Ardalich v Chief Executive, ATTORNEY-GENERAL'S DEPARTMENT
[2013] SASC 13
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ARDALICH v CHIEF EXECUTIVE, ATTORNEY-GENERAL'S DEPARTMENT
[2013] SASC 13
Judgment of The Honourable Justice David
8 February 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS
PROFESSIONS AND TRADES - LAWYERS - UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS - PREPARING DOCUMENTS
Appeal against conviction – appellant convicted of one count of practising the profession of the law not being either a local or an interstate legal practitioner and one count of holding himself out as entitled to practise the profession of the law not being either a local or an interstate legal practitioner, contrary to s 21(1) of the Legal Practitioners Act 1981 (SA) – the relevant conduct was the appellant’s role in the preparation of a trust deed for the two complainants – both complainants alleged that they paid the appellant a sum of money and signed a trust deed presented by the appellant having been led to believe that the appellant had prepared the document and that he was a semi-retired lawyer – the appellant’s defence was that he did not prepare the deed, but merely procured it from a solicitor and assisted with the signing and sealing of the document, and further, that both complainants were aware the appellant was a disqualified lawyer, having signed a document to this effect – whether it was properly open to the Magistrate to find both counts proven – whether it was properly open to the Magistrate to find two separate offences proven under s 21(1) from a single course of conduct.
Held: Appeal dismissed – following a careful and thorough assessment of the witnesses and surrounding circumstances, the Magistrate’s concerns about the appellant’s evidence were such that where there was a conflict between the appellant’s account and that of the complainants, the appellant’s account would be rejected – the Magistrate was entitled to reach such a conclusion based on his considered assessment of the evidence and it would be dangerous for an appellate judge to interfere – the reasonable possibility that the complainants signed a document which disclosed that the appellant was a disqualified lawyer is not fatal to count 2 when the evidence is considered as a whole – a single course of conduct may give rise to two separate offences under s 21(1) of the Legal Practitioners Act 1981 (SA).
Legal Practitioners Act 1981 (SA) s 21(1), s 21(2), s 21(4), s 21(5), referred to.
ARDALICH v CHIEF EXECUTIVE, ATTORNEY-GENERAL'S DEPARTMENT
[2013] SASC 13Magistrates Appeal: Criminal
DAVID J: The appellant is a former legal practitioner who was charged with two counts of breaching s 21(1) of the Legal Practitioners Act 1981 (SA) (“the Act”).
The first count alleged that he practised the profession of the law not being either a local legal practitioner or an interstate legal practitioner. The second count alleged that he held himself out as being entitled to practise the profession of the law not being either a local legal practitioner or an interstate legal practitioner. Both charges were alleged to have happened on the same day, namely 11 March 2009, and arose out of the same set of circumstances.
After a trial, the appellant was found guilty by a Special Magistrate of both counts. He now appeals against both findings.
Trial
I set out the particulars of the complaint and summons:
1. On or about 11 March 2009, at Netherby, in the State of South Australia, the defendant practised the profession of the law when the defendant was not a local legal practitioner or an interstate legal practitioner.
Contrary to s 21(1) Legal Practitioners Act 1981.
This is a summary offence.
Particulars
a. At all material times the defendant did not hold a practising certificate.
b. On or about 11 March 2009, the defendant prepared a trust deed for the “Darlyn Trust” on behalf of Rhonda DARROCH and Robert FILDES.
c. On or about 11 March 2009, the defendant met with Rhonda DARROCH and Robert FILDES and:
i.provided Rhonda DARROCH and Robert FILDES with a trust deed for the “Darlyn Trust”;
ii.advised as to the nature of a trust; and
iii.accepted payment of $3,000 from Robert FILDES as consideration for the defendant’s services.
2.On or about 11 March 2009, at Netherby, in the State of South Australia, the defendant held himself out as being entitled to practise the profession of the law when the defendant was not a local legal practitioner or an interstate legal practitioner.
Contrary to s 21(1) Legal Practitioners Act 1981.
This is a summary offence.
Particulars
a. At all material times the defendant did not hold a practising certificate.
b. On or about 11 March 2009, the defendant met with Rhonda DARROCH and Robert FILDES and:
i.provided Rhonda DARROCH and Robert FILDES with a trust deed the defendant had prepared for them to execute;
ii.advised as to the nature of a trust;
iii.made statements to the effect that the defendant was a retired lawyer and was still entitled to prepare trust deeds; and
iv.accepted payment of $3,000 from Robert FILDES as consideration for the defendant’s services.
