Quick answer
"Is a lawyer allowed to follow a client's instructions to hide evidence?" Probably not. I discuss this in the final section of this answer.
About this specific case, the Crown did not prove beyond a reasonable doubt that the lawyer (Ken Murray) had intended to conceal the tapes permenantly or that he was aware of an obligation to disclose them prior to trial. As summarized by Austin Cooper, K.C.:
Justice Gravely held that the concealing of the tapes for 17 months until Bernardo’s trial had a tendency to obstruct the course of justice, and therefore the actus reus of the offence was proved. On the issue of whether Mr. Murray willfully intended to obstruct justice, because it was feasible that Mr. Murray could have used the tapes for the defence and may well have believed that he had no obligation to disclose the tapes until the trial, he found the necessary mens rea was not proved. Accordingly, he found him not guilty.
Deeper answer
I'll first attempt to explain the trial judge's reasons (R. v. Murray, 2000 CanLII 22378 (ON SC)). At the end, I answer your more general questions.
Facts
- February, 1993: Ken Murray was retained to defend Paul Bernardo on sexual assault charges; it was this charge for which Bernardo was already in custody at the time of the search of his home.
- April 30, 1993: The final search warrant of the Bernardo home expired.
- May 6, 1993: Ken Murray opened a letter from Bernardo that instructed the defence team to retrieve six 8mm videotapes. They located the tapes, removed them, and they committed to not tell anyone about the tapes.
- May 18, 1993: Bernardo was charged with two counts of first-degree murder and related offences. Murray's retainer was expanded to include defence of these charges. Bernardo authorized Murray to copy and review the videotapes and make use of them as appropriate in his defence.
- Two of the tapes contained evidence of sexual assault and death threats. Others contained evidence about the character and actions of a co-accused which Murray thought could be useful in Bernardo's defence.
- Early June 1993: Murray made a copy of the tapes and became fully aware of their contents.
- July 11 and 12, 1994: Bernardo told Murray he intended to deny ever having any contact with the victims that were on the tapes. He told Murray that the tapes were not to be used to contradict this position.
- July 24, 1994: After learning about DNA evidence and learning what the co-accused told police (all pointing to Bernardo being with the victims in the home), and after confirming that Bernardo insisted on maintaining his position that he had no contact with the victims and that the tapes were not to be used, Murray "felt obliged to terminate the solicitor-client relationship".
- August 25, 1994: After a period of discussion with John Rosen (a lawyer from another firm), Rosen agreed to take over the defence of the first-degree murder charges. Murray did not tell Rosen about the tapes. Murray would remain defence counsel on the sexual assault charges.
- August 27, 1994: Rosen and Murray met with Bernardo to explain the change in counsel on the murder charges.
- August 30, 1994: Bernardo directed Murray to not reveal any of his materials to "other counsel retained on my behalf for other offences that are currently before the Court... unless I specifically direct the release of such materials, in writing."
- Murray retained his own lawyer who further sought advice from the law society. The law society advised that (1) Murray remove himself as counsel for Bernardo on all matters; (2) Murray give the tapes to the judge in a sealed packet to be subect to court determination; and (3) to tell Bernardo of these steps as soon as possible.
- Rosen (the new defence counsel on the murder charges) became aware of these plans, learned that the tapes existed, and was concerned the tapes would be turned over without any input from him.
- September 21 and 22, 1994: After much discussion with Crown counsel, Rosen got instructions from Bernardo to turn over the tapes; the tapes were delivered to the Metropolitan Toronto Police and the Niagara Regional Police.
The charge
Ken Murray was charged with wilfully obstructing or attempting to obstruct the course of justice.
The law
The judge applied what is known as the "tendency test". He said:
Attempting to obstruct justice is construed as the doing of an act which has a tendency to pervert or obstruct the course of justice (the actus reus). "Wilfully" then constitutes the mens rea -- that is the act is done for the purpose of obstructing the course of justice
He noted:
The system functions within the broad principles of the presumption of innocence and the right to silence. The Crown must fully disclose its case. The defence has no reciprocal obligation.
Application of the law
Actus reus
In this case, the judge found that Murray had done the actus reus of the offence:
On the face of the evidence Murray's action in secreting the critical tapes had the tendency to obstruct the course of justice at several stages of the proceedings.
The tapes were put beyond the reach of the police who had unsuccessfully attempted to locate them. Secreting them had the tendency to obstruct the police in their duty to investigate the crimes of Bernardo and Homolka.
Further, there was no justification that negated the actus reus. This evidence on the tapes was not privilged; it was not communication between solicitor and client. The judge found that "once [Murray] had discovered the overwhelming significance of the critical tapes, Murray... was left with but three legally justifiable options":
(a) immediately turn over the tapes to the prosecution, either directly or anonymously;
(b) deposit them with the trial judge; or
(c) disclose their existence to the prosecution and prepare to do battle to retain them.
Mens rea
The Crown had to prove that Murray's intention was to obstruct the course of justice. The judge found that the Crown did not prove this element beyond a reasonable doubt. The judge found that Murray may have not intended to permanently suppress the tapes and that Murray may have believed he had no obligation to disclose the tapes prior to the trial. He had presented several theories regarding the potential usefulness of the tapes to the defence which would have required holding back the tapes for their tactical or "surprise" value. Also, the judge noted that the law in this area was confusing.1
While Murray made only a token effort to find out what his obligations were, had he done careful research he might have remained confused. The weight of legal opinion in Ontario is to the effect that lawyers may not conceal material physical evidence of crime, but how this rule applies to particular facts has been the subject of extensive discussion. Lawyers in the United States have been afflicted with the same dilemma. In the materials supplied to me by counsel, there is reference to at least 15 law journal discussions on the issue.
Ethical responsibility
Doesn't a lawyer have a responsibility not to defend a specific fact that they know is criminal?
No. But they do have an obligation to not lie to the court or to allow their client to lie to the court. This is why Murray knew he had to withdraw from the case when Bernardo was committed to the defence that he had never encountered the victims.
To answer your title question, "Is a lawyer allowed to follow instructions from his client to hide evidence?", the answer today is "probably not." It has even been suggested that if defence counsel is faced with this issue, they should instruct their client:
It is evidence that might convict you; if you give it to me, I may have to turn it over to the prosecution. Take it away and keep it in your residence; if you destroy it, you may be guilty of a crime.
The Law Society of Ontario's Rules of Professional Conduct now say (Rule 5.1-2A):
A lawyer shall not counsel or participate in the concealment, destruction or alteration of incriminating physical evidence or otherwise act so as to obstruct or attempt to obstruct the course of justice.
Any lawyer faced with this dilemma should probably do what Mr. Murray eventually did and retain their own lawyer and/or get advice from their law society.
1. While the maxim "ignorance of the law is no excuse" generally holds true, the mens rea of this offence includes an intention to obstruct justice. The judge understood this to invite an inquiry into what Murray believed the law required of him. This approach has been criticized: see Lucinda Vandervort, "Mistake of Law and Obstruction of Justice: A 'Bad Excuse'... Even for a Lawyer", 2001.
