LAWYER'S MOVEMENT - WITH GREAT POWER CAME DASHED EXPECTATIONS

Lawyers’ movement — with great power come dashed expectations Featured16 HOURS AGO BY LUAVUT ZAHID large-p-3-a From rule of law to rule of judges When the lawyers’ movement gave birth to the Black Coat Protests in 2007, Pakistan was ready for a new world. If restored, the revived judiciary was to deliver Eden to the people backing it — more than half a decade later Eden is nowhere in sight. Why wasn’t the movement able to deliver the results it had promised to the people? Chaudhry Shoaib Saleem, Advocate High Courts, thinks that the movement is a little misunderstood by the people. “I think that the lawyer’s movement was just a motivational movement, and it provided an impetus to the legal fraternity in the sense that they realised that they needed to unite against dictatorship, against unconstitutionality and for the supremacy of law,” he said. Saleem feels that the expectations attached to the movement are unfair. “Pakistan had a leadership gap and people wrongly attached their hopes to the movement thinking that the ripple effect of the revolution would extend to every aspect of life — which did not happen. Despite the expectations being there the infrastructure that the government needed to provide to the judiciary, along with the system of prosecution, was never delivered,” he asserted. “In such circumstances, there was hope but the other material factors required to substantiate said hope never existed/weren’t delivered — and all such hopes were in effect destined to shatter eventually,” he added. A senior corporate lawyer, Usman Ghazi, rubbished the idea that the movement has anything to do with improving anything. “The lawyers’ movement was meant for the restoration of the dignity of the judiciary because it started when the former chief justice was removed in an illegal and unconstitutional manner,” he said. Ghazi believes that the revolution that people are waiting for was never promised. “It was not meant to bring a revolution or change in the judicial system itself; it was a backlash against a military dictator and the removal of somebody from the judiciary,” he opined. “The point was not to ensure justice to the people, nor was it meant to provide speedy justice to the people. The point was that somebody should stand up to the dictator’s rule and judges have been doing this for quite some time,” he asserted. How did a movement such as this become one for the people, by the people, then? Ghazi felt that it was just how the situation shaped itself. “Once the CJ’s court was restored they thought that since it wasn’t just lawyers but ordinary people too that had joined the movement, some benefit should also come to them. And that was done through the introduction of different judicial policies; for instance the policy regarding earlier disposal of case, appointment of more judges, and therefore number of judges also increased,” he said. Saad Rasool, a lawyer and columnist, doesn’t share that sentiment at all and doesn’t see the situation as a black and white affair. “There is no doubt about the fact that the results of the lawyers’ movement have not lived up to the promise. The movement itself was for the right cause i.e., restoring constitutional judges, and in the process ousting the military dictatorship which was a constitutional aberration. However, somewhere in the process what we did was create demigods out of individuals,” he said. ‘Once the CJ’s court was restored they thought that since it wasn’t just lawyers but ordinary people too that had joined the movement, some benefit should also come to them’ Rasool highlighted that at some point the movement lost its core emphasis on the judiciary and rule of law and instead became fixated on the former chief justice and his followers. “In history whenever we idolise human beings over principles we set ourselves up for a number of colossal mistakes,” he said and added: “Those human beings start to believe that they are above the same rules that apply to everyone else, that their word and their heroics alone is the law, and that’s what kind of happened with the judiciary and Iftikhar Chaudhry till he retired — and there are some remnants of this that can be seen in the SC still.” The power of the judiciary The movement may not have borne the results that were expected of it by the masses but it did bring certain change. Saleem felt that it made precedence that never existed before. “This movement provided judges the courage to stand against dictatorship, which had no precedence in the history of Pakistan,” he said. “When have you ever heard of the armed forces being brought into the court? For the missing persons issue in Balochistan this was done, and even orders for FIRs were issued for active officers.” He also feels that the judiciary gets an unfair share of criticism, and it’s not accidental. “The establishment did not like this happening, and a narrative was developed against the judiciary marking it as a useless force, despite the fact that it’s no longer the same judiciary — this judiciary is no longer sleeping,” he said. The effect of the movement can verily be felt. “This is the continuation of the lawyers’ movement that the Pakistan Bar Council and other bar councils have moved the Supreme Court (SC) against the establishment of military courts and open arguments are being made and heard against them — which has also never happened before,” Saleem explained. Ghazi approaches the criticism of the judiciary from another angle. He doesn’t think that change can come overnight and people need to be more patient for it to happen. “The problem which actually lies at the root of the delays in justice is that there are not enough judges available to hear the cases. So if a judge is burdened with 6000-9000 cases, how do you expect them to perform?” he asked. The senior lawyer has his own diagnosis of how change will come. “Find suitable candidates and arrange finances, which is difficult — it is being done but it’ll take a lot of time. And once that is done ensure that quality of the judiciary is maintained,” he said. Rasool feels that the problem has more to do with the attitude of the judiciary. “The movement turned from being about the rule of law to being about the rule of judges,” he lamented. “The quintessential critique of governance in Pakistan, and the Musharraf in Pakistan, is that too much power was concentrated in one person and not in an institution — and after the lawyers’ movement the exact thing happened again,” he added. The revived judiciary started to believe that they don’t draw their power from the constitution, and instead draw their power from the people, Rasool pointed out. “In fact there were a number of statements made by Iftikhar Chaudhry about the fact that he was brought back through the mandate of the people, and because of the popular movement. When a politician thinks that way it’s alright because a politician is supposed to represent the people; the judiciary is not supposed to represent the people, the judiciary is supposed to represent the command of the constitution even when that command goes against the voice of the people,” he said. “The judiciary under Iftikhar Chaudhry began to believe that it didn’t need to abide by the constitutional command itself, and that it should go beyond the four corners of law to deliver justice for people. Whatever the constitution said became inconvenient for a while because they could bend, mould and break it to benefit the larger group of people,” he added. Lawyers running amuck From tragedies such as Daska to petty issues like beating up a police officer over a glass of water — lawyers have repeatedly made it into the news for taking the law into their own hands. In terms of Daska, Ghazi pointed out that some criticism isn’t fair. “There are two things, you cannot stop people from holding demonstrations in a democracy. Whenever a community feels that it is being oppressed it can demonstrate. This is not a crime which happened to one person, this was a crime where the president of the bar died — if an ordinary person had died there can’t have been a protest, but if the elected president of a community dies because of the police then it becomes a serious issue,” he said. However, in terms of all the other instances of lawyers acting like thugs Ghazi isn’t as forgiving. “It is unfortunate that lawyers took the law in their own hands in the protest. What is regrettable is that they manhandled police and burned offices — this is illegal and they should not have done it,” he said. “I understand that most of the people have a lot of expectations from judiciary and these should be met, and all those lawyers who take the law into their own hands should be punished. Rather, the bar for the lawyers should be set higher than an ordinary person,” he added. A little training goes a long way and Saleem felt that lawyers needed it the most. “Proper training and coaching for lawyers has failed under the bar councils. The result of this is that there are some bad eggs that are inducted into the judiciary who exploit what we can now see as unity and strength. However, they are small in number considering the total strength of lawyers in the country,” he said. The 21st amendment has made military courts a part of the constitution, and in effect as a part of the constitution it cannot be questioned However, the entitled attitudes shown by some lawyers go back to the lawyers’ movement. “One of the worst and most embarrassing legacies of the lawyers’ movement is the ‘wuklagardi’. Before anything else they need to get their hands around this and stop it somehow. The lawyers’ movement created a genie in a bottle when they said lawyers need to come out onto the streets and fight with the police, the media and people,” he said. “The entire nation came together and watched them do this for three years and then patted them on the back saying you’re doing great work against the military and the dictatorship.” After the judiciary was restored, while the leaders and senior lawyers went back to work, junior lawyers from district courts remained unsettled. “The power that was given to them once as the legitimate way to express their grievances, that genie that came out of the bottle was never put back,” Rasool explained. “It is the absolute responsibility of the senior members of the bar and bench to figure out a way to ensure that these lawyers go back to practising the law instead of violating it,” he added. What of the military courts? The SC is currently chasing the military courts down and trying to desperately undo their implementation. Most if not all lawyers view the courts with great vehemence and would not mind them coming undone. “I think the SC is in an extremely tough position. The enactment came after the APS Peshawar massacre, through probably the largest mandate that the nation has ever had — such a consensus has never been witnessed before this,” Rasool said pointing out that the military courts most likely aren’t going anywhere. “Every law in Pakistan can be struck down on the basis of the fact that it’s unconstitutional. But no provision of the constitution can be considered unconstitutional — because what would be the touchstone on which you would say that it’s invalid? What’s above the constitution?” he said. The 21st amendment has made military courts a part of the constitution, and in effect as a part of the constitution it cannot be questioned. “Now if the SC thinks that the courts are a bad idea — as most lawyers including myself do because we need to strengthen our existing courts — then the question is that if the entire people come together and say that there shall be military courts then how can a provision of the constitution be declared unconstitutional?” he asked. “In my opinion the supreme court cannot do that far. They will say that it is abhorrent and terrible, however, because it is written into the constitution we have no power to strike it down, and we wish the parliament will reconsider its decision and take it out of the constitution,” he said resolutely. The judiciary was brought back to life after great struggle and to show for it the country has had little action and several headlines. Emphasis needs to be made on the practical instead of the PR for real, tangible change to come through.

