AI v ZR
| Jurisdiction | New Zealand |
| Judgment Date | 11 February 2011 |
| Neutral Citation | [2011] NZLCRO 7 |
| Date | 11 February 2011 |
| Docket Number | LCRO 102/2010 |
| Court | Legal Complaints Review Officer |
Concerning An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006
and
Concerning a determination of the Auckland Standards Committee 1
[2011] NZLCRO 7
LCRO 102/2010
Application for review of Auckland Standards Committee decision to take no further action in respect of the applicants' complaint against the respondent. The respondent represented the applicant in respect of charges heard in the Family Violence Court. Both parties thought that on completion of a non-violence programme the applicant would be discharged without conviction. No formal application under s106 Sentencing Act 2002 was made until five months later and it failed due to a forged affidavit of the applicant. Applicant lodged a complaint against the respondent — whether the conduct of the respondent fell short of the standards of competence and diligence of a reasonably competent lawyer.
Mr AI as the Applicant
Mr E as the Applicant's Counsel
Mr ZR as the Respondent
Mr N as an interested party Auckland Standards Committee 1 The New Zealand Law Society
In January 2009, the Applicant instructed the Respondent to represent him in respect of charges laid against the Applicant to be heard in the Family Violence Court.
Following discussions by both the Applicant and the Respondent with the officer in charge, it was agreed that the Applicant would plead guilty to the charges on the understanding that the Police would take no further action in respect of other complaints by the Applicant's partner.
On 10 March 2009, the Applicant appeared before Judge Epati at the Manukau District Court and was represented by the Respondent.
A plea of guilty was entered to the charges.
In his letter to the Complaints Service of the New Zealand Law Society (“NZLS”) dated 18 March 2010, the Respondent states that he enquired of the Court whether a discharge without conviction would be available to the Applicant.
He states further that Judge Epati replied that in order to have the Court consider a discharge without conviction, the Applicant would need to complete a non violence programme and an updated Victim Impact Report would be required, in which the complainant indicated that she consented to a discharge without conviction being entered.
The matter was adjourned to 26 June 2009 to enable these matters to be attended to.
Both parties proceeded on the basis that this represented the correct state of affairs, leaving the Applicant with the understanding that, providing the non violence programme was completed and the complainant did not oppose a discharge, a discharge without conviction would be the outcome at the next Court date.
From the transcript of the hearing obtained by the Applicant on 8 October 2010 (i.e. after the Standards Committee decision) it is apparent that the Respondent's summary of the Court hearing is incorrect. There was no enquiry by the Respondent as to whether a discharge without conviction would be available to the Respondent.
As the transcript reveals, the Respondent accepted the summary of facts (with some demur as to the details) and submitted that the assault was on the lower end of the scale. The transcript also records that he indicated that the Applicant was amenable to attending a living without violence programme.
Crucially, the transcript shows that the Applicant was convicted on both charges, and remanded to 26 June 2009 for sentencing.
Given the understanding that the Applicant had with regard to what would occur at the hearing on 26 June, he took the decision to appear at that hearing without representation. His expectation was that all that was required was that he show he had completed the course and the Victim Impact Report would show that the Complainant did not object to the discharge without conviction.
That did not occur. Instead, he was advised by the Court, that to obtain a discharge without conviction, a formal application pursuant to s106 of the Sentencing Act 2002 was required. The matter was adjourned.
The Respondent says he has diary notes recording that he met with the Applicant to discuss the position after that hearing. The Applicant says there was no such meeting, and I note that there is no record of any meeting in the Respondent's time sheets. It is logical that the parties would have met after the hearing to discuss how to approach the next hearing which I am told took place on 31 July, unless of course there was no hearing on that date.
To a large extent, whether or not a meeting took place as asserted by the Respondent is irrelevant to this review.
In his letter of explanation dated 18 March 2010, the Respondent states that he explained to the Applicant at that meeting that the basis of his application for a discharge without conviction was the indication given by the Judge that the Court would consider the application once he had completed the non violence course and the Victim Impact Report was favourable.
The Respondent remained of the view that a formal application pursuant to s106 was not necessary, and suggested that the Applicant try again to get the Court to act on Judge Epati's indication.
It must be remembered, that the transcript shows that there was no such indication given by the Judge. Unsurprisingly therefore the Applicant was again advised by the Court at the next hearing that a discharge was not available without a formal application. The matter was adjourned again to 30 October 2009.
On that date, the Applicant appeared again, this time represented by the Respondent.
The Respondent remained convinced that the Judge had given an indication that a discharge without conviction would be favourably considered. However, no formal application pursuant to s106 had been made at that stage.
The parties appeared before Judge Rogers who noted that there was nothing on the file to show that Judge Epati had given the indication that the Respondent was submitting to be the case. She offered to adjourn the matter again, so that it could come before Judge Epati. She again referred to the need for a s106 application.
The Respondent states in his letter of 18 March 2010, that both parties appeared before Judge Epati on 11 November 2009, at which time the Judge again indicated that a formal application was necessary.
However, an examination of the Respondent's time records supplied to me, shows that there was no appearance on 11 November. Instead, the application for a discharge without conviction was prepared and filed on 9 November 2009 and the matter was called before Judge Epati on 13 November 2009. At that time, the matter was further adjourned to enable the application to be considered.
Exhibited to the affidavit sworn by the Applicant in support of the application, was a letter purportedly written by the Applicant's employer. However, that letter had been forged by the Applicant, and he was in fact no longer employed by the purported author of the letter. Enquiries by the Police revealed the forgery, and consequently the application failed. In addition, the Applicant was charged with attempting to pervert the course of justice.
The Respondent carried out some initial work in connection with this new charge, but his instructions were withdrawn in December 2009. The Respondent's time records show that his last attendance in respect of this file was on 18 December 2009.
On 7 February 2010, the Applicant lodged a complaint with the Complaints Service of NZLS.
As summarised in the Standards Committee's decision, the substance of the Applicant's complaint was as follows:
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• That the Respondent showed incompetence in the area of law and as a result the Applicant suffered a great disadvantage.
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• The Respondent did not keep the Applicant informed and that there had been unnecessary delays in progressing this matter, which the Applicant believed were deliberate to generate more money for the Respondent.
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• The Applicant believed that if the Respondent had given him adequate advice in the earlier stages, he would not have taken inappropriate steps.
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• Specifically, the Applicant says he provided a forged document to the Court based on information the Respondent had given the Applicant as to what was required to support an application for a discharge without conviction.
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• The Applicant believed that he had been grossly overcharged in light of the poor and/or incompetent service.
The Standards Committee issued its decision on 3 June 2010.
As noted above, the Standards Committee's decision was made without the benefit of the Court's transcript provided to this office on 18 October 2010 by the Applicant.
I am troubled by the fact that the statements made by the Respondent in his letter of 18 March 2010, and on which the Committee relied, have been shown to be incorrect when compared with the transcript, which was applied for and obtained by the Applicant. The statements made by the Respondent in that letter are quite specific:
“ I enquired of the Court whether a discharge without conviction would be available to [the Applicant.]
“Judge Epati replied that in order to have the Court consider a discharge without conviction [the Applicant] would need to complete the programme…”
Immediately before these statements, the Respondent states “The general approach of the Family Violence Court for less serious incidents is that where a non violence programme is completed, the defendant is convicted and discharged with no further penalty entered.”
The intention was however, to seek a discharge without conviction, something that was not, in the words of the Respondent,...
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