NATIONAL STANDARDS COMMITTEE (NO 1) OF THE NEW ZEALAND LAW SOCIETY v X [2021] NZHC 821

NATIONAL STANDARDS COMMITTEE (NO 1) OF THE NEW ZEALAND LAW SOCIETY v X [2021]NZHC 821 [19 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-000546[2021] NZHC 821UNDER Section 253 of the Lawyers andConveyancers Act 2006BETWEEN NATIONAL STANDARDS COMMITTEE(NO 1) OF THE NEW ZEALAND LAWSOCIETYAppellantAND XRespondentHearing: 12 April 2021Counsel: D La Hood for AppellantJ Long and JK Grimmer for RespondentJudgment: 19 April 2021Reissued: 15 June 2021JUDGMENT OF DOWNS J(Public version with redactions)Solicitors/Counsel:Luke Cunningham Clere, Wellington.Duncan King Law, Auckland.J Long, Auckland.JK Grimmer, Auckland.An appeal with an unusual combination[1] X faces eight professional disciplinary charges. The most serious alleges he[engaged in sexual misconduct with] K, a summer clerk. The evidence underlying thischarge is hearsay. The New Zealand Lawyers and Conveyancers DisciplinaryTribunal1 ruled the evidence inadmissible at the now-imminent hearing.2[2] The National Standards Committee3 appeals this ruling, contending theTribunal erred to exclude the evidence. The Committee emphasises the protectivenature of professional disciplinary regimes, and the difference between criminalproceedings and those here. The Committee contends admission of the evidencewould not compromise X's right to natural justice.[3] The appeal has an unusual triumvirate. K is available but is not to be called asa witness. The hearsay evidence is not detailed. And, what amounts to a seriouscharge could not be sustained without the hearsay.Background[4] X was a partner at a prestigious national law firm. K was a summer clerk withthe firm from late 2015 until early 2016. [Redacted].[5] On 18 December 2015, the firm had a Christmas party. Charges 1–5 allege atthe party, X indecently touched four summer clerks, kissed one and invited another toreturn home with him.[6] On 21 December 2015, X held a team Christmas party at his home. K attended.Alcohol was consumed. X invited the guests to use the pool and sauna. He and Kwere seen kissing in the latter. The witness reported this to the firm. When questionedby the firm, X and K denied anything happened.[7] [Redacted.]1 The Tribunal.2 The hearing is 17 May 2021.3 The Committee.[8] K is not being called as a witness. K has declined to assist the inquiry inrelation to X or make any statement. Through counsel, K has said it would be tootraumatic to be involved in any way. K was recently asked to confirm the accuracy ofthe hearsay evidence. She declined to do so.The charge[9] The alleged [further sexual misconduct] is captured by charge 7. This reads:...[Details of the alleged sexual misconduct have been redacted.]Therefore the Practitioner committed Charge 7 as follows:The Practitioner's conduct amounted to misconduct.5. The Practitioner's [sexual misconduct] would justify a finding that thePractitioner is not a fit and proper person or is otherwise unsuited toengage in practice as a lawyer because:5.1 The Practitioner was in a position of seniority and/or authority overK in that:(a) he was a partner at the Wellington Office;(b) she was a law student working as a summer clerk at theWellington Office;(c) [redacted];(d) she was hoping for an offer of permanent employment at theWellington Office; and(e) he had, or would reasonably be understood by her to have, arole in determining whether she received an offer ofpermanent employment.5.2 The Practitioner was significantly intoxicated [redacted].5.3 K was vulnerable because:(a) of the power disparity described above at paragraph 5.1;(b) she was intoxicated; and(c) she was isolated [redacted].5.4 The Practitioner was aware of the circumstances which renderedK vulnerable.5.5 The Practitioner's conduct was an abuse of his position of seniorityand/or authority.6. The Practitioner's [sexual misconduct] with K was connected with theprovision of regulated services, and, in these circumstances, wouldreasonably be regarded by lawyers of good standing as disgraceful ordishonourable for the reasons given above at paragraph 5.7. The Practitioner's [sexual misconduct] with K in these circumstancesconsisted of a wilful or reckless violation of r 10 of the Rules because:7.1 For the reasons given above at paragraph 5, the Practitioner'sconduct failed to promote and maintain proper standards ofprofessionalism in his dealings with K.7.2 The