Straining credulity

Barrister gives "unbelievable, incredible" evidence about attending to a client being interviewed by the police ... Is the NSW bar n grill looking into this? ... Where's the OLSC? 

Hoeben CJ@CL"Unbelievable ... incredible ... strains credulity." 

This is how Major Gen Justice Cliff Hoeben in the NSW CCA described John Parnell's evidence in the criminal trial of his young law clerk Fabian Michael. 

For those who may not be familiar with Parnell, he was a NSW magistrate for 18 years and for the last 24 years has been a barrister. 

Parnell gave evidence for Michael in his trial on charges of intending to pervert the course of justice contrary to s.319 Crimes Act.  

Michael was found to have advised Daniel Phillips, a witness in an extortion case against his neighbour, Marwan Salim, to lie to the police. 

John Parnell and Fabian Michael acted for Salim. 

But it was Parnell's evidence in the case against his clerk that drew gasps from the CCA when they threw out Fabian Michael's appeal against his s.319 conviction. 

The police wanted to question Daniel Phillips about a car trip to collect "collateral" for Salim. 

Phillips asked Parnell to come with him to the Quakers Hill Police Station, where it was expected he would be questioned and arrested. 

The CCA found that Parnell did not provide any advice to Phillips, did not in any way discuss charges likely to be laid nor the factual background to the anticipated charges. 

Parnell did not speak to the investigating police officer, but allowed the officer to speak with Phillips alone. 

Parnell said he was paid $300 by Phillips for attending the Quakers Hill Police Station. He did not issue a receipt for this amount and he could not remember how the fee had been agreed. 

Parnell said he explained Phillips' obligations under the Law Enforcement (Powers and Responsibilities) Act and the penalties if he gave false information. He also gave him a photocopy of some sections of LEPRA. 

This is part of the gob-snacking transcript of Parnell's cross examination at Fabian Michael's trial: 

Q: In any event if you're going to the police station to talk about - talk to the police or represent somebody in respect to a particular offence you'd want to know what that offence was, do you agree with that?

Parnell: Look, you act on the request for somebody. 

Q: Well, if somebody says to you look I want you to come down to the police station and represent me because I'm going to be charged with an offence, you'd want to know what the offence he was going to be charged or he or she was going to be charged with was wouldn't you? 

Parnell: If they put it that way, yes.

Q: You'd really want to have that information before you went down to the police station wouldn't you?

Parnell: Sometimes I suppose yeah. I mean you can't speak generally about these matters. Every case is an individual case.

Q: Well if a solicitor or somebody rings you up or a clerk or somebody rings you up and says can you come down to the - can you come and meet a client he's going to the police station to be questioned by the police you'd asked wouldn't you what was the charge; it would be the first thing you'd ask? 

Parnell: I might yeah, might not.

Q: Are you suggesting that you may not be interested in the charge? 

Parnell: It's not a question of me being interested, it's a question of what you're asked to do.

Q: So sir are you suggesting that if somebody rings you up and says look can you come down to the police station I'm going to be charged with something you what, just turn up at the police station and see how it goes, you wouldn't ask?

Parnell: If somebody said I'm going to be charged with something I'd probably ask what it was." 

In relation to his role at the police station, Parnell said:

Q: What did you understand your role was going to be at the police station?

Parnell: Be present at any interview that took place.

Q: But for what purpose? 

Parnell: Because I'd been requested to be there.

Q: To protect his rights? 

Parnell: Nobody said anything about that, no. There's a limit to what you can do when you're present at an interview and you can't hinder the investigation.

Q: No but you can give your client advice as to what his rights are, for example, do you agree with that?

Parnell: If it's requested.

Q: Before you walked into the police station, did you know what the charge was that he was being investigated for?

Parnell: No.

Q: So are you saying that you would go to a police station with a client without knowing what the charge was and without advising him about what his rights were as far as speaking to the police were?

Parnell: Well you might, yeah.

Q: You just present him to the police and just hand him over?

Parnell: Yeah, I act on - I act on requests.

Q: So you, for example, wouldn't think it prudent or necessary to advise a client that, for example, he has a right to silence as far as talking to the police are concerned?

Parnell: Well he mightn't want me to know certain things, the client.

Q: That's not what I'm asking you sir, I'm not asking you whether he wants you to know certain things, I'm asking you whether you would think it be prudent --- 

Parnell: Well in those circumstances, I wouldn't volunteer anything.

Q: Sir, you'd be just content just to walk into the interview room, sit down with the client and then just find out what it's all about, on the run, so to speak or as it unfolds?

Parnell: Oh yes, yeah, you don't always find out of course what it's about in interviews these days." 

In further cross-examination Parnell said that he did not remember giving Phillips any advice about his right to silence. He said that at no time did he find out why the police were investigating Phillips. 

Q: Would you agree with this that it's pretty hard to give, almost impossible to give a client legal advice without knowing first of all something about the matter that they - the charge that they're facing?

Parnell: Well it depends what they ask you." 

As the Major General said: 

"Mr Parnell's evidence as to what happened leading up to his attendance at the Quakers Hill Police Station on 19 January 2011 was incredible. 

It is difficult to accept that a barrister of his experience would have made no inquiries and proffered no advice concerning Mr Phillips' attendance. 

Most surprising is his willingness to allow Mr Phillips to be spoken to by the investigating police officer out of his hearing. 

Since he was already acting for Mr Salim, his lack of interest in the connection between Mr Salim and Mr Phillips is not only surprising but strains credulity ... 

It is difficult to understand why he would provide a printout of part of LEPRA without knowing what charges Mr Phillips might be facing and without making any inquiries on that issue. 

It is also surprising that he would not have pointed out, at least in outline, the requirements which investigating police had to meet before being able to rely upon s.14 LEPRA."

For Fabian to be convicted the jury must have rejected the evidence of Parnell. Indeed, "it would have verged on the unreasonable for them not to have done so". 

Michael Fabian lost his appeal and his bail was revoked. 

His non-parole period of imprisonment will expire on January 30 next year and the balance of his term will expire on January 29, 2016. 

The Maj Gen mentioned that the defendant had a sore finger when he went inside, which would make it "more difficult to defend himself while in prison". 

Don't forget, if you're in strife with the law, call Parnell ... and don't forget to tell him what to do. 

See: Michael v R