Gersten v The Law Society - [2001] NSWSC 748

Reported Decision:
53 NSWLR 206

New South Wales

Supreme Court

CITATION: Gersten v The Law Society [2001] NSWSC 748

FILE NUMBER(S): SC 10125/99

HEARING DATE(S): 26-28/2/01, 1-2/03/01, 5-10/03/01, 12-16/03/01, 16-19/07/01

JUDGMENT DATE:
7 September 2001

PARTIES :

Joseph Morris Gersten v The Law Society of New South Wales

JUDGMENT OF: James J at 1

COUNSEL : A Swanwick - Plaintiff
Dr J Griffiths/N Beaumont - Defendant

SOLICITORS: In Person - Plaintiff
Raymond John Collins - Defendant

CATCHWORDS: Legal Practitioner - solicitor - suspension from practice outside New South Wales by reason of misconduct - Suprme Court Rules Part 65A r 3 - whether Court should otherwise order.

CASES CITED: United States v Chen, 933 F.2d 793
Juidice v Vail 430 US 327 (1977)
Patel v The Law Society of New South Wales (1999) NSWCA 372
Morgan v Johnson (1998) 44 NSWLR 578
Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538
Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30
CSR Limited v Cigna Insurance Australia Limited (1996-1997) 189 CLR 345
Hilton v Guyot (1895) 159 US 113
Wentworth v NSW Bar Association (1992) 176 CLR 239
Jones v Dunkel (1958-9) 101 CLR 298
R v Buckland (1977) 2 NSWLR 453
Mahon v Air New Zealand (1984) 1 AC 808
Kioa v West (1985) 159 CLR 550
Rubie v Rubie (1911) 13 CLR 350
Attorney-General for New South Wales v Mayas Pty Limited (198) 14 NSWLR 342
United Telecasters Sydney v Hardy (1991) 23 NSWLR 323
Pelechowski v Registrar Court of Appeal (NSW) (1999) 198 CLR 435
Russell v East Anglian Railway Co (3 Mac. & G.,104)

DECISION: Application should be dismissed - making of orders deferred.

JOSEPH MORRIS GERSTEN v THE LAW SOCIETY OF NEW WOUTH WALES

10125/99

INDEX

SUBJECT PAGE

INTRODUCTION 1

EVIDENCE 3

OUTLINE OF MATTER AND EVENTS 4

Generally 4
Proceedings in Relation to the Enforcement of the
Contempt Order 67
Disciplinary Proceedings in Florida 73
State Attorney’s Office Files Opened 90
Mr Gersten in Australia 90
Proceedings in the Federal Court of Australia 91

FURTHER EVIDENCE 95

Mr Gersten 95
Mr Richey 99
Ms Calzon 103
Mr Osborn 113
Dr McNaughtan 113

Mr Rosenblatt 115

Mr Hendrix 120
Other Witnesses 126

ADJUDICATION 126

Submissions 126
Interpretation of Pt 65A r 3 133
Considerations Requiring Caution and Restraint 139
Alleged Misconduct in New South Wales 163
Decisions of Courts in Florida 165
Did Mr Gersten Not Commit the Alleged Gersten
Offences 170

Did the State Attorney’s Office carry on an Investigation
in Bad Faith for the Purpose of Harming Mr Gersten? 176

Did Mr Gersten honestly believe on reasonable grounds
that The State Attorney’s Office was carrying on an
investigation In bad faith for the purpose of harming him? 190

Did the Florida Bar Adopt an improperly narrow view of what
Factors were relevant in determining what would be an
Appropriate sanction for any misconduct by Mr Gersten 193

If Mr Gersten returned to Florida, what would be likely
to happen and would Mr Gersten be able to obtain
justice in the courts in Florida? 193

Whether Mr Gersten has been “a Fugitive from Justice” 202

- - - - - -

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Friday 7 September 2001

10125/1999 - Joseph Morris Gersten v The Law Society of New South Wales

JUDGMENT
INTRODUCTION

1 HIS HONOUR: These are proceedings brought by Joseph Morris Gersten (“the plaintiff” or “Mr Gersten”) against the Law Society of New South Wales (“the defendant” or “the Law Society”).

2 Mr Gersten is a citizen of the United States of America, who used to reside in the American State of Florida. He was admitted to practice as an attorney in the State of Florida in December 1975. On 5 March 1998 the Supreme Court of Florida made an order, suspending Mr Gersten from practicing law in Florida, until he complied with an order made against him on 18 March 1993 by her Honour Judge Amy Dean, a judge of the Eleventh Judicial Circuit in the State of Florida, and for one year thereafter. The Supreme Court of Florida held that by not complying with the order made by Judge Dean Mr Gersten had breached r 4-3.4(c) of the Rules of Professional Responsibility for lawyers in Florida which, subject to an exception which the Court held was not applicable, prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal.

3 In August 1996 Mr Gersten, who had come to Australia in 1993, was admitted to practice as a legal practitioner in New South Wales. On 7 January 1999 the Law Society wrote to Mr Gersten, referring to the order of the Supreme Court of Florida of 5 March 1998 and to the provisions of Pt 65A r 3 of the New South Wales Supreme Court Rules and inquiring whether Mr Gersten had made any application to this Court pursuant to Pt 65A r 3.

4 Pt 65A r 3(1) of the Supreme Court Rules provides, so far as is relevant:-

. . .

by reason of misconduct, is suspended from practice:

. . .

(e) in the case of suspension… - during the period of suspension… unless the Court otherwise orders”.

5 The present proceedings in which Mr Gersten seeks that the Court “otherwise order” under Pt 65A r 3(1)(e) were commenced on 20 January 1999. On that date Abadee J made an interlocutory order that Mr Gersten be permitted to practice in New South Wales as a legal practitioner, notwithstanding his suspension from practice as a lawyer in Florida, until the determination of the proceedings. This interlocutory order has remained in force and Mr Gersten has continued to practice in New South Wales.

6 On 20 January 1999 the proceedings were commenced ex parte, without naming any defendant. At the request of Abadee J, the Law Society consented to being joined as a defendant. The Law Society is the only defendant in the proceedings.

EVIDENCE

7 A very large volume of evidence was adduced in the proceedings.

8 A number of witnesses made affidavits or gave oral evidence or did both. Witnesses for the plaintiff were the plaintiff himself; Maria del Carmen Calzon, a Florida attorney, who has acted for the plaintiff since 1993; William Richey, a Florida attorney, who acted for the plaintiff in 1992; Mr Osborn, a retired Miami police officer; Dr McNaughtan, an Australian medical practitioner, who last year travelled to the United States and carried out an investigation on behalf of Mr Gersten; and two New South Wales lawyers, Mr Lee, a solicitor, and Mr Coombs, a junior barrister.

9 In addition to this affidavit and oral evidence, a vast number of documents totalling several thousand pages were admitted into evidence in Mr Gersten’s case.

10 Witnesses for the Law Society who made affidavits and gave oral evidence were Mr Joel Rosenblatt, an assistant State Attorney for the Eleventh Judicial Circuit in Florida, and Mr Billy Jack Hendrix, formerly the Director of Lawyer Regulation for the Florida Bar. Mr Stevens of senior counsel and Mr Grey of junior counsel gave oral evidence for the Law Society. A number of documents tendered by counsel for the Law Society were admitted into evidence.

11 Much of the evidence from both sides that was admitted, was admitted subject to objections to its relevance or objections that it was not evidence of the truth of assertions of fact made in the evidence.

12 I have decided that the matters and events set out in the following outline are established by the evidence and are either relevant in themselves or are at least relevant to a proper understanding of other matters and events which are relevant. In setting out in the outline what was said or written on any occasion, I am not to be taken as making any finding that what was said or written was true.

Outline of Matters and Events

Generally

13 As I have already stated, the plaintiff is a citizen of the United States of America. He was admitted to practice as an attorney in the State of Florida in December 1975. Apart from the matters I will specifically refer to in this judgment, he has not been the subject of any complaint of professional misconduct in Florida.

14 The plaintiff had a long political career in Florida. Between 1974 and 1981 he was a member of the Florida House of Representatives. Between 1981 and 1986 he was a member of the Florida Senate. In 1986 he was an unsuccessful candidate for the position of Attorney-General of Florida. Between 1988 and April 1993 he was a Commissioner of Dade County in the State of Florida, which includes the city of Miami. In 1992 the plaintiff announced his candidature for the position of Mayor of Dade County but he ultimately did not stand for that position. In April 1993 he was defeated in an election for Commissioners of Dade County. The plaintiff ceased being a Commissioner of Dade County on or about 20 April 1993.

15 The plaintiff asserted in one of his affidavits that he had as “a bitter political and personal adversary” Ms Janet Reno, who between 1978 and 1993 was the elected State Attorney for the Eleventh Judicial Circuit in Florida, that is, Dade County in Florida. As State Attorney for the Eleventh Judicial Circuit Ms Reno was responsible for the prosecution of crime within the geographical area of the Eleventh Judicial Circuit. After the election of Mr Clinton as President of the United States, Ms Reno became, in early 1993, Attorney-General of the United States. Ms Reno was replaced as State Attorney for the Eleventh Judicial Circuit by Ms Katherine Fernandez-Rundle (“Ms Rundle”).

16 Mr Gersten and other persons who have practised as lawyers in Florida gave evidence about the court system in Florida. The State is divided into twenty circuits, each of which has its own Circuit Court, which is a trial court. Circuit Court judges are elected for fixed terms and if they wish to continue in office have to stand for re-election against any other candidates. The State is divided into five districts and each district has its own Court of Appeal, which hears appeals from decisions of Circuit Courts within its district. Judges of a District Court of Appeal are appointed for terms of six years and can stand for re-election “on their record”, that is without being opposed by another candidate but needing to receive in their favour a majority of the votes cast. The Supreme Court of Florida is the highest State Court in Florida. However, the Supreme Court of Florida exercises jurisdiction in only certain limited classes of cases and for most cases a District Court of Appeal is the final court of appeal.

17 The present proceedings have their origin in events which allegedly occurred in Florida on the night of 29 April 1992. There is no doubt that on that night Mr Gersten’s Mercedes-Benz motor vehicle was stolen. However, there were two sharply conflicting versions of the circumstances in which Mr Gersten’s car was stolen. One version, or rather one group of versions, was given by the car thieves themselves and certain other persons. It is convenient, although not fully accurate, to refer to all the members of this group of witnesses as “the car thieves”, even though some of them did not, on anyone’s version, participate in the theft of Mr Gersten’s car. The other version was given by Mr Gersten himself.

18 In broad outline, and subject to a number of variations, the version given by the car thieves was that Mr Gersten had solicited a prostitute named Lisa McCann (also known as Tracy Sheehan) for the purposes of prostitution; that he had driven Lisa McCann to a house indicated by her (often referred to in the evidence before me as “the crack house”); that at the crack house he had asked to be supplied with, and had been supplied with, cocaine, which had been obtained for him by a man named Robert Maldonado; that Mr Gersten had smoked cocaine at the crack house; that he had engaged in sexual acts with Lisa McCann at the crack house; and that Claudia Lira, another prostitute, who had been at the crack house when Lisa McCann and Mr Gersten arrived, and her boyfriend, Kenneth Elswick, who had arrived at the crack house that evening after Mr Gersten arrived, had stolen Mr Gersten’s car from where it was parked near the house. In one variant of the version given by the car thieves Elswick had robbed Mr Gersten of the keys to his car, at knife point.

19 The version given by Mr Gersten was that in the early evening he had returned to his home in his car; that he had parked his car in front of his home; that he had gone inside his home, leaving the car keys in the car; that he had lain down and fallen asleep; and that after he awoke he had discovered that his car was missing. Mr Gersten was particularly concerned about highly sensitive documents, which he said he had left in the car. He had telephoned his attorney, Mr William Richey, who had come to his home. After discussing the matter with Mr Richey, Mr Gersten had reported the theft of his car.

