Kawicki v The Legal Services Commissioner & Anor

1. [1]

   MASON P: I agree with Tobias JA.

2. [2]

   TOBIAS JA: On 3 February 1994, the appellant was sentenced by Karpin DCJ to periodic detention for a period of ten months, having been convicted by a jury of the charge of knowingly maintaining an escaped prisoner. He appealed this decision, but had served his entire sentence prior to the hearing of the appeal.

3. [3]

   On 24 July 1995, the Court of Criminal Appeal, constituted by Kirby ACJ, Allen and Dowd JJ, quashed the conviction on the ground that it was unsafe and unsatisfactory and ordered that a verdict of ‘not guilty’ be entered: R v Kawicki (1995) 82 A Crim R 191.

4. [4]

   Subsequent to the quashing of his conviction, the appellant applied to the Attorney-General’s Department for compensation by way of an ex gratia payment. The Department sought advice in relation to this matter from the Director of Public Prosecutions, Mr Nicholas Cowdery QC (Mr Cowdery), who ultimately recommended against the making of such a payment.

5. [5]

   The appellant then wrote a letter of complaint to the Legal Services Commissioner (the Commissioner), alleging that the letters of advice written by Mr Cowdery to the Department had been deliberately misleading and that he was guilty of professional misconduct. The Commissioner dismissed the complaint on the basis Mr Cowdery’s letters containing the subject advice had not been given in connection with the practice of law. He further stated that even if they had been given in connection with the practice of law, there was still no reasonable likelihood that he would be found guilty by the Administrative Decisions Tribunal (the Tribunal).

6. [6]

   The appellant challenged the decision of the Commissioner in the Supreme Court, seeking an order that the decision be set aside and a declaration that Mr Cowdery had been acting in connection with the practice of law in giving the subject advice. On 15 November 2002, Burchett AJ dismissed the application. It is against this decision that the appellant appeals to this Court.

The appeal to the Court of Criminal Appeal

1. [7]

   In order to address properly the issues in this appeal, it is necessary to examine in some detail the findings of the Court of Criminal Appeal. In the primary judgment of that Court, delivered ex tempore by Allen J, it was acknowledged that the principal ground for the quashing of the conviction was that it had been unsafe and unsatisfactory. The basis for this finding is outlined below.

2. [8]

   The appellant had been indicted with a co-offender, David Spence (Spence), and each had pleaded 'not guilty' to the charge of 'knowingly maintaining one Patrick Hudd' (Hudd), an escaped prisoner. The essence of the Crown case against the appellant was that the appellant had lent Hudd $500, which loan was relied upon by the Crown as the actus reus of the relevant offence. The mens rea was said to be that the loan was made with the knowledge that Hudd was an escaped prisoner and that it was made for the purpose of maintaining him, in other words, assisting him to live in the community.

3. [9]

   Allen J considered that the Crown's evidence, from which it was inferred that the appellant was aware that Hudd was an escaped prisoner at the time of the loan, was "meagre in the extreme". The Crown's case on this issue was generally reliant upon telephone intercepts of a conversation between the appellant and Spence, which occurred some weeks after the former had made the loan to Hudd. Allen J held that it was not reasonably open to the jury to find that the knowledge that Hudd was an escapee, which the appellant may well have had prior to the intercepted telephone conversation, was first acquired weeks earlier or prior to the date upon which the loan was made. Accordingly, it followed from that finding that the verdict "must be quashed" (at 194).

