It's all a terrible misunderstanding

Star of TV documentary in disciplinary drama of her own ... Bar council's complaint against criminal defence barrister's "clumsy and ambiguous" email to colleagues dismissed by ADT ... Costs awarded for double jeopardy and oppression

Ghabrial: email did not mean what it saidThursday night's ABC doco On Trial (June 2) featured Sydney barrister Jehane Ghabrial as junior counsel for the accused in a nasty gun possession and shooting trial.

The doco was produced in 2008, around about the time Jehane was going through some momentous dramas of her own.

On March 21 this year the NSW Administrative Decisions Tribunal capped off a disciplinary case against her brought by the Bar Association, by awarding her costs to be paid from the public purpose fund.

Last Christmas Eve, the ADT, composed of deputy president David Patten, Paul Blacket SC and old journo Ross Fitzgerald, rejected the bar's case of professional misconduct.

An email Ghabrial sent to lawyers for one of her clients' co-accused earned her a "please explain" from chief  barman Philip Selth, a suspension of her practicing certificate and a two day hearing in front of the Bureau de Spank.

Ghabrail sent the email after court in September 2008, when she was defending two brothers, Mostafa Azary and Ali Houssain, against various charges including affray and malicious wounding.

The brothers had been kicked out of the Shark Hotel on Liverpool Street at about 10.30pm in August 2007, for violating the dress code.

They allegedly returned later, with at least three others, and set upon the hotel's security guards, Justin Jindi and Ramsay Hajaj.

Jindi ended up in hospital with a knife wound in his back. Hajaj told police he saw one of the five accused, Ehab Faris, carrying a knife.

The brothers and the three other co-accused were arrested a short time after the attack, leaving the city in a silver Lancer loaded with a collection of bats and sticks. All five denied any involvement in the foray.

The brothers later admitted to their involvement in the attack and at committal pleaded guilty to common assault and affray, but not guilty to malicious wounding.

All five accused were arraigned in the District Court on September 26, 2008 and Ghabrial attended on behalf of the other defence counsel. When she got back to her chambers, she wrote to the other barristers letting them know how it went.

She added the following paragraphs, to which the bar council took exception:

"I think it would be prudent for all of us to have a meeting to discuss our approaches to this matter.

I don't think any of us pointing the finger at anyone else re possession of the knife will assist any of us.

My view at this stage is the more we each muddy the waters re the knife and who it was who had it (by all saying we knew nothing of the knife), the more chance of succeeding re the Mal Wound. At this stage, only 1 person out of all the Crown witnesses at the scene actually saw a knife coming. Obviously that means it was not clearly visible to all, which it is a reasonable possibility that it was also not visible to the offenders. Knives are easily concealed. If we all deny seeing a knife, rather than say X was carrying the knife and stabbed the victim, obviously the jury is going to think one of us is lying because the knife had to have been presented by someone, but they have to be satisfied who that was and that all of the others knew of its presence at any stage before or during the affray. I think they have problems on this issue given only one out of the 5 crown witnesses (including the victim) at the scene saw it. Let’s chat about it at some stage, shall we?

Until then, if any of you have any questions about today, please don’t hesitate to call or email me.

Cheers, Jehane." 

Six months after the email was sent, Ghabrial was "requested to call upon Mr Selth" and she cancelled a conference with her clients to do so.

Selth told her that as a result of the email the bar council had resolved to make a complaint against her alleging professional misconduct.

Ghabrial was invited to explain herself and she did so in a letter several days later.

"This has been a most distressing situation for me to find myself in ... It is all such a terrible misunderstanding and misinterpretation of the intended meaning of my email."

She went on:

"When I said 'if we all deny seeing the a [sic] knife, rather than say X was carrying the knife and stabbed the victim', I was trying to convey the following meaning - that if all of the accused were still maintaining what they told the police, and were truthfully not in a position to point the finger at anyone in particular, then a jury might not believe it but it would still, as I perceived it, cause problems for the Crown case. I was not intending to suggest to anyone to lie ... I am truly sorry for the mischief this email has caused."

The bar council didn't buy it and suspended her trading ticket.

Though the council decided a fortnight later to allow Ghabrial to continue to practice, provided her work was supervised for a period of two years, it still brought a case before the ADT, alleging professional misconduct or at least the lesser charge of unsatisfactory professional conduct.

The bar drew the ADT's attention to bar rule 43:

Integrity of evidence
43. A barrister must not suggest or condone another person suggesting in any way to any prospective witness (including a party or the client) the content of any particular evidence which the witness should give at any stage in the proceedings.

And to section 319 of the Crimes Act 1900:

319 General offence of perverting the course of justice
A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.

Ghabrial maintained that the email was above board and that it "never occurred" to her that it could be "construed as constituting a conscious attempt [to] persuade another legal practitioner to encourage his client to give false evidence".

Under cross examination by Jeremy Giles for the bar council it was put to her that this was exactly what she was doing:

Q. You were suggesting that it would be a good thing if they did give that evidence [that nobody had seen a knife] though weren't you?

A. No, that's not what I was I suggesting.

Q. That's what the words say.

A. Well yes, that's - that's how they read but that's not how they were meant.

Ghabrial said that she was merely expressing her view that the crown ought to be put to proof regarding who had in their possession, and who had seen, the knife.

Ghabrial also told the tribunal that when she composed the email she thought - but did not write - that "a hole in the prosecution case" existed because although only five persons were accused, one of the victims had told police that there could have been as many as eight attackers.

Patten, Blacket and Fitzgerald, found the respondent "a truthful witness whose testimony should be accepted".

However, they explained that ...

"the barrister was apparently under a misapprehension as to the law regarding the offence of malicious wounding in company [because] she thought that for her clients to be convicted of that offence the crown needed to prove that they knew that one of their co-offenders was armed with a knife."

The focus, said the tribunal, "must be on the purpose of the criminal enterprise not on the means employed for achieving it".

They went to say that, given the requirements of "reasonable satisfaction" set out by Dixon J in Briginshaw v Briginshaw, "we are not persuaded to the appropriate level of satisfaction that the barrister was guilty of professional misconduct ...

"Although it could be argued that the drafting of the email fell short of the 'competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner' in that it was clumsily worded and in parts ambiguous, to categorise it as constituting unsatisfactory professional conduct would, in our opinion, place altogether too high a standard not only on the barrister but on other lawyers who inadvertently produce clumsy and ambiguous documents. We are not satisfied that the email constituted unsatisfactory professional conduct."

Ghabrial: no reasonable likelihood of an adverse findingThe bar council should have recognised that this was just a clumsy and ambiguous email to fellow defence barristers and so three months later awarded the respondent costs from the public purpose fund.

Apparently, there existed "no reasonable likelihood that a finding of professional misconduct would be made ... it was so inherently unlikely that the respondent intended in effect to pervert the course of justice that her explanation should have been accepted".

They also said that the supervision regime imposed on Ms Ghabrial amounted to, "both double jeopardy and an element of oppression capable of constituting a special circumstance".

Now, sit back and enjoy episode two of On Trial next Thursday (June 9) and find out what happens to Ghabrial's hapless client.

Tom Westbrook reporting

Comments

[John Carroll]

"Hapless" client? Is that a spoiler?