Kawicki v The Legal Services Commissioner

[2003] NSWCA 333

CITATION:	Kawicki v The Legal Services Commissioner & Anor [2003] NSWCA 333
HEARING DATE(S):	17 October 2003
JUDGMENT DATE:	14 November 2003
JUDGMENT OF:	Mason P at 1; Tobias JA at 2; Foster AJA at 62
DECISION:	1. Appeal to be dismissed; 2. The appellant to pay Mr Cowdery's costs of the appeal and the first respondent's costs on a submitting appearance basis
CATCHWORDS:	PROFESSIONAL RESPONSIBILITY - whether Director of Public Prosecutions guilty of professional misconduct or unsatisfactory professional misconduct due to alleged 'misrepresentation' - whether advice given by Director of Public Prosecutions was misleading - whether decision by Legal Services Commissioner based on subject advice 'infected' by reviewable error - D
LEGISLATION CITED:	Legal Professional Act 1987, s155, s 127(2) Director of Public Prosecutions Act 1986
CASES CITED:	R v Kawicki (1995) 82 A Crim R 191 Nye v State of New South Wales (2002) NSWSC 1267 Associated Provincial Picture Houses Pty Limited v Wednesbury Corporation [1948] 1KB 223 Buck v Bavone (1976) 135 CLR 110 Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78
PARTIES :	A: Ted Kawicki 1R: The Legal Services Commissioner 2R: Nicholas Cowdery
FILE NUMBER(S):	CA 41164/02
COUNSEL:	A: T Molomby / R Rasmussen 1R: N Perram 2R: R Cogswell SC
SOLICITORS:	A: Carneys Lawyers 1R: Office of the Legal Service Commissioner 2R: I.V. Knight, Crown Solicitors Office

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 30034/02
LOWER COURT JUDICIAL OFFICER :	Burchett J

CA 41164/02
SC 30034/02

MASON P
TOBIAS JA
FOSTER AJA

14 November 2003

TED KAWICKI v THE LEGAL SERVICES COMMISSIONER & ANOR

Judgment

1 MASON P: I agree with Tobias JA.

2 TOBIAS JA: On 3 February 1994, the appellant was sentenced by Karpin DCJ to periodic detention for a period of ten months, having been convicted by a jury of the charge of knowingly maintaining an escaped prisoner. He appealed this decision, but had served his entire sentence prior to the hearing of the appeal.

3 On 24 July 1995, the Court of Criminal Appeal, constituted by Kirby ACJ, Allen and Dowd JJ, quashed the conviction on the ground that it was unsafe and unsatisfactory and ordered that a verdict of ‘not guilty’ be entered: R v Kawicki (1995) 82 A Crim R 191.

4 Subsequent to the quashing of his conviction, the appellant applied to the Attorney-General’s Department for compensation by way of an ex gratia payment. The Department sought advice in relation to this matter from the Director of Public Prosecutions, Mr Nicholas Cowdery QC (Mr Cowdery), who ultimately recommended against the making of such a payment.

5 The appellant then wrote a letter of complaint to the Legal Services Commissioner (the Commissioner), alleging that the letters of advice written by Mr Cowdery to the Department had been deliberately misleading and that he was guilty of professional misconduct. The Commissioner dismissed the complaint on the basis Mr Cowdery’s letters containing the subject advice had not been given in connection with the practice of law. He further stated that even if they had been given in connection with the practice of law, there was still no reasonable likelihood that he would be found guilty by the Administrative Decisions Tribunal (the Tribunal).

6 The appellant challenged the decision of the Commissioner in the Supreme Court, seeking an order that the decision be set aside and a declaration that Mr Cowdery had been acting in connection with the practice of law in giving the subject advice. On 15 November 2002, Burchett AJ dismissed the application. It is against this decision that the appellant appeals to this Court.

The appeal to the Court of Criminal Appeal

7 In order to address properly the issues in this appeal, it is necessary to examine in some detail the findings of the Court of Criminal Appeal. In the primary judgment of that Court, delivered ex tempore by Allen J, it was acknowledged that the principal ground for the quashing of the conviction was that it had been unsafe and unsatisfactory. The basis for this finding is outlined below.

8 The appellant had been indicted with a co-offender, David Spence (Spence), and each had pleaded 'not guilty' to the charge of 'knowingly maintaining one Patrick Hudd' (Hudd), an escaped prisoner. The essence of the Crown case against the appellant was that the appellant had lent Hudd $500, which loan was relied upon by the Crown as the actus reus of the relevant offence. The mens rea was said to be that the loan was made with the knowledge that Hudd was an escaped prisoner and that it was made for the purpose of maintaining him, in other words, assisting him to live in the community.

9 Allen J considered that the Crown's evidence, from which it was inferred that the appellant was aware that Hudd was an escaped prisoner at the time of the loan, was "meagre in the extreme". The Crown's case on this issue was generally reliant upon telephone intercepts of a conversation between the appellant and Spence, which occurred some weeks after the former had made the loan to Hudd. Allen J held that it was not reasonably open to the jury to find that the knowledge that Hudd was an escapee, which the appellant may well have had prior to the intercepted telephone conversation, was first acquired weeks earlier or prior to the date upon which the loan was made. Accordingly, it followed from that finding that the verdict "must be quashed" (at 194).

