Hilton v Legal Profession Admission Board

[2017] NSWCA 232

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Hilton v Legal Profession Admission Board [2017] NSWCA 232
Hearing dates:	17 July 2017
Decision date:	18 September 2017
Before:	Bathurst CJ; Leeming JA; Sackville AJA
Decision:	(1) Grant leave to appeal. (2) Appeal dismissed, with costs.
Catchwords:	LEGAL PRACTITIONERS – application for certificate from local admission board in 2015 – applicant removed from solicitors roll in 1988 following conviction for conspiracy to corrupt Minister for Corrective Services – board refused to issue certificate – de novo hearing before primary judge – appeal from decision of primary judge dismissing appeal – no appellable error disclosed in decision that applicant had failed to discharge heavy burden borne by him – appeal dismissed
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 17 Crimes Legislation (Unsworn Evidence) Amendment Act 1994 (NSW) Evidence Act 1995 (NSW), s 91 Legal Profession Admission Rules 2005 (NSW), r 99 Legal Profession Uniform Admission Rules 2015 (NSW), rr 10, 14 Legal Profession Uniform Law (NSW), ss 16, 17, 19, 26, 28; cl 2 of Sch 4 Legal Profession Uniform Law Application Act 2014 (NSW), s 4; cl 3(3) of Sch 9 Supreme Court Act 1970 (NSW), s 101(2)
Cases Cited:	Branir Pty Ltd v Owston Holdings (No 2) Pty Ltd (2001) 117 FCR 424 Chen v Ng (British Virgin Islands) [2017] UKPC 27 Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 Dawson v Law Society of New South Wales [1989] NSWCA 58 Double Bay Law Pty Ltd t/a & Legal v Council of the Law Society of New South Wales [2013] NSWADT 182 Ex parte Clyne (1961) 62 SR (NSW) 436 Ex parte Lenehan (1948) 77 CLR 403 at 422; [1948] HCA 45 Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Hilton v Wells (1985) 157 CLR 57; [1985] HCA 16 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 Prothonotary of the Supreme Court of New South Wales v Leon Nikolaidis [2010] NSWCA 73 Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409 Prothonotary v Gregory [2017] NSWCA 101 R v Makisi [2004] NSWCCA 333; 151 A Crim R 245 Rexel Electrical Supplies Pty Ltd v Morton (as liquidator of South East Queensland Machinery Manufacturing and Distribution (Mining No. 1) (in liq)) [2015] QCA 235; 110 ACSR 341 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 The Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Ziems v The Prothonotory of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46
Category:	Principal judgment
Parties:	Howard Hilton (Applicant) Legal Profession Admission Board (First Respondent) The Council of the Law Society of New South Wales (Second Respondent)
Representation:	Counsel: DMJ Bennet AC QC; M Gaven (Applicant) CRC Newlinds SC; G Johnson (Second Respondent)   Solicitors: & Legal (Applicant) Law Society of New South Wales (Second Respondent)
File Number(s):	2016/360129
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2016] NSWSC 1617 Date of Decision: 17 November 2016 Before: Beech-Jones J File Number(s): 2016/135340

Judgment

1. THE COURT: In March and April 1983, Mr Howard Hilton, solicitor, participated in a conspiracy to corrupt the Minister for Corrective Services. The conspiracy involved the giving of bribes so as to favour three prisoners for whom Mr Hilton had acted, known in this litigation as “the Broken Hill Three”, in the administration of an early release prisoner scheme. Mr Hilton approached an intermediary (Mr Frank Hakim), obtained the $10,000 bribe from a brother of one of the prisoners, paid it to Mr Hakim, and later telephoned him, complaining that “Well, he [ie the Minister] has got his money, what’s the delay?” That telephone call was intercepted and recorded, apparently as part of a separate authorised operation relating to Mr Hakim. After an inquiry, Mr Hilton was charged, committed to trial, and ultimately convicted in November 1986 and sentenced to a period of imprisonment. He appealed against his conviction and sentence. In June 1987, his conviction was upheld, but the non‑parole period of the sentence was reduced. Mr Hilton was released from prison on 4 August 1989.

