Law Society of New South Wales v Green
[2008] NSWADT 149
•22 May 2008
CITATION: Law Society of New South Wales v Green [2008] NSWADT 149 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
Council of the Law Society of New South Wales
Martin Geoffrey GreenFILE NUMBER: 072011 HEARING DATES: 2-4 April 2008 SUBMISSIONS CLOSED: 4 April 2008
DATE OF DECISION:
22 May 2008BEFORE: Karpin A - ADCJ (Deputy President); Riordan M - Judicial Member; Fitzgerald R - Non Judicial Member CATCHWORDS: Solicitor – disciplinary application MATTER FOR DECISION: Principal matter LEGISLATION CITED: Crimes Act 1900
Drugs Misuse and Trafficking Act 1985
Legal Profession Act 1987
Legal Profession Act 2004CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Coe v NSW Bar Association [2000] NSWCA 13
New South Wales Bar Association v Meakes [2006] NSWCA 340
New South Wales Bar Association v Punch [2008] NSWADT 78
R. v Patison [2002] NSWSC 1248
R. v Patison [2003] NSWCCA 171REPRESENTATION: APPLICANT
RESPONDENT
N Beaumont, barrister
T Game SC, barristerORDERS: 1. The respondent is guilty of professional misconduct in respect of Ground 1(a) and (b) and Ground 2
2. The respondent is to pay the costs of the applicant in respect of the proceedings
3. The matter is listed for Directions on 18 June 2008 to determine a timetable for penalty hearing
4. Penalty hearing listed for 23 July 2008.
REASONS FOR DECISION
1 The applicant alleges two grounds of professional misconduct against the respondent:
2 Each of those charges is based upon conversations recorded by the New South Wales Crime Commission [“NSWCC] on the date set out in the respective ground. The transcripts of those conversations were annexed as particulars to the Amended Application for Original Decision filed in the Administrative Decisions Tribunal on 22 October 2007.
Ground 1:
Ground 2:
(a) That on 14 November 2000 the respondent advised his client, Luke Benbow, [“Benbow”] that the respondent would approach Detective David Patison [“Patison”] about the return of a portion of a sum of $31,000 the subject of a “Goods in Custody” charge against Benbow, in return for the dropping by Patison of the said charge and the retaining by Patison of the balance of the $31,000, the amount of the balance to be negotiated.
(b) the respondent would not raise a Tax Invoice for legal services in relation to retrieving the said portion of the $31,000 from Patison, or charge 10 percent GST in respect of those services, but would take a portion (the precise amount to be agreed) of the money which Patison agreed to return to the respondent.
On 5 December 2000 the respondent during the course of a conversation advised Benbow that the respondent would discuss with Patison, on behalf of Benbow, what portion of the sum of $31,000 Patison would wish to retain in return for Patison procuring the dropping of the charge of “Goods in Custody”.
3 It was conceded by the respondent that those transcripts were correct, with one exception. After listening to the tapes the Tribunal made the alteration identified by the respondent.
4 At hearing the respondent argued that the applicant should agree to an amendment to Ground 1(b) to assert that the respondent “would or might not raise a Tax Invoice”. The respondent accepted that the words themselves were capable of establishing professional misconduct, but argued that the particular should be amended to reflect the position that the Tribunal, having heard the evidence, would not be satisfied that the applicant had proved that the respondent intended not to raise a Tax Invoice. The applicant declined to make that amendment. It remained, however, open to the Tribunal to make a finding in accordance with that suggested amendment.
5 The applicant seeks orders that the name of the respondent be removed from the Local Roll of Lawyers, and that he pay the applicant’s costs of and incidental to the proceedings.
6 The matter proceeded upon the basis that the issue of liability would be determined separately from the issue of final orders should there be a finding against the respondent. Accordingly, the character evidence filed by the respondent was not considered on the primary issue.
7 The applicant tendered not only it’s own evidence, but also the documents filed by the respondent as “the Respondent’s tender bundle”. There was no oral evidence.
8 Pursuant to directions of the Tribunal, both parties filed written submissions prior to hearing, which were subsequently supplemented by oral submissions from both counsel, and brief additional written submissions.