10 The principal witness for the Crown was a man called Brown, who had known the appellant for some years. The latter had introduced Brown to Spence. At some unspecified date prior to the intercepted telephone conversation, the appellant and Brown, at the latter's suggestion, paid a visit to Spence, who at the time was a prisoner at Long Bay Gaol. After holding that the conviction must be quashed, Allen J made reference to this evidence as "a further matter…of which (he) would make mention". He said this (at 194):

"……Evidence was given…that prior to Spence [a co-accused] coming out of gaol, Brown [another party involved, who gave evidence for the Crown] and the appellant visited him there. An immediate indication was made by counsel, then appearing for the appellant, that if that evidence was to be adduced then a separate trial should be granted to the appellant. The basis of the application was that the appellant would be saddled, in the mind of the jury, with the stigma that he was an associate of a criminal – in that he had visited a criminal in gaol. The learned trial Judge rejected that application. She indicated quite directly, and correctly, to the jury that the fact that someone visits another in gaol is not the slightest indication of any improper association or of any propensity towards criminal acts. Nevertheless, it must be said that the circumstances of this trial were such that, albeit I do not cavil with her Honour's ruling, there was a grave risk that prejudice to the appellant would follow. He sat in the dock with Spence, who the jury knew had been serving a sentence of imprisonment until about two weeks or so before Hudd's re-arrest [Hudd was the escaped prisoner named in the indictment]; and it was aware that the appellant had been associating with Hudd out of gaol – albeit that the appellant claimed it was a friendly association with a man he knew was Anthony Parkin. The jury also was aware that Brown had an extensive criminal record, including convictions for dishonesty and drug related matters.
If one seeks for some explanation of this rather remarkable conviction it lies, perhaps, in the prejudice which the appellant suffered because of that evidence – notwithstanding her Honour's proper efforts to remove such prejudice and the jury's awareness that the appellant did not himself have a criminal record.
There is a further matter which concerns me. It is that the prejudice was far greater than it need have been. Certainly, it was part of the Crown case against Spence that Spence had been in the same gaol as Hudd – with ample opportunities for them to meet and come to arrangement as to what would happen in the future. But it was wholly unnecessary, on the Crown case, for evidence to be adduced that on the occasion Brown visited Spence in gaol the appellant went with him. That added nothing to the Crown case. But it introduced risk of prejudice to the appellant. That evidence should not have been admitted. Indeed it should not have been sought to be admitted.
Where there are joint trials the Crown should be astute to avoid risk of unnecessary prejudice arising. In this case, in the respect to which I have referred, it was not astute. In the result I propose that the conviction be quashed."

11 Kirby ACJ agreed with the orders proposed by Allen J. His Honour expressed his concurrence thus (at 195):

"I agree generally with his reasons. I agree that the conviction and the verdict of the jury upon which the conviction was based were unsafe and unsatisfactory".


It is not clear, however, whether his Honour was also agreeing with the additional comments of Allen J which I have set out in [8] above. On the other hand, Dowd J concurred with the reasons of Allen J and therefore must be taken to have adopted his Honour's additional remarks recorded above.

The correspondence concerning the appellant's claim for ex gratia compensation

12 Following his acquittal by the Court of Criminal Appeal, the appellant wrote to the Attorney-General on 7 December 1995 seeking ex gratia compensation for his imprisonment prior to the quashing of his conviction. There followed correspondence between the Director-General, Mr Cowdery, and the appellant. However, a difficulty with which this Court was faced was that the material before Burchett AJ and the Commissioner comprised only a selection of that correspondence in this matter. In particular, it did not include either the letters from the appellant to the Attorney-General/Director-General or the letters from the Director-General to Mr Cowdery. By this observation I am not seeking to criticise any of the parties, but it is clear that the fact of having available the total correspondence between the relevant parties would have assisted to ensure that the context in which Mr Cowdery's letters were written was completely understood.

13 After the Attorney-General received the appellant's representations for an ex gratia payment, the Director-General wrote to Mr Cowdery on 15 December 1995. This was one of the letters not provided to the Commissioner or the primary Judge. It is apparent from Mr Cowdery's response of 29 March 1996 that the Director-General’s letter included the appellant's letter of 7 December 1995, which in turn included a copy of the Court of Criminal Appeal's judgment. This is confirmed by the following passage from Mr Cowdery's letter to the Deputy Ombudsman of 7 June 2001 (which was provided by the appellant to the Commissioner):

"The letter of 29 March 1996 was written to the Department in response to a letter from the Department dated 15 December 1995 which attached a copy of Mr Kawicki's letter to the Attorney-General, dated 7 December 1995 and received on 11 December 1995. Mr Kawicki's letter referred to and attached, inter alia, a copy of the CCA judgment of 24 July 1995."

