Submissions on penalty in regulatory proceedings like ASIC and disciplinary prosecutions

The Federal Court has given a landmark decision about regulatory prosecutions.  In federal jurisdictions and state jurisdictions which follow the new decision, professional disciplinarians like ASIC and Legal Services Commissioners will no longer be able to enter into plea bargains in the expectation that the court or tribunal hearing them will rubber stamp the agreed outcomes so long as they are ‘within the permissible range’ of penalties.  But nor will disciplinary prosecutors be able to submit what the appropriate penalty ought to be.  Rather, they will be limited to making submissions about the appropriate sentencing principles, and about similar outcomes in similar cases.

The powerful judgment is at odds with a paragraph of dicta in a recent decision of the Victorian Court of Appeal in that it applies the High Court’s decision in Barbaro, a criminal case, to the quasi-criminal realm.  How the case plays out in Victoria remains to be worked out, but if this case goes to the High Court (and both sides have filed special leave applications), all that may change. Certainly the settlement of proceedings by regulators just got more complicated.

There seems to be a discrepancy about fundamental norms of government between the dicta of our Court of Appeal and the ratio of the Federal Court’s decision.  Once that gets resolved, however, each piece of legislation setting up the regulatory regime must be construed against the backdrop of those fundamental norms, and might give rise to different outcomes.  The Federal Court approached the task of working out how Barbaro applies in regulatory prosecutions in an orthodox fashion, i.e. by a process of statutory construction based on a close textual analysis of the legislative scheme as a whole.

The Chief Justice of the Federal Court allocated three judges to hear a preliminary question in the regulatory prosecution at first instance, in which the parties had already agreed on a proposed outcome, the result of a settlement (or, if you will, a plea bargain).  The proceeding was brought against the CFMEU and the judgment’s aim was apparently to sort out once and for all if, and how, the High Court’s decision in Barbaro is to apply in proceedings for a penalty.  The mouthful of a case is reported as Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59, but seems set to be called ‘the CFMEU Case’.

It’s quite a judgment: indignant, keen to cut cant, and argued from first principles in relation to the place of the courts in civil society.  It is a further step in the demolition of the nonsense about disciplinary proceedings being sui generis, fundamentally distinct from criminal prosecutions, and (oh, spare me!) protective and not punitive in a way which means the protection of those against whom punishment is sought need not be extended.  The   punishment of citizens is, and must be seen to be, a job for the courts (except where parliament has expressly provided otherwise); where the State is seeking to punish citizens the label applied to the proceedings is a distraction; and in such cases, the Courts having been tasked with ascertaining the appropriate penalty, they must do so conscientiously themselves, however convenient it might be for them, for regulators, and for the regulated, to cede that task to a regulator which is part of the machinery of the executive arm of government, and to pay lip service to the inquiry conducted by the Court into the appropriateness of a deal done behind closed doors.  So said the Court.

The indignation extends to the many judges and other decision makers who have convinced themselves post-Barbaro that the decision does not apply  to them, often on the basis that criminal proceedings are special and proceedings for a penalty are civil proceedings and nothing like criminal prosecutions.  Distinguishing Barbaro away has been de jour. Continue reading “Submissions on penalty in regulatory proceedings like ASIC and disciplinary prosecutions”

Can an administrative agency determine that a crime has been committed?

In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, the High Court considered when an administrative agency can make a determination of the commission of a crime.  The case arises out of the sorry saga of two Today FM presenters impersonating the Queen and Prince Charles in inquiries of the hospital in which the Duchess of Cambridge was a patient.  ACMA conducted an investigation and published a preliminary report expressing the ‘view’ that Today FM had used its broadcasting service in the commission of an offence under the Surveillance Devices Act 2007 (NSW).  Commission of an offence in the course of use of a broadcasting service was a breach of the licence and carried with it the possibility of its revocation: s. 8(1)(g) Australian Communications and Media Authority Act 2005 (Cth). The Court said of ACMA’s ‘view’: No worries; full steam ahead, overturning a unanimous decision of a bench of the Full Federal Court presided over by its Chief Justice, and restoring the trial judge’s conclusions.