9 The Reply filed by the respondent denied that he was guilty of professional misconduct. The respondent’s written submissions filed on 31 March 2008 repeated that denial. On day one of the hearing, however, his counsel conceded that the words spoken by the respondent were capable of establishing that he was guilty of professional misconduct. That concession was made on the basis that the words spoken, standing alone, amounted to professional misconduct. The admission was limited to the spoken words, and did not extend to an admission that the respondent intended to act in accordance with those words.
10 The respondent is a former police officer. In the course of his employment with the police service, he became a police prosecutor, in which role he primarily worked at Manly Local Court.
11 In 1985 the respondent met, and became socially friendly with David Patison,[“Patison”] a detective working at Manly Police Station.
12 On 15 December 1993 the respondent was admitted as a solicitor of the Supreme Court of New South Wales. He joined the practice of Stewart Green & Mijovich, initially as an employee, but from 1 September 2000 until 17 January 2002, he was a partner in that firm.
13 The background to these proceedings arises from investigations into the conduct of Patison, which ultimately lead to him being charged with various crimes.
14 Whilst working as a detective at Manly Police Station, Patison engaged in corrupt activities. He ultimately pleaded guilty to a number of offences resulting in the imposition of terms of imprisonment. (R. v. Patison [2002] NSWSC 1248 and R. v. Patison [2003] NSWCCA 171). He was sentenced to an overall period of 7 years with a non-parole period of 5 years.
15 The relevant facts concerning this respondent relate to Patison’s dealings with Luke Benbow, [“Benbow”] an acknowledged drug dealer in the Manly area.
16 On or about 11 May 2000, Patison, together with three other police officers, searched the home of Benbow, where they located $40,000 cash, a small quantity of cannabis and 2 bottles of steroid.
17 Patison took the $40,000, returned $10,000 to Benbow and shared the $30,000 with two other police officers. This constituted one of the corruption charges to which Patison later pleaded guilty.
18 Patison told Benbow that the police officers who were retaining the money would “turn a blind eye” to approximately 4 pounds of cannabis that Benbow had thrown out the window at the time of the police search of his home, in an unsuccessful attempt to avoid it’s detection.
19 On or about 24 August 2000, police officers from Manly Police Station (not including Patison), carried out a second search of Benbow’s home. They located approximately 475g of cannabis and $31,000 in cash in Benbow’s car. The cash and cannabis were seized and recorded.
20 Benbow was charged with the following offences:
21 Following the laying of the above charges against Benbow, Patison and another police officer approached Benbow and informed him that upon payment of a “tax” he would be permitted to continue dealing in cannabis.
i. possessing $31,000 in Australian currency which may reasonably be suspected of being stolen or otherwise unlawfully obtained (section 527C Crimes Act 1900).[The Goods in Custody Charge]
ii. possessing a prohibited drug – cannabis (section 10 Drugs Misuse and Trafficking Act 1985.
iii. Deemed supply of a prohibited drug – cannabis (section 10 Drugs Misuse and Trafficking Act 1985
22 As a result of this approach Benbow and his then solicitor, Mr Ross Hill, approached the New South Wales Crime Commission (“NSWCC”). Benbow agreed to assist the NSWCC in its investigations of Patison.
23 During September 2000, Benbow met Patison and negotiated cash payments to Patison in return for Benbow being allowed to continue dealing in cannabis.
24 On or about 18 October Benbow held a meeting with Patison, in the course of which Patison suggested to Benbow:
25 On 25 and 26 October the respondent had telephone conversations with Benbow and Patison.
i. that he approach the respondent for assistance in relation to the Goods in Custody charge;
ii. that Benbow might be able to obtain the $31,000 that had been seized by police by producing invoices that could be investigated by police, leading to a recommendation that the Goods In Custody charge be withdrawn and the money returned to Benbow.
26 Benbow contacted the respondent and met with him at the respondent’s office at Manly on 1 November 2000. That meeting was not recorded. The respondent’s office file note of that meeting was in evidence. There is no evidence adverse to the respondent in relation to that meeting.
27 On 14 November 2000 Benbow again met the respondent at his Manly office. Benbow was wearing a listening device fitted by the NSWCC.
28 In the course of that meeting, the respondent and Benbow had a conversation the relevant portions of which constitute Ground 1(a) and (b).