Practitioner's failure to adhere to the standard imposed by r 10was wilful or reckless.8. The Practitioner's [sexual misconduct] with K in these circumstancesconsisted of a wilful or reckless violation of r 12 of the Rules because:8.1 For the reasons given above at paragraph 5, the Practitioner didnot, while acting in a professional capacity, conduct dealings withothers, namely K, with integrity, respect, and courtesy.8.2 The Practitioner's failure to adhere to the standard imposed by r 12was wilful or reckless.In the alternative, the Practitioner's conduct amounted to unsatisfactoryconduct9. In the alternative to paragraph 6, the Practitioner's [sexual misconduct]with K occurred at a time when he was providing regulated services and,in these circumstances, would be regarded by lawyers of good standingas being unacceptable for the reasons given above at paragraph 5.10. In the alternative to paragraph 7, the Practitioner's [sexual misconduct]with K in these circumstances consisted of a contravention of r 10 of theRules for the reasons given above at paragraph 7.1.11. In the alternative to paragraph 7.2, the Practitioner's [sexual misconduct]with K in these circumstances consisted of a contravention of r 12 of theRules for the reasons given above at paragraph 8.1.X's response[10] X has filed a response to the charges. He acknowledges "intimate contact"with K at the team party, including kissing and touching. X says K "instigated" theconduct. He says he ended it the same night, and K "expressed disappointment".[11] X accepts he was less than candid with the firm about K. He says he and Kwere embarrassed by what happened and agreed to pretend as if nothing had.[12] In relation to charge 7, X [denies the alleged sexual misconduct and says thatK] "has never, to his knowledge, made any complaint to that effect to anyone at all".The hearsay evidence[13] The hearsay evidence comes from five then employees [who say K spoke tothem about X's alleged sexual misconduct].[14] [A's evidence; redacted].[15] [B's evidence; redacted].[16] [C's evidence; redacted].[17] [Redacted].[18] [D's evidence; redacted].[19] [F's evidence; redacted].Some preliminary observations about the law[20] Section 239 of the Lawyers and Conveyancers Act4 provides:239 Evidence(1) Subject to section 236, the Disciplinary Tribunal may receive as evidenceany statement, document, information, or matter that may, in its opinion,assist it to deal effectively with the matters before it, whether or not thatstatement, document, information, or matter would be admissible in acourt of law.(2) The Disciplinary Tribunal may take evidence on oath, and, for thatpurpose, any member of the Disciplinary Tribunal may administer anoath.4 The Act.(3) The Disciplinary Tribunal may permit a person appearing as a witnessbefore it to give evidence by tendering a written statement and verifyingthat statement by oath.(4) Subject to subsections (1) to (3), the Evidence Act 2006 applies to theDisciplinary Tribunal in the same manner as if the Disciplinary Tribunalwere a court within the meaning of that Act.(5) A hearing before the Disciplinary Tribunal is a judicial proceeding withinthe meaning of section 108 of the Crimes Act 1961 (which relates toperjury).[21] As is apparent, s 239 is subject to s 236. The latter provides:236 Rules of natural justiceThe Disciplinary Tribunal must, in performing and exercising its functions andpowers, observe the rules of natural justice.[22] Taken together, these provisions allow the Tribunal to receive evidence that isnot admissible under the Evidence Act 2006, provided admission of the evidencewould not contravene the rules of natural justice.[23] As its name suggests, the Evidence Act contains the primary set of rules bywhich Courts and Tribunals admit, exclude, and hear evidence. The Act regulateshearsay evidence, more particularly, hearsay statements.5 A hearsay statement is astatement made by a person who is not a witness, and which is offered as evidence toprove the truth of its contents.6 The alleged facts provide an obvious example. K toldothers X [engaged in sexual misconduct]. K is not a witness. The Committee offersthe evidence, in K's absence, to prove [the sexual misconduct], to sustain the chargehe committed misconduct.