There are no doubt implications for Legal Services Commissioners and other disciplinary investigators where misconduct is defined to include the engaging in of criminal offences.  Under the uniform legislation to come into force in Victoria and NSW this year, Legal Services Commissioners will become decision makers and have the power to impose fines for professional misconduct.  I have blogged before about various cases in which a related question has arisen, of the appropriateness of administrative tribunals making determinations of the commission of offences, not with criminal consequences but with penal disciplinary consequences. Continue reading “Can an administrative agency determine that a crime has been committed?”

More on the constraints on the use of information obtained under statutory powers

In Flori v Commissioner of Police [2014] QSC 284, a police sergeant was suspected of committing a crime: leaking to News Ltd footage of an incident in respect of which another officer was being investigated by a disciplinary authority for using excessive force.  A criminal investigation was launched as a result of the findings of the disciplinary investigation.  A search warrant was granted in aid of the criminal investigation, and executed.  The sergeant’s computers were seized from his home.

The evidence was incriminating: the email address used to leak the photos was associated with his computer.  No prosecution ensued.  Instead, disciplinary proceedings were issued.  The prosecutors sought to use the evidence seized in the search warrant.  The policeman sought a declaration that the evidence was inadmissible.  The Supreme Court of Queensland granted the declaration: examining the scheme of the statute which authorised the search warrant, Atkinson J found an implied restraint on the use of the information otherwise than for the purposes of the criminal investigation in aid of which it was granted.

This is an application of established principle (see these previous posts: one, two, three, four), but it is a nice case because its scope is confined exclusively to this issue, and it occurs in the context of a statutory disciplinary regime.  The discussion of the law, which commences at [27], is set out in full below. Continue reading “More on the constraints on the use of information obtained under statutory powers”

Z v Dental Complaints Assessment Committee

Z v Dental Complaints Assessment Committee [2008] NZSC 55 is an important case which considers in depth just how quasi-criminal professional discipline proceedings should be.  It is a decision of New Zealand’s Supreme Court, their equivalent of our High Court, now 6 years old.  It considers the disciplinary prosecution of a dentist, acquitted of sexually assaulting sedated patients, against whom disciplinary proceedings were brought in respect of the same conduct as was the subject of the criminal charges.  That the rule against double jeopardy (i.e. the doctrine of autrefois acquit) had no operation was accepted by the dentist.  But he argued that the disciplinary proceedings were an abuse of process.  Four of the five judges agreed with him in relation to one only of the particulars of professional misconduct, while one judge said even that should be allowed to go ahead.  One of the four judges, Chief Justice Elias, held that all of the particulars of misconduct were an abuse of process.  The second issue was what standard of proof these disciplinary charges had to be established to.  All but the Chief Justice held that the appropriate standard was the civil standard informed by what we would call the Briginshaw principles.  The Chief Justice, however, argued persuasively in favour of the imposition of the criminal standard in serious professional disciplinary proceedings. Continue reading “Z v Dental Complaints Assessment Committee”

Can conduct unconnected with practice constitute misconduct at common law?

Recently, it has been suggested that misconduct unconnected with legal practice (which the High Court has referred to as ‘personal misconduct’) may constitute professional misconduct at common law: New South Wales Bar Association v Cummins [2001] NSWCA 284; Legal Services Commissioner v RAP [2009] VCAT 1200, the subject of this post.  This post considers whether that is correct, in light of A Solicitor v Council of the Law Society of NSW [2004] HCA 1; 216 CLR 253.  The answer to that question does not affect what I suggest may be a separate question, namely whether personal misconduct may warrant disbarment (which is clearly the case), since disbarment is not conditioned on a finding of professional misconduct, but is dependent on a finding of unfitness for practice.  I am interested to hear others’ views. Continue reading “Can conduct unconnected with practice constitute misconduct at common law?”

Can’t keep up

Many new decisions of interest are coming out and I will not have time to blog them any time soon as I have to go to University and concentrate on my latest and hopefully last field of study, Shareholders Rights and Remedies.  Here are some pointers in case you want to read this slew of the new yourself.

Here is a landmark English case on illegally obtained evidence in civil proceedings: Imerman v Tchenguiz [2010] EWCA Civ 908, and CMS Cameron McKenna’s case note.  A husband in business with his wife’s brother separated from his wife.  Worried that he would hide assets from the wife, the brother copied information from the husband’s computer.  The English Court of Appeal refused to admit the evidence.  One of the little changes wrought by the Victorian Evidence Act, 2008 is to make clear that illegally obtained evidence may be inadmissible in civil proceedings as much as in criminal proceedings.

