Connolly v Law Society of New South Wales

[2000] NSWADT 82

CITATION:	Connolly -v- Law Society of New South Wales [2000] NSWADT 82
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Leslie Connolly RESPONDENT Council of the Law Society of New South Wales
FILE NUMBER:	992039
HEARING DATES:	21/03/2000, 22/03/2000
SUBMISSIONS CLOSED:	04/17/2000
DATE OF DECISION:	06/26/2000
BEFORE:	Martin A - Judicial Member; Goodman N - Judicial Member; Mara A - Member
APPLICATION:	Approval to employ a person convicted of an indictable offence (s.48K)
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Michael John Charles Caiger [1L PDR (1994) 32] Simpson unreported LPDT 8 November 1992 In the matter of Frank Del Castillo to be admitted as a legal practitioner No. 6120/98 (1999) 136 ACTR 1 Del CE Ex parte Boyland; Re Rule 19 of The Solicitor's Practice Rules (1962) 80 NSW(WN) 943 Dezarnauld and Wawn (11970/95 unreported) Herat & Peet v Law Society of NSW [2000] NSWADT 2 Edmonds [2000] NSWADT 29 Law Society of NSW v Bannister [1993] 4 LPDR 24 Briginshaw v Briginshaw 60 CRL 336
REPRESENTATION:	APPLICANT S Hodges, solicitor RESPONDENT L Pierotti, solicitor
ORDERS:	1. Pursuant to s.48K(2) of the Legal Profession Act, 1987, the Tribunal approves the employment of the applicant Leslie Connolly a person convicted of an indictable offence with Stephen Hodges, solicitor.; 2. That employment is subject to the following conditions:; (a) Employed primarily to research case law and legislation, including preparation of reports appropriate to trial defence matters.; (b) The applicant is not to attend Court in any capacity connected to Mr Hodges' practice until after the expiration period of his parole period being 12/2002.; (c) The applicant is not to take the first instructions from any client of Mr Hodges in the absence of Mr Hodges.; (d) The applicant is only to see clients of Mr Hodges under supervision and direction of Mr Hodges.; (e) The applicant is to comply in all respects with the requirements of his parole.; (f) The applicant is not to handle or deal with the money of clients or the money of his employer.; (g) The applicant is not to handle or deal with trust money of clients; (h) No order for costs pertaining to this application under s.48K.

1 This is an application pursuant to s.48K of the Legal Profession Act, 1987 by Leslie Connolly a person convicted of an indictable offence to allow him to be employed by Stephen Hodges, solicitor of Macquarie Street, Sydney.

2 Mr Connolly brought this Application in his own name. The representative of the Law Society and Mr Hodges solicitor for the applicant agreed that the correct applicant, was the person convicted of an indictable offence (Iverson No.30 of 1995 unreported; In the matter of Stephen Wayne Beaufils 1 LDR (1998) 1).

3 The relevant statutory provision provides:

s.48K(1) It is professional misconduct if a barrister or solicitor has an associate whom the barrister or solicitor knows to be:
a) A disqualified person; or
b) A person who has been convicted of an indictable offence …..
(2) Subsection (1) does not apply to an associate approved by:
a) ……
b) ……
c) in the case of a person who has been convicted of an indictable offence The Tribunal; or
d) ……
(3) ……..
(4) An approval under this section may be subject to specified limitations or conditions.
(5) ……
(6) ……
(7) In this section:
"associate" of a solicitor or barrister means:
(a) ……
(b) ……
(c) A person who is employed or paid in connection with the barrister's or solicitor's practice.
Leslie Connolly

4 Mr Connolly filed an application by a person convicted of an indictable offence for approval under s.48K(2) Legal Profession At 1987 on 1 November 1999, supported by his affidavit dated 1 November 1999, together with an affidavit of Stephen Hodges sworn on 27 November 1999, the proposed employer. A second affidavit was filed by the applicant on 9 March 2000.

5 Mr Connolly was born on 1 November 1954 and is now 44. His affidavit at paragraph 4 re cites his convictions for indictable offences:

1970 Break Enter and Steal.
1971 Cheat and Defraud.
1975 Break Enter and Steal.
1977 Conspiracy to Cheat and Defraud.
1996 Conspiracy to commit armed robbery.

