Unhelpful and unattractive display of appellant’s anus to Victoria appeal judges … Regrettable submission … Appeal denied … And, country lawyer keeps the phone on the hook … Unanswered correspondence … Unattended court appointments … Janek Drevikovsky reports
Craig Vitale, was appealing convictions for armed robbery and intentional wounding and though he initially had both a silk and a junior on side, he helpfully fired all his lawyers a year before his day in the appeal court.
He was thus unrepresented at his September 10 hearing, patching in by video link from Barwon Prison, where he is serving an 11-year sentence.
Things got off to a flying start. When the bench asked Mr Vitale what he had to say for himself, he replied that the court did not “give a fuck about [his] circumstances”.
Admonitions from on high proved useless, as justice of appeal Phillip Priest wrote:
“[Mr Vitale] continued to interrupt and loudly talk over the court, and proceeded to deliver a vituperative tirade, the central theme of which seemed to be that the court was treating him unfairly.
Having for a time tolerated the appellant’s invective the court indicated to the appellant that if he had nothing further to say in support of his case, the court would hear from the respondent’s counsel.”
What happened next was, as Justice Priest wrote, “regrettabl[e]”.
“… the appellant stood up from the table at which he had been seated, took down his trousers, bent over, exposed his buttocks to the camera and pulled his buttocks apart so as to expose his anus.”
Mr Vitale then spoke the following into the record of the Court:
“You just copped a anus [sic], if you want to talk to him again, let me know.”
This behaviour was “not very helpful”, as Gregory Hughan for the crown remarked.
Priest had more forceful words, calling Mr Vitale’s gesture “quite unattractive” and “calculated to display his contempt for the proceeding”.
After his baboon-like display, the appellant stormed out of the video room.
The appeal, which concerned inadmissible evidence, was decided on the papers, with Priest, David Beach and Terry Forrest all agreeing to dismiss Mr Vitale’s application.
“Mental block” was the reason a respected country solicitor failed to attend court the day his client was ordered out of the matrimonial home, the Yarraside Bureau de Spank has heard.
The lawyer, Sergio Guerra, maintained a clean disciplinary bill of health throughout his 44 years in practice – until he began ignoring correspondence, trial dates and court orders in two family law matters.
VCAT senior member Jonathan Smithers decided Guerra’s lapses amounted to professional misconduct.
Until recently, it was professional plaudits, not failings, that defined Guerra’s career.
In the 1990s, while a sole practitioner in the rural Victorian town of Donald, he represented a local farming family in a stoush with ANZ.
The bank won the case and repossessed the farmers’ property – but Mr Guerra’s pro bono work netted him a prize, presented by then-governor Sir James Gobbo.
The country solicitor’s fall from grace began in 2011, when he commenced to act in a dispute over the estate of a Mr Gilligan. Guerra’s client reached settlement with the other side and, in October 2013, a County Court judge ordered an even split.
But Guerra, who had control of Mr Gilligan’s estate, failed to pay the required amount into the court until nearly three years later.
This delay cost the beneficiaries about $10,600 in interest, which would have been earned had the money been under court management.
During that time, the other side’s lawyer, O’Brien Lawyers, tried again and again to contact Guerra, only to find that he was consistently slow in his replies – or did not reply at all.
Another family law matter was also the cause of trouble. An old friend convinced him to act for his son, a Mr Elkadi, in matrimonial property proceedings.
Guerra was unfamiliar with family law, an area in which he did not practise. The tribunal remarked that he “never fully engaged” in the Elkadi matter.
As a result, when the Federal Circuit Court took submissions on whether Elkadi should stay in the matrimonial home, Guerra neglected to attend.
The result was that Elkadi was booted from the property and ordered to pay $10,700 in indemnity costs.
In the 12 months following, VCAT again found he was neglecting his emails, responding late or not at all to Elkadi’s attempts to get in touch.
When the VLSC began investigating the poor fellow’s track record, he again stayed silent, ignoring requests for information, which amounted to a breach of the Legal Profession (Uniform Law).
Member Smithers found that these failings were either “substantial” unsatisfactory conduct or “consistent” unsatisfactory conduct, meaning Guerra was guilty of misconduct.
The lawyer agreed, pleading guilty to the charges. At the same time, he called a slew of character references in support.
Two colleagues, Gilbert Boffa and Vincent Juliano, said Guerra’s misconduct was partly down to a lack of “administrative support, since the sole practitioner seems to have worked entirely alone.
“[This] gave rise to something like a mental block in relation to these particular matters.”
Other referees sang Guerra’s praises, describing him as a “competent” lawyer motivated by his clients’ interests, rather than financial gain.
The member was therefore content to apply the VLSC’s proposed wrist-slap, to which Guerra agreed to.
Under the order, Guerra will practise under supervision until June 2021, at which time he will lose his ticket – presumably to coincide with a planned retirement.
He must also pay $10,600 to Gilligan’s children, representing the foregone interest on the estate, as well as the VLSC’s costs in the order of $10,000.
Finally, there was a fine of $1,000 for the solicitor’s failure to respond to the VLSC’s information requests.