I set out the more relevant parts of the legislation referred to at the trial and in argument before me.
21—Entitlement to practise
(1)A person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless—
(a) in the case of a natural person, the person—
(i)is a local legal practitioner; or
(ii)is an interstate legal practitioner; or
(b) in the case of a company, it holds a practising certificate issued and in force under this Act.
Maximum penalty: $10 000.
(2)Without limiting the generality of subsection (1), but subject to subsections (3) and (3a), a person practises the profession of the law, if acting for fee or reward on behalf of some other person he or she—
(a) prepares any will or other testamentary instrument; or
(b) prepares an instrument creating, transferring, assigning, modifying or extinguishing any estate or interest in real or personal property; or
(c) prepares any instrument relating to the formation of a body corporate, any amendment to the memorandum or articles of association, rules or regulations of a body corporate, any prospectus or take-over scheme relating to a body corporate, or any instrument affecting the rights of shareholders or debenture holders in a body corporate or any scheme of arrangement in respect of a body corporate; or
(d) prepares any other instrument creating, transferring, assigning, modifying or extinguishing any right, power or liability at law or in equity; or
(e) represents any party to proceedings in a court or tribunal.
…
(4)For the purposes of this Act—
(a) a person practises the profession of the law, or holds himself or herself out as entitled to practise the profession of the law, if the person does so personally, or through the agency or instrumentality of some other person;
(b) a person acts for fee or reward if the person acts for, or in expectation of, a pecuniary benefit or material advantage;
(ba) a person prepares an instrument if the person takes instructions for the preparation of such an instrument;
(c) a person represents a party to proceedings before a court or tribunal if the person—
(i)prepares, on behalf of that party, any legal process relating to the proceedings; or
(ii)takes instructions from or gives advice to that party in relation to the conduct of the proceedings; or
(iii)takes, on behalf of that party, any other step in the proceedings;
(d) an employed legal practitioner who provides legal advice, or legal services of a kind mentioned in subsection (2), for or on behalf of his or her employer or clients of his or her employer practises the profession of the law.
(5)In this section—
approved professional indemnity insurance means insurance—
(a) that has been approved by the Attorney-General; or
(b) that is of a class or kind that has been approved by the Attorney-General;
business means a business as defined by the Land and Business (Sale and Conveyancing) Act 1994;
loan instrument means a loan contract, mortgage, mortgage discharge, guarantee, or other instrument arising from, or incidental to, a loan transaction;
member in relation to an association whose members include another association includes a member of that other association;
tribunal includes a royal commission and an arbitrator who is a judge, special magistrate or legal practitioner.
By an agreed fact at trial it is undisputed that the appellant is a former legal practitioner who was registered on the Roll of Legal Practitioners in South Australia in December 1976. However, since 16 December 2005 he has been neither a local legal practitioner nor an interstate legal practitioner for the purposes of the Act.
The prosecution at trial relied basically upon the evidence of Ms Rhonda Darroch who, on the relevant date, was a disability support pensioner residing in a villa at the Moana Tourist Park. Ms Darroch was on a disability support pension and had been for the preceding 17 years because she suffered from Type 1 diabetes, arthritis and other ailments. She had been living in the Moana Tourist Park for five and a half years.
She gave evidence that in early 2009 she was approached by Mr Ashley Sandhu, who offered to provide her with advice as to investing in and developing a property. Whilst he was explaining to her the merits of being involved in such an investment she told him that a neighbour of hers, Mr Robert Fildes, might also be interested. The upshot of her evidence was that both she and Mr Fildes became attracted to the idea. Mr Sandhu took them to a site at Elizabeth Park and said he would help them invest in a property development at the site. In doing that, he asked for an upfront fee of $5,000 from each of them which was duly paid.
During the course of various discussions between Mr Sandhu, Ms Darroch and Mr Fildes, Mr Sandhu suggested that a trust deed be set up and used in connection with the proposed investment. Ms Darroch gave evidence that Mr Sandhu suggested that the appellant set up the trust. On her evidence, Mr Sandhu said that he had contacted the appellant and he was willing to set up the trust for $3,000. Mr Sandhu described the appellant as a lawyer who had previously done work for him and as a friend that he had known for approximately 24 years. At Mr Sandhu’s request, Ms Darroch and Mr Fildes settled upon a name for the trust: “Darlyn Trust”.
