Frugtniet v Board of Examiners
[2005] VSC 332
•24 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4691 of 2005
IN THE MATTER of an appeal under s.342(1) of the Legal Practice Act 1996
BETWEEN:
| RUDY NOEL FRUGTNIET | Appellant |
| v | |
| BOARD OF EXAMINERS | Respondent |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 and 17 August 2005 | |
DATE OF JUDGMENT: | 24 August 2005 | |
CASE MAY BE CITED AS: | Frugtniet v Board of Examiners | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 332 | |
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Admission to practise – Appeal from refusal by Board of Examiners – Effect of acquittal of criminal offences – Appellant failed to establish he was a fit and proper person.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A.W. Street, S.C. and Mr Ian C. Latham | Thomas Koutsoupias Lawyers & Co |
| For the Respondent | Mr R.A. Brett, Q.C. | William Murray Solicitors |
TABLE OF CONTENTS
Parties
The Dispute
Appeal
Board of Examiners and Admission to Practise
The Appellant’s Conduct and Reputation
Honesty and the Legal Profession
A fit and proper person for admission
A. English convictions
B. Disclosure to Migration Agents Registration Authority
C. Perjury ruling
D. Airline tickets
Conclusion
HIS HONOUR:
This is an appeal by a law graduate against a decision of the Board of Examiners refusing him a certificate entitling him to be admitted to practise as a barrister and solicitor and an officer of the Supreme Court of Victoria. The appeal is brought pursuant to s.342(2) of the Legal Practice Act 1996 (“the Act”).
Parties
The appellant, Rudy Noel Frugtniet (“the appellant”) was born on 24 December 1954 and is aged 50 years. He was born in Sri Lanka and spent his early years in England. In 1982 he came to Australia where he resided for a period, and returned to England. He eventually immigrated to this country in 1990 and is an Australian citizen. He commenced studying law at Deakin University in 1997 and graduated in 2001. He successfully completed a course of practical legal training with the Leo Cussen Institute in December 2001. In August 2001 he made application to the Board of Examiners for a certificate entitling him to be admitted to practise as a barrister and solicitor and an officer of this Court. His application was rejected on 22 October 2001; he appealed to this Court and on 1 May 2002 Pagone J dismissed the appeal. He subsequently made another application on 27 July 2004.
The respondent to the appeal, the Board of Examiners (“the Board”) is a body established by s.338(1) of the Act. One of its functions is to consider applications by persons for admission to legal practice and to certify that an applicant for admission meets all the requirements of the Admission Rules. See s.341(1)(a) and (b) of the Act.
The Dispute
The facts leading to the present appeal can be briefly summarised. As earlier stated, the appellant’s appeal to the Court in 2002 was dismissed by Pagone J. His application made on 27 July 2004 came on for hearing before the Board on 14 October 2004 and was adjourned to 9 December 2004. The appellant gave evidence on oath, and was cross-examined. In addition, a number of affidavits were filed by him. On 11 February 2005 the Board informed the appellant that his application for a certificate for admission to practise was refused. He was given a copy of the reasons for judgment of the Board. In substance, the refusal was because the Board was not satisfied he was a fit and proper person for admission to practise. On 21 February 2005 the appellant filed and delivered a Notice of Appeal. The document was prepared by him. He was represented before the Board and on this appeal.
Appeal
It is important at the outset to determine the nature of the appeal. Section 342(3) of the Act provides:
“(3)An appeal under sub-s(1) is to be conducted as a hearing de novo.”
In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and ors[1] Gleeson CJ, Gaudron and Hayne JJ discussed the various types of appeals. At p.203 their Honours said:
“If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of re-hearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.”
(Emphasis added).
[1](2000) 203 CLR 194.
Their Honours also referred to Allasch v Maunz.[2]
[2](2000) 203 CLR 172 at [23].
Accordingly, on this appeal the Court makes its decision based upon the evidence placed before it which may include evidence additional to that adduced before the Board. This Court is not concerned with whether or not the Board has or has not made any error of fact or law and the appeal does not depend upon showing any error at first instance. In addition, I am not concerned with the evidence that was placed before the Board, unless of course it is admitted in evidence on this appeal. The viva voce evidence given below may be admitted into evidence on this appeal for the purpose of establishing an admission or a prior inconsistent statement. Whilst I have read the reasons for the Board’s refusal of the certificate, this Court decides the matter afresh, unfettered by anything that the Board has said. Because of the Board’s wide experience, I note its conclusion. But having said that, in the end the appeal must be decided by this Court on the evidence before it.
Two appeal books were prepared for the purposes of this appeal and the parties agreed to tender and place before this Court all documents in Appeal Book 1 and all documents in Appeal Book 2 save and except for the transcript of the proceedings before the Board in October and December 2004. In addition, Mr A. Street SC, who appeared with Mr Latham for the appellant, tendered two additional affidavits, one of the appellant and another from Peter Edward Wyatt, an accountant who gave evidence relating to character. The appellant gave viva voce evidence and was cross-examined. In the course of his cross‑examination, Mr Robin Brett QC for the Board tendered a number of documents.
Board of Examiners and Admission to Practise
As stated, the Board was established by s.338 of the Act and its functions are stated in s.341(1). It has the powers conferred on it by the Act or any other Act, “including by the admission rules”. Rules were made on 17 December 1999 and came into operation on 1 January 2000. They are the Legal Practice (Admission) Rules 1999, S.R. No. 144/1999 (“the Rules”).
Part IV of the Rules deals with qualifications for admission. The appellant was required to establish that he had the necessary tertiary qualifications and had completed the practical legal training requirements.[3] He has satisfied those qualifications for admission. In addition, he was required to establish as a qualification:
“(c)That the applicant is of good reputation and character and a fit and proper person to be admitted.”[4]
[3]See Rule 4.01(1)(a) and (b).
[4]See Rule 4.01(1)(c).
The appellant was required to serve a notice of intention to apply and post a copy on a designated notice board in this Court.[5] In addition, the appellant was required to lodge with the Board a number of documents. The appellant satisfied the necessary requirements. The question for the Board was whether it was satisfied on the material provided, that the appellant was of good reputation and character and a fit and proper person to be admitted.
