Auckland District Law Society v Neutze HC Auckland CIV 2005-404-6154

[2006] NZHC 1671

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INTERIM ORDER SUPPRESSING PUBLICATION OF THE NAME OF THE RESPONDENT WILL LAPSE AT THE EXPIRY OF THE THIRD WORKING DAY AFTER THE DAY ON WHICH THIS JUDGMENT IS DELIVERED.

THE SUPPRESSION ORDER DATED 30 AUGUST 2005 THAT THE REASONS DELIVERED BY

LAURENSON J IN R V PUNNETT ARE NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL (PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED) REMAINS IN FORCE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-006154

BETWEEN  AUCKLAND DISTRICT LAW SOCIETY Applicant

ANDPETER STEPHEN NEUTZE Respondent

Hearing:         27, 30, 31 January 2006

1, 7, 8 February 2006

Court:John Hansen J Chisholm J Gendall J

Appearances: DPH Jones QC and M A Watts for Applicant

Respondent appears in person

Judgment:      28 February 2006

JUDGMENT OF THE COURT

AOrder suspending Mr Neutze from holding or applying for a practising certificate until further order of this Court.

B        The   interim   order   suppressing   publication   of   the   name   of   the

Respondent will lapse at the expiry of the third working day after the day on which this judgment is delivered.

AUCKLAND DISTRICT LAW SOCIETY V NEUTZE HC AK CIV 2005-404-006154 [28 February 2006]

REASONS

Table of Contents

Paragraph Number

Introduction   [1] Background   [8] Procedural history of the proceedings  [21] Primary issues    [27] Legal issues     [28] The complaints  [39] R v Conway   [39]

R v Cavanagh  [46] R v Robertson  [64] R v Punnett  [87]

The “Poelman statement”  [110] General  [114] Outcome  [123]

Introduction

[1]      Pursuant  to  s 94  of  the  Law  Practitioners  Act  1982,  and  the  inherent jurisdiction of the Court, the Society seeks that Mr Neutze, a practising barrister and solicitor, be suspended from practice.

[2]      Mr Neutze represents himself.

[3]      The statement of claim alleges that Mr Neutze has conducted himself in a manner in both the High Court and Court of Appeal which shows that he is not fit to practice.    Effectively,  these  proceedings  were  triggered  by complaints  made  by various Court of Appeal and High Court Judges in relation to two trials, two hearings in the Court of Appeal and a sentencing.

[4]      The Society particularises these allegations as follows:

R v Punnett & Ors

(Auckland High Court, CRI-2004-044-7303, Laurenson J)

8.        The respondent:

(a)      Conducted himself in such a way that the trial was aborted. (b)      Was incompetent in his conduct of the case.

(c)       Conducted himself so as to bring the court and/or the legal profession into disrepute.

R v Punnett & Ors

(Court of Appeal, 21/07/05, Glazebrook, Randerson and Goddard JJ)

9.        The respondent:

(a)      Arrived 20 minutes late for the hearing.

(b)Advanced    legal    propositions    that    were    completely untenable.

(c)       Could not properly function as an advocate in answering questions from the court or being able to discuss a case he cited.

(d)      Was incompetent in his conduct of the case.

(e)       Conducted himself so as to bring the court and/or the legal profession into disrepute.

R v Robertson

(Court of Appeal, CA 472/04, Glazebrook, Randerson and Williams JJ)

10.      The respondent:

(a)      Repeatedly failed to comply with court timetable orders. (b)          Was incompetent in his conduct of the case.

R v Cavanagh & Ors

(Auckland High Court, CRI 2002-4-206137, Rodney Hansen J)

11.      The respondent:

(a)Was repeatedly late attending court thereby causing delays and/or disruptions in the conduct of the trial.

(b)      Disregarded directions from the court to attend on time. (c) Was incompetent in his conduct of the case.

(d)Conducted himself so as to bring the court and/or the legal profession into disrepute.

R v Punnett & Ors

(Auckland High Court, CRI-2004-044-007303, Heath J)

12.      The respondent:

(a)      Failed to comply with court directions.

(b)      Was incompetent in his conduct of the case.

R v Conway

(Auckland  High  Court,  CRI-2003-004-28660,  Harrison  J,  sentencing hearing)

13.      The respondent:

(a)      Was incompetent in his conduct of the case.

(b)Conducted himself so as to bring the court and/or the legal profession into disrepute.

In closing Mr Jones accepted that the Society could no longer rely on particular (b)

in R v Conway.

[5]      Mr Neutze has not filed a statement of defence in this matter.  He did file a protest as to the jurisdiction dated 2 December 2005.  However, he conceded to us that in view of both the interim decision in B v Canterbury District Law Society (CA79/97, 1/5/97) and the final decision reported at (1997) 11 PRNZ 196, this Court did  have  jurisdiction  to  hear  the  s 94   application,  but  should   not,   in   the circumstances of this case, exercise the power to suspend  granted by the section.

[6]      In the course of the hearing various themes of defence and opposition were put forward by Mr Neutze.

[7]      At the conclusion of submissions the Court referred each of these to Mr Neutze to ensure that it had accurately understood his various grounds of defence and opposition.  Mr Neutze conceded the summary put to him was accurate, and in view of the fact there is no formal statement of defence it is appropriate we record these as follows:

a)       The s 94 jurisdiction should be used sparingly and the circumstances of the case do not warrant its application.

b)If  the  Society  wished  to  pursue  complaints  against  Mr  Neutze  it should have adopted the normal disciplinary process.

c)       The decision of Laurenson J in discharging the jury in the Punnett trial was wrong in law and such unlawfulness tainted the subsequent minutes and decisions of Heath and Cooper JJ which led on to the Society’s application.

d)The difficulties Mr Neutze has experienced with High Court Judges in Auckland commenced after his “Poelman statement”.  Since that step there has been a pattern of complaints against the respondent.

e)       Mr Neutze challenges the evidence of the applicant’s witnesses, and, in particular, those who are Crown prosecutors and Crown counsel, as to their standing, objectivity and the weight to be given to their evidence.

f)        The complaints and evidence are part of a pattern of behaviour against the  respondent  by  the  police  (and  initially  he  said  prosecutors) because of the success he had in R v Creaven and other trials.   Mr Neutze also expresses a degree of disquiet over the involvement of Mr Gotlieb, President of the Auckland District Law Society.

Background

[8]      The background to the issuing of the proceedings can be briefly stated.   In July 2004 the Society received a letter of complaint from Harrison J relating to Mr Neutze’s conduct in two sentencing matters, Henare and Conway.  Henare forms no part of these proceedings.

[9]      On 15 April 2005 the Society received a complaint from Rodney Hansen J relating first, to concerns over matters that occurred in a bail hearing of Henry, a co- accused of Mr Neutze’s client, Cavanagh, which again forms no part of these proceedings.  Mr Neutze represented Cavanagh.  The Judge’s second complaint was the  persistent  lateness  of  Mr  Neutze  which  caused  disruptive  and  embarrassing delays to the Court.

[10]     The   Society,   in   compliance   with   its   statutory   disciplinary   function, commenced investigations into these complaints.  Some delay was occasioned when Mr Grieve QC, then acting for Mr Neutze, sought a meeting to informally resolve the issues relating to the Conway sentencing.   That was unsuccessful and Mr Neutze dispensed with Mr Grieve’s services.  Further delays appear to have been occasioned by a degree of miscommunication.   Mr Neutze seeks to attribute the blame to the Society while the Society, through Mr Burger, stated it was waiting for Mr Neutze to take some steps.  In our view the responsibility for this delay is immaterial and we are satisfied it arose from simple miscommunication.

[11]     There  then  occurred  a  most  significant  event.     On  26  August  2005

Laurenson J aborted a multi-accused drug trial at the end of the second week.  This was trial CRI 2004-044-007303 R v Collings, Punnett, Carmody & Fountain.  The Crown  was  represented  by  Messrs  McNaughton  and  Butler;  Punnett  by  Mr Grieve QC and Mr Abbott; Fountain by Mr Faleauto; and Collings and Carmody by Mr Neutze.

[12]     On 26 August Mr Grieve, on behalf of Punnett, sought to have the trial stopped  on  the  basis  of  prejudice to  his  client  because  of  incompetence  in  the conduct of the defence of Carmody and Collings by Mr Neutze.   There is some dispute as to exactly what occurred before Laurenson J, but, suffice to say, the Judge was satisfied that in terms of s 374 the incompetence of Mr Neutze amounted to an emergency and rendered a fair trial impossible.   The trial was stopped amid considerable publicity.

[13]     Clearly such an event caused concern to the Society and to the Judges of this

Court responsible for the conduct of criminal trials in Auckland.

