Auckland Standards Committee No. 1 v Davina Valerie Murray
| Jurisdiction | New Zealand |
| Judge | D F Clarkson,Ms S Hughes QC,Ms C Rowe,Ms M Scholtens QC,Mr W Smith |
| Judgment Date | 16 March 2015 |
| Neutral Citation | [2015] NZLCDT 6 |
| Docket Number | LCDT 012/14 |
| Court | Lawyers and Conveyancers’ Disciplinary Tribunal |
| Date | 16 March 2015 |
In the Matter of the Lawyers and Conveyancers Act 2006
[2015] NZLCDT 6
Judge D F Clarkson
MEMBERS OF TRIBUNAL
Ms S Hughes QC
Ms C Rowe
Ms M Scholtens QC
Mr W Smith
LCDT 012/14
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Reasons for order that practitioner's name be removed from the Roll of Barristers and Solicitors – practitioner was convicted and sentenced of a summary offence for smuggling items into Mt Eden Prison, to a high security prisoner who was serving a term of preventive detention — practitioner argued that that the conviction was for a summary offence in which culpability, as found by the District Court, was neither at or near the most serious end of the scale for such an offence — Standards Committee said that the circumstances of the conviction led to the conclusion that she was not a fit and proper person to practice law — whether strike off was warranted.
Mr M Treleaven for the Standards Committee
Mr W Pyke for Ms Murray
On 26 February 2015, this Tribunal ordered that Davina Murray's name be removed from the Roll of Barristers and Solicitors. We reserved our reasons for making that “order of last resort”. This decision provides those reasons.
Any penalty consideration must start with the seriousness of the conduct in question. 1 We then consider matters of mitigation and aggravation in relation to the conduct and to the practitioner.
We have regard to the purposes of disciplinary penalties, in relation to these circumstances and this practitioner. Finally, the Tribunal must consider whether it has reached the view, unanimously, that the practitioner is no longer a fit and proper person to be a lawyer and an officer of the court, with the privileges and responsibilities that status entails.
Our decision of 16 December sets out the background, leading to Ms Murray's conviction and sentence for smuggling items into Mt Eden Prison, to a high security prisoner who was serving a term of preventive detention.
In our decision we referred to the seriousness of this conduct. 2 We noted that while the conviction itself was only for a summary offence “… from a professional disciplinary point of view, it goes directly to the heart of the standing of the profession in the community”. We noted this view was shared by the District Court Judge who tried the matter, and the High Court Judge who presided on appeal. 3
The Standards Committee submits that it is the type of conviction referred to in the Ziems case in these terms: 4
“It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self–respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co–operation which the satisfactory working of the courts demands.”
It is submitted that the circumstances of this conviction lead to the conclusion that Ms Murray is not a fit and proper person to practice the law. Further, it is submitted “if the conviction is not at that level then it is necessary to consider the conduct underlying the conviction and whether it discloses “human frailty” warranting the person's disqualification from professional life”.
For Ms Murray, Mr Pyke reminded the Tribunal that the conviction was for a summary offence in which culpability, as found by the District Court, was “ neither at or near the most serious end of the scale for such an offence”. We were reminded of the (with respect, merciful) sentence of 50 hours community work.
Furthermore, Mr Pyke reminded us that this was a single incident of offending which, despite its aggravating features of undermining confidence in the profession, particularly within the prison setting, was not a charge that related to service to clients.
In oral submissions Mr Treleaven submitted that the context of this serious offending implied a “defect in character” in the Ziems sense such as to satisfy the test that Ms Murray is not a fit and proper person. We were reminded of the unchallenged evidence of Mr Sherlock, Manager of the Auckland Prison:
“It is the combination of Ms Murray's actions by introducing dangerous items into the prison, and doing so by taking advantage of her privileged status as a lawyer, which in my view made her offending particularly grave. Although the prison authorities are alert to the possibility of smuggling by ordinary visitors, I did not expect that a lawyer would intentionally compromise prison security in this way.”
There is considerable force in this view and in the submission made by the Standards Committee. With that in mind we turn to consider aggravating and mitigating factors:
Because we have taken this into account in the first step, of assessing the seriousness of the practitioner's conduct, we do not propose to take further account of it as an aggravating feature.
As recorded in our liability decision, the manner of Ms Murray's conduct of her trial is relevant to whether she is a fit and proper person. We refer, not just to the suggestions that she was at times discourteous and unprofessional in her manner of self–representation, but more importantly that she falsely accused two prison officers of planting evidence on the prisoner. This was the form of defence advanced by her and evidence was called from the prisoner to support this allegation. Throughout, Ms Murray knew this to be completely untrue, because as established by the evidence, and later acknowledged by her, she had purchased the cell phone and other items herself and had supplied them to the prisoner.
As an officer of the Court, to allow false evidence to be knowingly put before the Court is a very serious breach of ethics. It is probably one of the most reprehensible forms of conduct which can be undertaken by any trial lawyer.
The system of criminal and civil justice relies on the Courts being able to have absolute confidence in the integrity of counsel appearing. Ms Murray has demonstrated that no such confidence can be reposed in her.
We were referred by the Standards Committee to an Australian case which bore some similarities to the present matter, namely Pepe. 5 In that matter a practitioner was convicted of perverting the course of justice in circumstances where
she had a personal relationship with a prisoner client, as did Ms Murray. After pointing out that the practitioner was:“… insensitive to and had disregarded serious professional conflicts of interest. This too reflects adversely upon her fitness to practice. That she got herself into a position of acting professionally for the man who was her partner at the time, and with whom there appears to have been a most unsatisfactory and dysfunctional relationship; that she only recognised the need to engage other more senior counsel to appear with her, after being strongly advised to do so by professional colleagues; and that she would put out a large amount of her own money for the engagement of the senior counsel; all show how severely her position was compromised and, more importantly, how inadequate in these respects was her personal professional judgment”.
Even more relevantly, in relation to the Court's need to repose trust in counsel the Court went on to say: 6
“… The unswerving performance of professional obligations of legal practitioners, and the need for the courts and the profession to trust the integrity of a practitioner is extremely important because, in many cases, in the nature of advice given, submissions made or evidence disclosed, there will be little if any effective supervision of the conduct of a practitioner as many of those duties are performed under privilege. The need for such trust to be extended with confidence to a practitioner, by fellow practitioners, courts and the public, is so great that it forms an essential part, not only of the practice of the law, but of the administration of justice. If conduct is discovered, or defects are...
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