Re Crowley and the Legal Practitioners Act 1893 - [1999] WASCA 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE CROWLEY AND THE LEGAL PRACTITIONERS ACT 1893 [1999] WASCA 164

CORAM: MALCOLM CJ
ANDERSON J
WHITE J

HEARD: 13 AUGUST 1999

DELIVERED : 13 AUGUST 1999

PUBLISHED : 10 SEPTEMBER 1999

FILE NO/S: LPD 2 of 1999

MATTER :The Legal Practitioners Act 1893
and
Michael Thomas Crowley a practitioner of the Supreme Court of Western Australia

Catchwords:

Legal Practitioners - Legal Officer in Commonwealth Director of Public Prosecutions Corporate Prosecutions - Struck off Roll of Practitioners - Convicted of offences related to disclosing prosecution materials in breach of duty and interference with due administration of justice in pursuit of personal gain - Strikes at heart of administration of justice - Not a fit and proper person to remain on Roll

Legislation:

Nil

Result:

Practitioner struck off the Roll

Representation:

Counsel:

Legal Practitioners Complaints Committee : Mr B J H Goetze
Practitioner : No appearance

Solicitors:

Legal Practitioners Complaints Committee : Minter Ellison
Practitioner : No appearance

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

Clyne v NSW Bar Association (1960) 104 CLR 186
Harvey v Law Society of New South Wales (1975) 49 ALJR 362
In Re Davis (1947) 75 CLR 409
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Re a Barrister and Solicitor (1979) 40 FLR 1
Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

Case(s) also cited:

Nil

JUDGMENT OF THE COURT: This was a motion that:
1.Michael Thomas Crowley be struck off the Roll of Practitioners of this Honourable Court or otherwise dealt with as the Court may think fit; and
2.the practitioner pay the costs of and incidental to this motion to be taxed.
At the conclusion of the hearing on 13 August 1999 the Court was unanimously of the opinion that an order should be made in terms of the motion that the practitioner be struck off the Roll of Practitioners and that the practitioner pay the costs of the motion to be taxed. The Court then indicated that it would publish the reasons for making that order later. These are my reasons for joining in the making of the order.
By two references numbered R24 of 1997 dated 3 September 1997 and R12 of 1998 dated 27 November 1998 proceedings were issued before the Legal Practitioners Disciplinary Tribunal against the practitioner. The complainant in each reference was the Legal Practitioners Complaints Committee.
In reference R24 of 1997 it was alleged that the practitioner was guilty of illegal conduct in that on 26 February 1995 at Perth the practitioner, being a Commonwealth Officer, namely a Legal Officer 2 in the Corporate Prosecutions Branch of the Office of the Commonwealth Director of Public Prosecutions, published to one John Bryan Bond, a person to whom he was not authorised to publish the documents, a bundle of documents relating to the obtaining of the consent of the Attorney General to the institution of a prosecution against Alan Bond and others, which documents came into his possession by virtue of being a Commonwealth Officer and which it was his duty not to disclose.
By Reference R12 of 1998 it was alleged that the practitioner was guilty of illegal conduct in that on 26 February 1995 at Perth, being a Commonwealth Officer employed in a non‑judicial capacity for the prosecution of offenders, namely a Legal Officer 2 in the Corporate Prosecutions Branch of the Office of the Commonwealth Director of Public Prosecutions, corruptly asked John Bryan Bond for the payment of $2 million offshore on account of an act to be done, namely disclosing to John Bryan Bond confidential details of a prosecution then pending against Alan Bond, with a view to corrupt or improper interference with the due administration of justice under a law of the Commonwealth.
Each of these references mirrored counts in an indictment presented against the practitioner in the District Court. After a trial before a Judge of that Court and a jury on 10 March 1997, the jury found the practitioner guilty of the count in the indictment the subject of the allegation of illegal conduct in reference R24 of 1997, but could not reach a verdict on the second count in the indictment the subject of reference R12 of 1998. Subsequently, following a re‑trial of the second count in the District Court, the practitioner was found guilty on 25 February 1998.
The practitioner did not file an answer to either reference but in a letter to the Tribunal the practitioner said:
"I refer to your previous correspondence to me concerning this matter which is to be heard on Friday 16 April 1999. I confirm that I have received the above two References together with notice of the hearing.
Be advised that I do not propose attending the hearing nor have I instructed any counsel to appear on my behalf. I do ask however that this letter be taken into consideration by the Tribunal in their determination of these References.
I have received a copy of a letter by Mr B Goetze of Messrs Minter Ellison, Lawyers, dated 30 March 1999 which outlined the documentary material he intended submitting to prove the References. I confirm that I do not wish to place any further material before the Tribunal except for this letter.
I formally admit all the facts and allegations contained in the two References and acknowledge all the aggravating factors of my crime as expressed in the trial Judge's sentencing comments made on 17 March 1997 and 27 February 1998.
I acknowledge the serious disrepute and loss of respect that my criminal actions brought to the legal profession and the justice system. I fully accept the lengthy term of imprisonment that I received as a consequence. My actions were a gross breach of trust and seriously wrong. I feel a great sense of shame and guilt and deeply regret my crime. I apologise to the legal profession and the judicial system and fully expect that a reference to the Supreme Court will result in my removal from the Rolls."
The Tribunal received evidence confirming that on 10 March 1997, after a trial in the District Court, the practitioner had been found guilty of the illegal conduct referred to in Reference R24 of 1997. He had been sentenced to imprisonment for 15 months with an order that, subject to entering into a proper recognisance, he be released after six months. Evidence was also given that, in relation to the illegal conduct the subject of Reference R12 of 1998, the practitioner had been found guilty on 23 February 1998 after a trial in the District Court. On 27 February 1998 he had been sentenced to imprisonment for a term of five years with eligibility for parole at the expiration of two years and six months, such sentence to be served concurrently with the previous sentence. The Tribunal found that the practitioner was guilty of the illegal conduct alleged in each reference.
As the report of the Tribunal indicates, the practitioner was employed by the Corporate Prosecutions Branch of the Commonwealth Director of Public Prosecutions in relation to the prosecution of Alan Bond and others. As part of the prosecution team, the practitioner had unrestricted access to all confidential and other documents comprised in the investigation. In 1995 it was necessary to obtain the consent of the Commonwealth Attorney General to proceed with the prosecution against Alan Bond. The practitioner was directly involved in the preparation of a submission to the Attorney General for the purpose of obtaining that consent. The consent was duly given. Shortly afterwards, the practitioner contacted Alan Bond's son, John Bryan Bond ("John Bond") and offered to produce for him a sample of some of the confidential documents that made up the submission to the Attorney General if John Bond was prepared to pay $2 million to an offshore account nominated by the practitioner. John Bond was not prepared to accept this, but some of the documents were left alongside his letterbox by the practitioner. They were sent by John Bond to his father's solicitor who, in turn, handed them to the Federal Police. At the first District Court trial, the practitioner was found guilty of publishing the documents illegally to John Bond. This was the conduct which was the subject of Reference R24 of 1997.
At the first trial the jury were unable to agree that the practitioner's intention in publishing the documents was corrupt, as had been alleged in the count in the indictment the subject of Reference R12 of 1998 before the Tribunal. At the second trial in the District Court on that count on 25 February 1998, the practitioner was found guilty. The learned trial Judge who presided at the second trial said:
"Although your offence did not impact on any particular individual, it is fair to describe the whole system of justice as a victim of what you did. Knowledge of your offence can only undermine the confidence of the public that offenders will be brought to justice and it will reinforce increasingly prevalent attitudes of cynicism and lack of faith in the legal system. It is in the very area of corporate crime that public faith in the system of justice is probably at its lowest ebb. You yourself in evidence described the Bond prosecution as the most important prosecution in Australia, yet you were willing to sabotage that prosecution in return for a share of the illicit proceeds of the alleged offenders you were pursuing. There is probably no worse offence that a Crown Prosecutor can commit."
The Tribunal expressed its conclusion in the following terms:
"The Tribunal finds the practitioner guilty of the illegal conduct alleged in each Reference. It also agrees entirely with the comments made by the learned sentencing Judge quoted above, and notes that such illegal conduct is of such a serious nature that the powers available to the Tribunal to deal with it directly are inadequate, and that the interests of the protection of the public and for maintaining the standards required for the profession, requires that it report to the Full Court with a view to the Full Court determining whether the practitioner should be struck from the Roll or otherwise dealt with.
The Tribunal also suspended the practitioner from practising pending the hearing of the report by the Full Court, and ordered that the practitioner pay the costs of the complainant which are fixed at $750.
In Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 285‑286 Dixon CJ said:
"In dealing with the question whether a man should remain on the roll of barristers the special if not singular position of counsel should be borne steadily in mind. If counsel is adequately to perform his functions and serve the interests of his clients, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment upon him which must ordinarily mean the loss by him of the standing before the court and the public which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and responsibilities of an advocate. There may be convictions for a crime of which this is not true, but I cannot think that the present is one of them."
Although these comments were made with reference to a barrister practising in New South Wales where the profession is divided into barristers and solicitors, the comments apply in this State to any person who has been admitted as a barrister and solicitor of this Court. In particular, they apply to the conduct of a practitioner in carrying out the work of a solicitor as distinct from a barrister. That was the kind of work being undertaken in the present case.
It has been said many times that the jurisdiction to strike off for professional misconduct has nothing to do with punishment. The purpose of the power to strike off is simply to maintain a proper standard because barristers and solicitors both exercise functions in relation to the administration of justice which are both unique and indispensable: Ziems (supra) at 286 per Dixon CJ; and see Clyne v NSW Bar Association (1960) 104 CLR 186 at 201‑202 per Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ; and New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183‑184 per Barwick CJ and Kitto, Taylor, Menzies and Owen JJ. These cases all involved barristers. In Harvey v Law Society of New South Wales (1975) 49 ALJR 362, a case involving a solicitor, Barwick CJ said at 364 that the function of the court is:
"… to examine the material proffered to it in order to determine whether that material establishes that the solicitor has failed, by action or inaction, to maintain in his conduct the standards required of him as a member of the profession. The court's duty is to ensure that those standards of the profession are fully maintained particularly in relation to the proper relationship of practitioner with practitioner, practitioner with the Court and practitioner with the members of the public who find need to use the services of the profession."
In each case of this kind the question which has to be determined by the court is whether, by reason of the conduct of which he or she has been found guilty, the practitioner is a fit and proper person to remain as a member of the legal profession: In Re Davis (1947) 75 CLR 409 at 416 per Latham CJ; Ziems at 243 per Kitto J; and see Re a Barrister and Solicitor (1979) 40 FLR 1 at 24‑25 per Blackburn CJ, Connor and Davies JJ.
In addition to the remarks of the learned sentencing Judge quoted in the report, His Honour also said:
"I am also required to have regard to any injury, loss or damage resulting from the offence. As it turned out, John Bond's rejection of your offer limited the damage resulting from part of the prosecution brief being left at his front gate. Of much greater significance is the huge blow to morale that your offence must have caused your colleagues on the Bond investigation team. At a critical stage of the prosecution, after two and a half years of hard work, they had to suddenly contend with the fact that there was an unknown traitor in their midst. This situation continued for a number of months and the turmoil and angst that this must have caused can only be imagined.
It is clear that you are completely lacking in contrition for your offence. You failed to co-operate with the police during their investigations and at trial you have given a totally false account as to your motives for what you did."
These offences struck at the very heart of the administration of justice. I agree entirely with the comment made by the learned Judge who sentenced the practitioner after the second trial that there was probably no worse offence that a Crown Prosecutor could commit. The practitioner was willing to sabotage what he himself described as "the most important prosecution in Australia" in return for a share of the illicit proceeds of the alleged offences from those who were the accused in the prosecution. The gravity of these offences, striking as they do at the heart of the administration of justice, is what made it plain and obvious that the practitioner was not a fit and proper person to remain a member of the legal profession and that he should be struck off.
The practitioner opposed the making of a costs order on the grounds that he was impecunious, having lost his employment since 1995. He says that he borrowed money from his family to help pay the legal costs of his trials. As at 6 August 1999 he had been in prison for approximately two years and his earliest date for release is 27 August 2000. At present he has no disposable assets, no income, outstanding debts of $15,000 and no capacity to meet any costs order in the foreseeable future. In my opinion, none of these matters are currently relevant to the question whether an order for costs should or should not be made. The costs should follow the event. When and how they should be paid and what steps, if any, should be taken to enforce the order are matters for the Legal Practitioners Complaints Committee.