A meeting was then arranged for both Ms Darroch and Mr Fildes to go to the home of the appellant along with Mr Sandhu on 11 March 2009. She told the Court that when there, the appellant said that he was a lawyer who was semi‑retired, who worked from home and who could prepare trusts for people. She said he had with him copies of a trust deed which she signed, having been shown by the appellant the appropriate place to sign. She said she did not read the document and there was no explanation as to the contents of the document or its purpose.
She said that at one stage the appellant told her that the money from either the sale or rental of the proposed development in which they were going to be involved would go into the trust and the trust would pay a wage to her and Mr Fildes as needed. The appellant also told her that he normally charged $5,000 for the preparation of a trust but, because they were friends of Mr Sandhu’s, he would charge only $3,000. This amount was duly paid by Mr Fildes and Ms Darroch made arrangements to reimburse Mr Fildes for her half of this amount.
Ms Darroch gave further evidence that, as a result of what the appellant told her, she believed he was a semi-retired lawyer who worked from home and was able to prepare trusts. Nothing was said during the meeting which indicated that he was not a qualified lawyer or not entitled to prepare trusts. She said she did not sign any other documents at the meeting. She also said that if she knew he was not qualified, she would not have signed the trust documents.
Following the meeting in which Ms Darroch signed the trust, there was trouble with the project and it never came to fruition. She has since attempted to recover the $5,000 that she paid to Mr Sandhu, but has been unable to do so.
There was a series of letters between Ms Darroch and the appellant, the crux of which amounted to complaints by her that the appellant was not qualified to prepare the trust and responses by the appellant denying that he ever held himself out to be a practising lawyer (Exhibits P7 – P10). Attached to a letter sent by the appellant to Ms Darroch on 16 February 2010 (Exhibit P10) was a document headed “Understanding and Agreement” (Exhibit D1). That document purported to be signed by both investors, Ms Darroch and Mr Fildes, and was a clear statement by the appellant that he was not a qualified lawyer at the time of the meeting with both complainants. I set that document out in full:
Understanding and Agreement
We, Roberty Lynton Fildes of 2/44 Naskwauk Crescent Moana South Australia and RHONDA FAY DARROCH of 3/44 Nashwauk Crescent Moana South Australia
HEREBY AGREE AND UNDERSTAND as follows:
1.That I have appointed Alexander Ardarlich of 3 French Street Netherby SA 5062 as my business and tax consultant and agent to procure such legal documents as I may require from time to time and to procure the same from a third party source or lawyer.
2.I understand that the said Mr Ardalich is no longer practising as a lawyer and cannot do so as he has no practising certificate and that he has been struck off from the roll of practitioners.
3.I am not seeking legal advice from the said Mr Ardalich and he has told me that he is practising as a business consultant and he is giving me commercial, business and accounting advice about a number of business, taxation and investment opportunities, including but not limited to a disclosure statement for a franchise.
4.The said Mr Ardalich also told me clearly to seek legal advice from some other person who is a lawyer as regards all legal aspects of matters discussed with him.
5.I confirm that the said Mr Ardalich has provided me with commercial and tax advice/services and that he has not given or provided me with any legal service whatsoever.
6.All monies paid to the said Alexander Ardalich are in lieu of advice so provided and any documents procured by him from third parties or lawyers.
Dated this 11th day of March 2009
Signed by the abovenamed [RL FILDES]
[RF DARROCH]
Witnessed by [ASHLEY SANDHU]
Ms Darroch said in evidence that she never signed such a document nor does she agree with the assertions made in the body of the document.
Mr Fildes gave similar evidence to that of Ms Darroch in that he went to a meeting with the appellant and Mr Sandhu on 11 March 2009 at the appellant’s house. He said he believed that the appellant was a lawyer and there was nothing to indicate otherwise. Mr Fildes gave evidence that he paid $3,000 to the appellant in payment for his expertise in preparing the trust. When shown the document “Understanding and Agreement” dated 11 March 2009 (Exhibit D1), he said that the signature could not be his because he had never sighted that letter on that day and, if he knew the appellant was not a lawyer, he would not have gone ahead with allowing him to execute the trust documents. Mr Fildes said the $3,000 paid to the appellant was not for consultancy fees, as the appellant later said in his evidence, but was for work done to prepare the trust.
