The Crown entered a nolle prosequi on Tuesday on the charges of giving false evidence against Melbourne’s best known female criminal lawyer, Z G-W. In other words, they dropped the charges before trial for want of a reasonable prospect of conviction. The key witness was unable to remember crucial evidence which the Crown obviously figured he would remember. The most interesting fact to emerge from this latest development in the saga is that one of the bits of allegedly false evidence was that spirits had told the solicitor the details of Lewis Caine’s murder. She said that spirits were talking to her. It will be interesting to see what the Legal Practice Board and VCAT make of all this. The solicitor’s VCAT proceeding is a merits review under the VCAT Act, 1998 of the Board’s decision not to renew the solicitor’s practising certificate. Parties to such proceedings may not refuse to answer questions on the basis of the privilege against self-incrimination: ss. 80(3), 105 of the VCAT Act, 1998 which are reproduced below.
I wonder whether anything would stop the Board from calling the solicitor as its own witness and just asking her whether she lied on oath, or, if she were to give evidence, cross-examining her about this. If she did, she would presumably be obliged to say so honestly, though her answers could not be used to prosecute her again, only to inform VCAT in its decision about whether she is a fit and proper person to hold a practising certifiate. In ascertaining whether a person is of good fame and character, or otherwise a fit and proper person to hold a practising certificate, the stipes are entitled to take into account not only criminal convictions but criminal charges, even where the charge resulted in an acquittal: Frugtniet v Board of Examiners [2002] VSC 140, a decision of Justice Pagone. At least that is so at the moment of application for admission which I suspect poses a greater hurdle for applicants than is faced by applicants for the renewal of a practising certificate. Not surprisingly, however, any inferences to be drawn from facts of an alleged crime where the charge did not result in a conviction are required to be drawn only after a full and proper investigation: Frugtniet v Board of Examiners [2005] VSC 332 at [20] to [22], a decision of Justice Gillard. His Honour said:
’20 The question does arise, what effect should be given to the fact that an applicant for admission has been charged with criminal offences and acquitted. The appellant’s counsel submitted that full effect must be given to the acquittal and no adverse inference should be drawn against the appellant by reason of the fact that he has been charged with criminal offences concerning dishonesty. Counsel for the Board referred to the text The Victorian Solicitor by Heymanson at page 235, where the author discussed the question in the context of striking a practitioner off the roll. It was submitted that the same principles apply to an application for admission. The learned author notes that it is the offence with which the Court is concerned and not whether the practitioner has been convicted or acquitted. In the case of Re Crick [(1907) 7 SR (NSW) 576], a practitioner who was the Minister of the Crown was found by a Royal Commission to have accepted bribes. He was twice brought to trial for the criminal offence but on each occasion the jury disagreed and the Crown ultimately entered a nolle prosequi. He was struck off the roll for misconduct. In an earlier case of Re Salwey [(1894) 15 LR (NSW) 147], a solicitor was found to have committed fraud in a civil proceeding but was acquitted in a criminal court but nevertheless was struck off the roll for misconduct. A close reading of these cases reveals that the alleged misconduct of the practitioner was investigated and a decision was made by a responsible authority that the practitioner in question was guilty of misconduct. Hence, the mere fact of acquittal was not to the point. In those cases there was ample evidence before the Court justifying the removal from the roll.
21 Mr Brett QC also referred to the Full Court decision of the Supreme Court of the ACT in Re Del Castillo (1998) 136 ACTR 1. The applicant had stood trial for murder and was acquitted. He revealed that fact to an admission board. The Full Court said:
“It is true that the bare facts that a person has been tried for a charge, even a very serious one, and acquitted do not logically tend to the detriment of that person’s character nor of his or her fame. But experience shows that matters are often otherwise. The acquittal may be entirely upon unmeritorious grounds or it may occur in circumstances which nevertheless reveal untoward collateral behaviour on the part of the accused. Particularly, but not only, in cases where serious harm has been wholly or in part caused by an accused person, the court has evidently accepted that there was a reasonable chance that the circumstances were exculpatory (as in the present case) it is likely that, logically or not, some people will consider the fame and/or character of the accused to be defective.”
22 In my opinion the cases establish that an acquittal of a person applying for admission to practise of itself must be given full effect to. However, that would not preclude the Admission Board from fully investigating and considering all the circumstances which may lead to a decision that the applicant is not a fit and proper person. Absent a full and proper investigation in my opinion it is not open to an admission Board to draw any adverse inference against an applicant because he or she has been charged with a criminal offence and is subsequently acquitted. Of course, each case must be considered in relation to its particular circumstances.’
Now, those sections from the VCAT Act, 1998:
Section 80(3):
‘The Tribunal [i.e. VCAT] may give directions… requiring a party to produce a document or provide information… despite any rule of law relating to privilege or the public interest in relation to the production of documents.’
Section 105:
‘(1) A person is not excused from answering a question or producing a document in a proceeding on the ground that the answer or document might tend to incriminate the person.
(2) If the person claims, before answering a question or producing a document, that the answer or document might tend to incriminate them, the answer or document is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.’