29 On or before 14 November, Benbow provided the respondent with copies of “invoices” (referred to as “receipts” in the conversation recorded on 14 November), which invoices had been substantially or entirely falsified by Benbow. It is not alleged that the respondent was aware of the falsification of invoices.
30 On or about 21 November 2000, the respondent sent, or caused to be sent from his office, a facsimile to Patison with the invoices, describing them as “copies of invoices from Luke Benbow Plumbing to Val Byrne”.
31 On 5 December 2000, Benbow, fitted with a listening device by the NSWCC, had a conference with the respondent at the latter’s office.
32 The relevant portions of the conversation recorded at that meeting constitute Ground 2.
33 In the course of that conversation, the respondent had a telephone conversation with Patison regarding the Goods in Custody charge against Benbow.
34 On or about 17 December 2000 Patison was arrested and charged with a number of offences of corruption to which he subsequently pleaded guilty.
35 The respondent stood trial in relation to three criminal charges arising from his dealings with Benbow and Patison: One count of incite another person to offer a bribe to a police officer; 2 counts of pervert the course of justice. On 17 April 2003, the respondent was acquitted on all charges.
36 In January 2002 the respondent’s practising certificate was suspended. The applicant now seeks an order that the name of the respondent be removed from the roll.
37 At the commencement of the hearing before the Tribunal, counsel for the respondent advised the Tribunal that the respondent did not intend to give evidence in relation to the substantive proceedings, but would give evidence on the question of penalty following a determination by the Tribunal on the substantive issue.
38 The parties indicated that no witnesses were required; there was substantial agreement on the material to be tendered to the Tribunal, and the tapes of the conversations between the respondent and Benbow recorded on 14 November and 5 December 2000, would be played to the Tribunal.
39 Counsel for the respondent conceded that the material to be adduced by the applicant was capable of establishing to the requisite evidentiary standard [Briginshaw v. Briginshaw (1938) 60 CLR 336], that the respondent was guilty of professional misconduct. That concession was, however, as noted earlier, strictly on the basis that it was limited to the professional misconduct inherent in uttering the words recorded on 14 November and 5 December 2000.
40 Following a detailed opening address from counsel for the applicant, counsel for the respondent sought a ruling from the Tribunal concerning the admissibility of the respondent’s evidence at his trial in April 2003, and a letter that the respondent wrote to the NSW Law Society on 18 December 2003.
41 Counsel for the applicant advised the Tribunal that he did not intend to tender that material in his case.
42 The application to admit the material into evidence was dismissed by the Tribunal. [see transcript 03/04/08 pp. 15-16].
43 The only contemporaneous evidence from the respondent was his affidavit sworn 22 February 2008 filed in these proceedings. The respondent having elected not to give evidence, that affidavit material was not tested by cross examination, a fact that the Tribunal has borne in mind in determining the weight to be accorded to that evidence.
44 It was agreed at the outset that the issues to be determined by the Tribunal in relation to the substantive grounds were: firstly, were the words that constitute each of the alleged grounds, the words that were spoken [that was not a fact in issue, but, nonetheless, a matter for the Tribunal to determine for itself]; secondly, what was the intention of the respondent in speaking those words.
45 Counsel for the applicant argued that once the tribunal satisfied itself that the words alleged were the words uttered by the respondent, the intention could be derived from the simple and unequivocal meaning of those words. Essentially, the words mean what they say, and the respondent said what he meant.
46 Counsel for the respondent, whilst conceding that the respondent said what was recorded, and must be taken to have intended to say those words at the time he spoke them, argued that the Tribunal should not find what he described as an aggravating factor, namely that the respondent intended, at the time he spoke those words, to do that which he said he would do. He submitted that the Tribunal could not be satisfied to the Briginshaw standard, that the respondent had the necessary intention at the time of speaking to thereafter perform the actions required to carry out the intention inherent in the plain meaning of the words stated to Benbow.
47 Support for this submission is sought to be derived from the fact that there is no evidence that the respondent did speak to Patison as he said he would. Further, on 8 May 2001 the respondent sent a memorandum of fees to Benbow, despite the conversation on 14 November 2000 relating to how his fees should be paid.
48 The respondent’s affidavit evidence is that following Pastison’s arrest he continued to act for Benbow. He appeared for him at Manly Local Court on 11 April 2001. Thereafter he lost contact with Benbow, and rendered a Tax Invoice on 5 May 2001.
