SJX and Legal Profession Complaints Committee - [2012] WASAT 154

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: SJX and LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASAT 154

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MR C RAYMOND (SENIOR MEMBER)
MR J MANSVELD (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 7 AUGUST 2012

FILE NO/S: VR 45 of 2012

BETWEEN: SJX
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
PAUL SULLIVAN
Second Respondent

Catchwords:

Legal practitioners Review of decision of Legal Profession Complaints Committee to dismiss complaints by former client against legal practitioner Whether there is no reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct

Legislation:

Legal Profession Act 2008 (WA), s 410, s 425, s 428, s 435(1), s 435(2)
State Administrative Tribunal Act 2004 (WA), s 24, s 60(2)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10

Result:

Decision of first respondent to dismiss applicant's complaints about second respondent affirmed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Ms PE Le Miere
Second Respondent       :     Self-represented

Solicitors:

Applicant:     N/A
First Respondent           :     Law Complaints Officer
Second Respondent       :     N/A

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Greenwood and Legal Profession Complaints Committee [2010] WASAT 31
Quinlivan and Legal Profession Complaints Committee [2012] WASAT 98
SJX v State of Western Australia [2010] WASCA 243
Vella and Bowden [2011] WASAT 56

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

SJX made essentially seven complaints to the Legal Profession Complaints Committee about Mr Paul Sullivan, a legal practitioner, who represented SJX in a criminal trial in the District Court of Western Australia at which SJX was convicted of nine sexrelated offences against his young granddaughter. The Legal Profession Complaints Committee dismissed each of SJX's complaints on the basis that there is no reasonable likelihood that Mr Sullivan would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the complaints were referred to the Tribunal.
SJX sought review by the Tribunal of the Legal Profession Complaints Committee's decision under s 435 of the Legal Profession Act 2008 (WA).
In his submissions and other correspondence to the Tribunal, SJX made a number of points that went beyond the scope of his complaints to the Legal Profession Complaints Committee. SJX also challenged aspects of the court process that led to his convictions and the convictions themselves. The Tribunal determined that it does not have jurisdiction to consider complaints that were not made to the Legal Profession Complaints Committee, as the Tribunal's function under s 435 of the Legal Profession Act is only to review 'a decision of the Complaints Committee to dismiss a complaint'. If a complaint has not been made to the Legal Profession Complaints Committee, then it could not have been dismissed by the Committee and the Tribunal does not, therefore, have jurisdiction in relation to it. The Tribunal also observed that, obviously, it does not have jurisdiction to consider any challenge to the court process or the convictions.
The Tribunal determined that the Legal Profession Complaints Committee's decision to dismiss SJX's complaints should be affirmed, because there is no reasonable likelihood that the Tribunal would, on referral to it by the Legal Profession Complaints Committee of the complaints, find Mr Sullivan guilty of either unsatisfactory professional conduct or professional misconduct.

Background

On 23 October 2009, following a five day trial before Goetze DCJ and a jury, SJX was convicted on nine counts of sexrelated offences which he committed against his young granddaughter, T. The nine convictions comprised seven for sexual penetration of a child who SJX knew to be his lineal relative (five by penetrating her mouth with his penis, one by penetrating her vagina with his thumb and one by penetrating her vagina with his penis) and two for procuring a child, who SJX knew to be his lineal relative, to do an indecent act, namely, touch his penis with her hand. T was aged between four and seven at the time of these offences.
On 21 December 2009, SJX was sentenced by Goetze DCJ to 10 years' imprisonment in respect of the offences.
At the trial and sentencing, SJX was represented by Mr Paul Sullivan, a legal practitioner (practitioner).
On 18 January 2010, SJX appealed against his conviction to the Court of Appeal of Western Australia on four grounds. The appeal was heard before McLure P, Buss JA and Mazza J on 21 September 2010. On 23 December 2010, the Court of Appeal delivered judgment in which it determined that each of the four grounds of appeal failed, refused leave to appeal and dismissed the appeal see SJX v State of Western Australia [2010] WASCA 243.
On 19 January 2011, SJX made complaints under s 410 of the Legal Profession Act 2008 (WA) (LP Act) to the Legal Profession Complaints Committee (Committee) about the practitioner in relation to the practitioner's conduct of the trial. Between 4 March 2011 and 10 October 2011, SJX wrote 16 letters, eight of which also enclosed attachments, to the Committee in relation to his complaints about the practitioner.
Ultimately, SJX made essentially seven complaints to the Committee about the practitioner which can be summarised as follows:
1)The practitioner failed to properly prepare for the trial.
2)The practitioner failed to properly crossexamine three witnesses, namely T, SJX's stepdaughter, D, and a medical practitioner, Dr H.
3)The practitioner failed to follow up instructions to obtain evidence from the Supreme Court of South Australia.
4)The practitioner failed to follow up instructions to call SJX to give evidence.
5)The practitioner failed to follow instructions to call SJX's wife to give evidence.
6)The practitioner was discourteous to SJX.
7)The practitioner failed to follow up instructions to obtain and/or use a medical report by Dr O.
After investigating SJX's complaints about the practitioner, the Committee dismissed each of the complaints, pursuant to s 425 of the LP Act, because it was satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. Section 425 of the LP Act enables the Committee to dismiss a complaint against a legal practitioner, after an investigation of the complaint is completed, if it is satisfied that 'there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct'.
The Committee's decision and its reasons were conveyed to SJX in a letter dated 20 December 2011.

