Dean v Wellington District Law Society HC Wellington CIV 2006-485-2961
[2007] NZHC 1952
•26 July 2007
PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF THE COMPLAINANT AND ALL WITNESSES OTHER THAN MS OLLIVIER PROHIBITED.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2006-485-2961
IN THE MATTER OF s 188 of the Law Practitioners Act 1982
BETWEEN JOHN ANDREW DEAN Appellant
AND WELLINGTON DISTRICT LAW SOCIETY
First Respondent
AND NEW ZEALAND LAW PRACTITIONERS' DISCIPLINARY TRIBUNAL
Second Respondent
Hearing: 6 June 2007
Court: Randerson J, Chief High Court Judge
Ronald Young J Simon France J
Counsel: J A Langford for Appellant
N J Sainsbury for First Respondent
B M Cash for Second Respondent
Judgment: 26 July 2007
JUDGMENT OF THE COURT
This judgment was delivered by me on 26 July 2007
at 12 noon, pursuant to r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Langford Law, PO Box 344, Wellington
Bell Gully, PO Box 1291, Wellington
DEAN V WELLINGTON DISTRICT LAW SOCIETY AND ANOR HC WN CIV 2006-485-2961 26 July 2007
Introduction
[1] The appellant was charged before the New Zealand Law Practitioners Disciplinary Tribunal with two charges of conduct unbecoming a barrister and solicitor under s 112(b) Law Practitioners Act 1982 (the Act). The charges related to alleged misconduct of a sexual nature. The Tribunal found the first charge was not proved but, by a majority of five to one, found the second charge proved. The appellant was later censured and ordered to pay costs. His name or any identifying particulars were suppressed. The appellant now appeals against the finding that the second charge was proved seeking a reversal of the Tribunal’s determination.
[2] The principal grounds of appeal are that:
a) The conduct the Tribunal found to be established in respect of the second incident did not amount to activity of a sexual nature;
b) The Tribunal was wrong to find there was a sexual connotation in respect of the first incident; and
c) The Tribunal wrongly took into account the evidence relating to the first incident in reaching its conclusion on the second.
[3] We record that Mr Cash was excused from attendance. We agree with his submission that the Tribunal should not have been named as second respondent: Rule 709(2) High Court Rules. The second respondent is struck out as a party accordingly.
Background facts
[4] The complainant was a Japanese woman with whom the appellant and members of his family had become acquainted. The first charge related to an incident in February 2002 when the complainant was invited to the appellant’s home along with her new born son. The complainant stayed overnight. The next day, after the appellant’s wife and children had left the home, the complainant was breastfeeding her son in the lounge. It is accepted that the appellant took some photographs of the complainant breastfeeding her baby, initially with her clothes on
but later when she was naked. It is also accepted this occurred at the appellant’s instigation and that, soon afterwards, the complainant asked the appellant to give her the photographs. The Tribunal did not make any finding as to whether the complainant consented to the photographs being taken. The appellant now accepts the complainant was uncomfortable with the photographs being taken although he maintained she did not appear to be concerned at the time. It is common ground there was no relationship of solicitor and client between the appellant and the complainant at this time.
[5] The complainant then left New Zealand for Japan in May 2002, returning in October 2003. At the suggestion of the appellant’s brother in law, she engaged the appellant to act for her on immigration matters and a dispute over property with her former partner. The incident forming the basis of the second charge occurred on 4
January 2004 while the appellant was still acting on the complainant’s behalf. By arrangement between them, the complainant went to the appellant’s legal offices to clean the windows. When she had completed the work the appellant hugged her, placing both his arms around her back. The circumstances in which this occurred were strongly disputed, the Tribunal recording that the appellant was cross-examined for nearly two days by the appellant’s counsel. The complainant’s account (which she also demonstrated before the Tribunal) was that the appellant grabbed her, pulled her towards him and, in the course of this, lifted her off the ground. She was wearing jeans and a T-shirt. He rubbed his hand up and down her back under her T- shirt at about waistband level. In the course of this, his hand touched the upper part of her buttocks.
[6] The appellant’s account on the other hand was that there was no element of inappropriate touching and that the embrace was merely an affectionate demonstration of gratitude for the complainant’s work.
The nature of the second charge
[7] The second charge of conduct unbecoming was not happily worded when initially laid. But essentially, it alleged the appellant abused the relationship of confidence and trust between practitioner and client by engaging in sexual activity
with the complainant without her consent and persisting with it when he knew or should have known she did not consent. Reference was made to rule 1.01 of the Rules of Professional Conduct for Barristers and Solicitors which states:
The relationship between practitioner and client is one of confidence and trust which must never be abused.
