Ziems v Prothonotary of the Supreme Court of NSW

Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 is a much-cited decision in the law which governs the pointy end of professional discipline of lawyers: striking off the roll.  A majority held that where a lawyer is convicted of even a serious criminal offence — drink driving in this case — it is appropriate, in enquiring whether she or he should be struck off, to enquire into the conduct which was the subject of the charge, and even into the conduct of the trial; the fact of conviction is not necessarily inconsistent with fitness for practice.  What follows is a long file note of the case, the facts of which are more than usually interesting: drunken sailors, innocent maidens, gallant barristers, fisticuffs, blood, carnage on the roads, prosecutorial misconduct, and 2 years’ imprisonment with hard labour for the barrister for drink driving.  I was prompted to do it because all five judges wrote separate decisions, none expressly agreeing with the other.

A barrister in his late 40s on circuit in Newcastle saw a seaman — a younger and stronger man — misbehaving at the Terminus Hotel in May 1955.  The drunken seaman threw bottles of beer against a wall, and made to lay hands on two girls to whom he directed filthy language.  The barrister intervened, taking the seaman’s arm and leading him away.  The time was about 10.25 p.m.  In response, he was savagely and brutally bashed in a beating involving ‘a dozen or twenty blows’ (prompting the curious observations of Justice Fullagar that ‘It may, of course, be said that the appellant ought not to have allowed himself to become involved in a fracas with a drunken sailor’ (at 297) and of Justice Taylor that he did so ‘foolishly, one may think’ (at 305)).

The police arrived during the attack and arrested the seaman after a violent struggle.  Blood was pouring from the barrister’s nose, his bloodied spectacles were off, and his clothes were covered in blood.  A policeman thought him drunk by virtue of his staggering, but conceded that the appearance of inebriation could well have been the effects of the beating. On the barrister’s statement of what he drank, backed up by the publican, he ought not to have been drunk.  The barrister could later remember nothing after the first king hit to his nose, not even the fatal collision which was to ensue.  The medical evidence was that such a beating would ‘be very likely to produce a state of concussion … in which he would not for a considerable time be conscious of what he was doing’.  The policeman, who thought it likely the barrister had suffered cerebral injury, told him to get medical attention, and said he would take the barrister to the doctor once he had dealt with the seaman.  He forgot to come back.  The Terminus’s publican sat him in the lounge, intending to take him to hospital, but when he returned, the barrister had left in his own car, at around 11 p.m.

In the circumstances described in most detail by Justice Taylor in the High Court at 304, the barrister’s car then collided with a motorcyclist who died three days later:

‘It was established by the evidence of four witnesses at the appellant’s trial that some distance before the appellant’s car collided with a motor cycle ridden by the deceased his car swerved to the wrong side of the road, then back again to its correct side and then to its incorrect side again where the collision ultimately took place. The picture presented by the evidence of these witnesses is one of erratic driving at this stage of the appellant’s journey from Newcastle to Swansea. The evidence referred to was given by the occupants of two other vehicles which followed the appellant’s car for a considerable distance at a speed estimated to be between twenty-five and thirty miles per hour. There is no suggestion of excessive speed on the appellant’s part. How far the appellant’s car managed to get on to the incorrect side of the road is, upon the evidence, a matter of conjecture, but the witnesses who testified to the manner in which the appellant was then driving also said that until this stage of the journey the appellant had driven in a normal fashion; he had driven at a proper speed, he had safely negotiated roadworks which left but little space to pass and he had stopped at the traffic lights at Adamstown just a few minutes before the accident. These witnesses were by no means unanimous that the demeanour of the appellant, which they had an opportunity of observing after the accident, was that of a man under the influence of liquor. It is true that one, Norrie, said that he was able to smell alcohol on the appellant and, in common with one other of these four witnesses, that he was unsteady on his feet but they all heard the appellant answer questions both readily and intelligently. Consideration of the evidence of these witnesses satisfies me that it is at least questionable whether any jury would have convicted the appellant upon their testimony alone. But it was not the only evidence, for police officers who arrived on the scene shortly after the accident were called and the acceptance of the opinions expressed in their evidence could lead only to a conclusion adverse to the appellant.’

