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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
APPELLATE JURISDICTION
CIVIL APPEAL NO. ABU 65 of 2013
(ILSC No. 10 of 2013)
BETWEEN:
AMRIT SEN
Appellant
AND:
THE CHIEF REGISTRAR
Respondent
Coram : Lecamwasam JA
Almeida Guneratne JA
Amaratunga JA
Counsel : Mr. G. O'Driscoll for the Appellant
Mr. V. Sharma for the Respondent
Date of Hearing : 13 November 2015
Date of Judgment : 3 December 2015
JUDGMENT
Lecamwasam JA
[1] I am in total agreement with Guneratne JA.
Almeida Guneratne JA
Introduction – Nature of this Appeal
[2] This is an appeal against an order dated 6 November, 2013 of the Commissioner appointed in terms of and in pursuance of the powers vested in him under the provisions of the Legal Practitioners Decree (2009) hereinafter referred to as the LPD).
[3] By that order the learned Commissioner found one of the two charges preferred against the Appellant, a legal practitioner, established.
The Two Charges (or Counts)
[4] The Appellant was charged on two counts (viz:)
"Count 1
Mr. Amrit Sen, a Legal Practitioner, on the 10th May, 2011 while appearing for the matter State v Hari Lal Junior, attacked the reputation of the prosecutor without a good cause by stating 'you tell lies to the court and your mouth stinks, nobody wants to sit near you', which conduct was a contravention of Rule 3.5 of the Rules of Professional Conduct and Practice and was an act of Professional Misconduct.
Count 2
Mr. Amrit Sen, a Legal Practitioner, on 10th may 2011 while appearing for the matter State v Hari Lal Junior, showed discourtesy to the court by raising his voice to an unacceptable level and by attacking the reputation of the Prosecutor in the presence of the Magistrate which conduct was a contravention of Rule 3.2(i) of the Rules of Professional Conduct and Practice and was an act of Professional Misconduct."
[5] The learned Commissioner having found that Count 1 was not established however found that Count 2 was proved and reprimanded the Appellant and in addition imposed a fine of FJD$5,000.00.
[6] In meting out that punishment the learned Commissioner held thus:
"I find the facts of the second count are made out but I disagree that it was such a serious failing that it would make it an act of professional misconduct as charged. It is an act of unsatisfactory conduct and the Commission finds that lesser act established."
(page 8 of the Record of the High Court [RHC] as per the Commissioner's Judgment/Order).
Comparison of the Two Charges
[7] "Attacking the reputation" is common to both charges. While Charge 1 refers to the use of specific words, Charge 2 adds the words "in the presence of the Magistrate" which makes no reference to any specific words.
[8] As my brother Justice Amaratunga noted in the course of the hearing, the impugned event apparently had taken place in two stages, the first, before the Magistrate had come on the bench and the second, after. The proceedings do not reveal how the Appellant is supposed to have attacked the reputation of the prosecutor "in the presence of the Magistrate."
Contradicting or even Supplementing a Court Record
[9] It is an accepted principle that, a Court record cannot be contradicted by extrinsic evidence for which no authority is needed to be cited.
[10] I go further in laying down as a legal proposition that, a Court record ought not to be supplemented either by extrinsic evidence for it would be evidence of a self serving nature. I say this in relation to the evidence of the witnesses called by the Respondent.
The Magistrate's observations or notations
[11] Thus, in my view the matter remains to be determined, in so far as Charge 2 is concerned, on the observations or notations the Magistrate made on Record (vide: p.17 of the RHC).
The Three Material Observations or Notations made by the Magistrate
[12] The first observation made by the Magistrate is evidently on the Appellant commenting on the prosecutor's "bad breath and thus being undesirable to sit next to him."
[13] It is to be noted that, the Magistrate makes no record of any attack on the reputation of the prosecutor (Cpl. Hassan). It was only in regard to Cpl. Hassan's 'bad breath'.
[14] However, in the second notation the Magistrate made, His Honour advised Cpl. Hassan Thus: "if you feel threatened by Mr. Sen's (the Appellant's) behaviour then you should report it to the Chief Registrar."
[15] The inference that could be drawn from that Magisterial advice is that, assuming the Appellant had 'threatened' Cpl. Hassan, it had happened before the Magistrate had ascended the bench and not in his presence. Furthermore, one is left to the area of conjecture as to what threatening words the Appellant is supposed to have used.
