Final Lecture with Mario Sindone Friday 12 August 2016 Legal Ethics
Topic: An Advocate’s Duty to Others (pp 1 —4)
AND
Exam Revision (p. 5 — 10)
Tonight’s lecture last in the substantive series – duty to all others – analysis thereof. Then we go through last 3 exams and open up forum upon any issues not sure about.
Closed book with course outline attached to the back of exam paper.
TOPIC An Advocate’s Duty to Others
[Not referred to by lecturer BUT refer to page 62 onwards Coursebook … and page 21 course o/line)
Easy way to tackle, case which encapsulates … Kelly v London Transport Executive [1982] (‘London T’)
Personal injury claim … 100,000 pounds. House of Lords held claim to be totally bogus. Slight graze on head shortly after he commenced work. Got Legal Aid. Numerous medical and engineer reports. This case ran to enormous expense lasting 3 days. Justice Reid found Kelly to be an unreliable witness.
London T sought to recover costs but payment for costs by successful party against Legal Aid there was a requirement to validate under the Legal Aid Act that by not recovering the cost that organisation would suffer severe financial hardship. Very difficult for London T to do under the circumstances due to being a large government entity.
@page.850 London T could proceed against solicitors and counsel personally on basis of breach of duty to the opponent and court in general.
Lord Justice Denning – principle solicitor and counsel duty to their own client and to all on the other side. If they failed their duty, the other could call personally, seeking to make good/recompense. . we all know … etc…
Can the other side say okay we mucked up but benefit under Advocate’s immunity – No! This IS ONLY in relation to their own client. A very narrow ambit. Here, you have breached your duty – disciplinary issue –it is not a suit by your client in negligence. Lord Denning: not to be able to escape … cannot claim immunity as perRondel v Worsley. No immunity if they fail to have a regard to the 3rd duty to the other side, those spending money in defending the case.
BAR Rules. 49, 50, 51, 52 — same operation.
To date we have dealt with the private advocate – a sole practitioner working from chambers.
The Other Type - Public Prosecutor
(a) Generally
-Generally only acting in criminal matters
-Public servant
-S/he has a different set of Rules which they are obliged to comply with
Peculiar and Specific Duties of Such
- Not to regard self as a minister of justice, not striving to go for it at all costs. BarRule 85 – R v Bathgate.
2. Primary function to aid in attainment of justice -R v Pernick
3. Duty of prosecution to see that case is presented fairly – in a way avoiding unfair prejudice arising in minds of jury – R v Meier.
4. Prosecutor owes duty to the court which defence counsel does not share, namely duty to bring the attention of the other side and the court material which is cogent and relevant to the prosecution of the accused.: R v Glover. BarRule 83, 85.
It is not win at all costs – not in rubric of the role of the prosecutor.
If Pros does not have enough evidence he must admit that fact to the jury. BarRule 86
This was a particular issue of focus, vexing courts – especially HC – for a good deal of time.
Felt they had to educate profession as to how to deal with a specific “duty” said to lie at the feet of a prosecutor.
(b) Does the Prosecutor have a ‘duty’ to call a material witness?
- Prosecutor HAS A DISCRETION whether or not to call any witness. NO duty to call a Witness whose evidence is not ESSENTIAL – R v Lucas.
- Prosecutor should call a witness to an event which goes to calling evidence to a particular crime. Or whether evidence strengthens or weakens a particular case. Ziems’ case – Fullagher and Taylor JJcritical of the police sergeant not being called. Prosecution did not call. Defence counsel critical on intoxication vs concussion. By not calling police sergeant, Ziem’s legal counsel had to make decision – should we have this evidence before the court ? – they did call him as a witness which exposed him to cross-examination – cross examination is perceived as a sharper tool than evidence-in-chief.
Richardson v R – Constable Bailey … Ryan in car, passenger Dawn Gardiner (part of the gang), Ryan’s car repeatedly cut in front of Bailey on numerous occasions. They pulled up in empty car park with a 3rd car arriving full of youths. Bailey was punched by Ryan through an open window, pulled from car and assaulted by youths. Richardson , one of the youths, charged with assault. Prosecution had failed to call the material witness – Dawn Gardiner. Less likely to sway jury as evidence-in-chief. Thought to be an unreliable witness in light of the conflicting and dishonest testimony she gave. HC examined same: discussion of Crown role; it IS for the prosecutor as to which Witness to call. Has responsibility of ensuring-Prosecutor to decide as to what evidence is to be adduced. Will the evidence be credible or truthful?
HC concluded @122, no basis for finding that prosecutor had misconducted himself or that his conduct gave rise to not calling Gardiner because he considered her not to be truthful witness at the testimony she gave at acquittal.. Decision: not to call Gardiner because not a good witness, her lack of credibility demonstrated in court prior to the trial.
Sooooo, up to Prosecutor to have the discretion as to who to call; clear and unequivocal evidence to show that witness is unreliable or lacks truthfulness.
