LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and TROWELL
[2009] WASAT 42
•13 MARCH 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PRACTICE ACT 2003 (WA)
CITATION: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and TROWELL [2009] WASAT 42
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR C EDMONDS SC (SENIOR SESSIONAL MEMBER)
MS B HOLLAND (SESSIONAL MEMBER)
HEARD: 15 - 19 SEPTEMBER 2008
FINAL WRITTEN SUBMISSIONS RECEIVED 18 NOVEMBER 2008
DELIVERED : 13 MARCH 2009
FILE NO/S: VR 177 of 2007
BETWEEN: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Applicant
AND
MARK TERENCE TROWELL
Respondent
Catchwords:
Legal practitioner - Disciplinary proceedings - Unprofessional conduct - Commonwealth Attorney General requesting a legal practitioner, being a Queen's Counsel, on a pro bono basis to assist Australian woman in prison in Bali - Practitioner issuing a press release and making other statements to the media about the matter - Practitioner and fellow barrister meeting with woman's lawyers in Bali - Practitioner and fellow barrister meeting with woman in prison - Whether there was jurisdiction to find unprofessional conduct given the connection with the law and practice of Bali - Operation of the rules in Briginshaw v Briginshaw and Jones v Dunkel - The barrister and client relationship - Whether woman was a client or prospective client of the practitioner - Whether the statements to the media contained confidential information - Whether an obligation of confidence could attach to a statement made concerning an alleged bribery proposal - Whether the statements made to the media were without the informed consent of client - Whether client gave implied authorisation for the statements - Whether the practitioner believed the statements made were in the client's best interests - Whether the making of the statements in the circumstances constituted unprofessional conduct
Legislation:
Australia Act 1986 (Cth)
Constitution Act 1889 (WA)
Legal Practice Act 2003 (WA), s 164, Pt 12
State Administrative Tribunal Act 2004 (WA), s 32, Pt 4
Law Society of Western Australia Professional Conduct Rules 1983 (WA), r 4.5, r 6.3
Western Australia Bar Association Conduct Rules
Result:
The respondent is guilty of unprofessional conduct
Category: A
Representation:
Counsel:
Applicant: Mr SD Hall SC and Mr S Davies
Respondent: Mr MJ McCusker AO, QC and Ms A Plaisted
Solicitors:
Applicant: Legal Practitioners Complaints Committee
Respondent: Stables Scott
Case(s) referred to in decision(s):
A v Haydn (1984) 156 CLR 532
Allied Mills Industries Pty Ltd v Trade Practices Commission (No 1) (1981) 55 FLR 125
Apple v Wily [2002] NSWSC 855
Attorney General for the Northern Territory v Kearney [1985] 59 ALJR 749
Attorney-General v Guardian Newspapers (No. 2) [1988] UKHL 6; [1990] 1 AC 109
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67 (HL)
Castrol Australia Pty Ltd v Em Tech Association Pty Ltd (1980) 51 FLR 184
Corrs Pavey Whiting & Byrne v Collector of Customs (VIC) (1987) 14 FCR 434
Dimos v Hanos and Egan [2001] VSC 173
Gartside v Outram (1856) 26 LJ (NS) 113
Hawksford v Hawksford [2008] NSWSC 31
Initial Services Ltd v Putterill [1968] 1 QB 396
Jones v Dunkel (1959) 101 CLR 298
Kennedy v Wallace [2004] FCA 332; (2004) 208 ALR 424
Kennedy v Wallace [2004] FCAFC 337; (2004) 213 ALR 108
Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56
Law Society of New South Wales v Glenorcy Pty Ltd [2006] NSWCA 250; (2006) 67 NSWLR 169
Macpherson and Kelly v Kevin J Prunty and Associates [1983] 1 VR 573
Minter v Priest [1930] AC 558
Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
New South Wales Bar Association v Kalaf (unreported, Supreme Court of NSW, Court of Appeal, 12 October 1987; BC 8801429)
Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507
R v Cox and Railton (1884) 14 QBD 153
Rejfek v McElroy (1965) 112 CLR 517
Smith v Samuels (1976) 12 SASR 573
The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239
Union Steamship Company of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1
REASONS FOR DECISION OF THE TRIBUNAL:
HEADING: | PAGE: |
Summary of Tribunal's decision | 6 |
Outline | 7 |
PART I - Preliminary | 7 |
The reference to SAT | 7 |
| Jurisdiction - extraterritoriality - Indonesian law | 8 |
| Outline of facts and factual disputes | 12 |
The principal issues | 17 |
| 1. Was Ms Corby a client or prospective client of the practitioner? | 17 |
| 2. Did the practitioner disclose confidential information and were such disclosures and statements to the media made without consent? | 19 |
| 3. Did the disclosures and statements to the media constitute unsatisfactory conduct? | 19 |
The evidence – some legal issues | 20 |
The standard of proof – Briginshaw | 20 |
| LPCC's failure to call witnesses – Jones v Dunkel | 23 |
Failure to call Ms Corby | 24 |
| Ms Corby; the circumstances - application of the principles | 25 |
Mr Laskaris | 28 |
Mr Rasiah, Ms Lubis | 30 |
The rule in Browne v Dunn | 30 |
The status of the media reports | 31 |
Credibility - the practitioner | 33 |
| Credibility - Mr Percy and Mr Davies | 40 |
Credibility - Mr Percy | 41 |
Credibility - Mr Davies | 42 |
PART II - Client | 43 |
| Was Ms Corby a client or prospective client of the practitioner? | 43 |
The parties' contentions | 43 |
| The relationship between barrister and client - the legal principles | 45 |
| The evidence as to the relationship between the practitioner and Ms Corby | 47 |
| The request from the Commonwealth government | 47 |
| Involvement of Messrs Percy and Davies | 56 |
| Mr Percy and Mr Davies' visit to Bali on 27 May 2005 | 58 |
| Press release – events of early June 2005 | 65 |
| Conclusion - did Ms Corby become a client of the practitioner on 29 May 2005? | 71 |
| The practitioner's visit to Bali on 3-6 June 2005 | 73 |
| Practitioner's meetings with Bali legal team on 3 June 2005 | 74 |
| Conclusion - did Ms Corby become a client of the practitioner on 3 June 2005? | 80 |
| Meeting with AFP, media and consular officials on 4 June | 81 |
| Meeting with Michael and Mercedes Corby on 4 June | 82 |
| Conversation with Mr Rasiah on 5 June | 83 |
| Meeting with Ms Corby at prison on 6 June | 83 |
| Practitioner’s discussions with media outside Kerobokan prison | 90 |
Departure from Bali on 6 June | 91 |
Meeting with Mr Rasiah on 10 June | 92 |
| Practitioner's subsequent media statements and documents concerning his meeting with Ms Corby and his role in the appeal | 94 |
| Conclusion - did Ms Corby become a client of the practitioner on 6 June 2005? | 100 |
Pt III - Breach | 105 |
| Confidentiality - the competing contentions | 105 |
| Professional duty of confidentiality | 107 |
No confidence in iniquity | 109 |
Statements to the media | 113 |
Ms Corby's informed consent | 114 |
Approach to the issue | 115 |
| Fourth disclosure: statements published on 12 June 2005 - journalist Catherine Munro | 116 |
| Fifth disclosure: statements published on 12 June 2005 - journalist Nick Taylor | 120 |
| Sixth disclosure: statements published on 14 June 2005 - journalist Holly Nott | 121 |
| Seventh disclosure: statements published on 14 June 2005 - journalist Steve Pennells | 123 |
| Eighth disclosure: statements published on 23 June 2005 - journalist Steve Pennells | 124 |
Unprofessional conduct | 131 |
Conclusion | 134 |
Orders | 135 |
Summary of Tribunal's decision
Mr Trowell is a legal practitioner and Queen's Counsel practising criminal law in Perth. In March 2005, he was asked by the Commonwealth Attorney General whether he would assist in relation to the case of Ms Schapelle Corby. He agreed. During May and June 2005 the practitioner made a number of statements to the Australian media concerning Ms Corby.