49 Evidence from both Patison and Benbow in material tendered to the Tribunal was to the effect that the respondent was not corrupt.
50 The entire recorded conversations of 14 November 2000 and 5 December 2000 were admitted into evidence.
GROUND 1
51 The initial matter raised by Benbow with the respondent on 14 November is his concern about obtaining sufficient receipts to justify his possession of $31,000 cash found on 24 August 2000. The relevant portions of the discussion appear below, in which Patison is referred to variously as “Patto” or “Dave”.
52 Benbow tells the respondent that he is worried because he didn’t pay tax on the receipts, to which the respondent replies:
Benbow (“B ”):“… I’m wondering if, um, well Patto’s gonna want a bit of money, I think from this.
Respondent (“R”): “Yeah, I think that’s what he’s edging for.”
B: “I’m just wondering how much I’m gonna end up getting back ... how much he’s gonna want.”
R: “Yeah, I … don’t know … “ I don’t know, I mean it’s always pretty difficult sort of territory to approach with a policeman you see” “ ... you know I don’t actively get involved in that … that’s a matter between you and Patto … . It’s just not worth my while getting involved in it.” “But you know, whatever makes the world go round makes the world go round.” “Er, and I know that that’s the reason why, you know, you’ve’ come to me.”
R: “I won’t broach it with him so you broach it with him ... the best way to broach it with him is, look, you know, the money’s there I can come up with the receipts ... how much am I likely to get back … how much are you gonna give me back ... and I think he’ll be able to read between the lines.”
53 The respondent advises Benbow about charges relating to the money, and reassures him that he will get the case adjourned on the next occasion. He then raises the issue of his fees.
“We’ve spoken about that … Patto wouldn’t give a shit … and I can broach that with Patto”
54 After a little more discussion as to how the fees will be managed:
R: “… now just in terms of our fee, I’m happy not to sort of make too much fuss about that because no doubt the money’ll come back to you as cash ... and we don’t want to disturb … John Howard and his cronies in terms of, you know, raising bills and having to charge you GST and all that sort of stuff … so I mean we can talk about that … what is there, three grand, I guess if we took our cut as about, well … ” Following discussion about the charges Benbow was facing and necessary legal work, the respondent continues: “… we can run our fees off the money coming back anyway so, … um, I’ll talk to you about that in due course … and you know I am happy not to raise any bills if you’re happy to deal with it that way … that saves you 10 percent.
55 There is some further discussion concerning the receipts, the drug possession charge, and the circumstances in which Benbow had the large amount of cash in his car. Benbow reiterates that he is just worried about the money to which the respondent replies.
R: “Um, and look I’m sure if Patto takes some money … he’s not gonna be greedy, he’s not a greedy guy. But … you’ll get the result you want eventually. Well, I mean I should imagine that, um, you’d get most of it back anyway. I mean if you counted … on losing, um, 30 percent of it I think you’ve done a pretty good job … in terms of fees and … all that sort of stuff. But I think you know, and then you’re sort of looking at getting, what, twenty grand back at least. Yeah, I mean that’s the sort of realms I should imagine Patto’d be looking at. … otherwise you’ve got a hard fought case and I think you’d probably lose it to the state.”
56 After making arrangements for future contact with Benbow, the respondent says:
R: Alright, well don’t talk to Patto yet … I’ll get him to talk to you after I’ve spoken to him. Cause I’ll just say look I’ve got some receipts I want to get them to you. It seems that the money was legit and I’ll just give him a covering letter … as to what you’ve told me about the cash tin, put in the glove box … and you wanted to get to the bank … and you just missed it because you were late from jobs. It was still in your car when you found it. Um, look, here’s the receipts, give it back to us, and er, then I’ll just say look he wants to talk to you about, um … how much money is coming back. Um, and then I’ll leave that between you guys. And then it might give him some added incentive to … to get back a little bit of money. And when that money comes back. Um, I might get him to … to, um … he’s gonna account … account for it all initially …whatever’s in the book he’s gonna have to take out of the book. But just as to what comes to us or you … we’ll cross that bridge when we … get to it. See I dunno how much you’ll get back eventually but I’ll talk to him about that alright? Okay, er, but at this stage don’t talk to him, I’ll let you know when you’ve got to talk to him over the phone.
