CITATION: Legal Services Commissioner -v- di Suvero [1999] NSWADT 22 DIVISION: Legal Services APPLICANT: Legal Services Commissioner RESPONDENT: Henry Milo di Suvero FILE NUMBER: 9810 HEARING DATES: 11/03/99; 12/03/99; 18/03/99 SUBMISSIONS CLOSED: 18/03/99 DATE OF DECISION: 9 April 1999 C A Needham - Deputy President BEFORE: S Norton - Judicial Member M Costigan - Member PRIMARY LEGISLATION: Legal Profession Act 1987 APPLICATION: Professional misconduct - barrister; Unsatisfactory professional conduct - barrister - MATTER FOR DECISION: Principal matter Applicant: D Robertson of counsel instructed by the Legal Services Commissioner REPRESENTATION: Respondent: F McAlary QC of counsel instructed by Moray & Agnew 1. Complaint dismissed. ORDERS: 2. The matter is adjourned to a date to be fixed for submissions on costs. 3. Direct the parties to consult for the purpose of seeking to reach agreement before that date on the costs order to be made and/or on quantum. 1 In this matter, by an Information filed 21 April 1998, the Legal Services Commissioner complains of the conduct of the Barrister, during the course of a trial which took place between 25 and 29 October 1993. The Information contains a Schedule of Particulars and, as filed, contained four Grounds of Complaint: 1. The Legal Practitioner breached an undertaking given to the Court; 2. Alternatively, the Legal Practitioner recklessly misled the Court and a fellow Legal Practitioner (namely the Crown Prosecutor at the 1993 trial); 3. Alternatively, the Legal Practitioner failed to act towards the Court with the candour which is expected of a Legal Practitioner; 4. Alternatively, the Legal Practitioner improperly put to the jury that there was no evidence on certain matters in circumstances where the Legal Practitioner was aware that with the express assent of the Legal Practitioner, evidence had not been led as a direct consequence of an objection taken by the Legal Practitioner that the leading of such evidence would prejudice his client. 2 The matter was fixed for hearing on 11 March 1999. 3 At the outset of the hearing, an application was made by the Barrister to strike out the second and third paragraphs of the Information on the ground that they extended beyond the subject matter of the initiating complaint made in November 1993 by the judge who had conducted the trial. That application was granted by the Tribunal. 4 A subsequent application by the Legal Services Commissioner to add grounds 2 and 3 to the Information pursuant to s.167A of the Legal Profession Act 1987 was refused. 5 Accordingly, the matter proceeded for hearing on the first and fourth grounds in the Information. Those grounds are particularised in the Schedule to the Information, and also by an exchange of particulars which are Exhibit 1 before the Tribunal. In relation to paragraph 1 of the Information, the undertaking is alleged to be an implied undertaking arising from the following circumstances: "1. On 25 to 29 October 1993, Guy Bevan Williams was tried for armed robbery. The offence allegedly occurred on 14 February 1993. In the course of the trial, the Legal Practitioner took objection to the leading by the Crown of evidence of his client's presence on an occasion on 14 March 1993 upon which the police stopped a car and found a rifle and some balaclavas, which the Crown alleged were used in the robbery the subject of the charge. 2. The Ground of the Objection was prejudice to the accused. 3. In the course of exchanges between the Trial Judge, the Crown Prosecutor and the Legal Practitioner, the Crown Prosecutor indicated that in order to accommodate the objection he would lead no further evidence of the events of 14 March 1993 and would not lead evidence of the seizure of the rifle and balaclavas, but would merely have those items identified by the Crown witness as those used in the robbery. 4. The Trial Judge put the following question to the Legal Practitioner: 'Mr di Suvero, are you happy with that solution to simply have these identified as being the ones used on 14 February, without any reference to 14 March at all?' The Legal Practitioner responded: 'Yes, I'm happy with that.' 5. In so conducting himself, the Legal Practitioner impliedly undertook to the Court that he would not take advantage of the absence of evidence of the events of 14 March 1993, including the seizure by the police of the rifle and balaclavas. 6. On 29 October 1993, in his address to the jury, the Legal Practitioner stated that: 'In this case there is no evidence at all, as to how the police got those articles, none at all in this case. It is a big hole in the Crown case.' 7. The Legal Practitioner thereby breached his undertaking stated in paragraph 5." 6 In relation to Ground 4 of the Information, the Particulars allege that the impropriety arose from the conduct of the legal practitioner in making the submission in his final address, which is particularised in paragraph 6 above. 7 The documentary evidence before the Tribunal included the initiating complaint, a tape recording of and relevant extracts from the transcript of the trial in 1993, including the Barrister's final address, certain correspondence between the New South Wales Bar Association and the Barrister during the investigation of the complaint, an affidavit of 1 December 1998 made by the Barrister and various affidavits going to the Barrister's good character. 8 At the hearing of the complaint, oral evidence was heard from the Barrister and from the Crown Prosecutor at the 1993 trial. No attack was made on the credibility of either the Barrister or that witness. The character witnesses were not required to attend for cross-examination. 9 The facts which we now recite were not in dispute. No submission was put to the Tribunal that the relevant circumstances at the 1993 trial concerning the seizure of the rifle and balaclavas were different in any relevant respect. Accordingly, we have not drawn any distinction between those items in relation to the way they were treated at the 1993 trial. 