New South Wales Bar Association of NSW v di Suvero (No. 2) [2000] NSWADT 195

CITATION: New South Wales Bar Association of NSW v di Suvero (No. 2) [2000] NSWADT 195 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the New South Wales Bar Association RESPONDENT Henry Millo di Suvero FILE NUMBER: 9824 HEARING DATES: 28/06/2000 SUBMISSIONS CLOSED: 06/28/2000 DATE OF DECISION: 07/28/2000

BEFORE: Finnane MJ - Judicial Member; Blackman J - Judicial Member; Bubniuk L - Member APPLICATION: Penalty MATTER FOR DECISION: Question of penalty LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: P Garling SC, barrister RESPONDENT F McAlary QC, barrister ORDERS: 1. That the respondent be suspended from practice for a period of three months; 2. That the operation of Order1. be suspended and not take effect until further order of the Appeals Panel of the Tribunal; 3. That a practicing certificate not to be re-issued to the respondent until a lapse of three months from the date that the cancellation of the practising certificate takes effect; 4. In the event that the respondent abandons his appeal, the order of cancellation is take effect immediately, and a practising certificate is not to be re-issued to the respondent until the lapse of three months from the time of such cancellation; 5. Direct that written submissions on the question of costs be filed and served by the applicant within seven days and by the respondent within a further seven days, with any further reply within three days.

FACTS: 1 On the 5th May 2000 we determined that the barrister was guilty of unsatisfactory professional conduct in five respects. Subsequently, oral evidence was called on his behalf on 28 June 2000 and a number of references in written form were provided. 2 Mr Brian Donovan QC provided a written statement and gave oral evidence on behalf of the barrister. Mr Donovan spoke highly of the barrister as being someone whom he believed was ethical and who had on occasions sought him out to discuss ethical problems. The barrister had been his junior on a number of occasions in civil matters and he spoke highly of his work. However he had never seen him in a court actually conducting a case on his own behalf. He considered that he was courteous and competent. 3 Mr Donovan read our reasons for decision and was very careful not to attempt to support conduct which he could not support. He obviously found himself in a difficult position because he considered that the barrister from his limited contact with him was a fit and proper person to be a barrister. At the same time, we had made findings about his conduct in one trial which were difficult to reconcile with what he knew of this barrister. Based on his reading of the Tribunal decision, he spoke of the difficult atmosphere of the trial and the obvious animosity between the two barristers, that is, between Mr di Suvero and the Crown Prosecutor and between Mr di Suvero and the judge. 4 We have commented about this difficult atmosphere in our reasons for decision, but we do not consider that the difficulties entitled the barrister to engage in the conduct which we found to be unsatisfactory. We would certainly accept Mr Donovan's evidence that apart from this trial, and based on his experience, his knowledge of the barrister demonstrates that the barrister has always conducted himself in an exemplary manner. 5 Mr Koops, the solicitor who briefed him in the trial provided an affidavit and gave oral evidence. He sought to explain the conduct of Mr di Suvero by reference to the conduct of the Crown prosecutor and the judge. We are unable to accept this explanation. He did give evidence that Mr di Suvero was a gentle, kind and humane man with a strong sense of justice. He also regarded him as an outstanding advocate in criminal cases. He said that he had briefed him on other occasions and he has never been anything but courteous and respectful, yet forceful, in his presentation. 6 Mr Koops said that he spoke to Mr di Suvero on a number of occasions during the trial when the various exchanges were becoming too heated and told him to avoid conflict , to take it easy , to calm down and to relax. This was the only trial which he knew about, where Mr di Suvero had become so heated . During the course of the trial , Mr Koops did not think that his conduct was unsatisfactory professional conduct . Whilst it is no doubt true that Mr Koops had this opinion, we do not accept it. 7 We accept Mr Koops' evidence about the normal conduct of the barrister and this evidence is important in establishing to our satisfaction that the conduct which we have found unsatisfactory was not the ordinary conduct of the barrister. 8 The third witness who gave oral evidence was Mr Peter Young, a solicitor from Moree. Mr Young also provided two affidavits. He spoke very well of Mr di Suvero as being a committed barrister who was fearless and one who had been prepared to do a lot of work on a legal-aid basis. He said that not withstanding our findings he would brief Mr di Suvero again. 9 There were also tendered in evidence a large number of personal references by members of the legal profession. All of these lawyers were aware of the matters contained in the information but none of them read our reasons for decision. We accept that in the opinion of each of these lawyers, Mr di Suvero is a competent barrister, honest, courteous and able. Each of them holds Mr di Suvero in high esteem and we take these opinions into account, mindful, however, that none of them has seen our reasons for decision.