[5]See Rule 4.02.
One of the documents that the appellant had to lodge with the Board was an affidavit “in support of the application in the form set out in Schedule 8”. He was required to annexe to that affidavit a number of certificates. The affidavit in support is to be in a form set out in Schedule 8, and reference to Schedule 8 reveals the following paragraphs requiring the provision of information:
“7.I have made full disclosure in writing to the Board of Examiners of every matter which is relevant to consideration of my fitness for admission to legal practice, this disclosure (if any) including but not being confined to any formal charges of criminal offences [if otherwise, state particulars].
8.[Include any other information relevant to the consideration of the application by the Board of Examiners.]”
It can be seen that the onus rested upon an applicant for admission to disclose any matters which were relevant to the question of his reputation and character and whether he was a fit and proper person to be admitted to practise as a barrister, solicitor and officer of the Court. Clearly the obligation was not confined to convictions for criminal offences. It required the provision of any information which included any charges of criminal offences.
The Board is required by Rule 4.11 to consider each application and if the Board is satisfied that the applicant meets the requirements of the Rules, give “the applicant a certificate in the form set out in Schedule 14.”[6]
[6]See Rule 4.11(1).
The Board is empowered by reason of Rule 4.13 to make any enquiries it thinks fit concerning any application, including “the fitness of the applicant to be admitted in Victoria”.
The Appellant’s Conduct and Reputation
The appellant, in the past, has been convicted of criminal offences of dishonesty, and has been sentenced to a period of imprisonment. In addition he has been charged with a number of offences of dishonesty between 1989 and 2003 involving alleged activities of deception, fraud and dishonesty between 1989 and the year 2000. He has given evidence on oath before tribunals which led to charges of perjury against him, which were dismissed. Moreover, in 1995 a judicial officer described him as a witness who was verbose, argumentative, whose evidence in parts was incredible and who could not be accepted “uncritically as a witness of truth”.[7] I interpolate to observe that the appellant gave evidence on this appeal admitting his wrongdoing and dishonesty in the past and informing the Court that he was a changed person and would not indulge in any dishonest or wrongful conduct in the future. Of course in considering the question of his fitness, the Court is bound to take into account his conduct in the past. This establishes his reputation and character particularly in relation to honesty and fair dealing. If his reputation, based as it is on his past, shows he is a man who is dishonest and cannot be trusted he must show that today his past is behind him, he has turned over a new leaf and can be trusted to pursue an honest career in the law. The appellant’s history can be stated in chronological form:
[7]See Frugtniet v Travel Agents Licensing Authority AAT 1995/32920, p.3.
24 December 1954
Appellant born in Sri Lanka – now aged 50 years.
Lived in England.
4 January 1978
Appeared in the Crown Court in Leeds and was convicted of 15 counts of handling stolen good, forgery, obtaining property by deception and theft. He pleaded guilty to the charges. He also requested the Court to take into account seven additional charges. He was sentenced to a total period of imprisonment of four years and he served two years.
At that time he was aged 23 years.
1982
First came to Australia to be with his family. Remained for a short period and left.
1986
Returned to Australia. Stayed for a period and then left.
1988
Returned to Australia. Stayed for a period and then left.
During periods in Australia he worked in travel.
27 December 1989
He was charged with an offence of obtaining property by deception, it being alleged that the credit card facilities at the State Bank of Victoria had been tampered with. The appellant stated that it was alleged he had in the course of his employment as a travel agent debited credit cards twice for the one transaction. He thought there were three to four charges. The charges were not proceeded with because a State Bank witness would not co‑operate with the police and provide a statement and the magistrate discharged him at the committal. The appellant informed this Court that there was a risk that he would be directly presented but that did not eventuate. He said he was concerned by this possibility.
1990
Returned to Australia as a migrant.
10 April 1990
Granted a certificate of Australian citizenship.
1990
Appellant married to Corine Gwendoline Frugtniet.
Commenced working with wife in her travel agency known as Karina Travel at Melton.
21 May 1992
Application concerning wife’s Travel Agent’s Licence before Travel Agents Licensing Authority. Appellant called as witness. Stated that he had never been convicted of a criminal offence. Gave evidence on oath. The following day, 22 May, he was asked the question whether he had been convicted anywhere and his response was “I have not, no”, and when asked whether in England or anywhere he stated, “Nowhere, no”.
Wife lost her licence and appealed to AAT.
20 November 1992
At hearing before Administrative Appeals Tribunal appellant gave evidence on oath and he was asked whether in fact he had been convicted of a number of charges in 1978 in England and his response to that was, “I totally reject that, sir”.
He was asked the question a number of times and continued to deny it. It was put to him that he was convicted of charges concerning handling stolen property and forgery and his response was:
“I totally reject this. I think this is the most outrageous suggestion on your part and I ask you to produce a document, an official document which suggests that I was convicted of the things that you are now alleging. I really do, and I think this is a most scandalous allegation that you ever raised. I reject it out of hand.”
October 1996
Wife lost her licence as a travel agent. Appellant ceased work as a travel agent. The appellant commenced a migration agency business. Each year he was required to apply to the Migration Agents Registration Board ("MARA") for registration.
14 May 1997
Charged with five charges of dishonestly obtaining cash by selling invalid airline tickets through wife's agency.
24 November 1997
Appeared at the Broadmeadows Magistrates’ Court on five charges of obtaining property by deception during the period 1994-1996. Four of the charges were withdrawn. He pleaded guilty to the fifth charge and was fined $1,000 without a conviction being recorded. The alleged offences concerned airline tickets acquired unlawfully in 1991 and sold by the appellant to clients of his wife’s agency during 1994 to 1996 for travel with Lufthansa and KLM.
1997
Charged with perjury – three counts of perjury, namely, the evidence given on 21 and 22 May 1992 before the Travel Agents Licensing Authority and 20 November 1992 in the proceeding at the AAT.
1997
Commenced studying law at Deakin University.
