On 3rd January 2012, in Sydney Australia, lawyer Michael Vo discussed his experience defending business and corporate crime clients.
With a Bachelor of Laws degree from the University of Technology Sydney, Mr Vo has spent the last several years solely in the lawyer's field of criminal defence. At interview, Suite101 asked Mr Vo the following questions, and his answers appear as below.
Federal Indictable Offences
Suite101: I understand that you have run a federal indictable matter where a bank manager was alleged to have stolen a very large sum of bank money. What aspects of this case have been the most challenging?
Vo: “A challenging aspect was overcoming the technical evidentiary issues that circumstantially incriminated the client. Before the client provided me a statement regarding their version of events, sound legal advice was provided based on:
- What our firm expected in the Crown Brief of Evidence; and
- Whether the allegations were supported by the BoE.”
He added: “Another challenging aspect was whether to accept a Crown plea bargain. When considering the plea bargain, the client was advised of:
- The maximum penalties available (including long-term jail sentences) for the charges if the plea bargain was accepted or rejected;
- Being compellable to give evidence against other co-conspirators if the plea bargain was accepted; and
- Determining the prospects of successfully defending the case.”
Directors and Trust Accounts
Suite101: Can you discuss the main issues in defending directors caught for stealing from their companies’ trust accounts. How do you deal with these senior people in these circumstances? Can you please give specific examples?
Vo: “The main issues in defending directors is best assessed when determining mitigating factors surrounding the directors’ actions.
When dealing with directors that are freshly appointed on the audit committee in a company, directors are obligated to undertake additional work. Additional work equates to added responsibility, and at times, without additional remuneration. This has resulted in directors overreaching their hand at the companies’ trust accounts to remunerate themselves, particularly in business models skewed in favour of management.
In these situations, people in senior roles are advised of the civil remedies available to the court, where orders can be made for damages or compensation and any restoration of the company’s property if traceable. This should be considered in light of section 184 of the Corporations Act 2001, encompassing quasi-criminal aspects.”
He added: “When dealing specifically with directors in these positions, directors are first proofed with issues arising from their:
- Compliance with the statutory duty of care and diligence;
- Exercise of powers and discharge of duties in good faith;
- Abuse of their role as director to gain an advantage for themselves or to cause detriment to the company; and
- Improper use of information to gain any advantage.
Such administrative action by the courts, such as being banned as director, can then be properly assessed.”
Directors and Common Law Crimes
Suite101: Can you discuss some of your matters where company directors had been charged with common law crimes or with drink-driving offences, in the Local Court?
Vo: “It isn’t unusual for company directors to be charged with common law offences. Each matter is dealt case by case. At times, aggravating features are offset by high character, deep remorse and extra-curial punishment. A recent example of aggravating features weighed against high character is best observed in the former Supreme Court Judge R. Howie’s drink driving conviction, where it was found he returned a breath analysis result over double the allowed limit, after having veered into oncoming traffic and colliding head on with another vehicle. Ironically, this was the same judge that delivered the guideline judgment on drink driving. The former Supreme Court Judge was sentence to 100 hours of community service and disqualified from driving for the minimum disqualification period of 6 months.”
He added: “This could be contrasted against a matter I appeared on behalf of a company director for drink driving. The allegations were not as colourful as the above; However, having regard to the director’s managerial duties and existing affiliations with the community, the client was not convicted. Other subjective factors the court also accounts for is impact on reputation and any effects a conviction may have on being a company director.”
The Judicial Commission Bench Book
Suite101: Where most lawyers specialising in crime go straight to the loose leaf service, I understand that you use the Judicial Commission Information System. What is the nature of this resource, and how does it affect your success rate?
Vo: “Working in an adversarial system requires lawyers to be constantly updated with the law. The Judicial Commission Information System is the legal database Magistrates and Judges from the Local Court through to the High Court bench utilise. It is updated daily. This Judicial Commission Information System has a “Bench Books” selection that covers a vast range legal issues that arise everyday in sentencing matters, criminal trials and administrative law.
The advantage of this service is when recent case law arises or legislative changes are made, they are alluded to in court almost the following day. Judicial officers recognise lawyers that are razor sharp with new changes to law. This gives me an edge on my opponents in an adversarial setting, and against competitors. Clients need to know their lawyer is constantly up to date with the law.
When I am able to anticipate what the Judges or Magistrates views are, my submissions can be succinctly tailored to suit the case, due to having access to JCIS. This is persuasive and influential when judicial officers are making decisions that determine liberty, thus constantly resulting in my success rate being in the range of 90-95 percent.”
Success Rates in Local Court Advocacy
Suite101: In your role as a Local Court Solicitor-Advocate, which Solicitor-Advocate Rules have you found most challenging? Which areas of the law of evidence are the most challenging in crime?
Vo: “Rule 33 of the Solicitor-Advocate Rules is the most challenging rule. This rule governs where clients plead not guilty and elect to defend their matter despite the client confessing their guilt. In this situation, written instructions from the client need to be carefully drafted in a way that allows flexibility, yet gives a sense of direction when you are ‘on-your-feet’ in court; instructions flexible enough to allow you to bend the rules (particularly with Browne v Dunn issues), yet gives you enough direction to navigate you out of grey patches whilst cross examining witnesses.”
He added: “The most challenging area of the law of evidence is unfavourable witnesses. Judicial officers are well accustomed to hearing fresh evidence in court that is totally contradictory to versions of events provided to the police when there has been a recent complaint. In this situation, the skill of the advocate is to successfully persuade judicial officers to accept the fresh evidence when weighed against the recent complaint. The challenge here is, the advocate in cross examination must also adapt to examining unfavourable witnesses in a non leading manner.”
Dealing with Federally Sensitive Crime
Suite101: Dealing with federal crime of a sensitive nature is the mark of dealing well with crime. Can you discuss your case of an accused stealing ATMs and sending money to terrorists? How have you found the required dealing with Federal officials?
Vo: “Clients I have represented have included people alleged to have funded terrorist organisations by transferring monies from stolen ATM’s. Multiple stakeholders such as the state police, federal police, Australian Security Intelligence Organisation, banks and crown lawyers are involved. When dealing with Federal officials, the issue of bail is always seriously considered. Federal officials gauge what risk alleged terrorists pose to the public, and in particular, what the real likelihood of alleged terrorists fleeing the country are. Issues regarding bail conditions are scrutinised. For example, any existing assets family members of alleged terrorists may have, are utilised as bail surety. Clients are always advised of any dangers that might arise when attracting unwanted attention to their assets.”
He added: “Other issues that arise are the reversal of onus of proof when applying for bail, treatment of people only being suspected of being terrorists, and special powers the Australian Federal Police have to question terrorism suspects without charge. Accused people can be detained without charge, for up to two weeks at a time.”
Source:
Personal Interview with Mr Michael Vo, Sydney Australia, 3 January 2012.
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