4. [10]

   The principal witness for the Crown was a man called Brown, who had known the appellant for some years. The latter had introduced Brown to Spence. At some unspecified date prior to the intercepted telephone conversation, the appellant and Brown, at the latter's suggestion, paid a visit to Spence, who at the time was a prisoner at Long Bay Gaol. After holding that the conviction must be quashed, Allen J made reference to this evidence as "a further matter…of which (he) would make mention". He said this (at 194):

5. [11]

   Kirby ACJ agreed with the orders proposed by Allen J. His Honour expressed his concurrence thus (at 195):

The correspondence concerning the appellant's claim for ex gratia compensation

1. [12]

   Following his acquittal by the Court of Criminal Appeal, the appellant wrote to the Attorney-General on 7 December 1995 seeking ex gratia compensation for his imprisonment prior to the quashing of his conviction. There followed correspondence between the Director-General, Mr Cowdery, and the appellant. However, a difficulty with which this Court was faced was that the material before Burchett AJ and the Commissioner comprised only a selection of that correspondence in this matter. In particular, it did not include either the letters from the appellant to the Attorney-General/Director-General or the letters from the Director-General to Mr Cowdery. By this observation I am not seeking to criticise any of the parties, but it is clear that the fact of having available the total correspondence between the relevant parties would have assisted to ensure that the context in which Mr Cowdery's letters were written was completely understood.

2. [13]

   After the Attorney-General received the appellant's representations for an ex gratia payment, the Director-General wrote to Mr Cowdery on 15 December 1995. This was one of the letters not provided to the Commissioner or the primary Judge. It is apparent from Mr Cowdery's response of 29 March 1996 that the Director-General’s letter included the appellant's letter of 7 December 1995, which in turn included a copy of the Court of Criminal Appeal's judgment. This is confirmed by the following passage from Mr Cowdery's letter to the Deputy Ombudsman of 7 June 2001 (which was provided by the appellant to the Commissioner):

3. [14]

   Having referred to the Director-General's letter of 15 December 1995, Mr Cowdery, in his reply to the Director-General on 29 March 1996 said this:

4. [15]

   Mr Cowdery then sought to answer the appellant's allegations by setting out what he referred to as "the facts and progress of the matter". The final three paragraphs of his letter were in the following terms:'

5. [16]

   It would appear that the appellant did not accept the assertions by Mr Cowdery in his letter of 29 March 1996, although there is no evidence as to whether its content was conveyed to him by the Director-General or, if it was, of the manner in which this was done. In any event, it would appear that a Mr Carney of Carneys Lawyers made further representations on behalf of the appellant, with the consequence that on 14 August 1996 the Director-General wrote to Mr Cowdery "requesting further advice in this matter". Two specific issues were apparently raised by the Director-General, of which only the first is relevant to the present case. It was restated in Mr Cowdery's letter to the Director-General dated 17 September 1996 in the following terms:

6. [17]

   It appears that this question was prompted by the appellant's understanding that the government's position with respect to ex gratia payments was that they were only available where an error or omission by investigating or prosecuting authorities had been demonstrated. It was therefore asserted by the appellant that the prosecution committed a demonstrable error in adducing evidence at the trial that the appellant accompanied Brown when he visited Spence in gaol. This was the evidence which Allen J, at the end of the passage set out in [10] above, held should not have been admitted by the trial Judge. His Honour also criticised the prosecution for seeking to admit such evidence and for failing to avoid the risk of unnecessary prejudice to the appellant.

7. [18]

   Mr Cowdery's response to the specific issue upon which his "further advice" had been requested was as follows:

8. [19]

   Although the second specific issue upon which Mr Cowdery was asked to comment is not directly relevant to the appellant's complaint, it was before the Commissioner and possibly had some relevance to him. The specific question asked was in the following terms:

The criticism of Mr Cowdery

1. [20]

   In July 2000, Mr T Molomby of counsel wrote to the Attorney-General on behalf of the appellant criticising Mr Cowdery's responses to the Director-General. I will refer to that criticism in more detail.

2. [21]

   It appears that Mr Molomby's letter was forwarded to Mr Cowdery by the Director-General under cover of a letter dated 25 July 2000. He replied by letter dated 10 August 2000 in the following terms:

3. [22]

   On 22 September 2000, the appellant wrote directly to Mr Cowdery requesting him to correct his advice to the Attorney-General's Department and, in effect, to acknowledge that the Court of Criminal Appeal had determined that there was an error in the manner in which the prosecution had been conducted. By letter dated 6 November 2000, Mr Cowdery replied in the following terms:

4. [23]

   It is noteworthy that Mr Cowdery asserted that the Department had been in possession of a copy of the Court of Criminal Appeal's judgment since at least July 1996. The significance of that date is not apparent, although it predates Mr Cowdery's letter of 17 September 1996 to the Director-General. In any event, there was no assertion by the appellant in evidence to the effect that Mr Cowdery's statement was incorrect: see [13] above.

