How far can the content of a secretly taped conversation between two accused in a police cell travel?
As Sydney barrister John Punch has discovered, if that secretly taped intercept also inadvertently captures a conversation with the accuseds’ lawyer, it can mean the barrister can find himself many years down the track defending disciplinary proceedings instigated by the bar association.
Punch is hotly contesting the NSW bar’s attempted use of the conversation, taped under the Listening Devices Act in a Bankstown police station cell in December 1994.
So far Punch has had few wins. He has lost one round in the Administrative Decisions Tribunal and one in the NSW Court of Appeal.
The NSW Bar Association wants Punch stood down for professional misconduct as a result of the contested conversation which it acknowledges was “unexpectedly and inadvertently” acquired during the course of a legal taping of a conversation between two men accused of murder.
The bar association claims that part of the contested intercepted conversation captured in the cell featured in a subsequent trial of the two men on charges, not of murder, but armed robbery. Punch represented the men in court.
They were tried in the District Court in mid 1995 and acquitted.
Subsequently, the police became aware of the earlier intercepted conversation. Both accused were then charged with perverting the course of justice and perjury.
The Bar n’ Grill commenced disciplinary proceedings against Punch, alleging that while he appeared for the two men, he “adduced evidence which he knew to be untrue”.
The bar sought to tender in the ADT the transcript of the intercepted conversation as part of its evidence. The tribunal ruled last year that the Listening Devices Act did not prohibit the use for disciplinary proceedings of the transcript of the intercepted conversation obtained during the course of investigating criminal proceedings.
Punch sought leave to appeal that decision. The NSW Court of Appeal has dismissed his request. The matter will now return to the ADT for further hearing.
Punch is livid and intends fighting further. He said the inadvertently obtained transcript was not raised with him for nine years and that the conversation, in any event, was privileged. He said that the bar association has “put two and two together and has come up with 45”.
He also said that he has a “clear defence to the whole thing and has every confidence that he will be exonerated”.
The bar does not dispute that evidence it is seeking to use against Punch was obtained “inadvertently or unexpectedly”. Nor did it dispute that that s.14 of the Listening Devices Act could prevent the use of information obtained in criminal proceedings in civil proceedings, such as disciplinary actions against members of the bar.
Punch pointed out that the conversation captured between him and his client was only inadvertently picked up as a result of a lawful taping of a conversation between the two prisoners. He said his conversation “is none of their (the bar association’s) business”.
He added that he is mystified by the proceedings, and looks forward to having his side of the case heard later this year.
“They have not heard my version of what transpired,” Punch told Justinian. He said it was “most inappropriate for the police to use the conversation in the way it did”.
“It was a very, very underhanded practice … It’s almost like bugging barristers’ chambers.”
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Solicitor Ian Douglas Graham has been struck off the jam roll after the NSW Administrative Decisions Tribunal found him guilty of professional misconduct and unsatisfactory professional conduct. He looted his trust funds and, even more shocking, failed to pay a barrister.
Graham graduated from UTS in 1985 and is a former director general of the Department of Juvenile Justice. He seems to have had strong political support because he was rapidly elevated from the Legal Aid Commission, where he had a lowly job processing solicitors’ bills, to department head.
Maybe it was his ambling gait, elastic-sided riding boots and slow, amiable manner than endeared him to the Lib-Nat coalition. Subsequently, he disappeared into suburban practice.
On four occasions in 2003 Graham withdrew money from clients’ trust accounts for his own purposes, putting the ledgers into debit.
The tribunal found that in failing to write up his trust account records, Graham had breached s.62 of the Legal Profession Act 1987.
Although most of the amounts of money in question were small, the ADT said that in writing the cheques without knowing the exact balance of the ledger Graham “engaged in reckless and careless conduct”.
Graham argued that, despite debits in individual ledgers, the overall trust account remained in balance. The tribunal didn’t think much of that proposition, saying Graham had breached his obligations as a trustee and demonstrated …
“a profound misunderstanding of the nature of the trust upon which such monies are held by a legal practitioner … to overdraw in one trust account ledger is to produce a shortfalls in the funds held in trust for other clients.
“It is simply inappropriate to look at the total funds in the trust account and, in effect, to suggest that the respondent deserves some leniency.”
A manager was appointed to Graham’s practice on October 21, 2003.
Graham was also found guilty of unsatisfactory professional conduct after lengthy delays in paying counsel a fee of $8,745, dating back to December 2000.
The barrister, by the name of Cox, repeatedly sought payment for the sum but, after receiving no response referred the matter to the Bar n’ Grill. Graham failed to respond to these requests and the tribunal found that the matter was only brought to a head after counsel obtained judgment against him.
The tribunal said that while Graham did not deny any wrongdoing, he had failed to give an explanation for his conduct.
The poor wretch did not give evidence to the ADT, but in a statutory declaration signed on December 1, 2004 he said he had since sought employment as a solicitor.
Graham did not renew his practicing certificate after it expired in September 2006.
Richard Killalea, for Graham, said his client had admitted his wrongdoing and had since sought employment and that his role did not give him access to trust monies, although no references were provided from his employers.
Killalea submitted that the tribunal should suspend his client for 12 months, pursuant to s.562(2)(b) and attach conditions to the grant of a future practicing certificate.
However, in its wisdom the tribunal decided that it was in the best interest of the public to permanently remove poor old Gra-Gra from the roll.
“There is nothing before the tribunal which is capable of satisfying the tribunal that the respondent is likely to become a fit and proper person either within the short term or long term, there being no explanation for the conduct that has led the tribunal to the view that the only possible appropriate order is that his name be struck from the roll.”
Graham did not respond to Justinian’s request for a comment.
Killalea said his client had failed to give a “satisfactory” explanation for his behaviour.