Rockhampton solicitor Douglas Winning, otherwise known as Doug F***ing Winning, will be removed from the roll of lawyers after a QCAT decision.
At about 1.00 am on Sunday 17 February 2019, police were patrolling in Rockhampton when they saw a car driving erratically and knocking over a street sign. They pulled the car over and found the driver was local solicitor Douglas “call me Doug” Winning.
A true man of style, Winning was wearing only a pair of shorts. His vehicle had sustained damage on the bonnet and a front tyre. When asked that he had been drinking, Winning nominated the amount as “a bottle of rum”, explaining that he had had a sleep since finishing it. He was slurring his words. He twice said “You’re not going to pinch me”.
One of the officers said she was going to administer a roadside breath test. Winning was in the car holding his passport and $300 in cash, made up of six $50 notes. At the conclusion of the roadside breath test, Winning lifted his hands. He put his passport down on the seat beside him, and held up his right hand with the notes in it, saying: “Can’t pay my way out this, can I?”.
One police officer responded, “No. No, you definitely can’t pay your way out of this”. The other responded “No”.
After the officers’ responses, Winning folded the cash in his right hand and extended his right arm out of the car, and towards the officers, keeping it there for some time. He remained seated with his left hand on the steering wheel. He only withdrew the extended arm when he was told he was detained and to turn his car off.
Winning then said that “someone’s been threatening my daughter and that’s the only reason I’m drivin”. He was a told that he was detained for the purpose of a further breath test which would be done at the police station.
In the course of police telling Winning that the car would be secured, Winning said, “You gonna let me go. You’re not gonna lock me up, are ya?”.
As Winning was taken out of the vehicle, he told Senior Constable Parkin that he did not need to call him Mr Winning, but rather “call me Doug”. At that point, Winning still had the $300 cash in his hand. Then followed this exchange:
“Officer Parkin: Do you wanna put your cash in the car or do you wanna leave it on your possession?
Winning: I’ll leave it on my possession.
Officer Parkin: Ok. Alright.
Winning: You wa-, you wanna lazy quid?
Officer Parkin: No, no, no.
Winning: Give you a lazy quid
Officer Davies: No, no, no. Parkin: No, no, no. No, not at all. Come on, Winning, we’ll get you in the back of the car. Come on, sir, this way.”
Winning blew 0.191 per cent at the roadside breath test. Later, on the breath analysis machine at the police station, he recorded 0.146 per cent.
Winning was subsequently charged with drink driving and official corruption, arising out of his proffering $300 and asking if he could buy his way out of the situation, and asking whether the police wanted a lazy quid.
Winning was later interviewed by a Channel 9 journalist, and the interview, in which he claimed he was joking about bribing the officers and denied offering them money to withdraw any charges despite the police footage which recorded it on video.
Winning pleaded guilty to drink driving. After a trial, Winning was convicted of official corruption.
This was not the first time Douglas John Winning had found himself in trouble.
In 2008, he was publicly reprimanded after he inter alia made comments directed at the then Director of the Department of Prosecutions during the course of Magistrates Court proceedings:
“I take strong exception to this stupid woman, this Leanne Clare, putting this rubbish before a Court. I’m not a paedophile. I’m not a swimming coach. But my only avenue of redress is to come before these Courts.”
and
“she was involved in grubby little deals to protect paedophiles”
In 2015, he was again publicly reprimanded after he made comments directed at crown prosecutor in course of trial that were offensive, discourteous, provocative and/or compromised the integrity of the legal profession.
In 2019, the Court of Appeal found Winning had failed to follow his client’s instructions in a criminal trial, and found him to not be a credible witness, after noting “significant problems and implausibility plaguing Mr Winning’s evidence”.
In 2020, he was told off by a Supreme Court judge for sending an extremely discourteous email intended for a Prosecutor.
The Criminal Code
Section 87 of the Criminal Code 1899 relevantly provides that:
87 Official corruption
(1) Any person who—
(b) corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for, any person employed in the public service, or being the holder of any public office, or to, upon, or for, any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed or holding such office;
is guilty of a crime, and is liable to imprisonment for 7 years, and to be fined at the discretion of the court.
Section 28(2) of the Criminal Code relevantly provides that the provisions of section 27 of the Criminal Code that provide the defence of insanity:
“…do not apply to the case of a person who has, to any extent intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent.”
Section 28(3) of the Criminal Code relevantly provides that:
“When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.”
In R v Miller [2021] QCA 126 at [18], the Court of Appeal stated:
“An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.”
As is well known, before any appeal to the High Court can be dealt with on the merits, there is a need to apply for and then obtain the special leave of one or more High Court judges.