SUMMARY JUDGMENT IN DISCIPLINARY PROSECUTION OF A LAWYER?

The Australian Professional Liability Blog 05:02 (10 hours ago) to me The Australian Professional Liability Blog Summary judgment in a disciplinary prosecution? Posted: 21 May 2015 04:31 PM PDT I wrote about the test case on the application of penalties privilege to disciplinary prosecutions of solicitors brought by the Legal Services Commissioner here. Now the Commissioner has made another novel application in the same case, which usefully provides some law on the appropriateness of prosecution applications for summary judgment in disciplinary prosecutions (Legal Services Commissioner v LJS [2015] VCAT 649). The answer, according to VCAT’s President, Justice Garde? Not very appropriate, certainly not in this case, despite the complete non-involvement of the respondent solicitor, because: ‘9. … First, the jurisdiction of the Tribunal under s 4.4.15 of the Act is a protective jurisdiction. A disbarring order or suspension is not punitive in character. In Legal Services Commissioner v Brereton6 the Court of Appeal noted that legislation such as the Act creates ‘civil norms governing the conduct of legal practitioners, the aim of which is the protection of the public and not the denunciation of the practitioner’.7 In Law Society (SA) v Murphy8 Doyle CJ described the purpose of the jurisdiction: The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner […] a profession that plays an important part in the administration of justice and in which the public is entitled to place great trust. 10. Clyne v Bar Association (NSW) also highlights the dual nature of these orders that both protect the public from disadvantage and exploitation, and the profession from the loss of status and privilege that might follow should such abuses go without remedy.9 Numerous subsequent cases have adopted these objectives.10 The Tribunal would not be properly discharging its protective duties to the public, the legal profession and the administration of justice generally if it were simply to conclude, in the circumstances of this matter, that the respondent was guilty of professional misconduct as charged without hearing or receiving any evidence. 11 Secondly, a number of the charges are dependent on what was said in conversations, or on behaviour alleged of the respondent which is said to amount to professional misconduct. In order to assess the significance and seriousness of the allegations made against the respondent, it is necessary for the Commissioner to provide the Tribunal with evidence and material as to what is said to have taken place. 12 Thirdly, the findings and reasons of the Tribunal as they relate to the alleged professional misconduct of the respondent, and the gravity of that misconduct if proven, are of fundamental importance to the making of final orders which may significantly affect the respondent and his ability to practice.11 13 In making final orders affecting the respondent’s ability to practice, the Tribunal is required to take into account any evidence going as to rehabilitation, remorse, participation in the conduct of the investigation and hearing, delay, the respondent’s financial and family situation, the respondent’s behaviour and candour, any explanation for the respondent’s behaviour, the benefits of any further training, and any conditions that should be imposed.12 The Tribunal cannot properly discharge these responsibilities if an order is summarily made under s 78, with the result that evidence and information that may be in the possession of the Commissioner is not provided to the Tribunal. 14 Fourthly, the orders that are sought from the Tribunal are discretionary in character. In order to properly exercise its discretionary powers, the Tribunal requires evidence from the Commissioner that will assist the Tribunal in forming a view as to the orders that ought to be made, and why they should be made. 15 In the circumstances of this case, it is appropriate that the proceeding progress to final hearing rather than being dealt with under s 78(2) of the VCAT Act. Given the continuing absence of the respondent, it appears likely that the final hearing will be conducted on an unopposed basis.13′ (footnotes omitted)

LAWYERS AND CONTINGENCY FEES?

http://indaily.com.au/ispy AWill allowing lawyers to charge contingency fees increase access to justice, or create a more litigious society? Comment | A debate is looming about freeing up restrictions on the ways lawyers can charge their clients, and the answers aren’t simple, argues Morry Bailes. There is a conversation that we will all be having in the not too distant future regarding the charging of contingency fees by lawyers. Presently it is unlawful for a lawyer to charge a client a percentage of their damages. Damages are the monies awarded to a claimant in a successful civil action to compensate for their loss. The current rules only permit traditional charging, usually on a per hour rate basis. Limited conditional fee agreements are allowed involving some uplift on the usual hourly rate in the event of success, but not a straight contingency. That is still unlawful. In the dying days of the Rudd/Gillard government, then Assistant Treasurer David Bradbury ordered the Federal Productivity Commission to commence a public inquiry into access to justice in Australia. In September last year its final report was delivered to the government who tabled it in December making it available to the public. A copy can be found at here. As you might imagine the report is detailed and voluminous, however what it says about contingency fees makes for interesting reading. The commission labels the contingency style fee agreement as “damages-based” billing. This is what it has to say: The Commission is unconvinced that any perverse incentives inherent in damages-based billing are more pronounced than those embodied in conditional billing. Rather, damages-based billing has the potential to provide several advantages, including better aligning the interests of lawyers and their clients by removing incentives to over service. There is an important caveat to this claim — in order for incentives to be aligned, clients need to be fully informed about the merits, and likely costs, of pursuing their claim. The Commission considers that the prohibition on damages-based billing should be removed, subject to consumer protections such as comprehensive disclosure requirements and percentage limits on a sliding scale to prevent lawyers earning windfall profits on high value claims. So, in a nutshell, the Productivity Commission supports contingency fees arrangements. And why wouldn’t it? It comprises a bunch of economists to whom a percentage fee arrangement is easily understood and makes perfect economic and commercial sense. It allows a potential claimant access to the civil justice system that he, she or it may not otherwise enjoy, because payment of fees is contingent on success and the receipt of damages. It leads to efficient prosecution of a claim because, unlike with hourly rates, there is no incentive for a lawyer to dawdle. It is an option available to claimants in Canada, the UK and states of the USA. So why not Australia? There are two fundamental reasons why we have not gone down the contingency fee path. Both are ethical considerations. Firstly, contingencies ought to be used where there is risk associated with a claim. The risk is shared by lawyer and client and, like any sharing of risk, there is the potential for reward. A contingency may often yield to the lawyer a sum above what a fee based purely on an hourly rate may yield. On the other hand, the client gets in to the justice system when they otherwise may not be able to afford to. The ethical dilemma is when to introduce a contingency arrangement. To do so in a matter where there is little or no risk may be unethical. Where you draw the line is one of perception. The second difficulty is when to advise a client to settle rather than litigate a claim. Invested in the outcome of a matter, a lawyer may be tempted to settle early in order to avoid the risk of litigation resulting in the claimant receiving a lesser result but the lawyer still receiving the contingency. In states of America the contingency therefore slides upward the closer the matter gets to litigation, to reward the lawyer for the increasing risk. All members of the legal profession are bound by conduct rules; we are an ethical profession which is highly regulated. At present the gap in this area is being filled by largely unregulated litigation funders who expose themselves to the litigious risks and take, in effect, a contingency-style payment from the ultimate award of damages. Almost without exception all large class actions in Australia have been funded by litigation funders in this way, often on both sides. What litigation funders usually do not do is fund individual claims, which is where lawyers may need to fill the breach. Consequential amendments to conduct rules to ensure client protection and maintain ethical standards, as suggested by the Productivity Commission, may be necessary. Professor Dal Pont of the University of Tasmania Law School, who is a leading voice on the subject of legal ethics, has recently opined that the ethical challenges relating to introducing contingency fee arrangements in Australia can be overcome largely because the same ethical dilemmas exist now and are handled successfully by the profession. The conversation that we as a society and as a community must have is whether contingency fee arrangements may alter the fabric of this place. Some see such arrangements as providing access to justice. The Productivity Commission refers to those in need as the “missing middle”; well off enough to be ineligible for legal aid or legal assistance but insufficiently well off to pay for a legal action. Contingency fee arrangements are a way to get them into the civil justice system, along with poorer claimants who do not receive a grant of legal aid to pursue a civil damages claims. Against that is a concern that unmeritorious claims may be prosecuted too frequently with settlements reached by defendants for reasons of expediency. Will contingency fees provide access to justice or stoke the fires of an unnecessarily litigious society? This is the substance of the pending conversation, and the recommendations of the Productivity Commission make it inevitable that we have it. If contingency fee arrangements are to appear on Australia’s legal landscape there is a great deal more work that needs to be done. Should the contingency be capped or uncapped, and controlled by market forces? Should we, as a matter of policy, exclude such areas as family law and criminal law? All of these issues need to be addressed, but the threshold question of whether to accede to the Productivity Commission’s recommendations must be settled first. Morry Bailes is managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA. The opinions expressed in this column are his own. His column appears in InDaily on every second Thursday.