The Legal Practitioners Complaints Committee brought a charge of unprofessional conduct against Mr Trowell on the basis that at the time he made the statements to the media, Ms Corby was his client or his prospective client, and in doing so he disclosed confidential information and made statements to the media without her informed consent.
Mr Trowell raised a jurisdictional argument based on the (alleged) lawyer client relationship with Ms Corby being formed in Bali. The Tribunal rejected this argument. Mr Trowell's substantive defences to the charge were, first, that Ms Corby was never his client nor his prospective client and he did not make the statements in that capacity. Alternatively, if Ms Corby was his client or prospective client, the statements made did not disclose information confidential to Ms Corby, or to the extent they did, he obtained her informed consent under a general authority he had from her to act in her best interests. In relation to one particular statement, Mr Trowell argued no obligation of confidence could attach to it, as it concerned a proposal by one of Ms Corby's Bali legal team to pay a bribe. Finally, Mr Trowell submitted that if otherwise established, the disclosures made did not constitute unprofessional conduct to the extent that he believed the government was and Ms Corby was not his client and that the disclosures were in her best interests and would assist her.
The Tribunal, having considered the evidence, found that at the time Mr Trowell visited Ms Corby in prison, Ms Corby retained and became the client of Mr Trowell.
The Tribunal considered the five relevant disclosures made by Mr Trowell and found that they comprised statements made by Mr Trowell, they disclosed information confidential to Ms Corby's matter and they were not revealed with Ms Corby's consent. The Tribunal rejected the submission that professional obligations of confidence did not attach to the statements disclosing a claim of bribery. The Tribunal accepted Mr Trowell's evidence that he believed that Ms Corby was not his client, but did not accept his evidence that in making the statements he believed that the statements were in her best interests and would assist her.
Having regard to the content of the statements and the circumstances and motivation of their making the Tribunal found that Mr Trowell was guilty of unprofessional conduct. The Tribunal sought submissions as to penalty.
Outline
These reasons fall into three parts. Part 1 Preliminary covers jurisdictional matters, gives an outline of the facts and factual disputes, identifies the three principal issues, addresses the principal evidentiary arguments and makes some observations on credibility. Part II Client is directed at the first principal issue, whether Ms Corby was a client or prospect client of the practitioner. It addresses first the parties' contentions and legal concepts. Then in broadly chronological order it examines the approach from the Attorney General, the involvement of Messrs Percy and Davies and their visit to Bali, the practitioner's press release and visit to Bali, and events on his return to Perth. Part III Breach addresses the two remaining principal issues of confidentiality and making of statements to the media, and unprofessional conduct. It considers first the legal issues relating to these subjects. It then examines each of the relevant media statements. Finally, it examines whether in the circumstances the making of the statements constituted unprofessional conduct.
PART I - Preliminary
The reference to SAT
Pursuant to the provisions of Pt 12 of the Legal Practice Act 2003 (WA) (LP Act), the Legal Practitioners Complaints Committee (LPCC) instituted professional disciplinary proceedings before this Tribunal against the respondent legal practitioner (the practitioner). There was no complaint made against the practitioner but, pursuant to its powers under s 164 of the LP Act, the LPCC inquired into certain conduct of the practitioner for the purpose of determining whether this constituted unsatisfactory conduct under the LP Act. Thereafter, by application dated 12 September 2007, the LPCC instituted these proceedings seeking orders that the Tribunal: (1) make a finding that the practitioner was guilty of such conduct; (2) impose a penalty; and (3) order the practitioner to pay the applicant's costs.
The Grounds of the application are that the practitioner was guilty of unsatisfactory conduct by unprofessional conduct between 1 May 2005 and 30 June 2005 (the relevant period) in: (1) disclosing material and or information confidential to his client or prospective client; and/or (2) making statements, including statements of his opinion, to the media about his client's or prospective client's matter; in each case without the client's or prospective client's informed consent.
This Tribunal has jurisdiction to hear and determine this application pursuant to the provisions of the LP Act and Pt 4 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Jurisdiction - extraterritoriality - Indonesian law
As is explained below, the threshold issue in this application is whether the LPCC has established that Ms Corby was the client or prospective client of the practitioner. To the extent such a relationship was formed, this took place in Indonesia, although the relevant conduct, the disclosure of confidential information and statements to the media, largely took place within Australia (one disclosure was made from Bali). In this context the practitioner has raised several jurisdictional arguments.
In his response (December 2007) the practitioner submitted that any obligation he owed to Ms Corby was governed by a foreign law, namely the 'proper law of Indonesia' (sic). At the hearing no oral submissions were made in support of this claim.
In his written closing submissions under the heading 'Jurisdiction Question', Mr McCusker QC for the practitioner put the argument (in summary and without the helpful authorities referred to) as follows:
1)The Western Australian Parliament is given broad legislative power to make laws for the peace order and good government of the (then) colony of Western Australia (s 2(1) Constitution Act 1889 (WA));
2)There is a territorial limitation inherent in the grant of legislative power. Western Australia may only legislate for persons, events or things outside Australia, where the subject of the legislation is sufficiently connected to Western Australia. Although s 2(1) of the Australia Act 1986 (Cth) declares that each State has power to make laws having an extraterritorial operation, such laws are required to be laws for the 'peace order and good government of the State';
3)The practice in Western Australia of legal practitioners founds jurisdiction over the capacity of the regulator to regulate their practice. However, there must be limits to that;
4)If a Western Australian practitioner's conduct overseas constitutes unprofessional conduct overseas, there may be jurisdiction to deal with that;
[We accept those submissions.]
5)If a Western Australian practitioner's conduct overseas does not constitute unprofessional conduct overseas, even if it could constitute unprofessional conduct in Western Australia, 'it does not follow that the practitioner would be guilty of unprofessional conduct'; and
6)There is no evidence as to whether there would be a duty of confidence owed by the practitioner in the circumstances of this case under Indonesian/Balinese law.
The LPCC's outline of closing submissions on this subject was confined to the question raised in the practitioner’s response; that is, whether the proper law of the contract was Indonesia. That is not, as we understand, the basis of the argument as put in the practitioner's written closing submissions and was, accordingly, of limited assistance.