At trial the prosecution also called two investigators, Ms Jones and Mr Williamson, who gave evidence of their efforts to contact Mr Sandhu. Those efforts were unsuccessful and Mr Sandhu was not called by either side at trial.
The appellant gave evidence at trial and told the Magistrate that he was 61 years of age and had previously held a practising certificate as a lawyer, but had been struck off because of health problems. He told the Court that, in February or March of 2009, Mr Sandhu contacted him saying he had two clients who required a discretionary family trust. His evidence was that Mr Sandhu knew he was struck off but could procure a trust deed from a third party. The appellant said his friend Mr Craig Roberts, a solicitor, would prepare the trust deed for him.
The appellant gave evidence that on 11 March 2009 Mr Sandhu brought Ms Darroch and Mr Fildes to his home. He was already in possession of a trust deed that had been prepared by Mr Roberts. Mr Sandhu had previously given him the name of the trust, the settlor, the trustees, the appointor, the purpose of the trust and the commencement date of the trust, which he passed onto Mr Roberts to enable him to prepare the trust. On his evidence, the appellant assumed that the deed received from Mr Roberts was correct, checking only the schedules to see if certain particulars were present, before adding the seals to the trust and getting the two investors to sign in the appropriate places.
He also gave evidence that at the meeting he told both Ms Darroch and Mr Fildes that he had in fact been struck off as a solicitor and read out to them the Understanding and Agreement (Exhibit D1). He said they appeared unconcerned and proceeded to sign the agreement along with the trust deed. His evidence was that he explained during the meeting that he was no longer a practising lawyer but a consultant and that he would charge a flat consultancy fee of $3,000 which would cover ongoing building advice, tax and accounting advice and other services throughout the course of the proposed investment.
In the letters that the appellant sent to Ms Darroch in reply to her correspondence (Exhibits P8 and P10) the appellant used the word “prepared” when talking about what he did insofar as the trust deed was concerned. The appellant said in evidence that this was clumsy terminology and the term he meant to use was “procure” as, upon his evidence, the trust deed had been prepared by Mr Roberts and he merely procured it from him.
The appellant’s defence was that he never held himself out to be a qualified legal practitioner at the relevant time and that he did no legal work in relation to the matter before the Court but merely passed on work that had been done by a qualified solicitor, Mr Roberts.
The prosecution at trial also called Ms Bird, a forensic document examiner, who examined Exhibit D1 and said the signatures of Ms Darroch and Mr Fildes on comparison were such that she expressed “qualified support” for the proposition that they were authored by the same person as the sample signatures given by both complainants.
The final defence witness was Mr Roberts. He gave evidence that he was a solicitor and many years ago had been in practice with the appellant as his partner. Over the years he obtained a number of precedents from the appellant whilst in partnership, including one for a discretionary trust. When shown a copy of the trust deed (Exhibit P5), he believed it came from one such precedent still used in his office. He said he had never acted for either Ms Darroch or Mr Fildes, although the names were familiar. He said that on a few occasions the appellant had asked him to produce documents for him as a favour, which he had done without charge. He had no actual recollection of producing this document, but said that if it had come from his office, the appellant would have provided him with the details in relation to Ms Darroch and Mr Fildes. He believed the document was prepared in his office.
In short, Mr Roberts’ evidence was that, although he had no specific recollection of the event, he believed that he filled in a precedent for a discretionary trust, having been provided with the details by the appellant, using a precedent which he had in his office which was originally created by the appellant.
The Magistrate’s reasons
In relation to the evidence of Mr Roberts, the Magistrate could not exclude as a possibility that Mr Roberts, whom he considered an honest witness, was contacted by the appellant who provided him with details to fill in the trust deed and he did so without charge and without opening a file or regarding himself as acting for either Ms Darroch or Mr Fildes.
The Magistrate also found that the evidence of the expert, Ms Bird, led him to conclude that it was more likely than not that the signatures on Exhibit D1 are those of Ms Darroch and Mr Fildes. In relation to Ms Darroch, Mr Fildes and the appellant, the Magistrate made the following findings:
[39]I formed the view that Ms Darroch was doing her best to assist the court. She thought about questions put and did not present as someone trying to exaggerate. Clearly the passage of time has affected her ability to precisely recall what was said by the defendant at his home on 11 March 2009. She conceded as much. In spite of that I accept her evidence when she said that the defendant did not say he had been struck off as a lawyer. I accept that he said words to the effect that he was a retired lawyer working from home and able to prepare documents such as the trust deed. I also accept her evidence that the defendant did not say $3,000 was for commercial advice.