Application for review

On 12 March 2012, SJX filed an application for review of the Committee's decision, pursuant to s 435(1) of the LP Act, with the Tribunal. Under r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), the application for review was required to have been commenced within 28 days of the date on which notice of the decision of the Committee was given to SJX. The application for review was, therefore, out of time.
At a directions hearing held on 17 April 2012, the President Chaney J granted an application to extend time for commencement of the proceeding, pursuant to r 10 of the SAT Rules, until 12 March 2012. Chaney J directed the Committee to file and serve a bundle of documents relevant to the review required by s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) (s 24 bundle) and enabled SJX to file and serve any additional documents on which he relies and his written submissions, and the practitioner to file any submissions in response, by nominated dates. Chaney J also ordered that the proceeding is to be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
The Committee filed the s 24 bundle on 2 May 2012. SJX filed a bundle of documents and his written submissions dated 26 April 2012 and further written submissions dated 29 May 2012. The Tribunal also received a further letter from SJX dated 23 July 2012, and facsimiles sent by SJX on 14 May 2012, 21 May 2012, 4 June 2012, 11 June 2012 and 5 July 2012.
In his written submissions and other correspondence to the Tribunal, SJX made a number of points that went beyond the scope of the complaints that he made to the Committee. The Tribunal does not have jurisdiction under s 435(1) of the LP Act to consider fresh complaints not made to the Committee. Section 435(1) of the LP Act states, in part, as follows:
(1)Subject to subsection (2), a person aggrieved by
(a)a decision of the Complaints Committee to dismiss a complaint;
…
may apply to the State Administrative Tribunal for a review of the decision.
The Tribunal does not have jurisdiction to consider a complaint that was not made to the Committee, because the Tribunal may only review 'a decision of the Complaints Committee to dismiss a complaint'. If a complaint has not been made to the Committee, it could not have been dismissed by the Committee, and the Tribunal does not, therefore, have jurisdiction in relation to it. (See also Quinlivan and Legal Profession Complaints Committee [2012] WASAT 98 at [25] and [27] [28] in which the Tribunal determined that 'there is no basis for a grant of leave' (at [28]) to seek review of a decision under s 435(2) of the LP Act in relation to a complaint that was not considered by the Committee).
In his written submissions and other correspondence to the Tribunal, SJX also challenged aspects of the court process that led to his convictions and the convictions themselves. Obviously, the Tribunal does not have jurisdiction to consider these matters.
In a letter to the Tribunal dated 8 May 2012, the practitioner referred to the s 24 bundle and to SJX's bundle of documents and written submissions filed on 26 April 2012 and stated as follows:
I see nothing new in this documentation which was not previously covered in the inquiry carried out by the Legal Profession Complaints Committee. I seek to abide by the decision of the Legal Profession Complaints Committee.

