Photo: nswbar.asn.au
by Mary W Maxwell, LLB (Adel)
The photo shown above appears on the Professional Conduct page of the New South Wales Bar Association’ website, without a caption. I presume it means “Stay on the Straight and Narrow.”
Ah, the straight and narrow. What is that for the legal profession today? Does it mean “Do the done thing”? I hope not, as the thing that is being done in Children’s Courts today is horrible.
This series at GumshoeNews.com, entitled “Everybody Knows,” concerns the criminal charges — 101% unwarranted — leveled against Dr Russell Pridgeon. Part 1 discussed the list of professional ethics for doctors.
I chose only the items from the AMA’s code of practice that bear upon Russell’s duties to society as a doctor. Today it’s barristers’ turn. I will quote from the New South Wales code for barristers, but I won’t be so abstemious; I’ll copy out many items that are of general interest and will use bolding to highlight the ones that may pertain to the Pridgeon case.
Note: Russell is not the only accused at this trial. He has two “accomplices,” or he is their accomplice — whichever. One is the grandmother of the children, Ann Greer. The other is Patrick O’Dea, an advocate for the cause. All have suffered for four years, never knowing when to pack the toothbrush for prison. And “the targetted kids” have not had protection or relief, as far as I am aware. Just imagine it.
And this is Australia — beautiful, blessed, sunshiny Australia.
Legal Profession Uniform Conduct (Barristers) Rules 2015
Current version for 4 March 2022 to date
4 Principles
These Rules are made in the belief that:
(a) barristers owe their paramount duty to the administration of justice,
(b) barristers must maintain high standards of professional conduct,
(c) barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully, bravely and with competence and diligence,
(d) barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues,
(e) barristers should exercise their forensic judgments and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients, and
(f) the provision of advocates for those who need legal representation is better secured if there is a Bar whose members:
(i) must accept briefs to appear regardless of their personal beliefs….
5 Interpretation
The Interpretation of Legislation Act 1984 (Victoria) applies to the interpretation of these Rules.
6 Application of Rules
Except as otherwise provided these Rules apply to:
(a) a barrister whose practising certificate is issued in a participating jurisdiction….
(c) a barrister who is employed by the Crown…
7 Other standards
These Rules are not intended to be a complete or detailed code of conduct for barristers. Other standards for … are found in the inherent disciplinary jurisdiction of the Supreme Court, the legislation regulating the legal profession and in the general law (including the law relating to contempt of court).
Advocacy rules
8 General
A barrister must not engage in conduct which is:
(a) dishonest or otherwise discreditable to a barrister,
(b) prejudicial to the administration of justice, or
(c) likely to diminish public confidence in the legal profession ….
9 Another vocation
A barrister must not engage in another vocation [such as CIA? ASIO? Mafia?] which:
(a) is liable to adversely affect the reputation of the legal profession or the barrister’s own reputation,
(b) is likely to impair or conflict with the barrister’s duties to clients….
10 Use of professional qualification
A barrister must not use or permit the use of the professional qualification as a barrister for the advancement of any other occupation or activity in which he or she is directly or indirectly engaged, or for private advantage, unless that use is usual or reasonable in the circumstances.
11 Work of a barrister
12 A barrister must be a sole practitioner, and must not:
(c) practise as the employee of any person ….
13 A barrister must not, subject to rules 14 and 15:
(a) act as a person’s general agent or attorney in that person’s business or dealings with others …
(c) place herself or himself at risk of becoming a witness, by investigating facts for the purposes of appearing as an advocate or giving legal advice, otherwise than by:
14 A barrister does not breach rule 13 by doing any of the matters referred to in that rule, without fee and as a private person not as a barrister or legal practitioner.
15 A barrister does not breach rule 13 (a), (h) or (l) if the barrister becomes such an agent, is appointed so to act or becomes responsible for such funds as a private person and not as a barrister or legal practitioner.
17 Cab-rank principle A barrister must accept a brief from a solicitor to appear before a court in a field in which the barrister practises or professes to practise if:
(a) the brief is within the barrister’s capacity, skill and experience,
(b) the barrister would be available to work as a barrister when the brief would require the barrister to appear…
(c) the fee offered on the brief is acceptable to the barrister, and
23 Duty to the court. A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice. [Good heavens.]
24 A barrister must not deceive or knowingly or recklessly mislead the court. [Astonishing.]
25 A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading. [When the saints come marching in…]
26 A barrister must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the barrister contrary to the true position and is believed by the barrister to have been made by mistake. [Huh?]
