Council of the NSW Bar Association v Power

(2008) 71 NSWLR 451; [2008] NSWCA 135

NSW Court of Appeal

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Interrogate

Catchwords

1. Legal Practitioners
2. › Removal from Roll
3. › Professional misconduct
4. › Possession of child pornography
5. › Whether Court should make additional findings of fact where practitioner consents to removal
6. › Whether deliberate concealment of evidence constitutes professional misconduct
1. Legal Practitioners
2. › Removal from Roll
3. › Right to silence
4. › Whether disciplinary proceedings are proceedings for a civil penalty
5. › Whether privilege against self-incrimination applies
6. › Whether failure to give evidence or offer explanation can be taken into account in drawing inferences
7. › Evidence Act 1995 (NSW), s 128
1. Evidence
2. › Inferences
3. › Failure to give evidence
4. › Jones v Dunkel reasoning in disciplinary proceedings
5. › Azzopardi v The Queen principles applied to civil proceedings
6. › Whether inference more readily drawn where facts peculiarly within knowledge of party who does not give evidence
1. Criminal Law
2. › Perverting the course of justice
3. › Tampering with evidence
4. › Concealment or disposal of hard drive containing child pornography
5. › Whether conduct amounted to offence under ss 317 and 319
6. › Crimes Act 1900 (NSW), ss 312, 317, 319

Quick Take

In professional disciplinary proceedings, a legal practitioner's failure to offer any explanation of facts peculiarly within their knowledge permits the drawing of adverse inferences, applying Azzopardi v The Queen principles by analogy. This is so even if disciplinary proceedings are regarded as proceedings for a civil penalty. The obligation of candour owed by a legal practitioner as an officer of the court should not be overridden by a right to silence to any greater extent than is strictly required by that right. The question whether Rich v ASIC applies to professional disciplinary proceedings was left open.