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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-03-26 Daily Xml
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QUEENSLAND LEGAL PRACTITIONERS TRIBUNAL

Mrs GERAGHTY (Torrens) (15:11): My question is to the Attorney-General. Can he inform the house on a recent Queensland Legal Practitioners Tribunal case?

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (15:11): I take this opportunity to bring before the house the failed prosecution of Queensland outlaw motorcycle gang lawyer, Douglas John Winning, to the attention of parliament, and to advise the house of the steps I am taking to ensure that South Australian lawyers who engage in similar conduct are brought to account for their behaviour.

In late 2008, the Legal Services Commissioner of Queensland brought nine charges against Mr Douglas John Winning, a Queensland lawyer, in the Legal Practitioners Tribunal, seeking findings of unprofessional conduct, unsatisfactory professional conduct or professional misconduct. Mr Winning was alleged to have tipped off his Rebels outlaw motorcycle gang clients about an imminent police raid on their premises, and advised one member to ensure that no cash or drug paraphernalia be found on the premises.

Criminal charges of attempting to prevent the course of justice and attempted official corruption had faltered early in the legal process. The lawyer had acted for members of the Rebels Motorcycle Club from early 2002. A practitioner for more than 15 years, he had worked as a Legal Aid solicitor and as a solicitor in the Aboriginal Legal Service, before joining a private practice specialising in criminal law.

In November 2002, the Queensland Police Service and the Australian Crime Commission jointly investigated the members of the Rebels Motorcycle Club Rockhampton chapter. On 22 May 2003, officers of the Queensland Police Service and the Australian Crime Commission obtained search warrants pursuant to the provisions of the Police Powers and Responsibilities Act, to be executed on 23 May 2003 on 10 alleged members of the Rebels Motorcycle Club, including Brendan and James O'Brien. Both men were clients of Mr Winning. Mr Winning acted for the club and its members.

On 22 May 2003, at about 11.20 pm, Mr Winning contacted Mr James O'Brien and said words to this effect:

Mate, this is [expletive] urgent. I've been running' around tryna find everybody. I can't get a phone number, mate. I've got some good drum that the coppers are gonna raid all the Rebels in Rockhampton at 5 o'clock in the morning.

On 22 May 2003, at about 11.31 pm, the lawyer contacted James O'Brien and said words to the effect of:

Yeah, so you know like get if they get rid of bongs particularly [expletive] cash because they'll steal the [expletive]. It would be lovely if they came up with [expletive] nothing...get rid of [expletive] bongs [expletive], cash...Anything...everything, ya know.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: That is true, two in a row.

The Hon. K.O. Foley: After your donkey punch, I do not think I would go there.

The Hon. M.J. ATKINSON: Yes. I am nothing on the member for Heysen when it comes to donkey punching. It was unknown how Mr Winning found out about the raid. Mr Winning said that an insider told him. The tribunal found that, as the club's lawyer, Mr Winning had a solicitor-client relationship with the club which 'carries with it the duty of the solicitor to protect the clients' interests'. The court found it was that duty that informed Mr Winning's decision to contact the Rebels about the police raid. The lawyer's evidence about the tip-off was as follows:

I did not know and nor could I have known the subject warrants had, in fact, been issued. Information came to me on 22 May 2003 that a search was to be conducted. I passed the information on to my clients because they had an interest in learning of the impending search. I had never attended at the residences of the O'Briens or other members of the club. I had no knowledge of any illegal contraband at the residence of the O'Briens or other members of the club.

The respondent was not cross-examined about this evidence, and no other evidence contradicted it. Therefore, the tribunal found that it should be accepted. The lawyer stated:

Whilst I am very embarrassed about my language on this occasion, I believe I acted in the interests of my clients thus creating, at its highest, a possibility that a police investigation may have been compromised. I maintain I did not act unlawfully in passing the information I received onto my clients and consequently did not breach my duty to the administration of justice. I consider that if I did not pass on the information I received to my clients I would have breached my duty to my clients.

The Queensland Legal Services Commissioner contended that the lawyer tipping off his clients of an impending police raid and advising them to get rid of any incriminating evidence impeded effective law enforcement and the fair administration of justice. The commissioner argued that the conduct jeopardised the very legal system that the respondent, as an officer of the court, was bound to protect and administer, and thereby breached his professional obligation to act in the administration of justice.

The commissioner said that the respondent allowed his concern for his clients' interests to conflict with his duty to the interests of the administration of justice. The respondent had essentially entered the arena and set aside his professional independence. The Legal Services Commissioner submitted that this is a serious example of professional misconduct. I respectfully agree with the Legal Services Commissioner's submission. However, the tribunal held that it is unarguable that a legal practitioner who assists in the criminal action of a client will be criminally responsible for those acts as a party to the offence or can be convicted of a criminal conspiracy, but the mere giving of advice in the course of a retainer is ordinarily insufficient to attract criminal sanction. Mr Winning was found not guilty on the charge. The tribunal said:

The Legal Services Commissioner has not satisfied the Tribunal to the requisite standard that the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession, such that it 'had the potential or tendency to bring the legal profession or the Queensland justice system into disrepute'. Nor does it constitute unprofessional conduct. As to the first limb of Charge 1, that his conduct was in breach 'of his duty to the administration of justice', no duty in the context of the facts alleged has been made out.

I am not satisfied with the findings of the Queensland tribunal.

I would be interested to know what the Law Society of South Australia thinks of these findings. We will never know by reading Mr John Goldberg's president's column in the morning newspaper, The Advertiser, because Mr Goldberg will never canvass issues such as these. Mr Goldberg's columns will only ever be an apologia for his brethren. One will no more read about lawyer's misconduct in Mr Goldberg's column than one would have read about the Gulag Archipelago in the Soviet Union's Pravda or TASS. Should Mr Goldberg and the Law Society have the integrity to tackle this issue, one can be assured that they will not be able to take a detached view of their vocation, and the Law Society dog will be wagged by the criminal law committee tail.

I am concerned that similar matters may come before our own Legal Practitioners Conduct Board. I will soon write to the President of the Law Society and seek his views about a legal practitioner's professional duty in such a case. If I am not satisfied such conduct would receive appropriate treatment in South Australia, I will change the conduct rules to make them say what the public of South Australia expects them to say.

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