Re a Barrister; Ex parte Prothonotary [1957] HCA 46

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto and Taylor JJ. Re a Barrister; Ex parte Prothonotary [1957] HCA 46

ORDER Appeal allowed. Order of the Supreme Court of New South Wales set aside. In lieu thereof order that the appellant be suspended from practice during the continuance of his present imprisonment.

Cur. adv. vult.

The following written judgments were delivered:—

July 2 Dixon C.J.

This is an appeal instituted as of right from an order of the Supreme Court of New South Wales whereby the name of the appellant was removed from the Roll of Barristers of New South Wales. The ground for disbarring the appellant was that on 4th May 1956 he was convicted at quarter sessions of manslaughter and sentenced to imprisonment with hard labour for a period of two years. The offence took place at Newcastle on 17th May 1955 when a car driven by the appellant collided with a motor cycle and killed the rider. The case made against the appellant at his trial was that he was under the influence of liquor to such a degree that he had driven his car upon an erratic course and had so occasioned the collision. In the Supreme Court the view seems to have been adopted, at all events by Street C.J., that the conviction and sentence constituted grounds in themselves for disbarring the appellant and that the court should not be concerned to go behind them and review the facts or circumstances. No doubt the fact of the conviction and sentence is in itself a matter of great importance but I do not agree that all the circumstances lying behind them should not be taken into consideration before determining that the appellant should not remain a member of the Bar.

It appears that the appellant was called to the Bar on 29th May 1936 at about the age of thirty-eight. Before that he seems to have served in the offices of solicitors, beginning in the country. On 17th May 1955 he appeared before a Warden's Court at Newcastle. After the adjournment of the court he drove his car to one or two neighbouring places which he had occasion to visit and then back to Newcastle, where he sought accommodation at a hotel whose licensee he knew. There was some difficulty in putting him up, but he remained there during the evening except for a period of over an hour occupied in dining at a neighbouring cafe. At a time which the appellant fixed at about 10 p.m. some trouble arose with a man described as a seaman. He appears to have thrown bottles of beer against the wall of the passage-way and, as the appellant says, to have used disgusting expressions to two young women there. The police were sent for but the appellant's evidence is that he felt called upon to interfere. According to the depositions of a sergeant of police who arrived in answer to the summons at a time he fixes as 10.25 p.m., he saw the appellant and the seaman together. He says: "They appeared to me to be under the influence of intoxicating liquor and the seaman a younger and bigger man than Mr. Ziems was walking on the left hand side of Mr. Ziems who had hold of him by the upper part of the right arm with his left hand and as they approached the glass doors of the entrance the seaman veered away to his left as though he had been pushed and then he quickly swung round and violently and savagely attacked Mr. Ziems punching him heavily about the head and upper part of the body. Mr. Ziems' spectacles fell to the tiled passage floor and he was struck up against the brick wall of the building. I quickly intervened and prevented the further attack by the seaman." The seaman was arrested and taken away. The police sergeant advised the appellant to go to the hospital to have the injuries which the seaman had inflicted upon his face and head attended to, injuries that must have seemed not altogether inconsiderable. The licensee says that he sat the appellant down in the lounge and went about his own duties intending to take him to the hospital but that when he came back the appellant had gone. Apparently the appellant had driven off in his own car on the way to another hotel where accommodation had been arranged for him. The story is taken up by the driver of a truck and a passenger therein, both of whom witnessed the fatal accident. At some time after 11 p.m. the driver noticed a car in front as he drove his truck along the highway. The car proved to be the appellant's. The truck maintained a position between ten and forty yards behind it. The truck driver and his passenger in their evidence described a journey in which the appellant's car in front repeatedly veered from one side of the road to the other until at length it collided with an oncoming motor cycle on the appellant's wrong side of the road. When the accident occurred they and the driver of a car behind the truck stopped and went to the scene. They all regarded the appellant as under the influence of drink. The rider of the motor cycle was removed to a hospital where three days later he died of his injuries. The appellant was taken to the police station and the police evidence was to the effect that he was intoxicated. The appellant's case was that he was not intoxicated but suffering from shock and concussion as a result of the injuries inflicted upon him by the seaman. He stated what drink he had had and the time when he took it. If this evidence had been accepted, the witnesses who thought he was intoxicated must have mistaken the symptoms of shock and concussion for the effects of drink. He could not absolutely exclude by the evidence of other witnesses the logical possibility of his having obtained additional drink, but the licensee's evidence and other testimony tended to confirm the story he told of the limited quantity of drink he had consumed, and he called medical and other evidence to support the explanation of his conduct as the consequence of shock and concussion. His own mind on what occurred on that night after he received the blows of the seaman, if he is to be believed, was amnesic. The police sergeant who witnessed the fracas between the appellant and the seaman had, in his depositions before the coroner, conceded the possibility that the swaying of the appellant in the passage was due to the blows from the seaman and not to drink, and had described the conflict as one in which the appellant received many blows. He was not, however, called at the trial by the prosecutor and the appellant's counsel was forced to put him in the witness-box, where his evidence proved much less favourable to the appellant than had his depositions, and where he was not exposed to cross-examination on the appellant's behalf. In this and perhaps other respects the trial was not altogether satisfactory. But the fact remains that the jury completely rejected the appellant's case and on ample materials convicted him of manslaughter. Further, the the judge presiding at quarter sessions treated his offence as very serious and imposed a substantial term of imprisonment.