14 Having referred to the Director-General's letter of 15 December 1995, Mr Cowdery, in his reply to the Director-General on 29 March 1996 said this:

"I note that this reply is privileged. I apologise for the lengthy delay in replying but the file has only today been delivered to my Chambers.
My Kawicki has set out comprehensively his complaints about this matter from his arrest through to his successful appeal. His allegations are broad based covering his arrest, custodial conditions, problems with legal aid and his lawyers and problems with the magistrate hearing a related civil claim. These matters are of course outside the ambit of this Office and should be referred to the relevant authorities for comment.
In relation to the trial process and general management of the matter when it came to my Office, Mr Kawicki has complained that the prosecution relied on guilt by association and denied him natural justice."

15 Mr Cowdery then sought to answer the appellant's allegations by setting out what he referred to as "the facts and progress of the matter". The final three paragraphs of his letter were in the following terms:'

"Mr Kawicki was successful in his appeal to the Court of Criminal Appeal where the conviction was found to be unsafe and unsatisfactory. In particular, the Court held that it was not reasonably open to a jury to find that Mr Kawicki was aware at the time of the loan to Hudd, that Hudd was an escapee because the evidence in this regard was meagre. The Court also indicated that the circumstances of the trial were such that there was a grave risk of prejudice to Mr Kawicki – although the Court did not cavil with the rulings made by her Honour Judge Karpin, the trial Judge.
It is my view that this prosecution was correctly brought and carried out. Inferences were available from the taped conversations which warranted the case continuing. Mr Kawicki had a fair trial with adequate warnings from the trial Judge as to any possible prejudice flowing to him. The Court of Criminal appeal took a certain view of the evidence but in my view the matter was one that had to be determined by a jury. There was no relevant delay from arrest to trial.
I recommend against the making of an ex gratia payment."

16 It would appear that the appellant did not accept the assertions by Mr Cowdery in his letter of 29 March 1996, although there is no evidence as to whether its content was conveyed to him by the Director-General or, if it was, of the manner in which this was done. In any event, it would appear that a Mr Carney of Carneys Lawyers made further representations on behalf of the appellant, with the consequence that on the Director-General wrote to Mr Cowdery 14 August 1996 "requesting further advice in this matter". Two specific issues were apparently raised by the Director-General, of which only the first is relevant to the present case. It was restated in Mr Cowdery's letter to the Director-General dated 17 September 1996 in the following terms:

"Whether I consider the impact of Crown evidence that the defendant accompanied Brown when he visited Spence in gaol was prejudicial and that adducing such evidence represents an error on the part of the prosecution (as asserted by Mr Carney)."

17 It appears that this question was prompted by the appellant's understanding that the government's position with respect to ex gratia payments was that they were only available where an error or omission by investigating or prosecuting authorities had been demonstrated. It was therefore asserted by the appellant that the prosecution committed a demonstrable error in adducing evidence at the trial that the appellant accompanied Brown when he visited Spence in gaol. This was the evidence which Allen J, at the end of the passage set out in [10] above, held should not have been admitted by the trial Judge. His Honour also criticised the prosecution for seeking to admit such evidence and for failing to avoid the risk of unnecessary prejudice to the appellant.

18 Mr Cowdery's response to the specific issue upon which his "further advice" had been requested was as follows:

"The Crown sought to lead this evidence, over objection from the defence, for a specific reason: namely, and as stated to the jury by the trial Judge, because it was part of the fabric of the Crown case that the accused Spence knew Hudd in the prison system and knew accordingly that he was an escapee.
The evidence was of course prejudicial against Mr Spence and also against Mr Kawicki and this was acknowledged by the trial Judge in her judgment on the admissibility of the evidence. Her comments are adopted, that in the circumstances of a joint trial the Crown was entitled to adduce that evidence and seek to have any prejudice to Mr Kawicki dealt with by strong directions to the Jury as to the way in which the evidence could be used and more specifically the way it could not be used against Mr Kawicki.
In summary, the evidence was led for a legitimate purpose against the accused Spence and the Crown relied on the directions of the trial Judge to ensure Mr Kawicki received a fair trial. On my view this occurred. I note that Justice Allen, although of the belief that prejudice did flow to Mr Kawicki, stated he did not cavil with the ruling of the trial Judge. I adhere to my view that it was not an error to lead such evidence."

19 Although the second specific issue upon which Mr Cowdery was asked to comment is not directly relevant to the appellant's complaint, it was before the Commissioner and possibly had some relevance to him. The specific question asked was in the following terms:

"Whether the Court of Criminal Appeal's finding that evidence as to whether Mr Kawicki, at the time he made the loan of $500 to Patrick Hudd, knew that person was an escaped prisoner was 'meagre in the extreme' has any significance in relation to your assessment of your Office's conduct of the prosecution?"

Mr Cowdery said that the short answer to this question was:

"Yes".

He continued in these terms:

"All judgments of the Court of Criminal Appeal are read and analysed by members of this Office, and of course particular regard is taken where the Court's comments in any way reflect adversely on the conduct of the prosecution.
However my assessment of the evidence is that it was properly led and inferences were available for the jury to draw that Mr Kawicki knowingly maintained an escapee."

The criticism of Mr Cowdery

20 In July 2000, Mr T Molomby of counsel wrote to the Attorney-General on behalf of the appellant criticising Mr Cowdery's responses to the Director-General. I will refer to that criticism in more detail.

