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Legal Services Commissioner v Fajardo[2018] QCAT 92

Legal Services Commissioner v Fajardo[2018] QCAT 92

CITATION:

Legal Services Commissioner v Fajardo [2018] QCAT 92

PARTIES:

LEGAL SERVICES COMMISSIONER

(Applicant/Appellant)

v

SUSAN FAJARDO

(Respondent)

APPLICATION NUMBER:

OCR088-15

MATTER TYPE:

Occupational Regulation Matters

HEARING DATE:

28 November 2017

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

Assisted by:

Dr Margaret Steinberg

Mr Geoffrey Gunn

DELIVERED ON:

21 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

THE TRIBUNAL ORDERS THAT:

  1. The practitioner is publicly reprimanded.
  2. The practitioner is barred from applying for a practicing certificate for 5 years.
  3. The practitioner is ordered to pay costs to be assessed under the QCAT rules by equal monthly instalments.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the practitioner represented the complainant in an appeal against criminal conviction and sentence – whether the practitioner substantially and consistently failed to make submissions reasonably expected of a competent appeal advocate – where the tribunal is not satisfied the practitioner’s appeal conduct fell short of the expected standard of skill and care – where the practitioner failed to correct a known error in her written submissions – where the practitioner alleged misconduct against prosecution counsel – where the practitioner falsely swore a statutory declaration in response to a bar association investigation – where the practitioner is guilty of professional misconduct

BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400

Browne v Dunn (1894) 6 R 67

Eastman v R (1997) 76 FCR 9

Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655

Law Society of the Australian Capital Territory v Burns (2012) 6 ACTLR 282

Legal Services Commissioner v Hackett

[2006] LPT 015

Legal Services Commissioner v Lim

[2011] QCAT 291

Legal Services Commissioner v Mullins [2006] LPT 012

Legal Services Commissioner v Voll [2008] LPT 1

Legal Services Commissioner v Winning [2015] QCAT 510

Lyons v The Queen (1992) 64 A Crim R 101

R v Birks (1990) 19 NSWLR 677

Whitehorn v The Queen (1983) 152 CLR 657

Legal Profession Act 2007 (Qld) ss 418, 419, 456, 462(1), 462(5)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    This Legal Profession Act 2007 (Qld)[1] discipline application was heard by the panel in an “on the papers” proceeding on 28 November 2017.
  2. [2]
    The first three of four charges arise out of the former practitioner’s handling of a criminal appeal.[2]  The overall allegation is a level of incompetence or lack of diligence amounting, either alone, or, in combination, to unprofessional conduct.  The fourth charge of professional misconduct is swearing a false statutory declaration in response to an investigation report.  
  3. [3]
    The issues for each are whether:
  1. the tribunal is satisfied (or reasonably certain) that the practitioner has engaged in a category of prescribed conduct;[3] and
  2. it thinks making one or more (and which) of the disciplinary orders stated in s 456 is warranted.

The context    

  1. [4]
    The complainant, Prabath Alwis, was convicted by a jury of defrauding his employer of $159,000 in 2007. He was initially sentenced to 5 years imprisonment suspended after serving 24 months for unlawfully using company money for private purposes.  The complainant was legally represented by experienced and competent counsel. He gave evidence denying that the money had been taken with fraudulent intent.
  2. [5]
    The only live issue for the jury was a simple one of fact – whether or not the complainant used $159,000 of his employer’s money for purposes he honestly believed to be authorised. 
  3. [6]
    The jury rejected the complainant’s defence of implied approval substantially based on the financial evidence of Ms Dale and Mr Poulsen.
  4. [7]
    The core issue on appeal was whether all reasonable explanations consistent with innocence had been excluded by the evidence as a whole.
  5. [8]
    Acting at a significantly reduced rate on a “direct access” brief, the practitioner unsuccessfully argued the conviction appeal but the sentence was reduced by six months due to errors in the sentencing process so that the complainant, having already served 18 months, was released immediately.