57 Whilst there are, throughout the above passages, words spoken by Benbow, which the Tribunal is satisfied were intended to encourage the discussion, the nature of that material is not such that the Tribunal is persuaded that it impacted upon the respondent in such a manner that he said anything he did not intend to say in the circumstances. Accordingly, that material is not set out.
But I won’t talk to him about, you know, what comes back but I think if you said it like that, if you said look, you know, I appreciate everything you’re doing for me and I appreciate, you know, if those receipts are ok … er, if you get it back to me and you know, I’d appreciate that, you know, the money has to come back but as to what ultimately comes back, you understand … sort of thing. And let him call the shots then. But as you know, as I say, I won’t get involved in that … but if the money comes I mean I don’t mind him giving me the money and I’ll just pass it on to you. I mean that’s probably the easiest way to do it. We’ll get some back for you.
Ground 2
58 The second recorded conversation between Benbow and the respondent took place at the respondent’s office on 5 December 2000. There is some initial conversation and advice concerning the matter that was pending in court relating to possession of cannabis.
59 The respondent then says:
60 The respondent makes a call on his mobile ‘phone, it is agreed that this was a call to Patison.
“… I’ve given a copy of those receipts to Patto and I’ll just see where we’re up to with that.”
61 Benbow tells the respondent that he is a bit worried about the invoices and that there are a couple that “ mightn’t hold up .” In response to a question from the respondent, Benbow assures him that Byrne is “ tuned ” to which the respondent says:
R: “Ha, ha, ha, where are ya? Oh did you, oh right. Oh well after a fair day’s work, a fair day’s work. Alright. Just, er, really quickly, er, I don’t want to use up all your battery. Luke, Luke Benbow. Just those invoices, did you happen to have a chance at all to talk to Mr. Val Burn? [laughs] Alright. No, no, fair enough. Alright mate, at least you’re honest. [laughs] Alright pal. Okay well I’ll just hear from ya, I mean at this stage it’s … I’ve just finally got some of the fact sheet here and, er, it’s obviously the first charge, um, and then there’s a possess and supply, but, um, you know, just when I look at the facts I was gonna send it off for an Advice because as we discussed there’s a bit of scope there to sort of, you know, just, er, attack it legally but in any event if we can … if we can sort of see to the goods in custody, you know, at this end rather than sort of have to include it in an Advice or get an Advice about that because, you know, I mean all he’s relying upon is the second, is the second, er, the sub-section 2 of the defence, you know, if he can find … if he can reasonably establish where the money’s come from, you know, then we don’t … we don’t have to go into that sort of , you know, hearing type situation. But I’ll leave that with ya. Alright pal. You’re a good man. We’ll catch up over this and we’ll … I think I owe you a beer. Okay pal. Bye bye.” The conversation then terminated, and the respondent advised Benbow that Pattison had not yet seen Val Byrne but proposed to see him “on Thursday”.
62 Benbow asks how much the respondent thinks he will get back:
R: “Ok, so he’s tuned, he’s right. … Alright well … I mean Dave’s not gunna go into it in any great depth. It doesn’t serve him well, it doesn’t serve you well, it doesn’t serve me well, if he does.”
63 Benbow suggests it would be great if he got all the money back:
R: “ Well … that’s what I was indicating to him … you know … we’ll have to … you know he’s going out of his way to do this for you. Um, so I might have to catch up with him and … Yeah, work it out. And I can’t do that over the telephone and things … . But I’ll get an indication … I would have thought you’d probably get at least two thirds of it back I’d say … . That would be a benchmark. But he might come back and say oh no that’s not right, he’ll get much more than that,”
64 The respondent asks Benbow if he wants to run the risk of “ losing the whole kit and caboodle ” into consolidated revenue. He observes that Pattison is busy but:
R: “He might not be looking for anything at all.”… but you know as much as Dave’s … you know … he’s a pretty honest bloke … he’s gunna help you out and he’s gunna look for some sort of, you know, reward or compensation for doing that. For sticking his neck out.”
65 Benbow tells the respondent that “ most the invoices are true ” In response to Benbow’s anxiety about Pattison’s inquiries about the invoices:
“ He’s happy to do things. We’ll get some feedback from Patto as to what’s gunna happen. … If I hear something from Patto that is favorable I’ll let you know straight away.”