[24] The Evidence Act contains strict rules about hearsay statements. Put verybroadly, a hearsay statement is not admissible unless the circumstances relating to thestatement provide reasonable assurance the statement is reliable, and the maker of thestatement is unavailable as a witness.7 To be unavailable as a witness, the person mustbe dead; or beyond New Zealand in circumstances in which it is not reasonably5 Evidence Act 2006, s 18.6 Evidence Act, s 4(1).7 Section 18. A hearsay statement is also admissible if the circumstances relating to the statementprovide reasonable assurance it is reliable; and undue expense or delay would be caused if themaker of the statement were required to be a witness. No one suggests this exception is applicable.practicable to be a witness; or unfit because of age or physical or mental condition; ornot locatable (with reasonable diligence); or not compellable to give evidence.8[25] The key reason for the rules is simple. It can be very difficult to challenge ahearsay statement because the maker of the statement is not a witness. This cancompromise the fairness of a proceeding. The exception to the hearsay rule addressesthe concern because the statement is sufficiently reliable to be admissible and its makerunavailable as a witness.[26] Sections 236 and 239 of the Act are very much like clauses 5 and 6 ofSchedule 1 of the Health Practitioners Competence Assurance Act 2003. Indeed,Mr La Hood acknowledges in this respect, the two enactments are "materiallyidentical". As with ss 236 and 239, the clauses allow the Health PractitionersDisciplinary Tribunal to receive evidence inadmissible under the Evidence Act, againprovided admission of the evidence would not contravene the rules of natural justice.[27] In the recent case of A Professional Conduct Committee of the Nursing Councilof New Zealand v Health Practitioners Disciplinary Tribunal,9 the Court of Appealclosely considered clauses 5 and 6. I call the case Nursing Council for ease ofreference.[28] Nursing Council involved professional disciplinary proceedings against anurse alleged to have had a sexual relationship with a 14-year-old patient. TheProfessional Conduct Committee laid a charge of misconduct in theHealth Practitioners Disciplinary Tribunal. The complainant withdrew his support forthe charge. The Committee then sought to adduce the complainant's statements ashearsay statements.[29] The nurse asked the Tribunal to exclude the hearsay statements and dismiss thecharge for lack of admissible evidence. The Tribunal declined to do either. The nursejudicially reviewed the Tribunal. The High Court held the Tribunal erred in admitting8 Section 16(2).9 A Professional Conduct Committee of the Nursing Council of New Zealand v Health PractitionersDisciplinary Tribunal [2020] NZCA 435.the evidence but declined to dismiss the charge. The Committee appealed, and thenurse cross-appealed. The Court of Appeal dismissed both appeals.[30] The Court held the "precise content" of a decision-maker's natural justiceobligations vary according to subject matter.10 When the issue "is the admissibility ofhearsay evidence of a complainant and he is the only witness to the actionscomplained of ... the assessments called for will be informed by the importantnatural justice right to challenge the truth of a complainant's allegations by askingquestions of the complainant in sworn testimony".11[31] The Court said if the Evidence Act test for the admission of hearsay statementsis not met, the Tribunal could still admit the evidence, but the related discretion wassubject to the "hard limit" of natural justice.12 It followed "the seriousness of theallegation" was an important consideration.13[32] The Court added if pivotal hearsay evidence is not admissible under theEvidence Act, "there may be little room to admit [it] ... under the residualdiscretion".14 This conclusion followed "from the close link between the naturaljustice right to challenge one's accusers and the need to exclude unfairly prejudicialevidence as expressed in s 8(1) and (2)" of the Evidence Act.15 The Court said theTribunal's discretion may be broader "in other circumstances".16[33] The Court said the "overall effect" was this:17(a) That evidence is inadmissible under the Evidence Act does not in and ofitself make it inadmissible before the Tribunal.(b) Notwithstanding, the Tribunal must consider whether evidence would beadmissible under the Evidence Act before considering whether toexercise its discretion under cl 6(1).10 A Professional Conduct Committee of the Nursing Council of New Zealand v Health PractitionersDisciplinary Tribunal, above n 9, at [36].11 At [39].12 At [46].13 At [46].14 A Professional Conduct Committee of the Nursing Council of New Zealand v Health PractitionersDisciplinary Tribunal, above n 9, at [46] (emphasis added).15 At [46].16 At [46].17 At [47](a)–(d) (footnotes omitted).