The barrister was charged with manslaughter on the basis that he was drink driving.  He defended on the basis that his actions were not really voluntary, and that they were deprived of voluntarines not by drunkenness by but concussion.  At the time of his trial, he was in jail.  The Crown did not call the policeman who witnessed the beating, Sergeant Phillis, despite the fact that he had given highly probative evidence at a Coronial Inquest, which evidence was not before the jury at the criminal trial.  Once again, Justice Taylor sets out the facts in the most detail:

‘the concessions which he made in cross-examination [at the inquest] – and which in the circumstances appear to have been inevitable – destroyed to a considerable extent the value of the opinions previously expressed by him [in evidence in chief at the inquest]. Moreover, since the fact of the assault and the nature of the appellant’s injuries were most material in determining what conclusions should be drawn from the evidence of those witnesses who described the appellant’s demeanour immediately after the accident, the concessions made by Sergeant Phillis operated to strip that evidence of much of its incriminatory value. It is beyond doubt, therefore, that the evidence of Sergeant Phillis was most material in determining whether the appellant was or was not guilty of the offence charged.

But upon the trial of the appellant the prosecutor refrained from calling Sergeant Phillis as a witness. The evidence called for the Crown consisted of the evidence of the occupants of the two following cars who described both the manner in which the appellant’s car was driven immediately before the accident and his subsequent demeanour and of that of the police officers who, shortly after, investigated the circumstances of the accident. All of these witnesses, it may be observed, formed their impressions of the appellant, such as they were, in entire ignorance of the nature, and, indeed, of the fact of the assault which had occurred so shortly before. Faced with this situation counsel for the appellant decided to call Sergeant Phillis in his own case. The decision was inevitable for Sergeant Phillis was the one witness who was able to describe fully the vicious manner in which the appellant had been assaulted. The appellant himself remembered being struck once only and professed to remember no other details of the assault. It should, perhaps, be added that upon the evidence there is no reason for thinking the appellant was not truthful on this point; even after the accident, when seeking to excuse himself, he merely told the police that earlier he had been punched on the nose at the Terminus Hotel. The position in which counsel for the appellant found himself was, therefore, that if he failed to call Sergeant Phillis he would lose the benefit of his evidence concerning the assault and if he did call him he adopted him as his witness and was not in a position to cross-examine. In adopting the latter course he exposed the appellant to the danger of the jury seizing upon the prima facie views formed by this officer and was, for all practical purposes, deprived of the benefit of concessions similar to those made by the same witness at the coronial inquiry. In the result significant evidence was excluded from the jury and when the learned trial judge came to sum up Sergeant Phillis appeared as a witness who testified unequivocally to the appellant’s insobriety.’

In the High Court, Justice Fullagar said ‘It is difficult to imagine evidence of greater importance than that of Sergeant Phillis.’  The trial judge had suggested, by reference to the barrister’s evidence, that there was no evidence of the barrister having sustained more than one blow.  Worse, according to Justice Fullagar, was that the trial judge told the jury that the barrister’s defence was insanity, the burden of proving which lay on the barrister.  Justice Fullagar commented:

‘This seems to me to have been fundamentally wrong, and, if anything was calculated to seal the fate of the [barrister], it was surely a direction along these lines.  The jury would feel that real insanity was out of the question, as indeed it was, and the only alternative which his Honour had left to them was to convict.’ (296)

Sure enough, the jury convicted.  The trial judge sentenced the barrister to two years’ imprisonment with hard labour.  The barrister did not appeal conviction or sentence.  The Prothonotary of the Supreme Court called on the barrister to show cause why his name should not be removed from the roll of barristers.  A Full Court of the Supreme Court considered that it was not appropriate to look behind the conviction to the conduct which was its subject matter, and disbarred the barrister on the basis that the conviction itself was incongruous with holding out the barrister as a fit and proper person to practise.  As summarised by Justice Taylor in the High Court at 301:

‘This order was made because in the language of Street C.J., it was “incongruous” and “out of keeping with all that is seemly” for a barrister serving a term of imprisonment to be allowed to retain all the rights and privileges which accrue to him as a member of the profession. “It cannot be right,” said the learned Chief Justice “that he (the appellant) should be allowed to retain his professional status while he is serving a sentence of two years’ imprisonment with hard labour for such an offence as that of which he was convicted” whilst Owen J. observed: “It is impossible that a person should at one and the same time hold the status of a barrister and be serving a substantial term of imprisonment for a felonious act. The two positions are, in my opinion, utterly incompatible”. All of the members of the court agreed that the circumstances in which the offence was committed could not be taken into consideration in determining whether the appellant’s name should be removed from the roll but they also agreed that these circumstances might be of importance if and when, at some future time, an application should be made by the appellant for re-admission.’