THE APPEARANCE OF BIAS OF A JUDGE BEING SANCTIONED?

SEE THE LINK: http://www.thestar.com/news/crime/2015/04/27/hearings-into-justice-of-the-peaces-remarks-should-proceed-lawyer-says.html Hearings into Justice of the Peace’s remarks should proceed, lawyer says Robert Whittaker retired before a disciplinary probe could examine allegations that he made controversial comments to defendants in court. But a Toronto criminal defence lawyer says that for the sake of transparency, the review should still be conducted. Share on Facebook Reddit this! Lwam Ghebrehariat was acting as duty counsel on one of the days former Justice of the Peace Robert Whittaker made controversial remarks to a defendant in court. He felt Whittaker "totally failed" to appear unbiased in the case. Lwam Ghebrehariat was acting as duty counsel on one of the days former Justice of the Peace Robert Whittaker made controversial remarks to a defendant in court. He felt Whittaker "totally failed" to appear unbiased in the case. By: Jacques Gallant Staff Reporter, Published on Mon Apr 27 2015 Speaking from up high on the bench, Justice of the Peace Robert Whittaker told a Somali man that he did not appear to be “integrating . . . into the Canadian lifestyle,” questioned whether a woman with colitis should be allowed to drive a car and made comments about mental illness that one lawyer told him were “profoundly” disrespectful. This was all in the span of about six months. Court transcripts obtained by the Star offer a glimpse into the courtroom of the former Toronto JP, whose comments to several defendants led the Justices of the Peace Review Council to order a March 25 disciplinary hearing. All details in this story come from the court transcripts. Ten days before the probe started, Whittaker retired, meaning the hearing was scrapped and the comments obtained from the transcripts were never tested in a public forum. Whittaker, who was appointed in 1998 and earned $122,000 a year, and his lawyer, Brian Irvine, did not return the Star’s requests for comment. Public hearings need to be held for the sake of accountability, said Toronto criminal defence lawyer Daniel Brown. “Transparency and accountability are pillars of our justice system,” he said. “In order to protect these values, the review council should still hold a hearing even if the justice of the peace has removed himself from the bench.” One of the complaints stems from a proceeding at the 2201 Finch Ave. W. courthouse on Oct. 30, 2013. According to a transcript, Whittaker had to decide whether to grant bail to a man who had been accused of assaulting his wife and uttering death threats, or keep him detained. The man, who identified as Somali, testified with the help of an interpreter that he was a refugee from Ethiopia on social assistance with no criminal record. He said he would abide by bail conditions including living at a specific address and taking anger management classes. The Crown expressed concern that he had no ties to the community other than to his wife, who he was ordered not to contact, and had no surety. “You have shown this court today that you are not integrating yourself into the Canadian lifestyle or the Canadian ways,” Whittaker said, according to the transcript. “You seem to be immersing yourself in the Somali community which may or may not have the same standards of Canadians, the lifestyle or Criminal Code or laws of this country, have. Unfortunately, Sir, you’re in the country of Canada. You have to live by our laws.” Whittaker ordered the man’s detention, saying he had “no assurance” that he would return to court, and said he didn’t know “of any anger management courses that are given solely in Somali unless someone can help me.” Lwam Ghebrehariat, who was acting as duty counsel that day, told the Star he was taken aback. “Judges are held to a high standard. They’re supposed to treat everybody equally regardless of their identity, and also make sure there’s not even an appearance of bias,” he said. “I think His Worship totally failed in this case.” In another instance at 2201 Finch in January 2014, Whittaker asked if it was known if the 24-year-old defendant had “mental health” before he was arrested. The prosecutor said the accused, arrested after a dispute with police, had apparently been diagnosed with depression, OCD and anxiety, and the Crown was requesting that he seek counselling. “I’m asking why does it take someone from appearing in the (accused) box until suddenly (a) they’re going to get help for alcoholism, and (b) they’re going to get help for mental health, (c) they’re not going to go hit their wife anymore. Like, I don’t understand it,” Whittaker said, according to the transcript. When the Crown prosecutor couldn’t offer an answer, Whittaker continued: “. . . it makes no sense to me because I know my own personal family. I know exactly what my children are doing. I know what the state of their mental health is. I know if they have a drinking problem. Like am I that odd out of the rest of the population of the city of Toronto? I don’t think so.” Duty counsel David Beal told Whittaker “you are profoundly disrespecting the individuals present in the body of the court and I don’t think it’s warranted in the circumstances,” reads the transcript. Beal told the Star he stands by what he said in court. Over at the provincial offences courthouse at 2700 Eglinton Ave. W., Whittaker made a number of comments to defendants while dealing with traffic tickets that led to review council complaints. Whittaker told a woman who suffers from ulcerated colitis: “I question whether you should be even driving a car,” according to a transcript. She pled guilty to parking on the sidewalk so she could run into her home to go to the bathroom. She told him her experience in court was “very humiliating.” He let her off without a fine.

HOW DO YOU PREDICT THE RESULT OF A COURT CASE?

http://fivethirtyeight.com/features/how-to-read-the-mind-of-a-supreme-court-justice/DETROIT, MI -- Several justices of the U.S. Supreme Court on Tuesday pressed a lawyer representing same-sex couples seeking the right to marry on issues of time, long-standing definitions, and states' rights. ALGORITHMS 8:46 AM APR 28, 2015 How To Read The Mind Of A Supreme Court Justice By OLIVER ROEDER Despite the gleaming white building that houses it, the Supreme Court is one of the most powerful black boxes in the country. When it convenes for oral arguments, there are no photos, no videos, no broadcasts. That’s not to say we’re clueless about the court’s goings on, of course. Journalists and bloggers attend the arguments and report back to their readers. And if we don’t have photos, at least we have sketches. Some have even turned to clandestine camerawork.1 Now a new project uses data to get inside the chamber — and maybe inside the justices’ heads. Supreme Court oral arguments are exercises in multitasking: The justices are talking to advocates as they’re talking to each other. Chief Justice John Roberts has described the lawyers as “backboards” — justices’ questions rebound off the lawyers and back to the other justices. Through their questions, they can signal to the others what they’re thinking. They can also try to persuade. Their target is often Justice Anthony Kennedy, the most common swing vote on the bench. But this legal process is also a data-generating process. How many words did Justice Elena Kagan utter? How about Justice Antonin Scalia? To whom were they spoken? What was the sentiment of those words? How many times was the solicitor general interrupted? Chris Nasrallah knows the answers to these questions. He’s used them to create CourtCast, a computer model that predicts Supreme Court decisions based on oral arguments alone. CourtCast, a machine-learning model, relies only on PDF files of oral argument transcripts. There are three inputs: the number of words spoken by justices to each party, the sentiment of those words, and the number of times a justice interrupts an attorney. That’s really it — CourtCast doesn’t care about body language, it doesn’t care about justices’ ideologies, and it doesn’t care about who’s arguing the case in front of the court. It doesn’t know the law or the precedent or the political climate. The model trains itself on past cases, learning which justice tendencies are pertinent. It can then analyze the transcript from any fresh case and predict an outcome. “I’m surprised that nobody’s done this before,” Nasrallah told me over a cappuccino in downtown Manhattan in early March. Armed with a Ph.D. focused on computational biology from University of California, Berkeley and postdoc experience at North Carolina State, Nasrallah is pursuing a career in data science. He built CourtCast to get a job.2 He wanted to buck the negative stereotypes of academics — that they work slowly and are oblivious to commercial applications. He’s always been an interested court observer, so researching the subject came naturally. It took him just a few weeks to build CourtCast. It isn’t perfect — far from it. Nasrallah claims a 70 percent accuracy rate, which is both impressive and not. Since John Roberts has been chief justice, the petitioner has won 68 percent of cases, so CourtCast’s 70 percent isn’t exactly better than just picking the favorites. But again, CourtCast is flying nearly blind. It has no idea what a given case is even about; it’s using just the words uttered in one hour of argument. I’ve written before about other Supreme Court predictors — law professors, legal practitioners, hobbyists in Queens. Universally, human predictors emphasize the importance of the argument in their predictions. CourtCast, the first attempt I’m aware of to quantify oral