6 Paragraph 5 of the affidavit of 1 November 1999 discloses that Mr Connolly spent time in prison during the periods:

1975
1977 - 1981
1993 - 1994
9/95 to 6/99
and admits he is currently on parole to 12/2002.

7 The affidavit of Mr Connolly refers in paragraphs 14, 15, 16, 17, 19 and 20 of his development of skills in legal research, law library maintenance, knowledge of legal forms and acting as a "Para-legal" assisting solicitors to take instructions and personal histories from co-prisoners whilst in jail and assisting inmates in respect to understanding the charges against them and completing legal forms.

8 In paragraph 24 of the Affidavit, the applicant swears:-

”I understand and appreciate the need for integrity in working in the legal profession and ensuring that neither the profession, myself or Mr Hodges are compromised or brought to question in any respect."

9 In paragraph 27 of the Affidavit the applicant swears:

"….. I am prepared to work in a way that would neither bring myself, Mr Hodges and the legal profession into disrepute."

10 Further, paragraph 26 of the Affidavit swears the proposed employment with Mr Hodges would be in the community interest and allow rehabilitation.

11 It is on this material the applicant asks The Tribunal to exercise its discretion and grant approval for the proposed employment.

12 Mr Connolly's application is unique. The applicant's affidavit of 1 November 1999 is prima facie defective as it lacks:

• Acknowledgment and understanding of the wrongness of his crimes and showing remorse and contrition.
• Frankness and candour in disclosing his criminal history in full and work history to date.
• Disclosure of his medical history and substance addiction.
• Showing that he has now taken a sincere path to rehabilitation.

13 Mr Connolly was cross-examined by The Law Society representative which has a duty to protect the public interest (Matter of Michael John Charles Caiger 8 November 1993; Simpson unreported LPDT 8 November 1992) extensively on his failure to be full and frank in disclosing his criminal history and in particular acquittals and "other matters taken into account on Form 2 in sentencing".

14 The Tribunal is of the view that the applicant has a duty to be both full and frank is disclosing the full extent of his criminal, and work history, substance abuse and rehabilitation.

15 The applicant Mr Connolly's explanation of his failure to be full and frank is that he obtained a copy of the "Administrative Decisions Tribunal Rules (Transitional) Regulations 1998 (Administrative Decisions Tribunal Interim Rules, 1998) "and followed what was required in "Subsection 2: Applications for approval to be associate" as a legal practitioner:

s.36(1) a person who has been convicted of an indictable offence and who seeks approval of The Tribunal under s.48K(2) ….. must lodge with the Tribunal:
a) an application………. ………
b) an affidavit by the applicant containing particulars of the relevant offence and conviction an explanation of the circumstances in which the approval is required and the grounds on which the applicant relies to justify the grant of the approval sought."

16 The Law Society's representative cross-examined on the applicant's failure (p.31 of the Transcript) to disclose acquittals:

Q: Mr Connolly don't you believe that it was important that you disclose all of the matters to The Tribunal rather than today?

A: Well, I don't think it is a matter that I wasn't disclosing them….. what I did when I prepared my original affidavit I thought what I had to disclose in the affidavit was the relevant conviction relating to this application, that is convictions of an indictable offence…. It was never my intention as I set out in my affidavit of 9 March not to disclose the matters. Initially I didn't think that they had any relevance to this application. That is initially. I didn't understand that this Tribunal and The Law Society would want to go into my entire record and entire life. I didn't have an appreciation of that at the time when I swore the first affidavit. So it was not a matter that I was never not intending to disclose. It was just a matter that I never thought initially was relevant to the application."

at p.32 Mr Connolly was asked:
Q: What does your research reveal about the need for the applicant to disclose matters to The Tribunal?

A: The research that I undertook. I found no cases where the matters of acquittals were raised…..
and again at the bottom of pp.33/4.
Q. ……..

A. …… when I made the initial application on 1 November 1999 I was unsure precisely what was required, other than what I had read in the Interim Rulings and that indicated to me that I had to get out in an affidavit the relevant convictions for indictable offences;

and again at p.40 he was asked:
Q. That in November 1999 you knew how much you really had to disclose?

