New South Wales Bar Association v Thomas

[2002] NSWADT 195

CITATION:	New South Wales Bar Association v Thomas [2002] NSWADT 195
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Timothy Leigh Thomas
FILE NUMBER:	012042
HEARING DATES:	19/09/02
SUBMISSIONS CLOSED:	09/19/2002
DATE OF DECISION:	10/03/2002
BEFORE:	Norton S - Judicial Member; Staff C - Judicial Member; Hayes E - Member
APPLICATION:	Professional Misconduct - appear at Court whilst intoxicated - Unsatisfactory Professional Conduct - appear at Court whilst intoxicated
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987 Administrative Decisions Tribunal Act 1997
CASES CITED:	Murray v Legal Services Commissioner & Anor (1999) 46 NSWLR 224
REPRESENTATION:	APPLICANT P Boulten, barrister RESPONDENT In person
ORDERS:	1. With respect to ground 1 there be a finding that the legal practitioner is guilty of unsatisfactory professional conduct.; 2. With respect to ground 2 the information is dismissed.; 3. The matter is adjourned to a date to be fixed for submissions on compensation, penalty and costs.

1 In this matter by Information filed on 5 December 2001 the New South Wales Bar Association complains about the conduct of a barrister which conduct it is said prevented a criminal trial from proceeding on 8 and 9 May 2000.

2 The matter was heard by the Tribunal on 19 September 2002. At the commencement of the hearing judicial member Norton disclosed to the parties that she had called the barrister via video link as a witness in an inquiry. Judicial member Staff indicated that he was related to partners at the firm of solicitors who were acting for the applicant. The parties indicated that they were content for the matter to proceed.

The Information

3 The Information filed on 5 December 2001 alleged that the barrister was guilty of professional misconduct on two grounds:

(i) The said Timothy Leigh Thomas, a legal practitioner, whose principal place of practice was in the State of New South Wales, did on 8 May 2000 appear in the District Court of New South Wales whilst intoxicated, as a consequence of which the trial of David Viane Taufua, in which he was briefed to appear for the accused, was unable to proceed on 8 May 2000.

(ii) The said Timothy Leigh Thomas, a legal practitioner, whose principal place of practice was in the State of New South Wales, did on 9 May 2000 appear in the District Court of New South Wales on which date he was intoxicated, or otherwise incapable as a result of his earlier intoxication, of appearing for the accused, as a consequence of which the trial of David Viane Taufua was unable to proceed on 9 May 2002.

4 The Information foreshadowed that there were claims for compensation under s 171D from the Director of Public Prosecutions for New South Wales and the Director of Criminal Law, New South Wales Legal Aid Commission.

5 The First Schedule to the Information set out the facts alleged by the applicant to be relevant. The Second Schedule indicated the compensation sought whilst the Third Schedule requested the Tribunal to make a finding of professional misconduct and to then make orders pursuant to s 171C of the Legal Profession Act, 1987 "as it deems fit" together with an order for costs.

6 Before the commencement of the proceedings the Tribunal requested the applicant to indicate whether or not they intended to make submissions on the question of penalty. Mr Boulten indicated that such submissions would be made. The Tribunal then requested Mr Boulten to foreshadow the orders that would be sought and was advised that the applicant was seeking an order under s 171C(a) that the barrister's name be removed from the Roll of Practitioners.

7 This was the first indication from the applicant to the barrister that such an order would be sought. The barrister was granted a short adjournment to consider whether he was ready to meet such a case. When the hearing resumed the barrister indicated that he was content to proceed although he requested that questions of penalty be stood over to a date to be fixed. This course was consented to by the applicant.

Reply

8 The barrister's reply was filed on 3 June 2002. It admitted the facts set out in the First Schedule to the Information save as to paragraphs 2 and 3. With respect to those paragraphs the barrister referred the Tribunal to his letter of 21 August 2000.

Rules of evidence

9 As the Information alleges professional misconduct the Tribunal is to observe the rules of law governing the admission of evidence despite the contrary provisions in s 73 of the Administrative Decisions Tribunals Act 1997. (s 168).

Evidence

10 The documentary evidence before the Tribunal consisted of:

Affidavit of John Scott MacLennan, solicitor, sworn 3 December 2001 together with 44 annexures (Exhibit 1);
Affidavit of Gordon Bruce Lerve sworn 17 June 2002 (Exhibit 2);
Affidavit of Terry Wand, legal practitioner, sworn 14 June 2002 (Exhibit 3).