argument with a machine model, is different. The patterns it uncovers are simple: When a justice asks questions of a lawyer, it’s bad for his chances — it means the justice is skeptical and is trying to poke holes. If justices interrupt a lawyer, it’s really bad for his chances — they’re so skeptical they just can’t wait to poke holes. A Ginsburg interruption is worst of all. Nina Totenberg, NPR’s legal affairs correspondent, said she’d noticed that too. “More often than not — or at least there’s a 50-50 chance — counsel gets interrupted because that justice thinks what counsel just said is unacceptable crap.” Below is a sample output from CourtCast for the landmark King v. Burwell Obamacare case. (CourtCast’s code is available on Nasrallah’s Github page, and more detail can be found on his blog.) The bigger the bar, the worse for the side that the bar is on. IMG_2189 The liberals — Ginsburg and Justice Stephen Breyer — asked more of the petitioner and interrupted him a lot more. Bad news for him. The others did the same of the respondent.3 In the King v. Burwell case, CourtCast gives a 61 percent chance that the government wins and Obamacare subsidies are upheld. SIDEBAR: CourtCast vs. NPR’s Nina Totenberg: How does a machine interpret a court case differently than a trained pro? None of CourtCast’s findings came as a surprise to Adam Liptak, the Supreme Court correspondent for The New York Times. And he’d never heard of Nasrallah or CourtCast. “Two things are well known and will get you to 70 percent with your eyes closed,” he told me. “One is the petitioner wins about two-thirds of the time.” The other: “If you get a lot of questions, you’re going to lose.” Liptak may not be blown away by CourtCast’s 70 percent success rate, but that’s OK with Nasrallah for now. At least he’s confirmed the conventional wisdom. “Here we’ve quantified the intuition and the way the justices are acting,” Nasrallah said. And given that he built CourtCast in just a few weeks, he’s confident it can be improved. Linda Greenhouse, formerly of The New York Times and now a lecturer at Yale, has written explicitly about her predictive prowess. In a 2004 paper, she described how the Supreme Court press corps routinely engaged in predictions, “usually made during the walk down the stairs from the courtroom following an oral argument session,” often with a friendly wager thrown in. She pegged her accuracy, for those cases she was bold enough to write about in the paper, at around 75 percent. “Whatever Linda’s success rate was, mine is a little better,” Liptak joked. Liptak and Dahlia Lithwick, Slate’s Supreme Court writer, both emphasized the importance of attending oral arguments rather than just parsing transcripts. Crossed arms, rolled eyes and tone of voice can be telling. And the computer is ignorant of all of that. Despite its ignorance of body language, CourtCast works in part because of a sea change in the very nature of oral arguments. It thrives on the give-and-take of a “hot” bench. Interruptions are important to its predictions, and oral arguments weren’t always interrupted so frequently. Greenhouse noticed this trend covering the court in the 1980s. Former Chief Justice William Rehnquist never had to play argument traffic cop like Roberts does. And Lithwick has noticed it accelerate in the last few years. JUSTICE WORDS INTERRUPTIONS Sotomayor 522 2.6 Scalia 594 2.4 Breyer 821 2.1 Ginsburg 457 1.5 Roberts 577 1.5 Kennedy 322 1.1 Kagan 501 0.8 Alito 322 0.6 Thomas 0 0 Some credit — or blame — for the most recent changes can be given to the Sotomayor Effect. “Sotomayor is notorious for being a super-talker,” Lithwick said. “She interrupts everyone.” Lithwick’s right about the interruptions, but Justice Breyer runs away with the talkativeness crown. (Data is since 2005, and the table shows the average words uttered and interruptions per oral argument, by justice.) But CourtCast’s reliance on justice word count and interruptions could render it less effective in the future. Totenberg cautions that though the bench is now fairly hot,4 it may cool down. Gentler personalities may fill its ranks, and it’s possible — possible — that the court may become less polarized. It’s tough to imagine how the algorithm could gain a foothold then. The Supreme Court journalists were bullish on CourtCast’s usefulness. “If I were a Supreme Court advocate, I’m sure I would certainly study this material to get clues as to how to present myself and how to push the right buttons,” said Greenhouse. “I can’t imagine it’s not incredibly useful to the attorneys and the parties,” said Lithwick. But when I talked to a couple attorneys, they said they can already do better than CourtCast. Carter Phillips, a former assistant to the solicitor general and now a partner at Sidley Austin, has argued more cases before the Supreme Court — 80 — than any lawyer now in private practice. And for Phillips, simple predictions are a snap. He pegs his accuracy for the cases he argues at 90 percent. (Phillips doesn’t keep explicit stats, so this was his post facto estimate.) But even better than him, he says, is his wife, Sue Henry, who has been to 78 of his 80 arguments. Phillips thinks she’s gotten 77 right. “It’s incredible to me,” he said. “She’ll come out and say, ‘You were great, but you’re going to lose.’” He’s skeptical of a computer being able to help in oral argument preparation. “I doubt it, because of the format. Realistically, you get about 30 seconds to say something to the justices before they start asking questions,” he said. But Phillips can imagine a world where computers could make a difference, if they went beyond simple affirm-or-reverse predictions. “If you can come up with a computer that can tell me how the justices are actually going articulate the principle that applies, ahead of time, that I would pay dearly for,” he said, referring to the nuanced interpretation of the law that the justices often hand down in their final rulings. “That’s, candidly, a huge advance.” Nasrallah rattled off a number of improvements he hopes to make to his model: It doesn’t yet analyze what the advocates say. Its sentiment analysis could be improved (it’s currently trained on a database of movie reviews, which might not be the best analog for the type of language usually used in legal arguments). It could look at specific types of words. Maybe a justice saying a lawyer’s name, for example, is meaningful. Perhaps humor — statements followed by “(laughter)” in the transcripts — holds information. The model could read in past decisions, briefs, statutes, and on and on. There are other models that CourtCast could team up with, creating a kind of super-algorithm. {Marshall}+, another prominent Supreme Court case predicting model, doesn’t use any information from the oral arguments,5 and CourtCast, at least so far, doesn’t use any of the legal coding that {Marshall}+ relies on. Because they’re predicting based on mutually exclusive sets of information, they could combine and, theoretically, form a Frankenstein’s monster of high court prediction. But not every human welcomes our court-predicting robot overlords. “The idea that you spend a lot of time trying to figure out ahead of time what you’re going to know anyway in a matter of weeks or months is, to me, insane. Why would you bother?” Totenberg wondered. Because we want to know now, Ms. Totenberg, that’s why! I write for FiveThirtyEight — we updated our March Madness predictions approximately 17 times while I wrote this sentence. (Editor’s note: Sorry it took me so long to get to your draft, Ollie.) Data promises us our crystal ball, doesn’t it? But Totenberg made the case that the court’s decisions can only be understood through the long lens of history. Prediction is a waste of time, she told me. Supreme Court decision-making is complex, and justices’ rubrics can change dramatically over time. Justice Kennedy famously did an about-face in the middle of two major cases, reversing his long-held ideological views and voting to preserve the right to abortion and to ban clergy-led prayer at public schools.6 And we know only about these last-minute vote changes thanks to the release of Justice Harry Blackmun’s papers in 2004, five years after Blackmun died. What algorithm could’ve predicted that? “Sometimes you only understand these things as history — and you’re lucky if you understand it as recent history,” Totenberg said. Put aside whether CourtCast and its ilk are any good (or will become any good) at predicting cases; they’re still a blow against an opaque court. “The court is so bound up in its own mystique and gravitas and the need to insulate itself from scrutiny of any sort,” said Lithwick. “It’s always fascinating to me when — whatever frame people use — [people] say, ‘Oh no, it’s actually not oracular. There’s something else happening.’” And this is what CourtCast has begun to do. If Ginsburg ignores a lawyer, that means something. If Kennedy peppers a lawyer with questions, that means something else. And now we can quantify these things and how they augur for a case’s outcome. “These are the kinds of things that make the justices mental — any intimation that they’re not magic. For me, it’s just delicious,” Lithwick said. Regardless, most see the court’s frostiness as unlikely to thaw. “Unless Congress literally threatens to shut [off] the lights and the heat, I don’t think this changes soon. And it’s very, very, in my view, appalling in a democracy,” Lithwick said. In the meantime, hobbyists and professionals will continue to probe the court, whether through horse sense or hard analytics. The better the analytics get, the more they’ll be relied upon, and the thinner the shroud will become.