[16] The third (and the last observation) made by the Magistrate is the one that warrants some consideration in depth having regard to the established principles in the context of a legal practitioner's conduct.
[17] The Magistrate noted thus:
"Mr. Sen was very loud and aggressive towards Cpl. Hassan in Court. He was raising his voice to an unacceptable level embarrassing Cpl. Hassan in the presence of other Counsel(s) and members of the public."
Features of that Magisterial observation as impacting on this Appeal
[18] The Magistrate noted:-
That, Mr. Sen (the Appellant) was very loud and aggressive towards Cpl. Hassan in Court.
Being loud and aggressive
[19] I pause in reflecting upon the fact that, some counsel are naturally loud and aggressive, and is not a matter that could be found fault with per se on any legal principle given the fact that, the Magistrate, as the Record reads did not give a warning in Court or in chambers in that regard. (see in that connection some useful dicta in Hugo -v- R [2000] WASCA 199 per Shelter, JA).
Raising his voice to an unacceptable level
[20] This feature stands entirely on a different footing. "Unacceptable level" to whom?
[21] It does not require an exercise in semantics to hold that it was to an "unacceptable level" to Court. The tenor of the said Magisterial notation would justify that view.
Embarrassing Cpl. Hassan in the presence of other Counsel (sic) and members of the public
[22] Although Cpl. Hassan (a police officer) was not a fellow lawyer, nevertheless he was acting in the role of a prosecutor in Court.
[23] Cpl. Hassan and the Appellant were both representing respective parties in a matter involving a traffic offence. The legal system allowed Cpl. Hassan to represent the party he was appearing for in the role of prosecutor.
[24] Accordingly, Cpl. Hassan was entitled to the same courtesies a legal practitioner was entitled to.
[25] Raising his voice to an unacceptable level embarrassing Cpl. Hassan (the prosecutor) in the presence of other counsel and members of the public, (as the Magistrate noted), reveals that the Appellant had not shown that degree of courtesy which was expected of him by professional standards.
Ethical standard contained in a legal practitioner's professional conduct
[26] Thus, the matter did not depend on whether Cpl. Hassan was not a legal practitioner. Rather, it depended on the conduct of the Appellant as a legal practitioner in a Court of law. It is that ethical component contained in his professional conduct that needed to be looked at.
Had the Appellant met the requisite ethical standard in his professional conduct as a Legal Practitioner?
[27] I think not and I pause at this point to reflect on how the learned Commissioner viewed the matter.
Professional Misconduct as opposed to unsatisfactory professional conduct
[28] The charge in question (Charge 2) is on professional misconduct. However, the learned Commissioner substituted "unsatisfactory professional conduct" in lieu thereof and held that the same had been established.
[29] Learned Counsel for the Appellant did not join issue with that approach adapted by the Commissioner for which reason I shall not say anything on that and shall proceed to deal with the matter of the present appeal on the basis that, the charge in question was one based on "unsatisfactory professional conduct."
Unsatisfactory Professional Conduct as defined in the Legal Practitioners Decree and Rules made thereunder
[30] The relevant provisions in the Legal Practitioners Decree may be recounted as follows:
"S.82 (1) For the purposes of this Decree, 'professional misconduct' includes –
(a) unsatisfactory professional conduct of a legal practitioner, a law firm or an employee or agent of a legal practitioner or law firm, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; or
(b) conduct of a legal practitioner, a law firm or an employee or agent of a legal practitioner or law firm, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice, or that the law firm is not fit and proper to operate as a law firm.
S.83 (1) Without limiting sections 81 and 82, the following conduct is capable of being 'unsatisfactory professional conduct' or ' professional misconduct' for the purposes of this Decree:
(a) conduct consisting of a contravention of this Decree, the regulations and rules made under this Decree, or the Rules of Professional Conduct.
(2) 'Professional misconduct' includes malpractice, and 'unsatisfactory professional conduct' includes unprofessional practice or conduct.
Rule 3.2(1) A practitioner shall at all times:-
(i) act with due courtesy to the Court."