Charge 1 

  1. [9]
    The fault alleged is not making all the submissions on the complainant’s behalf a professional advocate would reasonably have made.
  2. [10]
    The first concerns an asserted failure to enforce the so called rule in Browne v Dunn.[4]
  3. [11]
    No objection or redirection was raised by trial counsel and the practitioner did not avert to the breach but according to a senior criminal barrister briefed to advise on the prospects of a High Court appeal the complainant was arguably deprived of a fair chance of acquittal at trial because of damaging submissions made by the prosecutor in her final address about his character and veracity she had not squarely or fairly put in cross-examination. The six specific matters of concern are identified as:
  • “so called outstanding balances” were not mentioned because (the complainant) “didn’t want to get himself into more mess”;
  • the complainant lied to Ms Dale “so he would remain undetected in his activity”;
  • a “so-called agreement” was never mentioned to Ms Dale or Mr Poulsen when they confronted him about his dishonesty
  • fax details were only sent by the complainant “to try to get them off his back”; 
  • $80,000 was used for his cars; and
  • money plus “a bit more” was repaid by the complainant to “stay out of trouble”.
  1. [12]
    As well as not complaining about these alleged breaches of the rule the practitioner is alleged to have inexcusably neglected to inform the appeal court that:
  • the prosecutor:
  1. (a)
    had inappropriately expressed personal opinions about the complainant’s general credibility;
  2. (b)
    suggested that certain prosecution evidence clearly demonstrated that he had lied when it did not reasonably have that effect at all; and
  • the trial judge:
  1. (c)
    had not given any directions in relation to lies and propensity inferences concerning the complainant’s admission to falsifying ledger entries.
  1. [13]
    The remaining examples of the practitioner’s alleged underperformance derive from disapproving and unflattering comments the appeal court made in its published reasons at: 
  • [36] – where the practitioner’s contention to the effect that the fact that Ms Dale and Mr Rosenlund successfully used a ploy to retrieve misappropriated money required the jury to reject either as a credible witness was dismissed out of hand;
  • [37] – when flatly rejecting the practitioner’s suggestions that Ms Dale’s inconsistent statements and admitted dislike of the appellant were reason enough for not accepting her evidence because:
  1. (a)
    any testimonial variations were minor and did not require the jury to reject her evidence generally; and
  2. (b)
    the conceded fact that Ms Dale and the complainant did not get along for some time before discovery of the fraud did not require the jury to reject her evidence;
  • [40] – where it was found that contrary to the practitioner’s assertions the trial judge did not make any demonstrated error in his “comprehensive and thoughtful directions”.  Specifically, he was not required to tell the jury the elements of the offence and potential defences at the commencement of the trial. The court pointed out that the complainant’s trial counsel could have, but, for understandable forensic reasons, chose not to make an opening statement outlining the appellant’s case had he considered it advantageous to place the issue of dishonesty at the forefront of the jury’s consideration before they heard the prosecution evidence;
  • [42] – in dismissing the practitioner’s contention that the trial judge’s failure to explain to the jury how to deal with expert evidence had caused a miscarriage of justice when:
  1. (a)
    defence counsel agreed;
  2. (b)
    no redirection was sought;
  3. (c)
    the jury had access to the non-contentious exhibits to which Mr Poulsen referred;
  • [44] – in making the baseless submission that the judge’s directions would have led the jury to wrongly treat the complainant’s statements in Exhibit 19 as admissions of guilt when he had made it abundantly clear that the issue for their consideration was whether the appellant had acted dishonestly or had honestly believed, even mistakenly, that he was entitled to use the company’s money as he did and to acquit if not satisfied of guilty mind beyond reasonable doubt;
  • in the court’s view, his Honour had also explained and gave appropriate directions on honest claim of right under s 22 Criminal Code Act 1899 (Qld) emphasising that the appellant did not have the burden of proving that he made an honest claim of right. The judge also directed the jury that it was for the prosecution to satisfy the jury beyond reasonable doubt that, when the appellant carried out the admitted transfers, he did not honestly believe he was entitled to do so. The judge directed the jury as to honest and reasonable mistake of fact under s 24 Criminal Code. He also told them to consider evidence of the appellant’s good character in determining both whether he was likely to commit the offence and his credibility. The judge could not have been more accommodating to the appellant and it was little wonder no application was made for any redirection on this aspect of the summing up;
  • [48] – when dealing with claims that the judge’s directions as to the meaning of dishonesty were flawed when they strictly accorded with the law; 
  • [50] – in rejecting suggestions that there was reason to conclude that the jury did not conscientiously undertake their task over more than four hours of deliberation,[5] fully heeding and properly applying the judge’s comprehensive and appropriate directions, where the only live issue was the straight forward one of whether the prosecution had proved that the appellant was dishonest;
  • [52] – where the proposition that signs of juror distress indicated that some of them had been pressured to reach their verdict because of the pending Easter break when the equally or more likely explanation was the burden of discharging jury duty; 
  • [54] and [55] – where the practitioner’s misguided assertions that the prosecutor’s closing submissions about the complainant’s motives for misappropriating the money to “support his lifestyle choices” was unsupported by the evidence but making no legitimate complaint about the misappropriated amount being overstated as $179,000; 
  • [77] and [78] – concerning the practitioner’s failure to identify a number of substantial errors in the exercise of the sentencing discretion which Crown counsel correctly identified.  The first is that the judge failed to declare six days of presentence custody from 21 April 2012 to 27 April 2012. The second was misstating the misappropriated amount by $20,000;
  • [54]-[55] and [78] – when pointing out that the trial judge’s mischaracterisation of the case as one of non-cooperation was incorrect and identifying mitigating circumstances the practitioner had missed, for example:
    1. (a)
      although there was no guilty plea the complainant nonetheless admitted at an early stage the acts constituting the physical elements of the offences;
    2. (b)
      the complainant’s formal admissions at trial narrowed the issues and shortened the length of the trial;
    3. (c)
      the appellant consented to a full hand up committal proceeding;
  • [70] – when noting the practitioner’s failure to highlight the trial judge’s apparent failure to appreciate that full restitution had been made even before the company had discovered the scale of the fraud; and
  • [81] – where the practitioner was rebuked for pointing out that the judge had wrongly thought that the maximum term of imprisonment was 14 years when it was only 12 where the sentencing discretion was “unquestionably” misinformed by it.
  1. [14]
    The commissioner says that the particularised conduct was so “frequent and consistent” as to meet both the statutory and common law descriptions of professional misconduct.