21 It appears that Mr Molomby's letter was forwarded to Mr Cowdery by the Director-General under cover of a letter dated 25 July 2000. He replied by letter dated 10 August 2000 in the following terms:

"I have considered the representations from Mr Molomby and have re-examined the circumstances of the trial and the decision of the Court of Criminal Appeal.
The questions raised relating to Mr Kawicki's knowledge of Hudd as an escaped criminal and the prejudicial admission of evidence relating to the gaol visit have been answered on two previous occasions. The information contained in the letter dated 29 March 1996 was not misleading or incorrect. Reference was made to the reasons why the conviction was quashed – first because the evidence that Mr Kawicki knew Hudd as an escaped criminal was held to be meagre; and secondly, the grave risk of prejudice to Mr Kawicki. This latter issue related to the evidence of the gaol visit that gave rise to the separate trial application. The trial Judge refused it and the Court did not cavil with that ruling.
My letter dated 17 September 1996 commented specifically on these points. I have nothing further to add."

22 On 22 September 2000, the appellant wrote directly to Mr Cowdery requesting him to correct his advice to the Attorney-General's Department and, in effect, to acknowledge that the Court of Criminal Appeal had determined that there was an error in the manner in which the prosecution had been conducted. By letter dated 6 November 2000, Mr Cowdery replied in the following terms:

"I refer to your letter dated 22 September 2000 concerning your claim for an ex gratia payment.
I cannot enter into correspondence with you about the specifics of my advice to the Attorney-General's Department in this matter.

As recently as August of this year I wrote to the Department in relation to this matter. The contents of your letter do not persuade me that there is any need for me to alter the advice that I have already given to the Department.
The Department has had a copy of the Court of Criminal Appeal judgment since at least July 1996 and since then has been in a position to make its own evaluation of the Court's decision insofar as it relates to your claim."

23 It is noteworthy that Mr Cowdery asserted that the Department had been in possession of a copy of the Court of Criminal Appeal's judgment since at least July 1996. The significance of that date is not apparent, although it predates Mr Cowdery's letter of 17 September 1996 to the Director-General. In any event, there was no assertion by the appellant in evidence to the effect that Mr Cowdery's statement was incorrect: see [13] above.

The appellant's complaint to the Ombudsman

24 To satisfy this response, the appellant lodged a written complaint with New South Wales Ombudsman on 8 March 2001. He enclosed a copy of the abovementioned correspondence together with a copy of the Court of Criminal Appeal's judgment.

25 The Ombudsman referred the complaint to Mr Cowdery by letter dated 31 May 2001. In his letter of reply dated 7 June 2001, he rejected the appellant's complaint that he had (in his letters of 29 March 1996 and 17 September 1996) misrepresented the Court of Criminal Appeal's judgment. As regards the Court's criticism of the prosecution, he said this:

"Mr Kawicki complains that my letters dated 29 March 1996 and 17 September 1996 do not acknowledge 'existence of the substantial criticism made by the Court of Criminal Appeal' and that the letter of 17 September 1996 'implies that such criticism does not exist'.
……..
When I responded to the letter of 29 March 1996 I was responding to Mr Kawicki's request to the Attorney-General for a substantial ex gratia payment, insofar as that request relied upon his complaints about the trial process and the general management of his matter by my Office. Mr Kawicki's complaint about my Office was that, in essence, the prosecution had relied upon guilty association and denied him natural justice….."

26 Mr Cowdery then summarised what he had said in his letter of 29 March 1996 and continued:

"…..and I stated that the Court had indicated that the circumstances of the trial were such that there was a grave risk of prejudice to Mr Kawicki (page 3). I also set out my reasons for recommending against an ex gratia payment. I was aware at the time of sending this letter that the Department already had a copy of the Court's judgment."

He then referred to the two specific questions to which he responded in his letter of 17 September 1996 and to the fact that both questions " were self evidently based on the remarks of Allen J in the CCA judgment ". He said this:

"The whole of my 17 September 1996 letter is devoted to answering the two questions posed by the Department. A reading of the letter indicates that it is simply not the case that the letter implies that criticisms were not made by the CCA".


He concluded by denying that the 1996 letters contained errors or misrepresentations.

The appellant's complaint to the Legal Services Commissioner

27 On 26 April 2001, the appellant lodged a complaint with the Commissioner. He alleged that Mr Cowdery had deliberately and knowingly misrepresented the judgment of the Court of Criminal Appeal to the Director-General. His principal points of complaint were as follows:

(a) The Court of Criminal Appeal criticised both the trial Judge and the prosecution in that:

(i) it regarded as wholly unnecessary the adducing of evidence that , the appellant went with Brown, when he visited Spence in gaol;

(ii) that evidence should not have been admitted by the trial Judge and should not have been sought to be admitted by the prosecution;

(iii) in joint trials the Crown should be astute to avoid risk of unnecessary prejudice arising and that it had not been so in the present case.


(b) Mr Cowdery noted in his letter of 29 March 1996, that the Court of Criminal Appeal had indicated that the circumstances of the trial were such that there were was grave risk of prejudice to the appellant, but then asserted that the Court had not cavilled with the " rulings " made by the trial Judge;

(c) This was a misrepresentation of the Court’s decision as it had cavilled with the trial Judge's ruling with respect to the evidence referred to in sub-paragraph (a)(i) above. In fact, the only ruling with which the Court of Criminal Appeal had not cavilled was the ruling with respect to the appellant's application, when the subject evidence was sought to be adduced, for a separate trial from his co-accused (Spence).