10 Mr Williams was indicted on the charge of armed robbery at Guildford on 14 February 1993. The Crown case was that Mr Williams had committed the robbery with three accomplices and had used a sawn-off rifle in the robbery. One of the accomplices gave evidence that Mr Williams had used such a gun during the robbery and that he (the accomplice) was arrested a month later at Birrong. 11 The Crown wished to lead evidence from that accomplice that at the time of his arrest at Birrong, he was in a car with Mr Williams and the other two accomplices, that Mr Williams was not arrested when they were because he ran from the car and that the police seized a blue bag from the back of the car containing a gun which was the gun used in the Guildford robbery. When the Crown Prosecutor asked the question of the accomplice: "Were you with anyone when the police approached?", objection was taken by the Barrister on the ground of relevance, the ground of objection being that the question related to events which occurred on 14 March 1993, a month after the robbery. 12 During argument on the objection, the question of possible prejudice to the accused was raised, since the accused was committed for separate trial in relation to an alleged conspiracy to commit a robbery at Birrong and the events of 14 March 1993 would be the subject of the other trial. If this evidence from the accomplice witness were allowed, matters concerning the Birrong conspiracy might need to be canvassed in cross-examination to the prejudice of the separate trial. 13 After hearing the evidence proposed to be called on the voire dire, both the Crown Prosecutor and the Trial Judge accepted that there was substance in the objection which the Barrister had made. Discussion then ensued as to how the difficulties might be resolved. 14 The judge indicated that he did not favour the course of the Crown calling evidence of the seizure of the car and the arrest of the three accomplices at Birrong but omitting reference to the accused's presence and flight from the car because such 'attenuated' evidence might give the jury the impression that the accused was not there and pave the way for a submission on behalf of the accused that "For that reason ... they might disbelieve the fact that he had any association ... with the rifle". His Honour said to the Barrister: "[L]et's assume I don't allow any evidence about your client being there in the car on the 14th, it would be open to you in your address to the jury to say, 'Well, here is this weapon found in this car on 14 March and there's nothing to suggest my client was even near the place, and therefore it's unlikely that my client would have had any connection with it then or at any earlier time, that is, 14 February.' I don't suggest for any moment that you're going to address the jury in that way because it would seem to me to be quite improper to do so." 15 The Crown Prosecutor then foreshadowed a solution to the objection as follows: "Your Honour, if it's limited to there being no mention or no suggestion of who was or who wasn't present on 14 March in any of the evidence or our addresses, it's probably the best way." His Honour stated: "Yes. Mr Di Suvero, are you happy with that solution. To simply have these items identified as being the ones used on 14 February ... without any reference to the 14 March at all?" The Barrister replied: "Yes, I'm happy with that". His Honour then stated: "And it's a matter for you as to whether you open it up in cross-examination." 16 The trial judge did not, in light of the way the objection was overcome, make a ruling on the objection. 17 The accomplice witness returned to the box, was asked to describe the gun and, after doing so, he identified the gun as the one used in the robbery on 14 February 1993. The gun was tendered as an exhibit. The Crown did not call evidence that the gun had been seized by police from a car on 14 March and did not put in evidence who was present in or near the car on 14 March 1993 when the gun was seized. 18 It was common ground that the Barrister did not touch on these matters during cross-examination of any of the witnesses, although during cross-examination of a detective the Barrister did examine on the inconclusive nature of the DNA and fingerprint analysis, which did not provide any positive connection between the accused and the rifle which was in evidence. 19 In final address the Barrister said: "The question that you have to ask is, what is the connection to the Defendant of the physical evidence on the night of the robbery ... in this case there is no evidence at all, at all, as to how the police got those articles, none at all in this case. It is a big hole in the Crown case." It was this statement that led to the complaint being made against the Barrister by the Trial Judge. 20 It is clear from the transcript of the trial and the passages quoted above that at the time of the exchange preceding the tender of the gun, which occurred on 26 October 1993, the expressed concern of the Trial Judge was directed to a particular course of action which was then available to the Crown, namely, if the Crown were to call evidence of the seizure of the gun and the arrest of the three accomplices in the car on 14 March 1993 but omitting reference to the accused's presence on that occasion. This course was not adopted, however, and the course which was followed effectively resolved the specific concern which his Honour had expressed. 21 Since the events of 14 March 1993 were not put into evidence at all, it was not open to the Barrister to put to the jury the submission about which his Honour had been concerned and the Barrister did not put any such submission to the jury. 22 Nonetheless, after final addresses and in the absence of the jury, his Honour stated to the Barrister that he was concerned about the statement made in final address that there was no evidence connecting the gun with the accused. His Honour put this on the basis that the barrister had given a clear and unambiguous undertaking not to make such a submission during the exchange preceding the tender of the rifle on 26 October 1993 and by making such a statement in final address, the Barrister had breached that undertaking. 