The practitioner’s response

  1. [15]
    The practitioner denies any case to answer. She says that the decision to limit the conviction appeal to the critical issue of honesty and the leave application to those issues likely to reduce sentence if accepted was a tactical one.
  2. [16]
    In her submission, the commissioner is applying unreasonable and indeterminate standards to measure her performance based on the overly exacting and contestable, but in any event, qualified, opinion of a senior practitioner.  She contends that everything she did was “… consistent with the proper conduct of a criminal appeal and does not meet the statutory or common law description of substandard or unethical professional conduct”.
  3. [17]
    She says raising Browne v Dunn issues was pointless because the Court of Appeal had obviously formed and expressed the view that trial counsel was running the trial efficiently to get to the real issue, shorten the case and save some expense “for forensic reasons” and even if they had been made the submissions proposed in the senior practitioner’s advice probably would have been dismissed because the trial counsel didn’t take the point at the time.
  4. [18]
    She argues that the approach she took was competent within the permissible range and observes that “just because this is his opinion of how he would have run the appeal does not mean that another barrister who did not do it the way he would have done it is not competent”.
  5. [19]
    As to the failure to pick up on the sentencing judge’s failure to declare six days of presentence custody the practitioner says the complainant did not “instruct about this issue” and both the prosecutor and defence counsel missed it too.
  6. [20]
    The practitioner relies on her “forensic judgment” in not making an issue about the $20,000 overstatement of the net amount misappropriated by both the practitioner and the trial judge because she knew that it would not have impacted on the sentence imposed and there was no suggestion it would have in the appeal.
  7. [21]
    Likewise, in relation to her failure in not taking issue with sentencing errors because they were incidental and did not relate to the leave grounds.
  8. [22]
    Concerning the adverse remarks of the appeal judges particularised at [17] of the commissioner’s submissions and reproduced in these reasons at [13] above the practitioner says:

A review of the paragraphs mentioned in the list reveal that what these statements really were saying was that (her) submissions … on inferences and alternative interpretation of the evidence at the trial were refused by the judges.  The submissions (she) made … regarding the evidence given by witnesses at the trial were fair submissions.  Opposing counsels make these kinds of inference and alternative interpretations in their submissions all the time at trials or appeals.  This does not amount to incompetence or absence of due diligence.  As a matter of fact, this is “creative advocacy”.  This is not lying about the evidence but drawing an alternative conclusion or inferences from a particular evidence or a set or combination of evidence, for instance, a corroborating vs an inconsistent statement of two people to robustly advance their client’s case.  Sometimes, different inferences or interpretations can be drawn from evidence at trials depending on the party looking at it.  It is the responsibility of counsels to offer the inference or interpretation that is favourable to the client.  Unfortunately for Mr Alwis, the judges did not believe his story.  Just because the judges did not agree to the respondent’s fair inferences on the evidence such as statements of witnesses does not mean that counsel is incompetent and without diligence.

  1. [23]
    In BLD16 v Minister for Immigration and Border Protection[6] Derrington J stressed the need to assess the professional conduct of a pro bono practitioner in light of the issue that the client’s implied impecuniosity creates, including any language barriers and other practical limitations under which gratuitous services are commonly provided.
  2. [24]
    We respectfully agree and applying similar reasoning here we are not satisfied in all of the circumstances that the allegation in charge 1 that the practitioner’s overall performance as a direct access appeal advocate fell short of the standard of skill and care the public is entitled to expect of her in performing that role.

The prosecutor’s conduct

  1. [25]
    The question on appeal was whether viewed as a whole the prosecutor’s closing address to the jury gave rise to a substantial miscarriage of justice. Not every breach of the prosecutor’s duty will lead to such a conclusion.
  2. [26]
    It depends on the significance of the breach assessed in the context of the trial overall. Relevant to that issue is whether the defence counsel objected at the time or it can be inferred from the lack of complaint that viewed in context any breach of duty was not unduly prejudicial or unfair.
  3. [27]
    The permissible scope of advocacy by prosecutors is dealt with in many past cases but only a few need mentioning.
  4. [28]
    The fundamental duty of a prosecutor, according to Deane J in Whitehorn v The Queen[7] is to act “with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one”.
  5. [29]
    Relevantly, a prosecutor should not support a proposition with evidence that does not exist or is misquoted, offer personal opinions, invite speculation or encourage false lines of reasoning, inflame emotion, demean or ridicule testimony or impair the credit of a witness not given the right of reply.[8] However, the prosecutor is still an advocate in an adversarial setting and has the right (duty even) to attack the defence case in terms likely to be understood by the jury.
  6. [30]
    In Lyons v The Queen[9] Wright J noted that:

(Crown counsel)… is not required to reduce his rhetoric to dull and lifeless factual propositions. He should of course avoid hyperbole and not seek to sway the jury by trickery, prejudice or emotion, be he should not be forced to weigh every word he utters for the potential disapproval it may attract in the Court of Appeal. Our system of criminal justice is adversarial. Crown counsel is an advocate, albeit that his role is special in that he should not fight for a conviction at all costs.

  1. [31]
    There is no impropriety or undue prejudice in a prosecutor deriding evidence as “implausible”, “incredible” or even “fanciful” or “ridiculous” if there is a reasonable basis for saying so in the course of an overall submission that the contrary case should be rejected as false. 
  2. [32]
    It is hard to see how the complainant’s position could have been worsened by the practitioner’s decision not to take issue with the prosecutor’s address or the judge’s summing up on this ground.
  3. [33]
    Browne v Dunn[10] was a 19th century civil action for libel against a solicitor where the issue was whether he had instructions to act in the way he did.
  4. [34]
    The principle was formulated in the context of the plaintiff’s failure to challenge the evidence of any witnesses he called to verify the disputed instructions. Lord Herschell merely acknowledged that as a matter of professional practice and possibly even procedural fairness, “… it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity (while he is in the witness box) of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story has not been accepted”.[11] (emphasis added)
  5. [35]
    The rule which “in its content and application (is) neither fixed nor inflexible”[12] safeguards fairness in adversarial proceedings by requiring giving an adverse witness the chance to clarify or explain apparent contradictions in his or her own evidence, or perhaps, more importantly, to call available and admissible credibility corroborative evidence which was not.
  6. [36]
    The rule has no utility where a party’s intention to impeach credibility on a particular point “is so manifest that it is not necessary to waste time in putting questions to him upon it”.
  7. [37]
    In any case, the general requirement is subject to numerous qualifications and exceptions. 
  8. [38]
    The first is that it only extends to significant aspects of the fact finding process.
  9. [39]
    This consideration, according to Gleeson CJ in R v Birks[13], “… provides the best guide both to the practical requirements of the rule in a given case, and the consequences which may properly follow from its non-observance, including the remedies that are available to deal with the problem created”.
  10. [40]
    It was apparent from the outset that the prosecution case was based on the straightforward allegation that the complainant applied $159,000 (originally $179,000) of his employer’s money to his use for his own benefit without any authority or excuse.  The points on which the opposing cases conflicted were plain enough well before the complainant gave his evidence in chief and the jury was addressed.
  11. [41]
    The questions and form in which they needed to put to strictly comply with the rule suggest that the answers would be predictably self-serving but not necessarily convincing.
  12. [42]
    Although the course of the trial meant that defence counsel’s final address preceded the prosecution’s (and therefore could not reasonably have pre-empted the rule breach) no corrective directions were requested either.
  13. [43]
    Reasonable opinions will differ about the fairness of the complainant’s trial and how much his genuine prospects of acquittal were reduced by the prosecutor’s closing submissions or the judge’s non-enforcement of the rule. What is clear is that any appeal counsel trying to persuade the court that the jury had been misled into a finding of dishonesty it otherwise probably would not have reached because the requirements of Browne v Dunn had not been met faces a demanding challenge.  The prosecution case was a strong one. The inference of dishonesty was almost irresistible once the complainant’s evidence was rejected.  In my opinion, assisted by the panel, the jury’s interpretation of the material facts is unlikely to have been adversely affected by the prosecutor’s failure to put specific points of disagreement to the complainant in cross-examination.
  14. [44]
    The Court of Appeal evidently did not think that the complainant was unfairly disadvantaged at trial or that his defence was conducted poorly by his trial counsel who acquiesced in the prosecutor’s contravention of the convention and took no steps to ameliorate its potential impact before the jury’s retirement or verdict.
  15. [45]
    The practitioner could hardly be validly criticised for failing to take procedural points competent trial counsel impliedly rejected especially when she could only do so with leave.
  16. [46]
    It is hard to disagree with the practitioner’s submissions paraphrased at [15]-[17] above.

The failure to argue

  1. [47]
    The practitioner’s unsuccessful and unorthodox tactic of attacking the advocacy style of the prosecutor (except for the Browne v Dunn breaches) and suggesting illusory mistakes in the judge’s summing up was unlikely to have made any difference to the complainant’s unreasonable verdict claim.  Nothing the practitioner said or failed to say on the complainant’s behalf is manifestly responsible for any practical injustice.
  2. [48]
    In those circumstances it is difficult to even identify much less measure the degree of professionalism the public is reasonably entitled to expect of an advocate for a hopeful (and very likely, desperate) client keen for any argument in his favour (tenable or otherwise) to be put up for consideration.