Applicable principles

As the Tribunal said in Vella and Bowden [2011] WASAT 56 at [6]:
In reviewing the Complaints Committee's decision, the function of the Tribunal is to conduct a hearing de novo, that is, to consider each of the complaints … and to determine whether there is any reasonable likelihood that the Tribunal might, on referral to it [by the Committee] of the complaints [under s 428 of the LP Act], find [the practitioner] guilty of either unsatisfactory professional conduct or professional misconduct.
'Unsatisfactory professional conduct' is defined in s 402 of the LP Act inclusively as follows:
402.Unsatisfactory professional conduct
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.
'Professional misconduct' is defined by s 403 of the LP Act inclusively as follows:
403.Professional misconduct
(1)For the purposes of this Act
'professional misconduct' includes
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For 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.
The meaning of the expression 'reasonable likelihood' in s 425 of the LP Act was discussed by the Tribunal in Greenwood and Legal Profession Complaints Committee [2010] WASAT 31 (Greenwood) at [27] [29] as follows:
The meaning of the phrase 'reasonable likelihood' in the context of s 425 of the LP Act is synonymous with the phrase 'reasonably likely'. The meaning of that phrase was discussed in Department of Agriculture and Rural v Binnie [1989] VR 836 at [842] (Marks J, Young CJ and Teague J agreeing) in the following passage:
The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'. It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the likelihood.
The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on' or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'.
Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act.
In considering whether there is a reasonable likelihood that a practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct, it is also necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 (Dixon J).
The issue for determination in this review is, therefore, whether there is any reasonable likelihood that the Tribunal might, on referral to it of any or all of SJX's seven complaints, find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct. If the answer is 'yes', then the correct and preferable decision on the review is that the relevant complaint cannot be dismissed under s 425 of the LP Act and the Committee should be directed to either take action under s 426 of the LP Act, which enables the Committee to impose certain disciplinary consequences with the practitioner's consent, or refer the matter to the Tribunal under s 428 of the LP Act in order for the Tribunal to determine whether the practitioner is guilty of either unsatisfactory professional conduct or professional misconduct.
We will now proceed to consider each of the complaints in turn.

Complaint 1 Failing to properly prepare for trial

SJX complained that the practitioner failed to properly prepare for the trial. In particular, SJX initially said that the practitioner only saw him prior to trial on two occasions and did not interview him while he was in prison. Later, SJX said that the practitioner spoke to him on three occasions, although on two occasions it was only for five minutes and on the third occasion it was for no more than 10 minutes.
The practitioner responded that he saw SJX 'over many months during which he was on bail at District Court listing conferences'. The practitioner said that 'both before and after listing conferences we would set out and traverse the prosecution brief at the offices of the District Court building'. The practitioner also said that he spoke with SJX during the trial in the cells at court and on completion of the trial. The practitioner said that there was 'no need to ''interview him in prison"'.
There is, therefore, a conflict of evidence between SJX and the practitioner in relation to their pretrial conferences.
As the Committee observed in its reasons for decision, 'a review of the trial transcript indicates that the practitioner was across the brief'. In its reasons, the Committee also said the following:
A review of the practitioner's file revealed that the practitioner completed a significant amount of preparation prior to trial, including:
•detailed notes by the practitioner throughout the prosecution brief, including extensive preparation for his crossexamination of the granddaughter;
•extensive correspondence between the practitioner and the DPP, and the practitioner and [SJX]; and
•an application by the practitioner prior to trial to quash the indictment or, in the alternative, to challenge evidence the State proposed to call at trial.
The practitioner's file is not before the Tribunal. However, SJX has not questioned the accuracy of these observations.
The Tribunal would have to feel an 'actual persuasion' of the occurrence or existence of a relevant fact in order to determine that conduct of the kind alleged by SJX is made out on a referral of a complaint under s 428 of the LP Act under the Briginshaw approach or principle (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 362 referred to in Greenwood at [29]). Given the conflict of evidence between SJX and the practitioner, the fact that the practitioner was across the brief and the significant amount of work that he did on the case, the Tribunal could not, on the evidence, feel an actual persuasion that the practitioner only spoke to SJX on three occasions, twice for only five minutes and once for no more than ten minutes, prior to the trial.
There is, therefore, no reasonable likelihood that the Tribunal would, on referral to it by the Committee of complaint 1, find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct in relation to it.

Complaint 2 Failing to properly crossexamine witnesses

SJX complained that the practitioner failed to properly crossexamine T, D and Dr H. The practitioner denied this complaint. He said:
Everything that could have been put to the witnesses was put. This is clear from the appeal as well.
In his complaint form, SJX stated as follows:
AS TO THE ALLEGED VICTIM. HE DID NOT ASK HER IF SHE SENT ME A LETTER ON 21ST JULY 2008 STATING THAT SHE MISSED ME AND LOVED ME. AND WAS DISAPPOINTED THAT I HAD NOT BEEN THERE DURING THE SCHOOL HOLIDAY. I SENT THIS TO PAUL YET HE DID NOT BRING IT UP. THREE CHARGES RELATE TO THE 20TH JULY 2008. THAT LETTER PROVES I WAS NOT EVEN THERE. YET HE LET IT GO.
There is a conflict of evidence between SJX and the practitioner as to whether SJX provided the letter referred to in the quotation to the practitioner.
In its reasons for decision, the Committee noted that 'a review of the practitioner's file did not reveal any evidence that the practitioner received the letter in question'. SJX did not question the accuracy of this statement.

