Mario Sindone Revision Lecture – 17 August 2012
Perceived tension between your paramount duty to the court and your duty to
client
From a philosophical point of view the tension issue does arise in practice. It does
happen in that you will have a client or solicitor that wants you to do this and that.
But the reality is that considering your primary duty is to the court then if it is that you
have ticked the boxes as far as your duty to the court is concerned and that includes
exercising your own forensic judgment then regardless of what your client wants you
to embark upon you cannot have breached any duty of an advocate by doing what
they want you to do.
That is a roundabout way of saying, if you have a case theory and you consider it to
be the correct case theory and you stick to it, then you can’t be criticised for it. If your
solicitor or client wants you to pursue a case theory that is not relevant or does not
have any bearing on any cause of action in the case then you are not obliged to go
down that track at all.
In fact if what your client wants you to do requires you to occupy more time asking
questions in cross examination, then under the rule in the Mechanical Invention’s
case you are actually breaching your duty to the court. It is like that under Giannerelli
v Wraith (page 556 – Chief Justice Mason) where you are chasing every rabbit down
its burrow. You are essentially not doing what is required of you under your duty to
the court.
If a solicitor asks you to hide from the court the source of bail money like that which
occurred in R Be, you are not following your duty to the court. Just because your
solicitor/client wants you to do something and they press you hard to do it does not
mean you have to do it.
So this issue of tension, although it exists in your mind, it is very clear that if you
abide by your duty to the court you will be on safe ground.
You should read 227 and 228 of Rondel v Worsley, where Lord Reid gives that
magnificent summary of the contradistinction between your duty to the court and
your duty to your client. In reality the tension should really be dispelled as quasi
illusionary.
Continuing to act for a guilty client and Bar Rule 79
Let’s start from the philosophy of all this.
In our system of law, you have to understand that as an advocate you are not the
judge and jury of this particular individual. They merely give you instructions.
Whether those instructions are true and correct are a completely different and
divorced issue. If someone says they are a serial killer, it does not necessarily mean
that they are. There could be any number of reasons why a person might think they
are guilty of murder but in reality they are only guilty manslaughter.
The next point is that in our system of law is that if the prosecution does not prove
their case, notwithstanding any admissions made to you by your client, then they
haven’t prove their case and your client should, if the jury is exercising its powers
correctly, be acquitted.
Now bearing these two factors in mind, there are two scenarios, in relation to when
your client tells you he is guilty.
The first is where he tells you he has done this but he refuses to change his plea. If
he tells you this with enough time to find alternative representation, then you must
relinquish the case and tell him you cannot act for him anymore. Really, how can you
really represent this person properly? You cannot mount a positive defence. That
alone should tell you that you aren’t going to do the right thing by this guy, therefore
you should let it go.
The more pertinent scenario is when your client tells you the day before or on the
day of the hearing and this is the situation that Bar Rule 79 deals with.
In this situation you have a very delicate exercise to follow, that is maintaining your
paramount duty to the court whilst at the same time doing the best that you can for
the client that is discharging your duty to your client - Tuckiar v R.
As the High Court said in Tuckiar’s case you have a duty to press the prosecution for
all rational proofs. So you have really got to put the prosecution to proof and if they
can’t prove the offence beyond reasonable doubt then you should really press for an
acquittal. But at the same time, if your client has told that he/she has done it, you
can’t say to the court, my client didn’t do it because of this and this. You can’t say
that somebody else did it because you don’t have those instructions. This is the
answer to this question and this is really enshrined in Bar Rule 79.
Returning briefs
There is a whole section in the Bar Rules on returning briefs – Bar Rule 95 – 101.
This set out all the instances where you have the option to return a brief.
Past Exam Questions
March 2012 Paper
Question 3
During the course of a trial before a single judge, Ken Krafty, who was the
defendant's barrister, was cross-examining the main witness for the plaintiff. The
witness gave an answer that was non-responsive to a question and then included an
accusation which was highly detrimental to the defendant. Krafty immediately sought
that the answer be stuck out and not form part of the evidence in the matter. After
some argument between both counsel and the bench, his Honour decided to allow
the answer into evidence. Thereafter, numerous heated exchanges took place
between Krafty and the judge, which on one occasion culminated in Krafty shouting
at the judge and slamming his papers on the bar table.