Justice Owen had also said:

“If it were permitted, this Court would be holding out the respondent to members of the public as a fit and proper person to act for them in legal matters while he is serving a gaol sentence.”

Justices Fullagar, Kitto and Taylor allowed the appeal, setting aside the order disbarring the barrister and substituting an order suspending his practising certificate until his release from jail.  Chief Justice Dixon and Justice McTiernan dissented in the result.

Going behind the conviction

The issue of principal interest to me was the propriety of going behind the fact of the conviction and enquiring into the circumstances of the offence — that is, considering all the circumstances surrounding the criminal conduct, and indeed the nature of the conduct itself.  Chief Justice Dixon, and Justices Fullagar and Taylor expressly said that the Court should look beyond the fact of conviction to assess the nature of the conduct which gave rise to the conviction.  Justice McTiernan’s judgment is short, and refers only to the inevitability of disbarment as a consequence of the conviction.  His Honour may have been speaking of this conviction, including its circumstances, all manslaughter convictions, or — less likely — all criminal convictions, so his reasons are neutral on the question. Only Justice Kitto expressly said the Supreme Court had been right to confine itself to the fact of, rather than the circumstances of the conviction, because the barrister had been ordered to show cause only in relation to the conviction.  That is to me a curious position to adopt since the barrister had plainly sought to show cause by reference to the circumstances of the conviction.

Chief Justice Dixon said at 283:

‘In the Supreme Court the view seems to have been adopted … that the conviction and sentence constituted grounds in themselves for disbarring the appellant and that the court should not be concerned to go behind them and review the facts or circumstances.  No doubt the fact of the conviction and sentence is in itself a matter of great importance but I do not agree that all the circumstances lying behind them should not be taken into consideration before determining that the appellant should not remain a member of the Bar.’

And at 286:

‘The decision of the Supreme Court appears to me to be correct in its conclusion even if some of the reasons do unduly limit the scope of the inquiry into the facts which it may be proper for a court to make where a barrister has undergone a conviction and sentence of imprisonment.’

Justice McTiernan said at 287

‘The removal of the appellant’s name from the roll of barristers is not further punishment of him, but merely an inevitable consequence of his conviction. Although I agree with the order of the Supreme Court, I do not decide that the circumstances given in evidence upon the trial of the appellant at quarter sessions ought to be a permanent obstacle to his applying on a future occasion to be called again to the Bar of New South Wales, provided that in the meantime his good fame and worthiness to be a barrister have been re-established.’

Justice Fullagar said at 288:

‘In a case of this kind it is essential, in my opinion, to begin by defining the ground on which an order of disbarment is to be made. It is stated in general terms by saying that the person in question is not a fit and proper person to be permitted to practise at the Bar. The next question is – at what facts is it proper to look in order to see whether that conclusion is established? The answer must surely be that we must look at every fact which can throw any light on that question. But, descending to particularity, is it the conviction that is the vital thing, unchallengeable and conclusive of the ultimate issue? Or must we look beyond the conviction, and endeavour to ascertain, as best we can on the material before us, the facts and circumstances of the particular case? To my mind, there can be only one answer to these questions. The conviction is not irrelevant: it is admissible prima facie evidence bearing on the ultimate issue, and may be regarded as carrying a degree of disgrace itself. But, in the first place, its weight may be seriously affected by circumstances attending it, and it must be permissible to look at the conduct of the trial. And, in the second place, it is on what the man did that the case must ultimately be decided, and we are bound to ascertain, so far as we can on the material available, the real facts of the case. It is only when we have done this that we can be in a position to characterise the conduct in question, and to see whether we are really justified in saying that a man is disqualified from practising his profession. I would only add that there is one thing that we manifestly cannot do. We cannot look behind the conviction to the extent of saying that there is much evidence that the appellant was driving his car in a state of intoxication, and refuse to look any further behind it.’