[31] While the terms of Section 82(1) in my view would not be found established in the context of the impugned conduct, I have no hesitation in holding that, the said conduct on the part of the Appellant amounted to "unsatisfactory professional conduct" in terms of Section 83(1)(a) read with Section 83(2) of the Legal Practitioners Decree.
Proper construction to be placed on Section 83(2) – An Inclusionary Provision
[32] The said section, in my view, decreeing an inclusionary provision as it does, vests in the Commissioner power and consequently
discretion to recognise categories of "unprofessional practice and conduct" for such categories could never be closed and would depend
on the facts and circumstances of each case.
[33] Indeed, the Appellant being "very loud and aggressive towards Cpl. Hassan in Court ... ... raising his voice to an unacceptable level embarrassing Cpl. Hassan in the presence of other Counsel and members of the public" (which the Magistrate observed) and which the learned Commissioner took cognizance of, certainly amounted to "unsatisfactory professional conduct."
The ethical requirement of courtesy in Court even to a non-legal practitioner representing a party in Court as Prosecutor
[34] I go further in laying down as a proposition that, the ethical standards expected of a legal practitioner in the interest and dignity of the legal profession require such a practitioner to be courteous even to a non-legal practitioner entitled by the legal system to represent a party in a Court of law.
[35] Perhaps no discourtesy was shown to Court in a direct sense. Had it been otherwise the Magistrate ought to have noted it. The Appellant was not admonished nor was he put on caution by the Magistrate. However, the Magistrate's observations reveal that there was discourtesy shown to the prosecutor (Cpl. Hassan), though not a legal practitioner, who was in the shoes of a pleader and therefore on par with a legal practitioner for the purposes of the proceedings in Court.
[36] As I have stated earlier, it was not the professional status of the said prosecutor as not being a legal practitioner that was material but the conduct of the Appellant as a legal practitioner which was found to be "unsatisfactory" by the learned Commissioner. Consequently, discourtesy to the said prosecutor was tantamount to discourtesy to Court satisfying the terms of Rule 3.2(i) as well.
[37] Viewing the matter from that perspective I cannot find any misdirection on the part of the learned Commissioner in exercising his vested powers under the LPD which in turn conferred discretion on him to determine the matter of "unsatisfactory professional conduct" against the Appellant for power implies discretion. His finding could be disturbed by an appellate or a reviewing court only if it had been exercised unreasonably or by not taking into account relevant considerations or by taking into account irrelevant considerations.
[38] In the facts and circumstances of the present case, I could not find any basis to hold so.
Conclusion on the question of liability re Charge 2
[39] Accordingly I hold, agreeing with the learned Commissioner's finding that, Charge 2, (as modified), had been established.
Degree of Proof Required in Proceedings against Legal Practitioners
[40] What is the standard of proof necessary to establish unsatisfactory professional conduct?
[41] Relying on Chief Registrar -v- Prasad [2014] FJILSC3; No. 019.2013 (19 March, 2014) learned Counsel for the Appellant submitted that, in order to prove discourtesy to Court it had to be established on a preponderance of probabilities "which must be always to the benefit of the practitioner and not to the complainant." He submitted further that a higher standard of proof is required in disciplinary proceedings against legal practitioners.
[42] While it is my view that the words "which must be always for the benefit of the practitioner" amount to a flourish, having regard to the sui generis nature of disciplinary proceedings, being neither criminal nor civil, the matter of degree of proof certainly appears to have generated some equivocality. Expressions have been used such as "a high degree of satisfaction" (O'Reilly -v- Law Society of New South Wales [1988] 24 NSWLR 204), "comfortably and confidently satisfied" (Re Hodgekiss [1959] 62 SR (NSW) 340, "very sure". Ziems v. Prothonotary of the Supreme Court of New South Wales [1957] 97 CLR)
[43] While those judicial expressions clearly do not amount to the criminal standard of "a beyond reasonable doubt" they do suggest a more exacting standard than the ordinary civil standard.
[44] To that extent I do find merit in Mr. O'Driscoll's submissions.
Absence of Legislation as to the Requisite Standard of Proof in Disciplinary Proceedings against Legal Practitioners in Fiji
[45] Neither the Legal Practitioners Decree 2009, nor any other legislation in Fiji has decreed a particular standard of proof required to establish "professional misconduct" or "unsatisfactory professional conduct" against a legal practitioner as contrasted with some other jurisdictions, such as for example in Queensland which addresses the issue explicitly, applying as it has done the civil standard (See: Section 649(1) of the Comparable Queensland legislation).
