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. SUBMISSIONS: 10 Mr Peter Garling SC submitted to us that the only appropriate penalty was suspension for a period of three to six months. He submitted that this was the unanimous opinion of the Bar Council. He said that the purpose of any order which we made was to protect the public and to deter both the barrister and any other legal practitioner who might be minded to engage in the same conduct. He referred to a number of well-known authorities in support of this submission. He put to us that the misconduct was serious and was not merely a single outburst of bad temper. He also urged upon us a view that the barrister did not display any understanding that his conduct was unsatisfactory or that it was wrong. He submitted that we could have no confidence that the barrister would not repeat his behaviour. Mr Garling submitted that a public reprimand was the only other available penalty in the circumstances, but that it would not be an appropriate penalty because of the seriousness of the misconduct, the lack of understanding of the barrister that he had engaged in unsatisfactory professional conduct and the need for personal and general deterrence to protect the public. 11 Mr Frank McAlary QC submitted that we should take into account the circumstances of the trial and the great provocation offered to Mr di Suvero by the conduct of the Judge and the Crown prosecutor. He pointed in particular to the circumstances which led to the Crown prosecutor seeking leave to amend an indictment to enable the Crown to broaden its case against the accused and to the disputes that arose concerning these matters. Mr McAlary also submitted that the charges against the barrister in this Tribunal were not the usual sort of charges in that there was no allegations of personal dishonesty. Mr McAlary submitted that there was no likelihood of repetition of this misconduct, that there was no need to protect the public and there was no need for personal or general deterrence. In his submission, the appropriate penalty was a public reprimand. 12 Mr McAlary also submitted that the only other penalty available was suspension, but he argued that suspension would be too harsh a penalty in the circumstances. He also submitted a document with a view to establishing that the barrister had spent a very considerable amount of time since 1996 defending the allegations made against him . He informed us that the barrister had spent four weeks out of practice to answer the various allegations. Most of the allegations made against him had been dismissed either by the Bar Council or by this tribunal. FINDING: 13 In assessing these submissions, we accept the submission of the Bar Council that the conduct of the barrister was serious and that he did not display any understanding that his misconduct was wrong or that it was unsatisfactory. Despite this lack of perception of the impropriety of his actions at the time and during the course of the initial hearing before this Tribunal, we think it unlikely that he would offend again. 14 We accept the evidence of the witnesses called on his behalf as to his good character, his competence , courtesy and normal good behaviour. 15 We are unable to accept that the circumstances of the trial provided some mitigation of the seriousness of the conduct. We accept that already the barrister has suffered a considerable financial loss in forgoing work to enable him to respond to the various allegations which were made and we accept that most of the allegations which were made against him were ultimately dismissed. It is also true that there is no suggestion at all that the barrister was in any way dishonest. Indeed, he has a reputation for integrity. 16 However the authorities require us, when considering the appropriate penalty to be imposed following a finding of unsatisfactory professional conduct, to have regard primarily to the need to protect the public and in this regard to consider principles of general and personal deterrence. 17 We regard the unsatisfactory professional conduct established in this case as serious. The barrister is someone of considerable experience and there is a need to deter him and others who might be minded to engage in similar conduct. We accept that his conduct in this trial was a lapse from the normal standards which he applies. Because of his previous exemplary conduct, we gave serious consideration to whether a public reprimand would be a sufficient penalty. However, taking into account all the evidence in his favour, the seriousness of the conduct and the need to protect the public, we are of the opinion that the appropriate penalty is one of suspension for a period of three months. 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.