May 1998
Perjury charges heard before His Honour Judge Jones and a jury in County Court. Issue arose in the trial as to the Rehabilitation of Offenders Act 1974 of the UK which provides that convictions recorded in the United Kingdom expired after ten years and became spent convictions for the purposes of the Act. It followed that the accused was to be treated as a person who had not committed or been charged with any of the offences. It appears also that the Act further provided that the convicted person could not be asked to admit the convictions. Division 3 of Part VII(c) of the Commonwealth Crimes Act also deals with spent convictions. However it only applies to Commonwealth offences. It also applies to foreign convictions that are spent and the effect of that is that a person is not required in Australia to disclose to a Commonwealth authority the fact that he has been convicted of the offence.
At trial Judge Jones ruled that neither Act applied in the State of Victoria to the Travel Agents Licensing Authority or the AAT. His Honour’s ruling was critical to the appellant’s defence and I find that he knew and understood what his Honour ruled and its effect. The fact was he could not rely on either Act in dealings with state authorities in this State.
The appellant gave evidence that he honestly believed that the provisions of both Acts applied and the jury acquitted him of the charges.
1997
Appellant employed with ANZ Bank.
March 1998
Appellant charged with six counts of theft and three of attempted theft. The allegations were that whilst working as an employee of the ANZ Bank he gave personal details of accounts to an accomplice who then proceeded to steal money from the accounts.
Accomplice pleaded guilty and gave evidence against appellant.
23 March 2000
Appellant acquitted of the charges concerning the ANZ Bank theft.
April 1998-July 2000
During this period after he was dismissed by the ANZ Bank, he continued studying law, worked in his migration agency and also had another job. It was alleged that during this period he obtained by deception money from Centrelink. He claimed a Job Search Allowance and Newstart allowance which he received from 6 March 1998 to 11 April 2002. I interpolate to note he made his first application for admission in August 2001. It is alleged he was working in the period from 27 April 1998 to 7 July 2000 earning $1,482 gross per fortnight.
Mid 2001
Appellant made first application for admission to practise to Board of Examiners.
20 August 2001
Appellant filed letter of disclosure with Board and disclosed the conviction at Broadmeadows for obtaining property by deception. Did not disclose any other criminal matter.
24 August 2001
Graduated from Deakin University in Law.
28 August 2001
Appellant filed affidavit with Board deposing that there was nothing else to disclose.
22 October 2001
Board rejected his application.
5 November 2001
Appellant appealed to this Court.
9 January 2002
Board published its reasons, finding that he was not a fit and proper person.
Marriage broke down.
1 May 2002
Pagone J dismissed the appeal. Pagone J held that the appellant had not proven that he was at that time a fit and proper person for admission.
15 April 2003
Appellant charged with defrauding the Commonwealth of Australia through Centrelink from March 1998 to November 2000.
7 May 2003
Appellant awarded Master of Laws by Deakin University.
11 May 2004
Centrelink charges were dismissed.
27 July 2004
Appellant’s new application for a Certificate of Admission.
Appellant filed a number of documents in support of his application.
14 October 2004
Appearance before the Board. Appellant gave evidence on oath. He was cross-examined.
9 December 2004
Further hearing before Board.
11 February 2005
Letter rejecting the application by the Board. Reasons given. Appellant was not a fit and proper person to be admitted to practise.
The chronology shows that the appellant commenced his criminal career when he was aged somewhere between 18 and 21 years. The English convictions occurred in relation to activities over a two year period according to an affidavit sworn by him on 7 March 2002, namely, during the period from 1974 to 1976 when he was aged between 19 and 21 years. Each charge involved dishonesty and some involved deception. He has sworn on a number of occasions that he got into bad company, was naïve and vulnerable and this explains his criminal conduct over this period. However, it is noted that he pleaded guilty to four charges of obtaining a benefit payment from the Department of Health and Social Security by falsely representing that his children were living with him and his wife. He informed the Court on this appeal that he was not married at the time and did not have any children. This raises a real question as to his assertion that he was led by others. Indeed, he admitted on this appeal that one of those who was also involved in criminal conduct was his brother. At the age of 22 he was sentenced to four years’ gaol and served two years. His level of criminality was serious and grave as the offences occurred over a two year period. This course of conduct, albeit at a young impressionable age, raises a presumption against his fitness for the profession of lawyer. The public interest demands that a lawyer is a person who is honest, honourable and trustworthy. In an application such as the present, the Court must consider the interests of the Court, the applicant, the profession and above all the public[8]. To overcome the presumption based on past conduct the appellant has to show that he has learnt from his past, has pursued a blameless career and life and is a person who is honest and trustworthy.
[8]See In re Kearney (1908) 8 SR (NSW) 87 at p.89.
For the next 11 years he did not fall foul of the law. However, in 1989 he was charged with other offences, followed by the airline tickets charges, perjury charges, ANZ charges and the Centrelink frauds. All these charges involved dishonesty of a serious nature. He has been acquitted of three groups of charges and the State Bank matter in 1989 did not proceed. On the other hand he pleaded guilty to an offence involving dishonesty arising out of the sale of invalid airline tickets in 1997. The course of conduct over the period from 1989 to 2000 reinforces the presumption against admission based on his English convictions and the 1997 finding. Whilst he is entitled to rely upon the presumption of innocence and the judgment of acquittal the fact is that he is a person who has been charged with crimes of dishonesty in respect of events over a period from 1989 to 2000. It is clear from the form of affidavit in Schedule 8 that the fact of him being charged with crimes of dishonesty is relevant to the questions of good character, reputation and fitness and propriety to be admitted to practise and must be disclosed to the Board. The very fact that he was charged with offences of dishonesty over a substantial period of time places a heavy burden upon him to persuade this Court on the appeal that he is a man of good character and reputation and a fit and proper person to be admitted to practise as a lawyer. A matter of substance is that there is a pattern of conduct which raises real questions concerning the honesty of the appellant. Another disturbing feature is that he allows himself to be put into a position where allegations of dishonesty are made against him. Having gone through a perjury trial, he allowed himself whilst an employee of the ANZ to be involved with a person who stole money from the bank. He told the Court he knew his accomplice and had in the past assisted the person in relation to criminal charges brought against him. He lost his job in May 1998, however, over the next two years he obtained a social service benefit which led to charges of obtaining money from Centrelink by deception. All these matters have to be carefully weighed giving, of course, full effect to the presumption of innocence and his acquittals, in determining whether he is a person who is fit and proper to be admitted to practise.