20 One form of their version which was allegedly given by the car thieves was set out in considerable detail in an affidavit made on 5 June 1992 by Ronald Ohlzen, an investigator of the Dade County State Attorney’s Office, in support of an application to a judge for the issue of a “search warrant”, which was actually an application for an order authorising the taking from Mr Gersten of samples of his hair for the purpose of forensic analysis to determine whether Mr Gersten had used cocaine. Although it was submitted on behalf of Mr Gersten in these proceedings that the version of the car thieves varied from person to person within the group and that each person’s version varied over time, and Mr Ohlzen made a supplementary affidavit in which he said that one piece of information (an estimate of time) which he had concluded in his principal affidavit as having been received from Lisa McCann could not be true, it is useful to set out verbatim the information which Mr Ohlzen said in his affidavit he had obtained. Mr Ohlzen, as the deponent of the affidavit, referred to himself in the affidavit as “the affiant”. In his affidavit Mr Ohlzen said:-

“On May 19, 1992, your Affiant spoke with Officer Paul T. Miyares, Coral Gables Police Department, who stated that at 10:15 p.m. on April 29, 1992 Joseph M. Gersten reported to him that his 1987 blue Mercedes, four-door sedan had been stolen from the driveway of Gersten’s residence at 1017 Hardes Road, Coral Gables, Dade County, Florida, between 8:00p.m. and 8:30 p.m. Based on this oral report, Officer Miyares prepared and submitted to the Coral Gables Police Department a written report of the auto theft under case number 92-8249.

On May 11, 1992, your Affiant spoke with Lisa McCann, also known as Tracy Sheehan, a known prostitute and crack cocaine addict, who stated that on April 29, 1992, between 6:15 p.m. and 7:00 p.m., after being solicited for prostitution by a white/male, whom she later identified as Joseph M. Gersten from newspaper articles and television programs, that she drove with Gersten in a blue Mercedes, four-door sedan to 471 Northeast 31st Street, Miami, Dade County, Florida. McCann stated that the two individuals named Claudia (Lira) and Roberto (Maldonado) were in the front room when they entered. McCann and Gersten went into the bedroom. Upon entering this bedroom, Gersten gave McCann $30.00, told her to get some crack cocaine for them to smoke. McCann stepped out of the bedroom and gave the money to Roberto and asked him to get some rock (crack cocaine). Roberto left and when he returned Roberto gave McCann rock cocaine. McCann, at the request of Gersten, purchased a crack cocaine pipe from Claudia for $10.00 and gave the pipe to Gersten. With the pipe McCann and Gersten smoked two rocks of crack cocaine. Gersten gave McCann money two more times and told her to obtain more crack cocaine for them to smoke while inside the house on April 29, 1992. Each time McCann gave the money to Roberto and each time Roberto left and returned with rocks of crack cocaine. McCann said on one occasion she gave one rock back to Roberto as a tip. McCann said she gave the remaining rocks of crack cocaine to Gersten and together they smoked several of them. McCann said that while in the bedroom with Gersten, two (2) people, Claudia Lira and Kenny Elswick came into the bedroom and Lisa McCann left the house. Lisa McCann made this statement freely and voluntarily.

On this same date, your Affiant spoke with Claudia Lira, also known as Napalitano, a known prostitute and crack cocaine addict, who stated that on April 29, 1992, in the early evening, Lisa McCann came to 471 Northeast 31st Street with a “date”. Lisa wanted Claudia Lira and Roberto to leave as the “date” was “real paranoid.” Claudia Lira told Lisa McCann that she and Roberto would not leave, but Lisa McCann and the “date” could use the bedroom. Claudia Lira identified the “date” to your Affiant as Joseph M. Gersten, whose photograph she observed on television and whose identification she found inside a blue Mercedes, four-door sedan on April 29, 1992. Claudia Lira said that Lisa McCann came out and told her she needed “her stem” (rock cocaine pipe). Claudia Lira asked who it was for and Lisa McCann told her it was for her “date”. Claudia Lira offered the pipe for sale for $20.00 Lisa McCann told her she would only pay $10.00 and the pipe would be sold to McCann by Claudia Lira. Claudia Lira said she saw McCann give Roberto money and him to go and get some rocks for the “date” and her. Roberto returned shortly and both she and Roberto “took a hit off the rocks”, then gave the rocks to Lisa McCann who took them into the bedroom and shut the door. Lisa McCann came out a third time and gave Roberto money and asked him to get some more rocks for her and her “date”. Again, Roberto left and returned with some cocaine which Claudia Lira saw Roberto give to Lisa McCann, who returned to the bedroom and shut the door.

Claudia Lira said that someone knocked on the front door and Roberto opened the door and let Kenny Elswick in. Claudia Lira told Kenny Elswick that she wanted to rob the “date” and Kenny said, “Let’s do it.” With that Claudia Lira said she and Kenny Elswick entered the bedroom. Upon entering, Claudia Lira saw Gersten taking a “hit” on the cocaine pipe as he was lying on the bed. Claudia Lira told Lisa McCann to get out of the bedroom and Lisa McCann left. Gersten put the pipe and the rocks on the floor. Claudia Lira made this statement to your Affiant freely and voluntarily.

State Attorney’s Office/Criminal Investigation Division Investigator Karen Jacobson told your Affiant that on May 11, 1992, she spoke with Roberto Maldonado, a convicted felon and known crack cocaine user, who said that on Wednesday, April 29, 1992, in the early evening he was lying down in the front room of a house located at the rear of 471 Northeast 31st Street, Miami, Dade County, Florida. Claudia Lira was also there. There was a knock on the door and a prostitute named Lisa McCann was there with a “date”. Maldonado subsequently identified the “date” to your Affiant as Joseph M. Gersten. The man, Joseph M. Gersten, gave him two twenty-dollar bills to purchase crack cocaine. Maldonado left and obtained four dime rocks of cocaine and came back to the house. Claudia Lira was in the front room and the bedroom door was shut. Lisa McCann opened the bedroom door and he gave the rocks to her. Lisa McCann came out two more times and gave Maldonado money and asked him to get some more rocks. Each time he went and obtained rocks of crack cocaine and brought them back to the house and gave them to Lisa McCann. On one occasion he, Maldonado, alone with Claudia Lira, smoked one of the rocks. Maldonado said after a period of time there was a knock on the front door and he went to the door and let Kenny Elswick in. He said that he left shortly after Kenny Elswick came in and the “date” was still in the bedroom with Lisa McCann. Robert Maldonado made this statement freely and voluntarily.

State Attorney’s Office/Criminal Investigation Division Investigator Karen Jacobson told your Affiant that on May 14, 1992, she spoke with Robert Cabanas, a cab driver with Diamond Cab Company. Cabanas said that in the evening of Wednesday, April 29, 1992, he was driving his cab on Biscayne Boulevard at 29th Street, Miami, Dade County, Florida. He observed an individual whom he later identified from newspaper photographs and television programs as Joseph M. Gersten standing on the south side of the intersection on the sidewalk hailing him. Cabanas said that Gersten was “glassy-eyed” as if on some type of drug, jittery, and fidgety. He was dressed neatly and appeared to be out of place for the area. Gersten asked to be taken to the 1000 block of Hardes Road in Coral Gables, Dade County, Florida. Cabanas did in fact take Gersten to that location.

On May 28, 1992, your Affiant following a waiver of immunity and Miranda rights, spoke with Kenneth C. “Kenny” Elswick, a known crack addict and close associate of Claudia Lira, said that on April 29, 1992, in the early evening he went to 471 Northeast 31st Street, Miami, Dade County, Florida. He said he knocked on the front door and “Roberto” opened the door and let him in. Claudia Lira was also in the front room. Lira informed him that Lisa McCann had a “date” in the bedroom who had big money and that Lisa McCann and the “trick” had been smoking rocks. Claudia Lira asked Elswick “if he was down,” meaning ready to rob the “date”. Elswick told Lira, “Let’s do it” and they entered the bedroom. Lisa McCann fled the room and Elswick said he observed a white male, whom he subsequently identified as Joseph M. Gersten from identification Claudia Lira had in her possession and from television news programs, lying on his side on the bed with a cocaine pipe and rocks in his hand. Gersten placed the pipe and rocks on the floor partially under the bed. Elswick said that he took $40.00 from Gersten and Claudia Lira searched Gersten’s pants pockets.

21 Mr Gersten gave a detailed account of what he said had happened on 29 April 1992 in an affidavit sworn by him on 28 November 2000 in these proceedings, which was described as his “fourth” affidavit. In this affidavit Mr Gersten said:-

“Some time during the morning of 29 April 1992 I was contacted by Ron Book, a lawyer and lobbyist, who asked me to attend in his stead at a luncheon with some corporate executives. I agreed to do so. At lunchtime I attended at the Intercontinental Hotel in Miami, and met the visiting businessmen. As I recall, the discussion focused on how they should go about seeking to obtain business from Dade County.

During luncheon an acquaintance of mine, Jay Weiss, entered the luncheon room. I was scheduled to travel to France with Weiss and his wife and my fiancee about a week later. I was aware that one of Weiss’s closest friends had died a few days earlier - indeed, I had attended the funeral. So I concluded discussions with the businessmen and joined Weiss. Over the next couple of hours we remained together drinking. By the time I left I was very significantly affected by alcohol, and was feeling very tired. I then returned to my law office.

I spent only a short time at my law office, because I was alcohol-affected and very tired. I left and went to a menswear store (Peter Kent Menswear) to collect some clothes which I had ordered for the impending trip to France. I chatted to the proprietor for a short while and then left. I estimate that I departed from the store at around 6.15pm that evening, and drove home. (My estimate of that time is based partly on records which show the time at which the store was closed and the burglar alarm set that day). I have no recollection of stopping to buy petrol on the way home, but it is possible that I did so. I estimate that I arrived home at about 6.45-7.00pm.

Upon arrival home I stopped the car in the driveway of my house. I needed to use the toilet urgently, so I went straight into the house and upstairs, intending to then return to unload the car etc. I left the car keys in the car. (The keys to the house were separate from the car keys). However, I lay down briefly on the bed and immediately fell asleep. I’m unsure what time I awoke, but when I did so I then went downstairs to unload and secure my car. I found that the car was no longer where I left it in the driveway. I was very concerned, because there were some highly-sensitive documents in the car relating to an investigation which I had been conducting into money-laundering and corruption. The documents included memoranda from a confidential informant, photocopies of which I had provided to the F.B.I some time earlier. There were also other confidential documents. I immediately rang my attorney, William Richey, to get his advice about what I could afford to say to the police about those documents when I reported the car stolen. Richey offered to come to my house, which he did. It took him not less than half an hour to get to my house after I called him. After discussing the matter with Richey I rang the City of Coral Gables Manager, Jack Eades, and told him of the theft of the car. (The Coral Gables police report to Eades). I told him that it contained very sensitive documents which were not to be opened if the car was recovered. Eades said that he would contact the police and have someone call me back. A few minutes later a senior police officer called me back, asked me what had happened, and said that he would send a patrolman to my home. A short time later a police officer arrived, and I formally reported the theft of the car to him. From my recollection my fiancee and our maid arrived home shortly before the police arrived. Mr Richey left when the police arrived.

I estimate that the time-lapse between my discovery of the theft of the car and the arrival of the police was approximately 1-1½ hours. The police officer who attended at my home records that he arrived there at 10.15pm. That leads me to conclude that my discovery of the theft was at about 8.45pm-9.15pm.”