[46] Indeed as way back as in the year 1993, an English Judge, Lord Lane, C.J. had lamented that it was "not altogether helpful" to leave the standard of proof "somewhere undefined between the criminal and the civil standard" (Re a Solicitor [1993] QB 69 at 81).
[47] That judicial lament had had a history behind it which I think is not necessary to embark on. (See: however, G.E. Dal Pont (infra) at p.519, where the learned author recounts how in Campbell -v- Hamlett [2005] EWHC 245; [2005] 3 All ER 1116 the Privy Council had applied the criminal standard contrary to what had been assumed to be the law as had been laid down in an earlier decision of the Privy Council (vide: [1956] 1WLR 1442) responding to the Bar Code of Conduct (not legislation) which had demanded the application of the criminal standard.
Semantics against a practical approach?
[48] The afore-counted divergent schools of thought drives me to make the observation as to whether a civil standard variantly applied as against a criminal standard could make any difference to the outcome in practice of a Charge in question against a legal practitioner or whether, if it were otherwise, the whole query would be reduced to nothing more than an exercise in semantics.
[49] Grappling as I did with this issue, I found the thinking reflected in a series of cases which have propounded that the requisite degree of proof would vary between cases and where it lies within the continuum rests on the gravity of the alleged conduct in question.
(vide: Re a Barrister & Solicitor (1979) 40 FLR 1 at 21 (FC ACT)); New South Wales Bar Association v Livesey [1982] 2 NSWLR 231 at 238 per Hope JA; O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 220 per Clarke JA; Kerin v Legal Practitioners Complaints Committee [1996] SASC 5650; (1996) 67 SASR 149 at 153 per Millhouse J. See also Z -v- Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1 per Elias, C.J.)
How the learned Commissioner viewed the Matter
[50] The thinking reflected in the said decision is seen in the approach of the learned Commissioner. He found the evidence relating to the 1st Charge based on professional misconduct as not having been made out, a serious charge, which might have required a high degree of proof. He found him guilty of the 2nd Charge – unsatisfactory professional conduct – a lesser Charge. To sustain it, the Magistrate's observation per se would have sufficed without the need for further evidence although much labour had been lost on both sides by resorting to the evidence of other witnesses on what is and what is not stated in the Magistrate's Court proceedings.
The Matter of the Defective Charge
[51] Another matter remains to be addressed. That is, Mr. O'Driscoll's argument that the charge in question could not have been sustained in any event for the reason that, while the charge mentioned 10 May, 2011 as the date on which the incident had taken place, the evidence showed that in fact the correct date was 12 April, 2011.
[52] Accordingly, Counsel submitted that, without an amendment the Charge could not have been maintained.
Wrong date in the Charge not Fatal
[53] As the proceedings before the Commissioner reveal the matter of the wrong date had surfaced after the Respondent (Chief Registrar) had closed his case at which stage an amendment was not possible. The Appellant's Counsel himself had conceded that it was not fatal. Some explanations for the wrong date being put were also forthcoming. (vide: page 87 of the HCR).
[54] The learned Commissioner also observed that, "All are agreed that the relevant date is in fact the 12th April." (vide: page 7 of the HCR).
[55] Accordingly, I do not think it is necessary to spend more labour on that matter.
Conclusion on the Finding re: the Charge
[56] For the aforesaid reasons I affirm the order of the learned Commissioner dated 6th November, 2013 that Charge 2 was established.
Re: The Punishments or Penalties Imposed
[57] By way of punishment or penalty the learned Commissioner
(i) Reprimanded the Appellant
(ii) Imposed a fine of FJD$5,000.00.
The Reprimand
[58] It has been held in the Australian case of Chamberlain -v- Australian Capital Territory Law Society [1993] FCA 527; [1993] 118 ALR 54 that, "A reprimand as a form of discipline is usually confined to breaches of professional standards that are not so substantial as to merit suspension or striking off." (at p. 62 per Black C.J.)
[59] The learned Commissioner found the Appellant guilty of not "professional misconduct" but "unsatisfactory professional conduct" that is, a "not so substantial" breach.