(c) That general admissibility standard is broad and reflects the principalpurpose of the Act, of protecting the health and safety of members of thepublic by providing for mechanisms to ensure that health practitionersare competent and fit to practise their professions.(d) The discretion reflected in that standard is limited by what the Judgereferred to as the "hard limit" found in cl 5(3). Moreover, for thatdiscretion to be properly exercised, the Tribunal needs to be aware of,and assess the significance of, the reasons cl 5(3) applies. Hence theimportance of a question as to the admissibility of a hearsay statementbeing assessed by reference to the relevant provisions of theEvidence Act, informed by the natural justice interests those provisionsreflect, and in the specific context in which the issue arises.[34] In summary, the Court of Appeal held the Health Practitioners DisciplinaryTribunal could receive evidence that was not admissible under the Evidence Act,including hearsay statements, provided admission of the evidence did not contravenethe "hard limit" of natural justice principles. The Court emphasised those principlesinvolved the right to challenge an accuser, at least when the only evidence came fromthat person and she, or he, was an available witness.The Tribunal's decision[35] Citing Nursing Council, the Tribunal concluded the hearsay evidence was notadmissible under the Evidence Act because K was available to be called as a witnessbut not being called.[36] The Tribunal then considered whether the evidence should nonetheless beadmitted within s 239(1) of the Act. The Tribunal held it should not be:18[23] In this case, while we have considerable sympathy for the allegedvictim's position, there is no "compelling reason" why she should be"exempted from giving evidence", to use the words of Collins J in W. Sadly,there are many cases of sexual abuse that are heard throughout the countryevery day and, despite the obvious trauma caused to victims, they are expectedto give evidence to support the allegations of fact made against an accusedperson. The availability of alternative means of giving evidence and theability to have a support person present are intended to protect a complainantas much as possible. We would have had no hesitation in directing thatevidence be given in an alternative way, in a closed hearing room and in thepresence of a support person.18 National Standards Committee No 1 v Name Suppressed [2021] NZLCDT 5 at [23]–[25](footnotes omitted).[24] We are also concerned about the nuanced differences in the statementssaid to have been relayed to the five confidants by the alleged victim. Two ofthe five confidants do not state precisely what they were told but express theirown conclusions about what happened. Evidence such as that could not beadmitted on any basis.[25] We consider that there is an unacceptable risk that the Practitioner couldnot meet the specific allegations made against him by the Committee, if oneor more of the five confidants gave evidence of what was said to them. Thereis no statement from the alleged victim to provide a foundation from whichthe Tribunal could conclude whether what was said to the five confidants wasconsistent or inconsistent. None of the five confidants have any personalknowledge of what actually took place. There could be no meaningfulcross-examination on the question whether [sexual misconduct] took place.A précis of the Committee's submissions[37] On behalf of the Committee, Mr La Hood makes four interrelated points. First,he observes professional disciplinary proceedings, including those here, protect thepublic. Such proceedings should not be confused for criminal ones, in which adefendant's liberty is often at stake. Mr La Hood says the Tribunal wrongly treatedthe case as if it were criminal in nature.[38] Second, Mr La Hood argues natural justice principles are informed by theircontext, and because this is not a criminal proceeding, X has no unqualified right tobe shielded from hearsay evidence, at least when the evidence reaches a thresholdlevel of reliability, even though K is available.