NO CAUSATION BETWEEN ALLEGED LEGAL MALPRACTICE AND DAMAGES:

http://www.njlawjournal.com/id=1202720336435/Court-Upholds-Dismissal-of-Legal-Mal-Suit-Over-Home-Sale?et=editorial&bu=New%20Jersey%20Law%20Journal&cn=20150311&src=EMC-Email&pt=Breaking%20News Court Upholds Dismissal of Legal Mal Suit Over Home Sale David Gialanella, New Jersey Law Journal March 11, 2015 | 0 Comments SHARE PRINT REPRINTS Sebastian Lombardi Sebastian Lombardi Carmen Natale A litigant looking to pin a real estate transaction gone awry on her lawyers—a deal that eventually went through for $350,000 less than the original sale price—has come up empty. Essex County Superior Court Judge Sebastian Lombardi properly dismissed the legal malpractice case against Bogart Keane Ryan of Jersey City, New Jersey, the Appellate Division said March 11. The panel was “satisfied the trial court properly exercised its discretion when it concluded [the plaintiff’s expert’s] opinions lacked the requisite causal connection between the alleged legal malpractice and the damages plaintiffs claimed, and thus were inadmissible net opinions.” According to the opinion, Beverly Giordano in 2004 appointed her daughter, Melissa Giordano, as her attorney-in-fact and executed a deed transferring her home to her daughter. Beverly Giordano—who at the time was in her 70s and blind, and is now deceased—lived in the home. The home was located in Short Hills, New Jersey, according to Thomas Quinn, a lawyer involved in the case. In 2007, Melissa Giordano sought to sell the home to a developer, Galaga Developers, and executed a sales contract attesting to the title’s validity. She retained John Hamill and Marc Keane of Bogart Keane to handle the sale. Soon after, however, Beverly Giordano learned of the proposed sale and engaged an attorney, Mark Brancato, to attempt to stop it, the opinion said. Brancato wrote letters to Bogart Keane, seeking to revoke the power-of-attorney and advising of Beverly Giordano’s intent to challenge the deed, which she claimed she didn’t knowingly transfer to her daughter. Brancato also wrote to Galaga’s attorney, who in turn demanded that Melissa Giordano demonstrate that the deed issue had been cleared before moving ahead with the closing, scheduled for October 2007, the opinion said. The closing didn’t occur, after which Melissa Giordano was sued by Beverly Giordano, who sought return of the property to her. Galaga filed its own suit, against both mother and daughter. The developer sought a declaration that Melissa Giordano held a valid title that was free and clear, a judgment conveying the title to it, and monetary damages from both, according to the opinion. The parties settled in June 2008 with Melissa Giordano acknowledging that she held a valid title. The agreement, which provided for the same sale price of $1.35 million, required Beverly Giordano to vacate the home by that November, the opinion said. But Beverly Giordano wouldn’t sign the subsequent consent agreement, and the court appointed a special fiscal agent who could sell the home, buy Beverly Giordano a new home, and create a special needs trust for her, according to the opinion. In November 2008, a different buyer offered $999,999 for the property—an offer that Galaga agreed to match, in addition to withdrawing its claims for a purported $200,000 in damages. Melissa Giordano fired Bogart Keane and obtained new counsel, after which Beverly Giordano eventually moved out and the sale went through, the opinion stated. Melissa Giordano in 2010 filed a complaint alleging that Bogart Keane committed legal malpractice, causing her to lose out on the higher sale price of $1.35 million. Her expert, attorney Anthony Ambrosio, opined that Bogart Keane negligently failed to advise Galaga of Beverly Giordano’s lawsuit, prompted Melissa Giordano to violate the sale contract by advising her not to proceed with the October 2007 closing, and failed to seek settlement of the mother-daughter dispute or expedite the litigation in advance of the scheduled closing, according to the opinion. Bogart Keane moved for summary judgment, claiming that Ambrosio offered net opinions unsupported by fact, and Lombardi, after hearing oral arguments, agreed—finding no proximate cause between the alleged malpractice and the damages Melissa Giordano suffered. Lombardi found that Galaga was aware of the challenge to the deed, and the deed dispute, as well as Galaga’s reluctance to finalize the deal, would have prevented the closing even if the firm advised her to move forward. Lombardi said Ambrosio’s contention—that the sale could have progressed with the parties placing the proceeds in escrow—was speculative. He also found no legal authority for the court to have compelled the closing. Lombardi also rejected the idea that Bogart Keane failed to expedite the litigation, noting that the firm had no control over the tanking real estate market or the pace of litigation. He noted that the parties settled eight months after the initial planned closing, at which time Galaga was still willing to pay the higher price, and the deal did not unravel until Beverly Giordano refused to vacate the home. Melissa Giordano appealed, but Appellate Division Judges Jose Fuentes and Amy O’Connor agreed, adopting Lombardi’s decision. “Without expert testimony, plaintiff cannot establish a prima facie case of legal malpractice against defendants,” the panel noted in the per curiam decision. Quinn, of Wilson, Elser, Moskowitz, Edelman & Dicker in Florham Park, New Jersey, Bogart Keane’s counsel, said Lombardi was “absolutely correct that there was just nothing there to suggest proximate cause.” “I think courts are looking hard at issues with net opinions in legal malpractice cases,” Quinn added. “If there’s a lesson to be learned, it’s that.” Keane didn’t return a call seeking comment. Neither did Hamill, who left the firm several years ago, was temporarily suspended in 2013, and indicted last November on charges that he stole about $470,000 from two relatives’ estates. The criminal matter was still pending as of March 11, according to the Monmouth County Prosecutor’s Office. Melissa Giordano’s counsel, Montclair, New Jersey, solo Edward Grossi, also didn’t return a call seeking comment. Ambrosio, a Bloomfield, New Jersey, solo, also didn’t return a call. Welcome to your ALM digital membership! Enjoy access to 5 free articles* every 30 days from across the ALM network, plus other benefits. TELL ME MORE *May exclude some premium content Read more: http://www.njlawjournal.com/id=1202720336435/Court-Upholds-Dismissal-of-Legal-Mal-Suit-Over-Home-Sale#ixzz3U85IHCKr

THE LAW ON THE MISCONDUCT OF PUBLIC OFFICERS INCLUDING CORRUPTION? THE PROSECUTOR NEED TO PROVE THE FOLLOWING ELEMENTS FOR CONVICTION:(1) a public official; (2) in the course of or connected to his public office; (3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.