The question does arise, what effect should be given to the fact that an applicant for admission has been charged with criminal offences and acquitted. The appellant's counsel submitted that full effect must be given to the acquittal and no adverse inference should be drawn against the appellant by reason of the fact that he has been charged with criminal offences concerning dishonesty. Counsel for the Board referred to the text The Victorian Solicitor by Heymanson at page 235, where the author discussed the question in the context of striking a practitioner off the roll. It was submitted that the same principles apply to an application for admission. The learned author notes that it is the offence with which the Court is concerned and not whether the practitioner has been convicted or acquitted. In the case of Re Crick[9], a practitioner who was the Minister of the Crown was found by a Royal Commission to have accepted bribes. He was twice brought to trial for the criminal offence but on each occasion the jury disagreed and the Crown ultimately entered a nolle prosequi. He was struck off the roll for misconduct. In an earlier case of Re Salwey[10], a solicitor was found to have committed fraud in a civil proceeding but was acquitted in a criminal court but nevertheless was struck off the roll for misconduct. A close reading of these cases reveals that the alleged misconduct of the practitioner was investigated and a decision was made by a responsible authority that the practitioner in question was guilty of misconduct. Hence, the mere fact of acquittal was not to the point. In those cases there was ample evidence before the Court justifying the removal from the roll.
[9](1907) 7 SR (NSW) 576
[10](1894) 15 LR (NSW) 147
Mr Brett QC also referred to the Full Court decision of the Supreme Court of the ACT in Re Del Castillo[11]. The applicant had stood trial for murder and was acquitted. He revealed that fact to an admission board. The Full Court said:
"It is true that the bare facts that a person has been tried for a charge, even a very serious one, and acquitted do not logically tend to the detriment of that person's character nor of his or her fame. But experience shows that matters are often otherwise. The acquittal may be entirely upon unmeritorious grounds or it may occur in circumstances which nevertheless reveal untoward collateral behaviour on the part of the accused. Particularly, but not only, in cases where serious harm has been wholly or in part caused by an accused person, the court has evidently accepted that there was a reasonable chance that the circumstances were exculpatory (as in the present case) it is likely that, logically or not, some people will consider the fame and/or character of the accused to be defective."
[11](1998) 136 ACTR 1.
In my opinion the cases establish that an acquittal of a person applying for admission to practise of itself must be given full effect to. However, that would not preclude the Admission Board from fully investigating and considering all the circumstances which may lead to a decision that the applicant is not a fit and proper person. Absent a full and proper investigation in my opinion it is not open to an admission Board to draw any adverse inference against an applicant because he or she has been charged with a criminal offence and is subsequently acquitted. Of course, each case must be considered in relation to its particular circumstances.
In the present appeal, the appellant has revealed some information concerning the charges brought against him. However, he was not cross-examined in relation to any particular set of charges, other than the airline tickets matter, which would enable this Court to draw any inference against him concerning his character, reputation and fitness to practise as a lawyer. He was asked questions about the airline tickets offences, one of which he pleaded guilty to, and in my opinion it is open on that evidence for this Court to draw certain conclusions as to his conduct. As earlier stated, the pattern of the appellant's conduct between 1989 and 2000 requires this Court to closely consider the appellant's statements that he is a reformed person and a person who is honest, of good character and can be trusted as a member of the legal profession.
In addition to the matters referred to above, when he made his application on the first occasion in August 2001 he failed to disclose his prior criminal history save for the finding at the Broadmeadows Court in 1997 (airline tickets charges). He failed to refer to the other criminal matters and in particular his English convictions. This serious non-disclosure meant that he failed in persuading both the Board and the Court on appeal that he was a fit and proper person. On that occasion the Board were never told about the three charges for perjury, the UK convictions, or the ANZ charges. On the appeal these were revealed.
In his reasons for judgment, Pagone J said:
“The evidence before me does not establish to my satisfaction that the applicant is now a fit and proper person for admission. The way in which details of the perjury charges, the ANZ charges and, more particularly, the UK convictions have come to light in this proceeding have not left me with sufficient confidence in the applicant. His obligation was to disclose matters that could inform a judgment about whether he was a fit and proper person for admission to practise. It was not an obligation merely to list convictions or charges, but was an obligation to inform the decision maker of everything that could bear upon the judgment that needed to be made about him and his character. His task was not to select or edit from his life’s experiences only some events that might be relevant to the question, but to disclose every matter that might fairly assist in deciding whether the applicant was a fit and proper person at the time of admission.”[12]
[12]See Rudy Frugtniet v Board of Examiners [2002] PSC 140 at [11].
The judgment was delivered on 1 May 2002. The appellant appeared for himself. He swore an affidavit in support of his appeal on 7 March 2002. He did reveal the matters that had not been disclosed to the Board. In his affidavit sworn 7 March 2002 the appellant recognised the hurdle that he had to overcome, namely, to show that he had changed his ways and would not offend again. He was aware in this present appeal that he carried the burden of persuading the Court that despite his past, he was a reformed character, who could be trusted and who would act honestly and reasonably in the course of a professional life as a member of the legal profession. The presumption against his admission is strengthened by the history of his conduct between 1989 and 2002. He does not inspire any confidence in him that he has learned by his experiences and is a reformed character – see observations of High Court in Ex parte Lenehan[13] concerning the raising of the presumption against admission and meeting it by evidence of making amends for the early misdemeanours and overcoming the defects of character.
[13](1948) 77 CLR 403 at 424
Honesty and the Legal Profession
All true professions are built on a solid foundation of honesty. The legal profession is no exception. Indeed, the demands of honesty and fair dealing are probably greater in the legal profession than any other profession. There must be honesty and fair dealing between lawyer and client, between lawyers when conducting litigation on behalf of a client, and dealings with any of the courts or tribunals in this State. There must be no hesitation on the part of any member of the legal profession when confronted with a situation which could involve dishonesty to immediately desist from any dishonest conduct.
