BJ v YN

 
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[2011] NZLCRO 24

LCRO 28/2010

BETWEEN

CONCERNING: An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

CONCERNING: a determination of the Auckland Standards Committee 1

BJ of Auckland
Applicant
and
YN, [Crown Counsel] of Auckland
Respondent
counsel:

BJ as the Applicant

YN as the Respondent

The Auckland Standards Committee 1

The New Zealand Law Society

The names and identifying details of the parties in this decision have been changed.

In accordance with s213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Review application by a practitioner against Auckland Standards Committee's decision that he was guilty of conduct unbecoming for interviewing a Crown witness without prior notification to the Crown — whether a convention existed that police/Crown witnesses or potential witnesses were not to be interviewed by defence counsel without prior notification — whether the convention was breached by the practitioner in the circumstances — whether the breach amounted to unsatisfactory conduct in the form of conduct unbecoming.

The issues were: (i) whether the convention so described by the Committee existed; (ii) whether the convention breached by BJ in the circumstances; (iii) whether the breach (if any) by BJ of the convention should have amounted to conduct unbecoming and the extent to which the convention intersects with r10.08 of the Rules in particular?

Held: (i) The National Family Violence Court National Guidelines, which contained a provision encapsulating the convention, were not yet in force at the relevant time. However, the Waitakere District Court Family Violence Guidelines, which contained a provision encapsulating theconvention (“the provision”), were in place and applicable to the case at the relevant time. BJ acknowledged that he was aware of the latter guidelines and otherwise adhered to them.

The practice as captured under the provision could be properly considered a convention within the legal profession given that it was a generally accepted practice amongst lawyers who appear at the criminal bar. The practice was also widely known and strictly observed by those involved in criminal work. As such it could be accurately described as an established convention.

(ii) Although it was accepted that BJ had not actively sought to interview the complainant, the wording of the convention specified that there was to be no contact between victims and defence counsel whether by approach of defence counsel or vice versa at the Family Violence Court. The likely reason for the complainant's approach to BJ would have been known to him, as contact by the complainant was “flagged” earlier by the accused. BJ would have been prepared for the contact and should immediately have told the complainant of the steps that needed to be taken prior to any discussion. The wrong doing lay inthe fact that instead of making it clear at the outset that he could not talk to her, BJ lead the complainant to a private area to find out what she wanted to say.

The Committee was clearly correct in its view that the responsibility to comply with the convention lay with the practitioner.

(iii) The test for “conduct unbecoming” was whether the conduct is acceptable according to the standards of “competent, ethical, and responsible practitioners” (B v Medical Council). Although r10.08 of the Rules contains wording that suggest the breach of the convention may not be sufficient to lead to an adverse disciplinary outcome for a practitioner, given how widely known and strictly observed the convention was and the existence of the provision, BJ's decision to speak with the complainant did, as the Committee correctly held, amount to conduct unbecoming. The fact that BJ's subsequent evidence was based on the matters discussed at the meeting and might have averted a miscarriage of justice for the accused was irrelevant.

By way of concluding observation it was noted that it might be appropriate and timely for the New Zealand Law Society or the Criminal Bar Association to give consideration to aligning the provisions of the conduct rules with the provisions in the Family Violence Court National Operating Guidelines.

Review application dismissed.

DECISION
Background
1

After investigating a complaint against Mr BJ (the Practitioner), Auckland Standards Committee 1 concluded that he was guilty of unsatisfactory conduct in the form of conduct unbecoming. The Practitioner was censured and ordered to pay $500 towards costs and expenses ofthe investigation. The Committee also ordered that the facts of the matter should be published in Law Talk and Law News as well as to the President of the Criminal Bar Association, but without reference to the Practitioner?s name.

2

The Committee?s decision was based on a finding that the Practitioner had breached what it referred to as a well established convention, also a “clear rule?, that defence counsel should not interview a Crown or Police witness without prior notification to the Police or Crown Counsel, as the case may be. The Practitioner, acting for an accused in an assault charge, had had a short encounter with a Crown witness who was the Complainant in respect of that charge. This had occurred at the Waitakere District Court in 2008.

Background
3

The Practitioner had been assigned as Counsel by the Legal Services Agency to defend the accused who had been charged with assault following a complaint to the Police by his sister who was the Complainant. At the Waitakere District Court in July 2008 the accused informed the Practitioner that the Complainant would be coming to the Court later that day and wanted to speak with him. Later that day the Complainant approached the Practitioner, asked to speak with him, and he led her away from the public area of the Court to an interview room where the Complainant told him that she had fabricated the complaint against her brother. It is understood that the encounter was short (a minute or so) and the Practitioner advised the Complainant to seek advice from an independent counsel.

4

This matter is unlikely to have come to light had it not been for the fact that the Complainant was murdered before the depositions hearing and therefore unable to give her evidence. A CYFS social worker had become aware of this conversation from the accused. Thereafter the Police contacted the Practitioner in relation to the matter. The Practitioner subsequently gave evidence in a voir dire hearing which considered the admissibility of the statement of the deceased Complainant. The Judge hearing the matter commented adversely on the Practitioner?s conduct in relation to the contact between the Practitioner and the Complainant. Thereafter the Respondent (Crown Counsel) lodged a complaint against the Practitioner.

5

The Standards Committee conducted a hearing pursuant to s152 of the Lawyers and Conveyancers Act 2006. The Practitioner was invited to make submissions on specific issues that would be considered by the Committee. These included whether it was proper for him, whilst acting for the accused in a family violence matter, to meet with the complainant on his own without first contacting and informing the Police or Victim Support Services of his intention to do so, whether his conduct was contrary to the Family Violence Court National Guidelines, or contrary to a long-standing convention that criminal practitioners consult with the Crown and the Police, and if appropriate, other Government agencies, (including Victims Advisory Service) before speaking with prosecution witnesses. The final question was whether such conduct reached the threshold of “misconduct? or” unsatisfactory conduct? and thus in breach of the Conduct and Client Care Rules. The Practitioner was invited to make submissions on the possible orders that might be made.

Practitioner's response to Standards Committee

6

The Practitioner?s response to the complaint was contained in two letters. I include the essential aspects of his response to indicate that the Standards Committee had before it all of the elements that the Practitioner considered relevant to answering the complaint. In the first response he raised a number of issues but mainly noted that the meeting lasted less than a minute, and that the complainant had initiated thecontact, and he could not have known for sure what she had wanted to say to him. The Practitioner submitted that the complaint was fundamentally misconceived because matters were asserted without reference to the correct facts or any authority. He also challenged some of the information provided by the Respondent, outlining events as he saw them. He questioned whether a convention operated in the Waitemata Police District, and denied that theFamily Violence Court National Guidelines applied as they had not been adopted by the time of the incident.

7

The Practitioner?s second response followed the Notice of Hearing. He reiterated that the Family Violence Court National Guidelines did not apply, and added that the Conduct and Client Care Rules were also not in existence at the time of the incident. The Practitioner questioned whether there was an “established convention” that applies to the Crown and Police witnesses, and denied that it applied to the circumstances prevailing in relation to this matter. He also submitted that the New Zealand Bill of Rights Act (which preserves fundamental freedoms of association and speech) overrode the convention, which the Standards Committee had referred to as a “clear rule”.

8

He added that the Complainant had been under no pressure from either...

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