A. I didn't understand when I filed the initial affidavit, as I said, that I would have to disclose my entire criminal record…… I didn't think that it was a matter for anyone else other than disclosing indictable offences but when I filed the affidavit, as I said, I always knew there would be a time where I would give evidence and I would be subject to cross-examination

and at page 43, he said in answer to another question:
Q. I always believed that my convictions would come out at the hearing before the Tribunal but in the original application I was unsure as to what I should put in the affidavit other than indictable offences….."
and at p.45
"…….. that is I was unsure whether acquittals were relevant in any way to the decision that The Tribunal had to make at the time of filing the original affidavit……."
It was put to Mr Connolly again at p.49:
Q. And wouldn't you agree with me that you have provided piecemeal………. Is not full and frank.

A: ………. It was always my intention that what come out at the hearing would be a full disclosure. I had nothing to guide me other than what I found in the Interim Rules and that was relevant convictions of indictable offences, words to that effect…..

and later on the same page to another question:
A. "…… as I said, I didn't understand what was required of me, other than what was in the Interim Rules…."

17 The applicant was unshaken in his evidence that he took the Rules literally, at face value that only indictable matters had to be disclosed.

18 The Tribunal is satisfied with this explanation for "lack of candour and frankness".

19 The Tribunal observes that even legally trained persons have fallen into the trap of failing to disclose acquittals e.g. In the matter of Frank Del Castillo to be admitted as a legal practitioner No. 6120/98 (1999) 136 ACTR 1 Del CE where that applicant received advice from a senior law lecturer and barrister and from his own solicitor on record, that only criminal matters resulting in convictions should be disclosed.

20 In that case the applicant had been charged with murder and acquitted. He failed to disclose that fact. The Court noting Ruling 15 of the ACT Rules, that there was a duty of frankness.

21 This Tribunal accepts the applicant's explanation and observes that the applicant has disclosed in his first affidavit that he had an extensive criminal history. Mr Hodges, the prospective employer, gave similar evidence to the applicant, he said in response to the Law Society question:

Q. "Connolly, convicted of things other than in the initial affidavit, shouldn't you have told it entirely?

Hodges: A. "We read the Interim Rules, assume they mean what they say and state requirements and we complied with that, until we got Judgments from the Registry, we couldn't find anything at that time and so relied upon Interim Rules and when we got Judgments from the Registry of Lake, Beaufils and Peet and a couple of those - none of those talk about duty to be open and frank. They talk about the criteria The Tribunal applies. The only case that talks about open, frank disclosure is Del Castillo [1999] FCA 626 and at ([1999] 136 ACTR 1) from your office Mr Pierotti ….. The Interim Rules reflected the obligation on the applicant."

22 The Legal Profession Act envisages the possibility of employment of a person convicted of indictable offences in the exercise of The Tribunal's discretion.

23 However this discretion is to be exercised sparingly and with utmost circumspection in respect to persons convicted of indictable offences and not previously connected with the law and who is a virtual newcomer to it. Ex parte Boyland; Re Rule 19 of The Solicitor's Practice Rules (1962) 80 NSW(WN) 943, Sugarman, Else-Mitchell and Wallace JJ.

24 Whilst Mr Connolly has no formal legal or professional training, and has only self taught skills in law library maintenance and research, and in appearing for himself he is certainly no "newcomer" to involvement with the criminal law.

25 The discretion given to The Tribunal is entirely general, there is no attempt by the legislature to circumscribe it or impose a particular threshold test which must be applied.

26 Spender J. in the Supreme Court in Dezarnauld and Wawn (11970/95 unreported) provides some guidance:

"19(d) There are three levels of associateship. This is important as it is apparent that the legislature had clearly in mind that a person who might be appropriate to one level of associateship might not be appropriately permitted to occupy another level of associate ship.