Indeed, the courts and tribunals in this State would not be able to function properly unless the presiding officer was able to rely upon the honesty and reputation of the persons appearing before them or who as solicitors are involved in conducting litigation.
Pagone J summarised the obligation in a passage with which I respectfully and fully agree. His Honour said:
“The requirement for admission to practise law that the applicant be a fit and proper person, means that the applicant must have personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor. A legal practitioner, upon being admitted to practice, assumes duties to the courts, to fellow practitioners as well as to clients. At the heart of all those duties is a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self‑interest or embarrassment. The entire administration of justice in any community which is governed by law depends upon the honest working of legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour. It is the legal practitioner who is effectively the daily minister and executor in the administration of justice when advising clients, acting for clients, certifying documents, and making presentations to courts, governments, other professionals, and so on. The level and extent of trust placed in what legal practitioners say or do is necessarily high and the need for honesty is self-evident and essential.”[14] (Emphasis added.)
[14]See, supra, at [10].
Speaking of the obligation of a barrister, Moffitt P in Re B said:[15]
“The other matter which should be emphasised is that the question in any case is whether the applicant for admission is a fit and proper person at the time of admission. A person can only be judged by what he has done and what he has professed in the past and properly judged what he claims of himself when he makes an application for admission. Some matters in the past may be so incompatible with being a barrister, not only then, but also later when the application for admission is made, that the Court will not be persuaded that the applicant is a person fit and proper for admission, despite claims made by or about him to the contrary.” (Emphasis added.)
[15][1981] 2 NSWLR 372 at 381.
His Honour then made an observation which in my opinion is clearly correct and based upon one’s experience of life. His Honour said:
“Character does not change readily and an applicant for admission … may have some difficulty in persuading a court that his past character or a past outlook manifested by conduct or the profession of ideas which were incompatible with being a barrister, have changed.” (Emphases added.)
Of course it must be pointed out that the conduct of a person in his late teens or early years of manhood may be put down to a variety of matters which in later life should not preclude him from being a member of a profession. But the Court would have to be satisfied that the person is a reformed person who can be trusted. This would usually require proof of a long period of blameless, honest life.
In Ex parte Lenehan[16] the High Court was concerned with an application for admission of a solicitor who had indulged in criminal conduct at a relatively young age. The Court recognised that there could be a change in one’s conduct and activities over a period of time which may displace adverse conclusions that might otherwise be drawn from prior misconduct. Latham CJ and Dixon and Williams JJ said:[17]
“There must be a strong disinclination to admit to the profession of a solicitor any person who has been shown ever to have been guilty of improper conduct. It is a disinclination founded upon the unsafety of such a course and the need of strictness in maintaining the standards of the profession. But the false steps of youth and early manhood are not always final proof of defective character and unfitness. The presumption which, according to circumstances, they may appear to raise may surely be overcome by a subsequent blameless career.”
[16]supra
[17]At p.424.
In that case, the applicant during 1928-31 when he was aged 25 to 28 years, stole money. Thereafter his conduct was exemplary, including service during the war in which he served with distinction. The High Court by a majority was prepared to admit him to practise in 1948.
It goes without saying that the appellant carries the burden of showing that he is of good reputation and character and a fit and proper person to be admitted.[18] In Re S(a solicitor) the Full Court was dealing with an application by a former practitioner who had been struck off the Supreme Court Roll. An affidavit placed before the Court contained what the Full Court said was misleading information. The Court held that a former solicitor seeking to have his name restored to the Roll must show that, notwithstanding his past misconduct he can be safely trusted in the future to demean himself with honesty and propriety. It was noted that it was up to the applicant to convince the Court and if he left the Court in doubt he failed. The Court placed considerable weight on the fact that in the applicant’s affidavit he tried to gloss over his previous misconduct. The applicant failed.
[18]See Re S (a solicitor) [1986] VR 743.
In cross‑examination in the present matter, the appellant was exposed as a person who was loose with the truth, had sworn affidavits which were inconsistent and misleading. He sought throughout to exculpate himself in respect of his admitted criminal conduct and on occasions his attempts were misleading. I accept he is entitled to show, if he can, that his conduct was not bad or his level of criminality slight, but if he distorts the facts to achieve his goal, this reflects adversely upon him.
Some of his evidence I do not accept as truthful or accurate. He struck me as a witness whose first move was to think of an answer which would help his cause rather than being frank and honest. He told the Court that he was sorry and remorseful for his past conduct, but I am not persuaded that he is an honest person, a person of good character, and fit and proper person to be admitted to practise as a barrister and solicitor and officer of this Court. In reaching that conclusion, I rely upon his past, the way the appellant gave evidence, his attitude to obvious wrongdoing which he was not prepared to candidly accept was very wrong, his attempts to mislead the Court and his looseness with the truth.
A fit and proper person for admission
The conduct of the appellant in the past has shown that he was not a fit and proper person to be a member of the legal profession. The question now is, on the evidence before this Court, has he overcome the presumption by a full and candid recognition of his past wrongdoing, and a blameless career for a substantial period leading to the conclusion that he could be trusted to perform his work and activities as a lawyer in an honest, proper and fair manner? Making allowance for lapses of memory, and the fact that the appellant is in a difficult position when answering questions about his past conduct, especially where he has been acquitted of serious offences, in my opinion the appellant has not established that he is a fit and proper person to be admitted to practise. In support of that conclusion I rely upon the following matters:
A. English convictions
The first matter concerns his attempt to explain away his English convictions as being due to the folly of youth and being led astray by others. In the affidavit sworn in support of his application to the Board on 3 September 2004, in paragraph 3 he said:
“3.As a young man of 18 years of age whilst living in the United Kingdom I was easily influenced and manipulated into joining a group of friends that caused me to commit the offences as described in the certificate of conviction which resulted on the 4th January 1978. I not only lost my liberty but also suffered a heavy price notwithstanding that I pleaded guilty and co‑operated with the police by giving evidence against my co‑accused thus placing my own life in danger.”