The judicial criticisms

  1. [49]
    The quality of a legal submission is a contestable question of fact not law. Judicial characterisations or criticisms are just opinions which may be right or wrong but are certainly not conclusive or binding on a disciplinary tribunal.
  2. [50]
    Arguments directed at overturning a guilty verdict for unreasonableness are often rejected by appeal courts in disparaging terms such as fanciful, ludicrous, baseless, unmeritorious, untenable or inappropriate, without necessarily reflecting incompetence (as distinct from inexperience or nervousness) on appeal counsel.
  3. [51]
    Dubious explanations of damning facts by appeal counsel are routine. Favourable evidence or inferences are stretched to the outer limits of credibility for the client’s benefit without warranting disciplinary action or even denunciation.
  4. [52]
    The court’s unceremonious rejection of the long list of bad conviction points cannot sustain a prescribed conduct finding in the circumstances of this case.
  5. [53]
    Again, we accept the logic and cogency of the final sentence of the practitioner’s response reproduced at [22] above.
  6. [54]
    The same, however, cannot be said of the application for leave to appeal the sentence. Not making the right submissions on appeal can spell incompetence even when making a wrong does not.
  7. [55]
    The miscalculation of presentence custody was a substantial failure but the practitioner was not the only one who made it (both the trial judge and prosecutor got it wrong too) yet only the practitioner is being held publicly accountable for it.
  8. [56]
    The judge’s overstatement of the misappropriated amount was out by less than 10 per cent, and despite the appeal court’s assessment of its significance in calculating the head sentence, a $20,000 discrepancy was not likely to result in a harsher sentence for misappropriating more than $150,000 that has been fully repaid. Likewise, for the mistaken maximum and overlooking the period of presentence custody.
  9. [57]
    None of these mistakes or oversights in appeal litigation are uncommon and attributing any excessive quantum of the complainant’s initial sentence to any one or all of them rather than some other more latent discretionary error is highly problematic.
  10. [58]
    In any event, the errors were corrected on appeal (through the diligence of opposing appeal counsel) and no harm was done.

Charge 2 

  1. [59]
    In cross-examination the complainant claimed to have come to this country with half a million dollars in cash[14] but in paragraph 9.17 of her written outline the practitioner mistakenly asserted that there was no evidence to that effect.
  2. [60]
    The commissioner alleges that the practitioner “knew” the statement at 9.17 of her outline was “incorrect” and contrary to rule 27 of the Barristers Rules 2011 but did not take “any steps” to correct it “before or on the hearing of the appeal.”
  3. [61]
    In her response to the bar association complaint the practitioner said:

… When I was reviewing the transcript in preparation for my oral argument (after I submitted my written outline of argument) I found the part where Mr Alwis actually said the he brought half a million dollars to Australia at his cross-examination.  Hence, at the hearing, I admitted to the Court my oversight.

  1. [62]
    In submissions to the tribunal the practitioner is adamant that she amended paragraph 9.17 of her appeal outline by striking it out “in person at the hearing of the appeal”.
  2. [63]
    No amendments to the court copy of the submissions are evident. The practitioner says that just because “… there were no amendments on the court copy of the submission …” is not evidence of false swearing but merely suggests that she forgot to file the amended copy.
  3. [64]
    There is no mention of “the oversight” in the transcript of proceedings or in the reasons for judgement. On the contrary, the court found the contention was “entirely misconceived”. This is not an observation likely to be made about a mistake that had already been conceded and corrected.
  4. [65]
    The inferences supporting the commissioner’s case exclude any reasonable excuse and the tribunal is reasonably satisfied that the practitioner, despite admitting prior knowledge, did not take any steps to admit or correct the misstated fact in 9.17 before or at the appeal hearing in breach of barristers rule 27.
  5. [66]
    In Legal Services Commissioner v Mullins[15] where the client had become a quadriplegic in a car accident, and after expert reports had been filed that did not address that the client had been diagnosed with cancer, a barrister was found to be guilty of professional misconduct for knowingly misleading an insurer and its lawyers about his client’s life expectancy in settlement negotiations by withholding the fact of the supervening risks to life. 
  6. [67]
    The substantiated conduct was substandard. The most likely explanation in a case where the practitioner did not recognise a glaring error is that she has a tendency to breach the duties of honesty and candour to the court when they conflict with a perceived advantage to the client. Concealing known errors from the court is conduct likely to reduce community confidence in the advocate’s role in the administration of criminal and appellate justice.  Had the failure to correct been the only lapse it might be characterised and treated more leniently but the attempt to disguise or deny her failure to the bitter end reflects a defect in character warranting the conclusion that the practitioner is not a fit and proper person to practice law in Queensland.[16] This conclusion calls for a professional misconduct finding and has significant sanction implications.