[8] During the Tribunal’s deliberations, the charge was amended to read:
On a date on or about 4 January 2004 [the appellant] abused the relationship of confidence and trust within the relationship of practitioner and client by engaging in activity of a sexual nature with [the complainant] without her consent.
[9] The appellant does not take issue with the amendment of the charge in this manner.
The Decision by the Tribunal
[10] The Tribunal gave a brief oral decision on 31 August 2006 and delivered formal reasons in writing on 1 November 2006. The first charge was found not to be proved because there was no relationship of solicitor and client at the time; the appellant was not in a position of apparent authority in relation to the complainant such as would bring the behaviour within the purview of conduct unbecoming; and the conduct proven did not have a sufficient degree of moral turpitude to be described as conduct unbecoming. In the written decision, the Tribunal added:
We were satisfied however that there was a sexual connotation to the practitioner’s behaviour.
[11] As to the second charge, the Tribunal adopted a two-stage approach of first considering whether the facts had been proved to the required standard and then deciding whether they amounted to conduct unbecoming. The Tribunal adopted the criminal standard of proof (beyond reasonable doubt). Arguably, only proof to the civil standard was required (see Z v Complaints Assessment Committee [2007] NZCA 91) but nothing turns on this for present purposes.
[12] The Tribunal’s findings were summarised at [45] to [49] of the written decision:
[45] Following the approach set out in [43] and [44] a majority of the Tribunal found that the complainant’s account of what occurred on 4 January at the practitioner’s office was proved and amounted to conduct unbecoming in the manner set out in the charge as amended by the Tribunal.
[46] It was accepted that at the material time the complainant was a client. In all the circumstances there was a relationship of trust and confidence. The Practitioner’s actions were inconsistent with this trust and the confidence reposed in him. In the majority’s view the conduct complained of amounted to conduct unbecoming.
[47] In reaching that finding it was significantly assisted by the demonstration given by the complainant. It considered the demonstration was unrehearsed, and not exaggerated. The account given was consistent with the respective physical dimensions of the practitioner and the complainant. The movement of a hand about a hand’s width above and below the complainant’s waist line at her back which we found proved would have touched the upper extremity of her buttocks. Assisted by the evidence relating to the first charge, the majority of the Tribunal was of the view that the practitioner’s activity was of a sexual nature, not simply an affectionate demonstration of gratitude. We therefore reject Mr Langford’s submission that what occurred was not of a sexual nature.
[48] In reaching its decision the majority of the Tribunal was conscious of some discrepancies in the complainant’s written accounts, but given that English was her second language, considered that it was not appropriate to adopt too rigid or literal a view of what was contained in them. The earlier written accounts were all compiled with assistance from others. The majority found her explanation to the Tribunal, and in particular her demonstration compelling.
[49] We are also assisted to our conclusion by the reaction of the complainant after the incident at the office on 4 January in seeking the return of the photographs taken earlier by the practitioner. We were quite unimpressed by the practitioner’s account about his disposal of those photographs.
Grounds of appeal
[13] The submissions made by the appellant were extensive but it is important to record at the outset that Mr Langford for the appellant accepted the facts relating to the first incident as we have recited them in [4] above and did not seek to dispute the findings of fact relating to the second incident recorded by the Tribunal in paragraph [47] of its decision.
[14] As to the first ground of appeal set out in [2], we accept the submission made by Mr Sainsbury on behalf of the Wellington District Law Society as first respondent that it was open for the Tribunal to conclude on the facts established in respect of the second incident that the appellant’s conduct amounted to his engaging in activity of a sexual nature with the complainant. There was no suggestion that there was an accidental touching or that she consented. In a letter to the Wellington District Law Society responding to the complainant’s allegations in this respect, the appellant described them as “a figment of her imagination”. In these circumstances, the conduct found by the Tribunal amounted effectively to an indecent assault . In any event, we are satisfied the Tribunal was entitled to take the view that touching the complainant’s buttocks and back with his hands under her T-shirt amounted to activity of a sexual nature.