Then there is a mega-solicitor’s negligence decision from NSW’s District Court’s Judge Levy: Mills v Bale [2010] NSWDC 162.  It was a regretted settlement case of the kind I wrote about in ‘Compromise of litigation and lawyers’ liability’ (2002) 10 Torts Law Journal 267.  The client accepted a fraction of his claim on the basis of advice that the other side had ‘damning video evidence’ and that he might get nothing if he went to trial. The solicitor had no file note of the relevant conversation and no recollection of the alleged events. The client won more than $700,000, a rare victory since such cases do not often succeed. The judgment is 807 paragraphs long.  Analysis of the witnesses’ credit occupies 100 paragraphs.

Two from Victoria’s Court of Appeal:

  • First, Justice of Appeal Ashley with whom Acting Justice of Appeal Beach agreed, pronounced the latest chapter in the extraordinary saga of Shaw v Gadens Lawyers, another victory for professional negligence specialist Sam Tatarka.  It has not been published on Austlii, but was delivered on 3 August 2010. The Court confirmed that when VCAT determines civil disputes involving compensation claims, they do not entertain a cause of action created by the Legal Profession Act, 2004.  Rather, they are given a statutory grant to hear professional negligence cases according to common law principles.  Let me know if you want a copy.
  • Secondly, the latest in the saga of Byrne v Marles (see this earlier post about the earlier decision which threw the Legal Services Commissioner’s office into chaos): Byrne v Legal Services Commissioner [2010] VSCA 162.  Mr Byrne successfully sought judicial review of the Commissioner’s decision to characterise a complainant’s complaint as a disciplinary complaint.  The Appealohs held that there was a breach of natural justice in failing to provide an opportunity for the solicitor to be heard on that question.  The Commissioner appears then to have written to every complainant and given them an opportunity to make submissions.  Mr Byrne made submissions, and the Commissioner, unmoved, came to the same decision.  He sought judicial review of that, and that is what this decision is about.  He failed, but along the way, had the former Commissioner re-spanked.  The former Commissioner’s reasons for reaffirming her original classification, absolutely typical of the reasons I have seen her give in a template-like manner, over and over, were described by Justice of Appeal Ashley at [96] as ‘too smart by half. They invited further proceedings’.  In fact, his Honour found at [63] that they were not reasons at all; they were just a statement of the conclusion which the reasons should have supported.

Another decision of the utmost importance to this blog, which again passed me by, is the decision of New Zealand’s Supreme Court (equivalent to our High Court) in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1; [2008] NZSC 55.  More to come, needless to say.  Meanwhile, You will appreciate my interest in the case when you consider that the Chief Justice opined that disciplinary proceedings making serious allegations should be proved on the criminal standard of proof (remember what Justice Finkelstein said about disciplinary proceedings?), as opposed to the civil burden as explained in Briginshaw v Briginshaw.  Paragraph no. 1 of the Chief Justice’s reasons said: Continue reading “Can’t keep up”

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. Continue reading “Ziems v Prothonotary of the Supreme Court of NSW”

Thieving soli out of jail cops Fidelity Fund’s Sentencing Act compo application

Legal Services Board v GW [2010] VSC 105 is a decision of Justice Robson.  A Victorian solicitor stole a million bucks from his clients and went to jail.  The Legal Services Board made no application for compensation under s. 86 of the Sentencing Act, 1991 because, wearing its Fidelity Fund hat, it thought the solicitor did not have enough dough to make it worthwhile.  It did get the benefit of a successful suit against Crown Casino, though, where the solicitor gambled away some of the stolen money: see Victorian Lawyers RPA Ltd v GW [2006] VSC 73, and subsequently brought a s. 86 application at the invitation of the OPP.  That application was the subject of this latest decision. Continue reading “Thieving soli out of jail cops Fidelity Fund’s Sentencing Act compo application”

Self-incrimination certificates

Further update, 30 August 2017: Elliott J refused an application for a s. 128 certificate made by a plaintiff who sought it in respect of certain paragraphs of a witness statement he had voluntarily filed: De Lutis v De Lutis [2017] VSC 505.  His Honour considered the Court of Appeal’s decision in Clayton Utz (a firm) v Dale (2015) 47 VR 48 which in turn had considered the NSWCA’s decision in Song v Ying (2010) 79 NSWLR 442, both cases which post-date what is written below.

