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. Legal Profession Uniform Law Application Act 2014 1. The Application Act provides, in s 144: 144 Consent orders (1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were initiated in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were initiated, an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated. (4) This section does not apply to consent given by the respondent lawyer unless the lawyer and the NSW Commissioner have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the respondent lawyer. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the initiation of proceedings in the Tribunal where consent was given before the proceedings are initiated. (8) If consent was given before the proceedings are initiated, the proceedings are nevertheless to be initiated with respect to the complaint in the same way as if the consent had not yet been given. (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. (10) In deciding whether to make orders pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so. The Hearing 1. The Tribunal conducted a brief hearing and received a series of affidavits. 2. In the Commissioner's case, an affidavit of the Commissioner dated 6 May 2021, an affidavit of Tom Zervas, dated 29 July 2021, and affidavit of Stephanie Robinson dated 25 August 2021 and two affidavits of Michael Clark dated 28 July 2021 and 29 September 2021 were tendered. 3. An affidavit of Ms Speirs dated 8 September 2021 was tendered in Ms Speirs' case. 4. Upon reading the affidavits tendered, together with the Instrument of Consent, we are satisfied that the agreed facts are consistent with the evidence in the affidavits. 5. The Instrument of Consent has been put forward on the basis that Ms Speirs made the errors set out in the Agreed Statement of Facts, and that those errors led to Detective Sergeant Zervas being misled in the conduct of the matter of R v Dunstall in 2016, and Detective Senior Constable Robinson being misled in the conduct of the matter of R v Howe in 2017. However, those errors, whilst serious, were made by Ms Speirs without the intention to mislead. They were made in the context of a practitioner, who was under very considerable stress in her private and working life, being overwhelmed by her workload and failing to pay close enough attention to the two matters in question when sending the emails referred to in paragraph 3 and paragraph 20 of the Agreed Statement of Facts. 6. It was submitted, on behalf of Ms Speirs, that the circumstances which existed in 2016 and 2017, and which contributed to the stress which led to Ms Speirs' conduct, are no longer present in her life. It was submitted that Ms Speirs has not been the subject of any complaint before or since the events the subject of these proceedings, and the Tribunal should be satisfied that Ms Speirs will never allow similar issues to arise in her practice. Ms Speirs left the office of the Director of Public Prosecutions in 2017. Decision 1. The Uniform Law provides, in s 296: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 1. In all of the circumstances, and particularly having regard to the fact that it is not alleged in the Agreed Statement of Facts that Ms Speirs intended to mislead DS Zervas and DSC Robinson, we find that Ms Speirs conduct, as set out in the Instrument of Consent, amounts to unsatisfactory professional conduct rather than the more serious professional misconduct. 2. In considering the appropriate disciplinary orders, we bear in mind the following objectives, set out in Chapter 5 of the Uniform Law, which is entitled Dispute Resolution and Professional Discipline, in s 260: 260 Objectives The objectives of this Chapter are— (a) to provide a framework for the timely and effective resolution of disputes or issues between clients and lawyers or law practices; and (b) to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and (c) to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession. 1. Disciplinary orders under the Uniform law are imposed to protect the clients of lawyers and the public generally, and to enforce the professional standards, competence and honesty of the profession. They are not punitive in nature. 2. The professional standards, competence and honesty expected of legal practitioners are the same for all legal practitioners regardless of their personal circumstances. 3. Ms Speirs, in her affidavit, outlined the significant level of stress that she has experienced in the course of her engagement in the disciplinary process initiated by the Commissioner, which has culminated in these proceedings. That evidence is only relevant to indicate that the repetition by her of similar conduct to the conduct the subject of these proceedings is unlikely. It is not relevant by way of mitigation of the appropriate disciplinary orders, because disciplinary orders do not have a punitive purpose. 4. We agree that the orders sought in the Instrument of Consent are appropriate, having regard to the purpose of disciplinary orders under the Uniform Law. Having regard to the evidence before us of the circumstances of Ms Speirs' life in 2016 and 2017, when the events the subject of these proceedings occurred, a reprimand is the appropriate disciplinary order. However, we would add, that, when a solicitor is experiencing great stress in their personal life, and also feels overwhelmed by the demands being made of them in practice, it would be prudent for that solicitor to raise that issue with their supervisor, if there is one, and to consider taking a break from practice to enable them to manage their stress and address the factors contributing to it. Orders 1. The Respondent is reprimanded. 2. The Respondent must pay the Applicant's costs as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 14 December 2021 - Par 9 - The words "and does not presently practise in criminal law." have been deleted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2021