Reproduced from @TheHeraldSun 19 October 2009 | by Geoff Wilkinson …
|Chief Justice warns duty to court must come before winning .. LAWYERS FACE TRIAL PROBE A SENIOR lawyer could face disciplinary action over his behaviour during a trial described by the Court of Appeal as a fiasco.
The Court of Appeal ordered a retrial in the controversial case after finding that misconduct by barrister Paul Scanlon, a Queen’s Counsel, was likely to have prejudiced the jury and caused a miscarriage of justice.
Another barrister in the case, Richard McGarvie – a Senior Counsel, son of a former Governor of Victoria and chairman of the Bar Ethics Committee – was accused of contributing to the mistrial and trying to improperly influence the jury.
And the Supreme Court judge who presided over the 2006 trial, Justice Betty King was criticised by the three Court of Appeal Judges for failing to give the jury appropriately firm directions to address Mr Scanlon’s misconduct.
Legal Services Commissioner Victoria Marles and the ethics committee are believed to be investigating Mr Scanlon’s behaviour.
A retrial in the case, which involves a damages claim by a man injured when he fell off an over-extended ladder, is due to be heard in the Supreme Court next month.
Plaintiff, Gary Rees was a plumber doing a favour for a mate when the accident happened. He sued the ladder manufacturer and distributor, Bailey Aluminium Products pty Ltd.
His friend of 40 years, WorkCover inspector Barry Phillips – who set up the ladder before Mr Rees arrived – was joined in the action as a third party by the company, which claimed he had been negligent.
After a 12-day trial estimated to have cost up to $500,000 the jury found in favour of the company, represented by Mr Scanlon.
Justice King refused a subsequent application by Mr McGarvie, who asked her to disregard the jury’s verdict and determine the case herself because Mr Scanlon’s alleged misconduct had “so poisoned the well of justice” that Mr Rees had not received a fair trial.
Justice King ruled the jury’s verdict was open to it on th evidence. She did not accept Mr Scanlon’s behaviour “in conducting a strongly fought and robust trial” had crossed the line to make the trial unfair, but the Court of Appeal later disagreed.
The appeal justices David Ashley, Robert Redlich and Paul Coghlan, ruled Mr Scanlon’s misconduct was likely to have had a prejudicial effect on the jury and made it probable “that the course of justice was substantially affected.”
They cited 10 examples of misconduct, including findings that he had breached court rules in cross examination, misstated evidence, defied Justice King’s rulings, wrongly accused Mr Philips and Mr Rees of colluding to give false evidence to pervert the course of justice and made an inappropriately personalised and prejudicial closing address.
Mr Scanlon declined an invitation by the Court of Appeal to respond to allegations of improper behaviour made during the appeal.
He told the Herald Sun the appeal was heard by three experienced trial lawyers “whose decision I respect and abide.” Mr McGarvie declined to comment.
The Court of Appeal said Mr McGarvie had been lax in assessing and dealing with Mr Scanlon’s misconduct, failed to raise adequate objections or seek a discharge of the jury and was part of the reason there was a mistrial. It also accused him of a highly objectionable, personalised attack on Mr Scanlon during his closing address.
The case attracted no public interest at the time of last year’s trial or the appeal decision, but Chief Justice Marilyn Warren recently raised it during her keynote address to a judges’ conference.
She said the case was a reminder the desire to win a case had no role in a lawyer’s assessment of their responsibilities towards the court.
“There is a line between permissibly robust advocacy and impermissible dereliction of duty” she said.
The Court of appeal ruled each party to the first trial should pay their own costs, “thereby recognising the contribution by each party to the fiasco that occurred.”
A spokeswoman for the Legal Services Commissioner said ms Marles was unable to comment on something that “may or may not be under investigation.”
If the commissioner believes after investigating the conduct of a lawyer that the Victorian Civil and Administrative Tribunal would be reasonably likely to find them guilty of professional misconduct, she must apply to the tribunal for an order against the lawyer.
Penalties available if a tribunal hearing finds the practitioner guilty range from disbarment to a reprimand, caution or compensation.
The Court of Appeal’s finding and its separate ruling on costs can be read at http:www.austlii.edu.au
You can download a printer friendly copy of the original @TheHeraldSun news article “Chief Justice warns duty to court must come before winning. LAWYERS FACE TRIAL PROBE”, here.
The “another” barrister in the case, Richard McGarvie – a Senior Counsel, son of a former Governor of Victoria and chairman of the Bar Ethics Committee – was accused of contributing to the mistrial and trying to improperly influence the jury is of course the older brother of the current Legal Services Commissioner of Victoria, Michael Keith McGarvie. Their father, former Supreme Court of Victoria judge, and former Governor of Victoria passed away in 2003.
And of course, the then Legal Services Commissioner Victoria Marles was forced to resign in disgrace a day or two after this newspaper article was published, on account of two damning sets of Victorian Supreme Court orders I obtained against her (in December 2008 and in late 2009), and a damning 2009 State Government Ombudsman Victoria Annual Report to Parliament on the total failure of her Office of Legal Services Commissioner}
Of course, it is not just the “clients” of Barristers who misbehave or “poison the well of justice” and are ‘not up to the job’ that suffer. More than likely, as I discovered to my own personal horror and have seen multiple times since, it is the “unrepresented” or “self-represented”.
Yes, I was stripped clean, and then stripped some more, by the worst sorts of throat cutting riverboat pirates dressed up as lawyers and brandishing legal credentials and fraudulently written legal writs – lying claims without a skerrick of evidence collected first, after, or even at all, to back up any of the false claims. And mountains of evidence and illegalities to refute them (including police apprehensions and judicial findings of aggravated burglary (to steal and destroy evidence) and perjuries and other lies by the emotionally and mentally ill false claimant.
These initial raiders even accredited specialists at what they do by that den of injustice and corruption known as the Law Institute of Victoria Limited ACN (the statutory authority of the same name was abolished, and even the use of the name “Law Institute of Victoria” was, er, outlawed, by the Kennett Government in Victoria in the late 1990s (an amazing political achievement and unprecedented public service by then Premier Jeff Kennett and his men), only for the lawyerocracy to be renewed, and reinvigorated, and even handed back the “Law Institute of Victoria” moniker, by the corrupt Bracks-Brumby-Hulls Labor Victorian administration in the middle of their decade of reign of abysmal government corrupt and failure: click here for more information.
And what about the situation where all of the lawyers, the solicitors, the barristers and even judge (as was judicially found in the case mentioned in the article) are ‘not up to the job’, either?
As to how far, how often, and how unaccountably lawyers (solicitors, barristers, judges) can let you down … more about this at the Lawyerocracy on Trial Hearings, 55 King Street Melbourne (the Victorian Civil and Administrative Tribunal), beginning at 10.00 am on 21 May 2012 – click here for more information.
… to be continued …
James Johnson, Independent Federal Candidate for Lalor