11 As indicated above the barrister had filed a reply and documents tendered by the applicant included two letters of his dated 21 August 2000 and 16 November 2000. There was no objection by either party to the admission of the documents annexed to the affidavit of John Scott MacLennan being documents JSM 1 to JSM 44.

12 At the invitation of the Tribunal and not opposed by the applicant the barrister entered the witness box and swore that the contents of the reply and the two letters were true and correct. He was then cross-examined.

13 With respect to the events of the night of 7 May 2000 the barrister accepted that he had had a lot to drink starting at approximately 7 or 9 pm on the Sunday night. The barrister was drinking Vodka and consumed some portion of a bottle his best estimate being between one half or three quarters of a bottle over a period of several hours. During that time he was drinking consistently. His explanation was that he was consumed by personal issues with his ex-wife although his recollection of 7, 8 and 9 May is indistinct. He confirmed he may have drunk into the morning but that he doubted it. At 10.00 am he was ready in Court to run the trial although in retrospect he realises he was unable to appear on that day. His evidence was that he may have dozed off during the night but he did not actually go to bed. His evidence was that he realises now this behaviour was inappropriate but at the time he was consumed with his personal problems.

14 The barrister indicated that he had no knowledge that the matter had been adjourned until 9 May and he does not know why he attended Court on that day. He confirmed that he had drunk further Vodka on the night of 8 May and he believes it unlikely that he went to bed on that night either. His only recollections of 9 May are reconstructions from talking to other people.

15 The barrister reiterated the evidence contained in his letters that his inability to appear on 8 May was a combination of factors. He confirmed that his doctor, Dr Kohansky had prescribed him Campral for alcohol dependency and either that doctor or a doctor from an after hours medical centre had prescribed him Prozac for depression.

16 The barrister accepted responsibility for the trial not being able to proceed on 8 May. He confirmed that he has not had anything to drink since 2 months before August of 2000 and that early in 2001 he underwent open heart surgery and was unconscious for a number of days. Since that surgery he has had no desire to drink.

Jurisdiction

17 The following is a chronology of the documentation on which the applicant relies to establish the jurisdiction of this Tribunal. The documents are annexures to Exhibit 1.

15. 6.00 Complaint from the Director of Public Prosecutions (DPP) to the Legal Services Commissioner (LSC) (JSM2)

20. 6.00 That complaint was endorsed by the Director of Criminal Law, Legal Aid Commission (LAC) (JSM2)

5. 7.00 Letter Professional Affairs Director of the Bar Association, Ms Helen Barrett (HB) notifying the barrister of the complaint (JSM3). That letter recounts the complaint was referred by the LSC to the Bar Council for investigation pursuant to s 142 of the Act. A copy of the complaint was enclosed.

11. 7.00 The barrister wrote to HB asking for time to reply (JSM4).

17. 7.00 HB wrote to the barrister giving him until 21 August 2000 (JSM5).

21. 8.00 Letter barrister to HB admitting part of the complaint but providing an explanation (JSM6).

12.10.00 Letter HB to barrister enclosing copies of letters from complainant and inviting submissions (JSM7).

6.11.00 Letter barrister to HB commenting on complainant's letters (JSM8).

2. 3.01 Letter HB to barrister enclosing report of Professional Conduct Committee dated 14 February 2001 and inviting comment (JSM9). The letter indicated that the matter may be referred by Bar Council to the Administrative Decisions Tribunal requesting they make a finding of professional misconduct.

19. 4.01 Resolution of the Bar Council (JSM1).

7. 5.01 Letter HB enclosing further copy of report of 14 February 2001 and informing him of the resolution.

10. 5.01 Letter from barrister to HB acknowledging receipt.

5.12.01 Information filed in this Tribunal.

18 The barrister indicated to the Tribunal that he did not put in issue the jurisdiction of the Tribunal.

19 On its face the letter of 7.5.01 does not contain reasons and therefore does not comply with s 171J and s 156 of the Legal Profession Act (Murray v Legal Services Commissioner & Anor (1999) 46 NSWLR 224.