Update, 4 December 2009: A single judge of the NSW Supreme Court, Justice Julie Ward (NSW’s equivalent of Victoria’s Justice Kyrou, having been appointed from the ranks of solicitors last year), declined to follow the decision discussed below, Sheikholeslami v Tolcher [2009] NSWSC 920.  Twelve thousand words is a pretty good effort for an evidentiary ruling.  In Ying v Song [2009] NSWC 1344, her Honour concluded:

‘I am unable to conclude that, on its proper construction, s 128 is enlivened in the present circumstances. Someone who chooses to adduce incriminating evidence (albeit because he or she feels forced to make such a disclosure to defend a claim made against him or her) is not in any real sense “unwilling” or averse to doing so. At common law such a person would not have been able to invoke the privilege against self-incrimination unless under a legal compulsion to give such evidence and I do not read s 128(1) as introducing a right to claim privilege which otherwise would not have existed.’

See also Einstein J in Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354 at [188]ff.  This passage from Ying v Song also seems worthy of squirrelling away for future reference:

‘There might be an argument that, even if a certificate were given to protect Mr Song from the consequences of giving evidence by reading his affidavits in the present case, that certificate would not protect him from the consequences of having prepared and disseminated those documents in the first place (see generally, Brebner v Perry [1961] SASR 177 per Mayo J and BTR Engineering (Australia) (Formerly Borg-Warner Australia Limited) v Patterson (1990) 20 NSWLR 724 at 729 per Giles J). There might also be an argument that, having prepared and sworn documents (ie the affidavits), which have been filed and served, containing admissions which could be tendered against him in any criminal proceedings, Mr Song has waived, for the purposes of these proceedings, any privilege in relation to matters attested to in those affidavits or would be placed in no greater jeopardy of prosecution by reading those affidavits in the present proceedings and swearing (for a second time) to their accuracy (BTR Engineering at 730 per Giles J; Microsoft Corp at 381 [41] per Lindgren J; R v Bikic at [15] per Giles JA). However, as these arguments were not raised in argument before me and as I am otherwise satisfied that a certificate cannot be given in the present circumstance, it is not necessary for me to decide them.’

Original post: Section 128(7) of the Evidence Act, 1995 (Cth.) says:

‘In any proceeding in an Australian court: (a) evidence provided by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person’.

A pretty useful certificate.  Victorian practitioners in the Federal Court, Federal Magistrates’ Court, and Family Court should already be familiar with the section.  Victoria’s Evidence Act, 2008, which commences on 1 January 2010 (thankfully after I have spent a week doing Advanced Evidence at Melbourne University with Professor Palmer), has a similar s. 128.

Pursuant to s. 132, courts have an obligation to warn parties and witnesses who they think might be in need of a certificate of their availability.

Typically, these certificates are granted when a witness objects to giving evidence, or answering certain questions, on the basis that to do so would be liable to incriminate them, or expose them to a civil penalty such as a fine or the suspension of a practising certificate.  Sub-section (1) says:

‘This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness (a) has committed an offence …’.

A recent case, Sheikholeslami v Tolcher [2009] NSWSC 920, makes clear that on the present state of the law, a party or witness may apply for such a certificate even where what would be liable to incriminate him or her is evidence which he or she wishes to adduce in favour of their own case — the plaintiff’s affidavit evidence, a counterclaimant’s witness’s answers in re-examination.  Justice Rein doubted the correctness of this interpretation of ‘objects to giving evidence’, but said by reference to Ferrall v Blyton [2000] FCA 1442; (2000) 27 Fam LR 178, Ollis v Melissari [2005] NSWSC 1016, and Chao v Chao [2008] NSWSC 584 that he was more or less bound to accept it.