The oldest leading authority of the test for special leave is the decision of Griffiths CJ in Johansen v. City Mutual Life Assurance Society Ltd [1904] 12 C.L.R. 186, at p. 188, later quoted and applied in Wanstall v Burke [1925] St R Qd 295:
“The practice we have always laid down… [is] of not granting special leave to appeal unless we are of the opinion that the case is one of gravity, or involving some important questions of law, or affecting property of considerable value; or unless it is a case which is otherwise of public importance, or is of a very substantial character.”
Legal Profession Act 2007
Section 456 of the Legal Profession Act 2007 provides the Queensland Civil and Administrative Tribunal (QCAT) with a broad discretion on what sanction(s) to impose against a legal practitioner being found guilty of misconduct:
(1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.
(2) The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—
(a) an order recommending that the name of the Australian legal practitioner be removed from the local roll;
(b) an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period;
(d) an order that—
(i) imposes stated conditions on the practitioner’s practising certificate granted or to be issued under this Act; and
(ii) imposes the conditions for a stated period; and
(iii) specifies the time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed;
(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner;
(f) an order that no law practice in this jurisdiction may, for a period stated in the order of not more than 5 years—
(i) employ or continue to employ the practitioner in a law practice in this jurisdiction; or
(ii) employ or continue to employ the practitioner in this jurisdiction unless the conditions of employment are subject to conditions stated in the order.
(3) The tribunal may, under this subsection, make 1 or more of the following—
(a) an order recommending that the name of the Australian legal practitioner be removed under a corresponding law from an interstate roll;
(b) an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled under a corresponding law;
(c) an order recommending that an interstate practising certificate not be, under a corresponding law, granted to the practitioner until the end of a stated period;
(d) an order recommending—
(i) that stated conditions be imposed on the practitioner’s interstate practising certificate; and
(ii) that the conditions be imposed for a stated period; and
(iii) a stated time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed.
(4) The tribunal may, under this subsection, make 1 or more of the following—
(a) an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100,000;
(b) a compensation order;
(c) an order that the practitioner undertake and complete a stated course of further legal education;
(d) an order that, for a stated period, the practitioner engage in legal practice under supervision as stated in the order;
(e) an order that the practitioner do or refrain from doing something in connection with the practitioner engaging in legal practice;
(f) an order that the practitioner stop accepting instructions as a public notary in relation to notarial services;
(g) an order that engaging in legal practice by the practitioner is to be managed for a stated period in a stated way or subject to stated conditions;
(h) an order that engaging in legal practice by the practitioner is to be subject to periodic inspection by a person nominated by the relevant regulatory authority for a stated period;
(i) an order that the practitioner seek advice from a stated person in relation to the practitioner’s management of engaging in legal practice;
(j) an order that the practitioner must not apply for a local practising certificate for a stated period.
(5) To remove any doubt, it is declared that the tribunal may make any number of orders mentioned in any or all of subsections (2), (3) and (4).
The case law
The case law establishes the following principles:
– Disciplinary proceedings are not punitive, their purpose is protecting the public: Harvey v Law Society of New South Wales (1975) 49 ALJR 362 at 364, Re a Barrister and Solicitor (1979) 40 FLR 26, Re Maraj (A Legal Practitioner) (1995) 15 WAR 12, Re A Barrister and Solicitor (1979) 40 FLR 1, Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9, Attorney-General of the State of Queensland v Legal Services Commissioner v Shand [2018] QCA 66 at [52], although this involves elements of specific and general deterrence: Attorney-General of the State of Queensland v Legal Services Commissioner v Shand at [54]. As the Court of Appeal has noted, “regard should primarily be had to the protection of the public and the maintenance of proper professional standards”: Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149; [2008] QCA 301 at [122].
– Convictions for serious criminal offences do not necessarily result in a legal practitioner being removed from the roll: Ziems v The Prothonotary of The Supreme Court of N.S.W. (1957) 97 CLR 279.
– However, conduct of a serious nature can provide “instant demonstration of unfitness”: Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 per Kitto J at 298, Legal Services Commissioner v Meehan [2019] QCAT 17.
– The question is not whether the practitioner was unfit at the time of the misconduct, but whether they are presently unfit: Prothonotary v Del Castillo [2001] NSWCA 75 at [71], Legal Services Commissioner v Madden (No. 2) [2008] QCA 301 at [125], Legal Services Commissioner v Dempsey (No. 2) [2009] QLPT 23 at [3].
– The test to be applied when deciding whether to strike off is whether it is probable that a legal practitioner is permanently unfit to remain a lawyer: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 453 at [15]; Watts v Legal Services Commissioner [2016] QCA 224 at [46].