20 The reasons are said to be contained in the report of 14.2.01 which was enclosed with the letter. Given the attitude of the barrister the Tribunal finds that the letter and its enclosure is sufficient compliance with the Act and that there has been adequate investigation of the complaint and adequate opportunities given to the barrister to make submissions. The Tribunal therefore holds it has jurisdiction to consider this matter.

Ground 1 - Events of 8 May 2000

21 As noted above the barrister gave some evidence to the Tribunal concerning the events of this day but his recollection is severely limited.

22 Exhibit 2 is an affidavit of Gordon Bruce Lerve annexing a letter from him dated 25 May 2000. In that annexure Mr Lerve outlines the history of the trial that is the matter had been twice to the Court of Criminal Appeal and there had been a hung jury. The trial would therefore be the fourth trial in the matter. The last trial which resulted in a hung jury lasted a little over three days.

23 Mr Lerve states that at 10.00 am on 8 May 2000 he formed the opinion that Mr Thomas was affected by liquor. "There was a strong smell of alcohol on his breath, and his speech was quite slurred. The barrister did not stand when the judge entered the Court and after some discussion the matter was stood over until 9 May 2000.

24 Exhibit 3 is the affidavit of Kerry Wand sworn 14 June 2002 annexing a report from her dated 26 May 2000. Ms Wand noted that the barrister did not rise when the judge entered the Court. She tapped him on the shoulder but he did not respond. "He was slumped in the chair, his head was bowed forward." He remained in the prosecutor's chair even after being requested to move. Ms Wand formed the view that he was intoxicated "because he was slumped heavily in his chair, he appeared drowsy, his eyes were closed from time to time and he was unresponsive to questions. When he left the court room he was assisted to his feet and assisted in walking from the room."

25 The Tribunal has also read the transcript of the proceedings on that day. (Part of JSM 2). That transcript reveals that the barrister answered one question:

"His Honour: Is it ready as far as you are concerned, Mr Thomas?
Thomas: Indeed, yeah."
(Page 1.4).

26 Mr Lerve indicated to the Court that Mr Thomas was ill or in some type of distress. His Honour noted:

"It obviously couldn't start and I was simply waiting to mention the matter again and to see what we can do about it, if anything."
(Page 2.8)

27 The applicant caused enquiries to be made and obtained statements from various members of the profession who were present in Court on 8 May. Mr Ramsland, solicitor, who was instructing the barrister indicates that he did not have occasion to speak to the barrister on 8 May and was not aware "whether Mr Thomas was intoxicated or otherwise affected." (JSM17)

28 Mr Fitzgerald, barrister, noted that he observed the barrister on 8 May 2000 and noticed that he was "distracted and lacking in concentration. He appeared to be weary and disinterested in his surroundings. I could not say that Mr Thomas was intoxicated or affected by alcohol. I was in his close proximity and I did not detect alcohol on his person." Mr Fitzgerald formed the opinion that the barrister was not capable of representing the accused. (JSM 22).

29 Mr Geoffrey J Graham in a letter dated 12 July 2000 notes that he was requested to attend Court on the day as he was told there was a problem with the barrister. Mr Graham's observations were:

"He appeared to be dejected and ill. I formed the opinion that he was not in a position to represent his client in a serious criminal trial. I was unable to form an opinion as to intoxication. My conversations with him were very brief. I did not see him standing or walking and did not notice anything about his breath. Thomas is a very experienced and capable advocate. His demeanour was clearly, to me, short of his normal self, but I was unable in the short time I was in Court to determine the cause." (JSM 24).

30 Milda Kaitinis, solicitor with the Legal Aid Commission, by letter dated 13 July 2000 indicated to HB that Mr Thomas "appeared to be fatigued". "I do not believe I could say whether Mr Thomas was intoxicated or affected by alcohol on 8 May 2000. I can't make a judgment in relation to whether Mr Thomas appeared capable of representing the accused on 8 May 2000 due to my limited observations of him. (JSM 26).