COURT OF APPEAL THE QUEEN S APCR 2010 0046 v HUY VINH QUACH -- JUDGES ASHLEY and REDLICH JJA and HANSEN AJA WHERE HELD MELBOURNE DATE OF HEARING 24 March 2010 DATE OF JUDGMENT 7 May 2010 MEDIUM NEUTRAL CITATION [2010] VSCA 106 --- CRIMINAL LAW – Referral of questions of law – Misconduct in public office – Common law offence – Elements of offence – Necessary relationship between public office and alleged conduct for purposes of offence – Whether conduct must occur ‘in relation to’ office – Whether public officer must be acting ‘as such’ – How seriousness of misconduct is to be described. --- Appearances: Counsel Solicitors For the Crown Mr R A Elston SC with Ms D Manova Mr C Hyland, Solicitor for Public Prosecutions For H V Quach Mr O P Holdenson QC with Mr G J E Steward Tony Hargreaves & Partners ----------------------------------- ASHLEY JA: 1 I agree with Redlich JA, for the reasons which his Honour gives, that the first question referred to this Court should be answered by stating that the elements of the offence of misconduct in public office are as set out by him at [46]; and that it is unnecessary to answer the second question. REDLICH JA: 2 This is a referral pursuant to s 302 of the Criminal Procedure Act 2009 following pre trial argument concerning a count of misconduct in public office. The trial judge has reserved two questions of law for the consideration of the Court of Appeal. The judge’s referral is in the following terms: 1. What are the elements of the common law offence of misconduct in public office? 2. In particular is it necessary, in proceedings for an offence of misconduct in public office, for the prosecution to prove that the alleged misconduct occurred while the public officer was acting: (i) ‘as such’, or (ii) ‘in the exercise of his duties’, or (iii) ‘in the course of or in relation to his public office’, or (iv) some other, and if so what formulation? 3 The factual circumstances that are ‘alleged and not disputed’ are set out in the referral of the trial judge as follows: Mr Quach was a serving police officer at the relevant, time and therefore a public officer While on duty on 3rd July 2007, he and other police officers had attended an address to conduct a ‘welfare check’ on a young woman who had recently attempted suicide Mr Quach and the officers located and spoke to the young woman (TD) Later the same day, after he had finished his shift, and in plain clothes, Mr Quach returned to TD’s house with some groceries TD was still at home; she was aware that Mr Quach was a police officer Mr Quach drove her to his apartment in his car At his suggestion, she there had a shower and changed her clothes At his suggestion, she walked on his back to relieve some back pain that he had Later, he returned to her address, kissing her as they left the apartment. 4 The Crown further alleges that sexual activity took place at Mr Quach’s apartment. This is in dispute. 5 The accused was at the material time a serving police officer and it is common ground that a police officer is a ‘public officer’ for the purposes of the offence. It is alleged by the Crown that he wrongfully used his public office (or knowledge obtained in that office) to procure sexual penetration of a person suffering from bipolar disorder and known to him to be at risk of committing suicide though that conduct did not occur in the performance of his duty. The foreshadowed defence is that the accused did not use his position or knowledge to take advantage of the complainant, that no sexual activity occurred, and that he did not know of the state of her mental health. Alternatively, however, the defence contends that on the facts alleged by the Crown, the conduct did not occur whilst the accused was acting in his public office so that an element of the offence could not be made out. 6 The argument thus focussed upon two elements of the offence and raised the following issues: (i) the required nexus between the misconduct and the performance of the public office, and (ii) the correct description of the level of the required seriousness of the misconduct. 7 Writing of misconduct in public office in 1977 P D Finn, as he then was, observed that ‘to this day the precise metes and bounds of the offence remain uncertain’. Since then the elements of the offence have been considered on a number of occasions. These authorities were the subject of considerable attention in the written and oral submissions on this referral. 8 Sir Anthony Mason NPJ in Sin Kam Wah & Lam Chuen Ip v Hong Kong Special Administrative Region set out the elements as follows: 1. a public official; 2. in the course of or in relation to his public office; 3. wilfully misconducts himself; by his act or omission, for example, by wilfully neglecting or failing to perform his duty; 4. without reasonable excuse or justification; (wilful misconduct which is without reasonable excuse or justification is culpable) and 5. where such misconduct is serious, not trivial, having regard to the responsibilities of the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities. 9 On the appeal both parties indicated their agreement with the substance of this description of the offence but the precise content of elements (2) and (5) was disputed. Element (2) – What is the required nexus between the public office and the acts that comprise the misconduct? 10 The accused, relying upon the authority of Attorney-General’s Reference (No 3 of 2003) contended that the misconduct must occur whilst the public officer is ‘acting as such’ while the Crown favoured the formulation by Sir Anthony Mason in Wah & Ip that the misconduct need only occur ‘in relation to’ the relevant office. Senior counsel for the accused acknowledged that Shum Kwok Sher v HKSAR, Wah & Ip and R v Boulanger were all cases which had extended the scope of the offence to a person who may not at the relevant time be exercising a power or performing a duty of his office but who nevertheless does an act which bears upon his office so as to bring it into disrepute. He submitted that these cases should not be followed because the formulation of the test in Attorney-General’s Reference (No 3 of 2003) better reflects the purpose of the offence and ensures it is properly confined. The phrase ‘in relation to’ was said to be too wide and uncertain. Moreover the narrower formulation was said to be consistent with the elements of the tort of misfeasance in public office. 11 The offence and the relevant relationship between the office and the impugned conduct, has been expressed in many different ways. In Shum Kwok Sher, Mason NJP canvassed the history of the common law offence in these terms: The offence of misconduct in public office has a long history, going back at least to 1704. In that year in the case of Anonymous (1704) 6 Mod 96 (Case 136), the Court said: ‘If a man be made an officer by Act of Parliament, and misbehave himself in his office, he is indictable for it at common law, and any public officer is indictable for misbehaviour in his office’. A year later, in R v Wyat (1705) 1 Salk 380 the offence was expressed again in very broad terms when the Court said: ‘Where an officer neglects a duty incumbent on him, either by common law or statute, he is for his default indictable’. Since then there have been many cases in which public officers have been convicted of the offence. It must be acknowledged, however, that over time the elements of the offence have been described in a variety of ways. Thus Stephens Digest 9th Edn (1950),art. 142 stated: ‘Every public officer commits a misdemeanour who in the exercise or under colour of exercising the duties of his office, does any illegal act, or abuses any discretionary power with which he is invested by law from an improper motive…But an illegal exercise of authority, caused by a mistake as to the law, made in good faith, is not a misdemeanour’. (emphasis added) 12 A passage from the seminal formulation of the offence by Lord Mansfield in R v Bembridge is commonly cited in discussion of the offence. There the offence was described as follows: …if a man accepts an office of trust and confidence, concerning the public, especially when it is attended with profit, he is answerable to the King for his execution of that office; and he can only answer to the King in a criminal prosecution, for the King cannot otherwise punish his misbehaviour, in acting contrary to the duty of his office… 13 Over time, various attempts have been made by textbook writers to provide some kind of definition. In Hawkins Pleas of the Crown it is said of ‘offences by officers’ that they can be categorised as ‘neglect or breach of duty’, ‘bribery’ and ‘extortion’. With reference to that first category, the duties that flow from public office are described thus: I take it to be agreed, that in the grant of every office whatsoever, there is this condition implied by common reason, that the grantee ought to execute it diligently and faithfully for since every office is instituted, not for the sake of the officer, but for the good of some other, nothing can be more just than that he who neither neglects or refuses to answer the end for which his office was ordained, should give way to others, who are liable to a forfeiture of his office, not only for doing a thing direct contrary to the design of it, but also for neglecting to attend his duty at all usual, proper, and convenient times and places, whereby any damage shall accrue to those by, or for, whom he was made an offer. (Emphasis added.) 14 In Principles of the Criminal Law S F Harris said of the offence: Every misfeasance, or culpable non-feasance of an officer of justice, with relation to his office, is a misdemeanour punishable by fine or imprisonment, or both. 15 As can be seen, the relevant nexus between the conduct and the office has been described in many different ways. The misbehaviour has been said to occur ‘in his office’ or ‘in the exercise or under colour of exercising the duties of his office’ or ‘with relation to his office’. These variations do not necessarily reflect a material difference in the conception of the offence. As Mason NJP observed in Shum Kwok Sher, the difficulty which has been experienced in defining with precision the elements of the offence stem not so much from the various ways in which they have been expressed as from the range of misconduct by officials which may fall within the reach of the offence. 16 It appears that there has been little focus on the nexus between the office and the asserted misconduct. Most of the reported cases in the 18th and 19th centuries involved dishonest, corrupt or partial conduct on the part of officeholders who, ‘in performing their functions or exercising their powers, did so for personal gain or personal advantage’. Later authority has made it clear that the relevant misconduct may include circumstances where a power of the office is not being exercised. For example, in R v Dytham (discussed in more detail below) it was confirmed that misconduct may occur as a consequence of non-feasance, whereby an officer not formally on duty may nonetheless be obliged by the nature of the office to take action. Similarly, in Question of Law Reserved (No 2 of 1996), the Court of Criminal Appeal of the Supreme Court of South Australia accepted that the offence may apply to positive conduct of officers even whilst they are not acting in their official capacity. The nature of the relevant nexus is, therefore, plainly broader than exercise of powers in office, although its boundaries remain unidentified. 17 Some consideration of the cases that inform the scope of the offence is desirable. The Court was referred to the Kings Bench decision in R v Arrowsmith. There an attorney, as a party, moved for a rule in calling upon Dr Arrowsmith, a magistrate, to show cause why a criminal information should not be filed against him. The attorney had previously appeared before the magistrate. The attorney claimed that at a later date he had been struck by the magistrate who was brandishing a stick. Refusing the motion, Williams J said: I think that this case resolves itself into the misconduct of Dr. Arrowsmith, in his ordinary, and not his magisterial capacity. 