[40]I reject the suggestion that her evidence was affected by her desire to obtain compensation [or that] her health issues themselves meant she was unreliable. I accept her as a witness of truth. I will deal with Exhibit D1 later in these reasons.
[41]Mr Fildes also struck me as a person attempting to give an accurate account of events that occurred more than three years ago. He was not a person to exaggerate and acknowledged problems recalling precisely what the defendant said. I reject the suggestion that his health issues meant he was therefore unreliable. I accept him as a witness of truth.
[42]Unfortunately I cannot say the same about the defendant. In my view had he told Mr Fildes and Ms Darroch that he was a struck off lawyer unable to practise they would, even with the passage of time, have recalled this. While one might conclude Ms Darroch as a disability support pensioner was gullible in accepting Mr Sandhu’s investment opportunity I accept Mr Fildes’ evidence that had they been aware the defendant had been struck off they would not have used his services and Ms Darroch in particular would have run a mile. The defendant’s evidence that the $3,000 was for consulting work and the trust deed was free does not sit at all well with the other evidence namely; the two investors went to the defendant’s expecting to pay $3,000 for a trust. They went there, obtained the [trust deed] and parted with $3,000. Both told me there was no suggestion of an ongoing consultancy and I accept their evidence.
[43]I also find the defendant’s explanation that his repeated use of the word ‘prepared’ when he [meant] ‘procured’ in Exhibits P8 and P10 was clumsy unconvincing. He gave the same explanation for saying in exhibit P8 the $3,000 fee ‘not only included the preparation of the trust’. In my view he gave these answers in evidence in an attempt to distance himself from having prepared the deed or charged a fee for it.
[44]My concerns about the defendant’s evidence are such that where there is conflict between the defendant’s account and that of Ms Darroch and Mr Fildes I reject the defendant’s account.
As a result of his assessment of the witnesses, he came to the following conclusions:
[45]I am satisfied that both investors went to the defendant’s home believing from what Sandhu told them that they were meeting a lawyer who could assist with a trust deed. When they arrived the defendant showed them in and produced the trust deed and indicated where they should sign. I am satisfied beyond reasonable doubt that the defendant did not say that he had been struck off and could not provide legal advice or that the $3,000 was a consulting fee for commercial advice. I am satisfied beyond a reasonable doubt that he did say, in effect, that he was a lawyer or retired lawyer working from home and could prepare documents such as the trust deed. They obtained and signed the trust deed and paid $3,000. At the time they believed Sandhu was assisting them with the necessary project finance and building and sales advice. I am satisfied the defendant received the $3,000 and received it for the trust deed.
[46]I am satisfied neither investor knowingly signed the Understanding and Agreement Exhibit D1. I am satisfied either their signatures were forged on the document, which is unlikely given Ms Bird’s evidence, or the contents of the document were concealed from them at the time they signed; both signed a number of documents and neither read them carefully, or that the document was not in the form in which it now appears. Whatever the explanation I am satisfied the investors were not in any way trying to mislead me when they both said they did not sign the document. Whether they did or did not knowingly sign is an issue going to whether I should accept their evidence as to what the defendant did and did not say and I accept their evidence.
[47]In the course of closing submissions I heard extensive and helpful argument as to conduct that constitutes practising the profession of the law and the appropriate construction of penal statutes. I was referred to authority from other jurisdictions where consideration has been given to legislative prohibitions on practising the profession of the law without the appropriate qualifications. Ultimately I have not considered it necessary to refer to those decisions given the factual findings I have made and the wording of section 21 of the Act.
[48]Section 21(2)(b) of the Act provides that preparing an instrument creating, transferring, assigning, modifying or extinguishing any estate or interest in real or personal property if done for fee or reward on behalf of another person falls within the inclusive definition of practising the profession of the law. Section 21(4) provides that taking instructions for the preparation of such an instrument amounts to preparation of an instrument.