29 A barrister must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of:
(a) any binding authority,
(b) where there is no binding authority any authority decided by an Australian appellate court, and
(c) any applicable legislation,
known to the barrister and which the barrister has reasonable grounds to believe to be directly in point, against the client’s case.
33 A barrister who knows or suspects that the prosecution is unaware of the client’s previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer. [‘Moral hazard’ is accounted for in these ethics]
34 A barrister must inform the court of any apparent misapprehension by the court as to the effect of an order which the court is making, as soon as the barrister becomes aware of the misapprehension.
35 Duty to the client. A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person. [Bullseye!]
37 A barrister must seek to assist the client to understand the issues in the case and the client’s possible rights and obligations, sufficiently to permit the client to give proper instructions, including instructions in connection with any compromise of the case.
39 Criminal pleas. It is the duty of a barrister representing a person charged with a criminal offence:
(a) to advise the client generally about any plea to the charge, and
(b) to make clear that the client has the responsibility for and complete freedom of choosing the pleas to be entered.
42 Independence. A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s wishes where practicable.
43 A barrister does not breach the barrister’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s wishes, simply by choosing, contrary to those wishes, to exercise the forensic judgments called for during the case so as to: (a) confine any hearing to those issues which the barrister believes to be the real issues ….
45 A barrister must not in the presence of any of the parties or solicitors deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the barrister has special favour with the court.
49 Duty to the opponent. A barrister must not knowingly make a false or misleading statement to an opponent in relation to the case (including its compromise).
50 A barrister must take all necessary steps to correct any false or misleading statement in relation to the case made by the barrister to an opponent as soon as possible after the barrister becomes aware that the statement was false or misleading.
54 A barrister must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:
(a) the court has first communicated with the barrister in such a way as to require the barrister to respond to the court, or
(b) the opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister.
55 A barrister must promptly tell an opponent what passes between the barrister and a court in a communication referred to in rule 54.
58 A barrister must seek to ensure that work which the barrister is briefed to do in relation to a case is done so as to:
(a) confine the case to identified issues which are genuinely in dispute,
(b) have the case ready to be heard as soon as practicable,
(c) present the identified issues in dispute clearly and succinctly …
59 A barrister must take steps to inform the opponent as soon as possible after the barrister has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing …
60 Responsible use of court process and privilege
A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court:
(a) is reasonably justified by the material then available to the barrister,
(b) is appropriate for the robust advancement of the client’s case on its merits,
(c) is not given principally in order to harass or embarrass a person, and
(d) is not given principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor or a third party out of court. [e.g., The Family]
62 Without limiting the generality of rule 61, in proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence:
(a) a barrister must not ask that witness a question or pursue a line of questioning of that witness which is intended:
(i) to mislead or confuse the witness, or
(ii) to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, and
(b) a barrister must take into account any particular vulnerability of the witness in the manner and tone of the questions that the barrister asks.
63 A barrister does not infringe rule 62 merely because:
(a) the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness, or
(b) the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.
65 A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:
(a) available material by which the allegation could be supported provides a proper basis for it, and
(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
67 A barrister must not make a suggestion in cross-examination on credit unless the barrister believes on reasonable grounds that acceptance of the suggestion would diminish the credibility of the evidence of the witness.
69 Integrity of evidence
A barrister must not:
(a) advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so, or
(b) coach a witness by advising what answers the witness should give to questions which might be asked. [Kidding?]
70 A barrister does not breach rule 69 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true. [Oh.]
74 A barrister must not take any step to prevent or discourage prospective witnesses from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.
76 Media comment. A barrister must not publish or take any step towards the publication of any material concerning any proceeding which:
(a) is known to the barrister to be inaccurate …
77 A barrister must not publish or take any step towards the publication of any material concerning any current proceeding in which the barrister is appearing or any potential proceeding in which a barrister is likely to appear, other than:
(a) a barrister may supply answers to unsolicited questions concerning a current proceeding provided that the answers are limited to information as to the identity of the parties or of any witness already called, the nature of the issues in the case, the nature of the orders made or judgment given including any reasons given by the court and the client’s intentions as to any further steps in the case, or
(b) a barrister may, where it is not contrary to legislation or court practice and at the request of the client or instructing solicitor or in response to unsolicited questions supply for publication:
(i) copies of pleadings in their current form which have been filed and served in accordance with the court’s requirements,
(ii) copies of affidavits or witness statements, which have been read, tendered or verified in open court, clearly marked so as to show any parts which have not been read, tendered or verified or which have been disallowed on objection,
(iii) copies of transcript of evidence given in open court, if permitted by copyright and clearly marked so as to show any corrections agreed by the other parties or directed by the court, or
(iv) copies of exhibits admitted in open court and without restriction on access.