2. In June 1988, Mr Hilton’s name was removed from the roll of solicitors in New South Wales. Twenty seven years later, in March 2015, Mr Hilton applied for a certificate from the Legal Profession Admission Board (LPAB) which was a prerequisite to his readmission. The LPAB refused the certificate, because it was not satisfied that Mr Hilton was currently a fit and proper person to be readmitted as a lawyer. A judge in the Common Law Division (Beech-Jones J) reached the same view on appeal, following a rehearing with further evidence including cross-examination: Hilton v Legal Profession Admission Board [2016] NSWSC 1617. For the reasons which follow, Mr Hilton’s further appeal to this Court should be dismissed.

Mr Hilton’s offending conduct

3. The primary judge gave the following uncontroversial summary of Mr Hilton’s prosecution and subsequent appeal at [20]-[23]:

“On 8 July 1986, and following, Mr Hilton stood trial in this Court before Carruthers J and a jury on an indictment that charged him with conspiring between 1 October 1982 and 1 August 1983 with Keith Harris, Morres George, Fayez ‘Frank’ George and a person known as ‘witness X’ to ‘corruptly give’ to the then Minister for Corrective Services, Rex Francis Jackson, ‘sums of money’ as an inducement to ‘show favours to certain persons in violation of his official capacity’. Mr Hilton stood trial with Messrs Harris, George, Hakim and Jackson. At that stage Mr Hakim was due to stand trial separately. The other alleged co-conspirator, witness X, gave evidence for the prosecution.

On 8 November 1986, Messrs Hilton, Harris and George were found guilty. The jury could not agree in respect of Mr Jackson.

On 10 November 1986, Carruthers J sentenced Mr Hilton to penal servitude for 9 years with a non-parole period of 6 years, with the sentence to date from 6 November 1986. Mr Harris was sentenced to 9 years with a non-parole period of 4 ½ years. Mr George was sentenced to penal servitude for 5 years with a non-parole period of 3½ years: R v Harris & Ors, unreported, 10 November 1986, Carruthers J.

On 19 June 1988, the Court of Criminal Appeal dismissed an appeal against each of the three convictions. In the case of Messrs Harris and George an appeal against sentence was also dismissed. In the case of Mr Hilton, the appeal against his sentence was partially successful in that his non-parole period was reduced to 4½ years on the grounds that there was a lack of parity between his original non‑parole period and that ordered with respect to Messrs Harris and George: R v George & Ors, BC 8701346, unreported, 19 June 1987, Street CJ, Yeldham and Finlay JJ.”

4. The conspiracy was to corrupt the Minister for Corrective Services to receive a bribe to facilitate the early release from prison of prisoners for whom he had acted. For present purposes, it suffices to note two things.

1. First, the conduct constituting the conspiracy (essentially, reaching agreement as to the bribe, collecting the bribe and conveying it to Mr Hakim, and subsequently complaining on a telephone call to Mr Hakim about the delay in releasing the Broken Hill Three) took place over a period of around one month in March and April 1983.

2. Secondly, in 1985 there was a Commission of Inquiry, which recommended charges be laid. During Mr Hilton’s committal, he applied to quash the warrants pursuant to which the telephone calls in which he participated were recorded, and that application was removed to the High Court, where the constitutional validity was upheld: Hilton v Wells (1985) 157 CLR 57; [1985] HCA 16. He was tried and convicted in 1986, and his appeal against conviction was dismissed on 19 June 1987.

5. Mr Hilton maintained his innocence throughout his trial and on his appeal against conviction. He made an unsworn dock statement at his trial. He accepted before the primary judge that what he told the jury from the dock was false. (The right to make an unsworn statement in answer to a charge was abolished in New South Wales by the Crimes Legislation (Unsworn Evidence) Amendment Act 1994 (NSW).)

6. Ultimately, Mr Hilton served 2 years and 9 months (from November 1986 until August 1989) of his sentence although the stated non-parole period was 4½ years. (Prior to the Sentencing Act 1989 (NSW), whose long title was “An Act to promote truth in sentencing ...”, early release prior to the completion of the non-parole period was available to prisoners who were well behaved.)