The document evidencing his convictions did not refer to the dates of the various offences. He was clearly conveying to the reader that he was a very young person when he committed those offences. The Court observed that he was aged 23 when he was convicted upon a plea of guilty. The Court asked him the following question in evidence:
“It seemed that it took about four years to get to court, did it?”
The appellant’s answer was:
“That’s correct. There were other co‑accused and based upon whether or not they were going to be pleading guilty or otherwise there were protracted delays. I, of course had signalled that given those delays (sic) and the way things worked, it didn’t come to court until 4 January. I of course at the first opportunity did plead guilty.”
At that point in time the Court was left with the impression that he was aged 18 at the time of these offences. In the course of his cross‑examination another affidavit was tendered in evidence, sworn by the appellant on 7 March 2002 and filed on this Court on the appeal before Pagone J, in which he stated:
“I further confirm that at the time of these offences, which occurred between 1974-1976 in a foreign country living on my own as a young man, I fell into bad company, was naïve, totally lost and vulnerable to a group of people who manipulated and exploited me which led to me being involved to my great detriment … “.
In the next paragraph he referred to the fact that these criminal acts occurred between “the age of 19 and 21”. The affidavit of 3 September 2004 is an example of the appellant being loose with the truth. It was very obvious why he sought to minimise the gravity of his earlier criminal conduct. On the other hand, if he is a reformed person, open and honest, he should have stated the truth. Instead he sought to minimise the criminality and, in so doing, distorted the truth. His looseness with the truth is exacerbated by the answer he gave to the Court when asked about the time the charges took to come to Court. He also referred to the matter in a later affidavit that he prepared himself and swore on 15 August 2005. This was despite the fact that he had a solicitor acting for him who had briefed senior and junior counsel. Again, he referred back to these convictions. He said:
"In brief I reiterate that the convictions in the U.K. arise from events that occurred in 1974 and were dealt with on 4 January 1978 to which I pleaded guilty and were caused in large part due to my immaturity, greed and the company kept, hence, I was totally influenced by these individuals."
It is also noted that the appellant told the Court that one of the co-accused was his brother.
The next sentence in that affidavit reveals that the appellant, despite commitments to reform himself, has failed. He said:
"I refer to the severe penalty I received and the loss of my freedom, the indignity I suffered and conditions I underwent at various times being located at high security prisons which to most have destroyed them but I firmly resolved to never do wrong that might cause me to ever lose my freedom." (Emphasis added.)
His conduct between 1989 and 2000 shows that his resolve was put to one side.
B. Disclosure to Migration Agents Registration Authority
His evidence concerning his disclosure to the Migration Agents Registration Authority (“MARA”) demonstrated that he did not appreciate the seriousness of making a false declaration. He told the Board of Examiners last year that he did reveal in each annual registration application all matters concerning his criminal conduct from 1996 onwards.[19] His evidence is, to say the least, highly doubtful. By a document declared on 26 October 1999 he applied for re‑registration as an agent for the year October 1999 to October 2000. In the document which he completed, he was asked the following question:
[19]See Appeal Book 759-60 and 773-4.
“11.Are you the subject of any criminal charges still pending before a court, or have you ever been convicted of an offence which is not spent? Refer to Part VIIC Crimes Act 1914 (Cth) for a definition of a spent conviction.
No Yes
X
If yes, please attach details including dates.”
The appellant put a cross in the “No” circle. He supported the document with a statutory declaration in which he stated that the information he had provided “is complete, correct and up to date in every detail.”
The date of the declaration is 26 October 1999. On no view could that answer be correct. He admits as much now. At that time he was facing nine charges concerning his employment at the ANZ Bank. The answer to the question: “Are you the subject of any criminal charges still pending before a court?” should have been “Yes”. When asked by the Court as to his explanation, the appellant prevaricated, did not initially answer the question but referred to the fact that the matter was raised years later by MARA, he gave them an explanation and no further action was taken by the authority. Eventually he admitted to the Court that his answer was wrong and he should have answered “Yes”. Another matter of concern is that he did not appreciate the importance of making a false declaration. He informed the Court that he had in fact in a separate document told MARA of the charges. He was unable to produce a copy and MARA did not have any copy. I have grave doubts about his evidence. But as was put to him, if he was revealing this information to MARA in another way, then his answer should have been “Yes”, and reference back to an earlier communication. The way he gave evidence in relation to this raises considerable concerns about his honesty and more importantly whether he is prepared to be frank about his past indiscretions. His seemingly ignorant attitude to the importance of a statutory declaration is also a matter of concern. As the Court asked him "Would you advise a client to do what you did in the circumstances?" He said "No".
Another matter of considerable concern over this whole episode concerns his explanation to MARA some years later. The failure to reveal relevant information to MARA was raised by the authority in 2002. The appellant forwarded a nine page letter including attachments explaining his views dated 14 August 2002. He noted that the authority did not appear to have any documents sent by him. He was unable to produce copies. One might think that a careful man, bearing in mind his history during the 1990’s concerning the perjury charges, would have been very careful in answering the question in his application form and more importantly if he had apprised the authority earlier, would have kept copies of the correspondence. A matter of concern is found on page 5 of his long letter in which he sought to explain the ANZ charges. He said the following:
“On or about May 1998 I was charged with offences of theft and obtaining by deception on the basis that I allegedly provided information that enabled others to commit theft whilst I was employed by the ANZ Bank. It would be a monumental understatement if I said that I was not affected, but I held to the belief that when individuals seek to use their position to advance themselves and pursue the individual, without first seeking to elicit the truth, then good will at some stage prevails over evil. I was further heartened by the fact that this was pay back by certain individuals, as a jury of my peers had previously acquitted me of the frivolous perjury charges, thereby vindicating my position.” (Emphases added.)
The first observation is that he refers to “others to commit theft”. There was only one other person involved. He was a person well known to the appellant. He could not explain this error. Secondly, his observation that it was a pay back by certain individuals was also demonstrably wrong. Again he could not explain why he said that. Finally, to suggest that his perjury charges were frivolous is a gross distortion of the truth. On no view could they be considered frivolous taking into account that he was asked the questions a number of times at a number of hearings and totally denied the prior English convictions. This letter was written well after Judge Jones’ ruling and after the issue was raised in the earlier application and on the appeal.