Whitehorn v R
Here witness convicted of indecent sexual assault of 7 year old girl, wife’s niece; girl staying with them in house, alone. Whilst alone it was claimed he assaulted the child. No direct evidence that Whitehorn had committed the assault. Importantly child was on Crown witness list but not called to give evidence. Prosecution determined having spoken to child not satisfied she would be of any use as a witness; therefore, Crown’s case based solely on admissions that Whitehorn had allegedly made to investigating officer Jenkins when interrogated . At trial, Whitehorn gave evidence he had not assaulted child, that the admissions were concocted as he had not made them, typed by Jenkins without his knowledge; Whitehorn claiming he only signed due to being exhausted after many, many, many hours of interrogation.
High Court – what did they think about this behaviour?
@page 664: they reiterated Richardson … among the considerations which may justify the Crown refraining from leading evidence from a material witness/s is it that the evidence they would give would be plainly untruthful or unreliable on the evidence before the Prosecutor at the time.
@ page 666: any evidence child could have given would have been of critical importance – both alleged victim of the offenceand only eye witness of its occurrence: effect of not being called as witness – inevitably that applicant’s trial would be converted into a dispute of the genuineness and reliability of the confession by Whitehall in an environment which all but the police had been excluded.
Deane J … there would be something to be said for a conclusion that when the applicant complained of a failure of the Crown to call child as witness, basic fairness to the accused required that the Crown provide CLEAR AND SATISFACTORY reasons as to why she was not called (as occurred in Richardson.) But short of this they should offer to call child as a witness and permit cross-examination of her by the applicant.
Soooo, what we have – although Prosecutor has discretion as to who to call. When it comes to a material witness … had discretion NOT to call …. If, as HC says, there areclear and satisfactory reason/s for that Witness NOT to be called okay BUT NOT in this instance. They just made the decision not to call her “because she wouldn’t be good”. The case then became all about the sworn statement being true or not rather than about the elements of the crime itself.
The child should have been called and cross – examined. Cross is to test the veracity of whatever evidence is out there as best as you can give it. Test it = conducted by cross-examination. Conclusion – Dawson J@ 674 – all available witnesses should be called whose evidence is necessary to unfold the narrative. And give a complete account on event s upon which the prosecution is based. Generally, these will include eye witnesses of any events which try to prove the elements.
A few months later …. High Court over it! We are now going to lay down the law - literally.
R v Apostolides 1984 – the 8 Commandments of this Issue were laid down by HC whether or not Prosecutor has to call a material witness.
2 females meet 2 men in bar; ….. [via default and to save space … we all know the rest of the story] Apostolides falls into deep sleep, she races to neighbour claiming she had been raped. Female = victim. Police called, Apostolides still asleep when they arrived. Apostolides claimed she was willing and a consenting participant.
At trial prosecutor announced to court he had formed a judgment that the other couple would not be called as witnesses – not giving a particular reason but made available to defence their witness statements, etc…
The defence felt compelled to call these witnesses as their own thereby losing right to cross and exposing them to cross-examination by the Crown. The HC laid down - Refer to page 61 of Cousebook –
6 Propositions as listed PLUS 2 more that are within the judgment/paragraph below the 6 listed –
(7) Refusal to call a particular witness is justifiable where circumstances clearly establish witness is unreliable (Richardson).
(8) It is not enough that Prosecutor merely has a suspicion about the unreliability of witness (Whitehorn). Where a Prosecutor does not wish to call a particular witness to lead evidence but the defence wishes that person/witness to be called it is sufficient for pros. to call the person so the person may be cross examined by defence and then re-examined by pros. if necessary (Whitehall).
The conviction in Apostilides was set aside and a re-trial ordered because of the Prosecution.
So what do the Bar Rules say in relation to prosecution calling witness?
They go a lot further than what the HC stated
Bar Rule 89 MUSTcall as part of prosecution case ALL W whose testimony is admissible, etc…
B Rule 90, 95
(Opponent = defence)
EXAM REVISION 7:00pm
Last 3 exam papers: March 2016, September 2015, March 2015 – Mario’s portion of lecture delivery.
Answers Marioas presented tonight are what he considers a comprehensive manner in which to address thequestion being asked. What type of mark? Distinction but not high. High is what knocks reader off their feet …. Or you may not be correct but on the analysis and way it has been argued your response alters examiner’s perspective. Something beyond expectations.
Closed book exam with Course Outline (from page 9-12)attached toexam paper. 4 compulsory questions:all essay style.
Lou’s question re solicitor – questions 1 and 2. Mario’s question advocate – questions 3 and 4.
Good stead to answer exam questions in the following manner … these are just examples only.
March 2016 Question 3 – Ethics/duties of Advocate (Ken Krafty …)
Mario reading out question …. Sounds familiar doesn’t it? … that was Ex parte Bellanto … “highly detrimental to the defendant” …. “shouting at judge, slamming his papers” … this is completely Bellanto here.