[14]     On  29  August  2005  Heath J,  who  was  to preside  over  a  trial  known  as

‘Operation Robot’, convened a hearing.  Mr Neutze was to act for one of the accused in this trial.   Given the decision of Laurenson J the Judge had concerns about the proper administration of that trial  and indicated that he was considering whether the Court should exercise its summary jurisdiction against Mr Neutze under s 94.   Mr Neutze took advice from senior counsel when the matter was raised on the morning of 29 August.   When the hearing was reconvened in the afternoon Mr Jones QC appeared, with leave, for the Society and confirmed the complaints that had been received from Harrison and Rodney Hansen JJ.  The end result was that while Mr Neutze did not accept the factual foundations upon which the Judge based his concerns, he advised, through counsel, he would withdraw to avoid any risk of retrial.  Given that the Judge concluded:

[9]       The  wider  issues  to  which  I  have  referred  still  require  to  be addressed.   As indicated, Mr Jones has informed me that the Complaints Committee will meet in the next couple of weeks to deal with the complaints made and (hopefully) matters arising out of Laurenson J’s decision.  In those circumstances, and having regard to the decision of the Court of Appeal in B v Canterbury District Law Society (1997) 11 PRNZ 196, I agree that it would be inappropriate at this stage for this Court to exercise summary jurisdiction.

We note in passing that the Society does not attempt to rely on Mr Neutze’s withdrawal from this trial to bolster its case.   In all the circumstances that is a responsible approach.

[15]     On  8  September  2005  the  Society  received  a  letter  of  complaint  from Randerson J in relation to Mr Neutze’s conduct of the appeal in R v Punnett.  The same day a letter was  received from Glazebrook J  complaining of Mr Neutze’s conduct in the appeal R v Robertson.

[16]     On 28 September the criminal list Judge, Cooper J, conducted a criminal callover.  Relating to the trial stopped by Laurenson J he gave a firm trial date of 1

May 2006.  At the callover Mr Neutze advised that he would continue to represent the accused Carmody, but that he was no longer acting for Collings.  The accused herself  confirmed  that,  notwithstanding  the  comments  of  Laurenson J  in  his judgment dated 30 August 2005, she wished Mr Neutze to act for her.

[17]     Cooper J was concerned and issued a minute dated 30 September 2005.  This was sent to the Crown, defence counsel and the Society.   At paragraph 5 of the minute the Judge said:

[5]       In  the  circumstances  I  am  concerned  that  Mr  Neutze  has  been instructed to continue to act for Ms Carmody, and that he has accepted those instructions. That concern arises out of:

[a]The reasons given by Laurenson J for the abandonment of the previous trial.

[b]     Mr   Neutze’s   rejection   of   His   Honour’s   criticisms   (if accurately reported) in the New Zealand Herald on Saturday

26  August  (at  that  point  Laurenson J had  given  brief  oral reasons for discharging the jury).

[c]The prospect of a repetition at the forthcoming trial, of the conduct by Mr Neutze which led to the abandonment of the previous trial.

[d]Given the repetition of such conduct, possible prejudice to the interests of the other accused, and indeed, Ms Carmody.

[e]The other interests of justice that might be at stake if, some 19 months after the committal date the case had not been able to be tried.

[6]       For  the  reasons  set  out  in  the  previous  paragraph  consideration should be given to whether, in the exceptional circumstances of this case, the Court’s  powers  of  summary  jurisdiction  over  practitioners  should  be exercised so as to restrain Mr Neutze from further involvement in the matter.

[7]       If, after consideration of this minute, Mr Neutze wishes to continue to represent Ms Carmody and remains so instructed, all parties may have an opportunity to be heard on the question of the possible prejudice that might arise if Mr Neutze appears at the trial.

[8]       I direct that:

[a]Within seven days of the date of this minute Mr Neutze (or counsel acting on his behalf) is to advise the Court in writing (with a copy served on counsel for the other parties) whether he remains instructed to act for Ms Carmody.

[b]If so, I direct that any party who wishes to do so may file and serve submissions setting out their views on whether the Court should exercise its jurisdiction for the purpose set out in paragraph [6] above.   Such submissions are to be filed and served within seven days of the receipt of Mr Neutze’s advice.

[c]     Mr Neutze (or counsel acting on his behalf) may file and serve any submissions on that issue within a further seven days.

[9]       If Mr Neutze advises that he remains instructed in accordance with paragraph [8][a] the Registrar is to allocate a date when the parties can be heard in relation to the exercise of the Court’s jurisdiction.

[10]      I direct the Registrar to serve a copy of this minute on the Auckland

District Law Society. That Society may, if it chooses, appear at the hearing.

[11]      I further direct that the accused should be present at the hearing.  In the case of Mr Fountain and Ms Punnett, who are in custody, the Registrar should ensure that they are produced.

[18]     The Society, through counsel, then filed a memorandum dated 19 October

2005.  That recorded that Mr Neutze had advised that he would continue to act for Ms  Carmody.    Despite  the  previous  minute  of  Cooper J  this  advice  was  given informally rather than in writing.   The memorandum sought clarification as to the extent of material which the Society could place before the High Court.

[19]     On 21 October Cooper J issued a further minute.  This reads:

[1]       I have considered the memorandum of counsel for the Auckland

District Law Society (“the Society”) filed on 19 October 2005.

[2]       I agree that the Society may proceed in accordance with paragraph 2 of counsel’s memorandum

[3]       If the Society wishes to seek an order that the Court exercise its jurisdiction so as to suspend Mr Neutze from practice, as appears to be the case from a reading of paragraphs 4 to 6 of the memorandum, it should make a formal application accordingly.   Arrangements would be made for any such application to be heard at the same time as the matters arising directly from my minute of 30 September 2005.

[4]       It would be appropriate for the Society to file the material referred to in paragraph 6 of counsel’s memorandum in support of the Society’s application.  If the Society chooses to adopt that course, it may proceed in accordance with the timetable set out in paragraph 6(b) and 7 of counsel’s memorandum.

[5]       All documents filed by the Society should, of course, be served on all parties in the present proceeding.

[20]     Essentially  the  Court  was  inviting  the  Society  to   bring  the  present proceedings.   The Society sought the advice of counsel, and upon receipt of that advice the council of the Society resolved to issue these proceedings.  The statement of claim was filed on 31 October.

Procedural history of the proceedings

[21]     On  3  November  Cooper J  conducted  a  telephone  conference  where  the Society was represented by Mr Jones and Mr Neutze represented himself.  The Judge directed that the matter should be set down for a further conference in front of him at

10am on 16 November.   Mr Jones appeared at the subsequent conference but Mr Neutze did not.  Mr Jones advised the Court that Mr Neutze had told him he had a “dire personal situation” which prevented him appearing, but that Mr Neutze had stipulated no further details should be advised to the Court.   The conference was adjourned to 9.30 the next morning.

[22]     Mr Neutze then attended and was advised that the matter would be heard by a full Court comprising of Judges from outside of Auckland.  The Judge considered the matter was of some urgency and set it down for 27, 30 and 31 January 2006.  He ordered that the statement of defence be filed by 2 December 2005.  Discovery was to be given by 8 December 2005.  There was consent to the Society’s evidence being given by affidavits, which were to be filed and served by 15 December 2005.  The Judge recorded that this was without prejudice to Mr Neutze’s right to cross-examine the deponents but that notice of intention to cross-examine, in accordance with the rules, should be given by 19 January 2006.  No such notice was given.

[23]     No statement of defence was filed but an appearance under protest to the jurisdiction, referred to earlier, was filed on 2 December 2005.

[24]     On 19 January 2006 the matter was called before Winkelmann J as Duty Judge.  Mr Jones advised the Society had complied with its timetabling orders.  Mr Neutze stated there was a considerable volume of documentation and that his preliminary review of the material created a belief that there were significant issues as  to  whether  there  was  any,  or  a  proper,  evidential  basis  for  the  allegations contained in the statement of claim.  He wished to take the opportunity to consider whether he would apply to strike out the claim or make some other interlocutory application.   He was also apparently considering instructing counsel.   The Judge recorded that Mr Neutze did not apply to adjourn the hearing of 27 January but that he sought leave to file further applications.  She ordered that any further applications

and affidavits in support were to be filed and served not later than 18 January 2006, and listed the matter before the Duty Judge for mention on 24 January 2006.

[25]     No further applications were filed by Mr Neutze.  However, on 18 January he filed a long memorandum which essentially set out his grounds of opposition, at that time, to the Society’s application.

[26]     On 24 January 2006 the matter was called before Heath J as Duty Judge. Initially Mr Neutze did not appear and the Judge commenced to dictate a minute.  At

10.25am Mr Neutze entered Court, giving as his reason for non-attendance an engagement in the Waitakere District Court.  The Judge then heard from the parties and noted that Mr Neutze raised specifically the following matters:

[a]The absence of any audio recording of the Court of Appeal hearings to which reference will be made  before  the  Full  Court.    I have informed Mr Neutze that, in my experience, no audio recording is made of hearings of the Court of Appeal and there are likely to be no tapes in existence.

