1 By Information filed on 24 December 2004, the applicant claimed that the respondent was guilty of professional misconduct, on the ground that in proceedings in the District Court between 19 and 23 June 1995, the respondent adduced evidence from 5 witnesses, knowing that evidence to be untrue.

2 The particulars of that ground were as follows:

(a) On 18 November 1994 an armed robbery was committed at 1 Carol Crescent, Roselands, New South Wales.

(b) On 14 December 1994 Tony Haddad informed the respondent that Haddad was present during the commission of the armed robbery.

(c) On 19 June 1995 Tony Haddad, represented by the respondent, entered a plea of not guilty to the charges of armed robbery arising from the incident on 18 November 1994.

(d) On 21 June 1995 the respondent adduced evidence, knowing it to be untrue, from Tony Haddad to the effect that Haddad was not present at 1 Carol Crescent, Roselands, on 18 November 1994 and had never been to that address in his life.

(e) On 21 June 1995 the respondent adduced evidence, knowing it to be untrue, from Tony Haddad to the effect that, at the time the armed robbery was being committed at 1 Carol Crescent, Roselands, Haddad was in bed at his home at 26 Defoe Street, Punchbowl.

(f) On 22 June 1995 the respondent adduced evidence, knowing it to be untrue, from the following four persons:

(i) Christine Kondos;

(ii) Ahmad Farhat;

(iii) Nabil Haddad;

(iv) Shouhra Haddad;

which evidence was to the effect that, at the time the armed robbery was being committed at 1 Carol Crescent, Roselands, Tony Haddad was present at 26 Defoe Street, Punchbowl.

4 The proceedings were commenced under the Legal Profession Act 1987.

5 Section 127 of the Legal Profession Act 1987 defines professional misconduct as follows:

(1) For the purposes of this Part, professional misconduct includes:
(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or

(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or

(c) conduct that is declared to be professional misconduct by any provision of this Act, or

(d) a contravention of a provision of this Act or the regulations, being a contravention that is declared by the regulations to be professional misconduct.

7 The background to the proceedings commenced on 18 November 1994 when there occurred an armed robbery and assault at the home of the Mandadakis family in Carol Crescent, Roselands. It is not in dispute that four men entered the Mandadakis home to effect these crimes.

8 On 21 November 1994, the respondent was retained to act as counsel for Tony Haddad who was arrested on 23 November and charged with offences of robbery and assault arising from the events at the Mandadakis home on 18 November. The co-accused was Giovanni Treglia.

9 Haddad and Treglia stood trial before Judge Nash, sitting without a jury in the District Court of New South Wales in June 1995. The respondent represented Haddad. The respondent led alibi evidence from Haddad and 4 other witnesses (Christine Kondos, Ahmad Farhat, Nabil Haddad and Shouhra Haddad) to the effect that Haddad could not have been at the home of the Mandadakis family at the time of the assault and armed robbery, because he was at his family home in Defoe Street Punchbowl. The respondent also elicited evidence from Haddad that he had never been at the Roselands property in his life. In reliance upon that alibi evidence, Haddad was acquitted.

10 It is the case for the applicant, that at the time the respondent adduced alibi evidence from those five witnesses, he knew that Haddad had been at the house at the time of the assault and robbery, because Haddad had told the respondent that he had been present.

11 That conversation is alleged to have taken place on 14 December 1994, when, following service of the brief of evidence, the respondent had a conversation with Haddad and Treglia in the cells of Bankstown Police Station. Unbeknown to the respondent, police investigating the murder of Andre Rahme in November 1994, had obtained an order under the Listening Devices Act 1984 (NSW), permitting a listening device to be placed in the cell in which Haddad and Treglia were placed. The affidavit in support of the application for the listening device specified that “It is not the intention of investigating police to obtain information or evidence in relation to the armed robbery offences that Haddad and Treglia are presently charged with.”

12 The issue of whether or not the applicant in these proceedings could rely upon the recording obtained by police on 14 December 1994, was agreed by the parties to be a fundamental interlocutory issue. The Tribunal ruled that the Listening Devices Act 1984 (NSW) did not prohibit the use of the evidence of the conversation in these proceedings: New South Wales Bar Association v Punch [2006] NSWADT 191. That decision was upheld in the Court of Appeal: Punch v New South Wales Bar Association [2007] NSWCA 93.

13 The applicant alleges that the recorded conversation of 14 December 1994, would persuade the Tribunal that at the time the respondent led the alibi evidence at trial on 21 and 23 June 1995, he knew that his client had been present in the course of an armed robbery at the Mandadakis house on 18 November 1994.