Furthermore, the practitioner crossexamined T for a full hour, with the crossexamination occupying some 19 pages of transcript. For a defence counsel to have to crossexamine a little girl alleging sexual penetration and other acts of indecency is perhaps the most difficult task imaginable for a lawyer. However, the transcript shows that the practitioner crossexamined T competently and professionally, clearly seeking to advance his client's interests while being fair and sensitive to the circumstances of the case. There is no reason why, if SJX had given the practitioner the letter he referred to, the practitioner would not have asked T about it.
If complaint 2 were referred by the Committee to the Tribunal under s 428 of the LP Act, the Tribunal could not, therefore, on the evidence, feel an actual persuasion that SJX gave the practitioner the letter that SJX said he did. There is therefore no reasonably likelihood that the Tribunal would, on referral to it of complaint 2, find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct in relation to the crossexamination of T.
D is SJX's stepdaughter. D gave evidence that, when she was aged between four and seven years, SJX, among other things, forced her to masturbate him and attempted to make her perform oral sex on him. D gave evidence that, after SJX made her masturbate him, SJX threw her against the wall and that, in the process, she sustained a black eye.
SJX contended that the practitioner 'let [D] go with it making me look bad' and that the practitioner 'should have asked questions to witness [D], not allow her to ramble on' about the black eye. SJX also said that the practitioner should have asked D whether a particular welfare worker had seen the black eye.
However, the transcript shows that the practitioner crossexamined D about the black eye. In the course of crossexamination, the practitioner suggested to D that 'you weren't thrown against the wall by the accused?', but she replied 'I was thrown'. The practitioner also asked D whether she remembered the welfare worker referred to by SJX, and D replied that she did not remember that person. The practitioner also asked D whether anybody else noticed the black eye and she replied:
All I remember was the the doctor or the nurse saying something, asking me what happened. I don't remember the other people.
It is clear that the practitioner properly and competently crossexamined D in relation to the black eye. The practitioner could not have properly gone further than he did in the crossexamination in relation to the welfare worker, because D did not remember that person.
Dr H gave evidence that she examined T about six months after the commission of the last of the alleged offences. Dr H said that 'the genital examination was normal in [T]'. Dr H also gave the following evidence in chief:
[T], we understand, alleges that on a number of occasions her vagina was penetrated with a penis and also with a thumb and that sometimes during those occasions she would bleed from the vagina. Your examination of [T] indicated that all things were normal. Would you have not expected some physical sign as a result of what [T] said had been done to her?No. It's actually more common for children who have been sexually abused to not have any findings on examination. All of the evidence to date so shows that at least probably 70 to 80 per cent of children who have been sexually abused will not have any findings on examination. The other reason is that it was quite a delay in time between when I saw [T] and when the events were alleged to have occurred, and again, that's a a time for healing and injuries to that area heal the majority will heal without evidence of scarring or trauma.
So your conclusion then is that the normal examination neither supports nor refutes the allegations that [T] made?That's correct.
In one of his letters to the Committee, SJX said the following:
[The practitioner] at no stage in court asked [Dr H] to verify her credentials to the court and I believe she was not fully qualified to state such a ridiculous statement, besides being such a ludicrous statement, she could not prove to the court that after a person who is suppose [sic] to sexually penetrated by the penis can revert back to being a virgin and show no signs of the act being committed, no tearing/scarring etc etc.
In his submission to the Tribunal, SJX said the following:
How could there be no signs of scarring or tearing if she has lost her virginity, instead [the practitioner] allows [Dr H] to quickly state that 'she could tell us of a very famous study concerning child sexual abuse, that 77 per cent out of 200 ''victims'' showed no signs of abuse', OK, [the practitioner] could have queried that as to who wrote this study and were the 'victims' all sexually abused by the penis into the vagina.
What the doctor has said is nothing but hearsay, and [the practitioner] should have expressed that.
The Hon DCC [sic] Judge Goetze told the jury that they had to believe her as she was classified as a [sic] expert witness, [the practitioner] should have said a [sic] expert witness that has given evidence without proof and none of her evidence was substantiated or corroborated.
It is clear from the transcript that the practitioner properly and competently crossexamined Dr H. In particular, the practitioner asked the following questions and obtained the following answers in crossexamination:
So each case is different, isn't it?That's correct.
So how can you say 70 to 80 per cent present with no evidence of injury at all?Those figures well, I could tell you one of the most famous studies that's been performed looked at approximately 200 children who had legally substantiated child sexual abuse. And that means that the perpetrator either pleaded guilty or was found guilty. And of those 200 plus children, 77 per cent of them had either no findings or nonspecific findings; ie they didn't suggest that anything had happened to the child. There are plenty of other studies that have been performed subsequent to this one that support these findings.
But each case is different isn't it?Yes. That's correct.
Dr H was plainly a qualified expert medical witness. She did not give hearsay evidence, but rather related expert opinion evidence based upon her training, experience and examination of T. In giving expert evidence, Dr H was entitled to refer to and rely upon studies that informed her opinion in the particular case. As Justice JD Heydon stated in Cross on Evidence (LexisNexis Butterworths, 8th Australian Edition, 2010) at [33825], although '[t]here is no rule enabling expert witnesses to give hearsay evidence … they may refer … to the work of others as part of the process of arriving at their conclusions …'. Justice Heydon gave the following example:
[W]hen an expert has to consider the likelihood or unlikelihood of some occurrence or factual association in reaching a conclusion, as will often be the case, the statistical results of the work of others in the same field must inevitably form an important ingredient in the cogency or probative value of the expert's own conclusion in the particular case. This is so whether or not the expert will personally have contributed to the bank of information available on the particular topic on which the opinion is expressed, and in those circumstances, the evidence is admissible [citations omitted].
It is correct that the practitioner did not ask Dr H anything further about the study to which she referred. However, it is apparent that the practitioner exercised professional judgment in the crossexamination. Rather than asking questions about the study which, given the witness's earlier answers in examination in chief and crossexamination, may well have only strengthened her evidence that the finding of the examination she performed on T was equivocal in relation to whether the allegations made by T were true, the practitioner obtained a concession that 'each case is different' and concluded the crossexamination at that point.
There is, therefore, no reasonable likelihood that the Tribunal would, on referral to it of complaint 2, find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct.

