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VCAT finds practitioner guilty of conduct prejudicing administration of justice

April 2nd, 2016 · No Comments

I only learnt in the last few years that Melbourne is one of the world’s great Jewish cities, with a globally significant series of communities of orthodox adherents.  One of those orthodox communities has delivered up an interesting case.  In Victorian Legal Services Commissioner v AL [2016] VCAT 439, VCAT’s Acting President recently found a well known Melbourne solicitor guilty of two counts of professional misconduct, constituted by breaches of each limb of r. 30.1.2 of the solicitors’ professional conduct rules.

The rule prohibited conduct calculated to, or likely to a material degree to be, prejudicial to the administration of justice, or to diminish public confidence in the administration of justice, or adversely to prejudice a practitioner’s ability to practise according to these rules.

The practitioner’s disciplinary offence was first to state privately to his client’s father his disappointment after an orthodox Jew sitting watching someone else’s case in court had gone out of his way from the well of the court to assist police in the middle of a bail hearing in a criminal prosecution of the practitioner’s client. His second offence was committed when the man, whom I will refer to as the complainant since he lodged the disciplinary complaint which led to the practitioner’s disciplinary prosecution, rang the practitioner and asked him about comments to similar effect which the man had heard the practitioner had made, taping the call. The practitioner expressed directly to the man similar sentiments, expressly invoking the Jewish principle of ‘mesirah’ by which Jews who cooperated with secular authorities against fellow Jews in times and places where Jews enjoyed imperfect protection were ostracized. Jewish authorities have repeatedly said that the principle has no operation in modern day Australia in relation to criminal matters.

The Age has reported, in an article prominently featuring the practitioner, that victims of Jewish abusers have been pressured not to cooperate with police. It reported the Legal Services Commissioner as saying that ‘there was a general principle that made it impermissible for a lawyer to tell a witness they could not inform police about a matter because of a religious or community rule.’ I do not mean to criticise the Commissioner in this regard, because The Age sought his comments prior to the Commissioner’s receipt of the complaint, and the Commissioner was presumably simply responding to a general question about lawyers’ obligations towards witnesses in their cases. But what VCAT’s decision demonstrates is that the practitioner’s comments occurred after the conduct in question which the practitioner believed to have involved false statements based on misinformation, and were directed to a person who was not a witness and who, as far as the practitioner was aware, was simply someone who stood up in the well of the court and interfered in his client’s case. Given that, as far as the practitioner is said to have known, the man who stood up in court had no further role to play in the case or in his client’s drama more generally, it is hard to see how the practitioner could be said to have intended to pressure the man as a victim of a Jewish abuser not to cooperate further with the police in the future in bringing the abusers to justice, as seems to have been the implication.

The Tribunal’s reasons set out the charges and the particulars pleaded in support of them in full. The hearing proceeded as a contest only as to whether the conduct amounted to unsatisfactory professional conduct or professional misconduct. The Commissioner and the practitioner asked the Tribunal to proceed to determine that question on the basis of a plea based on a set of agreed facts, all of which are also set out in the reasons. This makes the decision interesting because it allows the reader to see exactly what allegations were before the Tribunal, exactly what evidence was before it, what facts the Tribunal was prepared to find, and what inferences it was prepared to draw from those facts.  As we will see, the Tribunal was not shy in drawing inferences.

The rich factual context of the practitioner’s comments, from the complainant’s point of view, are spelt out in detail in David Marr’s long piece in The Guardian on the response of the particular orthodox Jewish community to sexual abuse at Yeshiva College. The Commissioner did not allege that the practitioner was aware of any of it. It was not said that the practitioner was an orthodox Jew, associated with the community, or aware of any of the matters recounted by Mr Marr. In fact, it was an agreed fact that the practitioner said he was not aware that the person whom he regarded as interfering in his client’s case was himself a victim of his client. And the Tribunal repeated statements by the complainant that the practitioner was likely not an orthodox or even particularly observant Jew.  That seems to be consistent with the practitioner’s erroneous description of a person who infringes the prohibition of mesirah as a ‘maser’.

In what follows, I have stated the facts as they seem to have been found, from the perspective of the practitioner.

In September 2011, the practitioner, who is Jewish, was appearing in the Magistrates’ Court in the bail hearing as the advocate for his client, an orthodox Jewish defendant to child sex charges.

The police did not oppose bail. The issue was as to the conditions of bail. A question arose as to whether the practitioner’s client was a flight risk. The prosecution suggested that the practitioner’s client was still connected with people who might spirit him out of the country. (It is certainly the case that the headmistress who was the subject of this blog post left rather suddenly for Israel in 2008, as did David Kramer in the 1990s according to David Marr’s article, in each case after plausible allegations of abuse surfaced against them.)

