Admissibility of material relevant to penalty at the liability stage

In my experience, the Legal Services Commissioner generally assumes that material relevant to penalty is inadmissible at the liability stage.  So, for example, the Commissioner applied recently for leave to re-cross-examine a practitioner in a disciplinary hearing, after the close of evidence, in order to adduce evidence relevant to penalty by reference to ‘disciplinary priors’, even though the practitioner did not propose to give further evidence.

I knew there was some case which said that under legislation cognate with the Legal Profession Act 2004 there is, in law, just one hearing, but it is one of those many authorities which, despite this blog, got away from me, never to be found again.  But now I have stumbled across it again, and here it is, from Puryer v Legal Services Commissioner [2012] QCA 300, a unanimous decision:

‘[33] The written submissions filed by the Legal Services Commissioner on 11 May 2011 dealt with penalty as well as the charges and gave details of findings of professional misconduct against the appellant on two earlier occasions. It was submitted that the only appropriate penalty was the removal of the appellant’s name from the roll. The appellant, in response, said that there was no evidence of his previous breaches; that his antecedents were only relevant and should only be placed before the tribunal if an adverse finding were made; and that the paragraphs dealing with penalty were prejudicial and should be struck out.

[34] In oral submissions, the appellant’s counsel conceded that he could not point to anything in the tribunal’s reasons which showed that it had used the information about the appellant’s previous breaches in considering whether the charges were made out. Indeed he rejected any suggestion that the deliberations of the judicial member of the tribunal could have been affected by the material. He could not point to any prejudice to his client and did not put his submission any higher than that it would be good practice, where the tribunal consisted of lay members as well as a judicial member, to separate submissions about penalty from those about liability.

[35] Section 456(1) of the Legal Profession Act provides as follows:

456 Decisions of tribunal about an Australian legal practitioner

(1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.”

That section appears to envisage that the tribunal may make its order upon the necessary satisfaction without necessarily conducting any further hearing. Counsel for the appellant very properly drew the court’s attention to the fact that in Madden’s case the notion of a two-step proceeding was rejected; instead, it was said that s 456 “contemplate[d] a hearing followed by both the findings of any proved misconduct and the imposition of the appropriate penalty for that misconduct”.[12] Generally speaking, it is not a denial of natural justice for a disciplinary body to receive submissions on both charge and penalty at the same time, provided the person charged has been given the opportunity to address on penalty should the question of guilt be resolved against him.[13] Here, the appellant had the opportunity – although he did not take it – to respond to the Legal Services Commissioner’s submissions on penalty.

[36] The Queensland Civil and Administrative Tribunal is not bound by the rules of evidence or the practice or procedures of courts of record; it may inform itself in any way it considers appropriate; and it is required to act with as little formality and technicality with as much speed as the requirements of the Act in consideration of the matters before it permit.[14] Nonetheless, it must act on probative evidence, and there was no suggestion here that the previous breaches were relevant to the proof of the charges as, for example, similar fact evidence. But as counsel for the appellant conceded, there is no basis for supposing that the reference in the submissions to prior breaches affected the tribunal’s deliberations on whether the appellant was guilty of the charges. He did not contend, in my view correctly, that what was done rose to the level of an abuse of process.

[37] However, as counsel for the appellant also submitted, the practice of putting in submissions on penalty in the same document as submissions on liability is generally undesirable. Apart from anything else, until it is known what charges have been found proved it will usually be difficult to make useful submissions; and, if adverse material in relation to antecedents is not put forward as probative on liability, the risk exists of its having a prejudicial effect. One would think, in general, that unless there were some agreement to adopt a different approach, the better course would be to give each party an opportunity to make submissions once the findings on the charges were made.’

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