knew that it was inevitable that he would be charged with such an offence, in order to ensure that the F-drive was not available as evidence against him. Such conduct would, in my opinion, amount to an offence under both s 317 and s 319.

41 As regards the other matter, while it is probable that the reference to other persons at the house was made to suggest that the opponent might not be responsible for what was found on the hard-drive, it is not shown that any untruth was told, and what was said was an immediate reaction to what must have come as a great surprise to the opponent. The remark was not made to persons with the direct responsibility for conducting a criminal investigation, and such attempt as there may have been to divert attention from himself was plainly abandoned by midday on the following day. I do not think something so half-hearted and fleeting should fairly be regarded as an attempt to pervert the course of justice.

CONCLUSION

42 It is on the basis of the facts I have found that, in my opinion, orders 1 to 3 sought in the summons should be made. The additional finding I have made justifies the finding of professional misconduct: see The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 at [24], [28], [37]-[44].

43 The claimant has had substantial success on the contested issue, and in my opinion the opponent should pay the claimant’s costs. I propose the following orders:

(1) Declare that the opponent is guilty of professional misconduct.

(2) Declare that the opponent is not a fit and proper person to remain on the Roll of Legal Practitioners.

(3) Order that the name of the opponent be removed from the Roll of Legal Practitioners.

(4) Order that the opponent pay the costs of these proceedings.

44 McCOLL JA: I agree with Hodgson JA.

**********