Just how useful the section might be is exemplified by the facts and outcome of Ferrall v Blyton.  As described by Justice Rein in Sheikholeslami at [8]: Continue reading “Self-incrimination certificates”

Criminal records

I have defended more than one lawyer whose client said the lawyer had failed to advise him properly as to the consequences of a guilty plea.  There are many more gradations of disposition of criminal prosecutions than I had realised, and ‘without conviction’ does not mean that society forgets the transgression ever after for all purposes.  I seem to recall that even pending charges appeared on the Police’s LEAP database, which generates criminal record checks.  Victoria has no spent convictions legislation, unlike the other states and territories other than South Australia, but the situation is not quite so simple as that statement makes it sound, since there are certain practical non-legislative impediments to obtaining criminal record checks which go back too far.  Here is a link to a Melbourne University Law Review article which seems to contain a wealth of up to date scholarship on the consequences of various dispositions of criminal proceedings.  The authors are Brownyn Naylor, Associate Professor Moira Paterson, and Professor Marilyn Pittard.

Offences created by the Legal Profession Act, 2004

Note: I drafted this post last financial year.  Since then, the value of a penalty unit increased today by about 3%, to $116.82, with the result that the dollar figures referred to below will be commensurately too low.  See the details at Quis Custodiet Ipsos Custodes.

Original post: I acted for a fellow whom the Law Institute as delegate of the Legal Services Board was purporting to investigate, and noticed for the first time what a rich repository of crimes is the Legal Profession Act, 2004. Two are punishable by imprisonment of up to 5 years or more: s. 3.3.21(1) (having or causing a trust account deficiency or failing to pay trust money) and s. 5.5.15 (interfering with property to defeat a receivership of a law practice). A third, s. 2.2.2(1) (unqualified practice) is punishable by up to 2 years’ imprisonment respectively. Eight are punishable by fines of up to about $27,000, about 25 by fines of up to about $13,500, about 57 by fines of up to about $7,000, and another 14 by fines of between up to about $500 and about $2,500. That’s over 100 crimes.  As far as I know, the only conviction is likely to have been under s. 3.3.21.

All of the offences punishable only by fines are summary offences: 600 penalty units (a fine of about $68,000) and imprisonment for up to 5 years being the level of seriousness which brings offences into the indictable category: see s. 112 read with s. 109 of the Sentencing Act, 1991.  So s. 3.3.21(1) (having or causing a trust account deficiency or failing to pay trust money) and 5.5.15 (interfering with property to defeat a receivership of a law practice) appear to be the only indictable offences created by the Act.  They may be prosecuted at any time, while all those punishable by fines, and unqualified practice, are summary offences which may generally be prosecuted only within 12 months after the allegedly criminal conduct occurred, by virtue of s. 26(4) of the Magistrates’ Court Act.  Do not allow an investigator under the Legal Profession Act, 2004 to investigate a summary offence if the conduct allegedly occurred more than a year beforehand!  (Whether the Legal Services Commissioner may entertain a disciplinary complaint more than a year after the relevant conduct is a more difficult question. See this post.)

I really wonder about the social utility of having all those crimes there. Continue reading “Offences created by the Legal Profession Act, 2004”

VCAT explores definition of professional misconduct at common law unconnected with legal practice

In Legal Services Commissioner v RAP [2009] VCAT 1200, the Bureau failed to establish a charge of professional misconduct at common law against a solicitor in respect of conduct which occurred otherwise than in the course of, and unconnected with, legal practice.  (Another charge, not the subject of this post, succeeded.) The allegation was that he:

‘deliberately misled a person with whom he had entered into a commercial transaction, thereby behaving in a manner that would reasonably be regarded as disgraceful or dishonourable by fellow practitioners of good repute and competency’.

The solicitor had negotiated in late 2005 with a car dealer for the purchase of a $1.4 million [sic.] car. Continue reading “VCAT explores definition of professional misconduct at common law unconnected with legal practice”

Sex offence doctor’s VCAT success stayed pending appeal

The Herald Sun has been active recently with front page excoriation of VCAT’s professional regulatory review jurisdiction for letting loose on the public again those they have described in unusually large letters as ‘sex fiends’ and ‘insane killers‘.  The two decisions are SL v Medical Practitioners Board of Victoria [2008] VCAT 2077, a decision of Judge Ross’s tribunal, and XJF v Director of Public Transport [2008] VCAT 2303, a decision of Deputy President Macnamara.  Given that the psychiatric evidence about the taxi driver was ’emphatically favourable’, the homicide occurred 18 years ago, and the taxi driver, whose son has leukemia and needs flexible work, has led an apparently blameless and psychiatrically acceptable life since, the Hun was a bit harsh. It surely cannot be right to call a man who committed a homicide two decades ago in the grip of a psychosis from which he has recovered an ‘insane killer’ in such a way as to refer to the present.