The appellant's complaint to the Ombudsman

1. [24]

   To satisfy this response, the appellant lodged a written complaint with New South Wales Ombudsman on 8 March 2001. He enclosed a copy of the abovementioned correspondence together with a copy of the Court of Criminal Appeal's judgment.

2. [25]

   The Ombudsman referred the complaint to Mr Cowdery by letter dated 31 May 2001. In his letter of reply dated 7 June 2001, he rejected the appellant's complaint that he had (in his letters of 29 March 1996 and 17 September 1996) misrepresented the Court of Criminal Appeal's judgment. As regards the Court's criticism of the prosecution, he said this:

3. [26]

   Mr Cowdery then summarised what he had said in his letter of 29 March 1996 and continued:

The appellant's complaint to the Legal Services Commissioner

1. [27]

   On 26 April 2001, the appellant lodged a complaint with the Commissioner. He alleged that Mr Cowdery had deliberately and knowingly misrepresented the judgment of the Court of Criminal Appeal to the Director-General. His principal points of complaint were as follows:

2. [28]

   The Commissioner wrote to the appellant on 16 May 2001, indicating that he did not believe he could assist the appellant with his complaint. The primary basis for this opinion was that the Commissioner considered that Mr Cowdery, in giving advice to the Director-General with respect to the appellant's application for an ex gratia payment, was providing policy advice and not giving advice in the course of practice as a legal practitioner. He noted that where impugned conduct occurred otherwise than in connection with the practice of law, a legal practitioner could only be guilty of professional misconduct if that conduct would justify a finding that the practitioner was not of good fame and character or was not a fit and proper person to remain on the roll of legal practitioners. He was of the opinion that the appellant's complaint concerning Mr Cowdery would not justify such a finding.

3. [29]

   The relevance of the impugned conduct occurring in connection with the practice of law under the Legal Profession Act 1987 (the LPA) is that such conduct may amount to professional misconduct where it involves a substantial failure to reach reasonable standards of competence and diligence. The essence of the appellant's complaint against Mr Cowdery was that his deliberate misrepresentation of the Court of Criminal Appeal's comments with respect to the admission and adducing of the subject evidence constituted a departure from that standard.

4. [30]

   The appellant wrote to the Commissioner on 11 January 2002, taking issue with the Commissioner's decision not to proceed further with his complaint. A further letter of complaint was enclosed with that letter, although it was before neither the primary Judge nor ourselves.

The Commissioner's decision

1. [31]

   The Commissioner responded to the appellant's letter dated 4 February 2002. He first addressed the question: Was Mr Cowdery's conduct in connection with the practice of law? He concluded that it was not. His reasons were as follows:

2. [32]

   The Commissioner secondly addressed the question: "Was Mr Cowdery's advice deliberately misleading?" He wrote:

3. [33]

   Indicating that he had carefully considered the relevant correspondence, the Commissioner continued:

4. [34]

   Having set out the last two paragraphs of the judgment of Allen J (which I have recorded in [10] above), the Commissioner concluded in these terms:

The decision of the primary Judge

1. [35]

   The primary Judge considered that the Commissioner's decision (contained in the letter of 4 February 2002) raised two broad issues. The first was whether he was correct in his view that the conduct complained of was not "conduct…occurring in connection with the practice of law" within the meaning of s 127 of the LPA. The second was whether his decision not to institute proceedings in the Tribunal with respect to the appellant's complaint was infected by any error of law.

2. [36]

   As to the first issue, the primary Judge upheld the Commissioner's decision. In doing so he noted that Mr Cowdery had been consulted as to his views on the question of whether the circumstances and conduct of the particular prosecution should lead the Executive Government of New South Wales to make an ex gratia payment to the appellant.

