Did DPP Nick Cowdery mislead the attorney general? ... Prisoner whose conviction had been quashed seeks ex gratia payment ... Opposed by the DPP ... After more than eight years the NSW Court of Appeal decides, sort of ... Molomby vanquished ... From Justinian's Archive ... December 4, 2003
DPP Nick Cowdery QC ... searching for advice on ex gratia payment
DID the NSW Director of Public Prosecutions "engage in conduct in connection with the practice of law" when he advised the Attorney General's Department against an ex gratia payment to a prisoner whose conviction was quashed?
Did he deliberately mislead the AG by misrepresenting the Court of Appeal judgment which overturned the conviction?
And was the Legal Services Commissioner correct in deciding that there was no "reasonable likelihood" that Nicholas Cowdery QC (as he was) would be found guilty of unsatisfactory professional conduct or even professional misconduct?
All these questions received a resounding negative in a recent judgment of the NSW Court of Appeal (Mason P, Tobias JA, Foster AJA).
Counsel for the appellant Ted Kawicki, Tom "Tom" Molomby SC must be disappointed. He's been beating this particular drum for a long time.
The saga started with Kawicki's successful appeal in 1995 against his conviction in 1994 for "knowingly maintaining an escaped prisoner".
Kawicki had rather unwisely (as it turned out) loaned prison escapee Patrick Hudd $500 and the burning issue was whether he knew Hudd was an escapee at the time.
The Court of Criminal Appeal ruled that the evidence in this regard was so "meagre", it was not reasonably open to the jury to find so. The grounds for conviction were deemed "unsafe and unsatisfactory" and Kawicki was acquitted.
Only trouble was, by the time his conviction was overturned, Kawicki had already served his entire sentence (ten months periodic detention).
He promptly applied to the Attorney General's Department for ex gratia payment in compensation. The AG wrote to Nick Cowdery asking his advice.
Nick said: don't pay him.
"It is my view that this prosecution was correctly carried brought and carried out ... The Court of Criminal Appeal took a certain view of the evidence but in my view the matter was one that had to be determined by the jury ... I recommend against the making of an ex gratia payment."
Kawicki and Molomby then wrote to the Legal Services Commissioner complaining that the DPP's advice was "deliberately misleading" and suggested that he was "guilty of professional misconduct".
The Commissioner dismissed the complaint in February 2002 on the basis that Cowdery's letters containing the advice "had not been given in connection with the practice of law" but as part of his statutory duties.
Even if he had been practising as a lawyer, the commissioner thought he would still not be found guilty.
Undaunted, Molomby and Kawicki mounted a Supreme Court challenge to that decision. It was dismissed by Burchett AJ in November last year.
"I am simply unable to see the basis on which it is contended that the legal Services Commissioner's decision was so unreasonable that no reasonable person could have reached it. For myself, I would have reached the same conclusion."
Now a year later, and nearly nine years after Kawicki first applied for compensation, the NSW Court of Appeal has done the same.
Kitchen oven expert Tobias JA concluded that Cowdery had presented his own personal opinion, knowing full well that the AG had in his hands a copy of the Court of Criminal Appeal's "unambiguously critical" judgment. Tobias said:
"Whether or not one agrees with Mr Cowdery's opinion is not to the point ... He was not bound to accept the correctness of the contrary view formed by the Court of Criminal Appeal."
As to whether the DPP was "conducting himself in connection with the practice of law", this was an open question, concluded Tobias.
Problem solved.