The police referred vaguely to the possibility of the practitioner’s client obtaining an Israeli passport on the basis that his parents might have been born in Israel, even if the practitioner’s client’s Australian passport were located and surrendered as a condition of bail. The police, it seems, were horribly under-prepared on this issue. Then, to quote from the Tribunal’s reasons:

‘The Magistrate stated that she was concerned that the evidence in respect of Mr Cyprys’s ability or entitlement to obtain a non-Australian passport, specifically an Israeli passport, was “vague”. Her Honour asked the prosecutor whether she had any means of determining whether Mr Cyprys had the ability to apply for a passport from another nation.

At this stage, [the complainant] sought to speak to the [policewoman]. The Magistrate directed the [policewoman] to talk to [the complainant] in the body of the Court. … Following this conversation the prosecutor then submitted the following:

“Your Honour, the information that’s been provided to me… is that there is a right to apply for an Israeli passport for any Jewish person.”’

Elsewhere, the Tribunal found that the conversation between the complainant and the policewoman was ‘prompted by a direction from the Magistrate’, but it seems clear enough that the direction from the Magistrate was prompted by the complainant’s articulation of his wish to speak to the policewoman. So it does not seem that the complainant’s involvement was born of any duty to assist the police or the Court. However VCAT found that lawyers would regard it as uncontroversial that people who are in a position to assist police should generally do so, and any dissuasion of members of the public voluntarily assisting police is likely in a material respect to prejudice the administration of justice.  Observers of court cases should bear this duty in mind in future.

It was an agreed fact that the practitioner believed the policewoman’s submission to the Court following the conversation with the complainant to be false and based on misinformation.  Why that might be so is unclear, but there you are.  It is certainly true that the practitioner, in the tape recorded conversation with the complainant said:

‘if someone tells the informant that in fact there’s a – for a person of particular state of background they could go to embassy and travel without passport therefore the surrender of passport would be inconclusive …’

suggesting a degree of misunderstanding or mis-recollection on the practitioner’s part as to what had occurred.

The practitioner then (presumably privately) asked his client’s father who the man was, and was told that he was an orthodox Jew and, it seems, what his name was. The practitioner then said (again, presumably privately) to the father:

‘It is most disappointing when a person who has nothing to do with the case and being a fellow Jew does willfully seek to hinder another Jew in his defence of criminal charges.’

It was exclusively the speaking of these words which was said to amount to the first count of misconduct.

Though it was not contained in the statement of agreed facts, and though for reasons which are unclear it was not said in the disciplinary charge to amount to professional misconduct, VCAT found as a fact that the practitioner had had ‘at least one’ conversation within a few days of the bail hearing with the complainant’s foster father (also from the same community) in which he expressed his disappointment that the complainant ‘who had no involvement in the proceedings, should be actively aggressive and involved in opposing a bail application of his (the Respondent’s) then client.’  Why the Tribunal referred to ‘at least one’ is also unclear from the reasons.

This expression of disappointment makes more sense than what the practitioner said to his client’s father, because whatever the practitioner understood the complainant to have done, it could hardly have hindered his client in the defence of the charges.

The Commissioner tendered a witness statement of the complainant who was not cross-examined. He stated that he had been subjected to ostracism as a ‘moser’ within his community and criticized for assisting police, including by his foster father and employer. It is not apparent from the Tribunal’s reasons that the Commissioner actually alleged that the practitioner was aware of any of this or that he foresaw it as a possible consequence of speaking the words the subject of either charge.

It appears that within at least parts of the orthodox community to which the complainant belonged, there was still a strong disapproval of assisting secular authorities against fellow members of the community. This is the historical principle of ‘mesirah’, and those who offend it have traditionally been subjected to ostracism as ‘mosers’ (not ‘masers’ as the Tribunal (and the practitioner) repeatedly described them). The principle seems to have had a more enduring real life operation in ultra-orthodox pockets of Melbourne than religious rulings justified. As a Jewish friend pointed out to me, Sydney’s Ecclesiastical Court has again reiterated publicly in response to this very case that it has long been said authoritatively that mesirah has no application in relation to criminal matters in Western democracies such as Australia, and there is in fact a religious imperative to inform and cooperate with authorities in relation to matters such as child sexual abuse.

On 6 October 2011, the complainant rang the practitioner and recorded the conversation on his mobile phone ‘in a manner approved by police’. The practitioner resisted speaking to the complainant, saying it was inappropriate, but the complainant persisted, saying that someone had told him that the practitioner had suggested that the complainant was behind the practitioner’s client losing his passport, a proposition which, he said on the phone, he had nothing to do with.  It seems clear from his evidence that he did in fact have something to do with it; in his witness statement in the practitioner’s prosecution he admitted explaining the ‘law of return’ to the police woman in court while the practitioner’s client’s bail conditions in relation to passports were being argued. The practitioner said, of his conversation with the complainant’s father:

‘that’s the only conversation I had with the person I said to her [sic], “I’m disappointed that you would participate”, and that was my disappointment and that’s why I’m not exactly delighted that another Yid would assist police against an accused no matter whatever he’s accused of.  That’s the reason why I was very disappointed because there is a tradition, if not a religious implement [sic.] that you do not assist against Abraham, assisted by Yid and I was concerned about that.