(e) There are obvious public interests which are to be served and which must be taken into account of. These interests include:

(i) protection of the public;
(ii) standing of the legal profession and the standards required of it;
(iii) affording those who are disqualified, or have been found guilty of indictable offences the chance of rehabilitation or getting paid work in the profession.
(f) Whilst the standing of the profession in the public eye is of great importance, the need to maintain the integrity of the profession is of equal importance, as has been emphasised time and time again by the Courts ( Law Society of NSW v Bannister [1993] 4 LPDR 24 ) and must be taken account of, it is necessary to bear in mind that an associate is not a legal practitioner and depending on the particular level of associate ship, may be in a position which is really no more than that of a clerk to, or employee of a legal firm. One does not, as it were, translate the requirements demanded of practising members of the profession, or of those who are applying for admission to the profession, to those who are applying to become associates. This is of course perfectly plain as The Statute is dealing with situations where a person has been disqualified from legal practice or may never have been qualified but would otherwise be debarred from acting as an associate because of conviction for an indictable offence… ".

27 The decision in Dezarnauld's case, drew together the common threads pointing to the exercise of the Tribunal's discretion in s.48, from Michael John Charles Caiger [1L PDR (1994) 32]. Mr Caiger was convicted of 40 counts of forgery, altering cheques and placed on a good behaviour bond for three years. The Tribunal said:

"The common themes throughout all of those cases are the principles of:
1. The protective and not punitive function of the Court and the Tribunal.
2. The deterrent aspect of such function.
3. The maintenance in the interest of the public and the profession of the high standard of honesty of solicitors, and
4. The public interest in maintaining public confidence in the law and the legal profession."
"The Tribunal supports and seeks to apply these principles. Anything which places or is indeed likely to place any member of the public in a situation of risk must be avoided. The need to protect the public falls squarely on the shoulders of all practitioners and through them this includes their employees. This is a heavy and onerous responsibility cast upon each practitioner and any proposed employer supporting an application of this nature is charged with a responsibility to ensure actively that if such an application is granted the public is put to no risk whatsoever.

This particular limb of consideration is consistent with the duties of the Tribunal in exercising its discretion under the section. The Tribunal has to make a calculated assessment as to the probability of such risk occurring or not occurring. Indeed the Tribunal is of the view that it has to be satisfied to a degree beyond the test of satisfaction on the balance of probabilities and into being comfortably satisfied pursuant to the principles of Briginshaw v Briginshaw 60 CRL 336."

The Tribunal's view is that the burden of proving comfortable satisfaction lies with the applicant and the prospective employer.

The section gives the Tribunal discretion and it is not necessarily bound by the strict doctrine of precedent concerning applications disclosing similar facts. Each application must still be determined on its own merits.

28 The applicant Mr Connolly, brings to this Tribunal no eminent legal or leading community members with knowledge of the convictions and acquittals and matters take into account to renew their support for him. Indeed the best, if not the only thing that he can do is to attach to his first affidavit, "reference from R. Finnigan dated 2.3.96, extract from "Winner Outstanding Programs", written for other purposes and therefore of little probative value. The only evidence with weight Mr Connolly brings is Exhibit D being a letter dated 8 March 2000 addressed to this Tribunal from John Stratton, Public Defender.

29 Mr Stratton's letter of 8 March 2000 refers specially to this Application and the proposed work as a "research assistant" to Mr Hodges, solicitor. Mr Stratton first met Mr Connolly in 1982 as a client and being fully aware of all his criminal history supports the Application.

30 Mr Stratton gave evidence on 22 March 2000 before this Tribunal where he was cross-examined as to his understanding of the application before this Tribunal. Clearly, Mr Stratton was unaware of the breadth of the employment proposed which is summarised as:

a) research;
b) take notes, undertake clerical/secretarial duties in the office as directed;
c) when required, take notes in Court;
d) when required, take notes from interviews with clients or at conferences.

31 Mr Stratton was asked whether he had difficultly with Mr Connolly attending to items a) - d). He replied, "No". The applicant was described by Mr Stratton in his letter of 8 March 2000 as a "compassionate and caring person."

32 It would be a bold step for this Tribunal to exercise its discretion in favour of the applicant on this evidence alone.

33 The applicant has a thirty year criminal history of which approximately 14.5 years was spent in jail.

34 There is no prior employment history, save for four years after leaving school as an apprentice baker, a few odd jobs labouring, some time worked in a nursing home on the Central Coast and work as a boat salesman in Queensland under an assumed name in about 1992 for two years. The balance of the time the applicant has been in jail or unemployed.