23 The transcript of 26 October 1993 shows clearly that no express undertaking in these terms, nor any express undertaking, was given by the Barrister. This was conceded by the Legal Services Commissioner. The complaint alleges, however, that an implied undertaking was given, arising from the discussion on 26 October 1993 concerning the resolution of the Barrister's objection to the leading of evidence of the presence of the accused in the car where the rifle was found. 24 The evidence of the Barrister was to the effect that he had not given any express undertaking and did not regard himself as having given any implied undertaking. He considered that the discussion on the objection of 26 October 1993 was simply a discussion which ultimately resolved the objection he had made and that the solution was binding on the Crown but not on him, in the sense that the Crown was precluded from calling evidence of who was present in or near the car on 14 March 1993. By informing the judge that he was "happy" with the course proposed to be taken by the Crown, he had been intending to indicate that the Crown's proposed course met his objection. He did not consider that he was prevented from re-opening the events of 14 March 1993, either by cross-examination if he chose to do so, or in final address if he did re-open the matter in cross-examination. 25 This evidence is consistent with the Barrister's response to the Bar Association concerning the complaint, in his letters dated 10 February 1994 and 13 May 1994. In those letters the Barrister asserted that he was not precluded from putting the general submission to the jury concerning the lack of evidence connecting the weapon to the accused, provided that he did not do so on the basis that the accused was not present when the weapon was seized by police. 26 The Crown Prosecutor freely conceded in evidence that the resolution of the objection on 26 October did not preclude the Crown from calling evidence to say that the gun had been found in the back of a particular car, nor did it preclude the Crown from calling evidence that the police had taken possession of the gun and sent it to the ballistics department (transcript, page 89). When asked whether he considered that the discussion with the Trial Judge on 26 October imposed a restraint upon the Barrister as to what he could do, he answered: "That's the way I understood it. Not a restraint as such, he could still open it up, he could cross-examine it ... there was no bar to him raising it." (Transcript page 88). 27 This evidence is consistent with the Crown Prosecutor's response to the Trial Judge on 29 October 1993 when his Honour reverted to the question of the supposed undertaking, after the jury retired to consider its verdict. On that day, the Crown Prosecutor was asked what his understanding was concerning the discussion on 26 October and the Crown Prosecutor replied: "The effect of it was that your Honour enquired and my friend agreed, that he was happy to have these items simply referred to as - in the evidence of the witnesses having been the items that he saw on 14 February, without any reference to them being picked up by the police on 14 March, leaving it open at that stage, if it was raised by my friend in cross-examination, well the situation could be re-assessed perhaps, but there was no indication that he was going to cross-examine on it and he didn't." Putting aside the reference to "agreement" by the Barrister, we consider that this was a fair and accurate summary of the exchange on 26 October as recorded in the trial transcript for that date. 28 In these circumstances we do not consider that the Barrister gave any undertaking (express or implied) or acted with any impropriety in the way in which he conducted the defence of his client. Certainly, in final address the Barrister put to the jury that there was no satisfactory connection between his client and the weapon, however the Tribunal finds that there was no arrangement (to use a neutral term) on 26 October 1993 which precluded the Barrister from putting that submission, provided that he did not make reference to the events of 14 March and rely upon his client's apparent absence on that occasion when the gun was seized. 29 The Trial Judge chastised the Barrister for addressing the jury on the basis that there was no evidence as to where the items had come from, however, this suggestion went far beyond what was discussed on 26 October. Indeed, on that day his Honour expressly contemplated that the Barrister might put submissions on absence of connection on grounds other than his apparent absence from the car where the gun was seized. His Honour had said: "If the matter's left as you wish it to be, that is, that there's no reference to your client being in the car ... might [that not] add weight to any submissions you might be making that he had nothing to do with the weapon ." (underlining added). 30 The discussion of 26 October 1993 was directed specifically to the evidence which might be called by the Crown concerning the circumstances of the seizure of the gun on 14 March and how those specific matters might be dealt with in any later cross-examination by the Barrister and in final address. Clearly, much depended on how the trial later progressed and whether or not the Barrister did, through cross-examination, let those matters into evidence, notwithstanding the objection he had earlier made. 31 The Tribunal does not find it necessary to consider whether that discussion or "arrangement" was binding on the Barrister as well as the Crown, because there was no conduct by the Barrister which might be regarded as being in breach of that arrangement. For the same reason it is not necessary for the Tribunal to decide whether the arrangement might be categorised as an implied undertaking or not. 32 The Tribunal finds that the legal practitioner is not guilty of professional misconduct or unsatisfactory professional conduct. 33 Orders: 1. Complaint dismissed. 2. The matter is adjourned to a date to be fixed for submissions on costs. 3. Direct the parties to consult for the purpose of seeking to reach agreement before that date on the costs order to be made and/or on quantum. 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