[b]       Mr Neutze has raised the issue of recording of the hearing before the Full Court.  If the Full Court were to accede to that request, practical arrangements could be made for that recording to take place by the hearing being conducted in courtroom 14, the FTR court.

[c]Mr Neutze raises the question whether jurisdictional and other legal issues ought to be argued before evidence is taken.  I have expressed the view that it may not matter as the Judges are likely to base any legal rulings on the evidential foundation presented by the Law Society.  It may be preferable for the evidence to be dealt with after preliminary issues, but those are matters that the Full Court can consider and rule upon.

Primary issues

[27]     In closing Mr Jones submitted that there were two issues to be determined by the Court:

a)        What allegations in the statement of claim and particulars have been proved?

b)Does  such  proved  conduct  justify  the  invocation  of  the  summary jurisdiction of the Court and suspension of the practitioner?

We  agree,  and  propose  to  deal  with  the  various  proceedings  that  led  to  the complaints chronologically.   We will first determine if the Society has proved the allegations it makes and then we will consider whether the proved facts establish this to be the rare and exceptional case where s94 should be invoked by the Court. However, before addressing those matters we need to address a number of legal issues.

Legal issues

[28]     As already mentioned the Law Society’s application for an order suspending the respondent from practice relies on s 94 of the Law Practitioners Act 1982 which provides:

94       Summary suspension from practice

(1)Except as provided in sections 92 and 93 of this Act, nothing in this Act shall affect the summary jurisdiction of the Court over practitioners; but the Court shall have full power to suspend from practice or attach any practitioner, or to make such order as it thinks fit respecting the practice of any practitioner, on reasonable cause shown.

(2)The Court in its discretion may reserve any question arising on any application for the exercise of its summary jurisdiction on a practitioner for the decision of the Court of Appeal on a case stated; and  the  Court  of  Appeal  shall  have  full  power  and  authority  to decide the question and make such order as it thinks fit.

Authoritative guidance as to the use of this sectionwas provided by the Court of Appeal in both its interim and final decisions in B v Canterbury District Law Society. Those decisions arose from the exercise by this Court of its summary jurisdiction to suspend  a  practitioner  by virtue  of  irregularities  in  his  trust  account  (including overdrawing) and failure to provide audit certificates. The Court of Appeal accepted that this Court had jurisdiction to suspend the practitioner, but allowed the appeal on the basis that in that particular case the disciplinary process should have been used.

[29]     In its final decision the Court examined the scheme of the Law Practitioners Act and concluded that the primary procedure provided under the Act for discipline within the profession is that set out in ss 101 – 119 of Part VII of the Act.  With reference to s 94 the Court observed at page 201:

Section 94 then reserves the summary jurisdiction of the High Court to suspend practitioners without expressly incorporating it in the disciplinary procedure provided in s101 et seq.  The jurisdiction is required, of course, to enable  the  Court to  regulate  the  conduct  of practitioners relating  to  the conduct of litigation and their status and responsibilities as officers of the Court … There is no doubt, however, that the section is also available for the rare or unusual cases  when, for  one reason  or  another, the  profession’s disciplinary procedure is inappropriate or unsuitable.   But, as already indicated,  the  essential  function  of  the  summary  jurisdiction  lies  in  a different direction.

Consequently, when the Act is read and considered as a whole, it is clear that it contemplates that disciplinary proceedings will ordinary be taken pursuant to the profession’s disciplinary procedure.  It will be necessary to resort to ss 92 and 93, or to s 94, only in rare and exceptional cases.

The Court of Appeal considered that the circumstances of that particular case were neither  rare  nor  exceptional  and  it  was  unable  to  see  why  the  profession’s disciplinary procedure could not have been used.  Apart from the seriousness of the charges themselves, the Court could not detect any reason for urgency or for an interim order suspending the practitioner.

[30]     There only appear to be two other  examples of this Court suspending a practitioner under s94.  In Borick v Otago District Law Society [1991] 2 NZLR 169 the Court of Appeal made an order striking off Borick pursuant to s 92 on his own application, an interim suspension order having earlier been made by this Court. And in Waikato Bay of Plenty District Law Society v Osmond (High Court Hamilton Registry  CP55/94  26  September  2004)  Hammond  J  utilised  s 94  to  suspend  a practitioner who had admitted a defalcation.  This order was made on the basis that it was unlikely that any further investigation would be required.

[31]     Mr Jones submitted that the following factors distinguished this case from B v Canterbury District Law Society and justified the exercise of the Court’s summary jurisdiction:

(a)The type and number of complaints from the Judges of the High Court and Court of Appeal is unprecedented and of very serious concern to the Law Society.   The number and nature of those complaints is exceptional.

(b)The High Court is the appropriate forum.  The respondent’s conduct occurred  primarily  in  the  High  Court,  but  also  in  the  Court  of Appeal.  The court is in the best position to assess the allegations against the respondent.

(c)A High Court trial has been aborted as a result of the conduct of the respondent and two other High Court Judges have considered exercising  their  summary  jurisdiction  to  suspend  the  respondent. The issue of the exercise of its summary jurisdiction has squarely been raised by the High Court.

(d)The respondent’s conduct of litigation and his duties and obligations as an officer of the court were the matters primarily at issue.  This falls squarely within the ambit of the court’s summary jurisdiction.

(e)       There was a need to deal with the issues as a matter of priority.  The administration of justice in terms of the scheduling of criminal trials and the ability of the respondent to appear as counsel in criminal cases were pressing issues.

(f)No disciplinary proceedings had been taken.   Certain disciplinary procedures had been initiated, but had not been completed at the time these proceedings were commenced.  There has not been any multiplicity of proceedings.

(g)       The conduct complained of was a patter of conduct which covered a number of different proceedings over a period of time.  This type of conduct relates to the practitioner’s overall conduct as a litigator and is best dealt with looking at his conduct as a whole.

(h)The conduct complained of is egregious.   It is not isolated or unprecedented.  It is a course of conduct which has developed over a period of over 18 months.  It shows no sign of abating.

Counsel also suggested that material before the Court indicated that the respondent’s thought processes and perception of reality were abnormal and that this had manifested itself in aberrant behaviour on his part.

[32]     All of these allegations are strenuously denied by the respondent.  However, for the moment it is only necessary for us to consider the respondent’s challenge to the legality and fairness of the steps leading up to the issue of this proceeding, including the invitation of Cooper J for the Law Society to make application under s 94.   As we understand it, Mr Neutze believes that Cooper J effectively acted as both Judge and jury without properly inquiring into the matter and that the Law

Society also failed to properly inquire into the various matters before reaching its decision to issue these proceedings.  Mr Neutze also alleges that he was not afforded proper opportunities to be heard by Cooper J or the Law Society.

[33]   We do not accept that the points raised by Mr Neutze are capable of undermining the legality or fairness of these proceedings.  When he invited the Law Society to make application under s 94 Cooper J was essentially performing an administrative role.   Obviously his invitation was designed to ensure that the allegations  against  the practitioner  would  be properly considered  by  this  Court. Cooper J was not addressing substantive issues.  As to Mr Neutze’s attack upon the steps taken by the Law Society before deciding to issue this proceeding, the underlying premise seems to be that the Law Society was obliged to complete the procedure described in ss 101 et seq.  We believe that this is a false premise.   As indicated  by the  Court  of  Appeal  in  B  v  Canterbury  District  Law  Society,  the summary jurisdiction under s 94 and the disciplinary process are quite different.  In our view the s94 jurisdiction involves a stand alone process.

[34]     Another fundamental plank of Mr Neutze’s argument is that s 94 should only be used for “very grave offending” and that if it was not appropriate to use s 94 in the circumstances prevailing in B v Canterbury District Law Society there is not the slightest foundation for suggesting that it should be used on this occasion.  In other words, he sincerely believes that the Law Society is attempting to misuse the section. Mr Neutze also claims that by attempting to utilise s 94 rather than the disciplinary process the Law Society is depriving him of rights including rights of appeal from any decision of the disciplinary tribunal.

[35]     Naturally we accept that s 94 should only be used in rare and exceptional circumstances.   However, to the extent that these proceedings were triggered by complaints from the judiciary and involve the conduct of litigation by a practitioner, this case is clearly distinguishable from B v Canterbury District Law Society.  In this respect we note the observation of the Court of Appeal that the s 94 jurisdiction is required to enable the Court to regulate the conduct of practitioners relating to the conduct of litigation.   Thus in terms of principle we cannot accept that the Law Society’s resort to s 94 on this occasion was fundamentally flawed.   Nor can we

accept that Mr Neutze has been deprived of any rights.  He has been afforded this hearing before a Full Court.