22 Mr Gersten’s car was recovered the following day 30 April 1992. According to a complaint/arrest affidavit sworn by a police officer (Calzon Exhibit 74), which, arguably, is inconsistent with other evidence, police observed Elswick driving the vehicle, made a computer check of the registration “tag” which revealed that the vehicle had been stolen the previous day and stopped the vehicle. According to the affidavit, Elswick opened a door of the vehicle and ran but he was apprehended shortly afterwards. It is unclear who else, apart from Elswick, was in the vehicle, when it was stopped.

23 Under Florida law theft of an automobile is a felony punishable by a maximum penalty of imprisonment for five years. The expression “grand theft” occurring in some of the documents seems to be equivalent to “theft” and does not indicate an aggravated form of theft, such as robbery.

24 In early May 1992 Mr Gersten went to France with his fiancee Rosario Kennedy, on the trip which had been planned. He remained in France for about a month. While Mr Gersten was in France, great publicity was given in the media in Florida to the allegations made by the car thieves. The Dade County State Attorney’s Office announced that it was investigating the allegations made by the car thieves against Mr Gersten. According to the allegations made by the car thieves, Mr Gersten could have committed the offences of solicitation of prostitution, use and distribution of cocaine and making a false police report about the circumstances in which his car had been stolen (“the alleged Gersten offences”).

25 In May 1992 Mr Gersten’s attorney in Florida (or at least one of his attorneys) was Mr William Richey. After the Dade County State Attorney’s Office had announced that it was investigating the alleged Gersten offences, Mr Richey arranged a meeting at the Dade County State Attorney’s Office with Mr George Ray Havens, who was the chief investigator of the Dade County State Attorney’s Office, Mr Richard Gregorie, who was an assistant State Attorney, and Ms Karen Jacobson, an investigator in the Dade County State Attorney’s Office. The meeting took place on 21 May 1992.

26 In an affidavit sworn by Mr Richey on 13 August 1992 Mr Richey gave an account of what had happened at this meeting, which he substantially repeated on a number of subsequent occasions, including in evidence given on 14 January 1993 before Judge Amy Dean of the Eleventh Judicial Circuit in Florida and in evidence given by video link in these proceedings before me. Mr Richey said in his affidavit:-

“At the meeting, Mr Gregorie and Mr Havens made it clear to me that they were absolutely positive Mr Gersten had been with a man named Kenneth Elswick, a prostitute known as Claudia Lira and a prostitute known as Tracey Sheehan on the evening of April 29, 1992, and that he had been robbed by Ms Lira and Mr Elswick. It was their absolutely firm position that Mr Gersten had filed a false police report.

Mr Havens and Mr Gregorie made clear their desire for Mr Gersten to come to Mr Havens’ office and give a full statement under oath, confessing to what they believe to be the true events of that evening. They made it absolutely clear that, if Mr Gersten were to give testimony which deviated in any way from what Mr Havens and Mr Gregorie were positive had happened that evening, then Mr Gersten would be charged with perjury. Mr Havens and Mr Gregorie were very straightforward and honest in their statements of their beliefs and their plans. They very clearly meant exactly what they said”.

27 It was this view by Mr Richey of the import of what he was told by Mr Havens and Mr Gregorie at the meeting on 21 May 1992, which led to the assertion later made by and on behalf of Mr Gersten that the State Attorney’s Office was seeking to make Mr Gersten the victim of a “perjury trap”. I will return later in this judgment to the subject of a “perjury trap”.

28 On 27 May 1992 Kenneth Elswick signed a document which read in part, “appearing…. before the State Attorney Eleventh Judicial Circuit of Florida in and for Dade County to testify in a certain matter pending before her in which I am a potential defendant”, he waived all immunities to which he would otherwise have been entitled and acknowledged that his waiver “subjects me to any and all prosecutions, penalties or forfeitures for or on account of any transaction, matter or thing to which I may testify or produce evidence and that any testimony which I shall give may be used against me in any criminal investigation or proceeding”

29 It would seem that Kenneth Elswick did make a statement to the State Attorney’s Office on 28 May 1992, which it would seem from the document of 27 May 1992, would not have been “immunised”, that is the subject of any immunity. Such a statement is referred to in Mr Ohlzen’s affidavit of 5 June 1992. However, no copy of a statement by Kenneth Elswick on 27 May or 28 May 1992 was in the files of the State Attorney’s Office relating to Mr Gersten and the car thieves, when these files were made public in about the end of July 2000.

30 On 1 June 1992 the State Attorney wrote a letter to Mr Gersten, care of Mr Richey, informing Mr Gersten that the State Attorney was investigating the allegations against Mr Gersten of “distribution of cocaine, solicitation of prostitution and filing a false police report” (that is, the alleged Gersten offences), as well as the theft of Mr Gersten’s car, and inquiring whether Mr Gersten would be willing to speak voluntarily to the State Attorney’s Office about these matters. It is apparent that Mr Gersten decided not to speak voluntarily to the State Attorney. On 5 June 1992 a form headed “Disposition” was completed in the State Attorney’s Office. In the form the defendant is identified as “Kenneth Elswick” and the offence is identified as “grand theft auto”. The words “no action” are written on the form and this entry is explained by a comment on the form that “this cause was to be no-actioned at arraignment because the victim did not appear for the pre-file conference”. In a late affidavit Mr Rosenblatt gave evidence about the effect of a decision to “no-action” a case.

31 On 5 June 1992 the application for a “search warrant”, to which I have already referred, was made. In the affidavit in support of the application Mr Ohlzen, as well as summarising the information provided by the car thieves, said that he had been informed by a forensic chemist that, if a person smokes cocaine, cocaine will be deposited in that person’s hair, which can then be analysed for the presence of cocaine. On the day the application was made a judge issued a search warrant, authorising the taking of samples of hair from Mr Gersten.

32 Samples of head, underarm and pubic hair taken from Mr Gersten pursuant to the search warrant were analysed in the laboratory of the Federal Bureau of Investigation in Washington. The laboratory issued a report in which it said that the samples were “negative for cocaine”. The laboratory added in the report “although this is consistent with the suspect not being a casual or recreational user of cocaine, the lack of finding cocaine does not preclude the possibility that this individual may have used cocaine one time or at very infrequent intervals in the past”.

33 On 10 June 1992 Claudia Lira was interviewed at the State Attorney’s Office by Mr Gregorie and Mr Havens. She had been served with a subpoena. Under Florida law a State Attorney has power to serve a person with a subpoena requiring that person to make a statement on oath for the purposes of an investigation being conducted by the State Attorney. However, a person who makes a statement to the State Attorney under the compulsion of a subpoena has both “use immunity” and “derivative use immunity”. As explained by Mr Gregorie to Claudia Lira in the course of the interview on 10 June 1992, “that means you cannot be prosecuted for anything that you tell us or any leads we get from what you tell us”. On 10 June Claudia Lira made a statement in question and answer form, running to more than fifty pages. There was some evidence before me of earlier accounts by Claudia Lira to the Federal Bureau of Investigation on 30 April and 2 May and to the State Attorney’s Office on 11 May. Mr Ohlzen in his affidavit of 5 June 1992 summarised information which he said Claudia Lira had supplied on 11 May. There are some differences between the statement of 10 June and the summary of information supplied by her which is set out in Mr Ohlzen’s affidavit of 5 June. It would seem clear that the statement made on 10 June was the subject of immunity. It is unclear to me to what extent, if at all, her earlier accounts were “immunised”.

34 Towards the end of June 1992 what was referred to as a “Chinese wall” was set up within the Dade County State Attorney’s Office. The purpose of the Chinese wall was to separate the investigation being carried out by Mr Gregorie into whether Mr Gersten had committed the alleged Gersten offences, in which Mr Gersten was the target of the investigation; and an investigation to be carried out by another assistant State Attorney, Mr Michael Band, into the theft (or robbery) of Mr Gersten’s car, in which Mr Gersten was the victim. Precisely what was involved in the concept of a “Chinese wall” is a matter to which I will have to return later in this judgment. At least one implication of the Chinese wall was that any statement in respect of which there was use and derivative use immunity, which had been obtained by Mr Gregorie from a person who was a potential defendant in any prosecution for the theft of Mr Gersten’s car, could not be provided to Mr Band. It would seem that the statement made by Claudia Lira on 10 June 1992 was the subject of use immunity and derivative use immunity. It would seem that any statement made by Kenneth Elswick on 28 May 1992 was made in circumstances where he had waived immunity and was, accordingly, available to be used in any prosecution of him for the theft of Mr Gersten’s car. However, there were assertions in some of the documents admitted into evidence in these proceedings that Elswick did not make any statement which was not “immunised”.

35 On 24 June 1992 Kenneth Elswick was tape recorded making an offer to Mr Riley, an investigator retained by Mr Richey, to change his evidence, favourably to Mr Gersten, in consideration of payment of the sum of ten thousand dollars.

36 On 25 June 1992 Mr Band telephoned Mr Richey, informing him that he had been appointed to conduct an investigation into the theft of Mr Gersten’s car; that he would be issuing a subpoena to Mr Gersten to answer on oath questions to be asked by Mr Band; that Mr Gersten would have use immunity and derivative use immunity for his testimony to Mr Band; and that there would be a Chinese wall between Mr Band’s investigation and Mr Gregorie’s investigation.

37 On 29 June 1992 Mr Gregorie made an “inter-office memorandum” in the office of the State Attorney, recording that the items listed were being provided by him to Mr Band. Twenty-nine items were listed, including numerous “reports” and “notes”, a statement by Maldonado, two statements by Rosario Kennedy and a report of an interview with Lisa McCann. There is no reference in the list to any statement by Kenneth Elswick or Claudia Lira. On the same day Mr Band made a handwritten note, recording that he had received from Mr Gregorie the documents which he listed, including a report “Mike Osborn - 5-7-92” (that is, 7 May 1992).

38 On 1 July 1992 Mr Richey wrote a letter to Ms Reno. Before writing the letter, Mr Richey had advised Mr Gersten that, in Mr Richey’s opinion, the State Attorney’s Office was endeavouring to set a perjury trap for Mr Gersten. In his letter of 1 July 1992 Mr Richey asked Ms Reno to reconsider whether Mr Gersten should be subpoenaed. He submitted that it was unnecessary to subpoena Mr Gersten, because the “confessions” of Claudia Lira and Kenneth Elswick would be admissible in a prosecution of them for stealing Mr Gersten’s car. Mr Richey referred to the investigation of the alleged Gersten offences by Mr Gregorie and to the meeting on 21 May and he repeated his assertions about the import of what Mr Havens and Mr Gregorie had said at that meeting, including that “it was… made abundantly clear that if Mr Gersten’s testimony deviated in any way from what Mr Gregorie and Mr Havens knew to be true, then Mr Gersten would be charged with perjury”. Mr Richey asserted that the subpoenaing of Mr Gersten created a “perjury trap” and he referred to a law review article Gershman, The Perjury Trap 129 U.Pa.L.R.624. Mr Richey added that the subpoenaing of Mr Gersten “will not be productive because he will not testify”. Mr Richey asserted that the decision to subpoena Mr Gersten to give sworn testimony had the appearance of the State Attorney’s Office attempting to achieve by one means what it could not achieve by another.

39 Notwithstanding Mr Richey’s letter and a further meeting at the State Attorney’s Office, Mr Band preceded with the issue of a subpoena to Mr Gersten. On 8 July 1992 the Dade County Circuit Court issued a witness subpoena addressed to the Sheriffs of the State of Florida, commanding them to summon Mr Gersten to appear before the State Attorney on 20 July 1992. The subpoena was served on 9 July on Mr Richey, who had instructions to accept service.