[60] A reprimand "has the effect of identifying standards the establishment and maintenance of which protects the public"(vide: Prothonotary of the Supreme Court of New South Wales -v- Chapman cited by G. E. Dal Pont in his informative work on Lawyers' Professional Responsibility (4th ed., Thomas Reuters, 2010 at p.526).
[61] Lawyers who on single occasions have used insulting or offensive language on an opponent have been reprimanded. (See: Re: a Solicitor [1952] 69WNNSW 356 at 358 per Street C.J.).
[62] In the instant case, though alleged in Charge 1 the learned Commissioner did not hold on the evidence that, the Appellant had used insulting or offensive language, the reason why the Commissioner discharged the Appellant in respect of that Charge.
[63] Nevertheless, in the Magistrate's Court's proceedings the learned Magistrate had observed that the Appellant had raised his voice to an unaccepted level embarrassing his opponent. The Magistrate apparently felt that the impugned conduct warranted for it to be recorded. Indeed, the Appellant had transgressed his role as a practitioner.
[64] In the circumstances the reprimand was justified and I affirm that part of the punishment imposed by the Commissioner.
Would a reprimand only have sufficed in regard to the Appellant's conduct?
Some helpful judicial decisions – on unprofessional or unsatisfactory professional conduct
[65] Lawyers who approached jury members subsequent to trial Prothonotary -v- Jackson [1976] 2 NSW LR 457 at 462; Lawyers who had acted for both parties to a transaction involving a potential conflict Re: a Practitioner [1975] 12 SASR 166 at 172-173; lawyers altering the jurat of an affidavit in the absence of the deponent to formally re-swear it Re: a Barrister and Solicitor [1984] 73 FLR 79 had only received reprimands.
[66] Those instances stand in sharp contrast to the instant case under consideration which, arguably had been more serious.
[67] In Legal Services Commissioner -v- Winning [2008] LPT 13, the facts of which were somewhat similar to the instant case (as alleged), the respondent was found to have engaged in unprofessional conduct arising out of expressing himself in a "crude, vulgar, undisciplined way" to others in the legal profession. He had been publicly reprimanded as a consequence.
[68] On the other hand, a barrister who had used abusive and disrespectful language towards the Judge and opposing counsel had been suspended from practice for three months on the basis of "unsatisfactory professional conduct."
[69] But, in that case the abusive and disrespectful language had been used on five different occasions. The language held to be abusive had included the word 'improper' concerning the actions of the prosecutor. He had also said to the Judge, who had closed the Court to the public for most of the Crown's case:
"We will have a star chamber in the proceedings where sometimes the Court is closed and sometimes open."
(See: di Suvero –v- Bar Association of New South Wales [2001] NSW ADTAP 9).
[70] In the instant case there was no abusive language used against the Judge. The Appellant had said something to "embarrass" the prosecutor only.
[71] The learned Commissioner himself observed thus:
"Even taken at its lowest, on the evidence of the two solicitors involved, it was an unprofessional, demeaning and petty exchange
in front of the general public and neither the practitioner, nor the Police officer should have let it happen nor does it reflect
well on either of them."
(Paragraph 12 of the Order at p.7 of the HCR).
[72] Other than the specific observation made by the Magistrate in the proceedings that were in question (referred to earlier in this Judgment) the learned Commissioner himself was "not sure even on the test of the shifting preponderance of probabilities that (the alleged) (paranthesis is mine) words were said," the reason why he held that the allegation in Count 1 was not established.
(Paragraph 16 of the Commissioner's Order at p.7 of the HCR).
[73] Moreover, the Commissioner, after narrating the background to the incident observed thus:
"The Commissioner is saddened that this most unseemly petty squabble between a practitioner and a Police prosecutor should be brought before it for determination. There are no doubt many other more serious allegations against practitioners awaiting hearing and determination without taking the time and expense to prosecute this matter which is trivial and embarrassing to all parties involved (including this Commission)."