35 Further, against the applicant is the lack of "deep remorse and contrition" which is painted as so necessary in other cases, Dezarnauld (11970/95, Supreme Court Spender J. unreported). A factor in favour of the applicant is that he presented as a truthful witness, he made admission of his acquittal and the "matters take into account in sentencing". The test of "deep remorse and contrition" bear too heavy an onus on a person convicted of indictable offences - having served the punishment imposed, he should now be entitled to move on: Herat & Peet v Law Society of NSW [2000] NSWADT 2 (6 January 2000): in that case the offences were 15 years old and 5 matters in addition were taken into account on a schedule at the time of sentence by Gallen, J in 1989. In the case of Herat there was no evidence of contrition or remorse or acknowledgment of the wrongness of his crimes. Indeed the applicant did not give evidence, nor did he enter the Tribunal hearing room.

36 Mr Connolly said in his second affidavit of 9 March 2000.

"10. "I do recognise the circumstances that led to my offending behaviour. I regret my behaviour, I am remorseful and ashamed to have such a history. Much of my offending behaviour has been drug related….."

37 The Tribunal notes that the affidavit of 9 March 2000 was prepared and served after receipt of the Law Society submissions raising this and other issues.

38 The Law Society's representative did not cross-examine on paragraph 10, and the contents of paragraph 10 stand unchallenged.

39 In determining the exercise of its discretion, some of the factors to be considered are the applicant's age and possibility of employment. The applicant's evidence is that since release from jail in about June 1999 he has not been able to obtain employment as a labourer or bar assistant. This is not surprising given his lack of education, training and stable employment history (see Caiger 32DR No. 194 unable to obtain work due to criminal conviction and age).

40 At p.74 of the transcript the applicant discloses that the Department of Social Security has now has placed him on an Intensive Employment Assistance Programme because it has recognised that he was a "special category unemployed person" due to his background.

41 Employment with Mr Hodges, is at least an offer of employment. In exercising its discretion the Tribunal must weigh the personal interest of Mr Hodges in employing the applicant for "perceived special knowledge and skill and rapport with other inmates" and the interest of the applicant in securing the employment and the wider interests of:

• public interest;
• standing of the legal profession;
• chance of rehabilitation.

42 Older cases such as (Re Clayton (1961) Evatt, Herron and Collins JJ) gave little weight to rehabilitation. In that case leave to employ as a clerk was refused after the Law Society's strong opposition to employment as expressed by senior counsel on their behalf. In that case, the application was to employ Mr Cowley Cooper who admitted convictions in 3.8.39 to fraudulent misappropriation; 6.8.41 breach of the National Security (General) Regulations; 28.9.42 prepared legal documents for a fee when not qualified to be a solicitor and similarly on 4.7.56; 15.11.56 acting as auctioneer without a licence. The application to work was refused after the Court considered not only the 1939 indictable offence but the whole picture of ethical fitness of Mr Cowley Cooper.

43 This Tribunal acknowledges and appreciates the Law Society's concerns in this matter and would be remiss in their duty if they did not draw to the Tribunal's attention, the defects in this Application and the evidence in its support. Much of the very relevant material has only been elicited before this Tribunal in cross-examination.

44 Any application under s.48K is not only about Mr Connolly's criminal history in the past, it is about the future and how his proposed employment would impact on:

• the public interest and its protection;
• standing of the legal profession;
• chance of rehabilitation.

45 Firstly the "public interest, and the protection of the public" can be safeguarded by the nature of any Orders made which restriction limit the scope of Mr Connolly's employment activities.

46 The "public interest" is also in rehabilitation of the applicant and his return to the community and employment. So much was recognised by Acting Justice Spender at p10-11 of the Dezarnauld judgment.

"He is a talented man and it is a pity those talents cannot be put to some use. He has reached the stage of life when work opportunities outside of his profession are sparse or non-existent. It is not socially useful to confine a human being to a state of virtual unemployability when he would have the recourse only to the social welfare system. This is not good for society, nor for the individual….."

