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LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT [2012] WASAT 58

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2012] WASAT 58
Act:	LEGAL PROFESSION ACT 2008 (WA)
Case No:	VR:201/2010	Heard:	15, 16 AND 17 NOVEMBER 2011 AND 20, 21, 22 AND 23 FEBRUARY 2012
Coram:	JUDGE D R PARRY (DEPUTY PRESIDENT) MS H LESLIE (SENIOR SESSIONAL MEMBER) MS K KEMP (SESSIONAL MEMBER)	Delivered:	27/03/12
No of pages:	83	Judgment Part:	1 of 2
Result:	Findings of professional misconduct
Category:	B	Other Parts:	Pages 51 to 83
PDF Version

Parties:	LEGAL PROFESSION COMPLAINTS COMMITTEE MEGAN MAREE in de BRAEKT
Catchwords:	Vocational regulation Legal practitioners Professional misconduct Whether practitioner knowingly misled the Magistrates Court by stating to the Court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her Whether practitioner was consistently discourteous and offensive to a Magistrate during a hearing Whether practitioner sent emails to a police officer that were offensive and discourteous Whether practitioner sent an email to a police officer that was offensive, discourteous, and threatening Whether practitioner behaved in a discourteous and abusive manner to a security supervisor at the Central Law Courts building
Legislation:	Criminal Investigation Act 2006 (WA), s 117(1), s 120(1), s 120(2) Criminal Procedure Act 2004 (WA), s 35, s 42, s 61, s 95 Legal Profession Act 1987 (NSW), s 127(2) Legal Profession Act 2008 (WA), s 402, s 403, s 410, s 413, s 414(1), s 414(3), s 428(1), s 438(1), s 442, s 622(1), Pt 13 State Administrative Tribunal Act 2004 (WA), s 60(2)
Case References:	Briginshaw v Briginshaw (1938) 60 CLR 336 Chin v Legal Practice Board of Western Australia [2011] WASCA 110 Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163 Legal Practitioners Complaints Committee and Segler [2009] WASAT 205 Legal Profession Complaints Committee and Caine [2010] WASAT 178 Legal Profession Complaints Committee and in de Braekt [2011] WASAT 1 N v K [2009] NZLCRO 1 New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85 Rondel v Worsley [1969] 1 AC 191 S v J [2009] NZLCRO 3 Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
Orders	On the application before Deputy President, Judge David Parry and Senior Sessional Member Hannah Leslie and Sessional Member Kerry Kemp on 27 March 2012, it is ordered that:,1. The Tribunal finds that Ms Megan Maree in de Braekt engaged in professional misconduct by:,(a) knowingly misleading the Magistrates Court on 4 June 2009 and 6 July 2009 by stating to the Court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her;,(b) being persistently discourteous and offensive to Magistrate Woods during a hearing in the Magistrates Court on ,4 June 2009;,(c) sending emails to Detective Constable Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous;,(d) sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and,(e) behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice.,2. By 16 April 2012 the applicant is to file and serve its submissions in relation to penalty and costs.,3. By 7 May 2012 the respondent is to file and serve her submissions in relation to penalty and costs.,4. By 14 May 2012 the applicant is to file and serve any submissions in reply.,5. Subject to any further order, the issues of penalty and costs are to be determined entirely on the documents pursuant to ,s 60(2) of the State Administrative Tribunal Act 2004 (WA).
Summary	The Legal Profession Complaints Committee brought professional disciplinary proceedings against Ms Megan Maree in de Braekt, a legal practitioner, alleging that Ms in de Braekt engaged in professional misconduct by:,a) knowingly, or alternatively recklessly, misleading the Magistrates Court on 4 June 2009 and 6 July 2009 by stating to the court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her;,b) being persistently discourteous and offensive to Magistrate Woods during a hearing in the Magistrates Court on 4 June 2009;,c) sending emails to Detective Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous;,d) sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and,e) behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on or about 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice.,The Tribunal found that Ms in de Braekt is guilty of professional misconduct in each of these respects. In relation to allegation (a), the Tribunal found that Ms in de Braekt misled the Court intentionally.,Allegation (a) turned largely on the credibility of three witnesses, namely, Constable Sharon Squire, Senior Constable Rachel Neas and Ms in de Braekt. The Tribunal found Constable Squire and Senior Constable Neas to be honest, impressive and impartial witnesses, with a distinct recollection of the disclosure of documents, including colour digiboards (photoboards enabling a witness to make an identification without an identification parade), to Ms in de Braekt. The Tribunal, therefore, accepted the police officers' evidence that colour digiboards relating to the prosecution of Ms in de Braekt's client were served on Ms in de Braekt, by leaving them in the locked post box of her office on 26 May 2009 and 25 June 2009 and by sending them to her by registered post on 27 May 2009 and 25 June 2009. As the Tribunal accepted the police officers' evidence, and as, on Ms in de Braekt's evidence, there was no possibility that disclosure documents placed into the post box of her office would have gone missing, the Tribunal did not accept Ms in de Braekt's denial of having received the colour digiboards. Furthermore, in light of the Tribunal's findings in relation to aspects of Ms in de Braekt's evidence, the Tribunal expressed significant doubts as to her truthfulness and credibility. The Tribunal found that Ms in de Braekt knowingly and intentionally misled the Magistrates Court on 4 June 2009 and on 6 July 2009 by stating to the court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her, and is therefore guilty of professional misconduct.,In relation to allegation (b), after Ms in de Braekt had completed her submissions and Magistrate Woods was about to give a ruling on an adjournment application, Ms in de Braekt persistently interrupted her Honour five times, each time demanding to 'finish' her submissions in a belligerent tone. On the first four occasions, her Honour directed Ms in de Braekt to 'have a seat' (at the Bar table). On the fifth occasion, her Honour directed Ms in de Braekt to 'have a seat at the back of the court' and stood the matter down. Rather than complying with her Honour's direction, and although the matter had been stood down, Ms in de Braekt then made an entirely unfounded allegation of actual bias against her Honour.,The Tribunal found that Ms in de Braekt's persistently discourteous and offensive conduct in court constituted professional misconduct. While the Tribunal recognised counsel's duty to advocate fearlessly for their client, especially for a client in custody, as an officer of the court concerned in the administration of justice, counsel has an overriding duty to the court, to the standards of the legal profession and to the public. Ms in de Braekt's conduct in court would be regarded as disgraceful or dishonourable by practitioners of good repute and competence.,In relation to allegation (c), Ms in de Braekt sent a series of six emails, over a period of about two weeks, to Detective Andrew Broadley, the tone and content of which was so grossly offensive and discourteous as to constitute professional misconduct. In his emails to Ms in de Braekt, the officer showed courtesy and appropriate regard for the protection of confidential material. Ms in de Braekt's responsive emails included the following statements:,• Just because you are a Police officer does not mean you can make up your own laws & impose them on other people.,• Police aren't above the law, Detective Broadley.,• So do your job in accordance with the law & stop attempting to bully me into doing things I am not legally obliged to do, & will not do.,• You do remember the law, don't you?,• Do you want me to have to explain your ridiculous approach to the Court?,• Am I going to have to make a complaint about you in order to have that DVD sent to me?,• It would seem you're not used to a Lawyer standing up against your bullying & unlawful attempts to impose unlawful conditions on the provision of accused's VROI's.,• You just don't get it do you[?],• Have you not ever posted anything before Detective Broadley? and,• You need to realise Detective Broadley that just because you are a Police Officer does not mean you have limitless powers, nor does it mean that you have the lawful ability to change, alter or add to laws in any way that suits your fancy & enables you to 'get your own way'.,In relation to allegation (d), Ms in de Braekt sent an email to Detective Inspector Paul La Spina which was significantly discourteous and offensive and included the following statements:,What a load of absolute rubbish!,He hasn't made any efforts to serve the materials on me.,It would also appear that you don't understand the law either.,The Police can't require me to adhere to any of their 'policies or practices,' or whims.,The email to Detective Inspector La Spina concluded with the following threat:,I look forward to cross-examining you sometime in the future, in a trial.,The nature of the threat, which was plain from Ms in de Braekt's words, was that she would be in a position of power over Detective Inspector La Spina, because she was a lawyer and he would be a witness subject to her crossexamination. The Tribunal found that the combination of the tone and content of Ms in de Braekt's email being so significantly discourteous and offensive to a senior police officer, and her threat to him, were such that Ms in de Braekt's conduct constituted professional misconduct.,Allegation (e) ultimately turned on the credibility of Mr Kanapathy, two other witnesses who were present at the incident in question, and Ms in de Braekt. The Tribunal found that Mr Kanapathy, who was subjected to intense and protracted cross-examination by Ms in de Braekt, gave truthful evidence and was an honest and credible witness. Furthermore, his evidence was materially corroborated by two other witnesses, one of whom was called by Ms in de Braekt, and was consistent with an incident report Mr Kanapathy prepared within 30 40 minutes of the events in issue. Where there was a difference between the evidence of Mr Kanapathy and Ms in de Braekt, the Tribunal preferred the evidence of Mr Kanapathy, both because he was an honest and credible witness, with an actual recollection of the events, and because Ms in de Braekt gave evidence on particular matters which the Tribunal found to be untruthful and which significantly reduced her credibility more broadly.,The Tribunal found that Ms in de Braekt, while visiting the Central Law Courts in the course of carrying out her legal practice, behaved in a discourteous and abusive manner to Mr Kanapathy by:,• saying words to the effect, 'I know you're from Singapore, go back to your country, we don't need people like you here, you prick';,• calling Mr Kanapathy a 'Singaporean prick' on one occasion;,• calling Mr Kanapathy 'a prick' on approximately six occasions;,• making a comment to the effect that Mr Kanapathy has 'short man's syndrome' on two occasions; and,• calling Mr Kanapathy a 'short prick' on one occasion.,The Tribunal found that Ms in de Braekt's extraordinary display of discourtesy and abusive conduct to a member of the court security staff compromised not only the good standing of the legal profession, but also the important relationship between the legal profession and security staff in courts and tribunals. Ms in de Braekt's conduct therefore constituted professional misconduct.,The Tribunal required the parties to file submissions in relation to penalty and costs and directed, subject to any further order, that these remaining issues are to be determined entirely on the documents.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT [2012] WASAT 58 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT)

MS H LESLIE (SENIOR SESSIONAL MEMBER)

MS K KEMP (SESSIONAL MEMBER)

HEARD : 15, 16 AND 17 NOVEMBER 2011 AND

20, 21, 22 AND 23 FEBRUARY 2012

DELIVERED : 27 MARCH 2012 FILE NO/S : VR 201 of 2010 BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Applicant

AND

MEGAN MAREE in de BRAEKT

Respondent

Catchwords:

Vocational regulation - Legal practitioners - Professional misconduct - Whether practitioner knowingly misled the Magistrates Court by stating to the Court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her - Whether practitioner was consistently discourteous and offensive to a Magistrate during a hearing - Whether practitioner sent emails to a police officer that were offensive and discourteous - Whether practitioner sent an email to a police officer that was offensive,

(Page 2)

discourteous, and threatening - Whether practitioner behaved in a discourteous and abusive manner to a security supervisor at the Central Law Courts building

Legislation:

Criminal Investigation Act 2006 (WA), s 117(1), s 120(1), s 120(2)

Criminal Procedure Act 2004 (WA), s 35, s 42, s 61, s 95
Legal Profession Act 1987 (NSW), s 127(2)
Legal Profession Act 2008 (WA), s 402, s 403, s 410, s 413, s 414(1), s 414(3), s 428(1), s 438(1), s 442, s 622(1), Pt 13
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Findings of professional misconduct

Category: B

Representation:

Counsel:

Applicant : Mr S Vandongen SC with Ms PE Le Miere

Respondent : Self-represented

Solicitors:

Applicant : Law Complaints Officer

Respondent : Self-represented

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163
Legal Practitioners Complaints Committee and Segler [2009] WASAT 205
Legal Profession Complaints Committee and Caine [2010] WASAT 178
Legal Profession Complaints Committee and in de Braekt [2011] WASAT 1

(Page 3)

N v K [2009] NZLCRO 1
New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85
Rondel v Worsley [1969] 1 AC 191
S v J [2009] NZLCRO 3
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202

(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Legal Profession Complaints Committee brought professional disciplinary proceedings against Ms Megan Maree in de Braekt, a legal practitioner, alleging that Ms in de Braekt engaged in professional misconduct by:

a) knowingly, or alternatively recklessly, misleading the Magistrates Court on 4 June 2009 and 6 July 2009 by stating to the court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her;

b) being persistently discourteous and offensive to Magistrate Woods during a hearing in the Magistrates Court on 4 June 2009;

c) sending emails to Detective Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous;

d) sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and

e) behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on or about 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice.

2 The Tribunal found that Ms in de Braekt is guilty of professional misconduct in each of these respects. In relation to allegation (a), the Tribunal found that Ms in de Braekt misled the Court intentionally.

3 Allegation (a) turned largely on the credibility of three witnesses, namely, Constable Sharon Squire, Senior Constable Rachel Neas and Ms in de Braekt. The Tribunal found Constable Squire and Senior Constable Neas to be honest, impressive and impartial witnesses, with a distinct recollection of the disclosure of documents, including colour digiboards (photoboards enabling a witness to make an identification without an identification parade), to Ms in de Braekt. The Tribunal, therefore, accepted the police officers' evidence that colour digiboards

(Page 5)

relating to the prosecution of Ms in de Braekt's client were served on Ms in de Braekt, by leaving them in the locked post box of her office on 26 May 2009 and 25 June 2009 and by sending them to her by registered post on 27 May 2009 and 25 June 2009. As the Tribunal accepted the police officers' evidence, and as, on Ms in de Braekt's evidence, there was no possibility that disclosure documents placed into the post box of her office would have gone missing, the Tribunal did not accept Ms in de Braekt's denial of having received the colour digiboards. Furthermore, in light of the Tribunal's findings in relation to aspects of Ms in de Braekt's evidence, the Tribunal expressed significant doubts as to her truthfulness and credibility. The Tribunal found that Ms in de Braekt knowingly and intentionally misled the Magistrates Court on 4 June 2009 and on 6 July 2009 by stating to the court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her, and is therefore guilty of professional misconduct.

4 In relation to allegation (b), after Ms in de Braekt had completed her submissions and Magistrate Woods was about to give a ruling on an adjournment application, Ms in de Braekt persistently interrupted her Honour five times, each time demanding to 'finish' her submissions in a belligerent tone. On the first four occasions, her Honour directed Ms in de Braekt to 'have a seat' (at the Bar table). On the fifth occasion, her Honour directed Ms in de Braekt to 'have a seat at the back of the court' and stood the matter down. Rather than complying with her Honour's direction, and although the matter had been stood down, Ms in de Braekt then made an entirely unfounded allegation of actual bias against her Honour.

5 The Tribunal found that Ms in de Braekt's persistently discourteous and offensive conduct in court constituted professional misconduct. While the Tribunal recognised counsel's duty to advocate fearlessly for their client, especially for a client in custody, as an officer of the court concerned in the administration of justice, counsel has an overriding duty to the court, to the standards of the legal profession and to the public. Ms in de Braekt's conduct in court would be regarded as disgraceful or dishonourable by practitioners of good repute and competence.

6 In relation to allegation (c), Ms in de Braekt sent a series of six emails, over a period of about two weeks, to Detective Andrew Broadley, the tone and content of which was so grossly offensive and discourteous as to constitute professional misconduct. In his emails to Ms in de Braekt, the officer showed courtesy and appropriate regard for the protection of

(Page 6)

confidential material. Ms in de Braekt's responsive emails included the following statements:

• Just because you are a Police officer does not mean you can make up your own laws & impose them on other people.

• Police aren't above the law, Detective Broadley.

• So do your job in accordance with the law & stop attempting to bully me into doing things I am not legally obliged to do, & will not do.

• You do remember the law, don't you?

• Do you want me to have to explain your ridiculous approach to the Court?

• Am I going to have to make a complaint about you in order to have that DVD sent to me?

• It would seem you're not used to a Lawyer standing up against your bullying & unlawful attempts to impose unlawful conditions on the provision of accused's VROI's.

• You just don't get it do you[?]

• Have you not ever posted anything before Detective Broadley? and

• You need to realise Detective Broadley that just because you are a Police Officer does not mean you have limitless powers, nor does it mean that you have the lawful ability to change, alter or add to laws in any way that suits your fancy & enables you to 'get your own way'.

7 In relation to allegation (d), Ms in de Braekt sent an email to Detective Inspector Paul La Spina which was significantly discourteous and offensive and included the following statements:

What a load of absolute rubbish!

He hasn't made any efforts to serve the materials on me.

It would also appear that you don't understand the law either.

The Police can't require me to adhere to any of their 'policies or practices,' or whims.

8 The email to Detective Inspector La Spina concluded with the following threat:
(Page 7)

I look forward to cross-examining you sometime in the future, in a trial.

9 The nature of the threat, which was plain from Ms in de Braekt's words, was that she would be in a position of power over Detective Inspector La Spina, because she was a lawyer and he would be a witness subject to her crossexamination. The Tribunal found that the combination of the tone and content of Ms in de Braekt's email being so significantly discourteous and offensive to a senior police officer, and her threat to him, were such that Ms in de Braekt's conduct constituted professional misconduct.

10 Allegation (e) ultimately turned on the credibility of Mr Kanapathy, two other witnesses who were present at the incident in question, and Ms in de Braekt. The Tribunal found that Mr Kanapathy, who was subjected to intense and protracted cross-examination by Ms in de Braekt, gave truthful evidence and was an honest and credible witness. Furthermore, his evidence was materially corroborated by two other witnesses, one of whom was called by Ms in de Braekt, and was consistent with an incident report Mr Kanapathy prepared within 30 40 minutes of the events in issue. Where there was a difference between the evidence of Mr Kanapathy and Ms in de Braekt, the Tribunal preferred the evidence of Mr Kanapathy, both because he was an honest and credible witness, with an actual recollection of the events, and because Ms in de Braekt gave evidence on particular matters which the Tribunal found to be untruthful and which significantly reduced her credibility more broadly.

11 The Tribunal found that Ms in de Braekt, while visiting the Central Law Courts in the course of carrying out her legal practice, behaved in a discourteous and abusive manner to Mr Kanapathy by:

• saying words to the effect, 'I know you're from Singapore, go back to your country, we don't need people like you here, you prick';

• calling Mr Kanapathy a 'Singaporean prick' on one occasion;

• calling Mr Kanapathy 'a prick' on approximately six occasions;

• making a comment to the effect that Mr Kanapathy has 'short man's syndrome' on two occasions; and

(Page 8)

• calling Mr Kanapathy a 'short prick' on one occasion.

12 The Tribunal found that Ms in de Braekt's extraordinary display of discourtesy and abusive conduct to a member of the court security staff compromised not only the good standing of the legal profession, but also the important relationship between the legal profession and security staff in courts and tribunals. Ms in de Braekt's conduct therefore constituted professional misconduct.

13 The Tribunal required the parties to file submissions in relation to penalty and costs and directed, subject to any further order, that these remaining issues are to be determined entirely on the documents.

Introduction

14 The Legal Profession Complaints Committee (Committee) has brought this proceeding against Ms Megan Maree in de Braekt, a legal practitioner, pursuant to 438(1) of the Legal Profession Act 2008 (WA) (LP Act), alleging that Ms in de Braekt has engaged in professional misconduct in five respects. The Committee alleges that Ms in de Braekt engaged in professional misconduct by:

b) being persistently discourteous and offensive to Magistrate Woods during a hearing in the Magistrates Court on 4 June 2009;

c) sending emails to Detective Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous;

d) sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and

(Page 9)

15 The Tribunal will address each of these allegations in turn after referring to the legal framework and principles which are applicable to these proceedings.

Legal framework and principles

16 Section 401 of the LP Act provides that the purposes of Pt 13 of that Act, which is entitled 'Complaints and discipline', are as follows:

(a) to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

(b) to promote and enforce the professional standards, competence and honesty of the legal profession;

17 Section 402 and s 403 of the LP Act provide inclusive definitions of the key concepts of 'unsatisfactory professional conduct' and 'professional misconduct'. Section 402 of the LP Act states as follows:

For the purposes of this Act

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

18 Section 403 of the LP Act states as follows:

(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.

(Page 10)

(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

19 Section 410 of the LP Act enables a complaint to be made to the Committee about the conduct of an Australian legal practitioner to which Pt 13 of the Act applies. Section 413 of the LP Act relevantly requires the Committee to give written notice of a complaint to the practitioner. Section 414(1) of the LP Act enables a practitioner about whom a complaint is made to make submissions to the Committee, and s 414(3) of the LP Act requires the Committee to consider the practitioner's submissions in deciding what action is to be taken in relation to the complaint.

20 Section 428(1) of the LP Act enables the Committee to refer a matter to the Tribunal if the Committee determines that the matter should be heard by the Tribunal. Section 438(1) of the LP Act confers jurisdiction on the Tribunal to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct. Section 442 of the LP Act provides that the Tribunal may find a person guilty of unsatisfactory professional conduct even though the referral by the Committee alleged professional misconduct.