40 On 20 July 1992, the return date of the subpoena, Mr Richey on behalf of Mr Gersten brought a motion for a protective order against the subpoena, on the grounds that the subpoena had been issued in bad faith. In the motion it was alleged that “having utterly failed to make a prosecutable case against Mr Gersten (on the alleged Gersten offences) the State Attorney’s Office claims it wants to investigate the car theft”. In the motion it was alleged that the State Attorney’s Office was seeking to set a perjury trap for Mr Gersten. The relief sought in the motion was that there be “an evidentiary hearing” of the allegation that the subpoena had been issued in bad faith, together with ancillary directions. In the motion there were listed a number of the problems which it was alleged had arisen for the State Attorney’s Office in prosecuting the alleged Gersten offences.

41 The hearing of the motion for a protective order took place before Judge Knight on 20 July 1992.

42 Counsel for the State Attorney (Mr Shiffrin) submitted that “the State’s Attorney has the power to investigate crimes and the legislature has seen fit to give a State’s Attorney the power of subpoena. Mr Gersten is not a target. We need his testimony… Mr Gersten reported the theft of his motor vehicle. That is the case we are investigating. He is a material witness to that matter. We expect him to come in and tell the truth and behave like any other citizen”. Mr Shiffrin submitted that Judge Knight “couldn’t go behind the subpoena”.

43 Judge Knight denied the motion for a protective order, without giving reasons.

44 In late July 1992 Mr Richey ceased acting for Mr Gersten and Mr Richard Sharpstein commenced acting for Mr Gersten.

45 On 31 July 1992 Mr Sharpstein wrote a letter to Mr Band (Calzon Exhibit 93). The letter was addressed to “Dear Michael”. In the letter Mr Sharpstein informed Mr Band that he was preparing a motion for reconsideration of Mr Gersten’s motion for a protective order. Mr Sharpstein said that Mr Gersten would be happy to answer the two questions necessary for his role as a witness in the prosecution of the theft of his car, namely (1) that he did not know Elswick or Lira and (2) he had not given either of them permission to use his car. Mr Sharpstein asked Mr Band to “contact me on Monday August 3, 1992, with your response to this suggestion”. Mr Sharpstein added that, unless he heard from Mr Band, he would file the motion for reconsideration on 4 August.

46 The letter of 31 July 1992 was faxed by Mr Sharpstein to Mr Band. On a copy of the fax cover sheet are written in Mr Band’s handwriting the words and figures “3 Aug ’92 spoke w/Dick-No-MB”. A submission was made by counsel for Mr Gersten in the present proceedings, that the notation on the copy of the fax cover sheet recorded a communication between Mr Band and Mr Gregorie, in which Mr Band sought Mr Gregorie’s opinion on whether Mr Sharpstein’s suggestion should be accepted and Mr Gregorie advised that the suggestion should not be accepted and it was further submitted that such a communication between Mr Band and Mr Gregorie was powerful evidence that the Chinese wall was ineffective. However, I am satisfied that this notation on the copy of the fax cover sheet merely recorded that on 3 August 1992 Mr Band spoke to Mr Richard Sharpstein, as Mr Sharpstein had requested, rejecting the suggestion made in Mr Sharpstein’s letter of 31 July.

47 The motion for reconsideration of Judge Knight’s order and a supplemental motion on behalf of Mr Gersten to quash the subpoena came on for hearing on 7 August 1992 before Judge Schwartz. Judge Schwartz held that he did not have jurisdiction to reconsider what Judge Knight had decided. His Honour added:-

“However, in the interests of a full adjudication of the matter before me, I will consider the merits of the application.

I find, as did Judge Knight, that even accepting as true for the purposes of this argument every statement made in the motion, the court has no authority whatsoever to interfere with the prosecutorial function in the present stage and I will deny the motion for reconsideration and the motion on the merits to quash the subpoena in question”.

48 On 11 August 1992 Mr Sharpstein and Mr Gersten appeared before Mr Band at the State Attorney’s Office. Mr Sharpstein inquired whether it would be the State Attorney’s intention to use any statement made by Mr Gersten, if the State Attorney considered it could ground a prosecution for perjury. Mr Band replied, “you are putting the horse before the cart here (sic). I can only anticipate that in response to questions I ask, the answers of Mr Gersten will be accurate, complete and truthful”.

49 Mr Band made the following further remarks:-

. . .

and I will emphasize this, I have not talked to Mr Gregorie concerning my investigation… I’m only concerned with my investigation”.

50 Mr Sharpstein on behalf of Mr Gersten said that Mr Gersten would decline to answer any questions, other than the basic questions which had already been referred to by himself and Mr Band.

51 On the afternoon of 11 August 1992 the parties went before Judge Amy Dean, as a judge of the Eleventh Judicial Circuit of the State of Florida. This was the first time Mr Gersten’s matter had come before Judge Dean.

52 Before Judge Dean Mr Shiffrin on behalf of the State Attorney’s Office said:-

“The State would be asking that the court find - the court first order the witness to answer the questions of the State Attorney and, if the witness persists in declining to answer, that the court hold the witness in contempt. We specifically would ask the court to hold the witness in civil contempt, and permit the witness to purge himself of that contempt should the witness agree to testify and, in fact, testify before the State Attorney”.

53 After hearing argument Judge Dean asked to be supplied with transcripts of the proceedings before Judge Knight and Judge Schwartz and of the hearing at the State Attorney’s Office that morning and adjourned the proceedings to the following day. The evidence before me does not disclose what happened the following day but it would appear that some order was made requiring Mr Gersten to attend at the State Attorney’s Office on 14 August and answer questions asked by Mr Band.

54 On 14 August 1992 Mr Gersten and Mr Sharpstein again attended before Mr Band at the State Attorney’s Office. Mr Band explained to Mr Gersten that he would have immunity for his answers to Mr Band’s questions but that, if he lied, he would be liable to be prosecuted for perjury. Mr Band then began formally questioning Mr Gersten. In response to questions from Mr Band, Mr Gersten gave his name and address. Mr Gersten was then asked:-

“Let me call your attention to the 29th of April, 1992, at approximately six o’clock in the afternoon. Where were you?”

“At this point, I am refusing to answer any further questions upon advice of counsel. There are pending motions that counsel wishes to bring to the court’s attention and have litigated”.

55 The proceedings were then adjourned to Judge Dean’s courtroom.

56 On the afternoon of 14 August 1992 the parties appeared before Judge Dean. Two motions had been filed on behalf of Mr Gersten, a motion for disclosure by the State Attorney’s Office of electronic surveillance by the State Attorney’s Office of telephone calls which Claudia Lira had, at the instance of the State Attorney’s Office or the Federal Bureau of Investigation, made to Mr Gersten and a motion that there be a hearing in relation to the first motion which would include the persons involved in the surveillance giving evidence. It was at this hearing that Mr Richey’s affidavit of 13 August 1992 was tendered. An issue that arose was whether, before any Chinese wall was erected in the State Attorney’s Office or notwithstanding any alleged Chinese wall, Mr Band had heard the surveillance tapes or had otherwise acquired information about the contents of the surveillance tapes and intended to base questions to be put to Mr Gersten on the contents of the tapes.

57 At pages 42 and 43 of the transcript of the proceedings on 14 August Judge Dean said:-

“We have listened to these tapes… I am going to accept the representation of Mr Shiffrin and the grand jury, Mr Band, that he is completely lacking in any knowledge regarding what is contained in these tapes - having heard the tapes, the court would be completely hard pressed to figure out what kind of question could ever come from them, since they seem to be completely one-sided and arguably exculpatory and hardly provide any type of information.

Accordingly, I will require that Mr Gersten appear on Monday to give his sworn statement to the State Attorney’s Office. Again, if there is a particular question during that time other than what we have addressed here today, he is to answer the question. If there are other types of issues regarding this perjury trap that you have discussed, you can, of course, preserve that for the record.

. . .

So ask your questions. You, Sir, must answer the questions with the restraints and the freedom that I have allowed, based upon what I have just said. And if there are any further concerns with regard to answering any questions, you can at that time raise your objection, note it for the record, certify it and we will discuss it, probably by way of a motion to compel…”.

58 Judge Dean granted the motion for disclosure, the State Attorney having consented to it. Counsel for Mr Gersten noted that the court had denied Mr Gersten’s application for an “in depth” hearing as to the making of the surveillance tapes and any derivative use of the surveillance tapes and asked for a stay, so that a petition for the review of Judge Dean’s decision could be brought. Judge Dean granted a limited stay.

59 A petition for a writ of certiorari was filed on 17 August 1992. On 18 December 1992 the District Court of Appeal denied certiorari.

60 A motion by Mr Gersten to disqualify the Dade County State Attorney’s Office came before Judge Dean on 14 January 1993. The object of the motion was, not to terminate the investigations which up to that point had been conducted by the Dade County State Attorney, but to compel the transfer of those investigations to the State Attorney for some other Judicial Circuit in Florida.

61 On the hearing of the motion all of Mr Richey, Mr Havens and Mr Gregorie gave evidence, including evidence about what had been said at the meeting at the State Attorney’s Office on 21 May 1992. Mr Sharpstein, who appeared for Mr Gersten, had to call as his witnesses, not only Mr Richey, but also Mr Havens and Mr Gregorie. The transcript of Mr Richey’s evidence, only, was admitted in the proceedings before me as Exhibit Richey 3. A full transcript of the hearing was later handed up and admitted into evidence.

62 In his evidence in chief Mr Richey gave evidence that at the meeting Mr Havens had said that “he wanted Mr Gersten to come in, to give him a full and complete statement, to tell the truth as Mr Havens understood it …The truth was, in Mr Havens’ mind, that the results of his investigation indicated that Commissioner Gersten had been at that crack house at that night and participated in certain events with the people there, and that his position is that if Mr Gersten did not relate the story as he (Mr Havens) knew it to be true, that he (Mr Gersten) would be charged with perjury”.

63 Mr Richey said that on the basis of his analysis of the meeting, he had given Mr Gersten certain advice.

64 Mr Richey said that as at 21 May 1992 he had not believed that there was a perjury trap for Mr Gersten but as “the State’s case became a great deal more problematic than they had thought it was… I developed a very deep concern about the problem of the perjury trap”. It had appeared to Mr Richey that the strategy of the State Attorney’s Office was to place Mr Gersten in a position, where either he would “tell the story that they wanted to hear and then they could use it against him, if he attempted to testify in a subsequent prosecution” or “if he told a story that they did not want to hear, they would be able to charge him with perjury, which would be a much easier crime to convict someone of, than the case they had been investigating, which had basically fallen apart”.

65 In cross-examination Mr Richey said that what Mr Havens had said at the meeting, very close to verbatim, was:-

“He (Mr Gersten) is going to come in here and he is going to sit in this chair. He is going to admit every single bit of what happened, according to what I have just relayed to you, or I am going to charge him with perjury”.

66 Mr Richey gave evidence in cross-examination about the Chinese wall. He said that the Chinese wall would be ineffective. However, he agreed with a question put to him that the purpose of the Chinese wall was to ensure that someone on one side of the wall should not hear some “immunised” testimony given on the other side of the wall. Mr Richey said:-

I say that once Mr Band has received his information and once he is proceeding under the concept of the Chinese wall, that other people who have previously been involved in the rest of the investigation should try to stay away from him. That is all what I was saying”.

67 Mr Richey agreed that at the meeting he had said words to the effect that, if Mr Gersten would enter into some king of drug rehabilitation program, “maybe this whole thing would go away”

68 As I have already indicated, Mr Havens was called as a witness by Mr Gersten’s counsel. Mr Havens said that he did not know where Mr Gersten had been on the evening of 29 April 1992, although he did know of his own knowledge that Mr Gersten had not been at a function he was supposed to have attended. On the basis of the information he had acquired from the car thieves and also from other sources, Mr Havens had a belief that Mr Gersten had been at the crack house. He had given Mr Richey to understand what he believed to be the truth. He had said to Mr Richey that, if Mr Gersten said something that was not true, that could be perjury. However, he replied “no” when asked:

“And did you tell Mr Richey that, if Mr Gersten were to come into the office and make a statement, that he would have to swear and agree with the evidence that you had gathered regarding his being in a crack house, using crack cocaine, being with a prostitute and other such allegations that had been made, or you would consider that to be a perjurious statement, a lie?”.

