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Lawyers, the deception of a Court, and judicial spite

  • July 10th, 2008

On 25 June after reading Phil Kitichin’s first story on the background to the killing of  Debbie Ashton I wrote to my local District Law Society. The letter is set out below because it contains the relevant law society rules, though the Ashtons’ direct complaint will have superseded my suggestion of an inquiry.

I did not then know of the complicating factor – that the offender was under a witness protection scheme. If I had known that I’d have found the question much harder, and probably would not have written. The lawyer concerned has my sympathy now, for a very difficult position.

Without the suppression orders much of the attention to this case would have been over days ago. Yet in what appears to be been no more than silly spite, the judge who finally lifted the suppression order delayed its effect till 9-30 am yesterday, apparently thinking to punish the DomPost by denying it the chance to lead with what it had helped to uncover.

My (superseded) letter was as follows:

"Dear Mr Clarke
As a member of the Society I ask that it investigate the background to the statement in today’s DomPost (page A7) that an offender mislead a judge with a different name from the name under which his criminal records would be kept. The statement says:
“[Police, Probation and] his lawyer..all knew he had already lost his licence and was again appearing for offending while on parole. They all knew he had previous convictions and that he was going to use a different name in the court.
The judge knew none of that. The man was treated as a first offender..”
From what is said it appears that the lawyer connived at least in misleading the court. If so that breaches the ethical principle that underlies the Rules, and probably the words. For convenience the relevant Rules appear to be:
“In the interests of the administration of justice, the overriding duty of a practitioner acting in litigation is to the court or the tribunal concerned. Subject to this, the practitioner has a duty to act in the best interests of the client.
(1) A practitioner must never deceive or mislead the court or the tribunal.
(4) The practitioner has an obligation when conducting a case to put all relevant authorities known to the practitioner, whether decided cases or statutory provisions, before the court – whether they support the practitioner’s case or not.
(5) If a point of law which affects the case is discovered by the practitioner some time after the hearing but before the decision has been given, the practitioner has a duty to bring it to the attention of the court and to provide a copy of the reference to the practitioner acting for the other party or parties in the matter.
6) See also Practice Note [1968] NZLR 608 regarding the correct procedure as to submitting further information to the court after the conclusion of the hearing.
Rule 8.01B
A practitioner shall not knowingly fail to discover a relevant document.
(1) Practitioners are reminded that the duty to discover relevant documents is a continuing one up to and including the time of judgment.
[Rule 8.01B was adopted by Council resolution on 31 October 2003 and came into force on 1 January 2004. Refer also Rules 1.08, 2.03(1)(ii).] “
I ask that the Society not wait passively. If it is necessary for you to assert jurisdiction I will lodge a formal complaint, though I do not know the name of the practitioner (the suppression orders are themselves scandalous since our courts and justice system are supposed to be open so that we can all have confidence in its integrity).
Public confidence in  the integrity of our criminal justice is  collapsing. We lawyers have both a duty and substantial interest as citizens and for our careers to try to reverse that.
It is possible that the otherwise inexplicable conduct reported of the Police and the Probation Service is the result of corroding cynicism. Maybe they think it is just practical to collude to prevent the courts from applying the law as it is written because the government does not want to build more prisons.
But even if that is the case the Society should stand behind the judges’ right to decide sentences with the benefit of the whole truth and nothing but the truth.
Please make sure that our profession is clearly seen as not approving of justice as a  deceptive charade, a game of tactics.  Parole has already made liars of  sentencing judges, when the victims did not appreciate the effect of parole rights.
To counter the view that we are part of the pattern of deception we as a profession should  be especially energetic to underscore the lawyers’ duty of candour to the courts.
Stephen Franks"





You might also add rule 10.07:

10.07 Rule

Defence counsel must not disclose a client’s previous convictions without the client’s authority.


(1) Should the court raise the question of previous convictions with counsel, counsel should inform the court that it is not entitled to ask such a question and that counsel will not answer the question.

With this in mind, this is a very simple matter.

  • F E Smith
  • July 22nd, 2008
  • 11:30 pm

A good point, Graeme, and a rule that is little known even to many defence lawyers. I have lost count of the times when my colleagues breach this rule out of ignorance.

The real fault in this matter lies with the prosecutor, who could easily have handed up a memorandum (or even just a sealed note, after showing it to defence counsel) to alert the judge of the situation. The judge could then have closed the Court and conducted the sentencing in private.

What is disappointing is that no one from the Law Society has seen fit to alert the media to the existence of Rule 10.07 and the obligations on Mike Dollimore (who is no fool) to his client. At least this would have provided a colleague with some defence to the allegations made against him. The Society is far too quiet in the media- hopefully the advent of the new role of the Society from 1 August (to represent lawyers, something they don’t see themselves as responsible for at present) will mean there is more of a presence from the NZLS in future.


I understand that the procedure you mention was just what had happened with the offender in this case, on his previous appearance.

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