Update, August 2006: the end of the saga is to reported at this post.
Original post: In Victorian Bar v DAP (Nos. 1 to 4) (Bowman, Southall QC, Harper) [2006] VCAT 294, the Bar got itself into a tangle in the prosecution of a barrister for what sounds like the relatively minor offence of taking monies on account of fees in advance without holding a trust account. The complainant refused to give evidence and VCAT refused to arrest him. But it is not only an entertaining series of decisions: Judge Bowman took a firm line in relation to prosecutorial fairness.
It seems the Bar had three sources of evidence: a response from the barrister to a letter which included a demand for information under s. 149 of the Legal Practice Act, 1996, written documents of the complainant and notes by investigators of what the complainant said to them, and the oral evidence of the complainant. This was their predicament:
“Currently, the statement is essential to the Bar’s case …. It was admitted by [counsel representing the Bar], that the statement presently represents the entirety of the evidence …. [The complainant], for reasons which are not entirely clear and which need not concern us, no longer seeks compensation from [the barrister] and does not wish to give evidence. Indeed, he failed to answer a subpoena to attend this hearing. However, after he was called and did not appear, the Bar did not press for any further step to be taken in this regard. Thus, as stated, the statement presently represents the sole piece of evidence against [the barrister], and [the Bar’s counsel] freely admitted that, if it was ruled to be inadmissible, he would be seeking an opportunity to take instructions and consider the Bar’s position.”
In Ruling no. 1, the Full Tribunal ruled that the barrister’s response was inadmissible. In publishing the complaint to the barrister, the Bar had offered the opportunity to the barrister to make a confidential submission not for publication to the complainant, an extraordinary practice engaged in by both the Law Institute and the Bar for many years, but given up if I am not mistaken, by the former before the latter. The Full Tribunal said of this practice:
“in adopting an additional procedure outside that provided in the Act, the Bar seemed to be inviting problems. That is particularly so when that additional procedure involves the receipt of confidential communications. The use that can be made of such communications becomes a concern. Immediately possible questions of fairness loom on the horizon. We understand from [the Bar’s counsel] that it is a practice that is no longer employed. We hope that this is so.”
The barrister had failed over a lengthy period to give a formal response as required by s. 149. He had indicated in his one substantive email answering the allegations made against him that the whole of the response was to be confidential. The Full Tribunal concluded:
“34 Given that the statement is not an explanation pursuant to s. 149, the next question is whether it should be admitted into evidence and placed before us. This in turn involves the question of fairness. There exist many decisions emphasising the need for fairness on the part of courts and tribunals. Some of these were referred to in the recent judgment of Habersberger J in Dona Homes (Vic) Pty Ltd v Stevens [2005] VSC 499. Many more decisions, and particularly in relation to Tribunals, are to be found in “Pizer’s Annotated VCAT Act”, 2nd Edition, at paragraph [3740]. Many authorities refer to and emphasise procedural fairness as opposed to or in addition to a fair or just outcome. Apart from the general obligations of fairness which exist for courts and tribunals, s.407 of the Act specifically requires this.
35 At first blush, there is some appeal in the argument that the statement should be admitted into evidence because [the barrister] forwarded it to the Bar, and presumably wanted it to be taken into account and considered. The fact that the statement was described as being confidential as against [the complainant] and his solicitors does not mean that it is confidential against the world. [The barrister] provided it and wanted it to be used by the Bar in consideration of the complaint. Therefore the Bar should be able to place it before the Tribunal.
36 As stated, this argument has some attraction. However, bearing in mind the requirement of fairness and also bearing in mind that this is a disciplinary hearing with the potential of there being an outcome affecting [the barrister’s] livelihood, there seems to us to be a flaw in the argument. The vice is in the Bar’s letter of 2nd August 2004, and in the invitation to [the barrister] to provide the confidential information. In particular, the wording concerning the proposed use which could be made of a confidential response is significant. That wording reads ‘whilst confidential communication can be of assistance in conducting investigations, it cannot be taken as a formal response …’. This highlights the two approaches. There is the ‘formal response’ approach which is in accordance with the statutory provisions. There is the ‘confidential communication’ approach, which lies outside the statutory provisions, and which purportedly is for the purpose of assisting the Bar in conducting investigations. There is no suggestion that a response pursuant to this latter approach can or will be treated in the same way as a ‘formal response’, or can and will be used in evidence. The whole impression created is that it is an informal, confidential communication for the purpose of possibly assisting the conduct of an investigation, and that it stands in contrast to the formal response required by the Act.
37 [The barrister] asserts that it was the invitation to provide the informal and confidential communication which he accepted. Whilst he may not have used the precise wording referred to in the Bar’s letter, the preamble to the statement seems to confirm this. In the circumstances as described above, and bearing in mind the wording of the Bar’s letter of 2nd August 2004, it would be unfair to [the barrister] to admit the statement into evidence and placed before us [sic.], or to permit the Bar to rely upon it.
… [the Bar] did not enforce its statutory right to an explanation before proceeding with this charge. Again, we appreciate that there may have been increasing frustration bred of inactivity on the part of [the barrister] and the passage of time. We also appreciate that, had [the witness] continued to co-operate, the Bar may have felt that it could make out its case without a s. 149 explanation. Be that as it may, the peril of proceeding with a charge before receipt of the explanation to which the Bar was entitled has been demonstrated.”
In Ruling no. 2 the Full Tribunal ruled, amongst other things, that there was no unfairness in the prosecution proceeding without the complainant giving evidence, saying:
“It is up to the Bar as to how it presents its case. If it fails to call someone who might arguably be a key witness, that is up to the Bar. If it then fails to make out its case, so be it. It is not for us to tell the Bar how to conduct its case. Obviously [the barrister], in submissions, can comment upon this failure. Such submission may relate to the adequacy or inadequacy of evidence, or arguably to a breach of the rule in Jones v Dunkel. We do not see why the proceeding should be terminated because the Bar has opted not to call the witness. We fail to see how the failure of the Bar to call an allegedly key witness against [the barrister] can be prejudicial to him.”
In Ruling no. 3, Judge Bowman declined to exercise his discretion under s. 134(2) of the VCAT Act, 1998 to have the police arrest the witness for failure to respond to the subpoena served on him to give evidence, saying:
“11 I am asked to direct that the police apprehend a man who claims to be absent on medical grounds – which has not been challenged – and who has not even been called to answer his subpoena since 27th February. He is a man concerning whose non-appearance the Bar specifically declined to take further steps on that day, and a man who [sic.] it made quite clear it did not intend to call as a witness. Out of the blue, and apparently as a result of submissions concerning the admissibility of evidence, it wants me to direct his apprehension.
13 … this application is disappointing and reflects poorly on the Bar. If it is a genuine application, it is misconceived. If it is a manoeuvre designed to deflect possible criticism because of its failure to call Anderson, it does the Bar very little credit.”
In Ruling no. 4, a letter from the complainant to the Bar was ruled admissible although clearly hearsay on the basis that the barrister had had the documents for a long time, there was nothing much to them, and they would be giving very little weight to them, but another document was ruled inadmissible, on this basis:
“The note … contains florid language used by [the complainant]. It refers in part to matters otherwise unsubstantiated and, in some instances, irrelevant to the issue before us. The whole impression given is of remarks made in anger or outrage. On balance, and again given that the maker of the oral statements is not to be called as a witness and will not be subject to cross-examination, we consider that the possible prejudice to [the barrister] and the unfairness of allowing the document to be placed before us is sufficient for us to exercise our discretion against admissibility.”
Eventually, the barrister was found guilty of the charge and had his practising certificate suspended for 6 months.