31 In his letter of 21 August 2000 the barrister explained:

"On the night before the trial was due to start I had a particularly bitter argument with my ex wife and then had a lot to drink. I was feeling completely and utterly drained and did not get any sleep. It is quite probable that on the morning of the trial I was still affected to some extent by the alcohol I had consumed the night before. I was certainly exhausted by worry and lack of sleep. I was still consumed by problems with my ex wife and was not in a fit state to conduct a trial ... This was a serious lapse from the professional standards I have sought to maintain over the last quarter of a century and one that I view with the utmost concern. I am deeply sorry and embarrassed that it occurred. I am well aware of the cost and inconvenience to all parties of aborted criminal trials. I have now sought medical help and have been prescribed medication. I no longer drink at all and I have not done so for the past two months. While I have not resolved all the problems with my ex wife, my new wife is now with me in Australia and much of the personal stress has gone out of my life. I am confident that this episode will not be repeated." (JSM 6)

32 In his letter dated 6 November 2000 the barrister gave the following explanation:

"When I realised the severity of my problem and the effect that my marital difficulties were having I did seek help and was prescribed Campral (for alcohol dependency) and Prozac (for depression). I took these for several months but am now stable enough that I no longer require them. There is no doubt I should have sought help earlier than I did."

"As to the general concern of the Committee about the effect of alcohol and/or depression on my ability to practise I can see that the immediate stresses which led to my problems have now been removed. I have reached an amicable property and child contact agreement with my ex wife and we now have a generally civilised relationship. My new wife is now with me in Australia and, much to our mutual joy, is pregnant. Insofar as it is safe to predict anything to do with human nature, I am confident of my ability to practise as a barrister."

33 As noted above the barrister swore that the contents of those letters were true and correct and was cross-examined before the Tribunal.

Submissions and Reasons on Ground 1

34 The applicant referred the Tribunal to the provisions of s 127 of the Act which defines both professional misconduct and unsatisfactory professional conduct. The applicant submitted that the conduct of the barrister amounted to professional misconduct because his conducts were such that it involved a substantial failure to reach reasonable standards of competence and diligence. It was submitted that the extent of his intoxication was so great that he was unable to represent the interests of the person on whose behalf he had been retained. It was submitted that the Tribunal should accept the evidence of Mr Lerve and Ms Wand over the evidence of other persons who observed the barrister on 8 May. It was put that the barrister was so affected by alcohol that he was incapable of speaking intelligently and that this was a substantial failure to reach reasonable standards of competence and diligence.

35 The barrister conceded that his conduct amounted to unprofessional conduct but relied on the matters raised in his letters of 21 August and 6 November 2000 by way of explanation. The barrister submitted that he had been practising for a long period of time and that the events of 8 May needed to be looked at in the light of his domestic problems at the time.

36 The Tribunal has no difficulty accepting the proposition that if a barrister deliberately or recklessly consumes so much alcohol that he or she is unable to conduct a criminal trial or indeed any court appearance, a finding of professional misconduct would prima facie be the correct finding.

37 In the present case, however, the Tribunal has had the opportunity of seeing the barrister give evidence and accepts without reservation his explanation of the events. The Tribunal would have been assisted by medical evidence from the barrister's treating general practitioner. No such evidence was filed. The barrister gave evidence that he has sought assistance and been prescribed medication. This evidence was not challenged in cross examination and the Tribunal accepts that on the 8 May 2000 the barrister was unwell. The Tribunal accepts that the barrister's condition on that day was in part as a result of his excessive intake of alcohol the night before but notes that this may well have been an attempt at self medication on behalf of the barrister.

38 The Tribunal accepts the barrister's evidence that he has not drunk since approximately 2 months before August 2000, that is June or July 2000 and that since his recent open heart surgery he has not even felt tempted to drink. The Tribunal accepts that the efforts the barrister has made to put his personal life in order have been successful and reduced his level of depression. The Tribunal accepts the statement made by the barrister in his letter of 6 November 2000 that "insofar as it is safe to predict anything to do with human nature, I am confident of my ability to practice as a barrister".

Findings on Ground 1

39 The Tribunal therefore finds that although the barrister's conduct was unsatisfactory it was not so substantial as to amount to professional misconduct. The Tribunal therefore makes a finding of unsatisfactory professional conduct with respect to ground 1.

Ground 2 - Evidence

40 This ground relates to the events of 9 May 2000. The evidence as to the barrister's presentation at court on that day can be summarised as follows:

41 Exhibit 2 Affidavit of Gordon Bruce Lerve - the annexure to which states:

"Mr Thomas was at court on the morning of 9 May 2000, but again he was visibly well affect by liquor. The same indicia were present ie; strong smell of liquor on his breath, unsteady on his feet and the like".