Complaint 3 Failing to follow up instructions to obtain evidence from the Supreme Court of South Australia

In his complaint form, SJX alleged that the practitioner 'REFUSED TO GET COURT DOCUMENTS FROM THE SUPREME COURT OF STH AUST WHICH WOULD HAVE PROVEN THE WITNESS [D] HAS LIED'. In one of his letters to the Committee, SJX said:
I told [the practitioner] that there was evidence held in the Supreme Court of South Australia and the South Australian Welfare that would refute the evidence that [D] would give.
But he refused to entertain the idea of getting this evidence.
In response to the specific inquiry from the Committee as to whether SJX instructed the practitioner 'to get evidence from South Australia', the practitioner said the following:
[SJX] mentioned that there was a Family Court matter in South Australia but did not instruct me to get evidence from South Australia.
The only two documents sent by SJX to the practitioner prior to the trial which referred to documents from South Australia, namely a facsimile dated 19 September 2009 and a typed 'response to statement of [D]' dated 21 September 2009, are consistent with the practitioner's response. Neither of these documents, nor any of the other documents in the evidence before the Tribunal, contain a direct instruction from SJX to the practitioner to obtain evidence from the Supreme Court of South Australia.
There is, therefore, a conflict of evidence between the recollections of SJX and the practitioner on this point, with the only relevant documents being consistent with the practitioner's position. In the circumstances, if complaint 3 were referred by the Committee to the Tribunal under s 428 of the LP Act, the Tribunal could not feel an actual persuasion, on the evidence, that SJX instructed the practitioner to obtain evidence from the Supreme Court of South Australia.