Charge 3

  1. [68]
    Under rule 64 of the barristers rules a barrister must not allege serious misconduct against an opponent without a reasonable belief that there is material available providing proper evidentiary support for it and has fully informed instructions from the client to make it.
  2. [69]
    The practitioner is accused of breaching the rule in paragraphs 9.14 and 9.16 of her appeal outline by asserting without reasonable grounds that the prosecution lied when it:
  • stated that nothing was said about the outstanding balances at the meeting when one of the company directors and the accountant had testified otherwise; and
  • submitted that Mr Alwis came forward and made repayments in a piecemeal fashion only after he was sacked by the company when he had actually started making repayments before the full extent of his fraud was uncovered and the repayments were piecemeal because he was waiting for the company to provide information about a possible reconciliation, which never happened.  
  1. [70]
    The Court of Appeal did not think that the accusations were “made out” and at [58] of its reasons criticised the practitioner for making a “baseless assertion against another legal practitioner”.
  2. [71]
    The practitioner denies breaching rule 64 because “if a statement is not true it must be a lie” and based on the materials available to her (including the worksheet and the evidence of the bookkeeper) both of the prosecution statements in issue were not true because they were contrary to the evidence given by the prosecution witness.
  3. [72]
    However, the practitioner apologised at the hearing as soon as her indiscretion was pointed out.  Taken in isolation this might imply that she did not already know, as she should have, that wrongly accusing a Crown prosecutor of lying to a court (twice) without “a skerrick of justification” is improper.[17]
  4. [73]
    Ignorance of a fundamental professional rule or inherent requirement of practice may mean that a person is unsuitable for legal practice.[18]
  5. [74]
    Lying by a state prosecutor in the pursuit of a guilty verdict is serious misconduct.  Alleging it without cause is arguably worse.
  6. [75]
    Whatever she thinks (or claims to believe) in the context of this case the practitioner could only have labelled the trial prosecutor a liar consistently with the ethical rules if she believed on reasonable grounds that there was evidence available capable of supporting it and the decision to assert it was endorsed by a fully informed and properly advised client. Neither of these conditions was met.
  7. [76]
    In Legal Services Commissioner v Winning[19] the tribunal treated trial conduct as misconduct where a practitioner called a Crown prosecutor offensive and discourteous names including a liar and dishonest because of its tendency to undermine public confidence.
  8. [77]
    Even if it was subjectively honest, any belief the practitioner had or has about the sufficiency of evidentiary support in the material is unreasonable, and, in any case, there is no evidence at all of the complainant’s consent to making the submissions. 
  9. [78]
    The charge is substantiated based on a proven breach of barristers rule 64. 
  10. [79]
    However, as the default seems to be more reflective of inexperience or lack of judgment and not an intention to mislead the court or wantonly impugn the prosecutor’s professional reputation, the circumstances suggest ineptitude rather than unfitness and point to unprofessionalism more than misconduct.

Charge 4 

  1. [80]
    The bar association afforded the practitioner the opportunity of making explanatory submissions on its investigation report into the circumstances of charge 2.
  2. [81]
    In response the practitioner furnished a statutory declaration made on 20 January 2014 stating that she:

… had a conversation with her Honour Justice McMurdo prior to the start of the proceeding in which the respondent advised that she wished to delete paragraph 9.17 of her outline as it was incorrect.

  1. [82]
    No out of court conversation with the president is recorded despite credible and uncontradicted evidence of the video feeds being activated even before the coram convened.
  2. [83]
    She suggests the reason the conversation is “nowhere to be found in the transcript of the session” is because it happened while “the technicians were still setting up the video link with the prison”.  However, the commissioner’s rebuttal evidence strongly supports inferences to the contrary.
  3. [84]
    We are reasonably satisfied that if the alleged conversation had taken place it probably would have been recorded and, therefore, in the absence of any credible alternative explanation the circumstances strongly imply that it did not occur.
  4. [85]
    In Legal Services Commissioner v Lim[20] a false swearing was held to be professional misconduct as was “gross carelessness or sloppiness” in preparing an affidavit by a barrister in Legal Services Commissioner v Hackett.[21] The same finding is justified here.

