Prosecutors’ duties in professional discipline cases

There is an interesting article by Ian Wheatley at (2008) 16 Journal of Law and Medicine 193.  Titled ‘The Criminalisation of Professional Misconduct Under the Health Professions Registration Act 2005 (Vic): How is a Fine of $50,000 Not Punitive?’. It compares the rights of alleged criminals and the maximum sentences in criminal law, with the rights of doctors alleged in disciplinary proceedings to have committed disciplinary wrongs of a similar degree of seriousness, and pours some much-needed acid on the hymn sung by so many Bureaux de Spank that the proceedings are ‘purely protective of the public’ and involve no element of punishment.  But what protections actually exist for respondents in professional disciplinary proceedings?  It is the purpose of this post to examine three of them.

First, I have posted before about the application of the privilege against penalties to disciplinary proceedings, and about what Justice Finkelstein said in Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620:

‘I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused.’

Secondly, in addition to this principle, many bodies and statutory officers charged with prosecuting professionals are governed by the governments’ model litigant rules.  Victoria’s Legal Services Commissioner is a model litigant, and so is governed by these guidelines (which include an obligation to avoid litigation where possible, to keep the costs of litigation as low as possible, and not to take advantage of respondents to disciplinary charges who lack the resources to litigate the disciplinary claim).

But where a barrister is involved in the prosecution, it is, at least in Victoria, surely the application of the conduct rules in criminal proceedings which comes closest to requiring the kind of conduct which Justice Finkelstein considers to be appropriate.  And this is the third thing.  The Victorian Bar’s practice rules define ‘criminal proceedings’ as follows:

‘includes disciplinary proceedings, in which context other expressions appropriate to criminal proceedings include corresponding meanings appropriate to disciplinary proceedings and in particular “a serious criminal offence” includes a disciplinary shortcoming which, if proved, involves the serious possibility of suspension or deregistration (or the equivalent).’

Part V of the rules is specifies particular duties of counsel in criminal matters.  They include rules requiring the counsel:

  • To call all witnesses whose testimony is not plainly unreliable and whose evidence would be admissible in relation to a matter in controversy and necessary for the presentation of the whole picture (unless the respondent consents to their not being called). (Rule 139)
  • To disclose to the respondent as soon as is practicable all material available to the counsel acting as prosecutor or which the prosecutor becomes aware of which could constitute evidence relevant to whether the respondent is guilty or not of professional misconduct or unsatisfactory professional conduct. (Rule 141)
  • To inform the respondent of any grounds the prosecutor has for believing that evidence was obtained unlawfully or improperly.  (Rule 143)
  • Not to ask questions of the respondent except in the presence of his or her lawyer. (Rule 144)

Some of the obligations on defence counsel also tend to advance the interests of professionals facing disciplinary proceedings:

  • ‘Notwithstanding a barrister’s duty to the court to conduct proceedings as expeditiously as the interests of justice require, a barrister appearing for the accused is under no duty, other than by compulsion of law, to disclose to the court or to the prosecution the nature of the defence case.’ (Rule 153)
  • ‘A barrister appearing for the accused should not make admissions of fact or consent to the absence of prosecution witnesses without first obtaining instructions.’ (Rule 153)
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