[39] Third, Mr La Hood says the evidence meets this threshold, particularly as it iscalled to prove a very simple matter: [redacted]. Mr La Hood observes it isuncontested K was present; that she and X kissed and touched each other in a sexualmanner [on the night of the team Christmas party]. Against this background, what Kallegedly said to the five witnesses is sufficiently reliable to warrant admission ashearsay evidence. Mr La Hood says the Tribunal failed to conduct a (threshold)reliability-based assessment of the evidence.[40] Finally, Mr La Hood contends X would not be prejudiced by the admission ofthe hearsay evidence, for, he may cross-examine the witnesses about what K told them;identify discrepancies as between K's accounts; and highlight the hearsay nature ofthe evidence as a factor affecting weight. This, Mr La Hood stresses, would betterreflect the prophylactic nature of professional disciplinary proceedings.Analysis[41] The Tribunal was obliged to assess the admissibility of the hearsay statementsin accordance with the decision of the Court of Appeal in Nursing Council. TheTribunal was thus obliged to consider the seriousness of the allegation against X, andwhether admission of the hearsay statements would contravene the rules of naturaljustice vis-à-vis the allegation. The mix addresses Mr La Hood's first and secondsubmissions; the Tribunal did no more than apply Nursing Council to this case.[42] Mr La Hood submits Nursing Council is distinguishable, for, the allegationsagainst the nurse were little short of criminal, whereas charge 7 "only" alleges [sexualmisconduct]. So, this case is a professional disciplinary matter only, not a criminalcase in the guise of a professional disciplinary one.[43] The first answer to the submission is charge 7 itself. The charge alleges X hada position of authority over K; that K was vulnerable by reasons of "power disparity";intoxication; and isolation []; and that X "was aware of the circumstances whichrendered K vulnerable". On one view, the charge is not much removed from anallegation of [] a very serious criminal offence.19[44] The next answer is that even if [that] analogy is misplaced, the charge isself-evidently serious. In fairness, Mr La Hood does not argue otherwise.[45] The remaining answer is that s 236 of the Act requires the Tribunal to observethe rules of natural justice, including, given the facts, the rule emphasised by theCourt of Appeal in Nursing Council, the right to challenge an accuser.20 Again, theTribunal did no more than apply that case to this one.19 [Redacted.]20 Section 27(1) of the New Zealand Bill of Rights Act 1990 also affirms "the right to the observanceof natural justice by any tribunal".[46] Mr La Hood contests the applicability of this reasoning. He argues the accuseris the Committee, not K. Mr La Hood notes K has never complained formally aboutX. It follows K is not a complainant.[47] These arguments are technically correct, but the point goes nowhere. K is themaker of the hearsay statements—the person saying to the witnesses—X [engaged insexual misconduct]. The concept of an accuser is not confined to a complainant orvictim; the idea is that the person facing the allegation should be able to test theaccount of the person who made the allegation, at least when that person is availableas a witness.[48] Mr La Hood's third submission overlooks the significance of the unavailabilitycriterion in the Evidence Act's exception to the hearsay statement rule. It is not enoughthat the circumstances relating to the statement provide reasonable assurance of itsreliability; the maker of the statement must also be unavailable. These requirementsare conjunctive, not disjunctive, and Courts have interpreted the unavailabilitycriterion cautiously. For example, in R v Alovili, an eyewitness with a mental illnesswas held not to be unavailable even though the stress of testifying would likelyaggravate his illness.21 It is thus unsurprising the Tribunal said little about reliability,for, even if that criterion were satisfied, it was common ground K was available as awitness.[49] In any event, the reliability criterion is not satisfied in relation to K's statementsto F and D. K did not tell F what the "it" referred to. Context does not fill the gap.D does not report what K said. Rather, she offers her opinion of what K wasconveying. Mr La Hood responsibly acknowledged these shortcomings butemphasised the reliability of K's statements to the remaining witnesses. He stressedthe simplicity of the fact to be established by the evidence: [redacted].