On another occasion, his Honour instructed the Court that the matter would continue
through the luncheon adjournment. Krafty argued with the judge that he had other
business to attend to during the lunch break and refused to be in court during that
time. Again, an exchange between the judge and Krafty ensued, with Krafty ridiculing
the judge and being repeatedly sarcastic towards him.
The next day, Krafty was promised before 4pm that he would receive documents that
would be "very important" to his client's case. Krafty continued with a somewhat
obscure and aimless cross-examination of the witness in the hope that the
documents would arrive. They arrived in his chambers after 4pm but he was able to
draw out the cross-examination so that the witness was still under cross-examination
for the next morning.
In his closing address at the end of the trial, Krafty made unfounded submissions
labelling the plaintiff's claim as a "rort", even though no such accusation or evidence
was raised during the trial.
In light of these circumstances, explain how Krafty has breached, if at all, his
duties as an advocate.
(20 marks)
The manner in which Mario would answer this question is as follows.
I would start by identifying what the question is about, for example:
This is a question about an advocate’s duty to the court. Explain this duty. Explain
that it is a paramount duty. Mention the statements on page 227 and 228 of Rondel v
Worsley and page 218 in Clyne’s case where the High Court explains the paramount
duty.
Next I would say even if an advocate’s case is not going well he cannot frustrate the
court process by deliberately arguing with the judge in the hope that a trial would be
aborted because as you know. In Costello and Bellanto both advocates realised that
their cases were not going well and did everything they could to intimidate the Judge,
and do whatever they could to get the judge offside, so that the judge would come to
the conclusion that he could no longer hear the case and therefore adjourn the case
so that another judge would step in and the case would start again in the hope that a
different outcome would occur, this is frustration of the court process.
The next point that Marion thinks is very important to raise is this idea that in
frustrating the court process for the purpose of getting another judge Krafty is in
effect confusing his duty to the court with his duty to the client. He is elevating his
duty to his client above his duty to the court. This is not allowed and immediately
amounts to professional misconduct.
Lack of courtesy is an element in an advocate’s duty to the court.
Then you would throughout this make reference to the factual scenarios that were
present in Ex Parte Bellanto – the slamming of papers, the trying to get the judge
offside, Costello – the Luncheon adjournment, and trying to get the judge offside and
Mechanical Inventions – the prolonging of the cross examination and Smout v Smout
– the making of unfounded submissions. Speaking about this aspect is very
important because remember you can only make submissions in closing that relate
to the evidence put forward in the case. You cannot go beyond that for the
advantage of your client.
I would also mention Bar Rules where they are pertinent – Bar Rules 59 and 60, 63
and 64 – as they relate the issues as they are raised.
If you raise all of the above, you will get a distinction for that question.
Question 4
Over the past decade the House of Lords in the United Kingdom and the Supreme
Court in New Zealand have abolished the common law principle of "advocate’s
immunity".
Australia now finds itself isolated as one of the very few common law countries that
retains the immunity from suit for advocates.
Comment by analysing relevant cases, as to whether or not you believe
"advocates immunity" will remain as part of the Australian common law in the
next ten years.
(20 marks)
Mario would start by saying that certainly in Australia advocates immunity exists. It
was pronounced in the case of Giannarelli and was confirmed recently in the 2005
case of D’Orta.
Next he would say whether or not it is maintained in Australia is a matter for the High
Court and the constituent members of the High Court and the prevailing attitudes of
society at the time.
There has been a gradual narrowing of the immunity since its introduction in
Chelmsford case, and then it was narrowed in Rondel v Worsley. Lord Morris
narrowed the scope in Rondel.
So we had this enormously huge and wide scope in Chelmsford case. In this case
basically what the House of Lords said is that it doesn’t matter what you do as long
as what you did was done with your client’s best interest at heart, and that was within
the scope.