78 A barrister: (a) may if requested advise a client about dealings with the media but not in a manner which is calculated to interfere with the proper administration of justice …
79 Delinquent or guilty client. A barrister who, as a result of information provided by the client or a witness called on behalf of the client, is informed … that the client or a witness called on behalf of the client:
(a) has lied in a material particular to the court or has procured another person to lie to the court,
(c) has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court,
must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie …
80 A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty:…
(c) must not set up an affirmative case inconsistent with the confession,
(d) must ensure that the prosecution is put to proof of its case,
(e) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged …
81 A barrister whose client informs the barrister that the client intends to disobey a court’s order:
(a) must advise the client against that course and warn the client of its dangers, and
(b) must not advise the client how to carry out or conceal that course, but
(c) must not inform the court or the opponent of the client’s intention unless:
(i) the client has authorised the barrister to do so beforehand, or
(ii) the barrister believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety.
83 Prosecutor’s duties. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
85 A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
87 A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) … constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.
92 A prosecutor must not confer with or interview any accused except in the presence of the accused’s legal representative.
95 A prosecutor:
(a) must correct any error made by the opponent in address on sentence,
113 Devilling [?]
A barrister does not breach rule 12 by carrying out a specific task of research or chamber work given to the barrister by another barrister, or by giving such a task to another barrister, so long as:
(a) the barrister who was briefed to do the work takes full personal responsibility for the work,
(c) the arrangement between the barristers does not go beyond an ordinary devilling or reading arrangement and in particular does not involve any standing retainer or employment terms, and
120 A barrister who believes on reasonable grounds that the interests of the client may conflict with the interests of the instructing solicitor, or that the client may have a claim against the instructing solicitor, must:
(a) advise the instructing solicitor of the barrister’s belief, and
(b) if the instructing solicitor does not agree to advise the client of the barrister’s belief, seek to advise the client in the presence of the instructing solicitor of the barrister’s belief.
123 Anti-discrimination and harassment (1) A barrister must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes … (c) bullying.
PROFESSIONAL CONDUCT
The Bar Association’s Professional Conduct Department facilitates the investigation and reporting to Bar Council of conduct complaints referred to the Bar Council by the Office of the Legal Services Commissioner.
What happens when the Bar Association receives a complaint about a barrister? What action should a barrister take in relation to a complaint? How long will it take for the complaint to be processed? Learn more here.
Latest disciplinary cases
The Bar Association’s Professional Conduct Department publishes a list of the latest disciplinary decisions of courts and tribunals, regarding holders of NSW practising certificates. [I show two examples — MM]:
PETER [surname provided]
On 11 August 2016, the Council of The New South Wales Bar Association (the Bar Council) resolved, pursuant to s 45(2) of the Legal Profession Uniform Law (NSW), to refuse the application made by Peter for the renewal of his Australian practising certificate as a barrister for the year commencing 1 July 2016 on the basis that the Bar Council considers that Peter is not a fit and proper person to hold an Australian practising certificate as a barrister.
STUART [surname provided]
On 23 June 2016 the Council of The New South Wales Bar Association resolved, pursuant to section 45(2) of the Legal Profession Uniform Law (NSW), not to renew the Australian practising certificate of Stuart for the practising certificate year commencing 1 July 2016 on the ground that he had failed to comply with a condition imposed on an Australian practising certificate.
Ok, this is good.
Mary you of course understand what it means to be called to the BAR(city of London).
lets just back up and see what trifles they are prepared to concede, me, not an inch but where has that got me. Spoiler nowhere, our boy is in stern, going to take you and me to dig this cr@P, regardless of law
sorry consistent with/of natural law.
A horse walks into a bar. At dusk, down the road, a pharmacist, a policeman and a barrister sneak into the Masonic Temple via the rear door. Mwa-ha-ha, who needs the bar.
Simon dear, it has just occurred to me that no matter how excellent the disciplinary rule might be, they have no value, no use, if most of the persons are under mind control.
How can a lawyer (or doctor or candle maker) do a noble job of it, if his mind is not “present and accounted for”?