14 The hearing in the substantive proceedings before the Tribunal was conducted on the tendered evidence. There being no claim for privilege from the respondent’s client, the tape and transcript were tendered without objection.

15 There is no dispute concerning the accuracy of the transcript of the recorded conversation tendered in these proceedings. The Tribunal viewed the video recording. This was an instance where viewing the video assisted the Tribunal to ultimately arrive at a view concerning the presence of Haddad at the time of the armed robbery relying upon his statements to the respondent.

16 It is abundantly clear from the transcript that the police brief of evidence is being discussed. That evidence included statements from the two daughters of the Mandadakis family who were present at the time of the armed robbery, one of whom, Effie Mandadakis, identified Haddad as one of the perpetrators. Her statement was to the effect that upon seeing Haddad, she instantly recognised him despite the fact that he was wearing a white mask over his mouth, which she pulled off. There can be no criticism of the respondent in relation to the conversation relating to an assessment of the case brought against his client.

17 The applicant relies upon the following passage between Haddad and the respondent:

Haddad:
“But she said, she said, in the house, she said, Rami, get out.”
Respondent:
“Yeah”

Haddad:
“She said something about Rami.”

Treglia
“Yeah”

Haddad:
“Rami get out, get out. I’ll, I, cause I was in the back room like I was telling you.”

Respondent:
“Yeah. Rami get out ...”

“Now if you’re not actually, physically in there. You were out the back but your still guilty you know, if they can prove that. But your whole case is just centred on if the prosecution can identify you. If you knock that out that’s the end of the case. They’ve got nothing else.”

Treglia:
“Who kicked her in the guts”

Respondent:
“The bloke holding the gun. That’s what she said anyway.”

Haddad:
“It wasn’t none of us.”

(a) not only did Haddad tell the respondent that he was present at the premises but he also gave the respondent details of the premises and what was said by others whilst he was there;

(b) the respondent clearly understood that what he was told by Haddad was in effect a confession of guilt; and

(c) what Haddad said to the respondent was clearly against his interests.

22 The applicant conducted the case on the basis that knowledge meant belief (T43/57 – 58). This appears to have been accepted by counsel for the respondent (T41/29 – 46).

23 It would not, however, have been enough to prove professional misconduct if the evidence merely showed that the respondent believed that Haddad was at the premises during the armed robbery. Barristers will sometimes find themselves in situations where the evidence strongly indicates that the client is not telling the truth. The fact that the barrister’s personal belief is that the client is not telling the truth as to the facts of the case, does not mean that the barrister is prohibited from conducting the case in accordance with the client’s instructions. That was not what the evidence revealed in these proceedings.

24 But if:

(a) a barrister believed that a client was present at certain premises and there committed a serious crime;

(b) the barrister held that belief because the client told the barrister the client was present and committed the crime; and

(c) the making of the admission by the client took place in circumstances which the barrister realised strongly supported the conclusion that the client was telling the barrister what in fact actually happened, then if the barrister later led evidence from the client that the client was not present, the barrister would be actively misleading the Court as to the facts – which is something a barrister must not do (see Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 220 – Lord Diplock). That would be professional misconduct.

27 The ethical conduct incumbent upon a barrister who retains a brief after a client has made a confession of guilt to the barrister, are clearly set out in Rule 33 of the New South Wales Barrister’s Rules:

“33. A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty:
(a) may return the brief, if there’s enough time for another legal practitioner to take over the case properly before the hearing, and the client does not insist on the barrister continuing to act for the client;

(b) in cases where the barrister keeps the brief for the client:

(i) must not falsely suggest that some other person committed the offence charged;

(ii) must not set up an affirmative case inconsistent with the confessions;

(iii) may argue the evidence as a whole does not prove that the client is guilty of the offence charged; and

(iv) may argue that for some reason of law the client is not guilty of the offence charged.”

29 The Tribunal is satisfied from viewing the video of the conversation, that there had been some previous conversation, unrecorded, between the respondent and Haddad, in which Haddad had informed the respondent that he was in a back room of the house. That view is strengthened by the respondent’s advice to Haddad “You were out the back but your still guilty you know, if they can prove that.” Inherent in that advice is an acceptance of the fact that Haddad was present at the premises.

30 Even, however, if the Tribunal were to proceed upon the basis that the respondent first became aware of Haddad’s presence in the house when Haddad said “Cause I was in the back room like I was telling you”, a barrister of far less experience than the respondent would have been alerted to the fact that this was a statement that required investigation. The fact that the respondent accepted the statement without demur or any attempt to question his client further, supports an inference leading to a finding that Haddad had already told him that he was in the back room. That view is strengthened again, by the fact that the respondent did not question Haddad about his assertion that “it wasn’t none of us” when the respondent refers to the kicking of the pregnant victim. Implicit in that statement from Haddad is an acceptance of the fact that he was present at the scene, and is only denying that either he or Treglia kicked the pregnant woman.

