BJ v YN
| Jurisdiction | New Zealand |
| Judgment Date | 21 April 2011 |
| Neutral Citation | [2011] NZLCRO 24 |
| Date | 21 April 2011 |
| Docket Number | LCRO 28/2010 |
| Court | Legal Complaints Review Officer |
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
[2011] NZLCRO 24
LCRO 28/2010
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.
BJ as the Applicant
YN as the Respondent
The Auckland Standards Committee 1
The New Zealand Law Society
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.
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.
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.
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.
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
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.
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”.
He added that the Complainant had been under no pressure from either him or the Accused, and there was no reason for her to have felt intimidated as he had had previous contact with her in relation to other matters. He explained that she was seeking advice about her own conduct (having laid a false complaint) rather than anything to do with the Accused. The Practitioner denied having “interviewed” the Complainant, she had approached him and he had “thought it appropriate that she should not be asked to relate her business in a public area and more courteous to listen to her in private.”
The Practitioner submitted that the complaint disregarded the Rule 10.08 of the Rules of Professional Conduct for Barristers and Solicitors which then applied, the Rule stating, “In criminal, as in all other proceedings before the court, no practitioner or party has the sole right to call a witness or discuss the case with a witness.” He included the full text of the Rule, which included the lengthy commentary.
The Practitioner acknowledged that he was aware that there was a courtesy that defence counsel not interview a Police witness, a convention that applied only to
“interviewing?, which was not what occurred here. He denied there was any convention concerning contact pre-committal where trial has been elected. The Practitioner again expressed confusion about the nature of the complaint, and requested clarification.
The Standards Committee decision is reasonably detailed and identified the reasons for the approach it took. In particular the Committee was of the view that there existed “a well-established convention” that applied to Crown and police witnesses, taking the view that “once defence counsel knows that someone is a potential Crown witness, they are obliged to notify the Police or the Crown before they interview such a witness.” The Committee noted that the convention does not require the Police or Crown Prosecutor to be present at the interview or that the interview should be arranged through them – it only requires that the Police or Crown Prosecutor be informed in advance of defence counsel?s intention to interview the witness. The Committee added that Rule 10.08 of the Rules of Professional Conduct for Barristers and Solicitors, and Rule 13.10.4 of the Conduct and Client Care Rules, should be read against this background.
The Committee noted that the Practitioner was aware that the Complainant would be a Crown witness, and that he ought to have informed her from the outset he could not speak with her. Instead he had taken her to an interview room and had a conversation with her. The Committee noted that during this encounter with the Complainant the Practitioner gained information that caused him to withdraw as counsel for the accused and to become a witness for his client; under the circumstances there was no excuse for the Practitioner?s conduct.
The Committee further noted criminal defence lawyers are not infrequently approached by persons who turn out to be complainants for the Crown or Police witnesses, but this did not relieve them from the duties or obligation in dealing with witnesses to have immediately, politely enquired into the identity and status of the person, and to politely decline to speak with them further if that person turned out to be such a witness. The Committee concluded that there had been a breach of the protocol by the Practitioner.
Since the conduct...
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