The taxi driver decision was reversed legislatively. The Medical Practitioners Board appealed the doctor’s success in VCAT.  Justices of Appeal Redlich and Weinberg granted an unusual stay of VCAT’s decision: Medical Practitioners Board of Victoria v SL [2008] VSCA 264. The appeal ultimately failed: [2009] VSCA 109.

Continue reading “Sex offence doctor’s VCAT success stayed pending appeal”

Gambling addiction

Trust monies tempt gamblers.  Sometimes solicitors succumb.  Consider R v. Gabriel W [2006] VSC 397, where $1 million disappeared from a solicitor’s trust account. Justice Teague locked him up, and said in the process:

’16 I have read closely the reports of two psychologists who have examined you. They are Mr Beaton who saw you in 1998, and Mr Newton who saw you in 2006. You told Mr Beaton that you knew that you had to permanently stop the gambling. You told Mr Newton that your gambling did stop in 2001. You also told Mr Newton that all your offences arose out of gambling. You gambled away money belonging to others. More of such money was paid out to try to extricate yourself from the plight in which the gambling had left you. Your addiction to gambling does help to explain why you so wantonly and brazenly disregarded the rights of your clients and of the other victims whom you misled and deceived. It cannot be seen to excuse what you did. At most it can be seen to mildly reduce the importance of the element of general deterrence.’

‘Quis custodiet ipsos custodes?’, the excellent new Melbourne law blog about the criminal law, has a post about R v Grossi [2008] VSCA 51, in which Justice of Appeal Robert Redlich told us what to make of gambling addiction as a sentencing consideration.  I will not reproduce the post — go read it yourself — but I will share with you his Honour’s lowdown (not great news for gambler crims): Continue reading “Gambling addiction”

Statutory powers of compulsion to be invoked reasonably

Justice Pagone considered the Commissioner of Taxation’s invocation of a power to compel the production of documents and information (s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth)). In this case, the subject of the compulsion was the Law Institute, more used to flinging such powers around itself.  Legal regulators not infrequently list poorly formulated allegations drafted by angry laypeople and then requiring ‘a full written response’ from lawyers.   Sometimes, requiring a ‘full written response’ is specifically contemplated by statute (e.g. s. 4.4.11(1)(a) of the Legal Profession Act, 2004, which is about investigating disciplinary complaints) but sometimes it is not (e.g. s. 7.2.7 of the same Act, which relates to investigations of offences against the Act).  If the response is not ‘full’ in the way the regulators think about ‘fullness’, the respondents risk being convicted of the crime of non-cooperation (seriously: see s. 7.2.7(1)).  His Honour cautioned regulators and said they must use such powers ‘wisely and responsibly’: Continue reading “Statutory powers of compulsion to be invoked reasonably”

Free Victorian legal commentary

I like lawyers who state the law on the internet for free.  Australia is good at this in the sense of making raw materials available via Austlii.  What there is very little of is commentary, and exposition of the law. I have previously sung the praises of John Stratton’s NSW treasure trove of material about criminal law in NSW. And there is the extraordinary resource that is Jeremy Gans’s commentary on the Victorian Human Rights Charter.  Recently, though, I have come across two more Victorian lawyers who are stating the law for free on the web, Don Just and Julie Clarke (about whom, more below). And there is a new quality law blog in town: Quis Custodiet Ipsos Custodes, described by its anonymous author as ‘Some potted thoughts and meanderings about law, legal developments and summary prosecutions in Victoria.’  It has a link today to the Judicial College of Victoria’s Criminal Proceedings Manual, a work in progress in anticipation of the commencement of the revolutionary Criminal Procedure Act, 2009.

Continue reading “Free Victorian legal commentary”

Criminal prosecutions (-not) by disciplinary authorities

Updates, 13 June and 24 October 2012: See now Hagipantelis v Legal Services Commissioner of New South Wales [2010] NSWCA 79 from [23] and Legal Profession Complaints Committee v Masten [2010] WASAT 47.