There are difficulties with the practitioner's submissions. The first is that the conclusion ('it does not follow that the practitioner would be guilty of unprofessional conduct' in Western Australia) does not appear to follow logically from the premises identifying the constitutional powers (which may generally be accepted as correct). If, as the practitioner recognises, the regulator has or may have jurisdiction with respect to a practitioner's conduct an aspect of which takes place overseas, then of itself the status of the conduct overseas would not seem relevant. That is, it does not follow as a necessary inference that if the conduct was viewed overseas as being acceptable, the practitioner would not be guilty of unprofessional conduct in Western Australia. It does not seem open to suggest that some form of ethical relativism operates such that a local practitioner's conduct overseas might be judged only by the standards of that country. How the conduct of the Western Australian practitioner is viewed here according to the standards of 'members of the profession of good repute and competence' remains the relevant enquiry. That is so even if the relationship of lawyer and client is created overseas.
The second difficulty with the submissions concerns the nature of the argument. That is, whether it is intended as a constitutional challenge to the power of the legislature to enact the LP Act to the extent it has extraterritorial operation with respect to conduct of a Western Australian legal practitioner overseas; or whether it goes to a question of construction of the LP Act, that is, whether in the circumstances it is intended to have such operation.
To the extent the argument goes to validity (that is, being a 'Jurisdiction Question'), the Tribunal's position may be put in general terms (as were the submissions) as follows. As the submissions record, the legislative authority of the Western Australia Parliament under the Constitution Act 1889 is to make laws for the peace, order and good government of Western Australia. These words do not constitute words of limitation. Specifically, they do not confine the power to make laws which operate only to persons or events within the State. Again as the submissions note, that the State legislatures have power to make laws with extraterritorial operation is recognised in the Australia Act 1986 (Cth). As to the extent of that power, the somewhat vague expression peace order and good government has been interpreted to mean that there must be a real connection between the subject matter of the legislation and the State. Whilst such a legislative power therefore requires a relevant territorial connection, and this requirement is perhaps also embedded in the federal structure of the government of Australia of which each State is a part, the test of relevance is to be applied liberally and even a remote or general connection will suffice. Pearce v Florenca[1976] HCA 26; (1976) 135 CLR 507; Union Steamship Company of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1; Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1. For reasons given, there is here a direct and specific connection based upon the practitioner's admission and practice in Western Australia (and also in this case, the extent to which the conduct complained of took place here).
To the extent the argument is intended to operate as a matter of statutory interpretation, that is, to confining the operation of the general language to a subject matter under the effective control of the legislature (or perhaps as invoking the common law presumption against extraterritorial operation), it is clear, in our opinion, that the LP Act does so. The relevant provisions of the LP Act provide for the LPCC to inquire into complaints and the conduct of a practitioner and refer the matter to the Tribunal, based upon her or his being admitted in Western Australia (as here) or being an interstate practitioner practising in Western Australia. That an aspect of the conduct was carried out overseas does not of itself deny jurisdiction as the submissions recognise. More specifically, there is nothing in the definition of unsatisfactory conduct in s 3 of the LP Act or Pt 12 generally which suggests it is limited to conduct exclusively undertaken in Western Australia. It would be easy to imagine circumstances where critical aspects of a practitioner's conduct (the use of a client's money) took place overseas. That could not deny the LPCC jurisdiction. Law Society of New South Wales v Glenorcy Pty Ltd [2006] NSWCA 250; (2006) 67 NSWLR 169, a case referred to by Mr McCusker.
But in any event, notwithstanding that (if proved) the relationship was formed overseas, the practitioner's unauthorised disclosure of the client's confidential information and statements to the media (if proved) took place (with one exception) in Western Australia and (so it is alleged) constituted unprofessional conduct. There could be no question that the LPCC and the Tribunal has jurisdiction in respect of that conduct. That being so, the question of where the relationship was formed, and according to what system of law, does not seem material and certainly not decisive. Further, to the extent relevant, we accept the LPCC's submissions that the proper law of the contract and of the professional obligation of confidence was Western Australia rather than Indonesia. That is, the contract and obligation had its closest and most substantial connection to Western Australian law. We note on this aspect in relation to a claim for privilege: Kennedy v Wallace [2004] FCA 332; (2004) 208 ALR 424 (Kennedy) at [51]-[52].
The final difficulty with the argument is the concluding part of the practitioner's submissions concerning the law (and practice) of Bali/Indonesia with respect to a lawyer's disclosure of confidential information. The general principles governing conflicts of laws include that:
1)the burden of proof lies on the party claiming that foreign law departs from the law of Western Australia; and
2)in the absence of proof to the contrary, foreign law is presumed to be the same as local law.
No reasons have been advanced why these principles ought not apply in the circumstances, even if the second rule might be said to be subject to some difficulties. That would suggest the presumption (or the 'default position') operates such that the law and practice of Bali/Indonesia proscribes the conduct to the extent that it is proscribed here.
We should say for completeness that we have read the judgments in Kennedy: on appeal Kennedy v Wallace [2004] FCAFC 337; (2004) 213 ALR 108. These decisions were cited by Mr McCusker in support of the argument that regard must be had to how the issue would be considered overseas. We understand the basis for referring to these decisions by way of analogy, but in the event do not find them to be of assistance. First, because the subject, legal professional privilege, is conceptually different. Practical issues would necessarily arise where the document was privileged in one country but not in another. Second, because the primary judge raised the issue but made no statements of principle and decided the matter on the facts. Third, because on appeal, the issue of the relevance of privilege under the foreign law was left largely undiscussed and expressly undecided - as a 'difficult question' (see on appeal at [204], [214], [62]).
To the extent the conclusion contended for may be said to reflect professional standards generally, we mention that it has been addressed by the Code of Conduct of the Bar of England and Wales. Barristers engaging in 'international work' are relieved from some of the requirements of the Code. Such work is defined relevantly as being work which:
1)relates to matters or proceedings essentially arising, taking place or contemplated outside England; and
2)is to be substantially performed outside England.
Here relevantly, the practitioner’s services were substantially to be performed within Australia.
For these reasons we reject the practitioner's submissions on the subject of jurisdiction.
Outline of facts and factual disputes
The practitioner is a Queen's Counsel specialising in criminal law. During 2005 he shared chambers in Perth with Mr Thomas Percy QC and Mr Jonathan Davies, both barristers also practising in the area of criminal law.
In March 2005, Ms Schapelle Corby, an Australian citizen from Queensland, was on trial in the District Court of Bali on a charge of importing a prohibited drug. Conviction for that offence carried severe penalties including the death sentence. Ms Corby was represented by solicitors in Queensland and a 'legal team' in Bali (the Bali legal team). She maintained throughout that she was innocent of the charge against her.
At this time the practitioner was approached by the Commonwealth Attorney General (Attorney General) on behalf of the Commonwealth government (the government) and asked whether on a 'pro bono' basis he would assist Ms Corby in relation to her trial (and subsequently in relation to her appeal). The practitioner agreed to do so. The nature of the brief from the government is disputed. What seems clear is that the arrangement was very informal. That is reflected in the practitioner shortly thereafter, without the express authority of the Attorney General, enlisting the assistance of Mr Percy (and subsequently another Perth barrister Mr Philip Laskaris) in this undertaking. Mr Percy in turn enlisted the support of Mr Davies.