31 It was submitted for the respondent that the statement “it wasn’t none of us” does not contain within it an implicit assertion that the “persons” (sic) to whom Haddad is speaking were present.

32 Standing by itself, such a statement might not be persuasive that the speaker was present. In the context of the entirety of the recorded material, brief though it be, the Tribunal is satisfied that it implies that both Haddad and Treglia were, indeed, present.

33 The judgment of Nash DCJ at the trial of Haddad and Treglia, makes it very clear that he regarded Effie and Aphrodite Mandadakis and other members of their family as credible witnesses, and it was, in effect, only the preponderance of alibi evidence that ultimately persuaded the learned trial judge that he could not be satisfied beyond reasonable doubt. He specifically made the point that he did not disbelieve the two Mandadakis sisters.

34 After the transcript of 14 December 1994 came to the attention of the police who had prosecuted the original charges against Haddad and Treglia, they were both charged with perjury to which they pleaded guilty and were sentenced to terms of imprisonment.

35 The fact that Haddad and Treglia pleaded guilty to perjury is not evidence that the respondent was aware of the falsity of the alibi evidence at the time he adduced that evidence at their trial before Judge Nash.

36 Counsel for the respondent argued that, assuming that the respondent understood from the recorded conversation, that his client was admitting his guilt and acknowledging his presence in the Mandadakis home, the Tribunal should draw an inference that the respondent’s instructions changed prior to the trial before Nash DCJ

37 In submissions, counsel for the respondent conceded that the recorded conversation could lead to the view that Haddad was telling the respondent that he was present at the Mandadakis home and in a back room at some point in the proceedings.

38 It was submitted, however, that it was inconceivable that had the respondent’s instructions not changed, he would have called his client and 4 other witnesses to give alibi evidence. It was put to the Tribunal that in the face of an “apparent manifest” change of instructions supported by 4 alibi witnesses, it was reasonable for the respondent to accept that there was a change of instructions.

39 The Tribunal is asked to draw an inference that the respondent’s instructions changed between the date of the conversation in the cells and the date upon which he elicited alibi evidence from his client and 4 other witnesses. It is argued that having regard to the nature of the alibi evidence, the Bar Association is precluded from asserting that the respondent had actual knowledge that his client, and the other alibi witnesses were proposing to enter the witness box and give false evidence under oath.

40 It was argued, that this position is strengthened by the fact that Nash DCJ was persuaded by the alibi evidence. That overlooks the fact that his Honour was unaware of the conversation that had taken place in the cells.

41 It was submitted that the respondent, in accepting the alibi evidence, was accepting that his client had recanted the position adopted initially, and that the Tribunal should draw an inference that he had instructions to that effect.

42 Although it was argued that there was significant weakness in the identification evidence from the Mandadakis sisters at the trial, a fair reading of the decision of Nash DCJ does not support that proposition. His Honour was ultimately persuaded that the weight of the alibi evidence would not allow him to be satisfied of the guilt of the accused beyond reasonable doubt. He was nonetheless clearly troubled by the inconsistency between that evidence and the identification evidence led by the Crown from persons who he clearly assessed as credible witnesses. He quite properly resolved that conflict in favour of the accused.

43 The charge brought against the respondent by the Bar Association, is that he adduced evidence before Nash DCJ knowing it to be untrue. Knowledge in this context does not, of course, arise from direct knowledge but rather is the formation of a belief, a state of mind resulting from the instructions he obtained from his client together with the available evidence.

44 The respondent’s knowledge or belief at the time of the trial before Nash DCJ was a matter peculiarly within the respondent’s knowledge at the time of the hearing before the Tribunal.

45 The respondent was present in the Tribunal throughout the hearing. It was indicated at the outset that he did not intend to give evidence. He did not give evidence.

46 Counsel for the respondent submitted that it was open to the Tribunal to draw an inference that in leading the alibi evidence, the respondent must have received further instructions from his client to the effect that he had not been present in the course of the armed robbery. It was submitted that the Tribunal should consider the number of alibi witnesses who gave evidence at the trial of Haddad and Treglia, together with the asserted weakness of the identification evidence to support an inference that the respondent’s instructions must have changed.

47 Counsel for the applicant accepted that the applicant had to satisfy the Tribunal that it should draw the inference that the belief the respondent had in December 1994 continued up to and included the dates when he called Haddad and the four alibi witnesses and that in the absence of any evidence to the contrary, the Tribunal should draw that inference. Counsel also submitted that in the absence of the respondent going into the witness box to assert that somehow that belief had changed and to explain how that belief had changed, the Tribunal should infer that the belief continued (T47/8 – 13).