42 Exhibit 3 Affidavit of Kerry Wand - paragraph 9 of the annexure:

"On this occasion Mr Thomas still appeared to be intoxicated, he was unsteady on his feet, he leant against the dock surround. During the above discussion, Mr Ramsland led Mr Thomas from the court room".

43 Letter of Mr Ramsland dated 18 July 2000:

"Mr Thomas was robed and well dressed on 9 May 2000. He appeared to have difficulty speaking. He also appeared to have difficulties standing. In response to question 10, that is: "Did Mr Thomas appear to you to be intoxicated, Mr Ramsland answered yes". In response to question 11 "Did Mr Thomas appear to you to be capable of representing the accused on 9 May 2000? If no, why not?". Mr Ramsland answered; "No. Please note however, Mr Thomas is no longer brief in the matter".

44 Mr Ramsland in reply to question 12 noted that he had a conversation with the barrister in which he said "Tim, you don't have to appear today, I have briefed Mr Warwick to appear on behalf of Mr Taufua". Mr Thomas said "Right". I said "you don't appear to be well Tim, I suggest you go home". (JSM 19).

45 Mr Fitzgerald in his letter of 17 August 2000 stated that on 9 May the barrister "appeared to be unsteady on his feet and distracted. He did not appear to be responsive to his surroundings in that he did not appear to be aware that he was in a court room. I could not say if Mr Thomas was intoxicated or affected by alcohol on 9 May 2000". (JSM 22).

46 Milda Kaitinis stated that from her observations she did not believe the barrister "appeared to be intoxicated or affected by alcohol on 9 May 2000". (JSM 26).

47 Mr Warwick in his letter of 26 July 2000 indicates he saw the barrister for only a couple of seconds and was not in any position to determine his state of intoxication. (JSM 30).

48 It is not alleged in the information that Mr Thomas was briefed to appear for the accused on 9 May 2000. In fact from the evidence tendered by the applicant, in particular the statement of Mr Ramsland (JMS 19) it is clear that the brief had been withdrawn on the 8 May 2000.

Submissions and Reasons on Ground 2

49 During the course of submissions counsel for the applicant agreed that there was no evidence that the barrister was aware the matter was set down for trial on 9 May 2000 nor was there any evidence that he had been requested to appear on behalf of the accused on that day.

50 It is clear from reading the transcript of the 8 May 2000 that the matter was stood over from that day to the 9 May because of an agreement between Mr Ramsland and Mr Lerve.

51 In the annexure to exhibit 2 Mr Lerve states that it was his opinion that the matter "was not beyond the ability of any competent counsel regularly appearing in criminal courts to become familiar with the matter overnight to the point where it could have commenced on the morning of Tuesday 9 May 2000".

52 The Tribunal has some misgivings with respect to this statement. As noted above there had been three prior trials. The first two had been the subject of successful appeals to the Court of Criminal Appeal. The third had resulted in a hung jury. It appears to the Tribunal that to competently run the fourth trial, counsel would have to be familiar with the transcripts of all three prior trials and the decisions of the court of criminal appeal.

53 The Tribunal finds that the matter was set down for hearing on 9 May 2000 in circumstances where it was unlikely that it would have been able to proceed on that day. It appears clear that the barrister was not briefed on the 9 May and thus even if he was still intoxicated on that day there is no basis for a finding of professional misconduct with respect to the events of that day. On behalf of the applicant it was submitted that the barrister should have foreseen that due to the complexity of the matter, no other barrister would be able to run it on the 9 May and therefore he should have been ready, willing and able to conduct the trial. It was further submitted that because the barrister was seen in the precinct of the court, robed, on the 9 May he must have been aware of this fact.

54 The Tribunal has had the benefit of hearing the barristers evidence and accepts that he does not know why he was present, robed, at court on 9 May. The Tribunal accepts that his recollections of the events of 8 and 9 May 2000 is vague. The clear evidence from his instructing solicitor, however, is that he was not instructed on that day.

Findings on Ground 2

55 In light of the above Ground 2 of the information is dismissed.

56 The Tribunal finds that the legal practitioner is guilty of unsatisfactory professional conduct with respect to the events of 8 May 2000 but the information is otherwise dismissed.

Orders

1. With respect to ground 1 there be a finding that the legal practitioner is guilty of unsatisfactory professional conduct.

2. With respect to ground 2 the information is dismissed.

3. The matter is adjourned to a date to be fixed for submissions on compensation, penalty and costs.