[36]     Mr Neutze also challenges the admissibility of the letters of complaint from Judges who have not been made available for cross-examination.  When he opened the case for the Law Society Mr Jones suggested that the contents of these letters were admissible as statements made in the performance of a duty in terms of s 10 of the Evidence Amendment Act (No.2) 1980.   We questioned whether the section applied and whether in any event it would be fair to the respondent if the letters were admitted other than as a record that complaints had been made by particular Judges at particular times in relation to particular matters.  By the time he closed the case for the Law Society Mr Jones had accepted our proposition that the letters should only be admitted on the limited basis we had suggested.  He also suggested, however, that the letters could be taken into account to explain the actions of the Law Society.  We have proceeded on the basis that the letters should only be admitted as a record of complaints that have been made by particular Judges at particular times in relation to particular matters and that the actions of the Law Society should be assessed in that context.

[37]     The admissibility of opinion evidence given by practitioners has also been challenged by Mr Neutze.  We note, however, that the opinion evidence is confined to senior and experienced litigation practitioners and in each case we are satisfied that they are properly qualified to give such evidence.  In the end, however, it is for this Court to form its own view on all of the evidence and material before it.

[38]     Given  the  context  and  the  way in  which  the  case  has  been  pleaded  we proceed on the basis that before “reasonable cause” could be shown in terms of s94 the Society would have to establish incompetence.   “Negligence”, that is careless behaviour, is not the same as incompetence and may not reach such a level.   But where the acts or omissions display a complete inability to function properly in the role  of  trial  counsel,  then  counsel  may  be  described  as  incompetent;  i.e.  not competent to perform his/her task and duties.  It reflects an inability to perform one’s task or duty in a proper, legitimate and competent manner.   We will consider the alleged behaviour against that criteria.

The Complaints

R v Conway CRI 2003-004-28660

[39]     On 20 July 2004 Harrison J wrote to the Society making complaints against Mr Neutze in relation to the sentencing of an Edward Henare and a Daniel Conway. Before that the Judge had met with Mr Neutze, two of his senior colleagues and a senior Judge in a fruitless attempt to discuss the problems the Judge perceived Mr Neutze had.  The Society relayed the letter of complaint to Mr Neutze.  Mr Neutze responded and the Society wrote to the Judge which led to a further letter of 1

September 2004.

[40]     The Society relied on the evidence of John Dixon, an associate at Meredith Connell, who appeared for the Crown on the Conway sentencing.  As already noted the Society did not rely on the Henare matter in these proceedings and abandoned the allegation that Mr Neutze had to be replaced in the sentencing of Conway.

[41]     Notwithstanding the fact that the Society no longer relied on the Henare matter, Mr Neutze cross-examined Mr Dixon, and other witnesses, at considerable length in relation to it.  He seemed to think that it was the initial Henare complaint that in some shape or form has led to all other complaints.  There is no evidence to support such a view.

[42]     In relation to the Conway matter Mr Dixon stated that the submissions were not as helpful as most other submissions he had reviewed and were not confined to the specific offending in question.

[43]     In this case we have the benefit of Mr Neutzes sentencing memorandum.  It is a lengthy document which can be found as Exhibit 4.   The Judge expressed his concerns in relation to the memorandum, and in particular paragraphs 13 to 19 and

34 to 55.  We have reviewed the entire document.  The paragraphs just referred to are largely irrelevant to the sentencing process and of little assistance to a sentencing Judge.  Much of it consists of general comments about class A drugs and the effects on users and addicts.  In part it could be read as an apology for the use of hard drugs,

and in particular methamphetamine.   Parts of it simply express Mr Neutze’s own views (e.g. paragraph 48).   Such parts of the paragraphs referred to that may be relevant to the sentencing process could have been encapsulated within a few paragraphs.

[44]     Notwithstanding the cross-examination of Mr Dixon we accept his evidence. We also accept that the memorandum would have been largely unhelpful to a sentencing Judge.   It contains much material that simply should not appear in a sentencing memorandum.  We do not consider that a competent counsel, appearing to make a plea in mitigation on a serious charge in the High Court, would submit such a document.

[45]     We find that the document itself, coupled with the accepted evidence of Mr

Dixon, establishes incompetence in relation to the Conway sentencing.

R v Cavanagh and Ors CRI 2002-4-206137

[46]     On  15  April  2005  Rodney  Hansen J  wrote  to  the  Society  making  two complaints in relation to Mr Neutze.  One of these, dealing with a bail hearing of a co-accused of Mr Neutze’s client, forms no part of these proceedings.  The second matter concerns the persistent lateness of Mr Neutze which created disruption throughout the trial.

[47]     The Society adduced evidence from Mr Ross Burns, a partner in Meredith

Connell.  He led for the Crown in the Cavanagh trial.

[48]     Before  turning  to  the  Cavanagh  trial,  Mr  Burns,  in  his  evidence,  made reference to a document filed by Mr Neutze relating to one Andrew Poelman.  We will deal with that document separately as it provides useful background, while not forming the basis of any of the Society’s complaints in this proceeding.

[49]     Mr Burns’ evidence was that Mr Neutze’s cross-examination was unfocused and irrelevant, and as an example he referred to cross-examination of Detective Sergeant Brazier about a letter dated 22 March 2000 that had nothing to do with this

trial.  He referred to Mr Neutze being constantly late to Court and often appearing to be sending texts below the desk top during the hearing.  At least once Mr Burns had to attract Mr Neutze’s attention so that Mr Neutze could deal with issues arising in the course of the trial.

[50]     He described Mr Neutze’s cross-examination as regularly requiring witnesses to repeat or embellish upon their evidence-in-chief.  He formed the view that the jury were aware of this and showed signs of irritation at the obvious protraction of the trial arising from Mr Neutze’s conduct.

[51]     Overall  Mr  Burns  considered  Mr  Neutze’s  conduct  of  the  trial  to  be incompetent.   As an example he pointed to Mr Neutze’s election not to call Mr Cavanagh but instead to call his accountant, a Mr Matijevich.   After introductory questions Mr Neutze sought to have the witness recount to the jury things he had been told by Mr Cavanagh.  Rodney Hansen J told the witness that he could not say what he discussed with Cavanagh as it was hearsay, and suggested to the witness that Mr Neutze would have explained this to him.  The witness said Mr Neutze had not.

[52]   Mr Neutze then sought to have Mr Matijevich produce an inadmissible document with attachments by way of what purported to be an expert’s report.  We have seen that document and it is difficult to follow.   In any event it purports to record Mr Cavanagh’s, evidence, comment on his credibility and refer to documents for which no factual or evidential foundation had been made out.

[53]     It is also clear that both Mr Neutze and his junior were absent from the Crown opening.   Mr Neutze maintains that a Ms Stoikoff, who was described as “floating counsel”, whatever that may be, was there in his stead and he was advised of the content of the opening.

[54]     That introduces another major issue.   Mr Neutze had been attempting to obtain discovery for some considerable time.   The Crown’s position was that his applications for discovery were obscure and difficult to comprehend.  However, in his cross-examination of Mr Burns, which included much evidence within the questions, Mr Neutze sought to establish that the misunderstanding was on the part

of the Crown and all he was seeking to obtain was various call data warrants and other documents relevant to the interception evidence.   He said it was always his intention to attack the validity of the interception warrant and to have the evidence arising from it ruled inadmissible.  Notwithstanding that, it was not until some time well into trial that such an application was mounted.   Mr Neutze, again giving evidence from the Bar, said this was because he wanted to adduce certain evidence before he made his application.  Clearly this could have been done in the context of a s344A application and/or a voir dire.

[55]     In the  event Mr  Neutze’s application  was  unsuccessful.    However,  there would have been major problems if it had been successful.  Mr Neutze had allowed the Crown to open on the basis that it would rely on intercepted evidence and had allowed such evidence to be adduced without objection.  It seems inevitable that if the objection had been successful the Judge would have been forced to halt the trial because of the evidence   the jury had already heard.   There is, of course, a clear obligation on counsel not to let such a situation arise and in our view this alone shows incompetence.

[56]     In his cross-examination Mr Neutze sought to establish his competence by requesting Mr Burns to identify specific questions that could be said to be objectionable.  However it is not the specific questions, but rather the overall way in which the trial was conducted, that supports the Law Society’s allegation of incompetence.

[57]     We have read and reviewed the entire transcript of the Cavanagh matter.  We have paid particular attention to the matters referred to by Mr Burns and those referred to in Mr Jones’s schedule presented with his closing submissions.   Our review of that transcript shows that Mr Neutze’s cross-examination was unfocused, unstructured and to a large extent irrelevant.

[58]     When cross-examining Mr Burns Mr Neutze did not challenge Mr Burns’ evidence about lateness during the course of the trial.   Nor did he challenge Mr Burns’ evidence to the effect that Mr Neutze had attempted to elicit blatantly hearsay evidence through Mr Matijevich as well as inadmissible documents and statements,

including a document called “financial analysis” which contained material that on any view of the matter was inadmissible and for which no evidential or factual foundation  had  been  laid.    We  concur  in  Mr  Jones’s  submission  that  it  was outrageous for counsel to be involved in the production of such a document, let alone to attempt to have it placed before the Court in evidence.

