Two new cases from NSW

Here’s a 37,000 word long judgment in a professional negligence case against a solicitor which began in early 2000: Rebenta Pty Ltd v Wise [2007] NSWSC 1332. It does not discuss many issues of law. The reason one might want to look at it is that it is one of those rare cases where a dispute about whether there was one ongoing retainer or several more discrete retainers of a solicitor. The solicitor won after a four and a half week trial.

In The Prothonotary of the Supreme Court of New South Wales v. Sukkar [2007] NSWCA 341, the NSW Court of Appeal engaged in a surprising degree of soul searching before deciding to strike an ecstasy importer cum solicitor off the roll of practitioners. The fact that he gave false evidence in his trial did not assist him. The decision is an interesting illustration of the distinction between a finding of want of good fame and character and a finding of professional misconduct where the conduct in question is unconnected with legal practice. The Court of Appeal’s decision in the criminal appeal is reported at Regina v Sukkar [2005] NSWCCA 54. The importation of 124 kilograms of ecstasy earnt the solicitor 14 years in jail. In relation to the appropriateness of a finding of misconduct where the conduct in question is unconnected with legal practice, Basten J said in separate reasons from the majority: Continue reading “Two new cases from NSW”

Former Marsdens partner struck off the roll of solicitors in NSW

Here’s a decision from the NSW Court of Appeal, apparently exercising original jurisdiction, in which a former partner of Marsdens in Campbellfield was struck off the roll by consent for receiving secret commissions of $180,000 amongst other things, including deceiving the investigation into that conduct: Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288. The analysis of whether the solicitor was a fit and proper person was as follows: Continue reading “Former Marsdens partner struck off the roll of solicitors in NSW”

Julian Burnside, his book and his take on the Peter Faris affair

Julian Burnside QC is one of 4 Victorians whom I know to have had Wikipedia entries as barristers. The others are Mark Dreyfus QC, Lex Lasry QC, and Peter Faris QC. (Are there any others?) Julian Burnside has become a writer, Mark Dreyfus a federal politician, and Lex Lasry a judge of the Supreme Court. All but Peter Faris were in Latham Chambers with me.

Now Julian Burnside has written a new book, Watching Brief. Here’s an extract published in The Age. I almost bought it in the bookshop today, but then I thought of all the other books I have to read, and I’d just bought The Legal Mystique (1982, Angus & Robertson) by Michael Sexton and Laurence Maher (‘drugs’ is not an entry in the index) to add to my collection of books about the legal profession. The collection’s coming along nicely since yet another legend of Latham Chambers, Jeff Sher, gave me a little manila-covered book by W.W. Boulton, B.A., Secretary to the General Council of the [English] Bar, published by Butterworths in London in 1971: Conduct and Ettiquette at the Bar. And a friend of mine has promised to permanently lend me Gifford’s Legal Profession; Law and Practice in Victoria. I figured I’d probably buy and read Andrew Fraser’s memoirs before Julian’s latest. But I might change my mind about that, because I imagine Fraser’s is the more interesting, but Burnside’s the better written. In fact, I suspect the writing in Burnside’s is to die for.

Because of the book, he’s on the media circuit. Here’s his interview with Monica Attard. His reference to a ‘marijuana cigarette’ brings to mind by far the most interesting contribution to the Peter Faris debate, which was the Law Institute’s President’s quip to the press that most barristers wouldn’t even know what cocaine is. But Monica, I’m not at all sure that the Bar is investigating whether Mr Faris is a fit and proper person to be a barrister; where did you get that from? Continue reading “Julian Burnside, his book and his take on the Peter Faris affair”

Leading, senior and respected solicitor convicted over $0.75M fraud suspended till 2013

In Legal Services Commissioner v. RDS [2007] VCAT 1835, a ‘leading, senior and respected member of the profession’ defrauded both his client and the revenue of three quarters of a million dollars.  He had been sentenced to 3 years’ imprisonment, suspended for 3 years, having pleaded guilty in the criminal court.  He cooperated with the authorities, voluntarily handed in his practising certificate, pleaded guilty to misconduct at common law in the charge brought in VCAT by the Legal Services Commissioner, and conceded through his counsel that a substantial period of suspension from practice was warranted. He paid the revenue the money after he was caught. His daughter was ill at the time of the offence. Apparently he has given a  lot of money to charity.  Much was made of this.  Perhaps too much; the sentencing remarks as hagiography form of literature sometimes makes me uneasy. Maybe society’s denunciation of this crime took place in the sentencing remarks of the judge in the criminal case, but there was little by way of denunciation in these reasons. Anyway, the solicitor’s practising certificate was suspended until mid-2013, justified by general deterrence since the solicitor was in Israel, contemplating relocation there and not intending to practise again. A Full Tribunal with Judge Bowman presiding said at [14]:

‘Whether or not [the solicitor] is likely to offend again, and we would be of the view that he is highly unlikely so to do, principles of general deterrence must be borne in mind. There is also the question of the damage that is done to the standing and reputation of the legal profession in the eyes of the public if someone who could be described as a leading, senior and experienced member of the profession engages in fraudulent activity of this kind.’

It seems this was a plea, that there was no contest and full cooperation. The hearing could not have gone longer than an hour or two. It is interesting then that the Commissioner was awarded costs of almost $6,000.

No-show attorney in Texas jailed by judge

A lawyer failed to show up for court one day. Then he appeared to explain: injured his ankle that morning. The judge said ‘Take him away’ and he went to jail, just like that. Now, for some reason, the judge is under investigation. They do everything bigger and better over there. Her Worship Pat O’Shane’s conduct, scolded by the NSW Court of Appeal, in citing a party for contempt and continuing to hear the trial of his matter, is but a pale imitation of the strong leadership shown by the Texans.