66 The respondent tells Benbow:
R: “He’s not gunna be strung up by the balls. … It’s not serving Dave or anybody well if … he goes into too much depth. … Dave will get around it. … He knows what has to be achieved at the end of the day. … We’re all batting in the same camp on this one.
67 It was evident to the Tribunal after listening to the telephone conversation that the respondent had with Patison, that there was no necessity for him to identify himself to Patison - his voice was immediately recognized. The tone of the conversation and the easy familiarity evident in the respondent’s portion of the conversation leaves the Tribunal satisfied that these two men were well acquainted.
“ And you know … as much as you obviously keep that to yourself, it serves you well to do that. Because … I think Dave’s probably gunna put his neck out and he’ll want some recompense for it but just as to what I don’t know yet … . I’ll discuss that with him in due course. …. But … we’ll cross that bridge when we come to it mate.”
68 The applicant tendered a considerable body of evidence from the respondent’s District Court trial and proceedings in the Police Integrity Commission.
69 Patison and Benbow committed criminal offences. The fact that they both asserted in other proceedings that the respondent was not corrupt is irrelevant to the determinations of this Tribunal. Neither were required to give evidence before the Tribunal and little or no weight can attach to their assertions in other proceedings.
70 It is not alleged by the applicant that the respondent was generally corrupt. The allegations are limited to his conduct on the dates set out in the particulars. There is no allegation or evidence of corrupt conduct outside those 2 occasions.
71 The Tribunal is satisfied that the respondent, by whatever means, was aware that Patison would be prepared to behave corruptly in relation to the attempt to recover the $31,000 that had been seized from Benbow. There is, however, no evidence that the respondent had knowledge of Patison’s corrupt conduct outside this one transaction.
72 It is submitted that the Tribunal could not find that the respondent had knowledge that the invoices received from Benbow were not legitimate. In the discussion with Benbow on 5 December 2000, there is some intimation that the respondent at least had some suspicion about them when he inquires whether Val Byrne is “tuned”.
73 Suspicion is not knowledge. The fact that Val Byrne did not confirm that the invoices were legitimate is not a relevant consideration.
74 The Tribunal is not satisfied that the respondent was aware that the invoices were not legitimate.
75 In response to the respondent’s submission that there was insufficient, or no evidence to satisfy the Tribunal that the respondent intended to act in accordance with his stated intentions, the applicant argued that:
76 The difficulty with the respondent’s submission, is the difficulty flagged by the Tribunal in the course of the hearing, namely, that this is a classic case in which only the respondent knows what he intended at the time he spoke those words.
a. Having regard to the 2 recorded conversations and the surrounding circumstances, it is inherently implausible the respondent did not intend to act in accordance with his stated intentions; and
b. Even if true, it is no answer to a charge of grave professional misconduct evidenced by those conversations.
77 The respondent may have been misleading his client. There are internal problems about accepting that as an explanation, given such passages as [ we know why you came to me etc] and the telephone conversation with Patison. Was the respondent merely big-noting himself, suggesting that he could or would do things on behalf of his client that either he believed he couldn't do or knew that he wouldn't do. Were that the case, it hardly reflects well upon the respondent. But it is argued, whilst that would not put him in a good light, and should of itself lead to a finding of professional misconduct, it is not as serious as finding the so called "aggravating" fact, that the respondent's intention was to do that which he said he would do.
78 The respondent was present in the Tribunal throughout the hearing. There was discussion about the desirability of the respondent giving evidence to the Tribunal on the issue of his intention. As previously noted, counsel for the respondent sought to tender the respondent's evidence in his criminal trial in the District Court in 2003 [he was acquitted on 17 April 2003], together with a letter written to the Law Society on 18 November 2003, on the issue of intention. The basis for that tender was said to be that the respondent’s intention could be derived from that material. That application was refused. [see transcript 03/04/08 pages 15/16]
79 Thereafter it was abundantly clear to the respondent and his legal team, that the only means of informing the Tribunal of his intentions at the time the words, the subject matter of the grounds in the application were spoken, was by way of oral evidence from the respondent. None was forthcoming.