Complaints 4 and 5 Failing to follow instructions to call SJX and his wife to give evidence

In one of his letters to the Committee, SJX said that he 'wanted to give evidence but [the practitioner] refused for me to do so'. SJX also referred to a statement that his wife made to police on 10 September 2008 and said that the practitioner had also refused to allow SJX's wife to give evidence.
The practitioner denied that SJX instructed him that SJX wished to give evidence or instructed him to call his wife to give evidence.
When the prosecution closed its case on 22 October 2009, the transcript records the following exchange between Goetze DCJ and the practitioner:
GOETZE DCJ: All right. Well, ladies and gentlemen, that means that we've now reached the point where the State has called all the evidence that it is intending to call in this trial, so I'll now ask [SJX], through you, Mr Sullivan, does he intend to lead evidence by way of defence?
SULLIVAN, MR: Yes. My instruction are no, your Honour, the defence will not lead any evidence. I'd like another opportunity just to confirm that with him
GOETZE DCJ: Very well.
SULLIVAN, MR: - - but that's my understanding. The defence will call no evidence.
GOETZE DCJ: Very well. Then, ladies and gentlemen, the defence is not calling any evidence, so that is of course its right, because it is for the State to prove the case. …
It is clear from the transcript that the trial judge asked SJX, through the practitioner, whether SJX intended to give evidence or call any other witness to give evidence. It is also apparent from the transcript that the practitioner had previously received instructions from SJX that he would not give evidence and not call any other witness to give evidence, and that the practitioner confirmed those instructions with SJX following the trial judge's question, and then restated his instructions that 'the defence will call no evidence'.
SJX, therefore, elected not to give evidence and not to call his wife or any other witness to give evidence. Consequently, there is no reasonable likelihood that the Tribunal would, on referral to it of either or both of complaints 4 and 5, find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct.

Complaint 6 Being discourteous to SJX

In his complaint form, SJX contended that the practitioner was discourteous to him in three respects. First, SJX said that the practitioner 'SLAMMED THE PHONE DOWN ON ME AT LEAST THREE TIMES'. The practitioner responded that this is 'a ludicrous assertion and totally untrue'. Second, SJX said that the practitioner 'LAUGHED WHEN I GOT 10 YEARS', when the practitioner visited SJX in the cells after sentencing. The practitioner denied this allegation. Finally, SJX alleged that the practitioner 'SEN[T] THE [PRISON] SUPERINTENDENT A FAX STATING TO WATCH ME AS I'M VERY VIOLENT'. The practitioner denied that he had contacted the prison superintendent, but said that he 'did phone security at the gaol and told them I didn't want my number on SJX['s] phone card'. The practitioner said that he made this request, because, when he went to see SJX in the cells following his sentencing, SJX told him that he wished 'Mr Mugabe had killed all the white Rhodesians and that he wished he had got me'.
There is a conflict of evidence between SJX and the practitioner as to whether the practitioner slammed the phone down on SJX and laughed at him. There is no direct evidence at all to support SJX's allegation that the practitioner wrote to the superintendent of the prison. SJX's allegations are also inconsistent with the plainly courteous manner in which the practitioner treated SJX and the professional and competent manner in which the practitioner represented SJX in the proceeding.
In the circumstances, if complaint 6 were referred by the Committee to the Tribunal under s 428 of the LP Act, the Tribunal could not feel an actual persuasion, on the evidence, of the occurrence of any of the three allegations made by SJX and there is no reasonable likelihood that the Tribunal would find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct in relation to complaint 6.

Complaint 7 Failing to follow up instructions to obtain and use a medical report

SJX alleged that the practitioner failed to follow up on instructions to obtain and use a report from Dr O that, in 2002, SJX presented with a complaint of erectile dysfunction and impotence. SJX referred, in particular, to a medical report of Dr O dated 21 August 2008. The practitioner said that he does not recall having the report of Dr O prior to sentencing and that he relied on that report in relation to penalty, because it referred to SJX having bladder cancer and diabetes.
There is no contemporaneous document supporting SJX's allegation that he instructed the practitioner to obtain and use a medical report from Dr O at the trial. Furthermore, as found earlier, the practitioner received instructions from SJX not to call any witnesses on behalf of the defence.
In the circumstances, if complaint 7 were referred by the Committee to the Tribunal under s 428 of the LP Act, the Tribunal could not feel an actual persuasion, on the evidence, that SJX instructed the practitioner to obtain and/or use a medical report from Dr O at the trial and there is no reasonable likelihood that the Tribunal would find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct in this respect.

Conclusion

The correct and preferable decision on the review is that there is no reasonable likelihood that the practitioner would be found guilty of either unsatisfactory professional conduct or professional misconduct by the Tribunal if any or all of SJX's complaints were referred to it. The application for review should be dismissed and the decision of the Committee to dismiss SJX's complaints should be affirmed.

Orders

For these reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision made by the first respondent to dismiss complaints made by the applicant about the second respondent is affirmed.

I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT