Nerbas was one of a number of Canadian men who imported into Australia a large amount of illicit drugs packed in computer monitors. One of the men (Reed) pleaded guilty, was sentenced and gave evidence for the Crown at a trial where Nerbas and others, called Handlen and Paddison, were also accused.
There were allegedly two importations. One had been successful. The drugs had been imported and, presumably, distributed. The second importation was detected by police and intercepted. The various accused faced charges of importing a border controlled drug into Australia,2 possession of a border controlled drug3 and attempted possession of a border controlled drug.4 Handlen and Paddison were convicted by jury verdict.
The trial was very difficult. In the Court of Appeal it was held that the Crown case “was advanced and left to the jury in terms alien to the forms of criminal responsibility then known and recognised by the Criminal Code”.5 Perhaps surprisingly the Court of Appeal then applied the proviso6 and upheld the convictions. The convictions of Handlen and Paddison were ultimately overturned by the High Court.7
During the trial, Nerbas changed his pleas. Upon his pleas of guilty, the jury were discharged from returning a verdict against him and he was remanded in custody to be sentenced.
Later Nerbas claimed that his pleas of guilty were not voluntarily made. His application to vacate the pleas was dismissed, but he successfully appealed to the Court of Appeal.8 It is necessary to explain something of the grounds of his application to vacate the pleas.
Part of the Crown case at the trial was that a computer situated at Nerbas’ office at Spring Hill was used to search the internet, using search terms such as “Customs drug bust monitors” and “drug bust in screens”. The Crown case was that it was Nerbas who conducted the searches and that demonstrated knowledge by Nerbas of the importation. Nerbas’ initial instructions to his lawyers were that it was Reed, not he, who had undertaken the searches. Consistently with those instructions, that assertion was put to Reed in cross examination. Reed denied that he had undertaken the searches.
There were great difficulties with the instructions that had been given by Nerbas to his lawyers about the internet searches. Firstly, surveillance evidence showed that Reed was not at the Spring Hill office when the searches were undertaken. This evidence though was of little, if any, value unless the time and date settings on the computer could be proved to be accurate. This was because the only evidence of when the searches were performed came from the computer itself. Further expert evidence was given that the time and date settings on the computer were in fact accurate. That evidence then linked in with the surveillance evidence.
There was then a conference between Mr Nerbas, his barrister and solicitor. He says that he was advised that the evidence of the computer examiner effectively meant that conviction was inevitable and if that occurred, there would be no chance of a successful appeal. Mr Nerbas was told that if he changed his instructions (that he had not undertaken these internet searches), then both his solicitor and barrister would be unable to continue to act for him.
On the application to set aside the plea of guilty, there was some evidence that Mr Nerbas was not in a good mental state. Further and critically, he complained that he was denied the opportunity to defend the case upon the premises that he did undertake the internet searches, but did so for an innocent purpose. He said that since his initial instructions, he became honestly convinced that it was, in fact, him who did the searches and that is what he believed. This of course was contrary to the instructions that he had given to his lawyers and which had been the subject of cross examination.
“However in my view, this change in his instructions would not have required or permitted his counsel and solicitor to withdraw from the case. They were precluded from conducting his case upon any factual basis which they knew to be false. But they would not have been placed in that position by this change of instructions. They would have been understandably sceptical about the applicant ’s new instructions. But it was not for them to adjudicate upon their truth.” 10
Ultimately, it was held that the lawyers had effectively induced the plea of guilty by an unjustified threat to withdraw. The appeal was allowed and the pleas vacated.
I have set out briefly above the relevant aspects of the Court of Appeal’s decision.
The lawyers who acted for Mr Nerbas have a different view of what occurred in the lead up to the entering of the pleas of guilty and I understand there is some question as to whether all relevant evidence was put before the judge who heard the initial application and the Court of Appeal.
In any event though, the case was decided on the basis of the facts as I have outlined. The findings were that the lawyers were:
The position would have been different if the lawyers knew, rather than suspected, that the instructions were false. Of course, it is difficult to ever know whether the truth is in the first or second set of instructions. On one view, it might be thought that it is more likely that the first instructions about the computer were lies designed by Nerbas to distance himself from the computer searches. The second instructions are probably an acceptance of the truth once confronted with the evidence from the computer expert.
