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Court in the Act
5 December, 2003  
Cowdery, Ming, Chung

After an eight year squabble the Court of Appeal says DPP Cowdery did not give dud advice to the Attorney General … Victorian appeal court birches County Court judge (now fortunately retired) ... Robert Somosi bobs up in badly pleaded defamation case

Slick Nick Cowdery off the hook after eight-year legal battle

Did the NSW Director of Public Prosecutions “engage in conduct in connection with the practice of law” when he advised the Attorney General’s Department against an ex gratia payment to a prisoner whose conviction was quashed?

Did he deliberately mislead the AG by misrepresenting the Court of Appeal judgment which overturned the conviction?

imageAnd was the Legal Services Commissioner correct in deciding that there was no “reasonable likelihood” that DPP Nicholas Cowdery (right) would be found guilty of unsatisfactory professional conduct or even professional misconduct?

All these questions received resounding answers in the negative in a recent judgment of the NSW Court of Appeal (Mason P, Tobias JA, Foster AJA).

Tom “Tom” Molomby SC, for the appellant Ted Kawicki, must be disappointed. He’s been beating this particular drum for a long time.

The saga started with Kawicki’s successful appeal in 1995 against his conviction the previous year for “knowingly maintaining an escaped prisoner”.

Kawicki had rather unwisely (as it turned out) loaned prison escapee Patrick Hudd $500 and the question was whether he knew Hudd was an escapee at the time.

The Court of Criminal Appeal (Kirby ACJ, Allen and Dowd JJ) ruled that the evidence in this regard was so “meagre”, it was not reasonably open to the jury to convict. The conviction was deemed “unsafe and unsatisfactory” and Kawicki was acquitted.

Only trouble was, by the time his conviction was overturned, Kawicki had already served his entire sentence (ten months periodic detention). He promptly applied to the Attorney General’s Department for ex gratia payment in compensation. The AG wrote to Slick Nick Cowdery asking his advice. Nick’s advice, not unsurprisingly, recommended against such a payment.

“It is my view that this prosecution was correctly carried brought and carried out… The Court of Criminal Appeal took a certain view of the evidence but in my view the matter was one that had to be determined by the jury… I recommend against the making of an ex gratia payment.”

The appellant then wrote to the Legal Services Commissioner complaining that Slick Nick’s advice was “deliberately misleading” and suggesting that he was “guilty of professional misconduct”.

The commissioner dismissed the complaint in February 2002 on the basis that Cowdery’s letters containing the advice “had not been given in connection with the practice of law” but as part of his statutory duties. (Even if it had, said the commissioner, Cowdery would still not be found guilty.)

Undaunted, Molomby and Kawicki mounted a Supreme Court challenge to that decision. It was dismissed by Burchett AJ in November last year. The Burch said:

“I am simply unable to see the basis on which it is contended that the Legal Services Commissioner’s decision was so unreasonable that no reasonable person could have reached it. For myself, I would have reached the same conclusion.”

Now a year later, and nearly nine years after Kawicki first applied for compensation, the NSW Court of Appeal has done the same.

Tobias AJ concluded that what Slick Nick had presented was his own personal opinion, knowing full well that the AG had in his hands a copy of the Court of Criminal Appeal’s “unambiguously critical” judgment. Tobias said:

“Whether or not one agrees with Mr Cowdery’s opinion is not to the point… He was not bound to accept the correctness of the contrary view formed by the Court of Criminal Appeal.”

As to whether the DPP was “conducting himself in connection with the practice of law”, this was an open question, reasoned Tobias.

What a monumental waste of time.

“Ming the Merciless” fingered over digital rape conviction

“This is not a court of mercy; this is a court of justice.” So said Victorian County Court judge Mervyn Kimm, aka “Ming the Merciless” late last century in R v Nation.

Now the retired judge may just have to eat his words.

According to a recent judgment from the Victorian Court of Appeal (Batt, Vincent and Eames) Ming’s conduct in the trial of Michael Mathe two and half years ago, rendered his conviction for rape unsafe and unsatisfactory.

Mathe’s rape conviction was quashed and he was released into the big, wide world forthwith. Unfortunately for him, this happened just several days shy of his parole release date.

In May 2001, Ming sentenced Mathe to three years and nine months in the slammer for abduction and rape – with a two year, six month non-parole period.