(d) This error and misrepresentation was exacerbated by Mr Cowdery's assertion in his letter of 17 September 1996 that although Allen J was of the belief that prejudice had flowed to the appellant as a consequence of the admission of the subject evidence, his Honour had stated that he did not " cavil with the ruling of the trial judge ";

(e) This statement by Mr Cowdery implied, contrary to what was actually the case, that the concern of Allen J was only with respect to the prejudice which flowed to the appellant from the adducing of the subject evidence and that his Honour did not cavil with the ruling of the trial Judge to admit that evidence;

(f) Neither of Mr Cowdery's letters acknowledged the criticism made by the Court of Criminal Appeal of the prosecution in adducing the subject evidence. Furthermore, the whole tenor of the letters was that such criticism had not occurred;

(g) Accordingly, the effect of the letters was to conceal from the Director-General the fact that the Court of Criminal Appeal had criticised an important aspect of the conduct of the prosecution.

28 The Commissioner wrote to the appellant on 16 May 2001, indicating that he did not believe he could assist the appellant with his complaint. The primary basis for this opinion was that the Commissioner considered that Mr Cowdery, in giving advice to the Director-General with respect to the appellant's application for an ex gratia payment, was providing policy advice and not giving advice in the course of practice as a legal practitioner. He noted that where impugned conduct occurred otherwise than in connection with the practice of law, a legal practitioner could only be guilty of professional misconduct if that conduct would justify a finding that the practitioner was not of good fame and character or was not a fit and proper person to remain on the roll of legal practitioners. He was of the opinion that the appellant's complaint concerning Mr Cowdery would not justify such a finding.

29 The relevance of the impugned conduct occurring in connection with the practice of law under the Legal Professional Act 1987 (the LPA) is that such conduct may amount to professional misconduct where it involves a substantial failure to reach reasonable standards of competence and diligence. The essence of the appellant's complaint against Mr Cowdery was that his deliberate misrepresentation of the Court of Criminal Appeal's comments with respect to the admission and adducing of the subject evidence constituted a departure from that standard.

30 The appellant wrote to the Commissioner on 11 January 2002, taking issue with the Commissioner's decision not to proceed further with his complaint. A further letter of complaint was enclosed with that letter, although it was before neither the primary Judge nor ourselves.

The Commissioner's decision

31 The Commissioner responded to the appellant's letter dated 4 February 2002. He first addressed the question: Was Mr Cowdery's conduct in connection with the practice of law? He concluded that it was not. His reasons were as follows:

"Mr Cowdery is a legal practitioner. However, his role as Director of Public Prosecutions is defined by the Director of Public Prosecutions Act, which confers certain statutory powers, duties and other functions upon him. It has consistently been the view of this Office that, in exercising these statutory functions, the Director of Public Prosecutions is not engaged in conduct 'in connection with the practice of law'."

32 The Commissioner secondly addressed the question: "Was Mr Cowdery's advice deliberately misleading?" He wrote:

"The essence of your complaint is that Mr Cowdery has deliberately misrepresented the judgment of the Court of Criminal Appeal on a number of occasions and has improperly denied doing so."

33 Indicating that he had carefully considered the relevant correspondence, the Commissioner continued:

"I do not propose to enter into a detailed analysis of the terms of Mr Cowdery's correspondence. It seems to me that the extent of the discussion about the meaning to be attributed to those letters is indicative of the fact that there is considerable room for debate as to whether or not Mr Cowdery's letters should properly be said to misrepresent the Court of Appeal's judgment. I must say that it may well have been preferable for Mr Cowdery to have acknowledged more clearly the nature and effect of the following passage from the Court of Appeal's judgment."

34 Having set out the last two paragraphs of the judgment of Allen J (which I have recorded in [10] above), the Commissioner concluded in these terms:

"However, I must also have regard to the fact that, from the outset, the Director-General was in possession of the Court of Appeal's judgment and it was in that context that Mr Cowdery was providing his advice.
Under s 155 of the Legal Profession Act, there is a specific test set out in relation to the possibility of my instituting disciplinary proceedings. I must be 'satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct'. If I am not so satisfied, then I am obliged to dismiss the complaint.
Having regard to the matters discussed above, I am not satisfied that " there is a reasonable likelihood " of a finding of misconduct by the Disciplinary Tribunal. I have reached this conclusion irrespective of whether Mr Cowdery's conduct could be considered to be in connection with the practice of law or other than in connection of the practice of law."

The decision of the primary Judge

35 The primary Judge considered that the Commissioner's decision (contained in the letter of 4 February 2002) raised two broad issues. The first was whether he was correct in his view that the conduct complained of was not "conduct…occurring in connection with the practice of law" within the meaning of s 127 of the LPA. The second was whether his decision not to institute proceedings in the Tribunal with respect to the appellant's complaint was infected by any error of law.

