Findings of corrupt conduct
Findings of corrupt conduct are made against barrister John Hart and solicitor Anthony Paul for misleading various courts by providing false information about their clients, and for seeking to obtain money improperly from the Attorney General's Department by agreeing to submit an artificially inflated costs claim.
Corrupt conduct findings are also made against Mr Hart's client, Jason Kelly, in respect to the costs claim, and for providing money to Mr Hart intended to pay an officer of the Director of Public Prosecutions (DPP) to adversely affect the officer's functions.
The Commission also finds that Mr Kelly, Christopher Trinder and Jeffrey Nankivell engaged in corrupt conduct by providing money to Mr Hart they intended he would use to pay to an officer of the DPP to ensure that no prosecution would commence against them arising from a sexual assault allegation.
Recommendations for prosecutions
The Commission must seek the advice of the Director of Public Prosecutions (DPP) on whether any prosecution should be commenced. The DPP determines whether any criminal charges can be laid, and conducts all prosecutions. The Commission provides information on this website in relation to the status of prosecution recommendations and outcomes as advised by the DPP. The progress of matters is generally within the hands of the DPP. Accordingly, the Commission does not directly notify persons affected of advice received from the DPP or the progress of their matters generally.
The ICAC has recommended that the advice of the DPP be sought with respect to the prosecution of John Hart for 10 offences of perverting the course of justice contrary to the Crimes Act 1900 (NSW), and four offences of false pretences contrary to the Crimes Act.
It also recommends DPP advice be sought with respect to the prosecution of Anthony Paul for an offence of perverting the course of justice, and each of Jason Kelly, Christopher Trinder and Jeffrey Nankivell for an offence of offering a corrupt benefit and an offence of perverting the course of justice.
Briefs concerning John Hart, Anthony Paul, Jason Kelly, Christopher Trinder and Jeffrey Nankivell were forwarded to the DPP. The matter has been referred from the DPP to the Crown Solicitors Office (CSO) for advice and action.
The Commission has been advised by the Crown Solicitor's Office that the Department of Attorney General and Justice has commenced proceedings against Mr Hart for 10 counts of the offence of acting with intent to pervert the course of justice under section 319 of the Crimes Act, and one count of the offence of obtaining property with false pretence under section 179 of the Crimes Act. On 18 November 2013, Mr Hart pleaded guilty to five section 319 offences. The further five section 319 offences were placed on a form 1 to be taken into account on sentence. On 22 August 2014 Mr Hart was convicted and sentenced to 2 years and 9 months imprisonment, non-parole period of 1 year 10 months, for 5 counts of pervert the course of justice under section 319 Crimes Act 1900. Mr Hart appealed against sentence. The appeal was dismissed by the NSW Court of Criminal Appeal on 3 May 2016.
Mr Paul pleaded guilty to the offence of acting with intent to pervert the course of justice under section 319 of the Crimes Act. On 2 August 2013, he was sentenced in the NSW District Court to 16 months imprisonment, which was suspended upon his entering a good behaviour bond for the period.
The Commission has been advised by the Crown Solicitor's Office that the Department of Attorney General and Justice has commenced proceedings against Mr Kelly for one count of the offence of corruptly offering a benefit to an agent under section 249B(2)(a) of the Crimes Act. Mr Kelly pleaded not guilty to this charge and the matter was listed for hearing at the Downing Centre Local Court on 17 and 20 May 2013. On 20 May 2013, the Court dismissed the charge on the basis of there being no prima facie case and awarded costs in favour of Mr Kelly.
The Commission has been advised by the Crown Solicitor that as no appeal will be filed against the court's decision in the Kelly matter, proceedings against Mr Trinder will not be commenced. The Commission has accepted this advice.
The Commission has received advice from the Crown Solicitors' Office that the Crown Solicitor has decided there was insufficient admissible evidence to prosecute Mr Nankivell.
The Commission has been advised by the Crown Solicitor's Office that the Department of Attorney General and Justice has determined that the charges against Mr Wheaton for two counts of the offence of making an omission with intent to pervert the course of justice under section 319 of the Crimes Act be withdrawn.
Recommendations for disciplinary action
The ICAC is of the opinion that consideration should be given to the taking of disciplinary action under the Legal Profession Act 2004 (NSW) against John Hart and Anthony Paul for unsatisfactory professional conduct or professional misconduct.
Proceedings commenced by the Council of the New South Wales Bar Association against John Peter Hart were heard by the Court of Appeal on 21 March 2011, when the Court made the following formal orders:
1. A declaration that Mr Hart is guilty of professional misconduct;
2. A declaration that Mr Hart is not a fit and proper person to remain on the Roll maintained by the Supreme Court of NSW under s.32 of the Legal Profession Act 2004;
3. That the name of Mr Hart be removed from the Roll; and
4. That Mr Hart pay Claimant's costs of and incidental to these proceedings.
Disciplinary proceedings were commenced against Anthony Paul by the Law Society of NSW and were dealt with by the Administrative Decisions Tribunal.
On 4 December 2012, the Tribunal found Mr Paul guilty of professional misconduct in relation to allegations that he:
appropriated to his own use the proceeds of cheques drawn on the account of his firm, Creagh Lisle, and payable to John Hart, Barrister
concealed from the partners of Creagh Lisle his conduct in the above
misled the Court
forged the signature of John Hart on a trust cheque
misappropriated client funds
failed to deal with client funds in accordance with the trust accounting provisions.
It was ordered, by consent, that Mr Paul's name be removed from the Roll and that he pay the Law Society's costs.
Recommendations for corruption prevention
No corruption prevention recommendations are made in this report.