The right to silence in disciplinary and striking off hearings

I have previously posted about the QC who took his computer into work at the DPP only to lose his career when the tech found child pornography on it. It was a bizarre story, and of course there was a twist which has become clear from the disciplinary decision in Council of the NSW Bar Association v PJPP [2008] NSWCA 135: the QC thought he had the porn sequestered on a removable hard drive (the F drive), which he removed before taking it into work, but some had crept out into the rest of the computer. This post looks at the discussion of what inferences, if any, it was proper to draw from the QC’s exercise of the right to silence at the investigation stage, and from his failure to give evidence at his disciplinary hearing.

The QC had been convicted and sentenced to a term of imprisonment. Before that, he had resigned from his post as Deputy Senior Crown Prosecutor, and in doing so lost his practising certificate, which was tied to the office. He did not apply for another one. He was charged by the Council of the NSW Bar Association with misconduct and admitted it. He agreed to the removal of his name from the roll of practitioners as an outcome of that charge. What he did not do is give evidence in the disciplinary hearing before the Supreme Court of NSW. The question was whether he could be criticised for not giving evidence. The answer occasioned an analysis of, but not a conclusion in relation to, whether disciplinary proceedings are, or may in some cases be, penal in nature rather than merely protective of the public.

Well may you wonder though what matter in issue there was to give evidence about. There are two answers to this:

  • First, the Court indicated that it will not rubber stamp consensual removals from the roll without being satisfied it is appropriate and giving reasons. That is because the reasons need to be recorded in case of an application in the future for readmission to the profession: The Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [12] per McColl JA (with whom Sheller JA and Beazley JA agreed) and cases there cited; Bridges v Law Society of New South Wales [1983] 2 NSWLR 361; The Prothonotary of the Supreme Court of New South Wales v Ritchard (NSW Court of Appeal, 31 July 1987, unreported); New South Wales Bar Association v Cummins [2001] NSWCA 284, 52 NSWLR 279 at [24] per Spigelman CJ (with whom Mason P and Handley JA agreed); The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 at [18] to [20].
  • Second, the Bar Council wanted findings as to conduct by the QC which went further than what had been established in the criminal trial. They wanted to establish that between being sprung and the execution of a search warrant on his chambers and home a couple of days later, the QC had disposed of the F drive or put it beyond the reach of the search warrant. To have done so with intent would have constituted the crime of tampering with evidence. The significance of the F drive was that it was apparent from an examination of the computer that it contained files with names redolent of child pornography.

When asked by the solicitor for the DPP where the F drive was, the QC exercised his right to silence. He did not give evidence at the disciplinary hearing. Ultimately, the Court drew adverse inferences against him, and found that he had done with the F drive what was alleged against him. But it did so on the basis that even had he been facing a criminal charge, the same inferences could have been drawn, and a respondent to a disciplinary charge could not be in any better position than a defendant in a criminal trial in relation to the same facts and allegations. That was because his case fitted into the one scenario in which adverse inferences may be drawn in a criminal trial for exercising the right to silence: the one described in Weissensteiner v The Queen (1993) 178 CLR 217. That says that in the case where ‘if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person or source’ and the accused does not give evidence, the failure to give evidence is another bit of circumstantial evidence assisting in the drawing of an inference of guilt in a circumstantial case.

Nevertheless, the Court canvassed whether the High Court’s decision in Rich v ASIC (2006) 220 CLR 129 applied to the disciplinary case before them. This is what it said:

’14. … [The QC’s counsel] also relied on the view expressed by Basten JA in Health Care Complaints Commission v Wingate [2007] NSWCA 326 at [43] to [50] to the effect that disciplinary proceedings could be considered proceedings for a civil penalty affected by the decision of the High Court of Australia in Rich v Australian Securities and Investment Commission [2004] HCA 42, 220 CLR 129.

15 In that case, the judgment of the majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) was very critical of an alleged distinction between punitive and protective proceedings, and said nothing to suggest that their comments would not apply to disciplinary proceedings against professionals or that such proceedings would not be considered proceedings for a civil penalty. The concurring judgment of McHugh J at [42] to [43] gave reasons why proceedings seeking disqualification of directors were not purely protective, some of which reasons could suggest that disciplinary proceedings against professionals were purely protective. In his dissenting judgment, Kirby J at [100] and [125] expressed concern that if disciplinary proceedings against professionals were regarded as proceedings for a civil penalty, this would justify a professional in refusing to give access to relevant documents.