Original post: The Building Practitioners Board is the Bureau de Spank for builders. It initiated an inquiry into whether a builder had breached a provision of the Building Act, 1993 (Vic.).  The provision prohibited builders from building without a permit.  Breach is a crime, but the Board is not entitled to prosecute offences under the Act, for which there is a limitation period of 3 years from the end of the building.  The Builder applied for judicial review of the decision to hold the inquiry, and the outcome is reported as Rodwell v Building Practitioners Board [2009] VCS 146.  He said that a disciplinary hearing into whether he had committed a crime was ‘a proceeding for an offence’.  If he was right, then the limitation period, which was attached to that concept, had already run, and the Board did not have the power to hold the inquiry.  Justice Hollingworth held against the builder. Continue reading “Criminal prosecutions (-not) by disciplinary authorities”

6 months jail for lawyer thief ‘remarkably merciful’

Update, 8 May 2009: The Westralians have been listening to Justice of Appeal Nettle.  Someone over there has thrown a 41 year old Margaret River solicitor into the slammer for almost 8, minimum of nearly 5.  He stole almost $900,000 from an elderly man who lived alone on a farm.

Original post: A solicitor was convicted of forgery and given an enforced break from practice of a year.  Years later, he stole $100,000 in his trust account from a client.  He paid debts and took his family on holidays to Greece and Bali.  He confessed as soon as a routine audit of his trust account revealed a discrepancy. He handed in his practising certificate to the Legal Services Board’s delegate, and a receiver was appointed to his practice which was sold.  It sounds like the receiver might have been a bit sloppy, because the solicitor remained a signatory to a client account.

A week after being interviewed about the theft of $100,000, (‘amazingly’, as the trial judge put it) he stole another $43,000 from another client which he used to stave off bankruptcy at the suit of the Tax Man.  When interviewed about that theft, he lied to the police, asserting that he had the client’s permission to withdraw the money.

The trial judge locked the solicitor up for 6 months and suspended an additional year of imprisonment.  The DPP appealed against what it said was the manifestly inadequate sentence.  Justice of Appeal Nettle, who warned last year on the need for condign punishment to express society’s special  revulsion at lawyers’ theft from their trust accounts, was again party to a judgment in the matter of DPP v George B [2009] VSCA 29 making the same point, and would have increased the sentence on appeal but for certain factors peculiar to this offender: Continue reading “6 months jail for lawyer thief ‘remarkably merciful’”

Nettle JA on sentencing thieving lawyers

R v Maurice B [2008] VSC 254 records the sentencing remarks of Nettle JA apparently sitting in the trial division following a guilty plea by a solicitor who stole a quarter of a million dollars. The solicitor argued the state of his mind was relevant in two ways. First, he said his impaired mental functioning short of psychiatric illness at the time of the offending diminished his moral culpability. Secondly, what appears to have degenerated into a psychiatric illness (depression, anxiety disorder, panic attacks requiring anti-depressants) was a relevant consideration in determining an appropriate sentence.

Based on the psychiatric evidence, Justice of Appeal Nettle gave little truck indeed to the first claim, but did take the mental state of the solicitor by the time he had been through the Legal Profession Tribunal and the criminal charges into account in fashioning an appropriate sentence. In fact, along with the solicitor’s age (67) his mental condition at the time of sentencing was the thing which kept him out of the clink. His Honour conducted a survey of a number of Victorian cases involving thieving solicitors who received suspended sentences of imprisonment and remarked:

‘I doubt that the sentences imposed in at least some of those cases gave due weight to the overriding importance of general deterrence in matters of this kind. For, even allowing that a suspended sentence is a sentence of imprisonment for all purposes, it is manifestly less burdensome than an immediate term of imprisonment. It is also to be remembered that the maximum sentence for the offence of having a deficiency in a trust account has more than doubled since the Legal Professional Practice Act 1958 was first replaced by the Legal Practice Act 1996, from seven years to 15 years’ imprisonment. These days, the idea of a fully suspended sentence in a case of solicitor defalcation will seldom sit easily with the imperative that solicitors who act in fraudulent breach of trust account obligations “must … inevitably suffer severe punishment”.’

The whole of the relevant passage is: Continue reading “Nettle JA on sentencing thieving lawyers”