7. While in prison, the Prothonotary moved in this Court that Mr Hilton be removed as a solicitor from the roll of solicitors. The application was unopposed, and upheld by Kirby P on 27 June 1988. The President gave brief reasons. His Honour was satisfied that it was appropriate to make the order; indeed, he regarded it as a plain case. His Honour’s state of satisfaction carried with it the opinion that Mr Hilton was probably permanently unfit to practise: Ex parte Lenehan (1948) 77 CLR 403 at 422; [1948] HCA 45.

Legislative and procedural background

8. The Legal Profession Uniform Law (NSW) (Uniform Law) is contained in a schedule to a Victorian statute, but is in force in New South Wales by reason of s 4 of the Legal Profession Uniform Law Application Act 2014 (NSW). Section 16(1) of the Uniform Law provides that the Supreme Court may admit an individual to the Australian legal profession as an Australian lawyer, but only if (among other things) the LPAB has provided the Supreme Court with a current compliance certificate in respect of the person: s 16(1)(a). A person may apply, in accordance with the Admission Rules, to the LPAB for a compliance certificate if the person proposes to be admitted in New South Wales: s 19. A prerequisite for the issue of a compliance certificate is that the person is “a fit and proper person to be admitted to the Australian legal profession”: s 17(1)(c).

9. Mr Hilton’s application for readmission as a lawyer in New South Wales was made under r 99(5) of the Legal Profession Admission Rules 2005 (NSW). His application was lodged on or about 27 March 2015, before the Uniform Law commenced on 1 July 2015. The savings and transitional provisions deemed that his application was made under r 14 of the Legal Profession Uniform Admission Rules 2015 (NSW) (Admission Rules) (see cl 3(3) of Sch 9 to the Legal Profession Uniform Law Application Act 2014 (NSW) and cl 2(2)-(4) of Sch 4 to the Uniform Law). Rule 14 of the Admission Rules sets out the material an application for readmission must contain in addition to an application for a compliance certificate under s 19(1) of the Uniform Law.

10. On 5 April 2016, the LPAB refused to issue a compliance certificate.

11. Section 26(1) of the Uniform Law confers upon Mr Hilton an appeal as of right to the Supreme Court against LPAB’s refusal to issue a compliance certificate. Section 28(1) provides that such an appeal “is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the designated local regulatory authority may be given on the appeal”. In determining the appeal, the Supreme Court may make “any order it considers appropriate”: s 26(4).

The proceedings before the primary judge

12. It was common ground before the primary judge that the “appeal” from LPAB’s refusal to issue a compliance certificate was a de novo hearing, in which evidence which had not been before the LPAB might be adduced. Mr Hilton relied upon one substantive new affidavit by him, on which he was cross-examined, as well as some 35 affidavits confirming and in some cases elaborating upon testimonials which had been provided to the LPAB. Eleven of those deponents were cross-examined relatively briefly. The hearing before the primary judge extended into a second day, and his Honour delivered judgment, promptly, some three weeks later.

13. The primary judge commenced his reasons with an overview (at [3]-[6]) which may conveniently be reproduced as a whole:

“… [T]he authorities dictate that Mr Hilton bears a heavy burden in persuading the Court that he is a fit and proper person and should be readmitted after having been removed from the roll of solicitors.

Mr Hilton nearly discharged the burden imposed upon him. Since his release from prison he has worked in positions of responsibility. He produced an impressive body of material testifying to his honesty. He is remorseful for his actions and now understands the damage that they caused, not just to himself and his family but to the legal profession as a whole.

Nevertheless, for the reasons that follow, Mr Hilton’s application must be dismissed. Mr Hilton’s offence had three extremely serious components relevant to this application. First, it involved the corruption of a public official at the highest echelon of government, namely, a Minister of the executive government. Second, the offence was committed in the course of Mr Hilton’s practice as a solicitor. Third, the offence operated to pervert the course of justice in that the proper administration of sentences imposed on persons by Courts was corrupted by bribery. His offence was in the worst category of offences affecting a person’s fitness and propriety to join the legal profession.