21 As the Tribunal held in Legal Practitioners Complaints Committee and Segler [2009] WASAT 205 at [97], in relation to the definition of 'professional misconduct' in s 403 of the LP Act:

The use of the word 'includes' in the definition in s 403 of the 2008 Act suggests that (a) and (b) are intended to be examples of conduct which will constitute 'professional misconduct' and are not intended to be exhaustive of what constitutes 'professional misconduct': see DC Pearce and RS Geddes,

Statutory Interpretation in Australia

(6th ed, 2006) at 239 [6.56] and the cases cited therein. In that context, we view (a) and (b) as discrete examples of conduct which will constitute professional misconduct. In order to constitute 'professional misconduct', it is not necessary that the conduct both meets the description in (a) and justifies a finding that Mr Segler is not a fit and proper person to engage in legal practice under (b). Para (b) of the definition in s 403 of the 2008 Act clearly covers a far wider range of conduct than that described in (a) of that definition, including conduct which occurs otherwise than in connection with the practice of law. The essential characteristic of the range of conduct which is encompassed by s 403(1)(b), however, is that that conduct justifies a finding that a practitioner is not a fit and proper

(Page 11)

person to engage in legal practice. That is not an essential characteristic of the conduct described in s 403(1)(a) of the 2008 Act. In other words, not all instances of 'professional misconduct' will involve the conclusion that a practitioner is not a fit and proper person to engage in legal practice.

22 Furthermore, as the Tribunal held in Legal Profession Complaints Committee and Caine [2010] WASAT 178 (Caine) at [15] and [19]:

The common law concept of 'unprofessional conduct' (sometimes expressed as 'professional misconduct', sometimes signifying more serious misconduct) is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence; or that, to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. See

Kyle v Legal Practitioners' Complaints Committee

(1999) 21 WAR 56 (

Kyle

) for a recent restatement and application of this notion in Western Australia, which is not to be treated as codified or exhaustive.

…

19 It cannot have been intended by the legislature that only conduct involving 'competence' (to do with skill, capacity and ability) and 'diligence' (to do with application to the task) should (in addition to conduct establishing unfitness to practice) fall for consideration and that other instances of unprofessional conduct (for example dishonesty or impropriety) which exist at common law should no longer constitute conduct covered under the LP Act. (Professional standards include but are not limited to consumer protection). So much follows as a matter of common sense and from the operation of s 622 as described above. Moreover, s 401 includes as the purposes of Part 13 'to promote and enforce the professional standards, competence and honesty of the legal profession'. (See also the matters discussed in the following paragraphs).

23 In Caine, the Tribunal referred, at [15], to the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle). In Kyle, Parker J (with whom Ipp J, at [1], and Steytler J, at [22], agreed) held at [61] as follows:

… This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in

Re a Practitioner of the Supreme Court

[1927] SASR 58: see, eg,

Re a Practitioner

(unreported, Supreme Court, WA, Full Court, Library No 4989, 18 July 1983). It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or

(Page 12)

dishonourable by practitioners of good repute and competence, or 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. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to 'professional conduct'. While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions.

24 Conduct by a legal practitioner which falls within either limb of the common law concept of unprofessional conduct could also, if sufficiently serious, constitute 'professional misconduct' under the LP Act. Conduct by a legal practitioner, in the course of legal practice, which falls within either limb of the common law concept of unprofessional conduct, and which is less serious than 'professional misconduct' under the LP Act, could also constitute 'unsatisfactory professional conduct' under the LP Act.

25 The limitation that a legal practitioner's conduct must take place in the course of legal practice in order to be capable of constituting 'unsatisfactory professional conduct' under the LP Act is suggested both by the terminology of 'unsatisfactory professional conduct' (emphasis added) and by the fact that the only example of 'unsatisfactory professional conduct' given in s 402 of the LP Act refers to conduct 'occurring in connection with the practice of law'. In contrast, the terminology 'professional misconduct' and the fact that one of the two examples of 'professional misconduct' given in s 403 of the LP Act refers to conduct 'whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law' indicates that, if sufficiently serious, conduct by a legal practitioner outside the course of legal practice may constitute 'professional misconduct' under the LP Act.

26 In Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163, the Tribunal made the following observations in relation to the Briginshaw principle or approach (see Briginshaw v Briginshaw (1938) 60 CLR 336) at [62] [65]:

62 In dealing with conflicts of evidence or apparent conflicts of evidence in relation to an issue like this and evaluating the evidence in vocation proceedings such as these, the Tribunal usually applies what is called the

Briginshaw

approach see:

Briginshaw v Briginshaw

(1939) 60 CLR 336.

(Page 13)

63 In

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd

(1992) 67 ALJR 170 at 171 172; 110 ALR 449 at 450, Mason CJ, Brennan, Deane and Gaudron JJ explained this approach when they observed:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud [footnote omitted]. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear [footnote omitted] or cogent [footnote omitted] or strict [footnote omitted] proof is necessary 'where so serious a matter as fraud is to be found' [footnote omitted]. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct [footnote omitted] and the judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

64 The Tribunal has, as have former adjudicators, consistently applied this approach in the context of vocational or disciplinary inquiries where serious allegations of professional or occupational misconduct have been made and the reputation of a person or their capacity to engage in their registered livelihood is at stake. Examples of the application of the

Briginshaw

approach in this Tribunal may be found in

Legal Practitioners Complaints Committee and Bragg and Monaco

[2005] WASAT 217;

Legal Practitioners Complaints Committee and Williams

[2006] WASAT 108;

Physiotherapists Registration Board of Western Australia and Lipscombe

[2005] WASAT 314.

65 Thus it is conventionally said in proceedings such as these that the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that an allegation against a person has been made out.

Allegation (a) Did the practitioner knowingly, or alternatively recklessly, mislead the Magistrates Court in relation to disclosure of a colour digiboard?

27 A 'digiboard' is a photoboard of 12 numbered photographs, including that of the accused, prepared by the Forensic Imaging Unit of the Forensic

(Page 14)

Division of the Western Australian Police. Each digiboard has a specific number. The use of a digiboard enables a witness in a criminal proceeding to identify a person without the need for an identification parade.

28 In 2009, Ms in de Braekt acted as defence counsel for APC in a criminal matter before the Magistrates Court that was listed for hearing on 4 June 2009. When the proceeding was called over before her Honour Magistrate Woods to be allocated to a magistrate for hearing on 4 June 2009, the prosecutor applied for an adjournment of the trial on the basis that the victim had undergone an operation the previous day. Ms in de Braekt opposed the application for an adjournment on behalf of APC. In the course of her submissions, Ms in de Braekt said that:

The matter was also adjourned on 19 February, when it last came before this court for hearing because the prosecution failed to provide full disclosure and an example of that was the digiboard identification process which is central to the prosecution's case.

His Honour Magistrate Lawrence on that day issued an order requiring the prosecution to disclose that material amongst other things to the defence. As at today, 4 June 2009, some four months later, the defence still does not have the digiboard material and the prosecution seeks yet another adjournment … .

(Exhibit 2, 24.8-.9)

29 After her Honour granted the adjournment, Ms in de Braekt made an application 'for the prosecutions to be dismissed for want of prosecution … on the basis of failure to disclose' the colour digiboard used by a witness in identifying the accused. When the prosecutor said that the colour digiboard had previously been disclosed by posting it to Ms in de Braekt's office, Ms in de Braekt said:

Well, your Honour, I can tell you that we have not received it, posted to our office.

(Exhibit 2, 29.8)

30 When the prosecutor told Magistrate Woods that he would only be able to immediately provide Ms in de Braekt with a black and white copy of the digiboard, rather than a colour copy, Ms in de Braekt said:

Well, we need the colour one, your Honour, because I can't tell the colour hair and other features of the other people in the photoboards. You can't tell from black and white copies. You can't tell if it's blonde or black hair and I need to be able to see those features so I can assess whether or not it's a fair selection of photos.

(Page 15)

(Exhibit 2, 30.2)

31 Magistrate Woods then ordered the prosecutor to provide 'a further copy of the digiboard … at your earliest convenience'. Following discussion in relation to a new hearing date, which resulted in the proceeding being listed for hearing on 6 July 2009, Ms in de Braekt said:

Can I also just say that I have never heard before of materials such as digiboard materials being disclosed by way of post, ordinary post to the defence. I've never ever heard or encountered that before. I can assure your Honour that it did not arrive at my office.

(Exhibit 2, 30.9)

32 When the proceeding against APC came on for hearing before his Honour Magistrate Calder on 6 July 2009, the following exchange took place:

HIS HONOUR: There is an objection being foreshadowed as to identification evidence. Ms in de Braekt?

IN DE BRAEKT, MS: Yes. Your Honour, firstly I don't understand its relevance really because of the admissions made by my client in his video record of interview; but further, since January of this year I have been attempting to obtain a colour copy of the digiboard so I can see whether it's a fair selection of photos and so forth and orders have been made by Chief Magistrate Heath, Deputy Chief Magistrate Woods and Magistrate Heaney for a colour copy of that digiboard to be provided to myself and here we are in July and I still don't have one.

I have the DVD of the identification process but I still don't have the colour digiboard, so really I just don't - I have a difficulty with that, your Honour, because obviously I can't see the hair colour or anything like that of the people on the digiboard.

HIS HONOUR: Yes.

PROSECUTOR: Sir if I may respond. I have the original here. I've spoken with the case officers. My friend is correct, there have been a number of issues with this brief, to say the least, but I am advised, Sir, that the case officers had great difficulty in meeting Ms in de Braekt to provide service.

They advised me that colour photos in fact disclosure was done again on 25 June 2009 by

(Page 16)

personally delivering an envelope to the address of 336 Albany Highway, Victoria Park. It was left in the box at 336 Victoria Park, which I understand is the box of my friend. It was also sent by registered post on the same date, Sir. I have the digiboard here before me if my friend wishes to view the original, but my friend tells me she was provided with black and whites but the officer assures me on my question that colour ones have been provided.

HIS HONOUR: Alright. Have you seen them this morning?

IN DE BRAEKT MS: No, I haven't and the only thing that I received by registered mail is this application for an adjournment of the last hearing date by the police which is a form 6. The only thing that I received in my box was another black and white copy of the trial brief and that's it. There is no colour, and that's the only things I have received. I have never received a colour copy your Honour.

(Exhibit 2, 72)

33 The Committee contended that the statements made by Ms in de Braekt to the Magistrates Court on 4 June 2009 and 6 July 2009, that she had not received the colour digiboard, were untrue and she knew that the statements were untrue, or acted with reckless disregard as to whether they were true, because colour copies of two colour digiboards had previously been delivered to her office and posted to her by registered post. In particular, the Committee called and relied on the evidence of Constable Sharon Squire and Senior Constable Rachel Neas, who were both based at Gosnells Police Station in May and June 2009. Both of these officers were subjected to detailed crossexamination by Ms in de Braekt.