And at 297:

‘The matters which I have mentioned, and especially the grave misdirection, mean to my mind that the conviction as such is deprived, for present purposes, of practical significance. Then, when one looks at the evidence apart from the verdict, it seems to me impossible to say that it justifies a finding that the appellant is not a fit and proper person to practise at the Bar. One must be very sure of the facts before making so serious a finding. It may be assumed that the appellant had had some drink. But no reason is apparent for supposing that Sergeant Phillis’s account of what he saw was not substantially true. One does not need medical evidence to infer that the blows which he described might well have had a real and direct effect on the appellant’s capacity to drive a motor car. Their effect would probably be more serious in the case of a man who had had some drink – even an amount which would not be considered excessive in itself. Indeed, it seems to me probable that the tragedy in this case would not have happened if it had not been for the concurrence of two factors – a consumption of drink by the appellant (which may or may not have been excessive) and the vicious blows on the head which the appellant suffered as described by the sergeant. And, if it is even a reasonable possibility that those blows may have been a material factor contributing to a condition in which the appellant was not fit to drive a motor car, it ought not, in my opinion, to be held that the conduct of the appellant disqualifies him from practising at the Bar.’

Justice Kitto said at 298:

‘Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.

In the present case it is not for conduct, but because of a conviction, that the appellant has been disbarred. The Supreme Court, in my opinion, was right in refusing to go behind the conviction, since it had not called upon the appellant to show cause in respect of anything else. If the issue before the court had been whether the appellant’s conduct on the occasion to which the conviction related had in fact been such as to disqualify him from continuing a member of the Bar, that conduct would have had to be proved by admissible evidence.’

Justice Taylor said at 302 -303:

‘It is, of course, obvious that many offences are of such a character that proof of the commission of any one of them by a member of the Bar could produce only one result. And, for the simple reason that proof of such an offence would, itself, establish conduct on the part of the person concerned constituting a disqualification for his profession, this would be so whether a conviction resulted in imprisonment or not. But, on the other hand, it cannot be suggested that a barrister should be disbarred upon proof that he has committed any offence whatever its nature or consequences. The first difficulty which arises in the case will, therefore, readily be appreciated when it is remembered that the expression manslaughter is a compendious expression and that the acts which may constitute it range from culpable negligence on a particular occasion to the most infamous and reprehensible conduct. That being so mere proof of a conviction for manslaughter gives no real clue to the conduct of the person concerned nor could it enable a court to make any real assessment of his character or reputation. This could not be done without some knowledge of the underlying facts.

The Full Court, however, was not concerned with the appellant’s conduct as such; it was concerned merely with the fact of conviction and sentence and the underlying facts were thought by the members of the court to be irrelevant. But, whilst I respectfully agree with the observations of the learned Chief Justice concerning the high standard of conduct expected and required of members of the Bar, I find it impossible to assent to the proposition that proof of the fact of the appellant’s conviction and sentence, without more, made it inevitable that an order should be made directing that his name be removed from the roll of barristers; the vital question, in my opinion, in such cases, is not whether a practitioner has been convicted of an offence against the criminal law but whether his conduct has been such as to show that he is unfit to remain a member of his profession.

The vital question, as I have already said and as these considerations show, is whether the conduct of the person concerned, whether it constitutes an offence against the law or not, has been such as to show that he is unfit to remain a member of the Bar. The fact that his conduct may have amounted to an offence against the law is of course a matter for consideration but for the reasons given it is by no means the end of the inquiry.

In the circumstances it is, I think, incumbent upon us to examine the facts which led to the appellant’s conviction for the purpose of seeing whether they disclose conduct on his part which shows that he is not a fit and proper person to remain a member of the Bar.’

And at 308:

‘For the reasons I have given it is, I think, possible to say, firstly, that the mere fact of the appellant’s conviction involving, as it may have done, a finding that, on the occasion in question, he drove his car with gross negligence and under the influence of intoxicating liquor did not justify the removal of his name from the roll of barristers.  Secondly, it may be said that, when the whole of the evidence now available is examined, the fact of the appellant’s conviction, as a factor for consideration, loses a great deal of its weight and, finally, that it is impossible, upon the evidence, to conclude that the appellant’s conduct on the occasion in question was such as to make it appear that he was unfit to remain a member of the Bar.’