… [It is] [a] religious principle too.  I mean Maser – principle of Maser is well known.  I’m not suggesting you are but the fact that you were prepared to speak to the Informant upset me enormously.’ (You can listen to the recording here.)

It was exclusively the speaking of these words which was said to amount to the second instance of misconduct calculated to prejudice the administration of justice.

VCAT found that the remark to his client’s father represented the practitioner’s expression of his disapproval in a general sense of one Jew apparently providing any kind of assistance to the prosecuting authorities against another Jew.

VCAT found that the telephone conversation amounted to a ‘direct verbal assault upon’ the complainant ‘which in light of [the complainant’s] evidence before the Royal Commission, can only have been intended to condemn [him] in the harshest and most hurtful way’. It is not clear to me what the Acting President was referring when she referred, in this context to ‘the complainant’s evidence before the Royal Commission’.  It is very unlikely given that the hearing proceeded on agreed facts that the Tribunal reasoned that because other Jews were mean to the complainant, the Tribunal could be comfortably satisfied that the practitioner who was a Jew was also being equally mean.

VCAT found that the practitioner was effectively conveying in the telephone call that he condones Jewish people behaving in a way which undermines the Australian justice system.  Necessarily, the Tribunal must have found that the practitioner was expressing a generalised view on that question rather than merely expressing his disappointment that a Jew came along to watch the prosecution of another Jew and then volunteered to involve himself.  The practitioner’s words were certainly broadly couched, but there is a difference in my mind at least between being disappointed about volunteerism against a fellow community member and advocating the breaching of duties under the law so as favour fellow Jews.

Though the Commissioner did not allege it, the Tribunal went on to find on the basis that it was ‘comfortably satisfied’ in accordance with Dixon J’s comments in Briginshaw v Briginshaw that ‘in the context of his admission of at least one conversation he had with [the complainant’s] foster parent’, the ‘only reasonable inference to be drawn from … the telephone conversation’ was that the practitioner was ‘well aware of the devastating impact upon [the complainant’s] personal and professional life, within his orthodox community, and that his words were effectively endorsing community condemnation.’ What context the conversation with the foster parent provided is not made express by the Tribunal’s reasons.

In fact, the Tribunal went even further, and found itself comfortably satisfied by exact proofs as per Dixon J’s exhortation in Briginshaw that the practitioner continues to practice law in accordance with his misguided concept of religious or cultural solidarity, allowing such views to take precedence over his professional obligation to uphold the principle of equality before the law.

As noted above, VCAT found that competent and reputable practitioners believe as a straightforward and conventional principle that if able to, citizens ought to assist the prosecuting authorities, though the Commissioner does not appear to have brought any relevant authorities to the attention of the Tribunal in support of this proposition which does not seem to be limited to where there is a legal obligation to do so, or a sufficiently close connection with the matter being prosecuted as to give rise to a social expectation that that would occur.  This would appear to be an important clarification of the role of citizens, the full implications of which will no doubt work themselves out over time.

The most complex of VCAT’s findings was that it was comfortably satisfied by exact proofs that by virtue of speaking the words to his client’s father and in the telephone conversation, the practitioner breached r. 30.1.2(c) which prohibits conduct calculated or likely to a material degree to adversely prejudice a practitioner’s ability to practise according to these rules. The Tribunal found that he would in the future be unable, by virtue of having spoken the two sets of words, to comply with those parts of conduct rule 13 which require practitioners to exercise the forensic judgments in a case independently rather than as the mere mouthpiece for a client, and without making submissions in terms which convey or appear to convey the practitioner’s personal opinion on the merits of evidence or an issue.  It was unnecessary to make any such findings, since the three limbs of r. 30.1.2 are disjunctive.  No doubt that is why the reasoning behind this finding is quite shortly stated, making analysis of this conclusion tricky.

VCAT said ‘it is impossible to reconcile the clear views expressed with his continued ability to comply with r. 30.1.2(c)’ which is itself a rule prohibiting conduct which adversely prejudices a practitioner’s ability to practice in accordance with the conduct rules. I must confess that unpicking the detail of that reasoning does my head in.

 

See also:

Tags: "disgraceful and dishonourable" · Briginshaw · common law · Discipline · duty to court · Evidence · litigation ethics · Misconduct · Rule of law · Vic Solis' Conduct Rules