The aim of disciplinary proceedings
[74] The chief purpose served by disciplinary proceedings is the protection of the members of the public from professional misconduct of lawyers as opposed to unsatisfactory conduct which in turn recognises the public interest in the integrity of members of the profession and the reputation of the profession itself. (See in this connection Southern Law Society -v- Westbrook [1910] HCA 31; [1910] 10 CLR 609, at 625 per Isaacs J., Ziems -v- Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; [1957] 97 CLR 279 at 286 per Dixon CJ; Clyne -v- New South Wales Bar Association [1960] HCA 40; [1960] 104 CLR 186 at 201-202 and Smith -v- New South Wales [1992] HCA 36; [1992] 176 CLR 256 at 270 per Deane J.
Message conveyed through a Disciplinary Order
[75] As held in Law Society of New South Wales -v- Foreman [1994] 34 NSWLR 408, at 441 per Giles, AJA, a disciplinary order aims to deter other lawyers from engaging in conduct that is unbecoming.
[76] And what was the impugned conduct in the instant case? "Being aggressive towards the opponent and raising the voice to an unacceptable level embarrassing the opponent in the presence of other Counsel and members of the public" which was held to be "trivial" by the learned Commissioner himself.
[77] No doubt, there are judicial statements that the protection of the public requires meting out proper punishment and that grave
forms of misconduct justify a punitive response.
(See Re Nelson (1991) 106 ACTR 1 at 24-25 per Higgins and Foster JJ. Cf Re Evatt (1967) 67 SR (NSW) 236 at 249-250 (CA); Bolton v Law Society [1993] EWCA Civ 32; [1994] 2 All ER 486 at 492 per Sir Thomas Bingham MR).
[78] I agree with the view expressed by G E Dal Pont (supra at p.516) that "a fine is, ... ... ostensibly punitive in nature", where the learned author makes reference to several judicial statements therein.
Conclusion
[79] Taking all the aforesaid factors into consideration, with all due respect to the learned Commissioner, I am of the view that the reprimand which the learned Commissioner served on the Appellant would have been proportionate to meet the aim or objectives of disciplinary proceedings, having regard to the "trivial" nature of the impugned conduct that was in question, as held by the learned Commissioner himself.
[80] In the circumstances, it would not be necessary to deal with the submissions made by Counsel on behalf of the parties in regard to mitigation of the penalties imposed which would have relevance only to the fine of FJD$5,000.00 that was imposed.
Amaratunga JA
[81] I had the opportunity in reading the judgment of Guneratne JA and I concur with the final orders.
This is an appeal against the Judgment of the Learned Commissioner of the Independent Legal Commission dated 6th November, 2013 against a legal practitioner. There were two charges against the said legal practitioner and both related to breaches of rules relating to professional conduct. The Learned Commissioner found that the test of shifting preponderance of probabilities the words stated in the first count was not established.
In the same Judgment the Learned Commissioner found that the prosecution has established a lesser count of unsatisfactory professional conduct in terms of Section 83(1)(a) of the Legal Practitioners Decree as he failed to act with due courtesy to the court as stipulated in Rule 3.2(1) of the Rules of Professional conduct.
The count 1 deals with the alleged incident happened before the Learned Magistrate presided. The allegation was that the practitioner had stated certain things to Cpl Hassan who was the prosecutor in a criminal case before the Learned Magistrate.
The count 2 relates to the conduct of the practitioner before the leaned Magistrate when the Cpl Hassan had complained to the Learned Magistrate of the alleged conduct of the practitioner.
The court clerk Jale in his evidence said that while Cpl Hassan was complaining about the conduct of the practitioner, he had stood up and tried to justify himself loudly in court.
The Learned Magistrate had recorded this behavior as '.... Very loud and aggressive towards Cpl Hassan in court. He was raising his voice to an unacceptable level embarrassing Cpl Hassan in the presence of entire counsels (sic) and members of the public.'
In the analysis of the evidence the interjection of the Practitioner was unacceptably loud. It was not only the raising of voice, but the circumstances and the manner in which it was done that cannot be condoned.
According to the record the practitioner had raised his voice to 'an unacceptable level' to the court and Learned Magistrate was the sole judge on that fact. A lawyer who gave evidence for the Appellant before the Learned Commissioner tried to dispute this fact recorded by the Learned Magistrate. I prefer to accept the notes of the Learned Magistrate to a lawyer on two grounds. Firstly, the notes of the Learned Magistrate were contemporaneous recording of facts as opposed to any evidence given by a witness who had not made any notes or records of the incident. Secondly, even if there were some notes made by the said lawyer, it cannot override the court records. If there was a conflict relating to the facts court record should be believed. It should also be noted that what is acceptable and not acceptable to the court cannot be decided by an oral evidence of a lawyer.