3. [37]

   In confirming the Commissioner's decision on this issue, the primary Judge relied upon certain conclusions reached by O'Keefe J in Nye v State of New South Wales (2002) NSWSC 1267. This case involved a subpoena for the production of documents and a notice to produce served on Mr Cowdery requiring the production of an Informants Register Index relating to a particular person. He had objected to the production of the register on the basis that the whole of its contents was protected by legal professional privilege. It was submitted on his behalf in that case that his functions under the Director of Public Prosecutions Act 1986 (the DPP Act) were in the nature of legal functions of a kind that attracted legal professional privilege. In order to determine that claim, O'Keefe J considered it necessary to analyse the terms of the DPP Act and the nature of the particular functions assigned by it to Mr Cowdery.

4. [38]

   Having considered the relevant provisions of the DPP Act and noting the difference between the functions of the Director of Public Prosecutions on the one hand and the Solicitor for Public Prosecutions on the other, O'Keefe J opined as follows:

5. [39]

   As to the second issue debated before him, the primary Judge observed:

6. [40]

   The primary Judge then considered the terms of s 155 of the LPA, noting some difficulties of interpretation. He ultimately adopted the same construction as the Commissioner, namely, that he should dismiss the complaint if he is not "satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal". The appellant has not raised any suggestion before this Court that such an interpretation was incorrect.

7. [41]

   The primary Judge noted that the appellant had contended the following: that the Commissioner's decision was unreasonable to the extent that no reasonable person could have reached it; that irrelevant considerations had been taken into account; and that the question correctly posed by s 155 had not been addressed. His Honour concluded that none of these grounds had been made out and said (at [213]):

The appellant's submissions

1. [42]

   It is convenient to first deal with the question of whether the Commissioner's decision that he was not satisfied that there was a "reasonable likelihood" of a finding of professional misconduct by the Tribunal is infected by reviewable error. The appellant submitted that the Commissioner had advanced only two reasons for coming to this conclusion. The first was that the extent of the discussion as to the meaning to be attributed to Mr Cowdery's statements in his letters of 29 March 1996 and 17 September 1996, the latter in particular, as revealed in the correspondence between Mr Cowdery and the Director-General on the one hand and the appellant on the other, was indicative of the fact that there was considerable room for debate as to whether those letters could properly be said to have misrepresented the Court of Criminal Appeal's judgment. The second reason was that the Director-General was in possession of the Court of Criminal Appeal's judgment and that this was the context in which Mr Cowdery had provided the advice contained in the subject letters.

2. [43]

   It was submitted these reasons demonstrated that the Commissioner had taken into account irrelevant considerations, such that those reasons being discounted, his decision that he was not satisfied that there was a reasonable likelihood of a finding of professional misconduct by the Tribunal was necessarily unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Pty Limited v Wednesbury Corporation [1948] 1KB 223 at 229-230). It was further submitted that even if the reasons advanced by the Commissioner were relevant, it was nonetheless so plain that Mr Cowdery had deliberately misled the Director-General in his letters that the Commissioner's decision was itself Wednesbury unreasonable.

Consideration of the appellant's submissions

1. [44]

   The basis upon which the appellant asserts that the Commissioner's first reason demonstrates an irrelevant consideration is that Mr Cowdery's letters, when properly understood, leave no room for debate as to whether they contain a misrepresentation of the Court of Criminal Appeal's judgment. Accordingly, it was submitted that the first reason was factually incorrect. However, whether it is factually incorrect is not pertinent to the issue of irrelevancy. The Commissioner's opinion was that there was room for debate as to whether Mr Cowdery's letters could properly be said to misrepresent the Court's judgment. In my opinion, a consideration of whether there was room for debate was clearly relevant to the question which the Commissioner was required to address, namely, whether he was satisfied that there was a reasonable likelihood that Mr Cowdery would be found guilty of professional misconduct by the Tribunal.