Had the lawyers not withdrawn, they would have obviously had to deal with the new instructions. That would have necessitated having the Crown recall at least Reed, so that the allegation that he did the searches could be withdrawn, and perhaps recalling other witnesses. Then, if Nerbas elected to give evidence, he would do so in accordance with the second version of the instructions. The prosecution in cross examination would, no doubt, put to Nerbas that he changed his instructions after hearing the surveillance and computer expert’s evidence and his credit would be damaged. That suggestion would be difficult to answer because Nerbas had, in fact, changed his instructions after hearing the Crown evidence.
Whether Nerbas gave evidence or not, the Crown would no doubt strongly address on the point of the change of instructions.
A difficult point had therefore been reached in the trial as Nerbas’ first instructions were clearly wrong and had been successfully contradicted by the Crown. However, a change of instructions would lead to the giving of a version which could hardly be convincing.
The Barristers’ rules
On 23 December 2011, the 2011 Barristers’ Rules commenced. Those rules are made pursuant to the Legal Profession Act 2007.
The rules to not purport to be a code. There are some specific prohibitions on conduct, but the rules largely consist of broad statements of principles and objectives.
For present purposes, some of the relevant rules are as follows:
“5. These Rules are made in the belief that:
a. barristers owe their paramount duty to the administration of justice ;
b. barristers must maintain high standards of professional conduct;
c. barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully and with competence and diligence;
d. barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues . . .
12. A barrister must not engage in conduct which is :
a. dishonest or otherwise discreditable to a barrister;
b. prejudicial to the administration of justice; or
c. likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.
25. A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.
26. A barrister must not deceive or knowingly or recklessly mislead the Court.
27. A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.
48. A barrister must not knowingly make a false statement to an opponent in relation to the case (including its compromise).
49 A barrister must take all necessary steps to correct any false statement in relation to the case made by the barrister to an opponent as soon as possible after the barrister becomes aware that the statement was false.
78. A barrister who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
a. has lied in a material particular to the court or has procured another person to lie to the court; or
b. has falsified or procured another person to falsify in any way a document which has been tendered; or
c. has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;
must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the barrister to do so but otherwise may not inform the court of the lie, falsification or suppression.
79 A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty :
a. should, subject to the client accepting the constraints set out in sub- rules (b) to (h) but not otherwise, continue to act in the client’s defence;
b. must not falsely suggest that some other person committed the offence charged;
c. must not set up an affirmative case inconsistent with the confession ;
d. must ensure that the prosecution is put to proof of its case;
e. may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;
f. may argue that for some reason of law the client is not guilty of the offence charged;
g. may argue that for any other reason not prohibited by (b) or (c) the client should not be convicted of the offence charged; and
h. must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence . ” (my underlining)
It can be seen that the rules recognise duties to the court. The rules do not purport though to codify those duties. Reliance has to be had to the common law and therefore to the cases.
However, a recurrent theme is that the barrister must not “knowingly” mislead or deceive the court.11
This brings into focus the competing duties to the court and to the client.
On the one hand, there is a duty upon the barrister to ensure that the court is not misled. On the other hand, it is not the duty of the barrister to judge the client or the client’s case. It is the duty of the barrister to represent the client. Consequently, it is not for the barrister to say that the instructions are fanciful or unlikely or unworthy of consideration by a judge or jury. The barrister’s obligation is not to put material before the court which he or she knows is false.12
It should also be noted that the rules oblige a barrister to correct any misleading statement once he (or she) becomes aware that the statement was misleading.13 Applying that rule to the facts as understood by the Court of Appeal in R v Nerbas14 raises interesting issues.