34 Constable Squire gave evidence that, on 26 May 2009, in the company of Senior Constable Neas, she attended the office of Ms in de Braekt at No 336 Albany Highway, Victoria Park:

… to hand deliver all the material constituting full disclosure relating to the criminal prosecution of her client, [APC], and which included black and white photocopies of the signed original digiboard numbered 09.00397 and coloured printout of the original coloured digiboards numbered 09.06567 and 09.00397 which were unsigned.

(Exhibit 6, para 2)

35 Digiboard no 09.06567 and digiboard no 09.00397 were the digiboards used by witnesses in the proceedings against APC.

(Page 17)

36 Constable Squire also said that, on 26 May 2009, she had with her an application to adjourn the hearing in relation to the charges against APC on 4 June 2009 which was a socalled 'form 6'. Constable Squire gave evidence that there were signs on Ms in de Braekt's office door containing words to the following effect:

ATTENTION POLICE & DPP COURIERS: If office is unattended please call [mobile number]. If no answer, lawyer is in court: please slip documents under door or leave in mail box next to door. Please write return fax number for proof of service form to be faxed to.

and

ATTENTION POLICE & DPP COURIERS: This door may be locked even when this office is attended. Please knock on door and wait &/or telephone [mobile number] or [land line number].

(Exhibit 6, paras 3 and 4)

37 Constable Squire gave evidence that Ms in de Braekt's office appeared to be unattended, although the light was on inside. She said that both she and Senior Constable Neas knocked on the door and, after waiting some time, she placed the 'disclosure documents', including the colour digiboards and the form 6, into 'the secured silver mailbox located outside the practitioner's office'.

38 Constable Squire gave evidence that, on her return to Gosnells Police Station, she faxed a Receipt and Certificate of Service for Ms in de Braekt to endorse and return in relation to the disclosed documents, including the colour digiboards, which Ms in de Braekt did not return. Constable Squire gave evidence that, although a Receipt and Certificate of Service would normally go on the original brief, and although Constable Squire looked at the original brief, she could not find the faxed Receipt and Certificate of Service for the disclosure documents, including the colour digiboards, that she said she left in Ms in de Braekt's secured silver mailbox on 26 May 2009. When Constable Squire was crossexamined about this by Ms in de Braekt, she gave the following evidence:

You looked in there and you couldn't find the Certificate of Service for the on about 26 May date for more than one page? --- No, I could not.

No. I suggest to you the reason for that is, Constable Squire, is because you didn't actually provide any disclosure to me other than a form 6 on or about 26 May 2009? --- That's incorrect. The reason I know this is because the prosecutor called me and said there was a problem with disclosure. So I know I made full disclosure again in addition to the form 6.

(Page 18)

What did the prosecutor say to you was the problem with disclosure? --- That you hadn't received the colour digiboards or photoboards.

So then you would have just then undertaken to disclose the colour digiboards wouldn't you? --- No, because it was made clear to me to complete disclosure each and every time in its entirety.

Even though what was being relayed to you was the defence want the colour digiboards? --- That's correct. (T:83.8-84.1, 15.11.11)

39 Constable Squire also gave evidence that, on 27 May 2009, she posted another copy of the disclosure documents, including the colour digiboards, to Ms in de Braekt's office by registered post. Constable Squire received a delivery confirmation and Customer Receipt signed by 'AMH Braekt', which Ms in de Braekt later identified as the signature of her grandmother.

40 Constable Squire gave evidence that, by email dated 5 June 2009, she was requested by Sergeant Derek Grimes:

… to again provide the material to the practitioner. The email attached two colour digiboards no. 09.06567 and no. 09.00397 from which I printed out further colour copies to provide to the practitioner.

41 Constable Squire also gave the following evidence:

On 25 June 2009 I again attended the practitioner's office in company with Constable James Brooks who remained in the parked vehicle. I again hand delivered to the practitioner's office the material constituting full disclosure (minus the interview videos) including black and white photocopies of the signed digiboard and colour copies of the two original coloured digiboards which were unsigned. I placed the material in the mailbox located outside the practitioner's office as the office was unattended.

(Exhibit 6, para 12)

42 Constable Squire also gave evidence that, on 25 June 2009, she sent a copy of all of the documents that she had placed into Ms in de Braekt's office mailbox located outside her office to her office by registered post. The Committee tendered a copy of the Receipt and Certificate of Service signed by Constable Squire on 25 June 2009 indicating that she had left the documents at Ms in de Braekt's office and had posted the documents to Ms in de Braekt's office by registered post on 25 June 2009. This document does not bear the signature of Ms in de Braekt or anyone on her behalf confirming that the documents had been received. Although this document includes in the 'description' of documents served 'two (CD's) Photoboards & eight pages', Constable Squire explained in oral evidence
(Page 19)

that the photoboards were included within the eight pages referred to. She explained that the eight pages comprised a colour photoboard and a matching black and white signed copy for each of two witnesses and two pages that relate to the interview with each witness. Therefore, although the 'description' in the Receipt and Certificate of Service in relation to the service of disclosure documents on 25 June 2009 refers to 'Photoboards & eight pages', Constable Squire said that the photoboards were included in the eight pages. When Ms in de Braekt suggested to Constable Squire in crossexamination that the 'eight pages' did not include the colour digiboards because the eight pages comprised two black and white copies with signatures, four pages of the witness conversation sheets and two pages of digital photoboard running sheets, which contained the names and dates of birth of each of the 12 persons shown on the digiboard itself, Constable Squire said that she 'wouldn't have disclosed the list of running sheets to you … The running sheet, the one that has the list of names on it, I do not think I disclosed to you' (T:49.5-.6, 15.11.11).

43 Senior Constable Neas' evidence strongly corroborated Constable Squire's evidence in relation to the disclosure of documents to Ms in de Braekt on 26 May 2009, including the two colour digiboards in relation to the proceeding against APC. In her witness statement (Exhibit 9), Senior Constable Neas gave the following evidence:

2. On 26 May 2009 I telephoned the practitioner, Ms Megan in de Braekt to advise that I would be attending her office shortly to provide disclosure of documents in the [APC] matter.

3. The practitioner spoke to me aggressively and advised that she may not be there when I arrived and to leave the documents in the mailbox. The practitioner then hung up on me.

4. Together with Constable Sharon Squire I then attended the practitioner's office, 336 Albany Highway Victoria Park.

5. A sign of the door of the practitioner's office stated that if the office was unattended, documents should be slipped under the door or left in the mailbox.

6. Both Constable Squire and I knocked on the door but there was no answer.

7. Lights were on inside the office, and I could see the key in the lock on the inside of the door.

(Page 20)

8. Constable Squire placed an envelope containing colour copies of the colour digiboard in the [APC] matter ('the material'), in the mailbox located outside the practitioner's office.

9. Following our return to the office I telephoned the practitioner again to advise that we had provided disclosure.

10. The telephone call went to voice mail and I left a message to that effect.

44 Under crossexamination, Senior Constable Neas emphatically maintained that her witness statement, which was signed on 17 February 2011, was based on her own recollection of events. She said that she 'remember[ed] that day very well' (T:7.3, 16.11.11). When, in reexamination, Senior Constable Neas was asked about her earlier evidence that the contents of her statement were based on her recollection and that she remembered the events of 26 May 2009 very well, she gave the following evidence:

What is about that day that you remember very well? --- Ms in de Braekt hanging up on me after being quite rude on the phone. And then from there I remember where we were when we called her, and then I remember that just jogged my memory, because obviously that impacted on how things went that day.

So what impacted on how things went that day? --- I remember the phone call and just how she spoke to me, and I've never been hung up by a barrister or solicitor before, or spoken to in that tone when I was just trying to just explain that we were going to her office to serve disclosure and documents, and just that she would - just didn't appear to want to be helpful at all. And then I remember that when we got there, obviously, you know, we were knocking on the door, the lights were on. I thought there was a key in the door, I guess I was wrong. I remember I rang the office while were standing outside and it went through to Message bank. I remember reading the signs on the door, seeing the mailbox there. I remember First Class Constable Squire put the envelope containing the disclosure in the mailbox. We had to go to the chemist to photocopy one of the documents so we could I could witness it, I think it was. And I remember returning back to the station and phoning and letting her know I left a message, I think it was, that we had served the disclosure, and then I remember that First Class Constable Squire said that she was going to organise to have it registered posted to her as well.

It was suggested to you that the service of documents was a routine function that you undertook at that time. I think you disagreed with that and said it was just part of your job. Is that right? --- It's not something you do everyday. It is part of my job. It's not routine. It depends on where you work exactly. In this instance, you know, obviously I was with First Class Constable Squire because this was her case, and basically she

(Page 21)

was the one that was serving disclosure, I was just the one who happened to be with her at that time. So, you know ---

What I want to ask you is, I think you said that service of documents is just part of your job, and indeed any police officer's job. Is that right? --- Yes. Yes, it is.

How long have you been a police office for? --- Fifteen years. …

In your time as a police officer, have you ever had an occasion such as this one when you have served documents on a legal practitioner? --- Absolutely not, and that's I think that's why I recalled this, because I've never had it made so difficult to serve documents on anybody. (T:18 20, 16.11.11)

45 Senior Constable Neas was also crossexamined by Ms in de Braekt in relation to a statement that Senior Constable Neas had made at Constable Squire's request on 27 May 2009 which referred to service of the form 6 relating to the adjournment application in the matter of APC on Ms in de Braekt on 26 May 2009, but did not refer to the service of any other documents on her on that day. In reexamination, Senior Constable Neas gave the following evidence:

It was suggested to you that statement only refers to the service of a form 6 on Ms in de Braekt. Do you recall that being suggested to you? --- Yes.

Is that right? --- No, that's incorrect. It was full disclosure.

If you have a look at the statement there in front of you - can you just have a look through it? --- Yes. I have put 'namely a form 6'.

Yes? --- But it was a form 6 and disclosure. I actually saw the disclosure, I was reading through it in the car on the way there, due to the fact that not obviously First Class Constable Squire is a very competent and able police officer, but being a senior constable, I always like to check that things are in order. That's why I noted it was disclosure. (T:21.3, 16.11.11)

46 When leave was granted for further crossexamination of Senior Constable Neas, she gave the following answer to the question 'The only document that was served on my office on 26 May 2009 was the form 6?':

No, the full disclosure with colour copy of digiboards as well. It wasn't just the form 6 that was served on 26 May [2009] at [Ms in de Braekt's] office.

