Whyte man's burden

Unsatisfactory professional conduct … Delayed flight ... Trial missed … Trouble getting off sub-tropical island ... Conferenceville ... Rest and recreation ... Egregious error 

Hayman Island or Perth?
AFTER an agonising experience in the Whitsundays, the trauma of delayed flights and missed connections to get to the final stages of a Perth criminal trial in time, Sydney barristers James Glissan QC and James Whyte are before the WA Bureau de Spank with the prospect of unsatisfactory conduct findings hovering over their heads. 

Both barristers failed to make it back to Perth for the concluding days of their client's criminal trial because they were stuck on Hamilton Island, after an October long weekend in 2007. 

They had been at a conference with their families on the toney Hayman Island resort. The only way in or out of Hayman is by boat or helicopter via Hamilton, with a connecting flight to Sydney. 

Glissan and Whyte appeared for Mr Adrian Corp in his WA District Court trial. The trial ran from August 6 to October 4, 2007. 

Corp's co-accused was represented by the late Stephen Shirrefs SC. 

Corp had paid $566,250 into his solicitor's trust account prior to a costs agreement with Glissan and Whyte. 

The client's complaint was that Glissan failed to attend the trial between October 2-4, 2007 and Whyte failed to turn up on September 28 and also Oct 2-4, 2007. 

The Hayman Island paper presented by Glissan and Whyte was entitled, Solicitors and how to cope with them - practice management. They were joined at the conference by their respective families. 

The conference program looked pretty gruelling - running between 1pm on Saturday Sept. 29 and wrapping-up at 1pm on Sunday Sept. 30. 

Solicitors and how to cope with them - practice management, was delivered at 11.10am on the Sunday. 

At the time arrangements were made to go to Hayman, Glissan thought he could stay on the island till Friday, Oct. 5, 2007 in the expectation that Mr Corp's trial was to be over by Sept. 28. 

Corp's complaints about the two Sydney briefs were dismissed by the Legal Profession Complaints Committee, so he sought a review from the WA State Administrative Tribunal. 

Evidence emerged that in late August 2007 Mr Corp no longer wanted Whyte on the case and thought that his solicitor, Hayden Robinson, could be junior counsel. The WASAT, with Justice John Cheney presiding, said that the client had "reservations as to the value derived from Mr Whyte's services". 

Whyte told Corp that Glissan would not be happy about that.

Glissan prepared a memo for his client, Opinion: The Trial of Adrian Corp, in which he argued that the removal of Whyte would "seriously impact" on the trial; that his fees would be likely to increase if his junior was not there; that his absence would be likely to impact on the jury "in a subtle way"; that what was needed was "independent thought and input" and "a full commitment to attending to the trial". 

It was also suggested that Whyte could sue for the remainder of his fees. 

So Corp reversed his decision to terminate Whyte. 

Here's James Glissan discussing "control" and other effective strategies for cross-examination 

By September 23 it was apparent that the trial was not going to finish by September 28. 

By the time the two Sydney barristers had departed Perth for Hayman, Glissan had completed his address to the jury and what remained was part of Shirrefs' address for the co-accused and the judge's summing-up. 

Glissan was booked to return from the Whitsundays on a Jetstar flight to Sydney on Monday, Oct 1 (a public holiday) and then to Perth at 7.20 that night, ready for the resumption of the trial on the Tuesday. 

Mrs Glissan also did the bookings for Whyte. 

Despite all the efforts to keep Whyte in the trial, on Friday, Sept. 28 he was not there - having departed already for conferenceville. 

The client had not been informed and had not consented to his absence from the trial. 

On Monday, Oct. 1 Glissan and White arrived at Hamilton around 2pm, after a boat trip from Hayman. On checking-in for the flight to Sydney they were told that it was delayed due to mechanical problems and might be cancelled. 

They decided to catch the last helicopter that evening back to Hayman Island, where their families were holidaying. 