[59]     Nor did Mr Neutze challenge Mr Burns’ evidence that he had not told Mr Matijevich about the hearsay evidence rule, and that his advice to his client in terms of the client giving evidence and what evidence Mr Matijevich could give must have been erroneous.

[60]     Tellingly, in answer to a query from Chisholm J, the following exchange took place:

QJust one other matter, you have indicated right at the end of your affidavit that you have – this is at the end of paragraph 18 – you have grave concerns about Mr Neutze’s intellectual ability.   As I understand it, the focus of your affidavit has really been on your involvement of recent times with Mr Neutze.  Has there been – have you had any earlier involvement with Mr Neutze in trials?

AMr Neutze worked with me at Merediths when we were both staff solicitors but I didn’t do any work in court with him.   We did the Operation Mexico trial which was this chap Cleven the Headhunter, that was back in early 2002.   That was another fairly significant drugs trial, in fact Cavanagh was called as a character witness at that trial for Mr Cleven.  The next trial of any substance I’ve done with Mr Neutze would be this Cavanagh trial here from memory.

QDid you detect any change in Mr Neutze between the first trial that you have first mentioned and the Cavanagh trial?

AYes I’m afraid to say, that’s why I say I have concerns about his intellectual fitness.  He has a good brain, an intelligent man and a charming one and I don’t like being in the position I’m in.   My understanding is his ability to present argument, conduct cross- examination,   and   present   a   challenging   case   has   diminished markedly over that time.   It’s characterised I think by a complete inability to see the wood for the trees.  In the Cavanagh case we had a man facing charges that got him 12 to 13 years.  Over $1 million at stake  and  we  spent  time  chasing  around  trying  to  get  Telecom records that was never clearly articulated.  The jury were no fools. They knew what the problem was.  A couple of times there I turned to him and had to attract his attention so he could be spoken to by the Judge.  I heard the jury sniggering when he was cross-examining. It’s embarrassing because the Mr Neutze I previously knew is not the same Mr Neutze who conducted that trial.

[61]     As a result of that the Court gave Mr Neutze the opportunity to question Mr

Burns further.  Again the exchange is enlightening:

QDo you agree in Cleven’s trial it was similar in a way that I had some significant resistance from the Bench which in that trial it turned at a certain point and things went well but really in many ways I received a similar resistance and arguments and it was quite an embittered trial, I guess similar to the one you and I conducted last year.  I’m not saying the result was the same but -?

ALook Peter it’s going back a way I don’t recall it being anywhere as bad as the Cavanagh one.  We all know what Cleven was like, he was a nasty, violent little toe rag and not an easy client.  But I don’t recall there being anything like the difficulties.   I don’t recall you being late every day, I don’t recall you going off at tangents and ignoring critical points of the evidence.   The Judge may have intervened from time to time but never to remind you about basic rules of evidence like happened in this case.   I’m sorry man but that’s the way it is. That’s my observations.

QThat’s your observations but you could well be completely wrong on those when one analyses the evidence so let’s just say you have your generic opinion and  you  haven’t  really backed  it  up really by - [Court – matter for the Court]?

AI’ve done hundreds of trials with hundreds of counsel and this is the first time I have ever felt moved to openly criticise the way someone has conducted themselves and I haven’t done it lightly.

[62]     We  accept  the  evidence  of  Mr  Burns.    That  evidence  clearly  shows  an adverse reaction from the jury, persistent lateness and unprofessionalism in demeanour and conduct.  As we have noted above, a review of the transcript reveals unfocused, irrelevant and unstructured cross-examination.   Furthermore, it is quite clear that Mr Neutze must have given erroneous advice to Mr Cavanagh and attempted to call Matijevich to give evidence and produce documents that even a law student would have understood were inadmissible.   Either this represented a remarkable lack of knowledge of the laws of evidence on the part of Mr Neutze or a cynical attempt to manipulate the trial process.

[63]     We are satisfied that the allegations of incompetence in the Cavanagh trial have been made out.

R v Robertson (CA472/04)

[64]     On 8 September 2005 the Society received a letter from Glazebrook J.  In it she provided the Society with various minutes issued in the course of this appeal and expressed concerns about Mr Neutze’s response times.

[65]     The Society also relied on the affidavit of Annabel Markham who appeared for the Crown in the Robertson appeal.

[66]     Following trial, with two co-accused, Robertson was acquitted of murder but convicted of the manslaughter of one Weavers.  His co-accused were acquitted.  Mr Neutze had appeared at trial and conducted the appeal.

[67]     The notice of appeal was filed on 2 December 2004 and on 21 April 2005 the appeal was set down for hearing on 14 June of that year.  Under the Practice Note then in force Mr Neutze’s written submissions were due on 31 May 2005.

[68]     Ms Markham gave evidence that in early June Mr Neutze applied for an adjournment and a telephone conference was convened on 3 June with Glazebrook J. Mr Neutze indicated he had difficulties with 14 June and said senior counsel would likely be instructed and that such senior counsel would not be available on the 14th. The  adjournment  was  refused  but  Glazebrook J  indicated  that  the  case  may  be accommodated in another day during the same week.   A new timetable order was

issued on that day requiring Mr Neutze to file submissions on or before 7 June.

[69]     On  7  June  Mr  Neutze  emailed  the  Crown  with  draft  and  incomplete submissions.  He indicated he believed the appeal could proceed, but later the same afternoon he sent a letter to the Crown making a number of “discovery” requests.

[70]     That afternoon  a further telephone conference was convened, although  it appears no minute was issued.  The Crown expressed concerns about the lateness of the discovery request.  It was agreed Mr Neutze would obtain the pathology notes he wanted from the Crown pathologist directly, and would liaise with the police and trial prosecutor in relation to remaining requests.  At Mr Neutze’s request the appeal was shifted to 2.15pm on 15 June.  Apparently at that stage Mr Neutze also raised issues  about  the  summing  up,  and  claimed  that  parts  had  been  mistranscribed,

although he failed to identify those parts.  Glazebrook J directed that both Mr Neutze and Ms Markham should attend Court on 15 June at 1pm prior to the hearing to review the audio tape.

[71]     Mr  Neutze’s  submissions  were  filed  on  13  June.     A  covering  letter foreshadowed he may apply for an adjournment on the basis of fresh evidence, being a purported reconstruction of the fatal assault performed by Robertson and another person in prison, and the expert opinion on such reconstruction by a pathologist. This had not been previously foreshadowed in the notice of appeal or the draft submissions.

[72]     On the day of hearing, 15 June, Mr Neutze emailed some supplementary submissions indicating he had met with the Crown and the defence pathologists and they were prepared to provide a joint written report to the effect the wounds suffered by the deceased were consistent with the defence scenario of a fall.

[73]     At 1pm Ms Markham presented at Court, as directed by Glazebrook J, to review the audio tape.  Mr Neutze did not attend.  He arrived 20 minutes after the scheduled start time of 2.15pm for the hearing without apology.  Ms Markham said he was disorganised and was repeatedly asked by members of the Court to identify his grounds of appeal but was unable to do so.  When it became apparent the appeal could not proceed the Court adjourned the hearing and issued further timetabling orders in relation to the proposed fresh evidence.

[74]     After the hearing Ms Markham expressed her concern to Mr Neutze about him having approached the Crown pathologist without advising her.   She wrote saying that she wished to be advised of further meetings so she could attend.

[75]     According to the new timetable the fresh evidence was to be filed by 5pm on

27 July.   Mr Neutze had indicated it would be available within two weeks but notwithstanding this a period of six weeks was given so that senior counsel, if appointed, could have input.  On 21 July the Court  issued a reminder minute but nothing was heard from Mr Neutze until after the deadline had passed.  Mr Neutze attempted to attribute the delay to Ms Markham advising Dr Koelmeyer not to co-

operate.   We can say that this is completely wrong because the letter from Ms Markham contains no such direction.  It merely states she wanted to be informed of any meetings with Dr Kolemeyer so she could attend.  She should not have needed to write in such a vein.

[76]     Ultimately the Court issued a fresh timetable order directing the material be filed on or before 19 August.   Reminder minutes were issued on 12, 17 and 18

August.

[77]     The application and two affidavits were filed on 19  August with further material on 22 August and 8 September.  On 3 October the Court issued a further minute indicating it had not received any updated submissions from Mr Neutze and reminding him the fixture would proceed irrespective of whether submissions were received or not.  Despite a reminder minute on 19 October no updated submissions were received.

[78]     The hearing was set for 28 October at 10am.   It appears Mr Neutze had difficulties with flights and arrived late.   Glazebrook J reminded him of the usual appellate practice of counsel travelling the night before.

