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Censure and fine for non disclosure

05 December 2016

Christchurch lawyer Philippa Anne Currie has been censured and fined $500 by a lawyers standards committee for misleading the Court and not disclosing relevant material to a self-represented defendant.

Mr A was co-accused in a trial in 2007, following which he was sentenced to a term of imprisonment.

During his trial, Mr A applied to have the evidence of a key Crown witness, L, excluded because he believed an inducement had been provided to that witness, namely a discount in sentence on other matters.

However neither the Court, Mr A, or defence counsel acting for other defendants, were made aware of the full sentencing notes which showed there had been a discount in the sentence imposed on L as a result of assistance provided by him to the Police, which also resulted in him pleading guilty to lesser charges.

This was because only a partial extract of the sentencing notes was disclosed by Mrs Currie.

The Court of Appeal allowed an appeal by Mr A against the convictions entered in the trial where L had given evidence.

Miscarriage of justice

“The Court [of Appeal] concluded: ‘We are satisfied that the accused were placed in an unfair disadvantage by the non-disclosure of the sentencing notes of 31 May, as were the Judge and jury and that a miscarriage of justice resulted. There is no doubt that had the Judge and jury been informed of the presence of the discount they would have been much better informed of the context within which L was to give and gave evidence.’ “

Mr A later brought his complaint. He alleged that Mrs Currie had deliberately failed to disclose to him, to counsel for other accused, and to the trial Judge, the full details of the discount provided to L.

For Mrs Currie, it was submitted that: “Mrs Currie’s error in not providing the trial Judge and counsel with a full copy of [the] sentencing notes (a publicly available document) was a minor and inadvertent error of judgment (sic), made in good faith in the midst of a lengthy, complex and multiple accused trial, which abounded with legal and evidential issues”.

The committee did not agree that the non disclosure of the sentencing notes was a minor and inadvertent error of judgement, nor did it accept a submission that Mrs Currie’s interpretation of the sentencing notes was a reasonable one in the circumstances.

The committee said it considered the decision made to be negligent on her part, and that “it can hardly be described as a minor error of judgment for Mrs Currie to have failed to disclose a document which, as the Court of Appeal found in dealing with Mr [A]’s appeal, so obviously ought to have been disclosed in full.”

The outcome of Mrs Currie’s non disclosure of the full sentencing notes was that Mr A was deprived of an opportunity to pursue his application for the exclusion of L’s evidence, the committee said, noting that “the error was not minor because the interpretation placed on the [sentencing] notes by Mrs Currie was untenable”, and that this erroneous interpretation had led Mrs Currie into repeated error and continuing breaches of her obligations as a prosecutor.

The committee, in its first determination dated 17 November 2010, concluded that Mrs Currie’s conduct, in failing to make disclosure of relevant documents in accordance with her obligation to disclose all relevant evidence, breached her duty to Mr A, and accordingly found unsatisfactory conduct on Mrs Currie’s part.

This determination was confirmed in a further determination dated 19 May 2014, in which the committee determined that Mrs Currie had breached the professional obligations owed by her to the court in respect of the non disclosure of the material referred to, to Mr A, counsel for other accused, and the trial Judge.

The committee did not accept that there had been a deliberate breach by Mrs Currie of her obligations to the court as reflected in Rule 13.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2009. However the committee did consider, for the same reasons as it had concluded that there had been a breach by Mrs Currie of her duty to Mr A, that she had made a significant error in a way that misled the court.

Name publication

The committee said it considered publication of Mrs Currie’s name to be necessary and in the public interest. It noted that many people would be aware of the fact that Mrs Currie had faced disciplinary proceedings because of them in reported court decisions in which no orders for suppression had been made. The committee also considered that in the interests of clarity and to avoid any mistaken identity of other persons as being subject to the complaints, it was desirable to direct publication of Mrs Currie’s name.

The committee took into account the impact of publication on Mrs Currie, but reiterated the view recorded in each of its earlier determinations, that although Mrs Currie had made an error of judgement, she had not acted deliberately or deceitfully, and that any person reading the committee’s determinations in full would appreciate that the committee accepted that Mrs Currie was an honest and capable practitioner, unlikely to transgress again. On the other hand the committee also recorded its view that the unsatisfactory conduct found was serious and that the penalties imposed reflected that.

“Nor does the committee accept that publication of Mrs Currie’s name, in the context of the determinations the committee has reached, will undermine the effectiveness of the Crown Solicitors office. Rather, the committee has concluded that publication of Mrs Currie’s identity serves to reinforce the objective of ensuring that appropriate standards of conduct are maintained in the public interest, and ensuring public confidence that practitioners in positions such as that of Mrs Currie are accountable for any failure to meet them,” the committee said.

As well as the censure and $500 fine, the committee ordered Mrs Currie to pay $2,000 costs.

Last updated on the 5th December 2016