Once back at Hayman there was no way they could get to Perth in time for the the resumption of the trial. 

In fact, the delayed flight landed on Hamilton Island at 6.46pm, departed at 7.20 and arrived in Sydney at 9.23pm. It had not been cancelled at all. 

Whyte from 16 Wardell They could have caught a connecting flight to Perth at 10.10pm. 

Glissan and White telephoned Robinson at around 4pm on Monday and told him that they were unable to return to Perth. 

Glissan said that in his opinion the expense of going back to Perth at a later time was disproportionate to the benefit of his attendance, given the stage of the trial. 

He claims that Robinson instructed him not to return. 

On Tuesday morning Robinson spoke to Shirrefs about what had happened. The Melbourne barrister said Glissan's absence was "an egregious error". 

Robinson's file note said on Tuesday morning Glissan had told him, "he didn't think he could contribute anything and wanted to save Adrian's money". 

"I made the point this was his call and Adrian was prepared to pay the money for Jim to attend ... I add this is all very unsatisfactory to me in the context of doing the best thing for Adrian. But there have been a number of things that have arisen which have caused disquiet." 

On October 3, Whyte sent a fax to Robinson saying he was disappointed that he would not be at the trial and enclosed a memorandum of fees, including a fee for a conference with Glissan the day before. 

Corp was sentenced to three years imprisonment with a recognisance release order to take effect after 16 months in the sum of $20,000. 

Corp and his co-accused both appealed, with a decision on June 17, 2008 quashing all of the convictions. 

In Corp's case verdicts of acquittal were entered on five counts and on the remaining 10 a retrial was ordered. 

The retrial did not proceed. 

On one of the grounds of appeal Miller JA said: 

"It seems almost inconceivable that in a summing-up that proceeded over a period of three days, experienced counsel (of whom there were three in the court) could have missed the absence of direction by the trial judge of a fundamental requirement of a criminal trial." 

By the time his conviction was quested, Adrian Corp had been in jail about eight months. 

As to White's absence from court on Sept. 28, without telling the client or the solicitor, the tribunal said that it gives rise to a reasonable likelihood that he would be found guilty of unsatisfactory professional conduct. 

"Mr Corp should have been given the opportunity to determine whether or not he wished Mr Whyte to be present. After all, Mr White was engaged for the duration of the trial ... Here Mr White simply took what can only be described as a day of holiday." 

snip ...

"We do not consider that, on the materials we have reviewed, Mr Whyte was entitled to assume that he could come and go from the trial as he pleased subject only to Mr Glissan's consent. 

Having paid counsel hundreds of thousands of dollars, Mr Corp was entitled to determine whether his counsel should be relieved of the obligation to attend trial." 

Then there was the absence of both briefs from October 2. 

The barristers' position was that they were instructed by Robinson not to return to Perth. 

It was more likely that Glissan told the solicitor that they would not return, unless instructed otherwise. 

No instruction was given for them to return. 

The SAT found there was no reasonable likelihood of a finding of unsatisfactory professional conduct relating to the arrangement not to return for the completion of the trial, because Glissan was prepared to do so if instructed. 

However, the problem was the risk they took in being unable to return. 

Mr Corp submitted that they should not have left it till the last flight on Monday to depart Hamilton Island. 

Further, he said they made a serious error of judgment by leaving Hamilton to go back to Hayman at 4pm on Monday, where the flight had not been cancelled, simply delayed. 

The tribunal thought so too: 

"Their decision to return to their families on Hayman Island appear, on Mr Glissan's evidence, to have been made for reasons of their own convenience." 

Placing themselves at risk of being unable to return for the commencement of the trial by booking on the last available flight from Hamilton and then abandoning any prospect of returning to Perth gave rise to a reasonable likelihood the tribunal might find Glissan and Whyte guilty of unsatisfactory professional conduct. 

A directions hearing is scheduled on October 29 to determine orders to be made as a result of the findings. 

See WASAT findings in full 

Reporter: Alix Piatek