His letter of explanation to MARA is rambling, full of irrelevant detail and obviously aimed at creating confusion in the minds of the persons looking into his conduct. He was successful. MARA did not take any further action.
C. Perjury ruling
I have already adverted to what Judge Jones ruled. The appellant could not have been under any misapprehension. The English and Commonwealth Acts concerning spent convictions did not apply to State authorities. For some years after he was acquitted he appears to have adopted the view that he still did not have to reveal those convictions. On any view, and I have no doubt he understood this, he was not obliged if asked the question in England to reveal the convictions nor was he obliged in a Commonwealth situation to reveal them. On the other hand, he knew that he was obliged to reveal them in a State situation. The omission to disclose the conviction on his first application to the Board is something that, taking into account the context, was extremely serious. Whilst I accept that this was a matter considered by Pagone J, the appellant’s evidence before this Court did not persuade me that he fully understands the gravity of what he did. The gravity is that he knew he could not rely on the legislation but deliberately set out to mislead.
D. Airline tickets
The offences concerning the airline tickets when examined reveal a serious level of dishonesty by the appellant. He was cross‑examined about some of the circumstances. In my opinion he prevaricated, he sought to minimise the degree of culpability, he told an untruth and was less than forthcoming about the conduct in question. This is again a matter of considerable concern because it was his evidence in this Court that supports the conclusions I have just stated. He gave evidence in chief that he was a reformed character, that he recognised that he had done wrong in the past, that he had been guilty of some criminal conduct in the past, but the Court could be assured that he had changed and could be trusted to carry out the obligations of a member of the legal profession.
The gravamen of the charges was that the appellant had purchased eight invalid airline tickets, knowing they were invalid, and sold them some years later, thereby cheating the clients.
Early in his evidence, the Court asked him whether his wife’s travel agency was authorised to issue tickets. Only certain travel agents are permitted to issue tickets and they must have IATA accreditation. He was asked the question by the Court whether his wife’s travel agency was authorised to issue tickets and he said, “It was, Your Honour”.
Later in his cross‑examination when he was being asked about the issue and use of invalid tickets, it was put to him that he must have known that the tickets were invalid because IATA had circulated the travel agencies informing them of that fact. His response to that was to state that he would not know because his wife’s agency was not IATA accredited. This occurred on the following day, having told the Court that she could issue tickets. The Court put the following question to him: “I asked a question yesterday, and admittedly I’m getting old and my memory is not as good as it used to be, but didn’t I ask you yesterday whether at Melton you could issue tickets. Didn’t I ask you that yesterday?” His answer was, “Issue tickets?”
The transcript then records the following:
“Issue tickets? Yes. Had the right to issue tickets.
You know what I mean by that?--–No, we were not IATA accredited.
Well, that’s the point and I thought you told me you could?---No, I - - -
Because that’s why I asked the question?---Not.”
In my opinion his evidence given on the earlier date could not be put down to a loss of memory, or misunderstanding. He was very experienced in travel matters including the issue of tickets.
There were further matters concerning these tickets which raise real questions as to his honesty or lack thereof and his explanations for his conduct were, to say the least, evasive and lacking in belief.
The story of the airline tickets shows a significant level of criminality.
The appellant pleaded guilty to one charge relating to the use of invalid airline tickets, and accordingly has admitted every element of the charge of dishonestly obtaining property, namely, cash belonging to a client of his wife’s travel agency. Some of the statements of witnesses to be called in that prosecution were in evidence on this appeal. A plea of guilty does not mean that the convicted person admits all the facts stated in the depositions. The appellant was asked a number of questions concerning the evidence of the wrong doing. Some of his answers were less than satisfactory.
In considering the evidence, the appellant’s fairly long history of experience as a travel agent is to be taken into account. In particular, his knowledge that only IATA accredited travel agents can issue international airline tickets. I have already adverted to his change in evidence on this appeal when he stated that his wife’s agency could issue tickets and the following day, when pressed, he stated that she was not IATA accredited and accordingly did not receive IATA information. The evidence revealed that on 4 November 1991 the wife’s travel agency, through the appellant, purchased eight net airfare tickets, destination Europe, at $1,000 each from Travel Trend International. Prior to this sale the appellant had had some interest in that firm. On 1 February 1991, Denhall Pty Ltd trading as Travel Trend International, was authorised by IATA to issue tickets. However, later that year, IATA discovered that the firm was operating in breach of an agreement and its IATA accreditation was withdrawn. This occurred around about November/December 1991. When the IATA accreditation was withdrawn, a ticket audit was carried out and it revealed 28 IATA supplied airline tickets were missing. Their serial numbers were noted. The tickets were published as blacklisted tickets on 19 December 1991 in the IATA loss prevention bulletin to which IATA agents may subscribe and the matters reported to the Fraud Agency of the New South Wales Police. It appears that the appellant, acting on behalf of his wife’s travel agency, paid the purchase price for the tickets in February 1992. Nearly three years later the appellant sold two of the blacklisted tickets for travel on Lufthansa to two clients. The appellant admitted that he sold the tickets although one of the clients stated that the person who sold him the tickets was called Steven. The appellant denied that he had ever used the name Steven. Each ticket cost $2,171. The client in his statement said that the details on the Lufthansa tickets were in handwriting but he did not think that was unusual. One thing was very apparent when this evidence was placed before the Court, and that was that the travel agency, having spent money on the tickets, kept them for a number of years before they were used. It was put to the appellant that this was unusual because it was not a commercially sound decision. The appellant suggested that the reason was that they were limited tickets on Lufthansa and had a fixed destination of Belfast. An expert who looked at the tickets stated that they had been retained in a blank format and filled out as required with the details of each traveller, as no obvious corrections had been made to the tickets. It was put to the appellant that he held them back hoping that with the passage of time the fact that they were invalid would not have been observed. He denied that suggestion. I do not believe him. Further, between February and March 1996 a further six blacklisted tickets were issued by “Steven” on behalf of Karina Travel. Some of these tickets were used for flights on KLM Dutch Airlines. It was put to the appellant that he knew from the IATA information distributed in 1991-1992 that these tickets were invalid. It was then that he told the Court that his wife’s agency was not IATA accredited. The evidence strongly leads to the conclusion that he did purchase the tickets knowing that they were invalid. The price tends to support that view. Secondly, the delay in using them provides very strong evidence that it was all part of the appellant’s plan. Further, the expert’s evidence revealed that Karina Travel as a non‑IATA accredited agent “should not be in possession of blank, validated or blacklisted tickets”.