A fantastic criminal law web resource: John Stratton’s site

A public defender in NSW has created a fantastic resource for criminal lawyers: John Stratton’s Criminal Law Survival Kit.  A lot of work has gone into this.  It is in the tradition of Ross on Crime, the legendary alphabetically organised encyclopedia of criminal law in Victoria, except there are hyperlinks to most of the cases, which is obviously bloody marvellous, and it’s free, which is also pretty damn good. Speaking of Ross on Crime, next time you see a copy, grab the opportunity to read the chapter headed “Jazz”.

I have mentioned before the Judicial College of Victoria’s Sentencing Manual. That’s an extraordinary document, and there should be more of them. There is a Criminal Law wiki under enthusiastic development by Englishmen, though I can’t find the link for the moment.

Criminal law is parochial, but parts of Stratton’s site will be useful to criminal lawyers throughout Australia.  Here’s a bit to show you what it’s like: Continue reading “A fantastic criminal law web resource: John Stratton’s site”

Supreme Court enjoins Legal Practice Board’s solicitors from continuing to act

ZG-W v CCW (a firm) (2007) VSC 235 is the latest in the saga of the Legal Practice Board’s practising certificate cancellation of Melbourne’s best known female criminal lawyer. She has succeeded in having the Board’s lawyers enjoined from acting further for the Board on the relatively rare basis that it would bring the administration of justice into disrepute if they were permitted to continue to act. They obtained a transcript of an Australian Crime Commission examiner’s interrogation of the solicitor. The solicitor is charged with giving false evidence in that examination which is one of the reasons why the Board refused to renew her practising certificate. Justice Bell said at [20]:

‘The solicitor at the [Office of Public Prosecutions] refused [CCW’s] request because the plaintiff was contesting the allegations and the presumption of innocence applied to her. If I may say so, this is important advice that everybody should keep firmly in mind.’

Because of the invasive powers of compulsion exercised against the solicitor as examinee, the transcript was not permitted to be used otherwise than for the purposes of the examination, though an exception was made for the purposes of the charge of giving false evidence in the examination. The Legal Practice Board, through its lawyers, procured a copy of the transcript for use in the solicitor’s VCAT challenge to the Board’s refusal to renew her practising certificate. The story involves a baptism of fire for a newly admitted solicitor: Continue reading “Supreme Court enjoins Legal Practice Board’s solicitors from continuing to act”

So-called lawyer to the underworld fails in challenge to ticket non-renewal

Melbourne’s best known female criminal lawyer was convicted some time ago of contempt of court for refusing to answer questions on oath in a Supreme Court murder trial of her husband’s murderers: as I reported here. She has sought review of that decision in VCAT, and sought judicial review from the Supreme Court as well. That latter course failed today, partly because of the availability of her remedies in the VCAT proceedings, which may still result in the renewal of her practising certificate. Until that case is decided, she is entitled to keep practising. See The Age‘s article here, and Justice Kevin Bell’s judgment in ZGW v Legal Services Board [2007] VSC 225 here. It begins by sketching out the background issues and the questions for determination in the case:

‘1 The plaintiff, a young and intelligent solicitor, was working hard in a firm specialising in criminal law. She met a man who was one of its clients and the two formed a relationship. They were living together as husband and wife when he was murdered. Continue reading “So-called lawyer to the underworld fails in challenge to ticket non-renewal”

Vic Supreme Court summarises VCAT’s power to review practising certificate decisions

In the matter of ZGW v Legal Services Board [2007] VSC 225, Justice Bell made some observations about VCAT’s power to grant merits review of decisions about practising certificates made by the Legal Services Board, and the interrelationship of that power with the availability of judicial review: Continue reading “Vic Supreme Court summarises VCAT’s power to review practising certificate decisions”

Michael Bakhaazi jailed for 3 years for stealing a quarter million dollars

On 13 December 2006, Justice Curtain jailed Elias Michael Bakhaazi, a solicitor, for three years and three months, with a non-parole period of eighteen months, and ordered him to pay back that part of the stolen funds that had not already been paid back: R v Bakhaazi[2006] VSC 496.Incidentally, he was Daming He‘s solicitor. He stole more than a quarter of a million dollars in five separate transactions with six victims, mainly in 2001 and 2002. His victims were hard-working Lebanese who trusted him because of his links with that community as well as because he was their solicitor. It seems Mr Bakhaazi lost $700,000, turned to gambling, lost his marriage, became suicidal, and now has excellent prospects for rehabilitation. Of the victim impact statements, her Honour said: Continue reading “Michael Bakhaazi jailed for 3 years for stealing a quarter million dollars”

Sentencing the thieving beak

The Judicial College of Victoria has created a beautiful publication with the assistance of the judges of the land. It is the Victorian Sentencing Manual, freely available to the public, a kind of restatement of the law of sentencing reminiscent of the very useful restatements of the laws produced in America. I hope their next project will be the Laws of Estoppel Manual, but somehow I doubt the generosity of the State will extend that far. There are, however, other useful things on the same website, notably the Victorian Criminal Charge Book (used by judges in charging juries) and the Search Warrants Manual (the chapter on search warrants under the Legal Profession Act, 2004 is coming soon…). Since professional discipline is a quasi-criminal jurisdiction, practitioners in the field will no doubt find the Manual of assistance, especially if appearing before a tribunal presided over by a judge experienced in the criminal law. Have a look, by way of example, at the section on sentencing those who steal whilst in positions of trust, such as solicitors, at section (the site allows neither a direct hyperlink to that section, nor the copying of text).