69 While Mr Havens was giving evidence, Mr Shiffrin, who was appearing for the State Attorney’s Office, gave an explanation to Judge Dean of why the State Attorney’s Office had set up the Chinese wall. Mr Shiffrin said:-

“… the primary purpose was so Mr Band would not be tainted by the immunised testimony of Mr Elswick.

. . .

If we prosecute them (the car thieves), they could complain that Mr Band was privy to immunised testimony and used (it) in the prosecution of them. Mr Gersten can’t complain about that”.

70 Mr Havens said that he had not looked at any statement obtained from Claudia Lira or Kenneth Elswick and he was vague about whether their statements were “immunised”. He said that he believed that the statement of one of those witnesses was immunised.

71 Mr Havens said in his evidence that, when Mr Band had first been assigned to the case, he had received copies of “our” documents. Mr Havens did not know if the documents supplied to Mr Band had included any immunised statements by Claudia Lira or Kenneth Elswick.

72 In cross-examination by counsel for the State Attorney’s Office Mr Havens said that it was common practice in the State Attorney’s Office to advise witnesses who were testifying under oath that they were liable to prosecution for perjury, if they testified falsely while under oath, and he said that the warnings given to Mr Gersten were no different from the warnings given to other witnesses.

73 Mr Gregorie was also called as a witness by Mr Sharpstein, counsel for Mr Gersten.

74 Mr Gregorie said that as 21 May 1992 he had had no belief as a prosecutor about what had really happened on the evening of 29 April 1992. At the meeting on 21 May Mr Havens had told Mr Richey what evidence had been gathered by the State Attorney’s Office. According to Mr Gregorie, Mr Richey had been trying at the meeting to arrange a plea bargain for Mr Gersten and Mr Gregorie’s answer to Mr Richey had been that Mr Gersten should first make a full statement.

75 Mr Gregorie gave evidence that part of what he had said at the meeting to Mr Richey was:-

“(He would have to come in and give a truthful statement and) - We have a great deal of information on what happened on that day and, if we are going to accept this plea, he is going to have to give us a truthful statement and we know a great deal about this incident, so he is going to have to be very careful to make sure that what he says is truthful.

. . .

(or if he doesn’t, he can be indicted for perjury)”

76 Mr Gregorie gave some evidence about the Chinese wall. He said:-

“I am aware that there are a series of charges that could and probably should be brought against other individuals in this case and because I have given them immunity from the statements that I took from them, I could not charge them; so we have established a process with a prosecutor who knew nothing about my investigation, so that he could prosecute those individuals”.

“I gave him (Mr Band) all the testimony, having gone through my file together with the investigators’ material, that would not be immunised testimony for any of the prospective defendants in this case”.

77 Mr Gregorie said that he had had nothing to do with the prosecution of Elswick and Lira, which was Mr Band’s job. Mr Gregorie would not use any statement given by Mr Gersten to Mr Band, because it would be “immunised” for the purposes of Mr Gregorie’s investigation of the alleged Gersten offences.

78 Mr Gregorie later said, with reference to the Chinese wall:-

“The purpose of it is, so that I am not tainted by the immunised testimony that I can’t use, and so that he (Mr Band) is not tainted by the immunised testimony that he can’t use….”.

79 In cross-examination Mr Gregorie said that what had been said to Mr Richey on 21 May 1992 was similar to the discussions he had had with every other witness or lawyer representing a witness prior to the witness giving sworn testimony and with every person proposing to enter into a plea bargain arrangement under which the person would agree to give sworn testimony. Such persons were routinely told that, so long as they told the truth, nothing would happen to them; but, if they lied, “they would subject themselves to perjury”.

80 The parties would appear to have agreed that there was no need for Ms Jacobson to give evidence.

81 After the evidence had been concluded Judge Dean heard addresses from both counsel. After a short recess she gave judgment on the motion.

82 In her judgment her Honour noted that the proceedings before her were a motion by Mr Gersten to disqualify the Dade County State Attorney’s Office on the ground of improprieties and apparent improprieties by the Dade County State Attorney’s Office in the investigations it was conducting, which were an investigation being handled by Mr Band into the theft of a car and an investigation being handled by Mr Gregorie into the alleged Gersten offences.

83 Her Honour noted that as at January 1993 the State Attorney’s Office was not conducting any investigation into alleged perjury. Mr Gersten had not yet given any statement on which any charge of perjury could be based.

84 Her Honour did not accept that the Dade County State Attorney’s Office had to be disqualified, simply because it was conducting two investigations, in one of which Mr Gersten was the target and in the other of which he was a complaining witness.

85 Her Honour identified the alleged perjury trap as being “the thrust” of the motion. Her Honour cited United States authority (United States v Chen) that:-

“A perjury trap is created when the Government calls a witness before a grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury”.

86 Her Honour continued:-

“In this particular case the only facts that have been presented to me are that Mr Band is seeking to investigate a grand theft auto, and whether we think that it is necessary or not for the State Attorney’s Office to do that, it is within their power to do so, and it has been represented to this Court, as early as last August, that that is the sole purpose of those questions and the Court made it very clear that if at any time questions were asked which were neither relevant nor geared to lead to further discoverable evidence, or which, gentlemen, could in any way be found not to be leading to the furtherance of investigation, those questions should be certified and brought to the Court for the Court’s determination. But, there is no indication here that that is what is being done, nor is there any such indication from Mr Richey - solely that Mr Band is attempting to investigate that and he has a right to do that, and proceed accordingly. So, I don’t believe at this juncture that we have any problems regarding a perjury trap”.

87 Her Honour then cited United States authority (United States v Williams) to the effect that:-

“It would be improper prosecutorial misconduct if a prosecutor forced an individual to testify in front of the grand jury, believing that the individual would perjure himself”.

“Unless the prosecutor knows or believes that when a person walks through that door, they are going to lie… prosecutorial misconduct cannot be considered”.

88 Further on in her judgement her Honour said:-

United States v Williams

In fact, Mr Richey…. never testified…that Mr Havens said ‘I believe your client is going to lie’. He never testified that way”.

“It is clear to me that there is no one who ever stated or at this juncture believes that Mr Gersten is going to lie under oath”.

89 Her Honour said that “I didn’t glean in any way, shape or form from the testimony given to me today that anybody is angry, obsessed or in any way out to get anybody”.

90 Her Honour made a finding that “that at this juncture… the Chinese wall has been respected and preserved”.

91 Her Honour also said:-

“It is clear to me that right now all they (the Dade County State Attorney’s Office) are seeking is testimony geared to a grand theft auto case”.

92 Her Honour denied the motion for disqualification of the Dade County State Attorney’s Office. She ordered that Mr Gersten report to Mr Band at the State Attorney’s Office the following day to give his sworn testimony regarding the theft of his car.

“… with the same caveats that this Court provided last August, insofar as - if there is any concern that it is not relevant, not geared to further discoverable evidence, or in any way is not in the furtherance of the investigation at hand, those questions are to be certified and presented to this Court in an orderly fashion”.

93 Judge Dean granted a limited stay of her orders. On 19 January 1993 Mr Gersten filed a petition in the Third District Court of Appeal for a review of Judge Dean’s orders and the Court of Appeal granted a temporary stay of Judge Dean’s orders. Further interim orders were made by the Court of Appeal on 21 January 1993.

94 On the morning of 15 March 1993 the judges of the Court of Appeal denied Mr Gersten’s petition for a review of Judge Dean’s orders of 14 January 1993 and vacated the interim orders it had made staying Judge Dean’s orders. Later the same day Mr Band asked Mr Sharpstein to produce Mr Gersten at Mr Band’s office, to give his sworn testimony.

95 At 9.05am on 16 March 1993 Mr Band and Mr Sharpstein attended before Judge Dean. Judge Dean refused an application by Mr Sharpstein for a stay pending the filing of a petition to the Court of Appeal for a re-hearing and made an order that Mr Gersten appear that afternoon at 3 o’clock in the office of the State Attorney to give his statement. Mr Sharpstein objected that that day, 16 March 1993, was an election day in Dade County and Mr Gersten was running for election as a Commissioner of Dade County. Judge Dean replied that that was “why I didn’t make him appear this morning”.

96 Just after 3 o’clock that afternoon two motions on behalf of Mr Gersten were presented to Judge Dean, being (1) a motion to quash the witness subpoena to Mr Gersten and (2) a motion to disqualify the Dade County State Attorney’s Office. The basis of the motion to quash the witness subpoena was an allegation of “selective enforcement”, that is that the State Attorney’s Office was trying to exercise its powers against Mr Gersten, as a member of a class consisting of car owners whose cars have been stolen but who do not desire that the persons who have stolen their cars should be prosecuted, “in an unequal, arbitrary fashion”. The basis of the motion to disqualify the Dade County State Attorney’s Office was that the newly appointed State Attorney Ms Rundle, who had succeeded Ms Reno, had, before her appointment, supported a woman named Conchita Bretos, as a candidate for election as a Dade County Commissioner in a particular district, that Mr Gersten had become a candidate for election as a Commissioner in the same electoral district and that an election pamphlet for Ms Bretos has been circulated in which Ms Rundle was named as a supporter of Ms Bretos. Judge Dean reserved overnight on the two motions.

97 On the following day 17 March 1993 Judge Dean delivered a judgment in which she dismissed both motions. Her Honour held that Mr Gersten had not proved the conditions necessary to be proved for a finding that the Dade County State Attorney’s Office had engaged in “selective enforcement”. Her Honour found that Ms Rundle’s support of Ms Bretos had been very limited and had been given before Mr Gersten became a candidate in the same electoral district. Judge Dean refused applications by Mr Sharpstein to argue further the motion to quash the witness subpoena and for a stay of her orders and she ordered Mr Gersten to appear at the State Attorney’s Office at 1 o’clock that afternoon to give his statement.

98 Shortly after 1 o’clock that afternoon Mr Gersten attended at the State Attorney’s Office, was called as a witness and was sworn.

99 Mr Band said:-

“We are investigating the taking, whether or not it was a theft or whether or not it was a robbery. We are interested in taking a prefile statement of Mr Gersten. To that end, I plan on asking him questions concerning the events surrounding the 29th of April, 1992”.

100 Mr Sharpstein on behalf of Mr Gersten tendered a letter dated 16 March 1993 from Mr Gersten to Ms Rundle, in which Mr Gersten stated his desire that the persons who had allegedly stolen his car not be prosecuted.

101 Mr Band informed Mr Gersten that he would have immunity “as to answers you give to questions I ask… insofar as they relate to the events surrounding 29 April 1992” and that “the only possible penalty you may incur would be perjury”.

102 Mr Band then began the examination of Mr Gersten. Mr Gersten answered a number of questions but when asked a number of other questions he said:-“I respectfully decline to answer, on the advice of counsel” or words to a similar effect. Mr Sharpstein submitted that some of the questions were irrelevant to the investigation Mr Band was conducting. Mr Band, although he had a number of other questions prepared which he had not yet asked, decided to go back before Judge Dean.

103 Counsel appeared before Judge Dean again at 1.40pm. Mr Band and Mr Sharpstein reported to Judge Dean what had happened during the proceedings in the State Attorney’s Office. Judge Dean said:-

“Okay. So we are back to August and I believe in fact I did rule that as long as he appeared to answer questions, as you went through the questions he could answer those he felt were appropriate. He could raise any objections that he wanted to and then I would rule accordingly.”