The authorities indicate that, while the fact of a conviction is important to an assessment of whether someone is fit and proper to be admitted to the legal profession, it is still necessary to inquiry into the circumstances surrounding the crime. In this case, I conclude that Mr Hilton’s involvement in the conspiracy involved him taking a number of steps over a sustained period, at all times knowing that his conduct was corrupt. I conclude that his actions were not the product of some momentary moral weakness, but of amorality on his part. The combination of that finding and the other circumstances of the offence mean that I am not satisfied that he is a fit and proper person, notwithstanding the passage of time, his conduct since the offence was committed, his contrition and the testamentary evidence produced on his behalf. I also find that to allow Mr Hilton to be readmitted to the legal profession would undermine public confidence in the legal profession and would be detrimental to the assumption of trustworthiness that all legal practitioners must adopt in dealing with each other.” [Citations omitted.]

14. His Honour thereafter reproduced, uncontroversially, the applicable provisions in the Uniform Law and the Admission Rules. As earlier noted, the question which arose was whether Mr Hilton was “a fit and proper person to be admitted to the Australian legal profession”. Section 17(2) of the Uniform Law (a) entitled the LPAB to have regard to “any matter relevant to the person’s eligibility or suitability for admission, however the matter comes to its attention” and (b) required the LPAB to have regard to the matters specified in the Admission Rules. Rule 10 relevantly prescribed the following matters, for the purposes of s 17(2)(b):

“10 Determining whether someone is a fit and proper person

(1)   For the purposes of section 17 (2) (b) of the Uniform Law, the following matters are specified as matters to which the Board must have regard:

(a)   any statutory declaration as to the person’s character, referred to in rule 16,

…

(f)   whether the person is currently of good fame and character,

…

(h)   whether the person has been found guilty of an offence including a spent offence in Australia or in a foreign country, and if so:

(i)   the nature of the offence, and

(ii)   how long ago the offence was committed, and

(iii)   the person’s age when the offence was committed,

(i)   whether the person has been the subject of any disciplinary action, howsoever expressed, in any profession or occupation in Australia or in a foreign country, …”

15. Those provisions were directed to how the LPAB would approach the determination of an application for a compliance certificate. They do not in terms apply to the appeal conferred by s 26. Nevertheless, the primary judge addressed those provisions. None of the 22 grounds of appeal complained of the approach his Honour had taken in this respect.

16. At [20]-[37], the primary judge summarised the background to the offence, the conviction, and the appeal. His Honour reproduced extracts from the judgments of Carruthers J (who presided over Mr Hilton’s trial), the Court of Criminal Appeal and Roden J (who sentenced the Minister, Mr Jackson) In particular, at [30] the primary judge reproduced part of the reasons of Roden J as follows:

“In April, 1983 three prisoners serving sentences at Broken Hill for cultivating marijuana, were released on licence under the early release scheme. Payment for this was obtained by Hilton, and passed through Hakim and Harris to Jackson. The actual amount paid is not clear on the evidence; there were negotiations at figures ranging from $8,000 to $12,000. The three men had been sentenced on 28 October, 1982 to a term of four years imprisonment with a non-parole period of one year.

In November, 1982, despite the very short period that they had then served, their names were included in a list of prisoners, generated in the usual way, and showing those who might be considered for early release. This apparently occurred under the normal operation of the early release scheme, and without any intervention by the parties to the conspiracy. Astonishingly, their release was recommended by a Probation and Parole Officer. However as the matter proceeded through the usual channels, the Superintendent of the gaol, and the Corrective Services Secretariat, both recommended against release at that very early stage, the Chairman of the Commission then decided against release, and no recommendation was made to the Minister. The prisoners were informed that they might apply again after serving six months of their non-parole period, that is on 28 April, 1983. They were given every reason to feel confident about their prospects of release then in the event of there being nothing untoward in their behaviour in the meantime.

