Latest word on burden of proof in professional discipline ‘prosecutions’

In this post, I just reproduce what Deputy President Dwyer said recently about the burden of proof, right to silence, and inferences which may be drawn from the fact of the exercise by a solicitor of the right to silence. He said it in the context of a hard-fought hearing into the conduct of Kylie’s one-time lawyer, Michael Brereton, reported on in the previous post. Interestingly, the Tribunal was not critical of the solicitor’s decision not to give evidence, but asserted that it was free to draw adverse inferences against the solicitor under the rule in Jones v Dunkel, and did so with gusto, drawing support from Woods v Legal Ombudsman [2004] VSCA 247, and Golem v Transport Accident Commission [No2] [2002] VCAT 736.)

What Mr Dwyer said was:

Standard of Proof

14. The standard of proof in matters of this nature is generally as set out in Briginshaw v Briginshaw[14] – that is, on the balance of probabilities bearing in mind the seriousness of the allegation. There, the Court had stated;

…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.
…
Except upon criminal issues … , it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature or consequence of the fact or facts to be proved. The seriousness of an allegation, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

15. We agree with Mr Murley that the seriousness of the allegations against Brereton is such that a relatively high degree of satisfaction is required on our part. Equally, we agree with Ms Judd that:

* Disciplinary proceedings are not criminal proceedings but are proceedings sui generis concerned with the protection of the public. As such, they cannot necessarily be determined on the same basis as adversarial proceedings[15]; and

* Judicial statements to the effect that clear, cogent or strict proof is necessary where fraud is alleged, should not be understood as directed to the standard of proof[16]. The comments in Briginshaw do not alter the position that the civil standard of proof ‘on the balance of probabilities’ applies.

16. Ms Judd also referred us in her written submissions to Re Hodgekiss[17]. In that case, the court had stated that although the seriousness of a charge of professional misconduct did not elevate it to a level where it had to be proved beyond reasonable doubt, the tribunal must be ‘comfortably or confidently satisfied’ that the charge has been made out.

17. In considering the evidence to this standard, we note for the record that the Tribunal has been constituted with two lawyers, both of whom have held full solicitor practising certificates, and an accountant/auditor.

Application of the rule in Jones v Dunkel

18. We agree with the Legal Services Commissioner that the rule in Jones v Dunkel[18] can apply in a proceeding of this nature, whereby an unfavourable inference of fact can be drawn where a party without explanation fails to call as a witness a person that party might reasonably be expected to call who could have spoken to, or explained, that fact.

19. Although the Tribunal is not strictly bound by the rules of evidence and practices of a court, we agree that it is open to us to apply the rule in Jones v Dunkel in this case, and that it is appropriate to do so in a proceeding of this nature[19]. This does not of course mean that either Mr Brereton personally, or other witnesses he might potentially call, have a ‘duty’ to come forward and give evidence. The respondent is not obliged to help the Legal Services Commissioner prove its case, and is entitled to put the applicant to its proofs save for risking the possibility that a Jones v Dunkel inference may be drawn in relation to some facts.

20. Mr Murley did not seek to materially contest that view, conceding that the rule in Jones v Dunkel should apply in this Tribunal, but contending that exceptional circumstances existed in this matter that limited its application. In terms of the component of the rule relating to a failure to call a witness ‘without explanation’, we do not accept that Mr Brereton’s business dealings in the United States provide a satisfactory explanation for his inability to attend the hearing, as alluded to by his counsel. The hearing date was set several months in advance, as part of a timetable resolved through a directions hearing process and in consultation with his lawyers.

21. We also do not accept as a satisfactory explanation, the indication by Mr Murley that he was unable to call two of Brereton’s former office staff (Ms Moran and Ms Price) on the basis that they did not wish to participate or had received separate legal advice not to voluntarily participate given the ACC investigation into certain of Brereton’s activities and the coercive powers of that body. As we have indicated, we do not consider that the ACC investigation is directly relevant to our consideration and determination of the disciplinary charges before us[20], and the disciplinary charges appear to cover a range of transactions well beyond what we have been told by Brereton’s lawyers is the ambit of that investigation.