[79]     The appeal commenced and the Court, according to Ms Markham, repeatedly asked Mr Neutze to identify and focus on his principal grounds of appeal.  The Court also commented on his failure to answer questions and his difficulties in understanding the legal test for the “unreasonable verdict” ground of appeal.

[80]     A late luncheon adjournment was taken but the Court made it clear it would reconvene at the usual time of 2.15pm.  Mr Neutze did not appear and the Registrar had to telephone him.   He arrived saying he was in the library and must have forgotten the time.

[81]     Ms Markham also confirmed the comments in the ‘Dominion Post’ report, exhibit 50, about Mr Neutze’s conduct during the hearing were accurate.

[82]     The reserved decision of the Court of Appeal contains comments relating to the procedural history set out above.  They are all matters of public record from both the minutes and the judgment.   Furthermore, the Court at [54] of the judgment dismissed the application to adduce new evidence on the grounds of failure to meet the timetable orders.  Notwithstanding that the Court considered the application on its merits and indicated it would have been dismissed it on that basis as well.

[83]     Mr Neutze does not challenge the various allegations of lateness.  Indeed he has given no evidence or satisfactory explanation for this lateness.   Nor has he challenged his failure to comply with the various timetable orders made by the Court of Appeal.  Again there is no evidence to explain such failure.

[84]     Mr Neutze cross-examined Ms Markham at some length and put to her that the Court of Appeal aggressively questioned him and tried to box him in to one limited ground of appeal.  Her response at page 46 was:

AMy impression was not so much that the Court was endeavouring as you said earlier to box you into one ground of appeal.  It was that the Court was trying to get you to identify a miscarriage of justice that flowed from your  criticisms  of  the  police  conduct.    Your  focus seemed to me, and to the Court as I understand it, seemed to be very much on focusing on criticising the police and the Crown without identifying any resulting miscarriage of justice.

QNow you have stated that.  Can you back it up by going to the memo and demonstrating what you just said.  Because I would suggest the opposite is the case? [The Court intervened to say that was a matter for the Court]

AI was just going to say I can answer that question with reference to a specific comment from the Court I have noted.   That was again a comment from Randerson J he said to you stop blaming everyone, focus on your principal points.

Bench:

QIs that the impression you got from the Court, to go to a step beyond the criticism and to tie it in with the statutory test?

A        Yes.

[85]     We accept Ms Markham’s evidence.  Indeed the inability to articulate points has been redolent throughout this hearing before us.  Unprofessional demeanour and conduct is readily made out by the persistent lateness and the failure to comply with

timetable orders.   Nor has there been any serious challenge by Mr Neutze to Ms Markham’s evidence that Mr Neutze was unable to properly articulate the legal test for the “unreasonable verdict” ground of appeal.

[86]     In relation to Robertson we are satisfied the allegations of incompetence particularised by the Society are made out.

R v Punnett & Ors (CRI 2004-044-007303)

[87]     This  trial  involved  charges  of  manufacturing  methamphetamine  brought against five accused namely Collings, Punnett, Carmody, Allen and Fountain.   In essence the Crown’s case was that each of the accused were involved in the manufacture of methamphetamine at a residential address in suburban Auckland which was the home of three of the accused.  A search of a motor vehicle in which one of the accused Ms Allen, and another person (not the subject of charges, Mr Taylor) were present, occurred without warrant but pursuant to s18 of the Misuse of Drugs Act 1975.   As a consequence of what was found and what was told to the police by Ms Allen a search warrant was obtained and acting pursuant to this the police found a number of incriminating items at the residential property pointing to the manufacture of methamphetamine.

[88]     In February 2005 when Mr Neutze was then acting in the Cavanagh trial he was also acting for three of the five accused involved in this case, namely Collings, Carmody  and  Fountain.  Having  advised  the  Court  about  the  possibility  of  a challenge to the admissibility of evidence, he was told to particularise the pre-trial issues by 15 December 2004.  He did not do so.

[89]     Concerns about Mr Neutze’s actions arose on 3 February 2005 when the matter came before Heath J.  The matter could not be heard then and Heath J issued a Minute on 3 February 2005.  In that Minute the Judge said:

[3]       Correspondence  between  Mr  Neutze  and  the  Crown  Solicitor produced to me over the period between callover and today’s hearing demonstrated a deplorable failure to particularise adequately the basis of the challenge, meaning ultimately, in my view, that the Crown has been embarrassed in its ability to deal adequately with all issues today.  Indeed a

fresh issue has been raised today concerned alleged tampering with evidence which could not be gleaned from the sparse explanation of the challenges contained in Mr Neutze’s correspondence.

[4]       The  challenges  as  articulated  by  Mr  Neutze  this  morning  go  to evidence gathered as a result of a roadside search of a motor vehicle carried out by police officers in reliance on s18(2) of the Misuse of Drugs Act 1975 and a subsequent search of residential premises pursuant to a search warrant under the Summary Proceeding Act issued at 7.23pm on 7 March 2004 by a Justice of the Peace.

[5]       Problems arise because Mr Levett, for Ms Allen, informed me this morning that she does not challenge that evidence.  Ms Allen was one of two occupants of the motor vehicle, the other occupant not being the subject of a charge in the present indictment.

[6]       Mr Neutze complains that evidence gathered in consequence of that search led directly to obtaining of a search warrant to search the premises at which Mr Collings and Ms Punnett live, together with Ms Allen.  Ms Allen provided that address to the Police.

[7]       It is inappropriate for me to rule on that issue at present but I direct that full submissions be available to the Judge who hears the amended pre- trial application on whether there is any standing for accused other than Ms Allen to challenge the admissibility of that evidence for alleged breaches of rights afforded to Ms Allen.

…

[10]      I have asked Mr Neutze by what date he could provide an adequate memorandum setting out the full grounds of his challenge with sufficient information to enable the Crown to brief witnesses and to prepare legal argument.  He tells me that that can be done by 18 February 2005.

[11]      I direct that a memorandum to that effect be filed and served by Mr Neutze by 3pm on  18  February 2005.    A  memorandum setting out the Crown’s position in response together with an amended application under s344A of the Crimes Act (if the Crown considers that appropriate) shall be filed and served by 3pm on 4 March 2005.  That will then leave adequate time for counsel to prepare for the adjourned hearing.

[12]      For the benefit of the Judge who deals with the pre-trial application I make it clear that I have said some harsh words today to Mr Neutze about his failure to comply with Potter J’s directions and the need for adequate particularisation.    That Judge will need to scrutinise carefully the memorandum of 18 February 2005 (which I direct the Registrar to refer to the Judge once filed) together with a copy of this Minute to ensure its adequacy.  I make it plain to Mr Neutze that if there is any failure to meet appropriate standards he may well have to respond to a suggestion that any wasted costs be met by him personally.

[90]     On 18 February 2005 Mr Neutze faxed a memorandum to the High Court which purported to set out pre-trial issues for the accused.  (It is incorrectly dated

18 July 2004).  The essence of the memorandum is to contend that property seized at a residence of some of the accused was inadmissible in evidence as the search pursuant to a warrant was unlawful because the initiating grounds for belief arose from  an  earlier  “unlawful”  search  of  a  motor  vehicle.    The  problem  with  this argument was that one of the occupants of the motor vehicle (Taylor) was not the subject of the charge and the other (Ms Allen) did not challenge the search.  Indeed, she was later to plead guilty.

[91]     The matter came before Winkelmann J and was heard on 25-28 April 2005 when Mr Neutze, together with a junior appeared on behalf of four accused but not Ms Allen.  Judgment was delivered on 25 May 2005 ruling the evidence admissible. The obvious point was made that there was no basis for Mr Neutze to argue on behalf of his clients that their rights had been breached by a search of the motor vehicle in which others were present even if it be that the rights of those others had been infringed.  It was obvious that they had no standing to advance that argument.

[92]     On behalf of his clients Mr Neutze applied for leave to appeal to the Court of Appeal.     He  filed  a  memorandum  of  submissions  on  1  July  2005,  which encompassed 27 pages.  They purport to cover a wide range of matters, including repeating the submission that the search warrant of the residential property was a “nullity” because  the  police  investigation  commencing with  the  stopping of  the vehicle was unlawful and there were abundant “procedural improprieties”.

[93]     The submissions were at best confusing and, in some respects, hopeless. Simply by way of an example, he contended that because of an alleged breach of the Judges’ Rules in police interviews of two persons, Taylor and Ms Allen, who were not his clients, (and one was not charged at all) any admissions made by those two persons ought to be excluded as being “unreliable”.   How they could possibly be admitted as against Mr Neutze’s clients is not explained.  The appeal itself was heard on 21 July 2005 by a division of the Court of Appeal.  It led to a letter being written by Randerson J, also on behalf of Glazebrook and Goddard JJ, to the Professional Standards Director of the Society in which they “draw to your attention our concerns about  the  performance  of  Mr  Neutze  during  the  course  of  this  hearing”.    The concerns were summarised as Mr Neutze arrived 20 minutes late for the hearing;

persisted in advancing completely untenable legal propositions which were absurd; was unable to deal in oral argument with matters concerning Authorities or to answer questions.   The letter expresses opinions of the members of the Court as to the competence of Mr Neutze on that occasion.  But, for reasons already given, we put to one side their opinions on that issue because in the end that is a matter for this Court.