The practitioner left messages with Ms Corby's Queensland lawyers that Mr Percy and he were available to assist. There was no response.
The plight of Ms Corby attracted intense media attention in Australia. From April 2005, the first of a series of newspaper articles reported on the involvement of the practitioner and Mr Percy in Ms Corby's trial and subsequent appeal. Such articles, television and radio interviews (media reports) relevantly continued through to the end of June 2005. The LPCC, in part, relies on the media reports as evidence that the practitioner had been retained by Ms Corby and as revealing the disclosure of confidential information and the making of statements to the media. For his part, the practitioner accepts that he made statements to the media to the extent they are directly quoted in the media reports. There is considerable disagreement between the parties as to the inferences to be drawn from these statements in relation to these issues. The practitioner says that:
1)the statements were not made by him as Ms Corby's lawyer because he was never retained by her;
2)the statements did not disclose matters confidential to her; and
3)to the extent Ms Corby was his client and he did disclose her confidential matters, she impliedly authorised the statements.
On 27 May 2005, Ms Corby was found guilty by the District Court in Bali and sentenced to 20 years imprisonment. It appears she then had seven days to give a notice of appeal and 14 days thereafter to file the appeal. At this time Ms Corby asked the Australian consul in Bali if she could see the practitioner or Mr Percy.
At the time of the verdict, Mr Percy and Mr Davies were in Bali on another matter. On 29 May 2005, at the request of Ms Corby’s family, they met with Ms Corby's Bali legal team. Mr Davies prepared an extensive memorandum of this meeting. There is an issue as to the extent this reflected what was said at the meeting. There is also a dispute as to the extent to which Mr Percy and Mr Davies represented the practitioner at this meeting. Upon their return to Perth, Mr Davies sent a letter, for which approval was sought and apparently provided by the practitioner, to the Bali legal team, requesting copies of a transcript of the trial, in effect to enable the Perth team to assist in relation to the appeal.
The LPCC alleges that, in these circumstances, from 29 May 2005, the practitioner (together with Mr Percy and Mr Davies ) was retained by Ms Corby or she then became a prospective client of the practitioner. The practitioner denies this.
On 31 May 2005, the practitioner, without any prior communication with Ms Corby or the Bali legal team, prepared and issued a press release which related to Ms Corby's situation and her appeal. This is the first of the alleged eight disclosures of Ms Corby's confidential information and/or making unauthorised statements to the media (we refer collectively to these as 'disclosures', or where the second aspect is separately considered, 'statements to the media').
On 1 June 2005, the practitioner spoke to a radio interviewer about Ms Corby's appeal. This is the second complaint of disclosure. Also, on that day, Ms Corby made a telephone call to Mr Davies. On the following day, Mr Rasiah, one of the Bali legal team (the 'case manager' rather than a lawyer), was reported in the newspapers as criticising the practitioner and Mr Percy because of the public comments they had made about the case. This is one of several instances where the practitioner and Mr Rasiah publicly criticised one another's contribution and involvement in the case.
Over the long weekend of 3 - 6 June 2005, the practitioner and Mr Laskaris, pursuant to Ms Corby's request, at their own cost, travelled to Bali to visit Ms Corby. The LPCC alleges Mr Laskaris made this visit in his capacity as the practitioner's junior. The practitioner maintains that Mr Laskaris, at this time his junior in a case in Perth, asked to accompany him and came merely out of personal interest. The practitioner asserted in his evidence that the sole purpose of his visit to Ms Corby was to reassure her that the government was doing all it could for her. Based on contemporaneous accounts of the matter, the LPCC challenges this position and argues that the purpose was to provide Ms Corby and her legal team with legal assistance in relation to her appeal.
On Friday, 3 June 2005 the Perth barristers met with Ms Corby's Bali legal team and discussed her case. The Bali legal team sought assistance from the Australian government in the form of it producing evidence relating to Ms Corby's appeal. The practitioner made certain proposals concerning the appointment of an appeal lawyer from Jakarta. The extent to which they discussed the appeal and whether the practitioner offered to assist is disputed. The LPCC alleges (alternatively) that the practitioner was retained by Ms Corby at this meeting or she then became a prospective client of the practitioner. Following the meeting, the practitioner spoke to a journalist about the meeting and Ms Corby's appeal. This is the third complaint of disclosure.
On Monday, 6 June 2005, the practitioner and Mr Laskaris met with Ms Corby in prison. A number of matters concerning her present situation and her appeal were discussed. The practitioner gives different accounts of this meeting (considered below). In his witness statement and by his oral evidence he says that he told Ms Corby that he was not there to give legal advice or assistance and could not act for her and that she understood this. The LPCC challenges this version of events. The LPCC alleges (in the further alternative) that the practitioner was retained by Ms Corby at this meeting or she then became a prospective client of the practitioner.
The practitioner says that on two occasions over this weekend, Mr Rasiah raised with him the suggestion that the government provide money in order to bribe the Bali judges hearing the appeal as being the only way this would be resolved. The practitioner says that he made clear to Mr Rasiah that this would never happen. Mr Rasiah subsequently denied this allegation against him. The practitioner says also that he learned during the visit that Mr Rasiah had made an attempt during the trial to bribe the judges and prosecutors. The practitioner says that at the time of his departure Mr Rasiah gave him a draft letter for the Australian government, requesting funds for the appeal, including $500,000 for 'lobbying'. The practitioner believed this was code for money to bribe the judges. Mr Rasiah was not called at this hearing. We will assume in favour of the practitioner, without making any express finding on the point, that the practitioner believed that Mr Rasiah had made such attempt during the trial and that over the weekend Mr Rasiah had made suggestions concerning the government providing money for such purpose, including, as the practitioner believed, in his draft letter. Following his return to Perth, the practitioner emailed Mr Rasiah that the government would require an explanation for this item. He said this was for the purpose of 'flushing out' the suggestion of money for bribery.
Mr Rasiah flew to Perth on 10 June 2005. He met the practitioner and gave him a 'final' letter to the government which omitted any request for money for 'lobbying'. There is evidence that at the meeting Mr Rasiah eschewed any further suggestion of bribery, but some evidence that on a social occasion that evening he raised the subject with Mr Davies.
On the following day, 11 June 2005, the practitioner again spoke to two journalists about Ms Corby's appeal. These comprise the fourth and fifth complaints of disclosures. In the media articles published the following day, the practitioner is reported as complaining about the delay of the Bali legal team in providing draft grounds of appeal. They also report the practitioner saying that Mr Rasiah had first provided a draft letter containing a request for financial assistance in respect of a particular item, which item was omitted from the final form of this letter.
Again, on 13 June 2005, the practitioner spoke to two journalists about Ms Corby's appeal, it is alleged making similar and related comments, including that the services of Mr Percy and the practitioner had not been availed of in relation to the appeal. These comprise the sixth and seventh complaints of disclosure and statements to the media.
On 14 June 2005, the Bali legal team filed the appeal.
On 22 June 2005, the practitioner again spoke to a journalist about Ms Corby's appeal. This included express reference to Mr Rasiah seeking $500,000 from the Australian government for the purpose of bribing the Bali judges. This is the eighth complaint of disclosure. The practitioner said in evidence that in the course of this conversation the journalist disclosed that he knew of the bribery allegation and was going to print the story in any event. The practitioner said there were good reasons for making the disclosure in the interests of himself, the government and Ms Corby. The LPCC challenges the need for the practitioner to disclose the bribery suggestion. Following the newspaper report of the practitioner's allegations, there was extensive publication of the story. On 24 June 2005 Ms Corby dismissed her Bali legal team, although the team, or members of it, were reinstated shortly thereafter.
Some days later the LPCC wrote to the practitioner raising its concerns about his conduct and specifically whether there had been a disclosure of Ms Corby's confidential information.
The principal issues
It is important to appreciate the nature of the LPCC’s case against the practitioner. The unprofessional conduct complained of is the practitioner's disclosure of his client's or prospective client's confidential information and statements to the media, in each case without his client's or prospective client's consent. The LPCC has not put its case or an alternative case, on the basis of the disclosure of confidential information of a person (Ms Corby) to whom the practitioner in the circumstances owed a duty of confidence (as to which see r 95 of the Conduct Rules of the Western Australia Bar Association).Neither has the LPCC sought to define client in this context by reference to the relevant duties owed by a legal practitioner to a person who is the beneficiary of these duties. Rather, it has proceeded on the basis that the person to whom these duties were owed (Ms Corby) was a client of the practitioner in the sense of a person who actually retained the practitioner so as to create a lawyer client relationship; or alternatively was a prospective client in the sense that information was imparted to the practitioner with a view to his being actually retained by Ms Corby in a lawyer client relationship. It may be that there were reasons (not disclosed to us) why the LPCC so proceeded. Perhaps it was thought necessary to so proceed in order to rely on the 'statements to the media' professional conduct rule. In any event, it has resulted in much of the hearing and the parties' submissions being directed to the issue whether a lawyer client relationship or prospective lawyer client relationship was made.
There are in consequence three principal legal and factual issues which require resolution:
Was Ms Corby a client or prospective client of the practitioner?
The LPCC states in its statement of issues, facts and contentions (the LPCC statement) that the practitioner was retained by Ms Corby as at:
1)29 May 2005 (the meeting between Messrs Percy and Davies and the Bali legal team);
2)3 June 2005 (the meeting between the practitioner and the Bali legal team); and
3)6 June 2005 (the meeting between the practitioner and Ms Corby).
The practitioner responds in his response and his statement of issues, facts and contentions (the practitioner's statement) that he was retained by the Australian government and that at no time was he retained by Ms Corby.
The LPCC alleges, in the alternative to the claim that Ms Corby retained the practitioner on the dates mentioned, that Ms Corby was a prospective client of the practitioner up to:
1)4 June 2005;
2)6 June 2005; or
3)29 June 2005;
The LPCC's case in relation to these alternative dates appears to be that Ms Corby was a prospective client on whose behalf the practitioner received confidential information:
1)as at 4 June 2005 (this should probably refer to 3 June 2005), at which time, following the practitioner's meeting with the Bali legal team on that date, she became an 'actual' client;
2)alternatively as at 6 June 2005, at which time following the practitioner's meeting with Ms Corby on that date she became an actual client; and
3)up to 29 June 2005, on the basis that Ms Corby never became an actual client.
The practitioner maintains that at no time was Ms Corby his prospective client.
The issue for the Tribunal is whether Ms Corby was the client or prospective client of the practitioner in the sense we have indicated at the times alleged. It will be apparent from the way that the LPCC has framed its case, that in the event our finding is that Ms Corby was not a client or prospective client, then the application must fail.
Did the practitioner disclose confidential information and were the disclosures and statements to the media made without consent?
The LPCC makes eight specific complaints of disclosure of confidential information (each disclosure containing a number of identified statements) or the making of statements to the media, in each case without the client's or prospective client's consent. The LPCC's case of unauthorised statements to the media does not depend on the statements containing confidential information.
The practitioner disputes the making of some of the statements and maintains generally with respect to the charges that:
1)the information was not given to him by or on behalf of Ms Corby;
2)the information was not given in confidence by or on behalf of Ms Corby; and
3)if there was disclosure of confidential information or statements to the media, he had Ms Corby's (informed) consent to make the disclosures and statements under a general authority given by her on 6 June 2005 to do whatever he thought best to protect her interests.
Further, with respect to the eighth complaint of disclosure (22 June 2005), the practitioner says that the material or information within the statements was a proposal by a third party, Mr Rasiah (meaning it was not on behalf of Ms Corby), to attempt to procure money from the Australian government to bribe the Balinese judiciary, such that no confidence could attach to that communication.
Did the disclosures and statements to the media constitute unsatisfactory conduct?
The LPCC claims that the disclosures and statements to the media constituted unprofessional conduct within the second limb of the essential notion of what Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56 constitutes unprofessional conduct adopted in at 71‑72. That is, that the conduct in question was conduct that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.
For his part the practitioner denies that (if otherwise established) the disclosures and statements to the media constituted unprofessional conduct because he honestly believed that Ms Corby was not his client nor prospective client and that the statements to the media were in her best interests and would assist her.
The evidence - some legal issues
In the present case there was no evidence given by the (alleged) client Ms Corby. This was the subject of sustained criticism by Mr McCusker. The LPCC has largely constructed its case on the statements made by the practitioner to the media, some contemporaneous documents, his (near contemporaneous) response to the inquiry of the LPCC, the evidence of Mr Percy and Mr Davies and admissions of the practitioner. For the reasons expressed below, we have found that evidence of the two other barristers of limited assistance in the resolution of the issues. That has meant that the evidence of the practitioner in relation to his brief from the government, his meetings with Ms Corby and the Bali legal team and as to what he said to the media and generally is of critical importance to the outcome of this application. Because so much of the practitioner's testimony has been challenged, our assessment of the credibility of the practitioner's evidence is central to our determination.
The standard of proof - Briginshaw
In the first part of the practitioner's written closing submissions, Mr McCusker states that the finding of unprofessional conduct would be very serious 'particularly against a senior counsel who has practised for 26 years with no blot on his professional reputation'. In then addressing the standard of proof, Mr McCusker further contends that a finding of unprofessional conduct would have grave consequences, affecting as it would the reputation and earning capacity of the practitioner.
The closing submissions then make reference to the judgments in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). In considering a 'serious matter' Rich J said that the satisfaction of the tribunal 'cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.' Dixon J said that 'the seriousness of the allegation made' and 'the gravity of the consequences' were 'consequences which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal'. In such matters 'reasonable satisfaction should not be produced by inexact proofs, indirect testimony or indirect inferences' (the last phrase is underlined in the submissions). Further, weight is to be given 'to the presumption of innocence and exactness of proof is expected'.
Whilst we accept these submissions, in some respects they are both too broad and too narrow.