In a recent affidavit sworn by the appellant on 15 August 2005 he deposed in relation to the use of these tickets the following:
“My foolish actions were driven entirely out of self-interest. I would submit that those charges arose from my actions which were ill‑conceived and exhibited a lack of caution in dealing properly with the issuance of travel tickets, which in retrospect and with the benefit of hindsight I regret and have continued to regret, and I confirm that I would not for a moment place myself in such a situation ever again.” (Emphases added.)
I do not accept for one moment that his actions exhibited a lack of caution in dealing properly with the issuance of travel tickets. The evidence leads me to the conclusion that it was all part of a plan, that he knew the tickets were invalid, that he kept them for a number of years hoping their invalidity would not be noticed, and then sold them over a period of some two years.
He continued by saying:
“I reiterate and respectfully refer to the fact that no‑one suffered any financial loss and more importantly no individual who might have been inconvenienced objected to my admission. I also refer to the fact that they were matters that impacted on my judgment and occurred on or about 1994 and continued into 1996 at which time I had not commenced my law degree, but by the time the matter was determined I hadn’t thus appreciated that my actions fell far short of what would be expected of someone aspiring to practise in law.” (Emphases added.)
The question of objecting to admission is humbug. The only way anybody could ascertain that he was applying for admission was to look at the notice posted on a notice board in the Supreme Court. But more importantly, to say that the events occurred between 1994 and 1996 is a distortion of the truth. The dishonest conduct occurred when he purchased the tickets in circumstances where he knew based upon his experience in travel that the open tickets should not have been purchased by his wife’s travel agency taking into account that only IATA accredited travel agents can issue tickets. This conduct occurred two years after the alleged criminal conduct concerning the State Bank.
His evidence given before the Court amply demonstrates his careless approach to the truth, his attempt to distort what happened and his refusal to candidly admit his level of dishonesty.
Conclusion
The appellant carries with him a massive bag of dishonest conduct. It is a pattern of conduct committed over an extensive period. In 1978 he commenced imprisonment at the age of 23 years. He was released in 1980. His evidence was that he did not enjoy his period of incarceration. In the next ten years he came to Australia and left on a number of occasions but some time in 1989 whilst working with a travel agency debited on three or four occasions amounts on credit cards which it is alleged were not lawful. He was charged and the matter did not proceed because of a technicality. These events occurred approximately nine years after his release from prison. He relies upon the presumption of innocence. The fact is that charges were laid suggesting he had been dishonest. One might think that an honest person might have learned from his brush with the law. However, in late 1991 he purchased the airline tickets. This was the beginning of another dishonest transaction. In 1992 he denied before a licensing authority in the AAT that he had any convictions. He did so in the strongest terms. At the same time his wife was not permitted to allow him to be involved with a certain travel company. His wife in late 1995/early 1996 lost her travel agent’s licence. This came about because of her failure to exclude the appellant from involvement in the company. Again one might think that an honest man concerned with his reputation and character would not have put himself in a position which compromised his wife and his own reputation. In the meantime, in 1994 and 1996 he was carrying out his dishonest plan to use the invalid tickets. In November 1997 he pleaded guilty to one charge and was fined $1,000 without conviction. In 1997 he was charged with three counts of perjury. He commenced employment with the ANZ Bank and on 18 May 1998 was charged with six counts of theft and three of attempted theft. He does not appear to have learned from his experience to avoid any conduct which may bring him into contact with the criminal law. On filling in his MARA application he failed to reveal his pending charges and made a false declaration. In the meantime, after being sacked by the ANZ Bank he obtained money from Centrelink which resulted later in criminal charges. These were dropped in 2003.
His pattern of conduct raises a substantial question mark concerning his honesty and his character and reputation. He is a person who does not appear to have learned from his experiences during 1989 to 2000. He carries a very heavy burden of persuading this Court that he is a person of good character and reputation and a fit and proper person to practise law. He has not discharged that burden. The way he has presented himself to this Court shows a man who is loose with the truth and is prepared to distort the truth if he thinks it will help him. Often he was asked questions which he failed to answer and went off on some tangent seeking to minimise his criminality in the past. The evidence does not persuade me that the appellant has learned from his past experience, or that he is a person motivated to tell the truth.
I place very little weight on the evidence of the accountant Mr Wyatt who gave evidence concerning the character of the appellant. Mr Wyatt practises in Sydney. He sees the appellant from time to time. In his oral evidence, he did not give what I would describe as true character evidence. He did state on a number of occasions that in his dealings with the appellant he found him as an honest and decent person. He said that he was happy with the services provided. On the other hand he was unable to give any evidence of the appellant's general reputation amongst those who know him.
The appellant has to frankly and candidly state the level of his dishonesty in the past, and not seek to hide it. He must show that it will not reoccur. Unfortunately he has not demonstrated any of these matters to the Court. Indeed, he is one of those witnesses who, when asked a question, thinks how he should answer the question rather than answering it truthfully and accurately. It will take, in my view, many years of blameless conduct before one could have any confidence that the appellant has shed his past, turned over a new leaf and intends to pursue a blameless and honest career.
Because of my conclusion, it is unnecessary for me to consider the proposition put on behalf of the appellant by his counsel that his permission to be admitted should be subject to fairly stringent conditions, namely that for the first two years of his practise he should be an employee solicitor subject to supervision and secondly, that he should not have any direct involvement in handling clients' money or trust moneys. It appears that the second condition was for an indefinite period. The question did arise as to whether the Court has jurisdiction to permit admission subject to conditions. As presently advised, I have grave doubts that it could. However, it is unnecessary for me to further consider the issue.
In my opinion the appeal should be dismissed.
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