[15] As to the second ground, we do not accept Mr Langford’s submission that the Tribunal was wrong to conclude there was a sexual connotation to the first incident. Confining our assessment solely to the accepted facts as we have recited them, we consider it was open to the Tribunal to conclude there was a sexual connotation to the first incident. The appellant and the complainant were alone together in the house and, despite the apparent friendship between them, we consider it was reasonable for the Tribunal to infer that the taking of photographs of the complainant while naked and breastfeeding her baby had a sexual connotation. The appellant accepted he had invited the appellant to take her clothes off and there was no suggestion he had any professional interest in photography such as might have given rise to an inference of innocent purpose.
[16] As to the third ground, we accept Mr Langford’s submission that the Tribunal appears to have been assisted by the evidence relating to the first charge in reaching its conclusion that the appellant’s activities on the second occasion were of a sexual nature. We also accept Mr Langford’s submission that the Tribunal is open to criticism for failing to identify the evidence relating to the first charge which it took into account. However, again confining our assessment solely to the accepted facts as we have recited them in respect of the first incident, we consider it was open for the Tribunal to take those facts into account in deciding whether the appellant’s
activities were of a sexual nature rather than an affectionate demonstration of gratitude as he contended.
[17] It is common ground that this material could not have been relied upon as similar fact evidence. But we are satisfied the Tribunal could properly take that evidence into account to assist in its conclusions as to the appellant’s motivation for his actions on the second occasion when he rubbed his hands on her under the T- shirt. The defence was that it was an innocent hug and it was legitimate to take into account, when determining motivation, that the appellant had previously initiated conduct towards her of a sexual nature. It provided relevant context and tended to show that the appellant had an interest of a sexual nature in the complainant. While there was a gap of about two years and two months between the two incidents, Mr Sainsbury pointed out that the complainant had been overseas for approximately 17 months during that period which bears on the opportunities the appellant had to make contact with the complainant between the two incidents.
[18] Mr Langford raised a number of subsidiary points. Reference was made to the dissenting decision given by one of the Tribunal members (Mr K N Hampton QC) who took a different view from the majority about the complainant’s credibility. We fail to see the relevance of the dissenting decision given Mr Langford’s acceptance of the essential facts decided by the majority. Similarly with the other factual issues he canvassed in his submissions. They are immaterial given Mr Langford’s acceptance of the essential factual conclusions of the Tribunal.
Conclusions
[19] None of the grounds of appeal are established. No basis is made out to challenge the Tribunal’s finding that the appellant engaged in activities of a sexual nature with the complainant while there was a relationship of solicitor and client between them. There being no dispute that, in the circumstances, this amounted to conduct unbecoming a practitioner, the appeal is dismissed.
Name Suppression and Costs
[20] In delivering its oral decision on 31 August 2006, the Tribunal ordered that the appellant’s name and any identifying particulars be suppressed. That order was made despite opposition on behalf of the Wellington District Law Society. No reasons were given for the decision.
[21] There was no appeal by the District Law Society against the making of the suppression order but we raised the issue with counsel during the course of the hearing of the appeal before us.
[22] We have since received written submissions on behalf of the appellant and the District Law Society. We have also received affidavits from the appellant and his wife in relation to this issue. Unsurprisingly, the appellant takes the view that it would be inappropriate for the existing suppression order to be disturbed. The District Law Society takes the view that, notwithstanding its earlier decision not to appeal the name suppression order, its position remains the same, namely there is no appropriate basis for permanent name suppression to be granted.
[23] No issue is taken with the jurisdiction of this Court to make such order as it thinks fit in respect of name suppression. In relation to proceedings before this Court, s 113 of the Act permits the Court to make an order prohibiting publication of the appellant’s name and any other relevant particulars of any proceeding in this Court. It follows that, in the absence of any order made prohibiting publication under that section, the appellant’s name and any other relevant particulars may be published.
[24] However, in practical terms, if we were to permit publication of the appellant’s name in the proceedings before this Court, it would negate the effect of the suppression order made in the Tribunal. We must therefore consider our jurisdiction to interfere with the suppression order made in the Tribunal notwithstanding the absence of any appeal against that order.
[25] We are satisfied that this Court has jurisdiction to confirm, reverse or modify the suppression order made by the Tribunal despite the absence of any appeal against it. Where the Tribunal makes an order prohibiting publication under s 111(2)(c) of the Act, the order remains in force unless it is reversed or modified by this Court on appeal under s 118: see s111(3). This Court has power under s 118(3) to confirm, reverse or modify the order or decision under appeal. We consider that the term “decision” is wide enough to include any orders made incidentally to that decision, including any suppression order. If there were any doubt about the matter, the jurisdiction of this Court conferred by s 118 of the Act is supplemented by the High Court Rules. Rule 718A(1)(a) empowers this Court to make any decision it thinks should have been made at first instance. Importantly, Rule 718A(4) provides that this Court “may act under subclause (1) in respect of a whole decision, even if the appeal is against only part of it”. And, under Rule 718A(6):
The powers given by this Rule may be exercised in favour of a respondent or party to the proceedings concerned, even if the respondent or party did not appeal against the decision concerned.