(T:26.7, 16.11.11)

(Page 22)

47 Ms in de Braekt did not crossexamine Constable Squire to show that Constable Squire had somehow colluded with Senior Constable Neas in relation to their evidence to the Tribunal. Ms in de Braekt did ask Senior Constable Neas whether she had spoken to Constable Squire about the matter, and Senior Constable Neas replied 'Possibly between May and October', which appears to be a reference to 2009. There was no detailed crossexamination of Senior Constable Neas on this point and it was not suggested to her that there had been any collusion between her and Constable Squire in relation to the evidence that they gave to the Tribunal in this matter. Furthermore, neither Constable Squire nor Senior Constable Neas was crossexamined by Ms in de Braekt to the effect that either of them had any animosity towards Ms in de Braekt, whether before or after the events in relation to which they gave evidence.

48 In addition to the Receipt and Certificate of Service that Constable Squire signed on 25 June 2009 stating that she left the disclosure documents at Ms in de Braekt's office and posted the disclosure documents to Ms in de Braekt's office by registered post, there are two other documents in the evidence that support Constable Squire's evidence that she provided copies of the colour digiboards to Ms in de Braekt by placing the documents in the mailbox located outside Ms in de Braekt's office and by sending the documents to her on 25 June 2009.

49 First, as noted earlier, Constable Squire referred to the email request dated 5 June 2009 from Sergeant Derek Grimes 'to again provide the material to the practitioner'. Sergeant Grimes' email to Constable Squire attached two PDF documents and stated:

Please find attached the original email for the photoboards used in this case. This way you can just print it out in colour and give it to the lawyer for disclosure.

50 Second, as noted earlier, at the hearing of the matter involving APC before Magistrate Calder on 6 July 2009, the prosecutor said the following to his Honour after Ms in de Braekt said that she still did not have the colour digiboards:

Sir, if may respond. I have the original here. I've spoken with the case officers. My friend is correct, there have been a number of issues with this brief, to say the least, but I am advised, Sir, that the case officers had great difficulty in meeting Ms in de Braekt to provide service.

They advised me that colour photos - in fact disclosure was done again on 25 June 2009 by personally delivering an envelope to the address of 336 Albany Highway, Victoria Park. It was left in the box at

(Page 23)

336 Victoria Park, which I understand is the box of my friend. It was also sent by registered post on the same date, Sir. I have the digiboard here before me if my friend wishes to view the original, but my friend tells me she was provided with black and whites but the officer assures me on my question that colour ones have been provided.

(Exhibit 2, 72)

51 Ms in de Braekt submitted that Constable Squire and Senior Constable Neas were both 'unimpressive witnesses' for essentially 12 reasons.

52 First, during her crossexamination of Constable Squire, Ms in de Braekt produced, for the first time, a bundle of documents which she tendered as 'a bundle of served documents dated 18/6/2009' (T:70.4, 15.11.11) and which became Exhibit 7. At T:52 54, 15.11.11, Ms in de Braekt crossexamined Constable Squire as to whether Constable Squire disclosed the documents that became Exhibit 7 to Ms in de Braekt. Constable Squire specifically identified certain documents in Exhibit 7 which were not disclosed to Ms in de Braekt by her. In reexamination, Constable Squire was asked 'Did you serve this bundle of documents [Exhibit 7] on Ms in de Braekt?', to which Constable Squire replied 'No' (T:125.8, 15.11.11). Constable Squire was then asked about certain documents in Exhibit 7, including summonses to civilian witnesses in the matter of APC showing the home addresses of the witnesses. When Constable Squire was asked whether she had 'ever known summonses to witnesses to ever be served upon counsel acting for an accused person … as part of disclosure?', she replied 'No' (T:132.8, 15.11.11).

53 In her submissions, Ms in de Braekt criticised Constable Squire's evidence in this respect and said that it was inconsistent with an email she sent to Superintendent Lawrence Panaia on 14 July 2009 in relation to 'disclosure to defence [counsel] Megan in de Braekt' in relation to the APC matter in which Constable Squire said:

At all times the defence was supplied with new witness summons and any other material or documentation which came to light prior to the trial dates …

54 However, Constable Squire's evidence that she had never known of summonses to civilian witnesses showing their home addresses being disclosed to defence counsel is not inconsistent with the statement that 'the defence was supplied with new witness summons and any other material or documentation which came to light prior to the trial dates …'. It is
(Page 24)

hardly remarkable that, in criminal cases, the home addresses of civilian witnesses are not disclosed to the defence.

55 Second, Ms in de Braekt criticised Constable Squire's statement in her email of 14 July 2009 to Superintendent Panaia that:

I made every effort to serve disclosure on the defence [counsel] personally and including the Certificate of Service each time. Each time this was requested to be signed and returned, the defence failed to cooperate.

56 Ms in de Braekt pointed to a Receipt and Certificate of Service in relation to the form 6 which she signed on 27 May 2009 and faxed to Gosnells Police Station on 28 May 2009 (Exhibit 12). However, it appears that, on each other occasion that documents were served by Constable Squire on Ms in de Braekt, and in particular when the disclosure documents, including the colour digiboards, were left in Ms in de Braekt's office post box on 26 May 2009 and 25 June 2009, Ms in de Braekt failed to cooperate by signing and returning the Receipt and Certificate of Service.

57 Third, Ms in de Braekt submitted that Constable Squire cannot be relied upon to give accurate evidence about the service of the colour digiboards, because, in crossexamination in the hearing in relation to the charges against APC on 2 September 2009, Constable Squire conceded that she made a mistake in her evidence in chief when she said that she had taken photos of cuts to the victim's hand, but had lost them. When Ms in de Braekt presented Constable Squire with the Constable's contemporaneous incident report which stated 'No photos taken', the Constable readily agreed that the narrative in the incident report was correct and that consequently 'quite possibly' her memory in relation to the victim's injuries was incorrect.

58 However, the Tribunal does not consider that Constable Squire's error, which she readily conceded in the proceeding against APC, has the result that she can be characterised as 'a poor historian', and much less as an 'unimpressive witness', as suggested by Ms in de Braekt. In this case, Constable Squire gave clear evidence from her own recollection in relation to her service of the colour digiboards on 26 May 2009, which was strongly corroborated by Senior Constable Neas, and in relation to her service of the colour digiboards on 25 June 2009, which is supported by the three documents referred to earlier.

59 Fourth, Ms in de Braekt submitted that Constable Squire's evidence 'is tainted by having obtained information from [the Committee's

(Page 25)

solicitor]' and that this 'cuts the legs out' of allegation (a) made by the Committee. In crossexamination, Constable Squire said that, when she asked for further information to clarify her statement, she was provided with the original brief in the APC matter by the Committee's solicitor. However, given that Constable Squire's witness statement is dated 11 May 2011, whereas she said that she was provided with the original brief by the Committee's solicitors four to six weeks before she gave evidence on 15 November 2011 (T:83.6, 15.11.11), and that her evidence was clearly based on an actual recollection of the events in issue, Constable Squire's reference to the original brief provided by the Committee's solicitor does not mean that her evidence was 'tainted' or 'unreliable', as suggested by Ms in de Braekt.

60 Fifth, Ms in de Braekt suggested that a chain of emails between the Committee's solicitor, Superintendent Panaia and Constable Squire, showed 'contamination of the witness' evidence'. The email from the Committee's solicitor to Superintendent Panaia dated 8 June 2010 stated as follows:

Dear Superintendent

I wish to clarify whether Constable Squire recalls there being a sign on Ms in de Braekt's office door on May/June 2009 to the following effect:

ATTENTION POLICE

& DDP COURIERS:

IF OFFICE DOOR IS UNATTENDED

PLEASE CALL …

IF NO ANSWER, LAWYER IS IN COURT:

PLEASE SLIP DOCUMENTS UNDER

DOOR, OR LEAVE IN MAILBOX

NEXT TO DOOR. PLEASE WRITE RETURN

FAX NUMBER FOR PROOF OF

SERVICE FORM TO BE FAXED TO.

This is the wording that was on a sign in January 2010. Even if Constable Squire cannot recall the exact wording, if she can say it was words to the effect of the above that would be sufficient.

(Page 26)

61 On 8 June 2010, Superintendent Panaia forwarded the email to Constable Squire as follows:

Good afternoon Sharon

The LPCC are continuing their inquiry into Ms in de Braekt.

Can you answer the question below.

62 Two minutes later, Constable Squire responded:

Superintendent Panaia

Yes signs displaying something to that effect was displayed.

63 However, this email exchange does not 'undermine the integrity of the evidence', as suggested by Ms in de Braekt. Constable Squire said that there were signs displaying 'something to that effect' on Ms in de Braekt's office door. It was clear to the Tribunal from the way in which Constable Squire gave her evidence that it was based on her own recollection. Furthermore, there was no dispute between the parties that signs to the effect of those described in Constable Squire's evidence were displayed at the relevant time.

64 Sixth, referring to the Receipt and Certificate of Service signed by Constable Squire on 25 June 2009 stating that documents including 'Photoboards & eight pages' were served by being left at Ms in de Braekt's office and by registered post, Ms in de Braekt suggested that, if colour digiboards had been served, there would have been more than eight pages, because the eight pages could not include the digital photoboard running sheets for each of the digiboards. However, as noted earlier, Constable Squire gave evidence that 'I wouldn't have disclosed the list of running sheets to you … The running sheet, the one that has the list of names on it, I do not think I disclosed to you' (T:49.5.6, 15.11.11). Constable Squire's evidence in this respect is entirely reasonable and the Tribunal has no hesitation in accepting it. Disclosure of the digital photoboard running sheet would involve advising the defendant's counsel of the names and birthdates of 11 people who have no involvement in the matter.

65 Seventh, Ms in de Braekt submitted that Constable Squire's evidence that she disclosed both the colour digiboards and black and white signed photocopies of the digiboards was inconsistent with her statement in her email of 14 July 2009 to Superintendent Panaia that 'all photoboard evidence and other images supplied to the defence were displayed in

(Page 27)

colour'. However, there is no inconsistency between Constable Squire's evidence and this statement. Constable Squire was crossexamined specifically about this point and gave evidence that there is no inconsistency because:

… you received the colour photoboards, yes, and the other images I provided were in colour, in addition to the signed one to certify the nonsigned original photoboard.

(T:75.7, 15.11.11)

66 We have no hesitation in accepting Constable Squire's evidence in relation to this point. Disclosure of both colour digiboards and black and white copies with the witness' identification of the selected photograph number and the witness' signature, name and the time and date of the identification, are both essential aspects of disclosure. Furthermore, as Ms in de Braekt agreed when asked by the Tribunal, the context of the email between Constable Squire and Superintendent Panaia was '[Ms in de Braekt's] complaint that [she] hadn't received the colour images' (T:75.9, 15.11.11). It is entirely understandable that the email, therefore, emphasised that disclosure had been made of colour images. The email does not say that there was no disclosure was made of black and white copies of the digiboards signed by the witnesses.