Lord Morris in Rondel v Worsley narrowed it to an enormous degree and then Rees
v Sinclair narrowed it even further.
You would say that that is the test that was adopted by the common law world.
With regard to the scope, you would say that in Giannarelli v Wraith, although it
accepted the principle in Australia it did not accept the public policy grounds that
founded the principle. There were 5 public policy grounds. We believe there is only
really one ground that is certainty in judgments and not to have a case relitigated. So
that further narrowed it.
Then you would go through the cases that narrowed it and say yes it started really
wide and now it is narrowed.
Because of its narrowness it was abolished in the UK in Arthur Hall v Simons and in
NZ in Chamberlains. Part of the reasons it was abolished was because in the UK
they are now part of the European Union where the rest of the countries in that union
don’t have this advocate’s immunity. And in NZ because of the attitudes of the
country at the time where it was believed that for every wrong there should be right,
as occurs in every other profession except the legal profession.
In Australia very recently there was a strong affirmation in the D’Orta case and the
public policy reason was the relitigation of cases.
So to conclude in the short term the High Court has confirmed the principle. It wasn’t
influenced by Hall v Simons and its European considerations. In the long term,
legislation may change the immunity that is enjoyed by the profession or a differently
constituted High Court Bench may overturn Giannarelli so as to bring attitudes in line
with the modern society.
September 2011
Question 3
Lord Reid explained in Rondel v Worsley [1969] 1 AC 191 at 227 that:
“Every counsel has a duty to his client fearlessly to raise every issue, advance every
argument, ask every question, however distasteful, which he thinks will help his
client’s case.”
Yet, there are limits within which an advocate must not extend when exercising his
duty to his or her client.
List the limits within which advocates cannot extend when exercising their
duty to their clients and explain those limits by reference to cases and the Bar
Rules. (20 marks)
You need to focus on the limits and list the limits that an advocate cannot extend.
Sindone has listed 5 limits that you would need to elaborate on.
1. Not to make closing submissions for which there was no evidence – Smout v
Smout
You would elaborate on this the rort and the suggestion of having to pay
higher premiums.
2. Not to make open exhibitions for which the advocate has no evidence. Of
course this is Clyne’s case and Bar Rule 35 and 36.
3. Not to act outside your authority and instructions – R v Birks, Swinfen v
Chelmsford and Harvey v Phillips.
4. Not to mislead the court – Bar Rule 21, 25 and 29, Meek v Flemming. Don’t
get bogged down here. For this question you would not get bogged down on
explaining the contrast between Meek v Flemming and Tombling v Universal
Bulb. But you would mention it. Three or four lines though and that is it and
also Re B.
5. Not to frustrate the court process as occurred in Bellanto and Costello and
the Kennedy case.
So these are the limits that struck Mario if he was answering the question.
Question raised – Your limits to your client are bound by your duty to the court. In
exercising your duty to client, you are limited in that you can’t elevate that duty above
your duty to the court. Your limits are bound by your duty the court.
(Question 4 follows)
Question 4
You are a barrister employed as a Crown Prosecutor. You have received a brief from
the Director of Public Prosecutions (“DPP”) in relation to charges against a person
arrested during a public demonstration relating to political and ethnic unrest in a
foreign country (“the accused”). The demonstration started peacefully but ended up
out of control with several arrests by and injuries to police. Amongst other things the
accused is charged with causing grievous bodily harm to a female police officer.
The brief contains statements from 55 potential witnesses being: police officers,
ordinary bystanders and several from the same ethnic group as the accused.
You have a conference with your instructing solicitor from the DPP. The DPP
solicitor strongly implies to you that the police are anxious to get a conviction against
the accused at all costs, even if the actual perpetrator is someone else, because of
the aggravated nature of the assault on a particular policewoman.
You discuss with the DPP solicitor the question as to what witnesses should be
called to achieve a conviction and discuss the contents of the prosecution brief to be
served on the accused’s solicitor. It is suggested by the DPP that although
statements have been given by all 55 witnesses, the prosecution witnesses at trial
will be confined to the police and some of the ordinary bystanders who gave
“favourable” statements but excluding the ethnic witnesses because they mainly
gave plausible explanations for the accused’s conduct which would probably lessen
the apparent seriousness of the offence.