36 As to the first issue, the primary Judge upheld the Commissioner's decision. In doing so he noted that Mr Cowdery had been consulted as to his views on the question of whether the circumstances and conduct of the particular prosecution should lead the Executive Government of New South Wales to make an ex gratia payment to the appellant.

37 In confirming the Commissioner's decision on this issue, the primary Judge relied upon certain conclusions reached by O'Keefe J in Nye v State of New South Wales (2002) NSWSC 1267. This case involved a subpoena for the production of documents and a notice to produce served on Mr Cowdery requiring the production of an Informants Register Index relating to a particular person. He had objected to the production of the register on the basis that the whole of its contents was protected by legal professional privilege. It was submitted on his behalf in that case that his functions under the Director of Public Prosecutions Act 1986 (the DPP Act) were in the nature of legal functions of a kind that attracted legal professional privilege. In order to determine that claim, O'Keefe J considered it necessary to analyse the terms of the DPP Act and the nature of the particular functions assigned by it to Mr Cowdery.

38 Having considered the relevant provisions of the DPP Act and noting the difference between the functions of the Director of Public Prosecutions on the one hand and the Solicitor for Public Prosecutions on the other, O'Keefe J opined as follows:

"20. The existence of the Office of Solicitor for Public Prosecutions and the functions conferred on such officer in my opinion support the conclusion that the Director is not and does not perform functions as a solicitor or barrister. In the terminology of the Legal Profession Act 1987, the Director is not, and does not act as, a legal practitioner in the exercise of his statutory functions. Indeed, the functions performed by the Director are largely administrative in nature. The Director is in many instances the client of the Solicitor for Public Prosecutions and in other instances is exercising statutory functions conferred by the Act.
21. An examination of Part 4 of the Act, which relates to the Attorney-General, is also illuminating in relation to the general or blanket submission put on behalf of the Director. In s 25 of the Act, there is provision which requires the Director to "consult with the Attorney-General with respect to matters concerning the exercise of the Director's functions". No such provision is made in respect of the performance of function by the Solicitor for Public Prosecutions. In my opinion this highlights an important difference between the two offices, stressing the administrative or executive functions of the Director on the one hand (which are subject to executive, administrative and political oversight), and the legal functions of the Solicitor for Public Prosecutions on the other hand (which are not subject to such executive, administrative or political oversight)."

39 As to the second issue debated before him, the primary Judge observed:

"It is, I think, important to observe that the criterion set by section 155 is the satisfaction of the Legal Services Commissioner. In this respect, the decision to be taken under the section is similar to that of the Minister in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 as explained in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ at 274-276. As was there pointed out, a decision of this kind can be reviewed by the courts if it is not made in good faith, or the authority making it has misdirected itself in law, or has failed to consider matters it was required to consider, or has taken irrelevant matters into account, or the decision is so unreasonable that no reasonable authority could properly have arrived at it. Their Honours added (at 276):
'However, while the subject nature of the decision no longer can be said to immunise the decision from review, it is necessarily of relevance to the issue of whether there has been an error of law.' "

40 The primary Judge then considered the terms of s 155 of the LPA, noting some difficulties of interpretation. He ultimately adopted the same construction as the Commissioner, namely, that he should dismiss the complaint if he is not "satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal". The appellant has not raised any suggestion before this Court that such an interpretation was incorrect.

41 The primary Judge noted that the appellant had contended the following: that the Commissioner's decision was unreasonable to the extent that no reasonable person could have reached it; that irrelevant considerations had been taken into account; and that the question correctly posed by s 155 had not been addressed. His Honour concluded that none of these grounds had been made out and said (at [213]):

"…..In my opinion, it was plainly open to the Commissioner to be satisfied that no aspect of the complaints was made out and, in particular, that if there was any error in any of Mr Cowdery's letters, the elaborate nature of the circumstances said to show that error was consistent with the conclusion that it was merely a misunderstanding not falling within the relevant provisions of the Legal Profession Act. I am simply unable to see the basis on which it is contended that the Legal Services Commissioner's decision is so unreasonable that no reasonable person could have reached it. For myself, I would have reached the same conclusion."

The appellant's submissions

42 It is convenient to first deal with the question of whether the Commissioner's decision that he was not satisfied that there was a "reasonable likelihood" of a finding of professional misconduct by the Tribunal is infected by reviewable error. The appellant submitted that the Commissioner had advanced only two reasons for coming to this conclusion. The first was that the extent of the discussion as to the meaning to be attributed to Mr Cowdery's statements in his letters of 29 March 1996 and 17 September 1996, the latter in particular, as revealed in the correspondence between Mr Cowdery and the Director-General on the one hand and the appellant on the other, was indicative of the fact that there was considerable room for debate as to whether those letters could properly be said to have misrepresented the Court of Criminal Appeal's judgment. The second reason was that the Director-General was in possession of the Court of Criminal Appeal's judgment and that this was the context in which Mr Cowdery had provided the advice contained in the subject letters.

43 It was submitted these reasons demonstrated that the Commissioner had taken into account irrelevant considerations, such that those reasons being discounted, his decision that he was not satisfied that there was a reasonable likelihood of a finding of professional misconduct by the Tribunal was necessarily unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Pty Limitedv Wednesbury Corporation [1948] 1KB 223 at 229-230). It was further submitted that even if the reasons advanced by the Commissioner were relevant, it was nonetheless so plain that Mr Cowdery had deliberately misled the Director-General in his letters that the Commissioner's decision was itself Wednesbury unreasonable.