67 Eighth, Ms in de Braekt pointed out, correctly, that Constable Squire was not able to locate a Receipt and Certificate of Service in relation to the disclosure documents that she said were served on 26 May 2009. However, the Tribunal does not consider that the absence of this document renders either Constable Squire or Senior Constable Neas 'unimpressive witnesses', or calls into any serious doubt their evidence, given the totality of the evidence given to the Tribunal. In particular, as noted earlier, Constable Squire's evidence about the service of colour digiboards and other documents on 26 May 2009 was strongly corroborated by Senior Constable Neas. Both witnesses gave evidence clearly based on a distinct recollection of what occurred on 26 May 2009. In particular, Senior Constable Neas gave evidence based on a distinct recollection, with her memory 'jogged' by Ms in de Braekt's 'aggressive' tone and manner, including Ms in de Braekt having hung up on Senior Constable Neas. As Senior Constable Neas said 'I've never been hung up by a barrister or solicitor before, or spoken to in that tone when I was trying to just explain that we were going to her office to serve disclosure and documents, and just that she would just didn't appear to want to be helpful at all' (T:19.2, 16.11.11). Although Senior Constable Neas referred to Ms in de Braekt's 'aggressive' telephone conversation and the fact that Ms in de Braekt had hung up on her,

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Ms in de Braekt did not crossexamine Senior Constable Neas in relation to the telephone conversation. Rather, in a witness statement she filed the day after Senior Constable Neas gave her evidence, Ms in de Braekt denied that she hung up on Senior Constable Neas and said instead that:

I advised Senior Constable Neas that I could not continue to talk to her as I had to leave for court urgently, & that if I continued to speak with her, I would be late for court. I apologised for having to be abrupt, but that I had to go or I would be late. I remember this specifically, because she was very aggressive towards me, & insisted that I could not end the telephone call until she had finished saying what she wanted to say. I remember her getting very angry at me & telling me to

'Now listen here

… ' I remember explaining to her again, that I had to go because otherwise I would be late for court, but that she could call me back later, or if she had documents to give me, she could fax them to me or put them in my letterbox.

(Exhibit 11, para 9)

68 We accept Senior Constable Neas' evidence about her telephone conversation with Ms in de Braekt on 26 May 2009 and do not accept Ms in de Braekt's evidence about that telephone conversation. As noted earlier, Ms in de Braekt did not question Senior Constable Neas in relation to the telephone conversation. Furthermore, having carefully observed Senior Constable Neas while giving her evidence, the Tribunal finds her to be an honest, impressive and disinterested witness, with a genuine recollection of the events on the date in question, prompted by what was clearly an unusual, if not unique treatment by a legal practitioner. Finally, Senior Constable Neas' evidence as to Ms in de Braekt's verbal aggression is entirely consistent with the evidence which we accept below and our findings in relation to her conduct in respect of other allegations made by the Committee in this proceeding.

69 Ninth, Ms in de Braekt submitted that Senior Constable Neas' statement of 27 May 2009, which refers only to the service of the form 6 on 26 May 2009, demonstrates that no other documents could have been served on her on 26 May 2009. However, as noted earlier, Senior Constable Neas was specifically asked about this statement and said that, although she only referred to the form 6 in the statement, 'it was a form 6 and disclosure'. It was then that she gave evidence that:

I actually saw the disclosure, I was reading through it in the car on the way there, due to the fact that not obviously First Class Constable Squire is a very competent and able police officer, but being a senior constable, I always like to check that things are in order. That's why I noted it was disclosure

. (T:21.4, 16.11.11)

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70 Having observed and heard this evidence, the Tribunal considers that it was an example of genuine recollection by an honest and impressive witness. There is no clear explanation in the evidence as to why Senior Constable Neas' statement of 27 May 2009 referred only to the form 6. The statement was prepared and signed a few days before the application foreshadowed in the form 6 was made to the Magistrates Court for an adjournment of the hearing in relation to APC, although there is no evidence before the Tribunal that the statement was prepared for the purposes of that application. In any case, whatever the reason for the omission from the statement of 27 May 2009 of reference to the disclosure of other documents, including the colour digiboards, the Tribunal accepts Senior Constable Neas' evidence that those documents were provided to Ms in de Braekt on 26 May 2009.

71 Tenth, Ms in de Braekt submitted that there is evidence of collusion between Constable Squire and Senior Constable Neas, because, in her email of 14 July 2009 to Superintendent Panaia, Constable Squire, after referring to her provision of 'full disclosure [by] delivering it by hand to [Ms in de Braekt's] secured mailbox and again by registered mail on 26 May 2009', said:

This is confirmed by S/c Neas.

72 However, this reference in the email of 14 July 2009 does not demonstrate collusion between the witnesses in relation to their evidence to the Tribunal. It simply shows that, when Superintendent Panaia made enquiries in relation to disclosure following Ms in de Braekt's complaint that she had not received colour digiboards, Senior Constable Neas confirmed Constable Squire's statement that full disclosure was given on 26 May 2009. As found earlier, Senior Constable Neas' recollection of the events on 26 May 2009 strongly corroborates Constable Squire's evidence. As noted earlier, Constable Squire was not crossexamined to the effect that there was any collusion between her and Senior Constable Neas in relation to their evidence.

73 Eleventh, Ms in de Braekt submitted that there was prior hostility between Constable Squire and herself, because Constable Squire's email of 14 July 2009 to Superintendent Panaia demonstrates that she was 'aggressive and nasty' to Ms in de Braekt and because Constable Squire 'no doubt felt antipathy' to Ms in de Braekt in consequence of her crossexamination of Constable Squire in relation to the photographs in the trial of APC on 2 September 2009. However, there is nothing in the email of 14 July 2009 showing any hostility on the part of

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Constable Squire to Ms in de Braekt. As noted earlier, Ms in de Braekt did not crossexamine Constable Squire to the effect that she had any animosity to Ms in de Braekt. In the crossexamination in the APC trial on 2 September 2009, Constable Squire readily conceded the points suggested to her in crossexamination by Ms in de Braekt. Finally, Constable Squire's evidence to the Tribunal is consistent with her email to Superintendent Panaia on 14 July 2009 which predated the crossexamination in the APC matter on 2 September 2009. The Tribunal therefore finds that Constable Squire did not feel any antipathy or animosity to Ms in de Braekt, either before or after the dates in relation to which Constable Squire gave evidence.

74 Twelfth, Ms in de Braekt submitted that Constable Squire gave inconsistent evidence in relation to the number of times that she provided disclosure of documents, including the colour digiboards, to her. In the email of 14 July 2009 to Superintendent Panaia, Constable Squire referred to disclosure on six occasions, whereas in her evidence, she referred to disclosure of documents, including the colour digiboards, to Ms in de Braekt on four occasions, namely, by leaving the documents in the secured silver mailbox located outside Ms in de Braekt's office on 26 May 2009 and 25 June 2009, and by sending a copy by registered post on 27 May 2009 and 25 June 2009. However, it is clear from both the email of 14 July 2009 and from Constable Squire's oral evidence that the six occasions of disclosure referred to in her email included provision of the form 6 by leaving it in Ms in de Braekt's secured mailbox and by faxing it to her on 26 May 2009.

75 Having carefully observed the evidence of Constable Squire and Senior Constable Neas, and having considered each of the submissions made by Ms in de Braekt in relation to their evidence, the Tribunal finds that Constable Squire and Senior Constable Neas were each honest, impressive and impartial witnesses with a genuine recollection of the relevant events which occurred on 26 May 2009 and (in the case of Constable Squire) on 27 May 2009 (sending a copy of disclosure documents to Ms in de Braekt by registered post) and on 25 June 2009.

76 Under crossexamination, Ms in de Braekt conceded that, while she sometimes occasionally misplaces a document, she 'always find[s] it again' (T:57.5, 17.11.11). Ms in de Braekt also conceded that the letterbox at the front of her office is always locked and indeed 'it has to be locked in order to be kept together' (T:57.7, 17.11.11). Ms in de Braekt also conceded that 'there's no chance … that if things such as disclosure documents had been put into [her office post] box, that they'd just [have]

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gone missing, … [because] the slot is too [small] wouldn't allow that. The slot also the edges of the slot are sharp, so it would cut [a person's hand]' (T:57.958.1 and T58.959.1, 17.11.11).

I would have to know the circumstances. I don't think so.

(T:206.2, 22.2.12)

90 Similarly Mr McCorry gave the following evidence in crossexamination:
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Now, you've given some assessments of Ms in de Braekt's character in your statement. I just want to put a proposition to you and see whether or not that affects your assessment of her character. If it were true that Ms in de Braekt had deliberately refused to comply with orders made by a tribunal, would your assessment of her character change? --- I'm not sure. Not necessarily. It depends on who's made the finding.

Well, if a tribunal constituted by law under a statute of this state had made binding orders upon Ms in de Braekt which she flouted, would your assessment of her character change? --- I'd be surprised if that was the case, but it wouldn't change my assessment of her character.

So let's take that in two steps. Firstly it wouldn't change your assessment of her character? --- No.

Secondly, it would be surprising to you, based on the person that you know? --- Yes.

So based upon your interactions with her, that sounds out of character? --- Yes.

(T:199.9-200.3, 22.2.12)

91 As Mr McCorry was not aware of relevant information in relation to Ms in de Braekt's character, and would not alter his opinion of her when he was advised of this information or a hypothetical situation that might be seen to cast doubt upon her character, we do not consider that he has assessed Ms in de Braekt's character in a balanced and objective way, and we therefore place very little weight on his evidence.

92 Allegation (a) turns largely on the credibility of three witnesses, namely, Constable Squire, Senior Constable Neas and Ms in de Braekt. The Tribunal has earlier found Constable Squire and Senior Constable Neas to be honest, impressive and impartial witnesses, with a distinct recollection of the disclosure of the documents in question. The Tribunal, therefore, accepts their evidence that the colour digiboards in relation to the APC matter were served on Ms in de Braekt, by leaving them in the locked post box of her office on 26 May 2009 and 25 June 2009 and by sending them to her by registered post on 27 May 2009 and 25 June 2009. As we accept Constable Squire's and Senior Constable Neas' evidence, and as, on Ms in de Braekt's evidence, there is no possibility that disclosure documents placed into the post box of her office would have gone missing, we do not accept Ms in de Braekt's denial of having received the colour digiboards. Furthermore, in light of the Tribunal's findings above and below in relation to aspects of Ms in de Braekt's evidence, the Tribunal has significant doubts as to her truthfulness and credibility.