The standards for counsel

Ziems is one of those cases which is often cited when outlining the terrifying propriety we barristers are exhorted to aspire to.  Justice Dixon said at 286 (Justice Taylor agreed at 302):

‘In dealing with the question whether a man should remain on the roll of barristers the special if not singular position of counsel should be borne steadily in mind. If counsel is adequately to perform his functions and serve the interests of his clients, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment upon him which must ordinarily mean the loss by him of the standing before the court and the public which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and responsibilities of an advocate. There may be convictions for a crime of which this is not true, but I cannot think that the present is one of them.’

Justice Fullagar said at 288:

“The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges” (per Dixon J., as he then was, in In re Davis (1947) 75 CLR, at p 420 ).

Justice Kitto said at 298:

‘The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one’s conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister in a system which treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal profession. It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.’

Justice Kitto said at 300:

‘The conviction is of an offence the seriousness of which no one could doubt. But the reason for regarding it as serious is not, I think, a reason which goes to the propriety of the barrister’s continuing a member of his profession. The conviction relates to an isolated occasion, and, considered by itself as it must be on this appeal, it does not warrant any conclusion as to the man’s general behaviour or inherent qualities. True, it is a conviction of a felony; but the fact that as a matter of technical classification it bears so ugly a name, ugly because the most infamous crimes are comprehended by it, ought to be disregarded, lest judgment be coloured and attention diverted from the true nature of the conviction. It is not a conviction of a premeditated crime. It does not indicate a tendency to vice or violence, or any lack of probity. It has neither connexion with nor significance for any professional function. Such a conviction is not inconsistent with the previous possession of a deservedly high reputation, and, if the assumption be made that hitherto the barrister in question has been acceptable in the profession and of a character and conduct satisfying its requirements, I cannot think that, when he has undergone the punishment imposed upon him for the one deplorable lapse of which he has been found guilty, any real difficulty will be felt, by his fellow barristers or by judges, in meeting with him and co-operating with him in the life and work of the Bar. The assumption on which this is based may, of course, be false in a particular case. But that it must be made in the present case is surely undeniable, since no one has come forward to say a word against the appellant, and he has been called upon to answer nothing but the fact of his conviction.’

The personal and the professional

Justice Fullagar said at 290 what might be thought to be trite (but not by the NSW Supreme Court, apparently):

‘[The Supreme Court] said that: “The personal and the professional sides of his life cannot be dissociated.” If this is read literally, it goes, in my opinion, much too far. Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister: see, e.g. In re Davis [1947] HCA 53; (1947) 75 CLR 409 . But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man’s fitness to practise than the former.’

Suspension or disbarment?

One of the issues in the case was whether it was appropriate to suspend the barrister during his term of imprisonment, or disbar him, leaving him to re-establish his fitness for practice upon application following his release.  These days, suspension is routine, but not back then, evidently.

Chief Justice Dixon said at 286:

‘it is open to the Supreme Court to suspend a barrister from practice: see In re Spensley (1864) 1 WW & a’B (L) 173 . But, even so, it is probably a better course in most cases where room exists for the belief that time may give the barrister a title to resume his place at the Bar to allow him to re-apply at a subsequent time and offer positive evidence of the grounds upon which he then claims to be re-admitted.’

Justice Fullagar said at 291:

‘The appellant was, at the time of the hearing of the case by the Supreme Court, and he presumably still is, in prison. The ground on which ultimately the Supreme Court decided that he should be disbarred was the incongruity which would be involved in the appellant’s holding the status of a barrister and at the same time serving a sentence of imprisonment. Owen J. said: “If it were permitted, this Court would be holding out the respondent to members of the public as a fit and proper person to act for them in legal matters while he is serving a gaol sentence.” The prima facie incongruity may be conceded, though any practical danger to the public might be thought to be reduced by the limitation of activity which normally results from imprisonment. But it is quite consistent with a recognition of the incongruity that suspension during the period of imprisonment should be considered adequate to the occasion. I have no doubt that suspension as distinct from disbarment could be ordered.’

And at 297:

‘The appeal should, in my opinion, be allowed. It remains to consider whether the order of the Supreme Court should be simply discharged, or an order suspending the appellant from practice during the term of his imprisonment should be substituted for that order. The reasons which I have given for allowing the appeal lead, I think, logically to the conclusion that there should be neither disbarment nor suspension. Having regard, however, to the incongruity which has been mentioned and to the views of the Council of the Bar, I would assent to an order of suspension during the term of imprisonment.’