It’s easy for us at Gumshoe to understand the lawlessness of Australia. In the USA, a guy named Bill Windsor went on a mission around the “lower 48” to film people who had a complaint about the court.
HIs plan was to make a full movie with each person speaking for 2 minutes. He got sent to jaill and I have not been able to track him. “They” also broke up his happy marriage.
So here is one of the testifiers, Irene Holmes. Her kids were taken because she lived in a trailer. Hey, our ancestors lived flat on the ground and they birthed us, didn’t they?
I attended the mention or hearing today (whatever it is called) in Brisbane. Talk about hearing: I’m not sure self-represented Mr O’Dea can get a fair hearing — as he is hard of hearing, and spends the time with his hand cupped over his ear in an attempt to hear, When he addressed the court he says “I apologize Your Honour, but I only picked up a bit of what was being said…” But the court rolls on.
I will write a separate piece on my observations today.
A thought — a question for the barrister readers: Has anyone ever been prosecuted for trying to protect children in Australia before?
Calling a judge “Your Honour” just plays right into the aristocratic rot that’s the heart of the problem
What’s wrong with “Sir”?
Even a recalcitrant teenager can be addressed like so without causing offence
I hope everyone realizes that my article above is only about ETHICS. If a lawyer breaks the law (such the law against the perversion of the course of justice), that is not something for the Bar Council to discipline her for. It’s for a knock at the door type thing.
“Hi, mind if we handcuff you? Atta girl, this won’t hurt a bit.” Wham, pulls arms behind her; she is wearing only a nitie.
The entire Criminal Code of Australia (1995) is downloadable here:
https://www.legislation.gov.au/Details/C2021C00183/Download
In theory good, in practise absolute BS. Especially here down under, players with more money always win bribing legal eagles in judiciary, just ice demons on all bases loaded.
A good start will be to abolish private reserve banksters, with usury and taxation on all not in the club. Our children’s future in the balance.
Choice being, money or the gun. Don’t push to far even if you win in court, result means nothing.
Spent nearly five decades doing honest work only to be fleeced on occasions, now with AI black banned instead of passing skills to young ones.
Yes Joe, masonic halls our common problem.
Ant56, in Adelaide we have the WEA where anyone can teach a course, be it in handicrafts or Greek mythology. In Steak and Kidney too, I presume?
Yoh can give a short course in carpentry. Kids would be amazed.
I refer to the video sent by Rachel. All those men look Austalian to me but I did not think John Gittnger was Aussie. He was a member of the CIA and admitted that, during the 1975 Frank Church hearings, I believe.
Anyway I just went to look him up on Wiki and found a description of the persinality studies. Veryinteresting. “They” have learned so much about the human brain. We ought to catch up on it too. I quote:
PAS and MBTI[edit]
… The two systems have relationships but an individual’s profile in one system is not readily derived from the profile of the other. Research and conference discussions suggest that conscious choices as defined by preferences made on the MBTI questionnaire define an individual’s MBTI profile. Similarity, choices in one’s life-style define a person’s PAS third or surface dimension.
In the PAS terms, the face one shows to the world is the result of an individual’s conscious and unconscious screening process. Like the MBTI profile, the PAS surface dimension reflects who a person is or how he/she wants to be seen.
The MBTI and PAS diverge on the source of what goes into one’s public persona.
The first two dimensions of the PAS represent measurable, developmental interactions of Nature and Nurture at play in forming one’s “basic” or core personality. Based on motivations emanating from the basic personality, the surface persona is the result of an individual’s largely, but not entirely, conscious choices to maximize strengths and to minimize weaknesses. Once the individual’s basic or core personality is formed, it is immutable. In contrast, the surface dimension is subject to subtle transformations through life experiences such as education, therapy, illness, trauma, and/or aging.
[Whew.]
If core personalty is a thing, and I believe it is, comes down the “birth canal”, so the nurture in vitro and possibly(my view) before.
Whilst immutable its looks to be containable for some decades. The trauma that, that Gitt, defined(introverted, extroverted) could be used and then flip that base upsidedown causing a mind schism.
Hard to say where Don Lane and Bert Newton start and stop
Comes a time you need some humor.
The image that front pages and above is telling to me. Back in the day I was a ganger, platelayer, fettler so what is the nswbar.asn.au trying to convey here.
Well from a technical reality, this is under repair and could not pass muster or:
https://youtu.be/LQiOA7euaYA
Rule 35: John Avery / Martin Bryant Port Arthur Massacre court appearance. A massive wrong doing of this rule. Yet no dis-barring of John Avery for that case.