16 The application of that decision to disciplinary proceedings against professionals was discussed by Basten JA in [Health Care Complaints Commission v Wingate [2007] NSWCA 326] as follows:

[42] There were further inferences drawn by the Tribunal for the purpose of formulating Os (3) and (4) and in particular the reprimand with respect to the failure to provide accurate information to the Board. In that regard, the Tribunal made two additional findings:

90. Looking at the lack of truthfulness, this was clearly motivated by a desire to minimise his conduct in the eyes of the Medical Board, its delegates and this Tribunal, but in our view that motive does not excuse his conduct …

93. We think that his failure to provide a frank account of his proclivities and the nature of his offending is a matter of concern for which he ought also be reprimanded. We are anxious to ensure that practitioners who have transgressed understand that failure to provide honest and frank accounts of matters relevant to the manner in which the Board deals with them may well impact upon an assessment of their character, quite apart from the Tribunal’s views of the original offending.

[43] At a general level, these comments may be said to reflect the duty of full and frank disclosure of misconduct which applies both to members and applicants for membership of professions such as law and medicine. However, the scope of this obligation requires more detailed attention as to its application in particular circumstances. One well-known example is the case of In re Davis (1947) 75 CLR 409, involving an applicant for admission as a barrister who many years before, as a young man, had been convicted of house-breaking for the purpose of theft. His application was refused at least in part upon the basis that he had failed to disclose the conviction to the Barristers Admission Board. Dixon J, after noting the difficulty of establishing good character in the light of such a crime, stated at p 426:

But a prerequisite, in any case, would be a complete realization by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted.

[44] A further well-known example of the obligation may be found in Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Part 1) 136 at 141 where the Court (Heron CJ, Sugerman and McLelland JJA), after noting that the solicitor had not filed an affidavit or offered to give oral evidence, described the course as “irregular” and continued:

The respondent is an officer of the court. The Full Court of the Supreme Court held in November 1965 that on the material presented to it by the Law Society a prima facie case of misconduct was made out and called upon the respondent to show cause why he should not be dealt with. The matter arises within the disciplinary jurisdiction of the Court and if the respondent after consideration declines to give his account on oath of the matters charged he cannot complain if the Court holds against him that the facts as deposed to … are substantially true … The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and to engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument.

[45] It may be noted that neither of these examples involves any suggestion that the obligation of candour overrides the general law privilege against self-incrimination. Absent an express statutory provision, or a necessary implication arising from statute, to that effect, the privilege will generally be available. On the other hand, the privilege does not entitle a practitioner to make untruthful or misleading statements nor, if the practitioner declines to answer particular questions, will it prevent the Board or a tribunal taking steps in order to protect a relevant public interest.

[46] In Police Service Board v Morris (1985) 156 CLR 397 at 403, Gibbs CJ accepted that the privilege might apply in relation to a penalty imposed in disciplinary proceedings against a police officer. In Bowen-James v Walton (NSWCA, 5 August 1991, unrep) (Samuels, Meagher and Handley JJA) Morris was distinguished on the basis that the power to discipline a medical practitioner was entirely protective. Their Honours noted that Parliament had expressly provided in the Medical Practitioners Act 1938 (NSW) that disciplinary proceedings might be pursued despite the existence of uncompleted criminal proceedings: see Edelsten v Richmond (1987) 11 NSWLR 51. However, in Edelsten the conflict of interests created in that situation had not lead the Court to conclude that the privilege against self-incrimination was overridden. As noted by Hope JA (Clarke JA agreeing) at 61D:

The discretion given to the Tribunal involves a balancing of the public interest in the investigation of the complaint with the public interest in the observance of the right to silence. This involves, among other things, a consideration of the nature and gravity of the complaint and of the criminal charge, and of the circumstance that while the medical practitioner cannot be required to give a self-incriminating answer, he may be embarrassed in his defence to the complaint if he does not do so, and, if he does give evidence, he may be prejudiced in relation to the criminal proceedings.

(Priestley JA made a similar point at p 65F-G.)

[47] In Bowen-James, after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued:

In our opinion there is no right to silence or any privilege against self-incrimination upon which a medical practitioner, answering a complaint before the Tribunal, is entitled to rely. Indeed, we would endorse the observations made by Hope AJA in Ibrahim. There is a public interest in the proper discharge by medical practitioners of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients. They are not, of course, officers of the Supreme Court and, accordingly, the precise force of the decision in Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136, particularly of what was said at 141–2, cannot apply. Nevertheless, we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts.