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93 The Tribunal therefore feels an actual persuasion on the evidence, in accordance with the Briginshaw principle, that the colour digiboards in relation to the APC matter were disclosed to Ms in de Braekt by Constable Squire on four occasions in May and June 2009, namely, by being placed into the locked post box outside Ms in de Braekt's office on 26 May 2009 and on 25 June 2009, and by being sent by Constable Squire to Ms in de Braekt by registered post on 27 May 2009 and again on 25 June 2009. As Ms in de Braekt gave evidence that it is not possible for disclosure documents placed into the locked post box of her office to have gone missing and that, while she occasionally misplaces a document, she always finds it again, the Tribunal is satisfied on a balance of probabilities that Ms in de Braekt knowingly and intentionally misled the Magistrates Court on 4 June 2009 and on 6 July 2009 by stating to the court that she had never received disclosure of a colour digiboard from the police in the APC matter when such disclosure had been made to her.

94 While it is unnecessary for the Tribunal to come to a finding in relation to Ms in de Braekt's motivation for misleading the court on 4 June 2009 and 6 July 2009, it appears that she did so on 4 June 2009 in order to support an application for the proceeding against APC to be dismissed on the basis of the failure of the police to provide disclosure of the digiboards. Although the proceeding in relation to APC was listed for hearing on 4 June 2009, and although Ms in de Braekt was required as a matter of law to give 14 days' notice of any objections to evidence, she did not provide notice prior to the hearing on 4 June 2009 of any objection to the video record of interview in which APC made admissions that he was present at the scene. As Ms in de Braekt conceded at the hearing on 6 July 2009, the digiboard identifications were not in issue, because of the admissions made in the video record of interview (to which no objection was foreshadowed or taken). Ms in de Braekt's failure to give notice prior to the hearing on 4 June 2009 of an objection to the video record of interview shows that she did not intend to dispute that her client was present at the scene. She therefore did not require the colour digiboards for any legitimate forensic purpose. Thus, it appears that she misled the court on 4 June 2009 that she had not received disclosure of the colour digiboards in order to enable her to make a technical argument for the dismissal of the proceeding on the basis of nondisclosure. The Tribunal did not find Ms in de Braekt's evidence that her client's instructions changed (between 4 June 2009 and 6 July 2009) convincing, because Ms in de Braekt had not given notice of an objection to the video record of interview prior to the hearing scheduled for 4 June 2009. It is unclear why Ms in de Braekt misled the court on 6 July 2009 that she had

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not received disclosure of the colour digiboards, other than perhaps for consistency. However, as noted earlier, it is unnecessary for the Tribunal to come to a finding as to Ms in de Braekt's motivation for misleading the court on either 4 June 2009 or 6 July 2009, and we do not do so.

95 Ms in de Braekt's conduct in knowingly making misleading statements to the court would constitute professional misconduct of a most serious nature at common law and is professional misconduct under the LP Act, in that it was conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence. Ipp J held in Kyle at [6] as follows:

It is the essence of a charge of unprofessional conduct involving misleading the court that the practitioner concerned is guilty of having done something dishonourable: see

Re Cooke

(1889) 5 TLR 407 at 408, per Lord Esher MR (with whom Fry and Lopes LJJ agreed). The dishonourable quality lies in knowingly misleading the court: see

Tombling v Universal Bulb Co Ltd

[1951] 2 TLR 289 at 297, per Denning LJ;

Vernon v Bosley (No 2)

[1997] 3 WLR 683; [1997] 1 All ER 614. A practitioner who knowingly misleads a court will do so dishonestly. Therein lies the unprofessional conduct. …

96 As Parker J (with whom Ipp J, at [1], and Steytler J, at [22], agreed) held in Kyle at [66]:

The duty of counsel not to mislead the court in any respect must be observed without regard to the interests of the counsel or of those whom the counsel represents. No instructions of a client, no degree of concern for the client's interests, can override the duty which counsel owes to the court in this respect. At heart, the justification for this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by counsel is essential to maintain and justify the confidence which every court rightly and necessarily puts in all counsel who appear before it.

97 Furthermore, as the Court of Appeal observed in Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61]:

For a practitioner, in the course of his or her practice, intentionally to mislead anyone is a serious breach of the practitioner's professional duty. But the finding in the present case that the appellants intentionally misled the court is of particular significance. It goes to the very heart of a practitioner's duty as an officer of the court and therefore to the proper administration of justice. …

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Allegation (b) Was the practitioner persistently discourteous and offensive to Magistrate Woods during a hearing?

98 As noted in relation to allegation (a), on 4 June 2009, the prosecutor made an application before Magistrate Woods for the adjournment of the trial in relation to APC, which was listed for hearing that day, because the victim had undergone an operation on the previous day. The prosecutor made a brief submission in support of the application for an adjournment and then Magistrate Woods called on Ms in de Braekt to make her submissions. Ms in de Braekt made submissions in opposition to the application for an adjournment which are recorded over about one and a half pages of the transcript, and then said 'Those are my submissions'. Ms in de Braekt conceded in crossexamination that she finished her submissions at that point (T:69.8, 17.11.11). The magistrate then invited the prosecutor to make any submissions in reply and the prosecutor made a brief reply submission. The magistrate then asked the prosecutor about the disclosure of the digiboards which Ms in de Braekt had raised in her submissions. When the prosecutor said that the material was back at his office, the following exchange took place:

IN DE BRAEKT, MS: That's not good enough, your Honour, and furthermore that ---

HER HONOUR: Ms in de Braekt, I didn't ask you. Have a seat.

IN DE BRAEKT, MS: Well, I've got further submissions to make.

HER HONOUR: Have a seat.

(Exhibit 2, 26.3-.4)

99 Following further discussion between Magistrate Woods and the prosecutor in relation to disclosure of documents, the following exchange took place:

HER HONOUR: Okay. Ms in de Braekt?

IN DE BRAEKT, MS: Well, I find that remarkable. Obviously the sergeant's presuming that this adjournment application is going to be approved because otherwise how would he proceed with the case if the digiboard stuff was back at the office? Furthermore, there's no evidence before this court that the procedure that [the victim] underwent was urgent or necessary or lifesaving; none at all.

HER HONOUR: It's not necessary, Ms in de Braekt. The simple fact of the matter

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IN DE BRAEKT, MS: Well, with respect, your Honour, it is necessary because if [the victim] didn't go ---

HER HONOUR: Ms in de Braekt, I make the decisions in this court not yourself.

IN DE BRAEKT, MS: Excuse me, your Honour, I'd like to finish my submissions.

HER HONOUR: Have a seat.

IN DE BRAEKT, MS: I'd like to finish my submissions.

HER HONOUR: Have a seat.

IN DE BRAEKT, MS: I'd like to finish my submissions.

HER HONOUR: Have a seat.

IN DE BRAEKT, MS: I'd like to finish my submissions. I don't think this court can make a proper informed decision without me finishing my submissions.

HER HONOUR: Have a seat, Ms Ms in de Braekt.

IN DE BRAEKT, MS: I'd like to finish my submissions and if your Honour doesn't allow me to finish my submissions, then with ---

HER HONOUR: Have a seat in the back of the court. The matter will be stood down. Thank you.

IN DE BRAEKT, MS: I respectfully submit that your Honour should disqualify herself in this matter and should send it to another magistrate to determine. Clearly, your Honour is not able to deal with this matter impartially or not maintain a perception ---

HER HONOUR: Ms in de Braekt.

(Exhibit 2, 27)

100 The Tribunal listened to the recording of the hearing before Magistrate Woods on 4 June 2009 and the recording became Exhibit 10 in the proceeding. It was apparent from the recording that there was a distinct pause between Magistrate Woods saying that 'the matter will be stood down. Thank you.' and the application made by Ms in de Braekt that her Honour should recuse herself on the grounds of actual or perceived bias.

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101 Magistrate Woods later recalled the matter. The following exchange then took place:

HER HONOUR: In relation to this matter, Ms in de Braekt, you wanted to make some further comment.

IN DE BRAEKT, MS: Yes, the further comment that the defence wish to make, there is no evidence before the court about the kind of procedure that it was other than what was provided to his Honour, Magistrate Heaney, last Friday. So the indication that it had to be done yesterday, there's no evidence before the court that any efforts were made by the witness to schedule that procedure for a time that didn't interfere with the witness summons commitments. No evidence of that nature at all. Nothing before the court to say that he couldn't do it on another day and what efforts were made because presumably he is under witness summons and there's no evidence before the court whatsoever to say that he went to any endeavour to schedule that so it wouldn't clash with his witness summons commitment and also, with respect, that we also say that your Honour is not able to deal with this matter due to a perception of bias.

Telling defence counsel to have a seat at the back of the courtroom like they were an accused person is with respect beyond the pale and it is something that I took great offence at and it does cause a reasonable person to perceive that your Honour wouldn't be able to bring a fair and impartial mind free of pre-judgment of the determination of the adjournment application. May it please, your Honour.

HER HONOUR: Thank you. Did you want to make any other comments, Sergeant?

PROSECUTOR: No, your Honour.

HER HONOUR: In relation to this matter, I don't intend to disqualify myself. The application has properly been brought before the court. The outcome of the matter is of no consequence to me. …

(Exhibit 2, 28)

102 Her Honour then allowed the adjournment application on the basis of the medical certificate.

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103 It is clear from the recording of the hearing, supplemented by the transcript, that Ms in de Braekt interrupted the magistrate at a point when it was obvious that her Honour was about to give a ruling in relation to the adjournment application. When crossexamined about this, Ms in de Braekt said that she thought that the ruling was 'imminent', but she did not think that she had interrupted the ruling (T:72.6, 17.11.11). Ms in de Braekt said that she thought Magistrate Woods 'was just cutting off my submissions and not allowing me to finish them' (T:73.3, 17.11.11). However, as Ms in de Braekt conceded, she had completed her submissions in relation to the adjournment application earlier when she said 'Those are my submissions'. The prosecutor then made a brief reply and her Honour raised the question of disclosure of the digiboards. After the prosecutor explained the situation, as he understood it, in relation to disclosure of the digiboards, her Honour allowed Ms in de Braekt to comment on that issue. Ms in de Braekt did that and completed her comment with the sentence:

Furthermore there's no evidence before this court that the procedure that [the victim] underwent was urgent or necessary or lifesaving; none at all.

104 It was obvious that her Honour was about to give a ruling in relation to the adjournment application when she said:

It's not necessary Ms in de Braekt. The simple fact of the matter ---.

105 If, as Ms in de Braekt said, she considered that the ruling was only 'imminent', but her Honour was not about to give the ruling at that point, it would have been obvious to Ms in de Braekt that the ruling was about to be given when her Honour responded to Ms in de Braekt's interruption by saying:

Ms in de Braekt, I make the decisions in this court, not yourself.