By reference to authorities and the Bar Rules:
(a) Explain generally the duties of a prosecutor.
(b) Discuss the duties of a prosecutor in relation to calling a material witness.
(c) Discuss what role a judge plays in giving guidance to the court when a
material witness has not been called by a prosecutor.
(20 marks)
(a) The duties of a prosecutor
Remember in the introduction all of the cases.
-
Not to strive for a conviction at all costs – R v Bathgate and Bar Rule 63
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To aid in the attainment of justice – R v Pernich and Bar Rule 62
-
To avoid prejudice arising in the mind of the jury – R v Meier and Bar Rule 62
-
To provide material which is relevant to the prosecution of the accused – R v
Glover and Bar Rule 62
-
Must not argue a proposition which he does not believe will contribute to the
finding of guilt; and
-
Must need seek to impose a vindictive sentence without authority
(b) Discuss the duties of a prosecutor in relation to calling a material witness.
A prosecutor has discretion as to which witnesses he may call – Richardson.
A prosecutor should call every material witness unless they are shown to be
unreliable – Richardson, or the evidence to be given by a particular witness
has already been established or the witness is incapable of giving evidence –
Whitehorn.
(c) Discuss what role a judge plays in giving guidance to the court when a
material witness has not been called by a prosecutor.
It is for the Crown not the judge to decide which witnesses be called –
Whitehorn and Apostolides. A judge is not obliged to question the prosecution
as to why a particular witness has not been called – Apostolides. A judge may
make a comment to the jury as to the effect of not calling a material witness
and a judge should not call a witness to give evidence except in the most
exceptional of circumstances.
March 2011
Question 3
With regard to an advocate’s duty to the client, discuss the manner in which
an advocate is able to act independently by exercising his or her own forensic
judgement whilst at the same time acting within the authority or instructions
given by the client.
In your answer, refer to the Bar Rules and authorities, using examples of case
scenarios to illustrate your viewpoint.
(25 marks)
Issues to cover in this question –
An advocate must act in the best interests of his client within two main limits:
1. Exercising their own forensic judgment; and
2. Acting within authority.
To exercise your own forensic judgment a barrister cannot be a mere mouth piece –
Bar Rule 41 and Giannarelli. You then need to go into explaining what forensic
judgment is all about. Here I would speak about Justice Mason at page 556 in
Giannarelli being that a Barrister can select his own witness, what questions to ask
in cross examination, what issues to raise in opening and closing address. I would
speak about disinterested and giving dispassionate advice. Using your skills which
should have occurred in Re B and Costello. I would comment on acting within your
authority, give authority such as Harvey v Phillips and r v Birks and Swinfen v
Chelmsford.
I would end up with a good conclusion that you must act within your authority and
instructions but in doing so must exercise your own forensic judgment and skill. You
should also make a comment that the balancing act can be achieved as explained by
Mason in Giannarelli.
Costello is relevant here (disinterested) where you lock yourself into your case, you
lose sight of your role as an advocate and go to whatever lengths are necessary to
win the case, which is not acceptable.
You should mention R v O’Connell with regards to the mouth piece issue.
You should also mention Clyne’s case. In that case he created a strategy merely
because his client wanted him to do so. You cannot do that.
Question 4
In each of the situations below, give reasons as to whether or not the advocate
should have his/her name removed from the Roll:
(a)
An advocate has been found guilty of manslaughter and sentenced to prison
for driving under the influence of alcohol and killing another motorist. The
circumstances behind the conviction are:
 The advocate was embroiled in a fight and suffered from concussion and
shock shortly before the motoring incident, which may have been an
alternative explanation to his “groggy” state when arrested;
 The advocate was obliged to call a material witness as his own witness
(rather than that witness being called as a Crown witness);
 The advocate was found to have given evidence honestly at the committal
hearing and trial.