47 The public interest does not in this case extend beyond that and beyond the maintenance of public confidence in the law or the legal profession. The question is really will the public be put at risk if the Application is granted is terms and conditions

48 The interest and standing of the legal profession encompasses other considerations.

49 It is the prospective employer in supporting such an application on which a heavy and onerous responsibility is cast, to ensure that the public and the profession's standing is not put at risk.

50 Mr Hodges submitted that (p.145)

"It is my duty, obligation because I am a member of the profession as well as I value my integrity and achievements all of these things are placed at risk by Connolly. I accept potentially by Mr Connolly. I chose to take him on. I have made a value judgment. He came to me as a stranger ….. I have made a judgment as to his skills and his qualities. I have chosen to employ him ……. There is a greater risk potentially to the public, in my submission that the role which I have to adopt and I acknowledge that I have to adopt - in supervising him is adequate protection for that……"

51 The interest of the profession in its standing is not a fact to be lightly considered. The public look to the profession for faithfulness and integrity in their professional conduct. The maintenance of high standards and confidence in the law. These are the standards the Law Society seeks to protect - Re Clayton, and as succinctly put in Caiger (p38 LDR):

"The public is entitled to deal with legal practitioners in the knowledge they are honest and will not indulge in conduct which is deceitful and dishonourable."

52 The employment of Mr Connolly should not materially increase the risk to the public nor undermine public confidence any more or less than the employment of others should the prospects of rehabilitation succeed and Mr Hodges is dutiful and faithful in his obligations.

53 One of the lynch pins of Mr Connolly's application is that this proposed employment will give effect to his rehabilitation and return him as a useful member of the community. There can be no doubt that employment would significantly enhance that process.

54 The Tribunal must therefore consider whether the applicant is now ready for that path. In this the Tribunal has identified several factors:

Firstly Solomon J. remarks on sentencing
(annexure B to the affidavit of Connolly 9 March 2000 - being Transcript 19.7.96 at 20;)
His Honour: "I was extremely impressed with the way in which he ran his trial, better than, if I may say it, most professionals."
Stratton: well an observation that I've made, or that I have heard others make -
His Honour: professional lawyers I mean;
Stratton: …….in other circumstances you can imagine Mr Connolly having a very successful legal career…..
His Honour: Yes he could do anything. It’s a great shame that his life has proceeded the way it has…."

55 The Tribunal notes that on the Sentencing Application (p4) two reports of Peter De Graff, Education Officer of the remand centre, two documents prepared by the prisoner Connolly for the assistance of his fellow prisoners at the MRC in relation to legal procedure were tendered as examples of the work the prisoner Connolly had been doing while working in the legal library at the MRC. At p.22 of the Transcript His Honour Judge Solomon was advised that the prisoner Connolly had a job to go to on release with a firm of solicitors impressed by his work.

56 Finally, in the separate Judgment of Solomon J 19 July 1996 (95/11/1060), His Honour held:

"I take into consideration the glowing reference provided today by Peter de Graff the senior education officer at the remand centre at the Long Bay Complex. The reference sets out the fact that the prisoner has acted as senior clerk in the law library and has provided assistance to new inmates in understanding procedures appropriate to the prison legal system. I therefore take into consideration the age of the prisoner and note the submission that he is at the cross roads and that the prisoner's intention is to lead a law abiding life in the future……"

57 The Tribunal notes that unlike Iverson this applicant has self-taught skills in law, library maintenance, loose leaf services, knowledge of legal forms and legal research. In particular the Tribunal notes the evidence given by Mr Stratton, public defender that the applicant researched a "proposed appeal on the question of whether s16(G) Commonwealth Crimes Act applied to life sentences and discussed whether there was an arguable appeal to test this." The Tribunal also takes notice of the evidence of Mr Hodges that the applicant has, to his knowledge, well researched complex areas on a whole range of issues and points specifically to an "appeal to the High Court on immigration (deportation order)" and provided numerous advices on sentence and on just about every topic he has written contributions." There was other evidence of the applicant researching matters for prisoners, taking life histories, assisting inmates find specific charges and the elements and related common law, assisting them complete bail applications, legal aid forms, parole applications and sentencing submissions and assisting other solicitors with their clients. The Tribunal notes the applicant's evidence that he enrolled in a Para Legal Course whilst in jail but also was unable to proceed as the course required E-mail access, which was not available to prisoners.