104 Judge Dean held that the statements Mr Gersten had made, that he declined to answer on the advice of counsel, did not amount to the taking of an objection. Her Honour was informed that, in the case of some questions, Mr Sharpstein had made the objection that the questions was irrelevant.

105 A little later on in the discussion between counsel and the bench her Honour said:-

“Perhaps we have to go through the questions asked thus far and I can share with you which ones I don’t think are particularly relevant and maybe we can get through the ground floor here and at least get some of the initial questions asked”.

106 Thereupon the court reporter who had recorded the proceedings in the State Attorney’s Office read aloud to Judge Dean the record of the proceedings in the State Attorney’s Office. The reporter read questions by Mr Band and responsive answers by Mr Gersten about his current address and how long he had lived at that address. Mr Gersten had then been asked by Mr Band:- “Where did you live prior to that?” and Mr Gersten had replied “I respectfully decline to respond to your question upon the advice of counsel”.

107 Before Judge Dean Mr Sharpstein took the objection that this question was irrelevant. Mr Shiffrin said:-

“As a general rule, when witnesses appear at a pre-file statement we like to learn something about witnesses. So if this witness is called for trial, we don’t probe into every facet but we like to probe into where they lived before, some of the events leading up to where he is now, just so we are not surprised at the time of trial”.

108 Judge Dean ordered Mr Gersten to answer the question.

109 The next question which Mr Gersten had declined to answer was “Have you shared that home (that is Mr Gersten’s current home) with anyone…?” An objection was taken to this question on the ground of relevance. Mr Shiffrin said:- “Your Honour, it is important for us to know who else was there that evening”. Judge Dean said:- “Okay. Then you are going to have to rephrase the question. The objection is sustained as to the question as asked”.

110 Over objections that the questions were irrelevant, Judge Dean directed Mr Gersten to answer questions “when was it you moved into that house (the current house)?”; “are you employed?”, a question which Mr Gersten had in fact answered; “what type of (legal) practice do you maintain?”; “on 29 April 1992 where were you employed?”; “on 29 April 1992… do you remember that day?”

111 The reporter than read a question “do you keep a personal diary?”, which Mr Gersten had said he declined to answer on the advice of counsel. Judge Dean enquired of Mr Shiffrin what was the relevance of that question. After hearing Mr Shiffrin’s submission, Judge Dean ruled “I am not going to require him to answer that question”.

112 On the other hand, her Honour directed Mr Gersten to answer a question “do you keep any records that would help you recall the events of April 29, 1992?”

113 The next question read by the reporter was “have you had any conversation with anyone concerning the events of April 29, 1992?” which Mr Gersten had said he declined to answer on the advice of counsel. Judge Dean asked Mr Shiffrin what was the point of the question. Mr Shiffrin replied that “it is important for the State to know whether a witness… has told anyone something consistent or inconsistent with what they are about to tell us”. Judge Dean ruled that Mr Gersten did not have to answer that question.

114 The next question read by the reporter was “do you have any memory problems?” Judge Dean directed that Mr Band “rephrase” the question.

115 Judge Dean sustained an objection to a question “as phrased” - “do you maintain a calendar of events that is either used for personal or for political or for your legal business, which identify where you were on a specific date?” and directed that the question be rephrased.

116 Judge Dean sustained an objection to a question “on 29 April, 1992 do you recall who you had breakfast with?”, after she had inquired at what time of the day it was alleged that the car had been stolen and had been told by Mr Shiffrin that it was some time in the early evening.

117 However, her Honour directed that Mr Gersten answer a question:- “On April 29, 1992 do you recall who you had lunch with?” Her Honour directed that Mr Gersten answer each of a series of questions, asking him respectively where he had been at 4 o’clock, 5 o’clock, 6 o’clock. 7 o’clock, 8 o’clock and 9 o’clock on 29 April 1992.

118 After inquiring what was the latest time at which Mr Gersten’s car could have been stolen, Judge Dean directed that Mr Gersten did not have to answer a question as to where he was at 10 o’clock on the night of 29 April 1992.

119 Judge Dean directed that Mr Gersten answer questions, when he had first noticed that his car was missing, what time he had arrived home on 29 April 1992 and how he had arrived home on 29 April 1992.

120 Her Honour then directed counsel to return to the State Attorney’s Office and resume the examination of Mr Gersten. She expressed a preference that Mr Band ask all the questions he intended to ask, before any further referral of the matter back to her.

121 After counsel had returned to the State Attorney’s Office and Mr Band had resumed examining Mr Gersten, Mr Gersten declined to answer questions, where he had been at 4 o’clock, between 5 o’clock and 6 o’clock, between 6 o’clock and 7 o’clock, between 7 o’clock and 8 o’clock, between 8 o’clock and 9 o’clock and between 9 o’clock and 10 o’clock, on 29 April 1992. He declined to answer questions when he had arrived home on 29 April 1992, how he had arrived home and whether he had arrived home.

122 In answer to the question “is it your intention to avoid answering any questions I may pose concerning the theft or taking of that automobile, other than the answer you have just given, that is, ‘I did not give permission to anyone to take or use or possess my vehicle on 29 April 1992?” Mr Gersten, after Mr Sharpstein had objected to the form of the question, replied “upon advice of counsel, I decline to respond to the question and refer you to my previous answers relevant to those questions”.

123 Mr Band saw no point in continuing to ask Mr Gersten questions and proposed that counsel return to Judge Dean’s court. Judge Dean was informed of what had happened at the State Attorney’s Office. Mr Shiffrin said:-

“Your Honour, the State has filed… a suggestion for Rule to Show Cause be issued against the witness to show cause why he should not be held in contempt of court”.

124 Judge Dean said:-

“Mr Gersten, the questions that the State seeks to ask of you are no different than any questions, to this Court’s mind, that must be asked of any other witness to get background information. I am therefore signing this rule to show cause”.

“Gentlemen, under a normal circumstance there is always a ten day lapse because it is indirect contempt and there is normally ten days when a hearing is set.

It strikes me, since we are all present, we can set a far more expeditious time for that to occur”.

125 In further exchanges between counsel and the bench her Honour said inter alia:-

“This whole thing is in the nature of a civil contempt proceeding”.

. . .

“..this is not a criminal contempt matter where we are trying to punish”.

. . .

“I do have to give the defendant an opportunity in a contempt matter to present evidence to me why he should not be held in contempt of court”.

. . .

“I am not here to punish the man for some action he took before the Court. I am here to enforce a court order which was to answer questions.

I am going to order this hearing take place tomorrow at 1.30, at which time Mr Gersten will show cause why he should not be held in civil contempt of this court”.

126 The following day 18 March 1993 the parties appeared before Judge Dean. Her Honour dismissed a motion on behalf of Mr Gersten to dismiss the rule to show cause and also dismissed a motion for a continuance.

127 The motion for a continuance was based on the grounds that a finding of contempt of court against Mr Gersten and any sanction imposed on him for contempt of court would prevent Mr Gersten from participating in an investigation of alleged voter fraud in the election for Dade County Commissioners in which Mr Gersten had been a candidate and had been defeated and would prevent him from taking part in any fresh election and on the grounds that Mr Gersten needed further time to collect records relating to grand theft of automobiles in Dade County.

128 The motion to dismiss the rule to show cause was based on the same grounds as the motion for a continuance and on other grounds which, it was acknowledged, had previously been argued before Judge Dean.

129 In dismissing both motions Judge Dean said:-

“I read your Motion To Dismiss and your Motion For Continuance and I must agree with Mr Shiffrin, that this motion essentially raises grounds that I have already previously ruled upon, and therefore, I am denying your Motion To Dismiss this Rule To Show Cause; and again, I would say we are not here for punishment, which is criminal contempt. We are here on a civil contempt issue in order to see that lawful court orders are complied with.

With regard to your Motion For Continuance, again, I feel it appropriate to deny this motion. Ever since August of last year we have been doing nothing but discussing that the State would ultimately be seeking that Mr Gersten be held in contempt, if he did not proceed to answer questions.

In fact, all the points of all the motions that were filed was that they were always filed on the eve of questioning, that he didn’t go to answer any questions; therefore, the issue of whether a Rule To Show Cause was issued, was never ripe, because he never appeared and therefore never refused to answer, and therefore was never potentially in contempt.

It did ripen yesterday and we have always known that we were going to come to this point. It is true yesterday I mentioned that we do have a usual ten day process. The ten day process that we normally have is because it takes a couple of days to process it through the clerk's office, to get the rule served it takes about five days and then it takes another few days to get it filed as a matter of court record.

As a matter of convenience for the clerk’s office the courts have set Rules To Show Cause off ten days, but this is not a similar kind of circumstance where the individual was unaware that this was going to be an issue that was going to be discussed, and in this case the individual not only knew about it since August of last year, but in fact was present in court yesterday and was made fully aware of it on Monday, Tuesday, and as I said, yesterday, as to the fact that we were going to ultimately be coming to this point.

So, under those circumstances, given particularly in view of some of the grounds that you have raised as to what you want to show on his behalf, I see no reason for a continuance and that will be denied as well, which now brings us to the point of the contempt hearing”.

577 I agree with the submission by counsel for the defendant that the course set out in Judge King’s judgment would have been the proper course for Mr Gersten to adopt.

578 It was part of Mr Gersten’s case that, if he had answered Mr Band’s questions and had answered truthfully and had been prosecuted for perjury, then, irrespective of the merits of any prosecution for perjury, the Governor of Florida would have suspended him from his public office. However, Mr Gersten was defeated in the election for Commissioners of Dade County held on 16 March 1993 and he remained in office as a Commissioner only until 20 April 1993. If Mr Gersten had answered Mr Band’s questions truthfully on 17 or 18 March and had been charged with perjury, he could have been suspended from office only for a very short period. After Mr Gersten had ceased being a Commissioner, he did not hold any public office from which the Governor could have suspended him.

579 I am not satisfied that I should find that the State Attorney’s Office set a perjury trap for Mr Gersten.

580 The State Attorney’s Office made some investigation of Mr Gersten’s financial affairs.

581 In discussing the matter of this Court’s lack of familiarity with practices and procedures in Florida, I refer to the number and width of the questions proposed to be asked by Mr Band and concluded that it was difficult for me, as an Australian judge, to determine whether I should infer, from the number and width of the questions proposed to be asked by Mr Band, that the State Attorney’s Office was conducting an investigation in bad faith.

582 The motion to disqualify the Dade County State Attorney’s Office which Judge Dean heard on 14 January 1993 was based on alleged improprieties by the Dade County State Attorney’s Office in the investigations it was conducting which were being handled, respectively, by Mr Band and Mr Gregorie. Her Honour heard evidence from Mr Gregorie and Mr Havens, apart from evidence from Mr Richey. In her judgment her Honour said that it was clear to her that all the State Attorney’s Office was seeking was “testimony geared to a grand theft auto case”. Her Honour also said “I didn’t glean in any way, shape or form from the testimony given to me today that anybody is angry, obsessed or in any way out to get anybody”. An appeal from Judge Dean’s decision was dismissed.

583 I consider that I, not having heard any evidence from Mr Havens or Mr Gregory, should exercise caution before reaching a different conclusion from that reached by Judge Dean.

584 Having regard to the reasons I have given and to the considerations requiring caution and restraint which I listed earlier, I do not consider that I should attempt to decide whether the State Attorney’s Office carried on an investigation in bad faith to harm Mr Gersten. Alternatively, having made that attempt, I find that I am not satisfied that Mr Gersten has discharged the onus of proving that the State Attorney’s Office carried on an investigation in bad faith to harm him.

Did Mr Gersten honestly believe on reasonable grounds that the State Attorney’s Office was carrying on an investigation in bad faith for the purpose of harming him?