In Thompson –v- Andrews – [1968] 2 All ER 419 at p 420 Salmon LJ stated,
"If the note had been counsel's note and was not agreed between counsel as being accurate and it was different from the note taken by the Judge, I would even in those circumstances be inclined to stick to the judge's note."
According to the text 'Lawyers' Professional Responsibility' by G.E. Dal Pont, 'disciplinary proceedings aim to protect members of the public from misconduct by lawyers' (Southern Law Society –v- Westbrook [1910] HCA 31; (1910) 10 CLR 609 at 622 per O'Connor J; Weaver -v- Law Society of New South Wales [1979] HCA 35; (1979) 53 ALJR 585 per Mason J; Wentworth -v- New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 252 per Deane, Dawson, Toobey and Gaudron JJ: Smith -v- New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 AT 270 per Deane J.)'[1]
Embarrassing a prosecutor in front of the public in a court room by a legal practitioner is not in the best interest of the public. If a prosecutor is inhibited by embarrassment the prosecution will get effected and a fair trial cannot be expected in such a situation.
In the circumstances, first the legal practitioner had interjected of Cpl Hassan's complaint to the Learned Magistrate of alleged incident that happened prior to the arrival of the Magistrate, in an unacceptably loud manner. Secondly, he was 'very loud and aggressive towards Cpl Hassan in court' and thirdly his voice was loud and unacceptable and 'embarrassing Cpl Hassan' and according to the notes of the magistrate all of this happened in front of the public. Considering the totality of the evidence the actions of legal practitioner constituted unsatisfactory professional conduct.
The counsel for the Appellant contended that his client was not given an opportunity to mitigate before the Learned Commissioner. In the evidence in chief before the Commissioner, the Practitioner had given evidence relating to his education, practice and reputation. These facts were already before the Learned commissioner for consideration when final orders were made.
Apart from that the Learned Commissioner had to remind the practitioner in the following manner while he was giving evidence before the Learned Commissioner; (see page 102 of the Appeal Record i.e p 47 of transcripts of the commission).
'Mr Sen would you please be courteous to the prosecutor she's just doing her job'
The said conduct before the Learned Commissioner can be considered as an 'aggravating factor'.
The behavior of the practitioner before the Commission can affect the final orders. (See Hannebery –v- Legal Ombudsman [1998] VSCA142 at [22] per Tadgen JA.[2]
I think the following passage of the judgment of Sir Thomas Bingham MR in the case of Bolton -v- Law Society - [1993] EWCA Civ 32; [1994] 2 All ER 486, 492 is worth mentioning here,
"It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.
Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren." (emphasis added)
The Bolton –v- Law Society (Supra) was followed in R (on the application of Coke-Walls) –v- Institute of Chartered Accountants in England and Wales [2011] 2 All ER1 and held, that Lord Collins SCJ at p18;
"The primary purpose of professional disciplinary proceedings is not to punish, but to protect the public; to maintain public confidence in the integrity of the profession, and to uphold proper standards of behavior"
In the circumstances I do not think that there was merit in the appeal ground 6, and there was harshness in the punishment meted to the practitioner by reason of not allowing mitigation. As I have indicated above there were mitigatory as well as aggravating factors before the Learned Commissioner before the pronouncement of the final orders. There was no mandatory requirement for mitigation in terms of Section 121 of the Legal Practitioners Decree 2009 considering the orders made in this instance.
The orders of the Independent Legal Commission should deliver a clear and loud message, irrespective of the popularity, imminence or seniority of the practitioner. If the conduct of the practitioner was unacceptable that needs to be treated seriously.[3] (See: Re Robb (1996) 134 FLR 294 at 330.)
Orders of Court
Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL
Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL
Hon. Justice G. Amaratunga
JUSTICE OF APPEAL
[1] G.E. Dal Pont, Lawyers’ Professional Responsibility (4th Ed) (Thomas Reuters) 515
[2] Ibid at p517[23.40]
[3] Ibid at p 515[23.20]
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