Sanction

  1. [86]
    Although she does not specifically say so the practitioner presumably opposes any sanction.
  2. [87]
    She retired from practice in 2014 after a major heart attack.  She is currently unemployed and receiving age pension benefits from the government with “no plans whatsoever of returning to practice in the future”. She says the stress is “not worth it.” 
  3. [88]
    To adequately give practical expression to the protection and deterrence principles and the functional purpose of disciplinary action the commissioner submits for a public reprimand and substantial fine in the range of $10,000 - $20,000 based on the comparison of the pecuniary penalties imposed in Mullins ($20,000), Lim ($5,500) and Hackett ($5,000).
  4. [89]
    The commissioner also proposes the imposition of conditions on a local practicing certificate if the practitioner ever decides to apply for one again.
  5. [90]
    The practitioner’s conduct shows that she has poor judgment, is ignorant of or does not accept or adhere to basic professional standards and the ethical rules of court. She is loose with the truth and clearly cannot be trusted to be candid with clients or the court.  Her false denials to the regulatory body even in the face of overwhelming evidence and her attitude to the relevant allegations in the disciplinary application generally indicates a lack of insight, weakness of character and level of capacity inconsistent with an ability to satisfactorily carry out the inherent requirements of legal practice.
  6. [91]
    Calculating the appropriate form of the disciplinary order commensurate with the objective seriousness of the misconduct and fully reflective of the aggravating and mitigating factors and adequate in the eyes of the public is not straightforward.
  7. [92]
    The practitioner in Law Society of the Australian Capital Territory v Burns[22] consciously engaged in dishonest conduct and was found not to be a fit and proper person to remain on the roll,[23] in part, because she was less than candid in her dealings with the regulator’s investigation. 
  8. [93]
    In Incorporated Law Institute of New South Wales v Meagher,[24] Isaacs J noted the need for high standards and community, as well as professional, confidence in the integrity of those who provide legal services for reward.  His Honour also mentioned the heavy responsibility on courts and tribunals to enforce those standards and not endorse people who cannot be trusted to meet and keep them or who “involve themselves in shabby, deceptive and dishonourable deceit”. In referring to what ‘fit and proper’ involves and to the considerations to be taken into account in deciding it his Honour noted that the question concerns more than the mere protection of the public who will deal with a disgraced or dubious practitioner against the possibility of a particular kind of misconduct or its repetition in the future, and continued:

It may be that the error, though flagrant, has proved to be a solitary lapse. It may be that after sufficient time has passed the applicant can satisfy the tribunal that his purgation is complete, his repentance real, his determination to act uprightly and honourably so secure that he may be fairly re-entrusted with the high duties and grave responsibilities of a minister of justice. But that obligation lies upon him, and it is no light one. The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the Court — a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future.[25]

  1. [94]
    The practitioner is guilty of professional misconduct and is liable to permanent exclusion from the profession for unfitness. The question is whether that extreme sanction is called for.
  2. [95]
    The imposition of a hefty monetary penalty would act as a specific deterrent and demonstrate disapproval of the practitioner’s substantial failure to meet the standard of candour and honesty expected of a legal practitioner and deter others from giving into the temptation to quietly bury professional mistakes or unreasonably deny them but fining a pensioner with meagre means (especially on top of a costs order) seems excessive especially when the primary justification of a discipline order is protection not punishment.
  3. [96]
    Also the need for specific deterrence is reduced by the practitioner’s retirement and avowal not to return to practice.
  4. [97]
    A reprimand would have the protective and deterrent effect of reinforcing the profession’s insistence on minimum competency and ethical standards of conduct and a commitment to enforcing them.
  5. [98]
    The practitioner’s practicing certificate has presumably lapsed.
  6. [99]
    This leaves her as a lawyer (admitted to the profession but not entitled to practice) unless and until a regulatory body grants her a new practicing certificate on the basis that she meets all the suitability requirements at that time.[26]
  7. [100]
    A finding of current unfitness is irresistible. Just because she is currently unsuited for legal practice does not mean that she cannot achieve fitness over time but the nature of the misconduct, the practitioner’s forced retirement for health reasons, her age, lack of insight and intention not to return to legal practice incline against finite suspension.
  8. [101]
    The practitioner is barred from applying for a practicing certificate for 5 years.  Even then there is no guarantee she will granted one either at all or without supervision or continuing legal education and training conditions.

Costs

  1. [102]
    The commissioner seeks a costs order assessed with reference to s 462(5) of the Act.
  2. [103]
    The practitioner does not directly address the costs issue in her submissions but does complain about the matter dragging on from 2013 to 2017 and the distress it has caused her even in retirement.  Anxiety attacks and depression have had a “crippling and debilitating effect”.
  3. [104]
    A disciplinary body must make an order requiring the practitioner to pay costs of the commissioner and the complainant, in a stated amount or to be assessed, unless satisfied exceptional circumstances exist.[27] Economic constraints and bad health do not generally qualify.
  4. [105]
    The practitioner has the evidentiary onus of substantiating any exceptional circumstances solely within her own knowledge but has not presented any.
  5. [106]
    The only reasonable conclusion open on the material is that no exceptional circumstances exist. Accordingly, the practitioner is ordered to pay costs to be assessed under the QCAT rules by equal monthly instalments.

Footnotes

[1]Unless otherwise stated all sections numbers referred to in these reasons are in this Act.

[2]R v Alwis [2012] QCA 308 (11 July 2012).

[3]LPA ss 418, 419.

[4](1894) 6 R 67.