2. [45]

   There is no question that Mr Cowdery, in his correspondence with the Director-General, took issue with the appellant's assertion that he had deliberately misled the Director-General, Deputy Ombudsman and the appellant by deliberately suppressing the fact that Allen J had criticised the prosecution in seeking to have the impugned evidence admitted in circumstances where it should have been more astute in avoiding any risk of unnecessary prejudice to the appellant. Mr Cowdery asserted, particularly in his letter to the Deputy Ombudsman of 7 June 2001, that the response to the first question contained in his letter to the Director-General of 17 September 1996 could not have implied that the subject criticism had not been made because it was self evident that the question upon which his advice had been sought was raised by that very criticism.

3. [46]

   It is in the foregoing context, in my opinion, that the Commissioner asserted that there was room for debate as to whether Mr Cowdery's letters could properly be said to have misrepresented the Court's judgment in the relevant respect. That was a factor which as I have said, he was entitled to take into account for the purposes of applying the test of "reasonable likelihood". Accordingly, in my opinion, the first basis of the appellant's challenge fails.

4. [47]

   The appellant submitted that the second reason advanced by the Commissioner in support of his decision raised a false issue as it was irrelevant that the Director-General had the means of disproving Mr Cowdery's alleged misrepresentation as to the content of the judgment. With respect, that is not the point of the Commissioner's comment. He was asserting that Mr Cowdery had provided advice in the context of his knowledge that the Director-General had in his possession a copy of the judgment which as Mr Cowdery accepted in his correspondence, clearly contained a criticism of the prosecution with respect to the adducing of the impugned evidence.

5. [48]

   In my opinion, it was open to the Commissioner to take the view, or at least to accept as arguable, that Mr Cowdery's letters to the Director-General proceeded upon the assumption that it was self evident that the Court had criticised the prosecution and that he was being asked to express his own opinion as to whether the adducing of such evidence represented an error on the part of the prosecution. The first question posed by Mr Cowdery's in his letter of 17 September 1996 demonstrates his understanding that clearly his personal opinion was being sought as to whether the adducing of the impugned evidence represented an error by the prosecution and the letter makes it plain that he considered that it was not an error to lead such evidence.

6. [49]

   As the primary Judge pointed out in [8] of his judgment, Mr Cowdery was expressing his own opinion, as he was entitled to do, that there was no error. He was not bound to accept the correctness of the contrary view formed by the Court of Criminal Appeal. As Mr Cowdery noted on page 2 of the letter dated 17 September 1996 (see [19] above), all judgments of the Court of Criminal Appeal are read and analysed by his office and particular regard is taken where the Court's comments in any way reflect adversely on the conduct of the prosecution. Rightly or wrongly, the present was a case where, notwithstanding the obiter remarks of Allen J upon which the appellant relies, Mr Cowdery adopted a contrary view.

7. [50]

   Whether or not one agrees with Mr Cowdery's opinion is not to the point. The fact that he expressed it and did so presumably bona fide, reflects upon whether there was a reasonable likelihood that he would be found guilty of professional conduct by the Tribunal on the ground that he had deliberately set out to misrepresent what the Court of Criminal Appeal had said insofar as it bore upon the conduct of the prosecution. It follows that the second reason advanced by the Commissioner did not constitute an irrelevant consideration to the ultimate question that he was required to address. Accordingly, this ground of challenge should also be rejected.

8. [51]

   The appellant also submitted that the Commissioner's decision was in any event Wednesbury unreasonable as it was clear beyond doubt that Mr Cowdery had deliberately misrepresented the Court's judgment, particularly in his letter of 17 September 1996 to the Director-General. The cogency or otherwise of this challenge depends upon whether in fact there is no explanation of Mr Cowdery's letter available other than that he deliberately and intentionally set out to mislead the Director-General by misrepresenting what the Court had said. It was submitted in the alternative that the conduct of Mr Cowdery in maintaining his position in later correspondence was such that it could not escape categorisation, at the least, as unsatisfactory professional conduct, being conduct which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.