[50] Reliability in this context typically includes an assessment of the nature of thestatement; its content; the circumstances relating to the making of the statement; the21 R v Alovili HC Auckland CRI-2007-404-162, 27 June 2008.veracity of the maker; and "any circumstances that relate to the accuracy of theobservation of the person".22 The assessment is a threshold one only.23[51] K's statement to each witness is informal. The circumstances in relation to themaking of each suggests the imparting of a confidence with associated distress. But,what K actually said—as against what each witness established or understood K tosay—is unclear. A refers to "the gist" of what K said; C refers to getting "only halfthe information", and to difficulty in establishing what K was saying; and B says Kreferred to [redacted]. Relatedly, the statements are not detailed. They are moreallegation than narrative. While this is often true of sexual cases—rarely does a victimgive a confidant much detail about what happened—the difficulty here is that thealleged victim is not a witness, hence there is no narrative. Importantly, the onlyevidence of [the alleged sexual misconduct], as against intimate touching and kissing[on the night of the team Christmas party], is the hearsay evidence.24[52] Mr La Hood contends there is no reason to believe K has been anything otherthan honest about X. This may be correct, but as observed, K has declined, throughcounsel, to confirm the accuracy of what she said to the witnesses.[53] Given this mix, K's hearsay statements to A, B and C do not meet the reliabilitycriterion either.[54] This conclusion makes it unnecessary to address Mr Long's detailedsubmissions about the statements on behalf of X, or whether significance attaches atthis (threshold) juncture to an apparent inconsistency [redacted].25[55] The same conclusion addresses Mr La Hood's final submission that X wouldnot be prejudiced by the admission of the hearsay evidence. I agree with the Tribunalthere is an obvious, unacceptable risk he would.22 Evidence Act, s 16(1), "circumstances".23 Adams v R [2012] NZCA 386.24 Mr La Hood argues events at the earlier party and the acknowledged intimacy provide somesupport for the charge. I am inclined to agree. However, the hearsay evidence remains the onlyevidence of [the alleged sexual misconduct]. It is pivotal of charge 7.25 [Redacted].A final observation[56] This case's broader orbit has attracted public attention. The attention hasextended to whether Courts and other institutions are sufficiently conscious of therights of victims in sexual cases. The debate is important, and welcome. That said,the Tribunal was bound to apply existing law in determining whether K's hearsaystatements are admissible. Its conclusion they are not is orthodox given the case'sunusual triumvirate: an available witness; hearsay evidence lacking detail; and aserious charge reliant on hearsay.[57] The appeal is dismissed.Suppression orders[58] Lang J made a suite of interim suppression orders 1 April 2021. I affirmedthese at the hearing as a media representative was present. The (interim) orders are:(a) An order suppressing the names and identifying details of all allegedvictims named in the charges and secondly of those witnesses whomight lead to identification of the alleged victims, namely witnesses 5,9, 10 and 12 on the witness schedule.(b) An order prohibiting publication of X's name or identifying particularsof his affairs in connection with this proceeding until non-publicationis finally determined in the Tribunal (including the grounds for andevidence in support of his application for non-publication).(c) A suppression order pending commencement of the Tribunal hearing ofany details of charge seven, save that they involve allegations of sexualmisconduct at Russell McVeagh functions held some years ago.26(d) An order that no third parties be permitted to access the court filewithout leave of the Court.26 I have not referred to the firm by name, but Lang J did not suppress it. Hence reference to it here.[59] This judgment has been anonymised. It may be reported in a law report, legaldigest, or the like.Costs[60] X said he wished to be heard on costs. I invite memoranda of not more thansix pages:(a) X on or before 4 May 2021.(b) National Standards Committee on or before 11 May 2021...Downs J