[26] We conclude that this Court has jurisdiction to reverse or modify the suppression order made by the Tribunal notwithstanding the absence of any appeal against it.
[27] In considering whether we ought to reverse or modify the suppression order made by the Tribunal, we would ordinarily consider whether there has been some error of approach by the Tribunal in making the order. However, the absence of reasons for the decision effectively prevents us from taking that approach in this case. We therefore intend to consider the matter afresh.
[28] Section 111 Law Practitioners Act 1982 relevantly provides:
Hearings to be in public
(1) Except as provided in this section, every hearing of the New Zealand
Disciplinary Tribunal shall be held in public.
(2) If the Tribunal is of the opinion that it is proper to do so, having regard to the interests of any person and to the public interest, it may—
(a) Hold a hearing or any part of a hearing in private:
(b) Make an order prohibiting the publication of any report or account of any part of any proceedings before it, whether held in public or in private:
(c) Make an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at any hearing:
(d) Make an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person.
[29] The Act presumes that a hearing of the Tribunal will be held in public unless the Court orders otherwise. An order prohibiting the publication of the name or particulars of the person charged may be made if the Tribunal is of the opinion that it is proper to do so having regard to the interests of any person and to the public interest. It is well established that proceedings before the Tribunal are not criminal in nature nor are they punitive. Their purpose is to protect the public, the profession and the Court. In S v Wellington District Law Society [2001] NZAR 465 it was held at 469 that:
The public interest referred to is the interest the public, including members of the legal profession, has resulting from its right to know about proceedings affecting a practitioner. The interests of any person includes the interests of the practitioner as well as others.
[30] The Court in S continued:
We conclude from this approach that the public interest to be considered, when determining whether the Tribunal, or on appeal this Court, should make an order prohibiting the publication of the report of the proceedings, requires consideration of the extent to which publication of the proceedings would provide some degree of protection to the public, the profession, or the Court. It is the public interest in that sense that must be weighed against the interests of other persons, including the practitioner, when exercising the discretion whether or not to prohibit publication.
[31] In the present case, it was submitted on behalf of the appellant that the conduct proved against the appellant was at the low end of the scale in terms of seriousness and that his conduct could be viewed as foolish and ill-judged. It was further submitted on the basis of the affidavit evidence that publication of the appellant’s name would have a detrimental impact on his practice as well as his professional and personal reputation. It was also submitted that publication would adversely affect the appellant’s wife, his children and members of his wider family.
[32] Mr Sainsbury submitted that any adverse effects on the appellant and his family were outweighed by the public interest. In particular, potential clients of the appellant had the right to know about the matters which are the subject of this appeal so that they may make an informed decision before entrusting their legal affairs with the appellant. If there were a repetition of the appellant’s conduct with another female client, that person could legitimately claim that her interests had not been protected if the suppression order were maintained.
[33] We have concluded that the suppression order made by the Tribunal cannot stand. While the appellant’s misconduct was not at the highest end of seriousness, it nevertheless amounted effectively to the criminal offence of indecent assault. The Act provides for a presumption in favour of publicity unless the Tribunal or this Court orders otherwise. That is consistent with the general trend towards openness in Court proceedings. We accept the submissions made on behalf of the District Law Society that it is in the public interest that potential clients of the appellant should be aware of the disciplinary charge established against him. We are not persuaded that these factors are outweighed by the matters advanced on behalf of the appellant.
[34] Accordingly, there will be no order prohibiting publication of the appellant’s name in this Court and we reverse the suppression order made before the Tribunal. The effect of these orders is that the appellant’s name and identifying particulars may be published. For clarity, we confirm that the orders made by the Tribunal prohibiting publication of the name or identifying particulars of the complainant and all witnesses other than Ms Ollivier, remain in force.
Costs
[35] The first respondent is entitled to an order for costs against the appellant on a
2B basis. If the parties are unable to agree on the amount of costs, the first respondent is to file and serve a memorandum within 14 days of the date of this decision and the appellant within 14 days thereafter. We make no order for costs in respect of the second respondent.
A P Randerson, J Chief High Court Judge
Ronald Young, J
Simon France, J
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