585 I accept that Mr Gersten believed that the Sate Attorney’s Office was carrying on an investigation in bad faith to harm him. Such a finding is supported by the evidence of Mr Gersten himself and Mr Richey. Indeed, counsel for the Law Society did not dispute that Mr Gersten had such a belief (counsel for the defendant’s written submissions par 43).

586 As was pointed out by counsel for the defendant, the Referee (and the Florida Supreme Court) held that, so long as appeals by Mr Gersten were pending, Mr Gersten could rely on the exception in Rule 4-3.4(c) of “an open refusal based on an assertion that no valid obligation exists”. In so holding, the Referee was accepting that Mr Gersten’s assertion that no valid obligation existed was an assertion made by him acting in good faith, which could not have been the case if Mr Gersten had not honestly believed that the State Attorney’s Office was carrying on an investigation in bad faith to harm him.

587 I accept that there were some grounds for Mr Gersten’s belief that the State Attorney’s Office was carrying on an investigation in bad faith to harm him, although I have held that he has not discharged the onus of proving that the State Attorney’s Office had in fact carrying on an investigation in bad faith to harm him.

588 The question remains of what significance should be given to the belief that Mr Gersten held that the State Attorney’s Office was carrying on an investigation in bad faith to harm him.

589 The Florida Supreme Court clearly held that a subjective belief on the part of Mr Gersten that no valid obligation to comply with Judge Dean’s order existed, because the State Attorney’s Office was carrying on an investigation in bad faith to harm him, was irrelevant to whether Mr Gersten was guilty of a breach of r 4-3.4(c).

590 I have already accepted that, once Mr Gersten’s appeals were exhausted, he was under an absolute obligation to comply with Judge Dean’s order, regardless of whether the State Attorney’s Office had in fact carried on an investigation in bad faith against him and that his refusal to comply with that absolute obligation was a breach of r 4-3.4(c) The position is even clearer, if one considers, not whether the State Attorney’s Office in fact carried on an investigation in bad faith against Mr Gersten, but whether Mr Gersten believed that it had.

591 However, that Mr Gersten held such a belief could still be relevant to what sanction should have been imposed on Mr Gersten and whether I should otherwise order under Pt 65A r 3.

592 The Florida Supreme Court was clearly aware of Mr Gersten’s claim that the State Attorney’s Office was carrying on an investigation in bad faith to harm him; yet the Florida Supreme Court approved “the discipline” recommended by the Referee. I should exercise restraint before venturing to differ from the Supreme Court of Florida.

593 If the sanction recommended by the Referee and imposed by the Florida Supreme Court had been more severe than the sanction actually recommended and imposed, for example if, in accordance with the submission made by the Florida Bar, Mr Gersten had been disbarred, a submission that insufficient weight had been given to Mr Gersten’s belief as a mitigating factor might have been stronger. However, if a legal practitioner has steadfastly refused to obey a court order and has been held in contempt of court for refusing to obey the court order and has failed to purge his contempt, then, whatever subjective belief he may have held about the court order, I find it difficult to see how he could escape without any penalty, or how he could be visited with any lesser penalty than the obvious penalty of being suspended from practice at least until he complies with the court order.

594 I accept the submission made by counsel for the defendant that the penalty imposed by the Supreme Court of Florida was appropriate to all the circumstances and within the range of sanctions which might be imposed for similar conduct in New South Wales.

Did the Florida Bar Adopt an improperly narrow view of what factors were relevant in determining what would be an appropriate sanction for any misconduct by Mr Gersten?

595 Mr Hendrix on behalf of the Florida Bar took the view that the only relevant issue in the disciplinary proceedings, after they had been revived in 1995, was whether Mr Gersten had refused to comply with a court order which had not been modified or set aside.

596 It was submitted by counsel for the plaintiff that the taking of this view was inconsistent with the preamble to the Rules of Professional Conduct of the Florida Bar, which provides that disciplinary assessment of a lawyer’s conduct should be made on the basis of the facts and circumstances existing at the time of the conduct in question and whether discipline should be imposed and the severity of the sanction should depend on all the circumstances.

597 However, in my opinion, the question of whether the Florida Bar took an improperly narrow view of what factors were relevant ceases to have practical importance, in the light of the Referee’s ruling, which was upheld by the Supreme Court of Florida, precluding Mr Gersten from pursuing discovery “for the purpose of going behind the order of contempt”.

If Mr Gersten returned to Florida, what would be likely to happen and would Mr Gersten be able to obtain justice in the courts of Florida

598 It seems clear that, because of supervening circumstances and, particularly, the expiration of the limitation period for any prosecution of the car thieves, the contempt order of 18 March 1993 and the suspension order of 5 March 1998 should, at least, be varied. If I considered that it was unlikely that Mr Gersten would be able to obtain justice in the courts of Florida and in particular if I considered it unlikely that the contempt order and the suspension order could be varied in the courts in Florida, that would be a matter which I would have to take into account and give weight to in deciding whether I should otherwise order under Pt 65A r 3.

599 It was submitted to me by counsel for Mr Gersten that Mr Gersten had so far been denied justice in the courts of Florida, even if the courts themselves were not to blame for this, and that there was no prospect of his obtaining justice in the courts of Florida, should he return to Florida. Ms Calzon gave evidence that in her opinion Mr Gersten would not get a fair hearing in any court in Florida. However, Ms Calzon, who over several years has made extraordinary efforts for Mr Gersten, sometimes appeared in her evidence before me to be an advocate for Mr Gersten.

600 I should exercise considerable restraint in attempting to predict what would be likely to happen, if Mr Gersten returned to Florida, and what would be likely to be the outcome of any court proceeding in Florida. I should keep in mind my own admonition that this Court labours under a lack of familiarity with institutions, practices and procedures in Florida. Furthermore, I would wish to avoid saying anything which, in the event of Mr Gersten returning to Florida, might be used to ground a submission made to a court in Florida and possibly cause some embarrassment to that court. Nevertheless, I consider that I should venture to make some predictions because, as I have said, if it is unlikely that Mr Gersten would be able to obtain justice in the courts of Florida, that would be a matter which I would have to take into account and to which I would have to give weight, in deciding whether I should otherwise order.

601 I accept, and counsel for the defendant accepted, that if Mr Gersten returns to Florida, it is likely that he will be arrested pursuant to the writ of bodily attachment. The outcomes of previous attempts on behalf of Mr Gersten, while he has been outside Florida, to have the writ of bodily attachment quashed, suggest that Mr Gersten would not succeed in any application to have the writ quashed, before he returned to Florida.

602 Once the writ of bodily attachment had been executed by Mr Gersten being arrested, there would be no point in applying to quash the writ of bodily attachment and, indeed, the writ, having been executed, could no longer be quashed.

603 I consider it likely that if, on his arrival in Florida, Mr Gersten was arrested pursuant to the writ of bodily attachment, there would be some form of legal proceeding open to him, whether by way of habeas corpus or otherwise, whereby he could, expeditiously, obtain a determination from a court as to whether any further imprisonment of him would be legally justified. Ms Calzon accepted that such a proceeding would be available to Mr Gersten in Florida.

604 The writ of bodily attachment by its terms was issued by way of enforcement of the contempt order of 18 March 1993. Judge Dean was at pains on 18 March 1993 to say that she was making the order that Mr Gersten be imprisoned until he purged his contempt, not for the purpose of punishing Mr Gersten, but for the purpose of compelling him to comply with her order that he give evidence before Mr Band in the investigation being conducted by Mr Band into the theft of Mr Gersten’s car. In her judgment of 18 March 1993 Judge Dean noted that it was within Mr Gersten’s power to comply with her order that he give evidence before Mr Band.

605 Although the applications to quash the writ of bodily attachment which were heard by Judge Lando and Judge Sigler were not successful, it does seem to me that, the limitation period for any prosecution of the car thieves having run, the car thieves can no longer be prosecuted for the theft of Mr Gersten’s car and the State Attorney’s Office could not proceed with the taking of evidence from Mr Gersten for a prosecution which can no longer be brought and hence Mr Gersten is no longer able to comply with Judge Dean’s order or to purge his contempt in the way provided for in the contempt order. In these circumstances, it seems to me likely that a court of the Eleventh Judicial Circuit in Florida (or some other appropriate court) would be likely to vacate Judge Dean’s order that Mr Gersten give evidence and to vacate, or vary, Judge Dean’s contempt order.

606 It would remain true that Mr Gersten would not have complied with Judge Dean’s order that he give evidence and would not have purged his contempt in refusing to comply with that order. I would expect a court of the Eleventh Judicial Circuit in Florida to require that Mr Gersten make some amends to the court for having disobeyed its order and for his unpurged contempt of the court. The exchange between Judge Sigler and Mr Rosenblatt which I quoted in summarising Ms Calzon’s evidence suggests to me that it would be possible for Mr Gersten to make amends to the court. I would expect such amends to include the making of an unqualified apology to the court for his conduct. The court might well require Mr Gersten to make further amends. I recognise that there is also the possibility, as was suggested by Mr Rosenblatt in argument before Judge Sigler, that some action might be taken against Mr Gersten for his not surrendering himself back into custody, after Judge King’s decision was given or at least after Judge Brown made his orders.

607 If the contempt order was vacated or varied, I would expect the terms of Mr Gersten’s suspension in Florida to be varied. It was not the intention of the Florida Supreme Court that Mr Gersten should be suspended from practice until the happening of an event, which can now no longer happen, that is, permanently.

608 It was submitted by counsel for the plaintiff that there was no form of legal proceeding available in Florida in which Mr Gersten could seek a determination, with the assistance of the new evidence resulting from the opening of the State Attorney’s Office files, of the question whether the State Attorney’s Office had conducted an investigation in bad faith to harm Mr Gersten. This may be so, although I would be reluctant to make, and refrain from making, any finding to that effect. I have myself considered this question in the present proceedings and I abide by my conclusion stated earlier in this judgment that I am not satisfied that Mr Gersten has discharged the onus of proving that the State Attorney’s Office conducted an investigation in bad faith to harm Mr Gersten.

609 In any proceedings which are brought in Florida, the court in Florida would have advantages over this Court of being able to compel the attendance of all relevant witnesses and of being better able to evaluate any new documentary evidence.

610 A court in Florida would be in a much better position than this Court to evaluate a particular submission made by counsel for the plaintiff, that the disciplinary proceedings which resulted in Mr Gersten’s suspension in Florida had been brought prematurely and were therefore invalid, because, until all his appeals had been exhausted, Mr Gersten could rely on the exception in r 4-3.4(c) of an open refusal based on an assertion that no valid obligation existed and Mr Gersten’s appeals were not exhausted until 20 February 1996 when the Supreme Court of the United States denied certiorari. By this time the disciplinary proceedings against Mr Gersten were well advanced.

611 It was conceded by counsel for the plaintiff that this argument had not been raised at any stage of the disciplinary proceedings in Florida.

612 I consider that a court in Florida would be in a much better position than this Court to evaluate this argument. At first sight there are a number of possible answers to the argument, including:-

613 (i) Because the point was not taken, it should be regarded as having been waived.

614 (ii) It may be that a petition for certiorari to the United States Supreme Court should not be regarded as an appeal for the purposes of r 4-3.4(c).

615 (iii) The Supreme Court of the United States had denied certiorari, so that, on any view, all appeals had been exhausted, before the Referee was appointed, conducted his hearings and made his report and before the Supreme Court of Florida made its order.

616 (iv) The order of the Supreme Court of Florida as the order of a superior court should be taken to be valid, unless and until it is set aside.

617 I do not propose to attempt to decide whether the submission by plaintiff’s counsel should succeed.

618 I consider that I should be reluctant to make any order which would derogate from the authority of courts in Florida.

