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William Collins
15 May, 2005  
Clash of the regulatory titans

Professional standards people at the LIV appealing the Supreme Court decision which allows the Legal Ombudsman to press ahead with an investigation into their management of trust accounts in receivership. Costs are now the gritty issue in this exhausting struggle … The miscarriage of justice in the Daryl Beamish case was identified 40 years ago by the professor of jurisprudence at Melbourne law school

In their wisdom, the authors of the Legal Practice Act 1996 (Vic) allocated responsibility for regulation of the Victorian profession to the Legal Practice Board, the Legal Ombudsman, and to creatures called the recognised professional association (RPA).

There are two RPAs the Law Institute of Victoria (LIV) (for the attorneys branch) and the Victorian Bar (for counsel).

Wearing its statutory RPA hat one of the LIVs functions is to apply to the Supreme Court of Victoria for an order appointing a receiver to a solicitors practice.

My instincts tell me that the Acts authors would scarcely have imagined that the Legal Ombudsman might be called upon to entertain, let alone investigate, a complaint about the conduct of the senior RPA officials responsible for the administration of the Acts receivership provisions.

But, alas, it has come to pass and chiefly because each of the regulatory bodies has some authority to receive and deal with complaints.

imageTaking a robust view of the scope of her investigative writ, the Legal Ombudsman, Kate Hammond (seen here), embarked on an investigation of the administration of several receiverships and went so far as to raise issues about the fitness of Kevin Power, the General Manager of the LIV Professional Standards Department, for appointment as a receiver.

It appeared to the Ombudsman that at relevant times Kev may not have been the holder of a current practising certificate and how do you manage the trust accounts of firms in receivership if you don’t have a proper ticket?

And a serious inter-agency row it is, since it has engaged the attention of Harper J in the Supreme Court.

Power and two of his colleagues at the LIV, Messrs Sapountsis and Horvath, alleged that their co-regulator was trespassing on the courts supervisory jurisdiction, had prejudged the outcome of her investigations, and otherwise had attempted to serve her investigative writ where it did not lawfully run.

However, despite the manner in which the story was pitched in some of the tissues, Ombudsman Hammond substantially prevailed and the judge said she may continue to investigate Power over his management of trust accounts.

Harper Js judgment is a masterpiece of judicial diplomacy replete with expressions such as, “the Legal Ombudsman takes the entirely unexceptional view that a receiver has important responsibilities [and] a wise Legal Ombudsman would doubtless be concerned to become familiar with relevant background material,” and so on.

His Honour, who has since ordered the LIV to pay two-thirds of the Legal Ombudsmans costs of defending the attack on her authority, ends his judgment on a cautionary note: the Legal Ombudsman’s investigations may continue. They ought not become a crusade.

Power and company are appealing, but who must pay is the interesting question? I’m told the Legal Practice Board doesn’t have its heart in it and the LIV is not keen for members’ hard-pressed funds to be splashed about on this little adventure.

The Beamish case 44 years to get it right

On April 1 the West Australian Court of Criminal Appeal (Steytler, Wheeler, and McLure JJ) set aside the 1961 conviction of the deaf mute Daryl Beamish for the 1959 hatchet murder of Jillian Brewer. Beamish (now aged 65) served 15 years in prison.

The gist of the decision is the courts finding that, because of the gallows confession of Eric Edgar Cooke – the last person executed in Western Australia (October 1964) – that he had killed Miss Brewer, there was a significant possibility that a jury, acting reasonably, would have acquitted Beamish.

imageCooke (pictured) also played a central role in the events that led the West Australian Court of Criminal Appeal (Malcolm CJ, Wallwork, and Owen JJ) to set aside the 1963 conviction of John Button (not the former Senator), for the manslaughter of Rosemary Anderson:

There is in the Daryl Beamish case a faint Victorian echo in this deeply disturbing entry in the annals of convicting the innocent.

To date it has mostly failed to excite the interest of the mass media of Yarraside.

Back in 1966, Melbourne University Press published a tract, The Beamish Case, by Peter Brett, then Professor of Jurisprudence at the University of Melbourne.

Brett, who had come to Melbourne from the United Kingdom via the University of Western Australia Law School, forcefully (and courageously) set out in 57 pages the case for why Beamish had been the victim of a miscarriage of justice, ending with the following assertion:

The important and immediate step to be taken is the pardon and release of Beamish. The judicial processes have failed and the executive should now intervene. If they do this it will probably be enough. The judges, Crown law officers, and police who participated in the sorry proceedings which I have described here can be left to live with their consciences.

It is fair to say that Brett did not endear himself to the WA legal establishment.

Bretts tract was, for example, denounced by Professor Douglas Payne of the UWA Law School: “a jury and twenty judges” had not been persuaded by Beamishs denials.

In May 1964, the Court of Criminal Appeal – Wolff CJ, who had been the trial judge, Jackson and Virtue JJ (both of whom had sat on Beamishs first appeal, [1962] WAR 84]) – had disbelieved Cookes earlier confessions in rejecting Beamishs petition for mercy.

In doing so, Wolff CJ had likened Beamish to a fiend driven by a frenzy of blood lust.

In its recent decision, the Court of Criminal Appeal (paras 341 to 347) referred in passing to Bretts publication and then only to one aspect of his argument.

Enigmatically, in intervening in the Beamish case four decades on, the court stressed that, at the time of his trial, there was a very powerful case against Beamish [412]: in 1964, the Court of Criminal Appeal had stated that the case for the Crown was of great probative strength.

One does not have to read too far between the lines to get a sense that todays judges wanted to offer some defence of their predecessors who, not having the benefit of Cookes last (gallows) confession, had twice rejected Beamishs attempts to have his conviction reversed.

But, who is to know whether Beamish would have fared any better if in 1964 the Court of Criminal Appeal had before it the gallows confession? Presumably the judges would have required Cooke to be cross-examined, as he was earlier in the year. Yet the testing of that confession would have been problematic, to say the least.