58 This Tribunal notes other examples of the applicant's work in prison:

• Exhibit E: Questionnaire information for a sentence
• Exhibit F: Article "understanding your charge"
• Exhibit G: Article "sentencing submission"
being examples of the applicant's "legal information abilities" and that some have been published in prison publications.

59 Not surprisingly, Mr Hodges, solicitor can see the advantage in employing Mr Connolly. Mr Hodges said:

"his unique ability to be analytical in Court, I would expect him to assist me expand my time being an advocate - organise papers and witnesses."

60 The Tribunal is of the view that the skills the applicant has could be well utilised in a legal practice, and more importantly as the Act envisages go to the rehabilitation prospects of the applicant - as was observed by Solomon J who noted he had a "legal" job to go to on release from jail (p.8 of sentencing remarks).

61 Whilst the Tribunal is not bound by earlier decisions and each case is to be considered on its individual facts, it is relevant to consider Iverson, in which a person convicted of importing a trafficable amount of cocaine sought approval for employment by a solicitor, in quasi administrative tasks, whilst on day release. The Law Society (p23 of Judgment) opposed that application on the basis of public interest, because the solicitor practised in criminal law and the applicant returned to jail at night and there was a risk of the applicant consorting with other indictably convicted prisoners. The Tribunal exercised its discretion and allowed the employment.

62 However against this background two factors mitigate negatively:

a) The applicant's substance abuse;
and
b) recidivism.

63 In respect to substance abuse there is scant material before this Tribunal. In the applicant's affidavit of 9.3.2000 at Para 10 he swears:-

"…. Much of my offending behaviour has been drug related…",

and again at Para 12 of the applicant's affidavit of 9 March 2000 merely disclose:

"conditions of my parole order are that I seek assistance in the community in relation to drug rehabilitation and that I provide an authority for parole authorities to access such records and that I be subject to regular urinalysis tests. A failure to abide by any of these conditions or the return of a positive urinalysis test results in a breach of the parole order. I have abided by these conditions and will continue to do so. I did not use any illegal drugs whilst in custody, have not done so since my release and have no such intention."

64 No medical reports were tendered on this aspect and no history of the drug addiction was given by Mr Connolly in cross-examination by the Law Society representative. The only assistance on this aspect to the Tribunal is annexure A to the affidavit of Connolly dated 9 March 2000 being a "criminal history" from 8.12.70 to 13.10.94 which disclosed:

8.10.73 possess or smoke prohibited drug (Indian Hemp).
17.3.75 possess of restricted drugs.
26.1.77 possess or use prohibited drug (heroin).

65 On the amended Schedule of Convictions and Matters Take into Account on Sentence prepared by the Law Society representative following cross-examination of the applicant, there is no conviction or matter take into account in respect to drugs since 26.1.1977.

66 Further, the prospective employer submitted to this Tribunal "if there is a risk it will be because he reverts to drug use, he is here obviously not using drugs, I could tell instantly if he started to use drugs, I would probably dismiss him."

67 The Tribunal is satisfied that the risk of substance abuse is not a substantial risk to the public interest in this matter given the last conviction in 1977, for drugs. The regular urinalysis at Royal North Shore Hospital for the purposes of complying with his parole conditions and the attitude of the employer to any future drug use provide for the protection.

68 The second mitigating factor of the applicant for the Tribunal to consider in the exercise of its discretion: recidivism, is the risk of re-offending.

69 The evidence before this Tribunal shows that on 8.12.70, whilst on 12 months probation for Break Enter and Steal within 4 months the applicant re-offended - to wit - on 13.4.71 "false pretences".

70 Again on 7.3.74 when appeal against conviction of 8.10.73 was dismissed and the applicant was placed on the good behaviour for 12 months, he re-offended on 20.1.75 (hinder police.

71 Similarly, on 17.3.75 when the applicant was convicted of Break Enter & Steal and possession of restricted drugs, and whilst on 18 months good behaviour (from conviction of 20.1.75).