106 Ms in de Braekt then said 'I'd like to finish my submissions', and was told by her Honour to 'have a seat' on four separate occasions. Each time Ms in de Braekt was told to 'have a seat', she replied 'I'd like to finish my submissions'. The audio recording reveals that Ms in de Braekt adopted a belligerent tone in each of these statements. When, after being told for the fourth time to 'have a seat', Ms in de Braekt again, in a belligerent tone, said 'I'd like to finish my submissions and if your Honour doesn't allow me to finish the submissions, then with ---', Magistrate Woods, quite understandably, decided to stand the matter down and therefore told Ms in de Braekt to 'have a seat in the back of the court'. As noted earlier, there was a distinct pause in the recording at this point. Rather than
(Page 46)

complying with her Honour's direction, and although the matter had been stood down, Ms in de Braekt then made a submission for Magistrate Woods to disqualify herself on the basis of actual or perceived bias.

107 Under crossexamination, Ms in de Braekt gave the following evidence:

You were directed on four occasions to have a seat, weren't you? --- And can I say to you that ---

The answer to my question is either a yes or a no? --- Yes, but not to have a seat at the bar table.

Are you suggesting that on those four occasions that Magistrate Woods said, 'Have a seat,' that you thought you were being directed to sit at the back of the court? --- Yes, because that is where her Honour's head was going as she was saying it. She was saying 'Have a seat. Have a seat,' and she was turning her head to the back left area of the courtroom. But the transcript doesn't show that and neither does the recording.

When you gave evidence this morning, which expanded beyond the very limited 16 paragraphs of your statement, on no occasion did you tell the Tribunal that Magistrate Woods indicated with her head or otherwise that you were to sit in the back of the court, did you? --- No, I didn't. But it was clear from my testimony that that's what I thought that she was saying to me, and that's what she was saying to me, and then she eventually articulated it orally in addition to the physical movements. Because she said, 'Have a seat in the back of the court.'

Did you sit down in the back of the court, Ms in de Braekt? --- I couldn't sit down at the back of the court, there were no seats. (T:74.3.7, 17.11.11)

108 When Ms in de Braekt was later asked questions by the Tribunal in relation to the physical configuration of the courtroom in which she had the exchange with Magistrate Woods on 4 June 2009, Ms in de Braekt said that there was a Bar table with one seat on her side and one seat on the prosecutor's side. Ms in de Braekt gave the following evidence in response to questions from the Tribunal:

So when, so I understand what happens in the Magistrates Court when a magistrate is making a ruling, if there's a prosecutor and a defence counsel, the counsel sit at those two seats you just described typically? --- If the ruling is directed to one particular party, so if it was directed to, like, defence counsel, then I would actually stand for that, as a sign of respect, if it was being directed to one party. If the ruling was being directed to

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both parties, having equal effect on both parties, then, in my experience, both parties sit.

Yes? --- That's my experience.

At those seats at the bar table. Is that right? --- Yes, that's right. One seat on each side, in that courtroom. In some – in a lot of courts there are two, but in that court it's very small, there's only one. (T:83.183.3, 17.11.11)

109 The Tribunal does not accept the veracity of Ms in de Braekt's evidence that Magistrate Woods was 'turning her head to the back left area of the courtroom', as if to direct her to sit at the back of the court, when she told Ms in de Braekt to 'have a seat' four times. Ms in de Braekt had not made any suggestion of this sort in her submissions to the Committee in relation to this allegation, in her witness statement (Exhibit 11), or in her oral evidence in chief which occupied some 30 pages of transcript. Furthermore, this evidence is not consistent with the physical configuration of the courtroom, which included a Bar table with a seat for defence counsel, at which Ms in de Braekt said counsel would sit during a ruling addressed to both parties, or with Ms in de Braekt's evidence that 'there were no seats' free at the back of the courtroom. Furthermore, as noted earlier, Magistrate Woods had to twice direct Ms in de Braekt to 'have a seat' on an earlier occasion during the discussion about the disclosure of the digiboards, because Ms in de Braekt interrupted her Honour when she was not being asked to address the court. It appears that Ms in de Braekt did take a seat (at the Bar table) on that occasion after being told to do so for the second time. The Tribunal therefore finds that Ms in de Braekt's evidence that Magistrate Woods indicated with her head that Ms in de Braekt was to take a seat at the back of the courtroom when, on four occasions, she told her to 'have a seat', was not truthful and, indeed, appeared to have been made up on the spot.

110 It is certainly the case, as Ms in de Braekt contended, that counsel is required to 'advocate fearlessly for their clients, particularly clients in criminal matters who are remanded in custody', as was APC. However, that is not an excuse for being persistently discourteous and offensive to a judicial officer, as was Ms in de Braekt in this case. As Lord Reid said in Rondel v Worsley [1969] 1 AC 191 at 227:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and

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often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. …

111 The Tribunal can well understand that, when the liberty of a client is at stake and in the heat of argument, counsel may have to be told to sit down once or twice by a judicial officer, although in such a case, the Tribunal would expect an immediate and genuine apology from counsel. However, for counsel to have to be told by a judicial officer to 'have a seat' on four occasions and for counsel to still argue with the judicial officer such that the judicial officer has no practical alternative but to stand the matter down, would be regarded as disgraceful or dishonourable by practitioners of good repute and competence. This is the case whether or not counsel had completed their submissions and the judicial officer was about to give a ruling, which was the case in this matter. Ms in de Braekt's persistent interruptions and repetitive demands of Magistrate Woods on a total of five occasions, and her belligerent tone, without offering any apology to her Honour whatsoever, is such serious conduct as to, in our view, transcend unsatisfactory professional conduct and constitute professional misconduct under the LP Act.

112 In her Respondent's Answer to the Committee's application filed on 6 December 2010, Ms in de Braekt referred to the decision of the Administrative Decisions Tribunal of New South Wales in New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85 (Caffrey), in which a barrister was found to have engaged in 'unsatisfactory professional conduct' (within the meaning of s 127(2) of the Legal Profession Act 1987 (NSW)) in the course of an arbitration in the Local Court. The barrister's conduct in Caffrey included accusing the Arbitrator of being 'already prejudiced against us', saying to the Arbitrator 'Have you ever heard of the rule in Browne v Dunn?', describing the Arbitrator's conduct as 'abominable', and saying to the Arbitrator 'You scare me' and later 'I'll bring another pair of underpants along'. In her Answer, Ms in de Braekt said that the barrister in Caffrey 'was only found guilty of unsatisfactory conduct & not professional misconduct'. Ms in de Braekt did not refer to Caffrey in her closing submissions. In any case, it is clear from [66] of Caffrey that the NSW Bar Association only sought a finding of 'unsatisfactory professional conduct' against the barrister, not professional misconduct. Furthermore, each case needs to be assessed on its own facts. Caffrey does not warrant a different result in the present case from that to which the Tribunal has arrived earlier.

113 Furthermore, Ms in de Braekt conceded that she then made a legal submission that Magistrate Woods was '(a) actually biased, or (b) that

(Page 49)

there was a perception that she was biased' (T:77.4, 17.11.11). Ms in de Braekt explained her understanding that submissions of actual or perceived bias 'are always made' together (T:77.6, 17.11.11). Ms in de Braekt gave the following evidence in crossexamination:

Well, the submission was made on the basis of actual or perceived bias, and that submission, and there weren't separate submissions made for each of those things, there was one joint submission, and that submission was well-founded because she wouldn't let me finish my submissions.

(T:79.5, 17.11.11)

114 By way of re-examination, Ms in de Braekt gave the following evidence:

With regards to submissions about perceived or actual bias, on the rare occasions that that sort of submission is made, I always make submissions in the alternative like that, and also the reasons for making those submissions are the same for perceived or actual bias. That's how I always approach it, so it's not a separate submission made for each of those limbs. The arguments that apply to one apply to the other one, so there's no some separate argument for perceived or actual basis. The same arguments are used. The reason why then I only mentioned a perception of bias afterwards, later on in the appearance, is because I probably just focused on the lowest hurdle that needed to be met. You don't need to meet an actual bias hurdle for the application to succeed. It only needs to meet the perception of bias hurdle, so there's not really any need to address the higher hurdle.

(T:87.9-88.1, 17.11.11)

115 In her evidence to the Tribunal, Ms in de Braekt suggested that she had four reasons for making the application for Magistrate Woods to disqualify herself on the grounds of actual or apprehended bias. First, at the commencement of the hearing, her Honour had a conversation with the judicial support officer about other available trial dates. Second, Magistrate Woods would not allow Ms in de Braekt to finish her submissions. Third, her Honour told Ms in de Braekt to 'have a seat at the back of the court'. And fourth, Magistrate Woods stood the matter down to later in the list, when there would not be any magistrates left to hear the proceeding.

116 Ms in de Braekt's evidence revealed a fundamental misunderstanding about when an application for a judicial officer to disqualify themself on the grounds of bias can properly be made. Actual bias and apprehended bias are separate concepts in law and they are not properly the subject of 'one joint submission', as Ms in de Braekt suggested. As Newnes JA held in Chin v Legal Practice Board of Western Australia [2011] WASCA 110 (Chin) at [3]:

(Page 50)

The test to be applied in determining whether, in a case like the present, a judge is disqualified by reason of the appearance of bias is whether a fairminded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide:

Johnson v Johnson

[2000] HCA 48; (2000) 201 CLR 488, 492. The plurality in that case pointed out (493) that in applying that test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.

117 In contrast, as Newnes JA held in Chin at [5]:

Where a party contends that actual bias exists, the applicant must show that the mind of the decisionmaker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented:

Minister for Immigration and Multicultural Affairs v Jia Legeng

[2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decisionmaker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decisionmaker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see

Jia Legeng

[36], [72]. Such an allegation must be 'distinctly made and clearly proved':

Jia Legeng

[69], [127].

118 Given that, when the matter was recalled by Magistrate Woods and Ms in de Braekt was given the opportunity to make further comments, the only basis upon which she made an application for Magistrate Woods to disqualify herself was 'telling defence counsel to have a seat at the back of the courtroom like they were an accused person', the Tribunal does not accept Ms in de Braekt's evidence that the other three matters she referred to were factors in her mind when she made the application for her Honour to disqualify herself. The Tribunal considers, with respect, that her Honour handled Ms in de Braekt's persistent discourtesy and offensive behaviour with equanimity and in an entirely appropriate way. Having directed Ms in de Braekt to 'have a seat' four times, to no avail, her Honour stood the matter down. Telling Ms in de Braekt to 'have a seat at the back of the court' could not, in the circumstances, possibly provide an arguable basis for a submission of actual bias, nor, indeed, even for a submission of perceived bias. A fairminded lay observer of the exchange between Magistrate Woods and Ms in de Braekt on 4 June 2009 would not reasonably apprehend that her Honour might not bring an impartial and unprejudiced mind to the resolution of the question she had to decide. Rather, a fairminded lay observer would consider that her Honour acted entirely appropriately.

Other Parts:

Pages 51 to 83

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LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT

[2012] WASAT 58

27 MARCH 2012

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LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT [2012] WASAT 58