[94]     Mr Neutze pointed to his submissions to the Court that showed he no longer relied on the matter set out in [92] above.   Mr Neutze said he relied on a more general ground of police impropriety in the search of the vehicle and in relation to other unarticulated matters to found a submission that the evidence of the premises’ search was inadmissible.  Presumably this was on some general ground of fairness. We say “presumably” because Mr Neutze seemed unable to clearly articulate the ground or give any authorities in support of it.  In any event we accept the evidence of Mr Lawry that notwithstanding the written submissions Mr Neutze continued to try and advance to the Court of Appeal the clearly untenable argument set out in [92] above.

[95]     We are satisfied in relation to the appeal hearing the Society has proved incompetence.

[96]     When the trial itself commenced on 15 August 2005 Mr Neutze acted then only for Mr Collings and Ms Carmody.   As we have said, one of the original accused, Ms Allen, had pleaded guilty.  Ms Punnett was represented by Mr Grieve with Ms Abbott and the accused Fountain was represented by Mr Faleauto.   As already mentioned the trial had progressed for two weeks when it took a dramatic turn.

[97]     The evidence before us from the Crown prosecutor, Mr McNaughton, was that Mr Neutze was incompetent in his handling of the defence and the trial had descended into a farce.  He said that when making an opening statement Mr Neutze did not identify the relevant issues or give an explanation as what the defence would be in respect of either accused.   Mr Neutze cross-examined on two occasions regarding penalties for the offences and was warned to stay away from that issue by the trial Judge.  He pursued very lengthy and pointless cross-examination of police

officers and others.   His cross-examination of the former accused, Ms Allen, who had pleaded guilty, was disorganised, repetitive, unduly prolix, and never addressed the central issue to which he appeared to be alluding, namely that it was Taylor, a person not before the Court, who had left incriminating equipment and chemicals in the garage at the residence.  The witness said that cross-examination was hopelessly confused  and  unfocused  and  on  many  occasions  pursued  questions  of  police witnesses in areas clearly outside their area of knowledge or expertise.  It was also stated that Mr Neutze gave evidence when framing questions despite objections by the trial Judge, that he was unable to formulate precise questions, that he moved from topic to topic, had a “stream of consciousness”, and appeared to be wasting the time of the Court, witnesses and the jury.

[98]     Mr McNaughton said that concerns about such time wasting and pointless cross-examination were expressed by both him and Mr Grieve to Mr Neutze who responded by laughing and saying he would take as long as he liked and would waste the Court’s time if he wished.  Notwithstanding Mr Neutze’s disagreement we accept Mr McNaughton’s evidence about what occurred.

[99]     As a consequence of Mr Neutze’s actions the Judge took the very unusual step of stopping the trial.  His formal reasons for doing so are now reported in [2006]

1 NZLR 133 and are matters of record. His oral decision when discharging the jury is recorded and dated 26 August 2005. This followed upon application by Mr Grieve QC on behalf of the accused Ms Punnett that the conduct of Mr Neutze had been so incompetent that the chance of Ms Punnett receiving a fair trial had been prejudiced. It was said that there had been unfavourable reaction by the jury or members of it to Mr Neutze and the manner in which he was conducting himself. Mr Grieve had submitted:

…that the conduct went beyond the point of prejudicing the position of Mr Neutze’s clients but overflowed to prejudice the possibility of a fair trial of Ms Punnett.

[100]   In  his  evidence  before  us  Mr  McNaughton  expressed  his  view  that  Mr Neutze’s conduct was “incompetent in the extreme.  His actions led to the trial being aborted and two weeks of Court time being wasted”.   He stated that it was a combination of all the factors he had illustrated which led to Laurenson J aborting

the trial, with Mr Neutze refusing to take notice of any interjections by Crown counsel or the Judge, persisting in time wasting and arguing irrelevant and unfocused questions to a point where a continuation of the trial would have been a complete farce.

[101]   It seems that the evening before Mr Grieve made the formal application to discharge the jury, the Judge himself had become very concerned at the behaviour of Mr Neutze, but that he had decided against discharging the jury at that point. In his reasons for judgment the Judge indicates that he had reached the conclusion the jury was acting adversely to Mr Neutze’s behaviour with a mixture of frustration and amusement and he was concerned that if the position was allowed to continue and if there were convictions the result would almost inevitably be an appeal based on counsel’s incompetence, such having a likelihood of success. He hoped that matters would improve the following day.

[102]   But, of course, the situation changed when the following day Mr Grieve applied on behalf of his client pursuant to s374(1) of the Crimes Act 1961 for the jury to be discharged.  If indeed there was incompetence or behaviour on the part of other counsel, which prejudiced Ms Punnett and she was eventually convicted, she too  could  expect  a  successful  appeal  on  the  grounds  of  miscarriage  of  justice. Mr Grieve’s position that Mr Neutze was behaving in an incompetent manner was shared by the trial Judge.  That view was also shared, it seems, by Mr McNaughton although he opposed the application to discharge the jury on the basis that any prejudice to Ms Punnett could be alleviated by the Judge’s directions to the jury. The Judge obtained from Mr Faleauto on behalf of Mr Fountain that if there was an order  discharging the  jury  from  considering Ms  Punnett,  then  Mr Fountain  also wished to be included and not have the trial proceed against him alone.  The Judge expressed the view that although the impact of stopping the trial could not be underestimated, whether on account of cost, time, trouble, witnesses and the like, the Court nevertheless had to ensure a fair trial of people accused of crimes. Mr Neutze was  invited  to  obtain  instructions  from  his  two  clients  over  the  luncheon adjournment.  This occurred and the Judge records that counsel advised the Court that Ms Carmody wished to obtain separate counsel and that Mr Collings had no objection to the application by Mr Grieve on behalf of Ms Punnett.

[103]   In his oral remarks the Judge said he was satisfied that there had been a reaction by the jury to the conduct of Mr Neutze, which was adverse, and it was impossible to determine what might be the eventual consequences of that reaction. He said he had no option but to make an order discharging the jury because the situation which had arisen could be properly described as an emergency, such that it was highly expedient to the ends of justice to discharge the jury without giving a verdict.  As we have said the Judge later delivered further formal written reasons in which he records the Crown prosecutor agreed that the cross-examination by Mr Neutze was incompetent.  A number of matters were listed:

(a)       Inability to formulate questions;

(b)       Too often a combination of opinion and question;

(c)       Endless  repetition,  noting  particularly  the  cross-examination  of

Dr Coxon [ESR scientist];

(d)      Continual need for Mr Neutze to take instructions from his client; (e)        Failure to address issues;

(f)       Persisting with inadmissible evidence; (g) No structure or plan.

[104]   The  Judge’s  reasons  for  discharging  the  jury  are  set  out  in  [51]  of  the judgment.   He  refers to pointless cross-examination, interminable  time  taken,  if matters of substance existed they were lost in a mass of irrelevant material and “I could well imagine the jury could have reached the point of thinking that if this is the best Mr Neutze’s clients can have produced on their behalf, then there cannot be any real merit in the defence”.   He said he reached the conclusion that Mr Grieve on behalf of Ms Punnett had satisfied him that the conduct of Mr Neutze could have prejudiced Ms Punnett.  He emphasised that that was not the end of the matter as he had to also take into account the position of Mr Neutze’s own clients who were in the first instance most likely to be affected by their counsel’s performance.   The Judge said at [54]:

Having had the inadequacies of their counsel spelled out, their reaction, namely to seek other counsel, was scarcely surprising.  Furthermore, in my view it was amply justified.

He said that to have allowed the trial to continue would have been contrary to the ends of justice and no other course was open to him, given that the performance of Mr Neutze “had reached an almost farcical level”.

[105]   Before us, Mr Neutze did not give or call any evidence as to allegations of his incompetence in the conduct of the trial before Laurenson J or the earlier appeal. The evidence we received came from Crown prosecutor Mr McNaughton together with the transcript, which we have reviewed.  Of course, the reasons and conclusions of Laurenson J are matters of record.  In his submissions Mr Neutze challenged the decision of Laurenson J, arguing that as counsel he had performed competently and well and had made significant progress to the benefit of his clients.  He says that the Law Society could not point to any particular question posed in cross-examination that illustrated incompetence (or “negligence” as he put it) and that Mr Grieve’s application was misguided.  He argued there had been a breach of natural justice in that he had not been heard by Laurenson J and that the rights of his two clients (by this we gather he meant to have the trial continue against them) were breached.