72 Finally on 5/1994 whilst on bail the applicant re-offended twice on 10/94 (shoplifting Woolworths).

73 There are thus numerous examples where the opportunity given to the applicant of moving freely about the community has been wasted whilst on bail.

74 The Tribunal has to weigh in the public interest whether on this occasion in this case there is a likelihood of the applicant, Mr Connolly re-offending the criminal law. The Tribunal considers:

• The sentencing remarks of Judge Solomon in 1996.
• The lack of drug conviction in recent times, on-going counselling and urinalysis.
• The applicant's skills in word processing and research which is not something he had previously and which obviously go to his employability in the way sought in this application.
• His state of health which includes Hepatitis C and prostate problems.
• The applicant's age.

75 This Tribunal should not stand in the way of rehabilitation of those convicted of indictable offences. The factors above demonstrate that the applicant is on the road to rehabilitation and if given this opportunity the prospects of rehabilitation would seem more than average (refer Iverson).

76 There are in all probability very few jobs for a 45 year old with no formal education and a 30 year criminal history which include grave and serious crime against the community. There is, in this application an opportunity.

77 The Tribunal therefore finds that :

a) The heavy and onerous responsibility cast upon the prospective employer supporting this application, and charged with the responsibility to ensure actively that if this application is granted the public will not be put at risk - is comfortably satisfied by Mr Hodges evidence and submissions.

b) The Tribunal's weighting of factors as to the probability of risk occurring or not occurring is met in favour of the applicant. This is so not on the strict tests of good fame and character and fitness to practice "to be expected of a practitioner convicted of an indictable offence in reapplying for admission - but a lesser test as fitting the lowest of the three levels of "associate" in Spender J's Judgment in Dezarnauld"

c) If "rehabilitation" is to have any meaning, then it is incumbent to recognise that people can proceed from the "crossroads" as described by Solomon J at the sentence hearing of Connolly in 1996 and armed now with "new self taught skills and abilities" proceed further down that path.

d) The Law Society opposes this application but called no evidence and relied upon cross-examination to highlight the flaws in the presentation of the applicant's evidence and "technical flaws in the affidavit"" of the applicant.

78 The gravamen of the Law Society's opposition was based on:

• lack of frankness and candour. The Tribunal is satisfied with the applicant's explanation and that of the solicitor Mr Hodges;
• lack of "eminent people" to support the application.

79 The Tribunal is satisfied with the evidence of Mr Stratton, Public Defender, notwithstanding the applicant was once his client. The Tribunal recognises the extremely difficult position in which this applicant is placed in respect to character evidence given his criminal history. The fact a public defender came forward to speak on his behalf weighs heavily in our mind and in particular the following (p.89 T):

"Q. ……. Would you have any difficulty with Mr Connolly attending at Court with you without Mr Hodges' presence. If you were instructed by Hodges would you consider yourself at any disadvantage if Mr Connolly was present instead?
A. No.
Q. Why is that?
A. ……. Given what I know about Mr Connolly's legal ability I would not regard myself in any way as disadvantaged by having Mr Connolly instruct….."
The opposition of the Law Society Council to the application

80 At p.40 of the Law Society's submission dated 30 March 2000, the Council's concern is for:

"The message to the profession that persons such as Mr Connolly with a lengthy criminal history and not long released on parole are persons whom this Tribunal considers should be held out as being persons approved for employment in the legal profession."

81 The Tribunal notes to the contrary the cases of Beaufils, on work release from jail, Iverson (on day release), Edmonds [2000] NSWADT 29 (23.3.2000) at time of ADT hearing still attending periodic detention.

82 The application by Mr Connolly is not only about what indictable offences were committed in the past, but about what he can do for the rest of his life (ref Peet v LS NSW [2000] NSWADT 2 and the balancing of competing considerations outlined in Dezarnauld and Caiger; and in weighing these interests, the Tribunal exercises its discretion in favour of the applicant on the terms and conditions outlined.

83 Finally, the Tribunal makes no order for costs in favour of The Law Society.

84 As to the applicant's application for costs, The Tribunal would be minded to order costs in favour of the applicant - however the material non disclosures and flaws in the presentation of evidence added to the length of hearing. Accordingly The Tribunal makes no order for costs in favour of the applicant.