[49]On his own evidence the defendant took instructions from Mr Sandhu as to the names of the beneficiaries, what was wanted namely a discretionary trust, the settlor of the trust and the name of the trust, the date of its operation and the purpose of the trust. He then, accepting his account, contacted his former partner and friend asking him to in effect insert these particulars in the precedent trust deed he provided to his former partner years ago when they were in practice. Mr [Roberts] told me he may have done this and if he did it was a favour. He simply received the information entered it into the precedent and provided the complete document to the defendant. He did not charge but did it as a favour for a friend.
[50]In my view in taking the details from Mr Sandhu to be inserted in the trust deed the defendant was taking instructions for the preparation of the Darlyn Trust Deed an instrument falling within the provision of section 21(2)(b) of the Act. I have already concluded that he accepted payment of $3,000 for preparing the deed. Although he took instructions from Mr Sandhu it was clear from his own evidence that Mr Sandhu was providing them on behalf of the investors and the deed was prepared for them.
[51]Mr Armstrong submitted that the trust was never operative in the sense that it did not in fact create, transfer, assign, modify or extinguish any estate and therefore P5 was not an instrument of the type referred to in section 21(2)(b). In my view section 21(4) of the Act clearly encompasses the taking of instructions as part of the preparation of a relevant instrument and that conduct will constitute practising the profession of the law whether or not the deed comes into operation.
[52]I find count one proven.
[53]As I have already indicated I am satisfied that both investors went to the defendant’s home believing from what Sandhu told them that they were meeting a lawyer who could assist with a trust deed. When they arrived the defendant showed them in and produced the trust deed and indicated where they should sign. I am satisfied beyond reasonable doubt that the defendant did not say that he had been [struck] off and could not provide legal advice or that the $3,000 was a consulting fee for commercial advice. I am satisfied beyond reasonable doubt that he did say, in effect, that he was a lawyer or retired lawyer working from home and could prepare documents such as the trust deed. They obtained and signed the trust deed and paid $3,000. At the time they believed Sandhu was assisting them with the necessary project finance and building and sales advice. I am satisfied the defendant received the $3,000 and received it for the trust deed.
[54]In saying that, in effect, he was a lawyer or retired lawyer working from home and could prepare documents such as the trust deed and in providing the trust deed to the investors and showing them where to sign the defendant held himself as being entitled to practise the profession of the law in that he held himself out as being able to prepare a document of the type falling within section 21(2)(b) of the Act.
[55]I find count 2 proven.
Appeal
There are three grounds of appeal. I deal with them in turn.
Ground 1
Ground 1, as amended, is as follows:
1.The learned SM erred in finding the defendant guilty on both counts (and for that purpose accepting the evidence of the complainants in preference to that of the defendant) without first excluding as a reasonable possibility (which His Honour left open on his findings [J.46]) that the complainants were aware of the contents of Ex D1 on 11th March 2012 [sic] and before they executed the Trust deed, Ex P5.
1.1. The learned SM also erred in that coming to the above conclusion he must also be taken to have rejected the evidence of the defendant that he read aloud to the complainants the contents of Ex D1, when it was never suggested to the defendant that he had not done so, or that his evidence was, in that respect, not to be believed.
In his earnest and thorough submissions, Mr Wells QC, counsel for the appellant, argues that the Magistrate’s explanation for the existence of Exhibit D1 at trial is unsatisfactory. His argument is that the very existence of that document with the signatures of both complainants can only be consistent with the fact that at the meeting on 11 March 2009 both complainants either knew that the appellant was not a practising lawyer or, at the very least, even if they misunderstood the situation, the appellant certainly did not hold himself out to be a practising lawyer. Mr Wells argues that the failure of the Magistrate to give an explanation for the existence of Exhibit D1 is fatal to the prosecution case on count 2.
Despite the power of that submission, it is important to look at the Magistrate’s reasons as a whole. Although the Magistrate could not give a definitive explanation for the presence of Exhibit D1 consistent with the guilt of the appellant on count 2, after a careful and thorough assessment of the witnesses, the Magistrate came to the conclusion on the oral evidence of the complainants that they were reliable and telling the truth and the appellant was untruthful on the relevant topic of whether he held himself out to be a lawyer. The Magistrate clearly stated at [44] that his concerns about the appellant’s evidence were such that where there was a conflict between the appellant’s account and that of the complainants, the appellant’s account would be rejected. Exhibit D1 was a factor to be taken into account in assessing the question of whether the appellant held himself out to be a lawyer, but was not, of itself, the only evidence to be borne in mind.