(b)
An advocate has not filed his tax return for 12 years. He is convicted under
various sections of the Income Tax Act and served 40 hours of community
service. The circumstances behind the non-compliance of filing his tax returns
are as follows:
 Twelve years ago, the advocate’s wife became ill and he neglected his
own health to look after her on a part-time basis for over five years;

He did not keep records of his income or expenses during this stressful
time;

owed less than $10,000 to the Tax Department;


effect that he
is a person of good fame and character.
(c)
Whilst a law student, a person is convicted of breaking into a house and
stealing property from that house. The student graduated from university and
is admitted as a legal practitioner. In his application, he did not mention the
conviction to the Admission Board. The circumstances behind the conviction
are:
 The incident occurred during the Great Depression, when the student was
working low paying jobs to feed and house his two invalid sisters;

psychiatric hospital. The incident occurred on the day he was released;
 He has practiced successfully for ten years without complaint.
 An advocate was charged with performing an indecent act in a public
toilet. He pleaded not-guilty. A jury found the barrister guilty. He was
issued with a fine and has a criminal record.
(25 marks)
So straight away you need to be thinking about the elements of being struck off.
In your introduction you should speak about the test for being struck off. That is:
-
-
You need to be found liable for professional misconduct. Normally this has an
element of dishonesty. Where there is that element of dishonesty, the court
looks upon the protection of the public and the profession rather than
punishment. If it is seen that the public and profession should be protected,
then the practitioner should be struck off. And we see this is Clyne and Walsh.
You can put a gloss on this in view of the requirement to educate the
profession rather than just being punitive.
Then we go through each of the questions (a), (b), (c) and (d)
(a) Straight away we recognise the similarity with Ziem’s cases.
Go through Ziems and speak of the reasonable explanation for his conduct is shock
and concussion rather than drunkenness. You need to talk about the fact that he
gave truthful evidence both at the committal proceedings and at trial. Then talk about
the fact that the Crown’s failure to call a material witness at trial meant that Ziems
lost his forensic advantage of cross examining. That personal misconduct is distinct
from professional misconduct. And following from Ziems case our conclusion would
be that he should not be struck off but rather suspended whilst he is in prison.
This is what you need for full marks on this one.
(b) Straight away we recognise the similarity with Harrison’s case.
You need to go through the reasons why you would come to your ultimate
conclusion. The first one is that he did not seek to gain a financial advantage and
you would make a contradistinction between Harrison and Hamman (one
paragraph), that is that Hamman was a systematic defrauding of the Commonwealth.
Next you need to talk about the fact that he was found to have psychological inertia
and therefore is not likely to be a person that the profession and public need to be
protected from. Talk about the fact that his testimony is given honestly. That is set
out in the Affidavits in support. You need to mention that he was never declared to
be bankrupt. That although he may be liable for professional misconduct, he should
not be struck off in a similar manner to Costello where yes, professional misconduct
is clearly evident her but that extra element of protection is not evident here and
occurred in Costello and therefore he should not be struck off.
(c) law student
We know that this is in Re Davis. We should say that his nondisclosure shows that
he is not inherently untruthful. This is the principle that exists to establish whether
you are a person of good fame and character. Being honesty generally means that
he is not a fit and proper person to remain on the roll. You would mention Jetnikoff,
Moore, Re B and Wentworth.
So in this case maybe you could argue that his 10 years of good service have shown
that he has changed his ways notwithstanding his inherent dishonesty and maybe
mention Thomas and say that it is arguable as to whether he should be struck off.
But mention that in the High Court in Re Davis, which is followed today, that inherent
dishonesty still impacts on the mind of the High Court such that he should be struck
off because that dishonestly cannot really be lived with.
(d) Barrister charged with performing an indecent act in a public toilet
Straight away we know this is similar to in Re H. Here we should talk about the
distinction to be drawn between personal and professional misconduct i.e. that
professional misconduct will have a more direct bearing on your fitness to practice. It
is important to mention here that the unsuccessful plea is a factor here but not the
predominant factor. It is something that a tribunal has to take into account. On that
basis, of course there is no dishonesty because really the profession does not need
to be protected from a person such as this. The person should not be struck off as
occurred in Re H.