By March, 1983 the matter was in the hands of the parties to the conspiracy. There was a deal of drama surrounding the payment made on behalf of the three prisoners. This led to the licences being delayed at one stage to avoid having the men released before payment was made, and later the matter being treated as a one of extreme urgency, on the communication to Jackson, via Hakim and Harris, of the grave concern expressed by Hilton, when there was a delay of some few days, increasing to eight days, between payment and actual release. The release of these three prisoners appears to have been in accordance with the general guidelines governing the early release scheme, but it was achieved some few weeks – perhaps a month – earlier than might have been expected in the normal course.” [Emphasis as added by Beech-Jones J.]

17. His Honour also reproduced the following passage from the reasons of Carruthers J as follows (at [32]):

“As to the prisoner Hilton, his appearance here is likewise a tragedy. He is now forty-three years of age, having practised as a solicitor of this Court for the last twenty years. Perhaps only a lawyer could appreciate the shame of being sentenced by the very court to which he was admitted as a practitioner. Hilton now stands disgraced before his peers and his disgrace is made poignant by the fact that he is obviously a gifted man who could have made his mark in the distinguished profession of which he is presently a member. This conviction will render the removal of his name from the roll of solicitors inevitable and yet on his behalf there has been the same unrelenting lack of contrition.

His motivation was clear enough. He believed that the facilitation by corrupt means of the early release of prisoners would enhance his practice in the criminal field.” [Emphasis as added by Beech-Jones J.]

18. The primary judge concluded this section of his reasons as follows (at [36]-[37]):

“These emphatic statements by very experienced and senior judges demonstrate not only the seriousness of the conspiracy that Mr Hilton joined in the 1980s but the significance of that crime to the issues of the day. During the period of the conspiracy those judicial officers occupied the most senior positions in the third arm of government in this State. They were attuned to the difficulties faced in public administration from the actuality, and perception, of corruption in State government institutions during that time. Their observations echo through the subsequent decades. A reoccurring theme of public debate since that time has been the best means by which corruption can be detected and deterred.

The above observations highlight the first of the three characteristics of Mr Hilton’s offence noted in [5]. The nature of the offence charged and the historical context in which the trial occurred perhaps explains why not as much emphasis was placed at that time upon the second and third aspects of the offences at the first. Needless to say they are of very much significance to this application.”

19. Paragraphs [38]-[68] summarised the evidence and made important findings under the heading “Mr Hilton’s explanation for an attitude towards the offence”. The section included findings in relation to the following five issues.

20. The first was a conclusion that, contrary to his defence and what he had said in his “dock statement”, Mr Hilton did know that Mr Jackson had received funds (either directly, or by way of a reduction in his gambling debt).

21. The second issue identified a series of steps undertaken by Mr Hilton comprising his participation in the conspiracy:

1. Mr Hilton approached Mr Hakim about seeking the release of the Broken Hill Three;

2. either then or shortly afterwards, Mr Hilton discussed the proposed fee of $10,000 with Mr Hakim;

3. Mr Hilton explained the operation of the scheme and the price to Mr Frank Falvo;

4. Mr Hilton collected the $10,000 fee from Mr Falvo;

5. Mr Hilton conveyed the $10,000 to Mr Hakim;

6. At some point Mr Hilton met with Mr Harris;

7. Mr Hilton received complaints from Mr Falvo about the continuing delay in the release of his brother and the other two co-offenders;

8. Mr Hilton participated in one or more telephone calls, which had been intercepted and were adduced in evidence at the trial, with Mr Hakim, to ensure that the men were released. Mr Hilton accepted that one of those calls, which had been replayed at his trial, recorded him saying words to Mr Hakim to the effect of “well, he [Mr Jackson] has got his money, what’s the delay?”.

22. As previously noted, the primary judge found that the steps comprising Mr Hilton’s involvement in the conspiracy took place over a period of around one month.

23. Thirdly, the primary judge found that Mr Hilton knew that what was being proposed was dishonest and corrupt from the time Mr Hakim first outlined the scheme to Mr Hilton.

24. Fourthly, his Honour was satisfied that “Mr Hilton is ashamed of his conduct and truly remorseful”: at [60]. His Honour was also satisfied that “he knows and accepts the seriousness of his conduct and the damage he has occasioned to the legal profession by his conduct”: at [60].