The present case is one where it would be dangerous for an appellate judge to interfere with the careful and thorough assessment of the witnesses and the surrounding circumstances by the trial Magistrate. I can find no error has occurred in those assessments.
Ground 2
Ground 2, as amended, is as follows:
2.The learned SM erred in finding the defendant guilty on both counts without first excluding as a reasonable possibility (which His Honour left open on his findings, or made the subject of findings) evidence inconsistent with guilty, including evidence:
2.1. That Sandhu acted as agent for the complainants in collecting and providing to the defendant, for transmission to the solicitor Roberts, details for inclusion in the Trust Deed;
2.2. That Sandhu, in his capacity as agent for the complainants, knew that the defendant was not permitted to act as a lawyer and could not prepare the Trust Deed himself, but that he could procure the solicitor Roberts to prepare it;
2.3. That the defendant did not in fact prepare the Trust Deed, but procedure the solicitor Roberts to prepare it, in which the defendant took no part other than to pass on to him the details provided to him by Sandhu;
2.4. That the defendant did not in fact give advice as to the nature of a trust.
Further, or alternatively, that the defendant held an honest and reasonable belief in facts, which if true, would have rendered his conduct innocent; namely, that the complainants knew that he was not permitted to act as a lawyer.
The gravamen of Mr Wells’ argument is that the explanation that the appellant gave in evidence as to his role in the “preparation” of the trust deed should be accepted as a reasonable possibility where it does not conflict with the evidence of Ms Darroch and Mr Fildes.
As I understand Mr Wells’ argument, the Magistrate should have dealt with the matter in relation to count 1 on the basis that the relevant conduct of the appellant did not amount to practising the profession of the law. Mr Wells conceded that, pursuant to s 21(2)(b) and (2)(d) of the Act, if what the appellant did was part of the preparation of the trust deed, that would, by definition, amount to an example of a person practising the profession of the law. However, Mr Wells argues that on the appellant’s evidence the appellant did not prepare the trust deed, but merely procured it from the solicitor Mr Roberts who prepared it and that the appellant did nothing more than act as a conduit pipe in passing on to Mr Roberts the details that were provided to him by Mr Sandhu. He submits that the appellant’s evidence on this topic should be accepted as, at the very least, establishing that it was reasonably possible that the appellant did not prepare the trust deed.
Once again, looking at the behaviour of the appellant as a whole, the argument must fail. I find Mr Roberts merely facilitated the actions of the appellant. The appellant, through Mr Sandhu, obtained the instructions to create the trust deed, saw the complainants and, on their evidence, was open to answering any questions that the complainants had at the time. Mr Roberts’ role was merely to provide a precedent and have it completed according to the details provided by the appellant. For all of that, the appellant received the generous amount of $3,000 and Mr Roberts received nothing.
I find that the learned Magistrate was correct and that the appellant prepared the instrument pursuant to s 21(2)(b) or (d) of the Act and such preparation was only facilitated by Mr Roberts. For that, the appellant was handsomely recompensed.
Pursuant to the findings of the Magistrate that where the evidence of the complainants conflicts with that of the appellant, the appellant’s account is to be rejected, there was no evidential basis to find that the appellant held an honest belief on reasonable grounds in a sense that would have rendered his conduct innocent. He makes no such claim. His evidence was that he made it clear that he was not qualified to prepare the document.
Ground 3
Ground 3, as amended, is as follows:
3.The learned SM erred in convicting the defendant on both counts. Only one offence could be committed on the facts alleged in the complaint. Further, or alternatively, if it was open to the learned SM to record a conviction on either count (which is disputed), he should have stayed or dismissed the other count.
I reject the argument that the two offences set out in s 21(1) of the Act, namely to wrongly practise the profession of the law or to wrongly hold oneself out as being entitled to practise the profession of the law, are unnecessary alternatives and a person cannot be charged with both in relation to the one set of facts.
There must be many situations where the two merge into each other and where it is more appropriate to charge one offence rather than two. However, there could be situations where a person holds himself out as being entitled to practise but does not in fact practise the profession of the law and vice versa.
If the two offences are so closely aligned as to amount to one course of conduct that would, of course be reflected in the penalty.
I dismiss that ground of appeal.
Conclusion
In relation to both counts I dismiss the appeal.
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