As to the first aspect, the submissions do not focus on the relevant standard as being the civil standard of proof, that is proof on the balance of probabilities. The expression used by Dixon J, 'reasonable satisfaction', has not been continued. In this respect the significance of Briginshaw is that the seriousness of the matter and of its consequences does not affect the standard of proof but goes to the strength of the evidence necessary to establish a fact required to meet that standard. It does no more than reflect a conventional perception that members of society do not ordinarily engage in criminal or improper conduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd(1992) 67 ALJR 170 (Neat Holdings). Relevantly here, it might be said that a senior counsel of many years standing would be unlikely to make disclosures of a client's confidential matter, or make statements to the media about the client's matter, without the client's informed consent. As such, and given the consequences for an adverse determination, sufficiently clear and cogent evidence will be required before such a finding can be made. In that respect it is also relevant to note that there is limited direct, as opposed to circumstantial, evidence contradicting the practitioner's written and oral evidence. Nevertheless, the decision in Rejfek v McElroy (1965) 112 CLR 517 at [11] makes clear that:
the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof is no mere matters of words: it is a matter of critical substance.
It is the case that the civil rather than the criminal standard applies, notwithstanding the onerous penalties which may be imposed. The purpose of professional disciplinary proceedings is the protection of the public rather than the punishment of the individual. This explains also why a practitioner facing a complaint is under a duty to co-operate in the investigation and ought take a less combative approach than he or she might in other proceedings. (Some of the limits of the latter notion are examined in New South Wales Bar Association v Kalaf (unreported, Supreme Court of NSW, Court of Appeal, 12 October 1987; BC 8801429), (Kalaf, discussed below). Moreover, although we take into account the practitioner's seniority within the profession, the obligations expected of him by reason of his appointment as one of Her Majesty's Counsel and an officer of the Supreme Court and in consequence the extent to which his honesty and integrity may be relied on, that cannot of itself deter us from the task of scrutinising his evidence and examining his conduct.
We do not understand the operation of this aspect of Briginshaw to mean that every fact to be found requires evidence of this heightened strength. We think the principle operates in relation to such facts as are integral to the charge and, by reference to the whole of the evidence, to the ultimate inference that the conduct breached the requisite standard. That means in particular, in our view, and in favour of the practitioner, that we must test whether Ms Corby was a client of the practitioner by reference to the Briginshaw standard. There is of course no element of impropriety or anything unusual in the formation of a lawyer client relationship. But it would be unlikely and have serious consequences were a senior practitioner to disclose confidences and make statements to the media concerning a person except on the basis that such person was not the practitioner's client, as the practitioner here contends, or was otherwise not a person to whom the practitioner owed a duty of confidence. In this context, we are mindful that our assessment of the issue requires us to take into account circumstantial evidence and draw inferences and form conclusions in the absence of the evidence of the (alleged) client.
As to the second aspect, the practitioner's submissions omit reference to another important part of Dixon J's judgment in Briginshaw. This is, that in making a finding of a fact the tribunal must feel 'an actual persuasion' of its occurrence or existence; it is not sufficient to make a finding as a result of a mere mechanical comparison of probabilities, independently of any belief in its reality. This subjective requirement on the part of the tribunal does not appear to have been directly affected by later decisions, including Neat Holdings. Whether it has impliedly been rejected by the use of 'balance of probabilities' rather than 'reasonable satisfaction' is an open question. Given the grave and serious nature of these proceedings, we proceed in favour of the practitioner on the basis that an 'actual persuasion' on the part of the Tribunal is required.
LPCC's failure to call witnesses - Jones v Dunkel
Directly allied to his submissions concerning the standard of proof, Mr McCusker sought to draw inferences against aspects of the LPCC's case by reason of its failure to call several witnesses, particularly Ms Corby and the practitioner's alleged junior, Mr Laskaris. There was also some short reference made to the failure to call Ms Lubis and Mr Rasiah, members of the Bali legal team, specifically in relation to their meeting with the practitioner on 3 June 2005.
The principles governing the operation of the 'rule' in Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) are set out in Cross on Evidence (7th Aust Ed) [1215] and have recently been summarised by Justice Owen in The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 (The Bell Group Ltd) at [1004] - [1022].
We have taken into consideration and applied such of these principles as are relevant to the present circumstances, but with this qualification. It is to be borne in mind that this is not an ordinary civil action but rather it constitutes professional disciplinary proceedings brought by the governing body against a legal practitioner before a tribunal subject to its own statutory procedures. These include that it is not bound by the rules of evidence or the practices of courts but is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32 SAT Act). We have so proceeded and in this respect were prepared to accept explanations from both parties as to why Ms Corby's evidence might or might not have been available, without direct evidence in support.
We mention we have also had regard to the decision in Kalaf, cited in another section of the practitioner's closing submissions. The majority in the circumstances of that case were not prepared to make a finding that the practitioner before them had lied about the matter, in the absence of the Association (being the governing body and regulator) calling an available witness who had knowledge of the matter. In their view, although this aspect of the case did not turn upon the issue of onus, it was the Association, as the party carrying the burden of proof on this issue, rather than the practitioner, who was required to call the witness if it sought such a serious finding. Samuels JA who alone addressed the rule in Jones v Dunkel held it was the practitioner who would be expected to call the witness and drew an adverse inference from his failure to do so.
Failure to call Ms Corby
A central issue in this case is whether Ms Corby was the client or prospective client of the practitioner. The LPCC did not call Ms Corby to give evidence. Her evidence may have been of assistance in particular as to what was said at the meeting with the practitioner and Mr Laskaris on 6 June 2005. More specifically she may have been able to corroborate the practitioner's evidence that at the meeting he told her in effect that he could not provide her with any legal advice or assistance and that she understood this.
In his oral opening submissions, Mr McCusker referred to the fact that Ms Corby was not being called 'as to fact or as to a complaint'.
As to the evidence regarding Ms Corby's availability, the practitioner initially defended his not obtaining Ms Corby's authority to his press release because of the considerable difficulty in speaking to her - one that, he suggested, also explained why the LPCC was not calling her. Somewhat later, the practitioner was asked by the Deputy President whether, since his meeting, he had had any contact with Ms Corby. The practitioner said that he had not. Asked whether he knew how difficult or easy it was to contact her in prison he said: 'No. I don't know. I think that's probably true of the applicant too, isn't it'. Notwithstanding, in reexamination in answer to some suggestive questions in that respect, the practitioner then said that he did not know of any particular difficulty in contacting Ms Corby; he was sure she could have been interviewed by the LPCC. We did not give that last evidence any weight. It was unsupported by reasons, was contradictory and was one instance of a particularly self‑serving response.
In his oral closing submissions, Mr Hall SC, counsel for the LPCC, suggested that it would be unrealistic to suppose that Ms Corby would want to participate in a case involving criticism of the Indonesian legal system.
In his closing submissions, Mr McCusker argues that the fact that Ms Corby was in prison was in itself no explanation for not calling her. He submits that it is commonplace for prisoners to give evidence by video link and she might have provided a signed statement. He categorises the explanation given by Mr Hall as conjecture and as not sustainable on the facts, given she was not privy to the alleged bribe. He maintains that the unexplained failure to call Ms Corby raises a strong inference that her evidence would not help the LPCC's case, under the rule in Jones v Dunkel. He says further that the onus of establishing unavailability is on the LPCC as it bears the onus of establishing that Ms Corby was the practitioner's client: Smith v Samuels (1976) 12 SASR 573. This is not a case he submits, where the 'evidentiary onus' is on the practitioner to rebut any evidence that Ms Corby was his client.