619 Under the order of the Supreme Court of Florida of 5 March 1998, Mr Gersten was suspended from practice in Florida until he complied with Judge Dean’s order that he give evidence and for one year thereafter. He had been held in contempt of court in Florida for his refusal to comply with Judge Dean’s order. I could not otherwise order under Pt 65A r 3, unless I ordered that Mr Gersten should be permitted to practice in New South Wales, without having to comply with Judge Dean’s order, for the non-compliance with which he has been held in contempt of court in Florida.

620 I have, of course, stated a view that it is no longer possible for Mr Gersten to comply with Judge Dean’s order that he give evidence and his inability to comply with Judge Dean’s order would furnish a reason for my otherwise ordering.

621 However, a court which has made an order which has not been complied with and which has held that the party who refused or failed to comply with the order is in contempt of the court, has a particular interest in vindicating its authority against the contemnor. This is particularly so, where the court has ordered that the contemnor should be imprisoned until he purges his contempt and the court has seen the contemnor, after being released from custody pending an appeal, not return to custody after his appeal was dismissed but remain in a foreign country where the court’s orders cannot be enforced.

622 It is true that any order I make would have effect only in New South Wales and would not have any effect in Florida. Nevertheless, I consider that if I were to make an order that Mr Gersten should be permitted to practice in New South Wales, notwithstanding that he had not complied with Judge Dean’s order made in Florida and had been held in contempt of court in Florida and had not purged that contempt of court in Florida and had, after being released from custody pending an appeal, not returned to custody after his appeal was dismissed and had frustrated the further enforcement of the contempt order by remaining outside Florida and outside the United States, I would, in a practical sense, be derogating from the authority of the courts in Florida.

623 It was suggested that the authority of the courts in Florida could be sufficiently vindicated, by my attaching a condition to an order permitting Mr Gersten to practice in New South Wales, without having complied with Judge Dean’s order, that he forward an apology in writing to the appropriate court in Florida. However, I do not consider that this expedient would be likely to be acceptable to the courts in Florida. The courts in Florida might, justifiably, regard a letter written by Mr Gersten from a place in the Antipodes securely beyond the reach of their jurisdiction, as an insult rather than a vindication.

624 It was submitted on behalf of Mr Gersten that, if he returned to Florida, he might lose his right to claim refugee status in Australia. Whether this is so would seem to depend on whether by returning to Florida and bringing court proceedings in Florida, Mr Gersten would have voluntarily re-availed himself of the protection of the country of his nationality, the United States of America, or would have voluntarily re-established himself in the United States of America being a country which he left or outside which he has remained owing to a fear of persecution, within pars (1) or (4) of section C of the United Nations Convention relating to the Status of Refugees. The answers to these questions are unclear. The doctrine of “refoulement” or “non-refoulement”, which was referred to more than once by counsel for Mr Gersten is irrelevant (see article 33 of the Convention).

625 I note that Mr Gersten’s claim to be accorded refugee status has so far failed at all stages, before the Refugee Review Tribunal, a single judge of the Federal Court and the Full Court of the Federal Court, although his application for special leave to appeal to the High Court and his application in the original jurisdiction of the High Court are outstanding.

Whether Mr Gersten has been “a Fugitive from Justice”

626 A number of courts in Florida have asserted that Mr Gersten “fled” from Florida or that he was “a fugitive from justice” or that he should have returned into custody after Judge King gave his judgment on 14 September 1993 or at least after Judge Brown made an order that Mr Gersten surrender himself at Dade County Gaol on 4 October 1993.

627 Counsel for the plaintiff made a number of criticisms of these assertions. It was pointed out, correctly, that Mr Gersten did not flee from Florida, in the sense of leaving Florida only after his complaint in the United States District Court had been dismissed by Judge King. He was already in Australia when Judge King’s decision was handed down. That courts in Florida drew the inference that Mr Gersten had “fled” was unsurprising, if, as happened before Judge Brown on 4 October 1993, Mr Gersten was not present and his legal representative informed the court that she did not know where he was.

628 It was submitted, correctly, by counsel for the plaintiff that Mr Gersten was not on “bail” or on “bond”, after being released from custody pursuant to the order made by the District Court of Appeal on 12 April 1993, and that occasional references to his being on bail or on bond were inappropriate.

629 It was also submitted, again correctly, that the writ of bodily attachment was a writ addressed to the Sheriffs of the State of Florida and not an order directed to Mr Gersten.

630 It was further submitted by counsel for the plaintiff that there was no order directing Mr Gersten to return to custody. However, I consider that the Clerk’s minutes in the court records relating to Mr Gersten’s case are sufficient evidence that Judge Brown on 20 September 1993 made an order that Mr Gersten appear before him on 24 September 1993 and that Judge Brown on 24 September 1993 made an order that Mr Gersten surrender himself at Dade County Gaol on 4 October 1993. What counsel for Mr Gersten said in court on 1 October 1993 and what Ms Calzon alleged in the petition prepared by her on 1 October 1993 support my conclusion.

631 I have accepted that Mr Gersten did not flee from Florida, in the sense of leaving Florida after his complaint in the United States District Court had been dismissed by Judge King. However, after his complaint had been dismissed, he should have returned into custody. On 18 March 1993 Judge Dean had ordered that he be imprisoned until he purged his contempt of court. On 12 April 1993 Mr Gersten was released from custody through the duration of his appeal to the District Court of Appeal against Judge Dean’s order and pending further order of the Court of Appeal. On 2 June 1993 the District Court of Appeal affirmed Judge Dean’s order and on 13 July 1993 it issued its formal mandate.

632 I find that on the issuing by the District Court of Appeal of its mandate, the stay of Mr Gersten’s incarceration ordered on 12 April 1993 ceased (if it had not ceased earlier). No further order by the District Court of Appeal was required. The provision in the order of 12 April 1993 that Mr Gersten’s incarceration should be stayed through the duration of his appeal and “pending further order of this court” is, in my opinion, clearly confined to any further order made by the District Court of Appeal during the pendency of the appeal. If any further order was required, then the mandate was a sufficient further order.

633 However, in the meantime, Mr Gersten had brought his complaint for injunctive relief in the Federal Court. On 30 June 1993 the State Attorney’s Office gave Judge King an assurance that it would not seek to enforce the contempt order and would allow Mr Gersten to remain at liberty, until Judge King had had an opportunity to fully consider Mr Gersten’s complaint. On 14 September 1993 Judge King delivered judgment dismissing Mr Gersten’s complaint. Upon the dismissal of Mr Gersten’s complaint, there was no order of any court and there was no undertaking by the State Attorney’s Office suspending or qualifying Judge Dean’s order of 18 March 1993. Mr Gersten should then have returned into custody, in accordance with Judge Dean’s order. He did not do so, and he has remained outside Florida beyond the reach of any means of enforcing Judge Dean’s order. In this sense, Mr Gersten has been avoiding the enforcement of the laws of Florida, by remaining away from Florida. As previously stated, I do not consider that I should attempt to decide whether he is a “fugitive from justice” within some technical definition of that term under Florida law.

Summary and Conclusion

634 I will summarise some of the principal matters in my adjudication of these proceedings:-

635 1. The onus of proof under Pt 65A r 3 falls on Mr Gersten.

636 2. There are a number of matters which militate against this Court making the findings of fact which Mr Gersten’s counsel urged it to make, including the gravity of the allegations made by him, considerations of international comity, this Court’s lack of familiarity with institutions, practices and procedures in Florida, the nature of these proceedings as disciplinary proceedings, the absence of any defendant apart from the Law Society of New South Wales, the absence of evidence from many persons who could obviously have given relevant evidence about the findings which the Court was being asked to make, considerations of procedural fairness to persons against whom allegations of improper conduct were made, who were not parties, who did not give evidence and who have not been shown to have had notice of the allegations made against them and the difficulties involved in making findings on the basis of the documentary evidence.

637 3. Counsel for Mr Gersten expressly refrained from submitting that any of the courts in Florida which have decided cases adversely to Mr Gersten acted improperly or corruptly.

638 4. I should not attempt to determine whether Mr Gersten did not commit the alleged Gersten offences in Florida. Alternatively, having made such an attempt, I am not satisfied that Mr Gersten has established that he did not commit the alleged Gersten offences in Florida.

639 5. I should not attempt to determine whether the State Attorney’s Office conducted an investigation in bad faith to harm Mr Gersten. Alternatively, having made such an attempt, I am not satisfied that Mr Gersten has established that the State Attorney’s Office conducted an investigation in bad faith to harm him.

640 6. Mr Gersten did believe, and had some grounds for his belief, that the State Attorney’s Office was carrying on an investigation in bad faith to harm him, but the weight which could properly be given to this factor is limited, having regard to his obligation to obey a court order, to the judgment of the Supreme Court of Florida and to the relatively lenient sanction imposed on Mr Gersten in Florida.

641 7. It is likely that, if Mr Gersten returned to Florida, he would be able to have the contempt order and the suspension order varied.

642 8. The courts in Florida are far more appropriate tribunals than this Court for the determination of the questions Mr Gersten seeks to have determined and for the assessment of new evidence which has become available through the opening of the State Attorney’s Office files.

643 9. Mr Gersten as a legal practitioner refused to comply with an order made by a court in Florida, was held in contempt of court, has not purged his contempt of court and, after he was released from custody under an order releasing him from custody only during the pendency of an appeal, did not surrender himself into custody after his appeal was dismissed and has remained outside the territory of Florida, thereby frustrating the enforcement of orders made by the courts in Florida.

644 10. The sanction imposed on Mr Gersten in Florida is well within the range of the sort of sanction which would be imposed in New South Wales for similar conduct.

645 Apart from the matters referred to above, I have taken into account all of the other matters referred to in this judgment.

646 In my opinion, I should dismiss the application. I will not, however, make any formal order until after the parties have had an opportunity to consider this judgment.

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Last Modified: 09/10/2001

CITATION:	Gersten v The Law Society [2001] NSWSC 748
FILE NUMBER(S):	SC 10125/99
HEARING DATE(S):	26-28/2/01, 1-2/03/01, 5-10/03/01, 12-16/03/01, 16-19/07/01
JUDGMENT DATE:	7 September 2001
PARTIES :	Joseph Morris Gersten v The Law Society of New South Wales
JUDGMENT OF:	James J at 1

COUNSEL :	A Swanwick - Plaintiff Dr J Griffiths/N Beaumont - Defendant
SOLICITORS:	In Person - Plaintiff Raymond John Collins - Defendant
CATCHWORDS:	Legal Practitioner - solicitor - suspension from practice outside New South Wales by reason of misconduct - Suprme Court Rules Part 65A r 3 - whether Court should otherwise order.
CASES CITED:	United States v Chen, 933 F.2d 793 Juidice v Vail 430 US 327 (1977) Patel v The Law Society of New South Wales (1999) NSWCA 372 Morgan v Johnson (1998) 44 NSWLR 578 Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538 Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 CSR Limited v Cigna Insurance Australia Limited (1996-1997) 189 CLR 345 Hilton v Guyot (1895) 159 US 113 Wentworth v NSW Bar Association (1992) 176 CLR 239 Jones v Dunkel (1958-9) 101 CLR 298 R v Buckland (1977) 2 NSWLR 453 Mahon v Air New Zealand (1984) 1 AC 808 Kioa v West (1985) 159 CLR 550 Rubie v Rubie (1911) 13 CLR 350 Attorney-General for New South Wales v Mayas Pty Limited (198) 14 NSWLR 342 United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 Pelechowski v Registrar Court of Appeal (NSW) (1999) 198 CLR 435 Russell v East Anglian Railway Co (3 Mac. & G.,104)
DECISION:	Application should be dismissed - making of orders deferred.