9. [52]

   In my opinion, the answer to these submissions is to be found in the reasons advanced by the Commissioner in support of his decision that he was not relevantly satisfied in terms of the statutory test. As did the primary Judge, I do not consider that it is beyond argument that Mr Cowdery misrepresented the Court's judgment, especially in circumstances where he understood or was aware that the Director-General had a copy of that judgment and would have noted that it was unambiguously critical of the prosecution's conduct in seeking to adduce the impugned evidence. Furthermore, if the appellant's correspondence with the Commissioner were to be taken as any guide, it would not be unreasonable to infer that he would have extracted and emphasised the relevant part of the Court's judgment in his correspondence with the Director-General. The fact also remains that the Director-General was seeking Mr Cowdery's personal opinion as to whether the adducing of the impugned evidence represented a relevant error on the part of the prosecution.

10. [53]

    It is true that the appellant focussed upon that part of the letter of 17 September 1996 where Mr Cowdery had stated that although Allen J was of the belief that prejudice did flow to the appellant, his Honour:

11. [54]

    Except to the extent to which it is set out in the first paragraph of Allen J's judgment (recorded in [9] above), the precise sequence of events with respect to the adducing of the impugned evidence is not entirely clear. Certainly, it appears that when the evidence was adduced, there was an immediate application for a separate trial which the trial Judge rejected. Her Honour then gave the jury an appropriate warning with respect to that evidence. It is not apparent that there was a separate application by trial counsel for the appellant that the evidence should not be admitted or a separate ruling by the trial Judge thereon.

12. [55]

    It is true that in his letter of 17 September 1996 Mr Cowdery made reference to the fact that the evidence was prejudicial against the appellant and that:

13. [56]

    As I have already noted, the primary Judge made reference in [19] to the joint judgment in Wu Shan Liang. Their Honours referred to the statement of principle by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119, where his Honour said, inter alia:

14. [57]

    As the primary Judge observed, s 155 of the LPA requires the Commissioner to be satisfied that there was a reasonable likelihood that the relevant legal practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. The requirement that a decision maker be "satisfied" with respect to matters clearly involves matters of opinion. As such, as Gibbs J noted, it is "very difficult" to show that the decision could not reasonably have been reached in the required sense. The primary Judge concluded that the appellant's contention that the Commissioner's decision was so unreasonable that no reasonable person could have reached it should be rejected. I am of the same opinion. Accordingly, this ground of challenge should be rejected.

15. [58]

    It follows from the foregoing that the primary Judge was correct to dismiss the proceedings, even if Mr Cowdery's conduct in writing the subject letters did occur in connection with the practice of law.

16. [59]

    It is therefore unnecessary for the purpose of determining this appeal to resolve the question of whether Mr Cowdery's conduct did occur in connection with the practice of law. In refusing to deal with this issue it should not be thought that I either agree or disagree with the Commissioner's decision or the primary Judge's upholding of that decision. However, notwithstanding the obiter observations of O'Keefe J in Nye, I am prima facie of the opinion that, at least in respect of some of Mr Cowdery's functions under the DPP Act, he would be conducting himself in connection with the practice of law. It could not be gainsaid for instance that if he personally conducted a prosecution, he would be doing so in connection with the practice of law. Whether or not he was so conducting himself in the circumstances of the present case is in my opinion an open question.

Conclusion

1. [60]

   In my opinion, the decision of the Commissioner contained in his letter to the appellant of 4 February 2002 whereby he dismissed the appellant's complaint against Mr Cowdery is not infected by reviewable error and the primary Judge was correct in so finding. I would accordingly propose that the appeal be dismissed.

2. [61]

   The issue upon which I have decided the appeal had involved principally the appellant and Mr Cowdery. The Commissioner appeared only for the purpose of making submissions with respect to the meaning of the expression "in connection with the practice of law" where appearing in s 127(2) of the LPA and its application to the functions of Mr Cowdery under the DPP Act. In these circumstances, I would propose that the appellant should pay Mr Cowdery's costs of the appeal and the first respondent's costs on a submitting appearance basis.

3. [62]

   FOSTER AJA: I agree with Tobias JA.