Assume for a moment that Nerbas, after Reed’s cross examination (where it was put to Reed that he (Reed) performed the computer searches), instructed his lawyers that in fact it was he, Nerbas, who conducted the searches. Counsel was then obliged to have Reed recalled so that the allegation (that he, Reed, performed the searches) could be withdrawn. What if Nerbas then gave instructions forbidding counsel from taking the step to arrange for Reed to be recalled? Although it would be difficult for counsel to really “know” whether the original instructions or the second instructions were “true”, the rule would no doubt operate in those circumstances to compel counsel to withdraw.
It is instructive to consider some of the authorities.
There are many cases which have held or at least recognised that a barrister must not knowingly put before a court (or tribunal) something which he or she knows to be untrue.15
A fairly recent and glaring example of a breach by a barrister of his obligations is a decision of the Legal Services Division of the New South Wales Administrative Decisions Tribunal in New South Wales Bar Association v Punch.16
The facts of Punch’s case were that Punch was a barrister representing a man called Haddad, who had been charged with armed robbery. Haddad told Punch that he, Haddad, was present during the commission of the armed robbery. Then at the trial, Punch adduced evidence from Haddad to the effect that he was not present at the scene of the robbery and in fact had never been to that place. The evidence from Haddad was that at the time the armed robbery was being committed, he was somewhere else. Punch also led evidence from a number of other persons to support Haddad’s alibi.
The conversation where Punch was told by Haddad that he was present at the scene of the robbery occurred in the cells of the Bankstown police station. That conversation was in fact tape recorded. The admissibility of that tape recording in the disciplinary proceedings was confirmed by the New South Wales Court of Appeal in Punch v New South Wales Bar Association.17
During the conversation, Haddad not only stated that he was present at the robbery, but also gave very detailed instructions as to what happened during the robbery. Those instructions accorded with evidence to be led against Haddad by the Crown.
The Tribunal ultimately found that Punch had misled the court and his name was removed from the roll. In the course of the judgment, it was said:
“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 the evidence revealed in these proceedings.”
This passage highlights the conflict between the barrister’s duty to represent his client, (even if he suspects the instructions to be untrue) and his duty to the court not to present the evidence (pursuant to his client’s instructions) if he knows the evidence to be untrue.
In Orchard v South Eastern Electricity Board,18 Sir John Donaldson MR, sitting in the Court of Appeal, considered a case where costs were sought by a party against legal practitioners involved in the case. The Master of the Rolls there said:
“That said, this is a jurisdiction19 which falls to be exercised with care and discretion and only in a clear case. In the context of a complaint that litigation was initiated or continued in circumstances in which to do so constituted serious misconduct, it must never be forgotten that it is not for solicitors or counsel to impose a pre-trial screen through which a litigant must pass before he can put his complaint or defence before the court. On the other hand, no solicitor or counsel should lend his assistance to a litigant if he is satisfied that the initiation or further prosecution of a claim is mal fide or for an ulterior purpose or, to put it more broadly, if the proceedings would be, or have become, an abuse of the process of the court or unjustifiably oppressive.”
The same principles apply of course to adducing evidence known to be false. It is not for a barrister to make a judgment call on what evidence he or she considers likely to be true and then only allow the client to put his case on the basis of that evidence.
On the other hand, though, there is the speech of Lord Diplock in Saif Ali v Sydney Mitchell & Co20 where it was said:
“To say of a barrister that he owes a duty to the court, or to justice, as an abstraction, to act in a particular way in particular circumstances, may seem to be no more than a pretentious way of saying that when a barrister is taking part in litigation, he must observe the rules; and this is true of all who practise any profession. The rules which may appear to conflict with the interests of the client are simple to state, although their application in borderline cases may call for a degree of sophistry not readily appreciated by the lay client, particularly one who is a defendant in a criminal trial. A barrister must not wilfully mislead the court as to the law, nor may he actively mislead the court as to the facts; although consistently with the rule that the prosecution must prove its case, he may passively stand by and watch the court being mislead by reason of its failure to ascertain facts that are within the barrister’s knowledge.”21
So, then in Punch’s case, Punch could have participated in a trial where Haddad had pleaded not guilty. He could also have sat by while the Crown called the alibi witnesses (if they felt a need to do so),22 but it was professional misconduct of him to lead evidence from Haddad and the alibi witnesses as to the alibi. All this was because he “knew” that the evidence was untrue.