Consideration of the appellant's submissions

44 The basis upon which the appellant asserts that the Commissioner's first reason demonstrates an irrelevant consideration is that Mr Cowdery's letters, when properly understood, leave no room for debate as to whether they contain a misrepresentation of the Court of Criminal Appeal's judgment. Accordingly, it was submitted that the first reason was factually incorrect. However, whether it is factually incorrect is not pertinent to the issue of irrelevancy. The Commissioner's opinion was that there was room for debate as to whether Mr Cowdery's letters could properly be said to misrepresent the Court's judgment. In my opinion, a consideration of whether there was room for debate was clearly relevant to the question which the Commissioner was required to address, namely, whether he was satisfied that there was a reasonable likelihood that Mr Cowdery would be found guilty of professional misconduct by the Tribunal.

45 There is no question that Mr Cowdery, in his correspondence with the Director-General, took issue with the appellant's assertion that he had deliberately misled the Director-General, Deputy Ombudsman and the appellant by deliberately suppressing the fact that Allen J had criticised the prosecution in seeking to have the impugned evidence admitted in circumstances where it should have been more astute in avoiding any risk of unnecessary prejudice to the appellant. Mr Cowdery asserted, particularly in his letter to the Deputy Ombudsman of 7 June 2001, that the response to the first question contained in his letter to the Director-General of 17 September 1996 could not have implied that the subject criticism had not been made because it was self evident that the question upon which his advice had been sought was raised by that very criticism.

46 It is in the foregoing context, in my opinion, that the Commissioner asserted that there was room for debate as to whether Mr Cowdery's letters could properly be said to have misrepresented the Court's judgment in the relevant respect. That was a factor which as I have said, he was entitled to take into account for the purposes of applying the test of "reasonable likelihood". Accordingly, in my opinion, the first basis of the appellant's challenge fails.

47 The appellant submitted that the second reason advanced by the Commissioner in support of his decision raised a false issue as it was irrelevant that the Director-General had the means of disproving Mr Cowdery's alleged misrepresentation as to the content of the judgment. With respect, that is not the point of the Commissioner's comment. He was asserting that Mr Cowdery had provided advice in the context of his knowledge that the Director-General had in his possession a copy of the judgment which as Mr Cowdery accepted in his correspondence, clearly contained a criticism of the prosecution with respect to the adducing of the impugned evidence.

48 In my opinion, it was open to the Commissioner to take the view, or at least to accept as arguable, that Mr Cowdery's letters to the Director-General proceeded upon the assumption that it was self evident that the Court had criticised the prosecution and that he was being asked to express his own opinion as to whether the adducing of such evidence represented an error on the part of the prosecution. The first question posed by Mr Cowdery's in his letter of 17 September 1996 demonstrates his understanding that clearly his personal opinion was being sought as to whether the adducing of the impugned evidence represented an error by the prosecution and the letter makes it plain that he considered that it was not an error to lead such evidence.

49 As the primary Judge pointed out in [8] of his judgment, Mr Cowdery was expressing his own opinion, as he was entitled to do, that there was no error. He was not bound to accept the correctness of the contrary view formed by the Court of Criminal Appeal. As Mr Cowdery noted on page 2 of the letter dated 17 September 1996 (see [19] above), all judgments of the Court of Criminal Appeal are read and analysed by his office and particular regard is taken where the Court's comments in any way reflect adversely on the conduct of the prosecution. Rightly or wrongly, the present was a case where, notwithstanding the obiter remarks of Allen J upon which the appellant relies, Mr Cowdery adopted a contrary view.

50 Whether or not one agrees with Mr Cowdery's opinion is not to the point. The fact that he expressed it and did so presumably bona fide, reflects upon whether there was a reasonable likelihood that he would be found guilty of professional conduct by the Tribunal on the ground that he had deliberately set out to misrepresent what the Court of Criminal Appeal had said insofar as it bore upon the conduct of the prosecution. It follows that the second reason advanced by the Commissioner did not constitute an irrelevant consideration to the ultimate question that he was required to address. Accordingly, this ground of challenge should also be rejected.

51 The appellant also submitted that the Commissioner's decision was in any event Wednesbury unreasonable as it was clear beyond doubt that Mr Cowdery had deliberately misrepresented the Court's judgment, particularly in his letter of 17 September 1996 to the Director-General. The cogency or otherwise of this challenge depends upon whether in fact there is no explanation of Mr Cowdery's letter available other than that he deliberately and intentionally set out to mislead the Director-General by misrepresenting what the Court had said. It was submitted in the alternative that the conduct of Mr Cowdery in maintaining his position in later correspondence was such that it could not escape categorisation, at the least, as unsatisfactory professional conduct, being conduct which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.