18 In R v Dytham a uniformed police officer stood by and did not intervene during a violent assault outside a nightclub. He was convicted of misconduct in public office. On appeal, it was submitted that the offence did not extend to allegations of neglect of duty, and could only extend to positive conduct constituting ‘misfeasance’. The Crown contended that the defendant’s duty as a police constable included an obligation to take steps to preserve the Queen’s peace, to protect the person of the victim or to arrest or bring to justice his assailants. Their Lordships considered that the officer fell under an obligation to act, characterising his misconduct as not ‘mere non-feasance’ but ‘deliberate failure and wilful neglect’. 19 In Question of Law Reserved (No 2 of 1996) the Court of Criminal Appeal (South Australia) was required to consider whether, notwithstanding a recent statutory consolidation of some common law offences, the offence of misconduct in public office remained under the law of South Australia. The facts alleged by the prosecution were that three police officers gained access to confidential information while acting in their official capacity and misconducted themselves by communicating that information to a third person. 20 In the course of holding that the offence remained part of the law of South Australia, the Court examined the elements of the offence. Doyle CJ considered the object of the offence was as stated by P D Finn as follows: …official misconduct is not concerned primarily with the abuse of official position for pecuniary gain, with corruption in the popular sense. Its object is simply to ensure that an official does not, by any wilful act or omission, act contrary to the duties of his office, does not abuse intentionally the trust reposed in him. 21 Later Doyle CJ observed: ‘The particulars allege that the accused was a public officer, that he made improper use of information, and that he did so to receive a benefit for himself and for another. In my opinion these elements are capable of constituting the stated offence. It is clear, I consider, that the generic offence (as I have described it), strikes at the public officer who deliberately acts contrary to the duties of the public office which is an abuse of the trust placed in the office holder and which, to put it differently, involves an element of corruption. It may be that the mere deliberate use of misuse of information is sufficient to give rise to an offence, but the further allegation of an intent to receive a benefit clearly, in my opinion, brings the matter within the ambit of the common law offence. 22 In Shum Kwok Sher, which preceded Wah & Ip, the Court of Final Appeal in Hong Kong was required to consider whether the common law offence of misconduct in a public office was so imprecise as to be unconstitutional under the Basic Law of the territory. This submission required the Court to undertake an exercise of identifying the relevant elements of the offence. The accused was Chief Property Manager of the Government Property Agency. It was alleged that he had used his office to enable preferential treatment, by the award of lucrative contracts, to a company in which his company maintained an interest. Mason NJP (with whom the other members of the Court agreed) found the offence to be sufficiently certain, and that the facts, as found by the trial judge, established the offence. He set out the elements as follows: In my view, the elements of the offence of misconduct in public office are: (1) a public official; (2) who in the course of or in relation to his public office; (3) wilfully and intentionally; (4) culpably misconducts himself. A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he subject by virtue of his office or employment without reasonable excuse or justification. A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or justification. Subject to two qualifications, this statement of the elements of the offence accords with the respondent’s submission. The first qualification was that the misconduct must be ‘wilful’ as well as ‘intentional’. The second, which his Honour attached to the elements of the offence, was that the misconduct must be ‘serious’. 23 His Honour later observed: The common law offence of misconduct in public office is necessarily cast in general terms because it is designed to cover many forms of misconduct on the part of public officers. An alternative way of dealing with misconduct by public officers would be to enact a statute formulating specific offences for particular categories of misconduct in public office. The adoption of that course would involve a loss of flexibility and run the risk that the net would fail to catch some forms of serious misconduct. To suggest that the offence requires further definition would be to pursue a degree of definition which is unattainable, having regard to the wide range of acts and omissions which are capable of amounting to misconduct by a public officer in or relating to his office. The offence serves an important purpose in providing a criminal sanction against misconduct by a public officer in or relating to his office. 24 In Attorney-General’s Reference No 3 of 2003 a question of law was referred to the Court of Appeal (Criminal Division) requiring consideration of two questions relating to the offence of misconduct in public office. First, ‘what are the ingredients of the common law offence of misconduct in public office?’ Secondly, ‘is it necessary, in proceedings for an offence of misconduct in a public office, for the prosecution to prove “bad faith” and, if so, what does bad faith mean in this context?’ 25 The facts were that a person died in police custody after having been assaulted outside a nightclub. The prosecution case was that the officers had recklessly breached their duty of care toward the deceased by the manner in which he was treated. The officers were charged with misconduct in public office. An issue arose as to the mental element of that offence. The Court referred to the decision in Shum Kwok Sher and in particular the passage from the judgment of Mason NJP in which he set out the elements of the offence. Counsel for the accused before us placed great reliance on the following passage: It is common ground that there is such an offence at common law and we consider later in this judgment, as requested, the other elements of the offence, and in particular the standard to be applied to the conduct involved. The conduct must be that of a public officer acting as such, although this ingredient has not been the subject of specific submission. Clearly, in the present case, the police officers owed a duty of care to a person in their custody. The moral basis of the offence, it is submitted, is the protection of the public against the disregard by public officers of duties imposed upon them. (emphasis added) 26 Later, and in conclusion, the Court said: Roderick Evans J rightly acknowledged the ‘great variety of circumstances’ in which the offence of misconduct in public office may be charged. It is clear from the authorities that the defendant must be a public officer acting as such. In the absence of submissions on those ingredients, which may in some circumstances present problems of definition, we do not propose to elaborate on them. 27 The Court then set out the elements of the offence as follows: The circumstances in which the offence may be committed are broad and the conduct which may give rise to it is diverse. A summary of its elements must be considered on the basis of the preceding paragraphs. The elements of the offence of misconduct in a public office are: 1. A public officer acting as such… 2. Wilfully neglects to perform his duty and/or wilfully misconducts himself… 3. To such a degree as to amount to an abuse of the public’s trust in the office holder… 4. Without reasonable excuse or justification. 28 In so far as comparisons between the criminal offence and the tort of misfeasance in public office are relevant to the required mental element and the extent of departure from proper standards, the Court in AG Ref No 3 considered that the approach to the tort in Three Rivers District Council v Governor and Company of the Bank of England (No 3) was consistent with that in the criminal cases. There, Lord Steyn stated that the crime is ‘committed upon an affront to the Crown, that is in this context the public interest.’ Lord Millett considered abuse of power a core concept of the tort and stated: In conformity with the character of the tort, the failure to act must be deliberate, not negligent or inadvertent or arising from a misunderstanding of the legal position. In my opinion the failure to act can amount to misfeasance in public office only where (i) the circumstances are such that the discretion whether to act can only be exercised in one way so that there is affectively a duty to act; (ii) the official appreciates this but nevertheless makes a conscious decision not to act; and (iii) he does so with intent to injure the plaintiff or in the knowledge that such injury will be the natural and probable consequence of his failure to act. 29 After referring to these authorities, the Court in AG No 3 concluded that ‘it is clear …, that the defendant must be a public officer acting as such’ but said that in the absence of submissions it did not propose to elaborate on the ingredients of the offence that may in some circumstances present problems of definition. 30 In Wah & Ip the first defendant was convicted on three charges of misconduct in public office and the second defendant on three charges of exercising control, direction or influence over other persons for the purposes of or with a view to their prostitution and three charges of offering an advantage to a police officer. 31 The first defendant was a Senior Superintendent in the Hong Kong Police Force. It was found that at the point in time when he accepted the sexual favours offered to him by the second defendant, he ‘was not in the course of duty’. Mason NJP said: Since this Court delivered judgment in Shum Kwok Sher v HKSAR the English Court of Appeal, in Attorney-General’s reference (No 3 of 2003), has considered the elements of the offence of misconduct in public office. In that case, the Court of Appeal took into account the decision in R v G in considering the relationship between recklessness and wilful misconduct, as well as the judgments in Shum Kwok Sher. 32 Mason NPJ stated that in light of the detailed consideration of the problem in Attorney-General’s Reference (No 3 of 2003), he would reformulate the elements of the offence as stated in Shum Kwok Sher and then set out the elements to which I have earlier referred. Significantly his Honour did not adopt the wording, ‘a public officer acting as such’ used in Attorney-General’s Reference (No 3 of 2003) but retained the element as he had expressed it in Shum Kwok Sher as ‘in the course of or in relation to his public office.’ His Honour then went on to consider whether the misconduct alleged fell within the scope of the offence. He observed: As it was argued in the courts below that the conduct complained of was not in the course of or in relation to the 1st appellant’s public office and was neither culpable nor serious, it is appropriate to say something about these matters. To constitute the offence of misconduct in public office, wilful misconduct which has a relevant relationship with the defendant’s public office is enough. Thus, misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a relationship with his public office as to bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial. In the present case, if the charges as particularized are made out, there can be no doubt that the misconduct had the necessary relationship with the 1st appellant’s public office and that it was culpable and serious because it involved his participation in the acceptance of free sexual services with the knowledge that they were provided by prostitutes over whom the 2nd appellant exercised control, direction or influence, that being a serious criminal offence. (emphasis added) 33 Mason NJP eschewed any need to find that the police officer was on duty. While observing that the particular police force ordinance had the effect that the first appellant would be deemed to be on duty, his Honour did not consider it an essential step in the prosecution case. The appellant’s misconduct was particularised as his acceptance of free sex in the knowledge that it was provided by the second appellant in circumstances which constituted a serious criminal offence. His Honour did not doubt that these particulars established a connection between the first appellant’s misconduct and his public office so as to bring it into disrepute. Mason NJP confirmed the view expressed by the Court of Appeal that the first appellant’s conviction did not rest upon his failure to arrest the second appellant or prevent the commission of the crime. His Honour went on to consider the alternative prosecution argument that the services were provided as a ‘general sweetener’. His Honour concluded that it was not necessary to uphold the conviction on that basis, though he considered that the acceptance of a ‘general sweetener’ by a public officer could, in appropriate circumstances, amount to misconduct in public office. 