[106]   The discharge of a jury is a matter for a trial Judge’s discretion and the need to exercise the power of discharge can arise in an infinite variety of circumstances. Whether counsel need to be heard before a Judge could make such a decision will depend on the particular circumstances.  In this case that application was made by counsel for another accused.   The individual and separate positions of co-accused were sought and provided through counsel. Mr Neutze’s complaint seems to be that he wanted to be heard on the question of his competence or the jury’s adverse reactions.   We do not consider the Judge was obliged to engage in any factual disputes as between Mr Grieve on behalf of the applicant and Mr Neutze on behalf of his two clients. Blunt assertions made to us concerning “breach of natural justice” are without merit.

[107]   The  principles  or  approach  to  be  adopted  in  the  exercise  of  a  Judge’s discretion under s374 were considered in R v Tatana (CA143/94 25 August 1994) where the Court of Appeal said that there is no need for the Court to adopt a limited interpretation of the words “emergency” and “casualty”, and s374(8) makes it clear there may be no review of the exercise of the Judge’s discretion by any Court.  On

the evidence before us it is clear that an “emergency” had arisen which placed the interests of justice and all accused in jeopardy.  If the trial had proceeded and any accused had been convicted there would have been grounds for an appeal on the basis of Mr Neutze’s behaviour.  If, on the other hand, Mr Neutze’s clients had been acquitted because the jury were sympathetic to them because of his conduct, and not because of any other reason, the acquittal would have been for the wrong reason.

[108]   We are satisfied that the evidence establishes the allegations made on behalf of the Society that in respect of the conduct of this trial Mr Neutze’s demeanour, behaviour  and  conduct  was  seriously  deficient.    It  fell  far  below  the  standard expected and required of counsel and it resulted in a quite lengthy trial having to be stopped. His behaviour was more than just simply errors of judgment or tactical blunders.  Moreover, there were persistent and serious deficiencies.  Any possibility of a reoccurrence should be avoided.

[109]   Both in relation to the appeal and the trial the incompetence alleged by the

Society has been amply demonstrated on the evidence.

The “Poelman Statement”

[110]   Mr Burns referred to what has been called the “Poelman statement”.  It was a document relating to one Andrew Poelman who was tried, convicted and sentenced on two charges of supply of a class B controlled drug and one charge of possession for supply of a class B controlled drug. Mr Burns gave evidence that this was filed in relation to the sentencing of Poelman.  Mr Neutze, from the Bar, said it was filed in support of an application for adjournment made to the trial Judge, Ronald Young J. It was in fact filed on 20 April 2004.  It is apparent from the file that it was filed in response to the Judge’s order that Mr Neutze, by 5pm on 20 April, file and serve on the  Crown  sufficient  information  to  enable  a  s 344A  application  to  be  filed. Annexed to it is a letter to a senior counsel in Sydney.   In that letter there is an allegation that the then Criminal List Judge in Auckland, Williams J, colluded with Mr Perkins of the Crown Solicitors Office in refusing an application to adjourn the trial.  Not only that, the document is bizarre and full of unsubstantiated allegations. It is a truly peculiar document.  It has not been relied on by the Society to support its

application to us.  However, it is proper that we mention it as it featured significantly in the hearing.    Mr  Neutze maintained  it  was  filed  in  anger  as  a result  of  his treatment by Harrison J in the course of the Conway sentencing.  He also stated that it was a joke, and accepted before us that it was a document he should probably not have filed.

[111]   The document exhibits many of the facets complained of by the Society.  It also continues the theme we have mentioned, of Mr Neutze being convinced that there is a pattern of behaviour between the police and the Crown  in  Auckland against both Mr Neutze and his clients.  He considers this extends to improper police activity against his clients as well as the allegations contained in the “Poelman statement” of computer hacking and other serious allegations.   There is simply no evidence to support such allegations before us.

[112]   We mention the “Poelman statement” for a further reason.  Mr Neutze said it was more than coincidence that the first complaint against him by Harrison J came just a few days after he filed this document.   In fact the Conway sentencing was some three months after this document was filed.

[113]   Furthermore, Mr Neutze claims that all other judicial complaints from Court of Appeal and High Court Judges flowed from his filing of the “Poelman statement” and the initial Harrison J complaint.  We reject that.  There is no evidence that any of the Judges had any knowledge of this document when they made their complaints.

General

[114]   There seems to us to be a common theme running through both trials and both appeals that have given rise to the complaints.   That theme is Mr Neutze’s criticism of the police and the Crown.  In particular his focus is on what he alleges to be police impropriety.  However, he seems to have little or no ability to understand the need to firstly establish such impropriety or conduct to the requisite evidential level, and then to demonstrate on the basis of some statutory or judicial authority how it would warrant a ruling of inadmissibility of evidence or a miscarriage of justice etc.

[115]   When it was put to Mr Neutze in the course of the hearing that he was alleging a conspiracy between the police and the Crown he demurred.  He described it as a “pattern”.  He also said that the Judges would be unaware of this and that their “pattern of complaint” against him was unrelated to the activity of the police and the Crown.  Again, there is simply no evidence to support Mr Neutze’s criticism of the police, Crown or judiciary.   In any event the complaints giving rise to these proceedings have been vindicated by the evidence we have heard and accepted.

[116]   During the course of the hearing we extended considerable latitude to Mr Neutze in the conduct of his defence.  In doing so we recognised the significance to Mr Neutze of the application by the Society.  We also took no issue with his failure to file a statement of defence or to lodge a notice to cross-examine the Applicant’s deponents, both in clear breach of timetable orders.

[117]   However, it became apparent in the course of the hearing before us that the conduct of his defence mirrored the many complaints made against him.  Mr Neutze did not give or call evidence, yet persisted in attempting to give evidence from the Bar. His cross-examination was discursive, rambling, unfocused and often irrelevant. When  we  attempted  to  have  him  articulate  clearly  and  simply  the  various propositions he was trying to put forward, and to support them with legal authority, he had great difficulty and on most occasions failed to do so.

[118]   We have not taken Mr Neutze’s conduct of his defence into account when reaching our conclusion that it is proper for us to exercise the power to suspend.  We have no doubt as to Mr Neutze’s commitment to his clients, but nevertheless it illustrates that he has little, or no, insight into the way his trial conduct has led to the complaints against him.  It also illustrates that if Mr Neutze continues to litigate in the same manner further complaints against him and further disruption to the Court process are inevitable.

[119]   We understand from Mr Jones that the number and nature of the complaints received from Court of Appeal and High Court Judges in this case is unprecedented. However, we have set that to one side and considered the individual complaints as particularised by the Society.   In each case we have found that the incompetence

alleged by the Society has been established on the evidence of the witnesses we have accepted,  the  documents,  and  those  matters  of  public  record  that  speak  for themselves.  As we have already said, it is not a case where Mr Neutze’s behaviour has been simply errors of judgment or tactical blunders. The evidence shows persistent and serious shortcomings.  It has led to the abandonment of one trial and may lead to a retrial in the Cavanagh case.

[120]   If Mr Neutze is allowed to continue in practice there is a very real likelihood that further trials will have to be stopped or there will have to be retrials on the grounds of his incompetence.

[121]   We would add that as the Court of Appeal mentioned in its interim ruling in B v Canterbury District Law Society at page 9, s 94 is designed to protect the public and the interests of justice.  Persistent and serious incompetence of counsel, as we have found established in this case, is not in the interests of the public and they are entitled to be protected against it.  Furthermore, it is against the interests of justice. It not only impacts upon the integrity of the legal system and Court processes, but also upon jurors, accused, witnesses, counsel and Judges, as well as the public at large who have a very real interest in the integrity of the legal system and the trial process.

[122]   For those reasons we consider this to be one of those rare and exceptional cases where it is proper for us to invoke the powers conferred by s 94 of the Act.

Outcome

[123]   There will be an order suspending Mr Neutze from holding or applying for a practising certificate until further order of this Court.

[124]   We have already noted the evidence of Mr Burns to the effect that for many years  Mr  Neutze  was  a  competent  and  able  practitioner.    That  has  obviously changed.  We have no knowledge as to any underlying factors that may have caused such change, nor are we inclined to speculate.  However, if there are factors present

and Mr Neutze successfully addresses them this Court would be amenable to an application to lift the order for suspension.

[125]   Having made an order for suspension we do not consider it appropriate for the practitioner’s name to remain suppressed.  However, in fairness to him, the order suppressing both his name and the names of his clients in the criminal cases referred to in the statement of claim will lapse at the expiry of the third working day after the day on which this judgment is delivered.

[126]   For the sake of completeness, we point out that the suppression order made by Laurenson J in relation to his ruling in R v Punnett & Ors remains in force.

[127]   Memoranda of costs should be filed within 10 days of the delivery of this decision.