48 Counsel also submitted that the Tribunal should not accept that Haddad told the respondent that he was not present at the house at the time of the armed robbery or that Haddad attempted in any way to explain away what he told the respondent on 14 December 1994 (T45/10-13).

49 It was submitted on behalf of the respondent that the fact that five witnesses, including Haddad, gave alibi statements, was consistent with a hypothesis (which the applicant had not excluded) that the respondent had received an explanation from Haddad as to why the earlier statements he made on 14 December 1994 had been made, and those statements were incorrect (T29/12 – 22).

50 The fact, however, that the respondent led that evidence does not mean that Haddad instructed the respondent that he was not present. In particular it does not mean that Haddad satisfactorily explained to the to the respondent (so that he believed him) that what he told the respondent on 14 December 1994 was incorrect and that the correct position was that he had not been present at the premises. In other words the fact that the respondent led the alibi evidence does not mean that the respondent subsequently received instructions from Haddad, in such circumstances as enabled him to lead the alibi evidence, or in such circumstances that the respondent believed the explanation for the change in instructions.

51 It is obvious that a submission that asks the Tribunal to draw an inference concerning the respondent’s state of knowledge at the relevant time, immediately raises the question as to why the respondent did not go into the witness box to give evidence of a matter that was peculiarly within his own knowledge. The respondent’s state of knowledge or belief was fundamental to the case brought by the applicant. It was a question, the answer to which was within the knowledge of the respondent.

52 In New South Wales Bar Association v Meakes [2006] NSWCA 340, Tobias JA (with whom Bryson and Basten JJA agreed), dealing with the failure of the respondent to give evidence before the Tribunal said:

“Yet these were the very matters that were wholly within the knowledge of the respondent and which he was (sic) did not offer to answer in the witness box. On the contrary, he chose the safety of the well of the Tribunal. Notwithstanding the advice of the then senior counsel, the respondent’s refusal to enter the witness box and provide evidence with respect to the matters referred to should have been the subject of harsh criticism by the Tribunal. Moreover, if that evidence had otherwise been relevant to the issue, his refusal to provide it would have significantly detracted from the weight to be attached to the tendered character references. In these circumstances, the only inference one can draw from the respondent’s refusal to give sworn testimony in this matter was that his evidence would not have assisted his case in resisting a finding of professional misconduct.” [paragraph 77]

54 This Tribunal adopts the opinions expressed by the Court in Meakes. In the absence of sworn evidence from the respondent, the Tribunal is asked to draw an inference that before eliciting the alibi evidence at trial, the respondent received instructions contrary to the clear admission in the recorded conversation.

55 The respondent was present in the Tribunal throughout the hearing of the substantive proceedings. He chose not to go into the witness box to give sworn evidence. The Tribunal draws an inference, accordingly, that the respondent’s sworn testimony would not have assisted his case in resisting a finding of professional misconduct.

56 In those circumstances the Tribunal draws an inference that the state of the respondent’s knowledge did not change between the conversation in the cells on 14 December 1994 and the date of trial before Nash DCJ.

57 The relevant standard of proof in these proceedings is that laid down in Briginshaw v Briginshaw (1938) 60 CLR 336.

58 The Tribunal is satisfied to the requisite standard that at the time of leading alibi evidence from Haddad and 4 supporting witnesses in June 1995, the respondent adduced evidence from each of those witnesses knowing that evidence to be untrue.

59 Misconduct of such gravity inevitably leads to a finding that the respondent is guilty of professional misconduct.

60 The parties did not address the issue as to whether or not a finding of professional misconduct in the circumstances of this case, leads inevitably to a finding that the respondent is not a fit and proper person to remain upon the Roll of Legal Practitioners.

61 The issue of dispositive orders not having been addressed by the parties in submissions, the Tribunal proposes to allow the parties 14 days from the date of publication of this decision within which to file and serve written submissions on the issue of the appropriate disciplinary orders, and, if desired, to re-list the matter for oral submissions within the same period.

62 If neither party files an application for oral submissions, after the expiration of 14 days the Tribunal will determine the issue of dispositive orders taking into account any written submissions received.

ORDERS

1. The respondent is guilty of Professional Misconduct

2. The decision of this Tribunal to be published

3. The respondent to pay the costs of the applicant as agreed or assessed

4. Within 14 days of this decision, both parties to file and serve submissions on the issue of dispositive orders consequent upon the findings of the Tribunal.

5. Both parties have leave to file and serve, within 14 days, an application to have the matter re-listed before the Tribunal for oral submissions on the issue of dispositive orders.