34 In Boulanger v The Queen the Supreme Court of Canada formulated the elements of the offence of ‘breach of trust by a public officer’ under s 122 of the Criminal Code. The origins of this offence were traced back to the common law offence of misconduct in public office. Chief Justice McLachlin delivering the judgment of the court examined the development of the common law offence and referred to aspects of the decision in Shum Kwok Sher with approval. As the code offence is confined by its terms to an official ‘who was acting in connection with the duties of his office’ the issue with which we are presently concerned was not addressed. 35 For completeness it is necessary to briefly refer to Bunning v The Queen. There, the defendant sought special leave in respect of an appeal against sentence in relation to a conviction upon counts including ten counts of misconduct in public office. In rejecting special leave to appeal Kirby and Heydon JJ said: The offences having been committed by a public officer and in the purported course of his duties (or sufficiently connected with those duties), we are unpersuaded that the sentence discloses error such as would warrant the intervention of this Court. (emphasis added) 36 As was properly conceded by the Crown, the offence of misconduct in public office requires not only that the misconduct be by a person holding public office but that as a consequence of the office he was under a duty or responsibility which existed and which was breached at the time of the offending conduct. It was submitted that this did not necessitate that the conduct occur in the performance of his office. This was challenged by the accused who submitted that the officer must be acting ‘as such’ at the time of the misconduct. This contention rests upon the assumption that the Court of Appeal in Attorney General’s Reference (No 3) deliberately intended to restrict the broader description of the element by Mason NPJ in the earlier decision of Shum Kwok Sher. I do not consider that the reasons of the Court of Appeal should be so understood. The Court of Appeal referred with apparent approval to Shum Kwok Sher, at least in respect of that particular element, and expressly adverted to the fact that the element was not in issue before them. It did not appear to recognise any difference between its conception of the element and that articulated in Shum Kwok Sher. Significantly, the later decision of Wah & IP which restated the elements in Shum Kwok Sher, referred with apparent approval to the decision of the Court of Appeal in AG No 3, which suggests that neither Court perceived any inconsistency between their differing descriptions of the element. 37 In any event, as was pointed out by Hansen AJA on the hearing of this referral, the words used in the various cases are not to be read as if they are a statute. The content of the disputed element is to be discerned by reference to the history of the offence and the various circumstances in which it has been applied. One indicia of the breadth of the offence is the nature of the harm which the offence is designed to address. The view of Finn is I think correct that: the kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position. 38 This suggests that the accused’s construction of the element is too narrow. The accused’s formulation does not sit comfortably with the authorities to which I have referred and in which a charge of misconduct was made out against an officer who was not, at the material time, exercising a power of his or her public office. Thus in Question of Law Reserved (No 2 of 1996), the offence was applied to an officer who was off duty. Wah & Ip was another such case. The official’s conduct will be linked to their office when in doing the impugned act, the official did something he or she was duty bound to refrain from doing, according to the responsibilities of the office. Thus Finn suggests that the offence will be made out where a police officer uses police facilities to which his position gives him access, for his own private purposes. 39 Re Mullen also supports this broader approach. In that case, an off duty police officer had been found guilty of official misconduct under s 32 of the Criminal Justice Act 1989 when she punched another driver in a road rage incident. Lee J overturned the decision of the Misconduct Tribunal holding that there must be some connection between the conduct and the office held. His Honour found that the offence was not intended to describe an essentially private act done without any reference to a person’s official position. After examining authority Lee J also said: Perhaps it would be more accurate simply to say that certain police functions do not cease at the end of their allocated shift…… There must be misconduct in the course of or pertaining to the exercise of the powers, functions or responsibilities attaching to his or her office. It is quite easy to envisage a situation in which an individual may, on an essentially private occasion, do an act which may cause their office to be brought into disrepute. A clear example would be that of a person who seeks to invoke his or her office in order to advance some private or closet interest. 40 In my opinion the relevant misconduct need not occur while the officer is in the course of performing a duty or function of the office. Certain responsibilities of the office will attach to the officer whether or not the officer is acting in the course of that office. Where the misconduct does not occur during the performance of a function or duty of the office, the offence may be made out where the misconduct is inconsistent with those responsibilities. It may be connected to a duty already performed or to one yet to be performed or it may relate to the responsibilities of the office in some other way. The misconduct must be incompatible with the proper discharge of the responsibilities of the office so as to amount to a breach of the confidence which the public has placed in the office, thus giving it its public and criminal character. Accordingly, use of knowledge or information acquired by the office holder in the course of his or her duties for a private or other impermissible purpose may be inconsistent with the responsibilities of the office and calculated to injure the public interest. If the misuse of the information is of a serious nature and is likely to be viewed as a breach of the trust reposed in the office so as to bring the office into disrepute, the conduct will fall within the ambit of the offence whether or not it occurs in the course of public office. It will in such circumstance have the necessary connection to that office. 41 I consider that the proper formulation of the offence requires the element to be expressed so that it encompasses the circumstance in which the offender’s misconduct, though not occurring while the offender was discharging a function or duty, had a sufficient connection to their public office. Whether the misconduct was so connected will turn upon the facts of the case. Element (5) – How is the seriousness of the misconduct to be described? 42 At the core of the accused’s argument are the remarks of Lord Widgery in R v Dytham. He stated that the element of culpability, which is not restricted to corruption or dishonesty: must be of such a degree that the impugned misconduct is calculated to injure the public interest so as to call for condemnation and punishment. It was contended that the element must include this formulation and that this has been consistently so held. While it has been often referred to in discussion of the offence, no subsequent case was cited in which what Lord Widgery said has been treated as an element of the offence. It has never been suggested that the prosecution must prove to the jury’s satisfaction that the defendant’s conduct was so calculated. Such language, if employed as any part of a jury direction would require further exposition if it was to be understood. I respectfully share the view expressed by Mason NPJ in Shum Kwok Sher that the term ‘calculated to injure the public interest’ is not the ‘language of definition’ and is not to be so understood. The approach taken by the Court of Appeal in Attorney General’s Reference (No 3) confirms that to be so. The Court although quoting the observation of Lord Widgery did not include it within the elements of the offence. 43 Counsel for the accused also submitted that element (5) must be formulated as stated first in Shum Kwok Sher and then in Wah & Ip. The misconduct must be ‘serious having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects’. This formulation was accepted as correct in Attorney General’s Reference No 3 and Boulanger. The Crown accepts that this should form part of the element. 44 The Court of Appeal in Attorney General’s Reference (No 3 of 2003) endorsed the condition that the ‘serious departure from proper standards…must be so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder’. I do not regard this to be part of the definition of the offence although it serves to emphasise the degree of departure from the proper standard that must be established. 45 It is my view that the elements of the offence are substantially those set out by Mason NPJ in Wah & IP subject to some amendment which will draw further attention to the nature of the necessary nexus between the conduct and the office and further emphasise the necessary seriousness of the offence. I would substitute the word ‘connected’ for ‘ in relation‘ in element (2) it being accepted by both parties that ‘connection’ may better emphasise that the prosecution must establish a necessary nexus between the office and the misconduct. In element (5) I would add to ‘serious’ that it must be conduct ‘meriting criminal punishment’. 46 So amended, the elements of the offence are: (1) a public official; (2) in the course of or connected to his public office; (3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects. 47 Any charge must be tailored to the particular circumstances of the case. It will generally be desirable that the trial judge emphasise the notion that the conduct must be so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. As in the case of criminal negligence, and offences such as culpable driving and dangerous driving, it is recognised that it is necessary to distinguish the conduct sufficient to attract criminal sanction from less serious forms of conduct which may give rise to civil proceedings. Accordingly it would also be desirable if the trial judge explained that in stating that the conduct must be sufficient to attract criminal punishment, a distinction is being drawn from less serious forms of conduct which may give rise to civil proceedings. 48 It follows that the judge’s referral should be answered in the following terms. In respect of question 1, the elements of the common law offence of misconduct in public office are as set out in paragraph [46]. In light of the conclusion reached on this question, it is unnecessary to answer question 2. HANSEN AJA: 49 I agree with Redlich JA. - - - (1) a public official; (2) in the course of or connected to his public office; (3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.