[5]The jury retired to consider their verdict at 12.00 noon on the third day of the trial, the Thursday before Easter. The judge reconvened the court at 3.59 pm, in the absence of the jury, to discuss appropriate directions in the event that the jury was still deliberating over the pending Easter break. The jury returned with a verdict at 4.15 pm.

[6][2017] FCA 1400 [5] (an application for extension of time to appeal).

[7](1983) 152 CLR 657, 663-664.

[8]cf. JJS v State of Western Australia [2014] WASCA 136 [133]-[135]; [137].

[9](1992) 64 A Crim R 101, 104.

[10](1893) 6 R 67.

[11]Ibid 70-71.

[12]Eastman v R (1997) 76 FCR 9, 102.

[13](1990) 19 NSWLR 677, 688; cf. MWJ v R (2005) 222 ALR 436.

[14]R v Alwis [2012] QCA 308 [25].

[15][2006] LPT 012.

[16]Legal Services Commissioner v Voll [2008] LPT 1.

[17]R v Alwis [2012] QCA 308 [64].

[18]cf. Legal Profession Act 2007 (Qld) s 9(1)(n).

[19][2015] QCAT 510.

[20][2011] QCAT 291.

[21][2006] LPT 015.

[22](2012) 6 ACTLR 282.

[23]Law Society of the Australian Capital Territory v Burns (2012) 6 ACTLR 282 [42]-[44].

[24](1909) 9 CLR 655, 681.

[25]Ibid.

[26]LPA ss 46, 51(4)-(5).

[27]LPA s 462(1).

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Susan Fajardo

  • Shortened Case Name:

    Legal Services Commissioner v Fajardo

  • MNC:

    [2018] QCAT 92

  • Court:

    QCAT

  • Judge(s):

    Carmody J

  • Date:

    21 Mar 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Capital Territory v Burns (2012) 6 ACTLR 282
3 citations
Jump To
Cite 1 - (2012) 6 ACTLR 282
Cite 2 - (2012) 6 ACTLR 282
Cite 3 - (2012) 6 ACTLR 282
BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400
2 citations
Jump To
Cite 1 - [2017] FCA 1400
Cite 2 - [2017] FCA 1400
Browne v Dunn (1893) 6 R 67
2 citations
Jump To
Cite 1 - (1893) 6 R 67
Cite 2 - (1893) 6 R 67
Browne v Dunn (1894) 6 R 67
2 citations
Jump To
Cite 1 - (1894) 6 R 67
Cite 2 - (1894) 6 R 67
Eastman v R (1997) 76 FCR 9
2 citations
Jump To
Cite 1 - (1997) 76 FCR 9
Cite 2 - (1997) 76 FCR 9
Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655
2 citations
Jump To
Cite 1 - (1909) 9 CLR 655
Cite 2 - (1909) 9 CLR 655
JJS v State of Western Australia [2014] WASCA 136
1 citation
Jump To
Cite 1 - [2014] WASCA 136
Legal Services Commissioner v Hackett [2006] LPT 15
2 citations
Jump To
Cite 1 - [2006] LPT 15
Cite 2 - [2006] LPT 15
Legal Services Commissioner v Lim [2011] QCAT 291
2 citations
Jump To
Cite 1 - [2011] QCAT 291
Cite 2 - [2011] QCAT 291
Legal Services Commissioner v Mullins [2006] LPT 12
2 citations
Jump To
Cite 1 - [2006] LPT 12
Cite 2 - [2006] LPT 12
Legal Services Commissioner v Paul Michael Voll [2008] LPT 1
2 citations
Jump To
Cite 1 - [2008] LPT 1
Cite 2 - [2008] LPT 1
Legal Services Commissioner v Winning [2015] QCAT 510
2 citations
Jump To
Cite 1 - [2015] QCAT 510
Cite 2 - [2015] QCAT 510
Lyons v The Queen (1992) 64 A Crim R 101
2 citations
Jump To
Cite 1 - (1992) 64 A Crim R 101
Cite 2 - (1992) 64 A Crim R 101
MWJ v The Queen (2005) 222 ALR 436
1 citation
Jump To
Cite 1 - (2005) 222 ALR 436
R v Alwis [2012] QCA 308
3 citations
Jump To
Cite 1 - [2012] QCA 308
Cite 2 - [2012] QCA 308
Cite 3 - [2012] QCA 308
R v Birks (1990) 19 N.S.W.L.R 677
2 citations
Jump To
Cite 1 - (1990) 19 N.S.W.L.R 677
Cite 2 - (1990) 19 N.S.W.L.R 677
Whitehorn v The Queen (1983) 152 CLR 657
2 citations
Jump To
Cite 1 - (1983) 152 CLR 657
Cite 2 - (1983) 152 CLR 657

Cases Citing

Case NameFull CitationFrequency
Legal Services Commissioner v Magill [2023] QCAT 1342 citations
1

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