80 In New South Wales Bar Association v. Meakes [2006] NSWCA 340 Tobias JA said:
81 In Coe v NSW Bar Association [2000] NSWCA 13, Meagher JA (at [21]), with the agreement of Priestley JA, repeated with approval the following observations made by the Tribunal in that case and which are apposite to the present case:
“Yet these were the very matters which were wholly within the knowledge of the respondent and which he was [sic] did not offer to answer in the witness box. On the contrary, he chose the safety of the well of the Tribunal. Notwithstanding the advice of his then senior counsel, the respondent’s refusal to enter the witness box and provide evidence with respect to the matters referred to should have been the subject of harsh criticism by the Tribunal. Moreover, if that evidence had otherwise been relevant to the issue, his refusal to provide it would have significantly detracted from the weight to be attached to the tendered character references. In these circumstances, the only inference one can draw from the respondent’s refusal to give sworn testimony in this matter was that his evidence would not have assisted his case in resisting a finding of professional misconduct.
The Tribunal should not have been required to speculate as to the basis upon which the respondent charged the fees he did. As an experienced barrister with an unblemished record, one would have expected him, as Meagher JA expressed it in Coe, to have mounted the witness box and explained the mysteries surrounding charges which had been found to be grossly excessive. In my opinion the failure of the respondent to give sworn evidence was inexcusable.”
82 In the opinion of the Tribunal it is equally inappropriate for the respondent to seek to provide evidence of his intentions at the relevant time, by putting before the Tribunal transcript of the explanation he gave in the course of his trial on criminal charges arising from these events, and a letter to the Law Society of New South Wales, both of which came into existence approximately 5 years ago and approximately 3 years after the conduct the subject matter of these complaints.
“In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.”
83 The applicant submits that the Tribunal should draw a Jones v. Dunkel inference against the respondent having regard to his failure to enter the witness box. That is opposed by the respondent on the grounds that the applicant having declined to tender the respondent’s evidence at his criminal trial and the letter he sent to the Law Society on April 2003, has deprived the respondent of the opportunity to have his explanation before the Tribunal. In those circumstances it is argued, as a matter of fairness, that the respondent should not be subject to an adverse finding on the Jones v. Dunkel principle.
84 The Tribunal is not persuaded by that argument. The Tribunal is of the view that the only inference that can be drawn from the respondent’s failure to enter the witness box and give sworn testimony before the Tribunal concerning his intentions at the relevant times is that such evidence would not have assisted the respondent on the issues before the Tribunal.
85 The respondent seeks to persuade the Tribunal that there should not be a finding that the respondent intended to act in pursuance of the intention expressed by his words.
86 It is a rule of construction that words are to be taken to mean what they say. The applicant is entitled to rely upon that basic proposition absent any evidence to the contrary. No such evidence is available. The mere absence of evidence of any actions on the part of the respondent to carry out his stated intentions, cannot stand as a refutation of the proposition that he meant what he said.
87 The respondent may or may not have approached Patison in the brief time that elapsed between their telephone conversation on 5 December 2000 and Patison's arrest on or about 17 December 2000. There is no evidence that he did, and Patison was under surveillance during that period. The issue for the Tribunal is not whether he did approach Patison in accordance with his assertion to Benbow on 5 December 2000 that:
“…Dave’s probably gonna … put his neck out and he’ll want some recompense for it but just as to what I don’t know yet … I’ll discuss that with him in due course …”
The issue is whether the Tribunal is satisfied on the evidence that the respondent intended, on the 14 November 2000 and 5 December 2000, to act in accordance with his assertions to Benbow.
88 The respondent and only the respondent was in a position to tell the Tribunal, in evidence, what he intended. He did not give evidence. His words must stand, and the intention expressed in those words must be taken to be his intention at the relevant time.
89 In respect of Ground 1(b) it is submitted that having regard to the entirety of the conversation concerning payment of the respondent’s professional fees, and to his actions in sending a bill of costs in May of the following year, the Tribunal could not be satisfied that this ground has been established as pleaded by the applicant.
90 The Tribunal, whilst accepting that the respondent continued to act for Benbow until April 2001, is not required to guess or speculate as to what might or might not have transpired between the respondent and Benbow following Patison’s arrest, nor what prompted the respondent to render a Tax Invoice on 8 May 2001.