In the case of Harold Shand, the practitioner was convicted by a jury of making a corrupt payment of $60,000 to a Minister of the Crown named Nuttall, contrary to section 442BA of the Criminal Code (Qld). Shand had done so as a company director, and had previously declined an offer to assist prosecutors against Nuttall in return for being spared prosecution. Shand was sentenced to 15 months imprisonment to be suspended after serving 4 months. Years later, he was struck off on appeal.
In Barristers’ Board v Darveniza [2000] QCA 253, it was observed that:
“Generally speaking the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practices”
Winning appealed his conviction for official corruption. The grounds of appeal were:
(a) Ground 1 – a miscarriage of justice occurred because the learned trial judge failed to give a direction in terms of either Edwards v The Queen or Zoneff v The Queen as to the use of the lies in the Channel 9 interview;
(b) Ground 2 – the verdict was unreasonable and cannot be supported by the evidence; and
(c) Ground 3 – a miscarriage of justice occurred because the learned trial judge failed to give a direction in terms of Liberato v The Queen (1985) 158 CLR 507 as set out in De Silva v The Queen (2019) 268 CLR 57 about the use of the appellant’s statements in the Channel 9 interview.
The Court of Appeal rejected Winning’s complaints concerning the judge not taking directions to juries about lies told by an accused use or his statements in the Channel 9 interview, or that the verdict was unreasonable.
Morrison JA accepted that the following evidence instances of Winning’s inappropriate behaviour which no doubt would have enamored him to female jurors suggested that he was intoxicated:
(a) saying to the female police officer (Constable Davies) soon after being intercepted, “you look beautiful … darlin’”;
(b) when he was out of the car and saying, “call me Doug”, he put his right arm around Senior Constable Parkin’s shoulders; Senior Constable Parkin objected;
(c) referring to Constable Davies as “that beautiful young lady”;
(d) referring to Constable Davies as the “sheila in the front”, and “She’s fucking very tidy, isn’t she?”;
(e) when rebuked for saying so, responding “But she’s really tidy. I’m, not tryin’ to disparage her but she’s, she’s a, she’s not a bad sort”;
(f) referring to himself: “I’m the best criminal lawyer”, “the best criminal lawyer in Queensland” and “unquestionably the best … criminal lawyer in Queensland”;
(g) referring to Constable Davies, “Look at this fat gut. She wouldn’t want a husband like me, would ya?”;
(h) referring to Constable Davies: “She’s not a bad little sheila, is she? Fairly tidy”;
(i) referring again to Constable Davies, “you won’t have any trouble getting married, love, because you’re really tidy”;
(j) responding to a question about where he was headed when intercepted by police, by saying, “I was going down to my ex-wife’s place because someone’s been threatening my daughter, I was gonna kill the cunt”, and “I’m gonna fuckin kill this cunt”; and
(k) speaking to Constable Davies: “Geez, you wouldn’t wanna fuckin’ man like me love”
However, Morrison JA concluded that the video footage also would have revealed to the jury that Winning was not so intoxicated that he had forgotten who he was or what he did as a profession, nor was he unable to understand and follow the directions for the road side breath test; and that whilst he was unsteady on his feet he was not so intoxicated that he could not get out of the car by himself, into the police car by himself, and put on his seatbelt by himself.
As a result, the appeal was dismissed.
Despite Morrison JA’s detailed and cogent judgment, Winning subsequently sought to appeal to the High Court.
The full decision of Justices Stephen Gageler and S.H.P. Steward refusing leave to appeal was as follows:
1 The applicant seeks special leave to appeal from a unanimous decision of the Court of Appeal of the Supreme Court of Queensland (Morrison and Mullins JJA and Boddice J) to dismiss an appeal from the decision of the trial judge (Judge Chowdhury).
2 There is no reason to doubt the decision of the Court of Appeal. The application otherwise raises no question of principle of general importance and has insufficient prospects of success to warrant a grant of special leave.
3 Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application.
S.J. Gageler
S.H.P. Steward
16 March 2022
Burns J made findings of professional misconduct by Winning in respect of the official corruption conviction and his failure to follow his client’s instructions in a criminal trial. There was a finding of unsatisfactory professional conduct for Charge 3, which concerned the sending of an abovementioned email to the associate to Crow J.
Burns J concluded with the following:
“On all the evidence before it, the Tribunal is satisfied that the respondent is
permanently unfit to practise. Nothing less than a recommendation that his name be removed from the roll will be sufficient to protect the community and the reputation of the profession.”
Author adminPosted on Categories Professional discipline