Justice Kitto said at 300:

‘It remains to consider their suggestion that he should be suspended from practice during the remainder of his present imprisonment. If it were not that the members of the Court who think with me that he should not be disbarred are in favour of the proposed suspension, I should be against it. If the appellant’s conviction and imprisonment are held not to disqualify him from the Bar, it seems to me, with respect, that logically that should be the end of the case. There can be no question of imposing a punishment additional to the imprisonment, and as far as I can see there is no purpose to be served by adding a de jure suspension to the de facto suspension which the appellant’s incarceration produces while it lasts. However, even if I am right in thinking that suspension is inappropriate, it can do no harm, and I am prepared to assent to it so that an order may be made.’

Justice Taylor said at 308-309:

‘For the reasons I have given it is, I think, possible to say, firstly, that the mere fact of the appellant’s conviction involving, as it may have done, a finding that, on the occasion in question, he drove his car with gross negligence and under the influence of intoxicating liquor did not justify the removal of his name from the roll of barristers. Secondly, it may be said that, when the whole of the evidence now available is examined, the fact of the appellant’s conviction, as a factor for consideration, loses a great deal of its weight and, finally, that it is impossible, upon the evidence, to conclude that the appellant’s conduct on the occasion in question was such as to make it appear that he was unfit to remain a member of the Bar.

There remains the question as to what order should be made in the circumstances. Clearly enough the order that his name should be removed from the roll of barristers should be set aside; the only difficulty as I see the case is to determine what order should be substituted. For my own part I am of opinion that where a member of the bar is serving a term of imprisonment for a serious offence he should not, during the term of his imprisonment, be permitted to hold himself out – however ineffectually that may be done – as a person entitled to practise as a barrister. Accordingly, whilst I think there was no justification for the removal of his name from the roll of barristers, I am of opinion that an order should be made suspending him from practice during the residue of the term of his imprisonment.’

Drink driving

The decision is interesting for the vigour with which the wrongfulness of drink-driving was articulated.  Chief Justice Dixon said at 285:

‘He was held guilty of a grave crime deserving of severe and degrading punishment. There can be no doubt of the moral blameworthiness of the conduct of a man who drives a motor car while under the influence of liquor, a consideration brought home by the fact that he caused the death of a fellow creature. On the case accepted by the jury the appellant’s earlier conduct must be regarded as very unseemly.’

Justice McTiernan said at 287:

‘The verdict of the jury that the appellant was guilty of manslaughter necessarily involves that the Crown made out its accusation that the appellant committed the offence by driving his motor car while he was drunk.

To drive a motor car in this condition is evil conduct; because calculated to cause bodily injury or death. In this case the consequences were unfortunately fatal. The gravity of the offence committed by the appellant, in my opinion, is not exaggerated by holding that the circumstances in which it was committed very seriously affect his claim to be regarded by the court as a fit and proper person to be a barrister.’

Justice Fullagar said at 288:

‘the offence of which the appellant was convicted and for which he was sentenced to imprisonment for two years is a very serious offence.’

And at 289:

‘I am prepared to assume that a man, though otherwise of good fame and character, is shown prima facie not to be a fit and proper person to practise the profession of a barrister, if it be proved that on one occasion, being intoxicated, he drove a car in a grossly negligent manner, that that grave misconduct caused the death of another user of the road, and that it was followed by conviction on a charge of manslaughter.’

Justice Kitto said at 300:

‘The conviction is of an offence the seriousness of which no one could doubt.’

Justice Taylor said at 308:

‘the mere fact of the appellant’s conviction involving, as it may have done, a finding that, on the occasion in question, he drove his car with gross negligence and under the influence of intoxicating liquor did not justify the removal of his name from the roll of barristers.’

See also:

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2 Replies to “Ziems v Prothonotary of the Supreme Court of NSW”

  1. Thanks for the case digest , a very entertaining and interesting read.

    Regarding mens rae, to the above poster. Interesting point, but the case might be distinguished on facts. Having the mental capacity to drive a car ( albiet in disorientation) requires much more higher brain function then pulling a trigger.

  2. As the barrister Ziems had suffered many blows, probably to the head as he was bleeding from the nose (internal haemorrhage?) I don't believe he should be held responsible for his actions – no Mens Rea. This was successfully argued in NSW Regina v. Karen Brown. Karen pursued and shot her assailant after receiving a blow to the head and was acquitted of murder after medical witness.

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