R v McLoughlin23 was a decision of the New Zealand Court of Appeal. Like in Punch’s case, the accused sought to rely upon an alibi. Defence counsel interviewed the alibi witnesses and concluded that the proposed evidence was, in his view, unreliable. He then concluded that it would be improper for him to lead the evidence and indeed thought that it would be detrimental to the accused for it to be called. Contrary then to his instructions, counsel refused to call the evidence and presented an alternative defence namely that the complainant in the rape allegation had consented.
Hardie Boys J24 said:
“It is not for this court to question counsel’s judgment about that [25] or to comment upon the evidence ourselves. But the plain unvarnished fact is that counsel most certainly had no right to disregard his instructions. Following any advice he thought it proper to give to his client, his duty was either to act on the instructions he then received or to withdraw from the case.
It does happen from time to time that a barrister will find himself unable or unwilling to act in accordance with his client’s wishes. They may, for example, be incompatible with his duty to the court or his professional obligations; or he may consider the compliance would be prejudicial to his client’s best interests. Should such a circumstance arise, then he must inform the client that unless the instructions are changed, he will be unable to act further.”26
The comments of Hardie Boys J in R v McLoughlin were cited with approval by the Privy Council in Sankar v The State of Trinidad and Tabago.27
The comments in R v McLoughlin are interesting in the light of the criticism by the Court of Appeal in R v Nerbas of the conduct of defence counsel. Hardie Boys J thought that a right arose in counsel to withdraw, where counsel thought “that compliance [with the new instructions] would be prejudicial to his client’s best interests”. Those comments must be regarded as not representing the law in Queensland, given the decision in R v Nerbas.
Vernon v Bosley (No 2)28 was a civil case concerning a dispute about time share agreements. The Court of Appeal cited with approval the judgment of Lord Diplock in Saif Ali v Sydney Mitchell & Co29 and also cited with approval a statement of Lord Denning in Tombling v Universal Bold Co Ltd.30 Lord Denning there said:
“The duty of counsel to his client in a civil case — or in defending an accused person — is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the court, either on the facts or on the law, but, short of that, he may put such matters in evidence or omit such others as in his discretion he thinks will be most to the advantage of his client. So also, when it comes to his speech, he must put every fair argument which appears to him to help his client towards winning the case. The reason is because he is not the judge of the credibility of the witnesses or of the validity of the argument. He is only the advocate employed by the client to speak for him and present his case and he must do it to the best of his ability, without making himself the judge of its correctness, but only of its honesty.”31
The Court of Appeal in Vernon v Bosley then went on to say this:
“The classic examples of the distinction is the case where the barrister knows that his client has previous convictions, but the court and prosecution do not. He is not under an obligation to disclose the convictions, but he must not suggest that his client is a man of good character. Similarly, there may be several witnesses who can speak as to a certain matter of fact. Some may support one side, the others the opposite case. Neither the litigant nor his lawyers are bound to call in a civil case those witnesses who do not support their case.
But where the case has been conducted on the basis of certain material facts which are an essential part of the party’s case, in this case the plaintiff’s condition at trial and the prognosis, which were discovered before judgment to be significantly different, the court is not being misled by the failure of the defendant to put before it material of which it could or should have been aware, but by the failure of the plaintiff and his advisors to correct an incorrect appreciation which the court will otherwise have as a result of the conduct of this case hitherto.”32
The duty to correct statements that have been put to the court and which are known to be incorrect was also considered in Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2).33
Tuckiar v The King34 is a decision of the High Court of Australia. One thing the decision demonstrates is that in the last 80 odd years,35 there has fortunately been significant changes in the ways in which Australian society views indigenous people. In Tuckiar the accused is referred to as “a completely uncivilised aboriginal native”. In any event, Tuckiar was charged with murdering a policeman. The Crown case depended quite largely on two conversations which the accused had with other indigenous people. One of those conversations amounted to a confession, while the second was at least equivocal. Some time during the trial, the accused informed his counsel that he had, in fact, had the first conversation and made confessions. Counsel asked for an adjournment and then in the privacy of the judge’s chambers, informed the judge and the Crown of the disclosure. The accused was then convicted and counsel, in open court, disclosed that the accused had in fact made the first confession.