The LPCC does not in its written closing submissions directly address the way this argument is put or the legal principles underlying it. Neither does it refer to Mr Hall's oral submissions on the matter. It submits, on the basis of the practitioner's response letter, that there was no need for it to consider calling Ms Corby. That is because in his response letter to the LPCC the practitioner explains that during the meeting with Ms Corby on 6 June 2005, Ms Corby told the practitioner that she understood that the practitioner could not act for her in Indonesia (the LPCC's underlining). It is said that this was not evidence that it needed to dispute because it was not inconsistent with its case, but supported it. It was not until the practitioner's witness statement was served on the first day of the hearing, that the practitioner asserted in effect that he had said he could not act for her at all. The LPCC submits that in these circumstances:
1)no adverse inference can be drawn against the failure of the LPCC to call Ms Corby; and
2)there was no reasonable opportunity to call her.
We do not accept the second of these reasons. It is a departure from the explanation given by Mr Hall at the end of the hearing. Further, there was no evidence that the LPCC made any effort to contact Ms Corby. The LPCC might have made use of the Tribunal's informal procedures to obtain evidence from Ms Corby.
The practitioner filed submissions in reply in forceful language disputing the LPCC's assertions.
We observe that, notwithstanding Mr McCusker's pre-emptive argument on the matter (or perhaps because of it), the LPCC does not suggest that the practitioner might have called Ms Corby, much less seek to draw an inference from his failure to do so.
Ms Corby; the circumstances - application of the principles
The question whether Ms Corby was a client of the practitioner is addressed in detail in Part II of our reasons.
As the LPCC points out, the practitioner's response letter gives an account of his conversation with Ms Corby on 6 June 2005 which includes: 'She knew they [Mr Laskaris and the practitioner] could not represent her in Indonesia. Mr Trowell told her that they would help in any way they could.' It was not until after the commencement of the hearing, on his filing his witness statement dated 17 September 2008, that the practitioner substantially adds to this. He there says they told her they were not there to give legal advice, that she did not ask for legal advice or assistance, that they told her that they could not act for her as her lawyers because they were not admitted in Indonesia, she did not give any legal instructions or request that they act for her as her lawyers, he took no instructions from her and he was not being retained to act on her behalf and he made that perfectly clear to her. He maintained this position in his oral evidence saying that he had never provided any legal assistance to Ms Corby nor the Bali legal team nor offered such.
In determining the LPCC's 'obligation' to call Ms Corby, it is important to appreciate that it is not specifically alleged against the practitioner, nor a necessary part of the LPCC's case, that the practitioner had lied in evidence about these conversations at their meeting, as opposed to a submission by the LPCC that it was 'open' to find that the practitioner was dishonest in his witness statement and evidence as to his new account of his relationship with the government and Ms Corby. The distinction is important as Kalaf makes clear. In this context, and in response to the submission from Mr McCusker on the point, a passage from the judgment of Mahoney JA is apt:
An issue as to whether a conversation took place is not the same as an issue as to whether a witness lied about it. A court may decide, with the proper degree of satisfaction, that the conversation did not take place and, in doing so, it may refuse to accept the evidence which a witness gave. It does not follow that if the issue be whether the witness lied, it would be prepared formally to find that issue against him.
That leaves the question whether, in the circumstances, the inference against the LPCC ought to be drawn.
At the time of the hearing Ms Corby was in a prison in Bali serving a sentence (reduced on appeal) of 15 years. We think it safe to say by reference to media reports in evidence that the conditions of her prison were primitive by Australian standards, including in terms of standards of health, food, and over crowding. No doubt there are telephones. Whether there are international video conference links seems more doubtful. There is no evidence as to whether the authorities would be prepared to allow her to give evidence in these proceedings using such facilities.
The associated question is whether at this time she would have any interest in assisting in the matter. Mr Hall's 'conjecture' that this seems unlikely has some (limited) validity.
If that difficulty were overcome, there is the question of whether Ms Corby would have any recollection of the specifics of her conversation with the practitioner. This took place in June 2005, shortly after her conviction and sentence of 20 years and at a time when we would assume, and it is confirmed in the practitioner's response letter, she was under very considerable stress. We think that both then and now Ms Corby would have rather more immediate and pressing issues on her mind than the details of her conversation with the practitioner.
In order for the rule in Jones v Dunkel to operate, the evidence of the missing witness must be such as would have elucidated a matter. It is not enough to conclude that a witness may have knowledge. It will be appreciated that the elucidation which would be required of Ms Corby (in this respect) falls within a very narrow compass; could she say that the conversation was to the effect the practitioner could not act for her in Indonesia, or was it that she understood, and he made clear he could not provide, legal advice or assistance of any sort. In the circumstances we have outlined, the prospect that she might have assisted on this point seems doubtful. We are unable to conclude, on the balance of probabilities, that Ms Corby would have, or probably have, that knowledge.
There is a stronger basis for our decision. Under the Jones v Dunkel rule, the significance to be attributed to the fact that a witness does not give evidence depends in the end upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call the witness feared to do so. The party may not be sufficiently aware of what the witness will say to warrant that inference. The party may simply not know what the witness will say. In this respect we can say with much greater confidence that, to the extent that the LPCC may be regarded as the party expected to call Ms Corby, we do not believe, having regard to all of the circumstances, that it did not call Ms Corby because it feared to do so.
As a practical matter, courts and tribunals dealing with the appropriate penalty in disciplinary proceedings often have regard to factors such as the gravity of the charge, the effect of the misconduct on the client, the practitioner's previous good character, her or his level of co-operation with the regulating authority and the effect of the penalty (and an order for costs) in the circumstances. We are prepared to consider the practitioner's submissions of 'facts in mitigation' on this basis.
By the same principle, in determining penalty we take the view that we are required to consider all the material circumstances supporting and relating to the charges; that is, both the 'aggravating' as well as the 'mitigating' circumstances. The issue is not merely finding a penalty appropriate to the specific charge without regard to the facts supporting it, as the practitioner's submissions at some points appear to suggest.
We have been troubled by the LPCC's submission that by reason that the practitioner is one of Her Majesty's Counsel, his failure to meet the appropriate professional standards 'must be considered more harshly than for a junior practitioner'. The decision in Cummins concerned a barrister who had not filed taxation returns over some 40 years. He had not admitted that his actions had jeopardised the reputation and standing of the legal profession. Chief Justice Spigelman said [at 30] that 'the conduct of a barrister, particularly a barrister who has received the distinction of a Commission as one of Her Majesty's Counsel, who has behaved in such complete disregard of his legal and civic obligations, was necessarily such as to bring the entire profession into disrepute'.
