NSW Legal Services Commissioner v Speirs [2021] NSWCATOD 200

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Legal Services Commissioner v Speirs [2021] NSWCATOD 200 Hearing dates: 2 December 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President P Moran, Senior Member M Bolt, General Member Decision: (1) The Respondent is reprimanded. (2) The Respondent must pay the Applicant's costs as agreed or assessed. Catchwords: PROFESSIONS AND TRADES - legal practitioner -disciplinary action - Instrument of Consent - agreed facts Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law (NSW) Category: Principal judgment Parties: NSW Legal Services Commissioner (Applicant) Kristy Anne Speirs (Respondent) Representation: Counsel: G J Johnson (Applicant) M Kalyk (Respondent)

Solicitors: Office of the Legal Services Commissioner (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2021/00112235 Publication restriction: Nil

REASONS FOR DECISION 1. On 22 April 2021, the NSW Legal Services Commissioner ('the Commissioner') filed an application in the Tribunal seeking disciplinary orders under the Legal Profession Uniform Law (NSW) ('the Uniform Law') in relation to a solicitor, Ms Speirs.

Instrument of Consent 1. On 1 December 2021, the parties filed an Instrument of Consent under s 144 of the Legal Profession Uniform Law Application Act 2014 (NSW) ('the Application Act'). That document, which includes an agreed statement of facts, and is signed on behalf of both parties, is set out below: ORDERS The NSW Civil and Administrative Tribunal, having found that the conduct of KRISTY ANNE SPEIRS described under the heading 'grounds of complaint' and particularised in the annexed Agreed Statement of Facts amounts to unsatisfactory professional conduct, by consent, makes the following orders: 1. The Respondent be reprimanded. 2. The Respondent pay the Applicant's costs as agreed or assessed. AGREED STATEMENT OF FACTS Re: KRISTY ANNE SPEIRS In respect of the following grounds of complaint KRISTY ANNE SPEIRS [the Respondent] engaged in unsatisfactory professional conduct as set out below: Ground 1: 1. Between around May 1999 and 9 January 2009, the Respondent was employed as a police officer by the NSW Police, working up to the rank of Sergeant. The Respondent was admitted as a lawyer in New South Wales on 8 December 2006. From 12 January 2009 until 4 September 2017 she was employed as a solicitor with the Office of the Director of Public Prosecutions (ODPP). 2. In or around 2016 the Respondent was the ODPP solicitor with carriage of a matter called R v Dunstall. The Dunstall matter arose in connection with the investigation of an alleged murder on 9 June 2014 at the Jamberoo Mountain Road Lookout (referred to as Strike Force Brinkley). Mr Dunstall was identified by police as a person of interest in connection with the alleged murder, and on 12 May 2015 was arrested by Detective Sergeant (DS) Zervas. The Respondent and DS Zervas discussed the matter from 2015, from around the time of Mr Dunstall's bail application. 3. On 13 April 2016, DS Zervas had a telephone conversation with the Respondent concerning his intention to submit documentation to the ODPP requesting an authority to obtain an induced statement from a witness relating to Strike Force Brinkley. The police had previously obtained approval to obtain an induced statement from the witness ("Witness A"), and DS Zervas enquired of the Respondent whether the earlier authorisation would be sufficient to protect Witness A in relation to a further interview. DS Zervas followed up the conversation with an email to the Respondent. The Respondent did not respond to DS Zervas' email until 27 April 2016. In her email sent on 27 April 2016 the Respondent stated: Report is with Chambers. I will call them this afternoon if I haven't heard anything. 4. DS Zervas understood from this email that the Respondent had sent a request to provide the authority for an induced statement to the Director, or to the Director's office. 5. The Respondent does not recall sending the email or what the status of the report was. She believes that, if the report was not with Chambers when she sent the email, then this was a mistake on her part at a time when she was under the stress of carrying out about 50 or so files. This was well in excess of the maximum 25 matters set by the applicable workplace agreement. The Respondent did not have any intention of misleading DS Zervas. 6. DS Zervas sent a number of emails to the Respondent seeking an update on the situation with the approval for an induced statement. On 4 June 2016 he sent to the Respondent a word document of a draft of the induced statement. DS Zervas did not hear back again from the Respondent in relation to the authority for the induced statement, resulting in him contacting Ms Lacy at the ODPP on or about 11 August 2016. He does not recall the exact conversation with Ms Lacey but recalls that part of the conversation was to the following effect: Zervas: Janine, I made some enquiries back on 13 April [2016] in relation to the Director approving an authority for an induced statement for a witness in a matter called Dunstall. I sent the request to Kristy Speirs. I am really concerned about how long it has taken for Kristy to get the authority from the Director. It normally doesn't take this long. Do you know what's going on? Lacy: Kristy has had issues at work. We are looking at replacing her in this matter. I agree that four months to obtain this authority is way too long. 7. At the time of this conversation, DS Zervas understood from Ms Lacy that she believed the request for authority to obtain the induced statement had in fact not been sought from the Director ODPP. DS Zervas sought the approval through Ms Lacy on 11 August 2016. A new ODPP lawyer, Mr Taylor, attended to DS Zervas' request. On 27 September 2016, Mr Taylor advised DS Zervas that the authority to obtain the induced statement had been approved by the Director. 8. In the circumstances, the Respondent by her email of 13 April 2016 misled DS Zervas. Ground 2: 9. In or around 2016 to 2017 the Respondent was the ODPP solicitor with carriage of a matter called R v Howe. The Howe matter arose in connection with an investigation of an alleged aggravated break and enter at a residential property in Macquarie Fields in July 2016. The residents of the property were seriously assaulted in the offence. Mr Howe was identified by police as a person of interest in relation to the alleged offence, and he was arrested and charged with four offences contrary to s.111(2) and (3) of the Crimes Act 1900 (NSW) (these became sequences 1-4 on the indictment) Mr Howe's bail application was denied. The officer in charge of the police investigation into Mr Howe was Detective Senior Constable (DSC) Stephanie Robinson. 