Mathe who had a handful of priors (none of them sexual) had allegedly “befriended” a heroin addict on the train from Dandenong, alighted with her at Hallam railway station and then dragged her into a ditch where he digitally penetrated her.

imageWhile Justice Vincent was less than impressed with Ming’s “repeated and unnecessarily disparaging remarks” concerning Nathan Crafti (right), counsel for Mathe, the biggest birching came from Justice Eames.

Batt JA, on the other hand, would not have disturbed the jury’s verdict, finding it was open on the evidence for it to be satisfied as to Mathe’s guilt.

Eames, however, described as “unreasonable” Ming’s criticism of Crafti for illustrating a point with a reference to the television program Sex in the City. Crafti argued that the circumstances today in which people sought casual sexual relations were different from earlier times, viz, Sex in the City.

Ming told the jury that he had never seen the TV show, but anyway it had “little relationship to real life” and that the reference to it was “of no assistance whatsoever”.

Eames said Kimm’s charge to jury which catalogued Crafti’s errors, was “unfair to the defence” because “the jury must have regarded them as an admonishment of counsel for adopting a course in his address which was misleading and inappropriate”.

Obviously there was little love lost between Kimm and Crafti. Terse words were exchanged. “Don’t speak to me like that Mr Crafti,” warned Ming at one point. “I have ruled against you. Please resume your seat.”

Much more damning for the trial judge was Justice Eames’ finding that “the jury would have concluded that the judge had formed and adverse opinion of defence counsel and the manner in which he was presenting the case”.

He was particularly critical of Ming’s summing up on the complainant’s credibility, which was “critical to conviction”.

Eames cited the complainant’s own admission that she was “off my face” having consumed “four or five” pots of beer and having injected herself with heroin three times, just prior to the alleged abduction and rape.

“His Honour’s treatment of the importance of weighing the effect of alcohol and drug ingestion on the complainant’s reliability was, in my opinion, little more than rudimentary”, wrote Justice Eames.

Which just about sums up the justice meted out in Ming’s Court that day.

“Had I been there, Mr Wing Chung would not have received a life sentence,” pleads Somosi

It ain’t necessarily so, said Justice Levine who deftly disposed of the struck-off barrister Robert Somosi’s raft of imputations in a recent interlocutory defamation judgment.

imageSomosi (right) is suing The Sydney Morning Herald over an article by Leone Lamont published on September 3, 2003 with the headline “Barrister skipped court as client got life”.

The story covered proceedings brought in the Administrative Decisions Tribunal by the Bar & Grill, which claimed that the bankrupt former barrister was en route to the East Coast Blues and Roots Music Festival in Byron Bay when he should have been in court for the sentencing hearing of his client.

The client, Mr Wing Chung got life on drugs charges.

The paper also published a photo of the disgraced one covering his face with his pudgy hands.

Somosi pleaded six imputations.

(a) The NSW Bar Association brought a complaint of professional misconduct against the plaintiff because the judge imposed a life sentence on his client when the plaintiff failed to appear at the sentencing hearing.

(b) The plaintiff was so ashamed of his conduct when his client got life because he skipped court that he covered his face with his hands at the Administrative Decisions Tribunal hearing.

(b)(i) The plaintiff was so ashamed of his conduct when his client got life because he skipped court that he prevented The Sydney Morning Herald from taking a photograph of his face.

(c) The plaintiff caused his client Wing Chung to be sentenced to life because he skipped court and did not appear for him, as he should have done.

(d) The plaintiff failed in his obligations as a barrister because he preferred his own interests to the interests of his client with the result that his client was sentenced to life imprisonment.

(e) The plaintiff deserted his client by skipping court with the result Wing Chung got life instead of a less severe sentence.

As Levine put it, Somosi’s pleadings amounted to the central underpinning proposition: “Had I (Somosi) been there, Mr Wing Chung would not have received a life sentence.”

In relation to the headline, “Barrister skipped court as client got life”, Levine thought that by itself it means “in ordinary English something contrary to the proposition that underpins the imputations”.

Not only that, but the article itself was incapable of conveying the fundamental proposition being put by Somosi.

Levine did say observe that, “an imputation to some extent based upon covering the face could well go the tribunal of four citizens to determine what in fact it means.”

However, as proposed they cannot arise.

Somosi got leave to replead the whole bang lot, but has to pay Fairfax’s costs for his fruitless day.