52 In my opinion, the answer to these submissions is to be found in the reasons advanced by the Commissioner in support of his decision that he was not relevantly satisfied in terms of the statutory test. As did the primary Judge, I do not consider that it is beyond argument that Mr Cowdery misrepresented the Court's judgment, especially in circumstances where he understood or was aware that the Director-General had a copy of that judgment and would have noted that it was unambiguously critical of the prosecution's conduct in seeking to adduce the impugned evidence. Furthermore, if the appellant's correspondence with the Commissioner were to be taken as any guide, it would not be unreasonable to infer that he would have extracted and emphasised the relevant part of the Court's judgment in his correspondence with the Director-General. The fact also remains that the Director-General was seeking Mr Cowdery's personal opinion as to whether the adducing of the impugned evidence represented a relevant error on the part of the prosecution.

53 It is true that the appellant focussed upon that part of the letter of 17 September 1996 where Mr Cowdery had stated that although Allen J was of the belief that prejudice did flow to the appellant, his Honour:

"… did not cavil with the ruling of the trial Judge"

It was contended that this statement would convey to the Director-General that Allen J did not cavil with the ruling of the trial Judge to admit the evidence, whereas in fact the contrary was the case. The only ruling of the trial Judge with which the Court did not cavil was the ruling rejecting the appellant's application for a separate trial.

54 Except to the extent to which it is set out in the first paragraph of Allen J's judgment (recorded in [9] above), the precise sequence of events with respect to the adducing of the impugned evidence is not entirely clear. Certainly, it appears that when the evidence was adduced, there was an immediate application for a separate trial which the trial Judge rejected. Her Honour then gave the jury an appropriate warning with respect to that evidence. It is not apparent that there was a separate application by trial counsel for the appellant that the evidence should not be admitted or a separate ruling by the trial Judge thereon.

55 It is true that in his letter of 17 September 1996 Mr Cowdery made reference to the fact that the evidence was prejudicial against the appellant and that:

"…this was acknowledged by the trial Judge in her judgment on the admissibility of the evidence".

This assertion is not entirely consistent with the reference to the conduct of the trial at this juncture in Allen J's judgment. Neither the Commissioner nor the primary Judge nor this Court was provided with a copy of the trial Judge's Judgment to which reference is made. Whether that was in fact a judgment on the admissibility of the evidence or on the application for a separate trial is simply not known. I only mention these matters because they give rise to debatable issues, the resolution of which one way or the other is speculative. If they were appreciated by the Commissioner then they were matters upon which he would have been entitled to rely as part of the " discussion about the meaning to be attributed to " Mr Cowdery's letters and as being " indicative of the fact that there is considerable room for debate as to whether or not Mr Cowdery's letter could properly be said to misrepresent the Court of Appeal's judgment ". As such they were relevant to the question of the Commissioner's degree of satisfaction in the application of the statutory test.

56 As I have already noted, the primary Judge made reference in [19] to the joint judgment in Wu Shan Liang. Their Honours referred to the statement of principle by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119, where his Honour said, inter alia:

"Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, whether the matter of which the authority is required to be satisfied is a question of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority would be left with a very wide discretion which cannot be effectively reviewed by the courts."

See also, Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 at 90-91 ([42-43]).

57 As the primary Judge observed, s 155 of the LPA requires the Commissioner to be satisfied that there was a reasonable likelihood that the relevant legal practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. The requirement that a decision maker be "satisfied" with respect to matters clearly involves matters of opinion. As such, as Gibbs J noted, it is "very difficult" to show that the decision could not reasonably have been reached in the required sense. The primary Judge concluded that the appellant's contention that the Commissioner's decision was so unreasonable that no reasonable person could have reached it should be rejected. I am of the same opinion. Accordingly, this ground of challenge should be rejected.

58 It follows from the foregoing that the primary Judge was correct to dismiss the proceedings, even if Mr Cowdery's conduct in writing the subject letters did occur in connection with the practice of law.

59 It is therefore unnecessary for the purpose of determining this appeal to resolve the question of whether Mr Cowdery's conduct did occur in connection with the practice of law. In refusing to deal with this issue it should not be thought that I either agree or disagree with the Commissioner's decision or the primary Judge's upholding of that decision. However, notwithstanding the obiter observations of O'Keefe J in Nye, I am prima facie of the opinion that, at least in respect of some of Mr Cowdery's functions under the DPP Act, he would be conducting himself in connection with the practice of law. It could not be gainsaid for instance that if he personally conducted a prosecution, he would be doing so in connection with the practice of law. Whether or not he was so conducting himself in the circumstances of the present case is in my opinion an open question.

Conclusion

60 In my opinion, the decision of the Commissioner contained in his letter to the appellant of 4 February 2002 whereby he dismissed the appellant's complaint against Mr Cowdery is not infected by reviewable error and the primary Judge was correct in so finding. I would accordingly propose that the appeal be dismissed.

61 The issue upon which I have decided the appeal had involved principally the appellant and Mr Cowdery. The Commissioner appeared only for the purpose of making submissions with respect to the meaning of the expression "in connection with the practice of law" where appearing in s 127(2) of the LPA and its application to the functions of Mr Cowdery under the DPP Act. In these circumstances, I would propose that the appellant should pay Mr Cowdery's costs of the appeal and the first respondent's costs on a submitting appearance basis.

62 FOSTER AJA: I agree with Tobias JA.

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Last Modified: 11/19/2003