Tuckiar’s conviction was set aside on appeal by the High Court on numerous grounds. For present purposes, it should be noted that the following was said as to counsel’s conduct:
“Why he36 should have conceived himself to have been in so great a predicament it is not easy for those experienced in advocacy to understand. He had a plain duty both to his client and to the Court, to press such rational considerations as the evidence fairly gave rise to in favour of complete acquittal or conviction of manslaughter only. No doubt he was satisfied that through Paddy37, he obtained the uncoloured product of his client’s mind, although misgiving on this point would have been pardonable; but, even if the result was that the correctness of Parriner’s38 version was conceded, it was by no means a hopeless contention of fact that the homicide should be found to amount only to manslaughter. Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted. The subsequent action of the prisoner’s counsel in openly disclosing the privileged communication of his client and acknowledging the correctness of the more serious testimony against him is wholly indefensible. It was his paramount duty to respect the privilege attaching to the communication made to him as counsel, a duty the obligation of which was by no means weakened by the character of his client, or the moment at which he chose to make the disclosure.”39
Hatty v Pilkinton (No 2)40 was a decision of the Full Court of the Federal Court of Australia on appeal from the Australian Capital Territory. Mr Pilkinton (a legal practitioner) had been convicted in the Magistrates Court of the Australian Capital Territory on a charge of attempting to pervert the course of justice. In the Australian Capital Territory, that was a common law offence, not a statutory one. He successfully appealed the conviction to the Supreme Court of the Australian Capital Territory, but the conviction was then restored on appeal to the Full Court of the Federal Court.
Mr Pilkinton appeared on a traffic charge brought against a woman whose real name was Camilleri.41 However, when intercepted by police, she had falsely given the name Rozanne Marie Crawford. She was then charged under that name. Mr Pilkinton knew Ms Camilleri’s correct name. However, he appeared for her as she answered to the false name and did nothing to correct the situation by revealing her true name to the magistrate. The result was that the magistrate suspended the driving licence of “Rozanne Marie Crawford” but of course did not suspend any driving licence of “Camilleri” or “Bayliss”. In a judgment delivered by Black CJ, the court decided that Mr Pilkinton was guilty of the charge in that he had actively participated in perverting the course of justice at least to the extent of ensuring that the records of the court were false. The court held that Mr Pilkinton had thereby acted unethically. The rationale seems to be that he deliberately assisted Ms Camilleri in deceiving the court and that can be distinguished from the cases where defence counsel simply remains silent when an incomplete criminal history is tendered.
Conclusions
From the Barristers’ Rules and the common law decisions, a number of principles can be discerned.
The starting point is that there are two duties which may come into conflict. Firstly, there is the duty to the client to represent him (or her) and to put the case faithfully in accordance with the client’s instructions. Secondly, there is the duty not to mislead the court.
However, the notion of misleading the court, in the present context, must mean “knowingly mislead”.42 A court may be “misled” because a body of untruthful evidence has been put before it, upon which it may act. However, the barrister has not “misled” the court unless he or she knows that the evidence is untrue.
If the barrister does not know that the evidence is untrue, then in the absence of that knowledge, the barrister is duty bound to follow the instructions of the client and lead the evidence, even though the barrister may have grave doubts as to the truthfulness of the evidence. It is not the function of the barrister to “screen” the evidence which is put before the court.
The duty not to mislead is also breached if the barrister ascertains the untruthfulness of the evidence and does not correct the situation.
The unresolved issue though is as to when a barrister “knows” that evidence is untrue. There will be cases when the answer to that question is easy.43 Difficult questions will arise, however, where there is a series of inconsistent instructions and evidence strongly suggesting the falsity of the “current” instructions. They are the difficult cases and the ones where particular caution will have to be exercised.
Lastly, mere silence where an opponent is leading evidence which is known to be untrue (but is favourable to the barrister’s client) will not breach the duty.
Peter J Davis S.C.
Footnotes