On another occasion … here we come to Costello.
Receive documents, long and protracted examination going no where - Paragraph 3 – Mechanical Inventions
Plaintiff’s claim a “rort” – Smout v Smout
Question ….. in light of these circumstance, explain by reference to the Bar Rules, applicable legislation and any relevant authorities whether Krafty has breached, if at all, his duties as an advocate.
Soooo … I start by saying that this question relates to the paramount duty to the court.And whenever you speak of the paramount duty to court always a good idea to bring to light those few sentences that were repeated over and over by Lord Justice Reid @227 -288 in Rondel v Worsley – everyone recalls that? Yes? and how they may conflict with duty to the client.
Next – meat of question – FRUSTRATING the court process. Even if advocate believes his case is not doing well cannot frustrate court’s process in the hope of the trial being aborted – you would note that this was the intention in Bellanto and Costello.
Further by attempting to frustrate courtprocess in this manner, in effect,what the Advocate is doing, is elevating thier duty to client above that of the court – as we know:this is impermissible.
Examples of this are numerous: Costello, Bellanto, Re B , its Smout v Smout, Kennedy and Council of, Meek v Fleming, its Clyne’s case.
This misunderstanding of ranking of the duties.
Next – touch on idea that COURTESY – is an element of the Advocate’s duty to the court and that by not abiding with those notions of courtesy the whole of the court process can be brought in to disrepute and hence frustrated
Ex parte Bellanto – yelling slamming papers
Costello – with regard to his exchanges with judge
Next – I’d speak of the examplein the question of long/tedious/protracted questioning unrelated to any questions to the case in order to draw case out in the hope of getting the documents promised to Barrister but not yet arrived. That is a breach of duty to court – in a way,trying to win at all costs, elevating your duty to the client above that of the court as shown inMechanical GI v Austin. Long and protracted cross examination of witness. BarRule 58(D) with regard to how far you can go in making submissions
Where Krafty – addressed the court by making unfounded submissions as to claim being rort sans evidence to support – clouds the extent to which an advocate can act for his client: Smout v SmoutBarRule 64; Clyne’s case. BarRule 60, 61.
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Mario does not want us to remember the BarRules. He is reading through the subject guide as we go. We need to understand the BarRules as to how they relate to the case. Understand what they are. We do not have to put it down word-for-word, perhaps half a sentences/nominate. In your essay giving that exposition, the case, the principle, the BarRule.
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That answer in my humble opinion attempts to answer all of the issues raised in that question. Maybe not a sensational mark but that is the answer. You give a textbook chapter, wafting on … not good.2.5-3.5 pages of sharp pointy answer should be enough.
Student question re citing BarRules in exam … “fair go though, you know,Clyne 60,61, Mechanical 58(D) – you know the mains ones … you can say around 50 something!!! (we were all laughing here).
Question 4 …. Relevant principles to apply when determining what Orders (incl removal from Roll) should be made in respect of these 2 practitioners.
1 X UPC and 1 X PM
Relevant principles to apply
Imagine given a question like this – absolutely compulsory to give an explanation of both.
S296 – UPC, next paragraph outline — S297.
S298 some examples of what is capable of UPC and PM under s298 which is split into 2 categories – first category: acts of dishonesty refer to breaches of tax obligations; other breaches of dishonesty under 298; clump these together. Second category under s298 indictable or serious offences.
Then speak about Clyne’s case, and how this case raises the issues of dichotomy of obligations. There are -
- Conventional in character, in writing, breaches of Bar Rules, may fall under UPC and others may fall under PM. Whereas the fundamental rulesare not found in writing relating primarily to dishonesty = must not mislead court is a prime example. Not reduced to writing ….. always lead to PM. 2nd category in Clyne.
- Absolutely refer to the 2 really neat common law formulations of misconduct and misconduct in general: Allinson and Kennedy ANDbecause the question asks it. What are the relevant…including removal from roll. Because that is included in the question, I would
Square the answer to that issue ------test for removal or disqualification from the profession comes in Clyne’s case, where you are found liable to PM. And that conduct leads to the profession and public being protected from you. And you will be struck off: Clyne’s ANDthe gloss of Beazley inWalsh there is an educative element regard to this issue of being disqualified.
Then go through what type of conduct renders you to be liable to be struck off. We know the central theme is dishonesty – Davis, Jentikoff, Coe, Moore. Re B, Wentworth. But for High Distinction man in the front row here contrast notion of dishonesty with Costello and Thomas where they were not struck off notwithstanding the multiple and grave professional misconduct present in those two cases.
Then go on to say that all we have looked at relates to misconduct in connexion with your profession but also an issue with misconduct external to the professional practice. Compare and contrast cases: Re H/Harrrsion/Hamman and Ziems, concluding the same theme exists for disqualification for conduct outside profession, that being this element of dishonesty. If none, the cases suggest no disqualification.