91 The Tribunal is satisfied that the discussion with Benbow leads to an inevitable conclusion that as at 14 November 2000, the respondent had in contemplation that his fees would be covered by money received in cash from Patison, being so much of the $31,000 as Patison returned to Benbow. Further, that such fees would not be the subject of a formal solicitor/client memorandum of fees, which would attract GST, and that the issue of quantum would be deferred to a later date.
92 There is no basis upon which the Tribunal would accede to the respondent’s suggested amendment to Ground 1(b), (see paragraph 4 above) and the Tribunal declines to make such an amendment.
93 It is submitted on behalf of the respondent that the telephone conversations between Patison and the respondent on 25 October, 17 & 20 November 2000 do not disclose corrupt dealings. Further it is argued that the conversation on 14 November 2000 contains the assertion by the respondent that:
“… I won’t talk to him [Patison]”.
That, however, ignores his later assertion that he will broach the matter with Patison.
94 There is no evidence that the respondent took steps to act on his suggestion to Benbow that he would approach Patison. That is not, however, the issue which falls to be decided by this Tribunal. That issue is whether the Tribunal can be satisfied to the requisite standard [Briginishaw] that the respondent intended to act in accordance with his spoken words.
95 The Tribunal finds nothing in the conversation to suggest other than that the respondent intended the words he spoke and, in the absence of any evidence to suggest the contrary, must be taken to have intended the plain and ordinary meaning of those words.
96 The Tribunal is satisfied to the requisite standard, [Briginshaw] that at the time the respondent spoke the words that constitute each of the grounds of complaint, and such other words as are contained in the recorded conversations, not only were the words spoken, but the respondent intended both to say those words, and to act upon his expressed intention. Whether or not he did so is not a matter that arises. The complaint is in each case, restricted to the words spoken on 14 November 2000 and 5 December 2000. Those words, in the absence of an explanation from the respondent, must be taken to be expressions of the intention held by the respondent at the relevant time.
97 The Tribunal is satisfied, accordingly, that the applicant has discharged the onus upon it to persuade the Tribunal that not only were the words spoken, but that the respondent, at the time he uttered them, intended to act upon them.
98 The applicant asks that the Tribunal finds that each of the grounds have been made out, and that the respondent is, on each count, guilty of professional misconduct. A finding of professional misconduct in relation to each ground is not disputed by the respondent. That concession is, however, limited to a finding that the utterance of the words recorded in each of the subject conversations must lead to a finding of professional misconduct, but does not extend to a concession that the respondent intended to act upon those words. As previously indicated, that argument does not find favour with the Tribunal.
99 Section 497 of the Legal Profession Act 2004 provides:
(1) For the purposes of this Act:
professional misconduct includes:
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in sub-section (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.
i. The conversations recorded between the respondent and Benbow on 14 November 2000 and 5 December 2000, accurately record what passed between the 2 men on each of those days.
ii. In the conversation of 14 November 2000, the respondent advised Benbow that the respondent would approach Patison about obtaining the return of a portion of a sum of $31,000 that had been confiscated by police in a raid on Benbow’s home on or about 24 August 2000. The amount to be returned to Benbow and the amount to be retained by Patison to be negotiated. The payment to Patison being in return for the money that would be restored to Benbow, and the anticipated dropping of a Goods in Custody charge against Benbow.
iii. The respondent would not raise a Tax Invoice for his services, nor charge 10% GST for his services, including his part in recovering some portion of the money for Benbow. The respondent would, however, take his fees from the money returned to Benbow.
iv. In the conversation on 5 December 2000, the respondent advised Benbow that he would discuss with Patison what proportion of the $31,000 Patison would retain to recompense him for taking steps to procure the dropping of the criminal Goods in Custody charge.
v. The Tribunal is satisfied that in each conversation the words spoken by the respondent have their usual, commonly accepted meaning.
vi. The Tribunal is satisfied that in the absence of any evidence to rebut the presumption, the words spoken must be taken to have their ordinary and natural meaning, which, in turn, must lead to a finding that the respondent intended to act in accordance with those words.
vii. The respondent is guilty of professional misconduct in respect of Ground 1(a) and (b) and Ground 2.
100 The matter is listed for Directions on 18 June 2008 to determine a timetable for the hearing on penalty listed for 23 July 2008.
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