[48] To the extent that there was an attempt to distinguish Morris from disciplinary cases involving the protective jurisdiction of the Court, the comments in Bowen-James may need to be followed with caution in the light of Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at [28]–[32] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). Further, although the Court in Bowen-James spoke in terms of there being no applicable privilege against self-incrimination, that was not the approach adopted in Edelsten, set out above, nor in Veron.

[49] The issue in Bowen-James involved an objection by the practitioner to an order that he file a statement of his evidence in response to the complainant’s evidence. His challenge to the order was rejected. However, what approach would be adopted today in that regard might need to be considered in the light of the recent decision in MacDonald v Australian Securities and Investments Commission [2007] NSWCA 304, dealing with a question as to whether a person subject to civil penalty proceedings brought by ASIC could be required to file a defence.

17 On the other hand, in New South Wales Bar Association v Meakes [2006] NSWCA 340, considerable weight was placed by Tobias JA (with whom Bryson JA and Basten JA agreed) on a barrister’s failure to give evidence in disciplinary proceedings brought against him:

[70] In my opinion, the Tribunal also erred in declining to criticise the respondent’s decision not to give sworn evidence at the hearing. It is true that in professional disciplinary proceedings the onus of proving misconduct lies with the party bringing the charges and, it should be noted, a practitioner is not required to give evidence. However, as this Court observed in Coe v NSW Bar Association [2000] NSWCA 13, there is an expectation that legal practitioners will mount the witness box to provide some explanation as to their conduct, rather than simply relying upon evidence from the Bar table. In Coe, Meagher JA (at [21]), with the agreement of Priestley JA, repeated with approval the following observations made by the Tribunal in that case and which are apposite to the present case:

In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.

[71] In this case there were many questions left open which only the respondent could answer. This was illustrated by five inferences that this Court was asked by the respondent to draw with respect to his conduct. The first was that the respondent had not charged for work that he did not perform or hours that he did not spend.

[72] The second was that the gross overcharging was explained by the achievement of a good outcome in the circumstances; and that the respondent’s exuberance in that success caused him to charge what he thought was appropriate, which amounted to no more than an error of judgment on his part.

[73] The third was that as the respondent had no diary entries for the time spent in the provision of the services itemised in his memoranda of fees, he only charged what he thought was reasonable in the circumstances.

[74] The fourth was that in any event his solicitor accepted the charges as reasonable (or at least did not complain about them) and it was his expectation that if there was a problem with the charges, the matter would have been taken up between the client and the solicitor.

[75] The fifth was that he did not intend to “rip off” Mr Chitty and that he was unaware when he rendered his memoranda of fees on 4 December 2000 that his fees were excessive — an allegation he did not admit until his solicitor’s letter to the appellant of 30 August 2004 stating no more than that those solicitors had been instructed by the respondent that “in some respects, his fees were excessive”. How these inferences could be drawn in the absence of any evidence from the respondent to support them was never explained.

[76] It is also pertinent to observe that the appellant’s senior counsel was unable to provide a responsive answer when asked what inferences the Court should draw as to how or why the respondent charged fees which were grossly excessive, and as to the basis on which he charged the fees he did.

[77] Yet these were the very matters which were wholly within the knowledge of the respondent and which he was did not offer to answer in the witness box. On the contrary, he chose the safety of the well of the Tribunal. Notwithstanding the advice of his then senior counsel, the respondent’s refusal to enter the witness box and provide evidence with respect to the matters referred to should have been the subject of harsh criticism by the Tribunal. Moreover, if that evidence had otherwise been relevant to the issue, his refusal to provide it would have significantly detracted from the weight to be attached to the tendered character references. In these circumstances, the only inference one can draw from the respondent’s refusal to give sworn testimony in this matter was that his evidence would not have assisted his case in resisting a finding of professional misconduct.

[78] The Tribunal should not have been required to speculate as to the basis upon which the respondent charged the fees he did. As an experienced barrister with an unblemished record, one would have expected him, as Meagher JA expressed it in Coe, to have mounted the witness box and explained the mysteries surrounding charges which had been found to be grossly excessive. In my opinion the failure of the respondent to give sworn evidence was inexcusable.’

18 As appears from that extract, this approach followed similar views expressed in Coe v New South Wales Bar Association [2000] NSWCA 13.

19 In my opinion, there is a question whether proceedings seeking removal of a legal practitioner form the Roll should be regarded as proceedings for a civil penalty, of the kind considered in Rich.’

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