New Zealand Law Society - Lawyers Complaints Service: Suspended for misleading Court of Appeal

Lawyers Complaints Service: Suspended for misleading Court of Appeal

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John Alan van der Zanden has been suspended for three months from 2 August 2014 by order of the New Zealand Lawyers and Conveyancers Tribunal.

In [2014] NZLCDT 21, the Tribunal found Mr van der Zanden guilty of negligence in relation to two misleading affidavits he swore effectively alleging prosecutorial misconduct which were prepared for the Court of Appeal.

The misconduct alleged was that a prosecutor had resiled from an agreement not to oppose home detention.

Mr van der Zanden appeared for Mr B in the District Court criminal jurisdiction between 15 March 2011 and 5 April 2012.

During this period there were about 15 court appearances and a number of different Crown prosecutors were involved. Mr van der Zanden says he had to deal with a total of 11 prosecutors and the Crown file named at least eight prosecutors.

Mr B pleaded guilty to a charge of injuring with intent. In advance of the sentencing hearing, submissions were provided by Mr van der Zanden. The Crown position on the type of sentence was reserved until after the pre-sentence report.

At sentencing, the prosecutor opposed home detention having regard to the nature of the offending and a failure to comply with bail conditions. Mr B was sentenced to two years’ imprisonment.

He subsequently sought to appeal this sentence, represented by different counsel, relying on an affidavit sworn by Mr van der Zanden. This deposed that the Crown prosecutor he had first raised the matter with of a possible sentence of home detention as an outcome of a plea, had agreed that the Crown would accept the final sentence ought to be home detention and that an application to that effect would not be opposed.

Mr van der Zanden alleged this arrangement was not adhered to at sentence. This affidavit was sworn on 27 June 2012. The prosecutor who attended at sentencing responded immediately, denying that she had agreed to consent to home detention at any time and annexing the pre-sentencing email exchange, which contained no mention of home detention.

“Unsurprisingly, the Court of Appeal was particularly concerned at the material before it,” the Tribunal said.

In a minute issued on 24 August 2012, the Judge said: “This conflict (in the evidence) gives rise to serious questions about Mr van der Zanden’s conduct. It appears that when swearing his affidavit he failed to disclose to the Court the existence of his email exchange with [the Crown prosecutor] which contradicts his assertion on oath about the nature and extent of a sentencing agreement with the Crown. As an officer of the Court he was bound to make full and accurate disclosure of all relevant material when swearing his affidavit. On its face his affidavit is seriously misleading”.

His Honour went on to express the present view of the Court that the matter ought to be referred to the New Zealand Law Society, but before taking that step gave the practitioner “… an opportunity to explain his position on oath”.

In response, Mr van der Zanden filed a second affidavit saying that on or about 1 September 2011 one of the Crown prosecutors “appeared for the respondent”. After the adjournment of the case he and the prosecutor had some “meaningful discussions” on plea.

During those discussions, the affidavit said, Mr van der Zanden asked the prosecutor what his position would be on an application for home detention. In particular he asked the prosecutor if the Crown would oppose an application for home detention and he verbally indicated that he would not.

That prosecutor then swore an affidavit pointing out he had had nothing to do with the file after 20 April, and thus the assertion about discussions on 1 September could not be true.

“This was commented on by the Court of Appeal in a further minute of 22 November,” the Tribunal said. In that, the Court said: “Two aspects of Mr van der Zanden’s second affidavit are particularly material. First, he has continued his omission to refer to his email exchange with [the prosecutor who appeared at sentencing] … which directly contradicts his earlier account of evidence given on oath. Second Mr van der Zanden repeated his earlier assertion that he had reached a relevant agreement on sentence with [another prosecutor employed by the firm]”.

The Court then referred to the prosecutor’s affidavit in answer and commented: “Our earlier concerns that Mr van der Zanden has misled the Court are compounded by the terms of his second affidavit. This is a serious issue. We direct the Registrar to refer our minutes to the President of the New Zealand Law Society for investigation …”

Mr van der Zanden subsequently acknowledged that the conversation with the prosecutor could not have occurred after 20 April 2011 and thus it happened on or before that date.

The Tribunal noted that Mr van der Zanden had conceded that he had not even corrected his error before the second affidavit in response to the Court of Appeal’s minute.

“He indicated that he was very concerned about meeting the filing time limit imposed upon him and was unable to contact counsel who had the file. He confirmed he did have access to the email trail because that was in digital form, but says he knew he had had the conversation with [the first prosecutor] rather than with [the prosecutor who appeared at sentencing] and therefore did not see the importance of the emails exchanged with her.

“He said he did not think that was what the Court of Appeal was asking for and thought he had addressed the email exchange. When asked if he got advice from a senior colleague after the first Court of Appeal minute he said that he did not – he had just drafted an affidavit in response and that the other counsel and he were both busy at the time.”

In cross examination, Mr van der Zanden acknowledged that he had conflated his advice and what was later known of the Crown’s position.

“Mr van der Zanden conceded that he was completely out of his depth in this matter and did not seek advice about his own position until after he had filed the two affidavits with the Court of Appeal,” the Tribunal said.

Mr van der Zanden’s counsel submitted that his client had been a barrister for but a short time when these events occurred and was unaware of the Crown’s standard practice in relation to sentence indications.

He submitted that it was to his client’s credit that as other perspectives were revealed by further affidavits filed with the Court of Appeal that his client was prepared to resile from his initial version.

Mr van der Zanden’s counsel said he was in a muddle and so convinced of his strategy that the appeal was based on that. He submitted that there was no intention to set out to deceive and that the misleading of the Court was entirely unintentional.

In its penalty decision, [2014] NZLCDT 54, the Tribunal said it did not find that the conduct was “either intentionally misleading or a completely reckless disregard of his professional obligations.

“We considered that the practitioner did not appreciate how serious the allegations (of prosecutorial misconduct) being made by him were, nor how much more careful he ought to have been in preparing a document for the Court of Appeal in the circumstances.

“In this respect his inexperience and lack of mentoring, as well as his sense of panic to comply with time frames, provided some explanation and persuaded us there was no bad faith.”

Among the mitigating features, Mr van der Zanden, following the Tribunal’s liability decision, filed “an extremely contrite affidavit in which he apologised to the Court of Appeal and to the colleague about whom he had provided false information”.

He had also taken steps to obtain a mentor and indicated he is willing to have this arrangement formalised by an order under s 156 of the Lawyers and Conveyancers Act 2006.

As well as the suspension, Mr van der Zanden was censured, ordered to take advice in relation to the management of his practice and to undergo practical training as directed by a Law Society Complaints Service team leader in addition to mandatory continuing professional development obligations.

He was ordered to pay half the standards committee costs of $26,895.63 and half the Tribunal costs, half being $2,577.

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