10. After reviewing the evidence, the Respondent recommended to DSC Robinson that more serious charges under s 112(2) and 112(3) of the Crimes Act should be laid. 11. At a mention date for the Howe matter on 21 December 2016, two additional charges were added against Mr Howe, including "Special Aggravated Break and Enter … Inflict GBH" under s.112(3) of the Crimes Act. That offence carried a 25 year maximum sentence. The special aggravated break and enter charge became sequence 5. The other charge ("Aggravated break and enter commit SIO" contrary to s.112(2)) had a 20 year maximum, and became sequence 6. 12. In around February and March 2017, the Respondent had several telephone conversations with DSC Robinson about the Howe Matter. The Respondent recalls during one of those telephone conversations indicating that the defence lawyer for Mr Howe had informed her that they would put the ODPP to strict proof in relation to the question of the DNA evidence and would not enter a plea without seeing the DNA evidence. 13. At some stage before 15 and 20 March 2017, the Respondent had a conversation with a solicitor for Mr Howe, Karl Minette to the following effect: Minette: The injury caused was a cut to the inside of the lip. In my view that does not constitute a wound that would make the offence specially aggravated under s 112(3). The accused will only plead guilty to two counts of aggravated break and enter under s112(2). Respondent: I will go away and get instructions. 14. On 20 March 2017, the Respondent requested that DSC Robinson add an additional charge in respect of the alleged assault on the first victim, under s.112(2) of the Crimes Act. DSC Robinson queried the need for a "back up" to the Special Aggravated Break and Enter charge already in place, but ultimately added the additional charge. This became sequence 7. 15. At around this time, the Respondent had a conversation with Crown Prosecutor Michael Clark about the Howe matter to the effect that she thought it was worth accepting a plea on the s 112(2) charge rather than proceeding to trial, and that Mr Clark said "Yes, I agree. You should accept it". Mr Clark does not recall discussing the Howe matter with the Respondent. Neither does he recall giving any direction or instruction in relation to the withdrawal of charges. He deposes that if he did have a conversation with the Respondent as she suggests, "in no way was this an oral direction". 16. Mr Clark says that from time to time solicitors would seek an oral direction in relation to the withdrawal of charges, but that any direction given in those circumstances would be confirmed by email or electronic file note, and he was unable to locate any such record on the ODPP electronic file for the matter. The Respondent says that "I cannot recall where things were left but it is very possible I did not ever obtain confirmation in writing from the Crown." 17. The Respondent further says that she thought she could withdraw the more serious charges because she had requested that those charges be laid. The Respondent accepts that she was required to obtain approval from the Crown for the withdrawal of charges. On 29 March 2017, in the Howe matter the ODPP attended court and withdrew sequences 1-5 against Mr Howe (including the special aggravated break and enter charge under s.112(3)), maintaining only sequences 6 and 7, to which Mr Howe entered pleas of guilty. 18. The timing, extent and nature of the conversation between the Respondent and DSC Robinson about the plea is not clear. The Respondent recalls that she spoke with DSC Robinson after her discussions with Mr Clark and, while DSC Robinson was not happy with the decision, DSC Robinson spoke to the victims about withdrawing the charges and accepting the plea. DSC Robinson says that she first became aware of the plea from Mr Howe's solicitor on the day the plea was entered. DSC Robinson stated she then went to the ODPP to speak with the Respondent. 19. In the conversation between DSC Robinson and the Respondent, the Respondent stated to DSC Robinson words that stated or implied that a direction had been obtained from a Crown Prosecutor in relation to the decision to withdraw sequence 5. DSC Robinson requested the Respondent provide her with a copy of the direction and the Respondent replied: I don't have it now, but I'll forward you a copy as soon as I do. 20. On 12 April 2017 DSC Robinson sent an email to the Respondent again requesting a copy of the "official decision documentation you referred to supporting your decision to offer a plea negotiation for the lesser offence". Later the same day, the Respondent sent an email in reply to DSC Robinson, stating: It was a decision made by Crown, I will give you the actual decision. I am out of the office this week and on leave and will be back next Tuesday. 21. The Respondent did not intend to mislead DSC Robinson by her email of 12 April 2017. While she does not recall sending the email, she understands that she would have intended to send Robinson the written confirmation from the Crown once she obtained it. She subsequently realised, remembered or became aware that she was not permitted to provide a copy of any written direction to the police as they were considered privileged. As noted above, she cannot recall where things were left but accepts it is possible she did not obtain written confirmation from the Crown. 22. DSC Robinson never received from the Respondent the written direction from the Crown. There is no evidence that such a written direction exists, or ever existed. While the Respondent believed she had obtained a verbal direction, the conversation with Mr Clarke did not amount to a direction in accordance with DPP practice without confirmation in writing. 23. In the circumstances, the Respondent did not receive any formal approval from the Crown to withdraw charges, or to offer a plea deal to the lesser offence. The Respondent's email of 12 April 2017 to DSC Robinson was misleading in that it stated or implied that a written direction had been obtained. Conclusion 24. On the basis of the agreed facts as stated above, the Respondent's conduct amounts to unsatisfactory professional conduct.