The present matter does not concern conduct committed outside the practitioner's professional practice which has brought the profession into disrepute. It concerns conduct which violates the practitioner's duty of confidentiality to his client. That is a serious matter and in determining that the practitioner ought to have taken greater care in considering whether Ms Corby was his client, we have taken into account the practitioner's seniority. But we do not think in relation to penalty that Cummins (or New South Wales Bar Association v Davison (2005) NSWADT 252 also referred to by Mr Hall) stands for the general principle that, by reason only of his being a senior practitioner, a more severe penalty applies than would otherwise.
Neither are we prepared to apply such a principle on general considerations, at least in the circumstances of this case. We think it requires considerably more argument than was provided. For instance, if a practitioner's seniority were to be considered, it seems to us we would also need to take into account that by reason of that fact, the matter is likely to have attracted greater publicity than otherwise and corresponding greater hurt to the individual concerned (Foreman at 418.)
Mitigating factors
We have considered all the mitigating factors identified by the practitioner. We deal shortly with those that were challenged by the LPCC.
Without accepting all the grounds relied on and having regard to others, we think there is support for the practitioner's view that the circumstances of this matter are unusual. The practitioner was approached by the Australian Government rather than directly by the client or her solicitors. He was acting pro bono without the benefit of instructing solicitors. His client was in a foreign jurisdiction and the trial and appeal were subject to the laws of Indonesia and Bali in particular. The case was attended by extraordinary publicity. The journalist who published the bribery allegations approached the practitioner with a version of events he said he was going to publish.
In those circumstances, the need for general and specific deterrence is diminished. We note in this context that whilst the practitioner's written submissions were not forthcoming in expressing regret for his conduct and there is no suggestion of an apology given to Ms Corby, the practitioner, through Mr McCusker, expressed sincere regret in failing to recognise Ms Corby as his client. The Tribunal takes the view that having suffered the stress of these proceedings and the humiliation and hurt arising from our finding of unprofessional conduct and, as determined, the issuing of a reprimand (and, we would hope, from a reflection on how his conduct impacted on Ms Corby), it is unlikely that the practitioner would re-offend.
In this context we place little reliance on the practitioner's claims that:
1)the relevant information that was disclosed was not given by or on behalf of Ms Corby; in fact, in the substantive decision we found that the information was provided on behalf of Ms Corby;
2)there is no evidence Ms Corby suffered detriment by the disclosure; in the substantive decision we found that she was disadvantaged by the disclosures; and
3)the disclosure of the bribery allegation assisted Ms Corby to effect the dismissing of the Bali lawyers.
As mentioned, the practitioner made reference to a passage from Schapelle Corby: My Story. The book had not been relied on in the substantive hearing. The passage reads:
The perfect chance to sack them [Ms Lubis and Mr Rasiah] arose when one of the QC's (rather stupidly) stated publicly that Vasu [Rasiah] had asked the Australian Government for [A]$500,000 in bribes. Merc [Mercedes Corby] and I talked it over and agreed: 'This is it, they're gone.' No doubt that was exactly what the comments had been designed to do.
The 'QC's' are identified as the practitioner and Mr Percy QC, being 'two QC's [who] had offered to work pro bono for my appeal'. To the extent the practitioner was so motivated, he did not admit to this in his evidence. As we said in the substantive decision, the practitioner might properly have raised the subject of the bribery allegation, giving Ms Corby the opportunity to dismiss those responsible for it, without disclosing it to the press.
As regards the disclosed statements being considered as part of a continuing episode over a period of 11 days, it is true that there was a degree of repetition or enlargement of earlier statements on the same or related topics. We have taken that into account but bearing in mind, as Mr Hall points out, that there was only one charge of unprofessional conduct arising from the disclosures.
We think that the practitioner's belief that he was justified in making adverse comments about Ms Corby's Indonesian legal team and its members, including in relation to their intent to seek to bribe the Balinese judiciary, is of limited persuasion. It goes without saying that the disclosures would have been even less justifiable if there was no evidence of that belief.
We are mindful that the practitioner agreed to undertake to provide assistance to Ms Corby without fee and that he travelled to and stayed in Bali at his own cost.
We also accept that the practitioner is a person of previous good character and is highly respected within the criminal bar and in the broader legal community. We have read all 48 references. As might be expected, we have found these to be of varying degrees of assistance and their impact was not ultimately dependant on the number of references submitted. We give less weight to the referees (however eminent) who seek to discount the seriousness of the subject conduct or where it is apparent that the referee has not read our substantive reasons. The references generally express the author's views that the practitioner's conduct found to be unprofessional was out of character and unlikely ever to be repeated. One referee referred to his knowledge of the personal anguish suffered by the practitioner by reason of these proceedings. Taken as a whole, the references are a testimony to the high regard in which the practitioner is held within the legal profession, by the police and within the community. They support the following observations about the practitioner:
1)he has a reputation for working fearlessly to achieve justice within the criminal system, for hard work and for competence;
2)he has a reputation for honesty, fairness and assisting clients in need of legal assistance in disregard of his own financial benefit and personal circumstances;
3)he is regarded as a leader of the criminal bar in Perth, committed to his profession and encouraging of junior members; and
4)in the pursuit of matters of concern to him, he has been known to talk out of turn, including to the press.
None of the references was challenged. We are entitled to have regard to them in seeking a just outcome in all the circumstances. We think the situation might be expressed this way: 'It remains a grave lapse. But it is one to be evaluated in the context of the life of a person who has made contributions beyond the usual to the activities of the law in this community.' (Foreman at 415.)
Determination
The law and those entrusted with maintaining professional standards attach a high value to the trust and confidence which clients do, and are encouraged to, place in their lawyers. It is the rationale underlying legal professional privilege, a principle which has been described as an important common law right (or immunity) and sometimes even as a fundamental human right. The importance of the professional obligation of confidentiality was never in question during these proceedings. But the professional (and legal and equitable) duties owed to a client are necessarily dependent upon the lawyer's recognition of a person as their client, or a person to whom they might otherwise owe a duty of confidence. Failure in that respect may lead to a serious breach of professional duty.
In these proceedings, the practitioner failed to appreciate that Ms Corby was his client. His publication of matters confidential to her was exacerbated because of her extraordinarily vulnerable position (including, on the practitioner's evidence, because of inadequate representation on her appeal) and because publication was made to the press and was in part motivated by his personal interests.
In those circumstances, we understand the reasons underlying the LPCC's submission that a substantial fine is the appropriate remedy.
However, we do not think that protection of the public nor the nature of the conduct requires such a penalty. Having regard to the unusual circumstances of this case, the practitioner's previous good character and commendable legal service, the unlikelihood that he would ever re-offend and the other matters to which we have referred, we think the appropriate penalty is a reprimand which we order pursuant to s 187(1)(e) of the LP Act.
It only remains to say, for the benefit of members of the public who might have taken an interest in this matter, that whilst a reprimand does not have the financial consequences of suspension or the imposition of a fine, the issuing of a reprimand by a Tribunal following its finding of unprofessional conduct, is a serious matter. It would certainly be a relevant, and perhaps a decisive, consideration in the event of a re‑offence.
Orders
The Tribunal orders that:
1.The practitioner be reprimanded; and
2.The practitioner pay the costs of the Legal Practitioners Complaints Committee fixed in the sum of $55,000.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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