25. The fifth issue, which in some ways gives rise to the most remarkable aspect of this appeal, concerned Mr Hilton’s inability to explain why he committed the offence. Mr Hilton’s principal affidavit before the primary judge took issue with Carruthers J’s finding that Mr Hilton’s motivation was to enhance his criminal practice. The affidavit included the following:

“… I did not try to enhance my reputation as this alleged motive never entered my mind. My only motivation was to dispose of a matter that was troubling me (a brother of the ‘Broken Hill’ three had contacted me to remind me that at the trial I had promised to obtain a release on licence). I should have simply written a letter requesting early release. Why I did not take this course has troubled me and occupied my mind a great deal. In some ways this may be regarded as worse; completely amoral. Even at the time I became ashamed of my behaviour after the chain of events had been put in motion. I should have had the strength of character to reverse what I started. I did not. However, with my actions I was not seeking to enhance my business. I had more than sufficient work …” [Emphasis as added by Beech-Jones J.]

26. Mr Hilton was cross-examined before the primary judge about the choice he had faced at the time between writing a letter or telephoning the Department of Corrective Services in support of the release of the Broken Hill Three, and participating in a conspiracy to corrupt a Minister. Mr Hilton repeatedly – and, as the primary judge found, candidly – could not explain why he had made the choice he had taken. His evidence in cross-examination was that he was “absolutely” certain that he not been seeking to promote his practice as a criminal solicitor, but nevertheless gave this evidence:

““Q. So this is the position, you were confronted with a choice?

A. Yes.

Q. The choice was between doing something an appropriate way?

A. Yes.

Q. Or to do something the completely inappropriate way?

A. Yes.

Q. And for reasons you cannot explain, you chose to go down the inappropriate road?

A. Yes.

Q. And even after nearly three decades of reflection, you can’t explain why?

A. Not in any sensible way, no. I can say, and I have said to myself that my will might have been overborne by [Hakim] that I was worn down by his nagging, that I wasn’t very well at the time, that this or that. I cannot tell you why. It was a crack that happened and it happened. If I could have – if I could explain it in a simple way that we could all understand, I would have done it years ago.” [Emphasis as added by Beech-Jones J, at [63].]

27. Mr Hilton maintained that there was no inconsistency between his certainty that he had not participated in the conspiracy in order to promote his practice as a solicitor, and his inability to explain why he had chosen the course he had.

28. A deal of criticism was directed in this Court to the finding by the primary judge that Mr Hilton had participated in the conspiracy in order to enhance his criminal practice. The relevant passage in his Honour’s reasons is as follows (at [65]-[66], cross-references omitted):

“So far as it is necessary to determine why Mr Hilton joined the conspiracy I accept Carruthers J’s finding that he was motivated to enhance his criminal practice presumably by ensuring the early release of the Broken Hill Three rather than leaving it to the vagaries of Departmental discretion. His Honour was the trial judge and as such heard all the evidence concerning Mr Hilton’s conduct in the context of a trial of most of the alleged conspirators. His Honour heard the telephone recordings including those of Mr Hilton’s conversation with Mr Hakim noted above.

As for Mr Hilton’s evidence that he cannot explain why he participated in the conspiracy I accept that evidence was honestly given. However, Mr Hilton’s inability to explain why he committed the offence makes it more difficult for him to persuade the Court that he will not misconduct himself again albeit his contrition assists him.”

29. At [68], the primary judge recorded that Mr Hilton’s crime was not an impulsive one, but that he had “surreptitiously” and “deliberately” pursued a corrupt scheme over a “sustained period” knowing at all times that what he was doing was corrupt. His Honour recorded that Mr Hilton’s practice had been prosperous, he was not desperate or under any real pressure from anyone, and recorded that there was “no suggestion that [Mr Hakim] had any leverage over Mr Hilton”. His Honour concluded (at [68], cross-references omitted):

“As found by Carruthers J, Mr Hilton participated in the conspiracy in order to ‘enhance his practice’. I am satisfied that Mr Hilton’s conduct was not a display of his moral weakness or his desire to please others but of his amorality in the sense of an indifference to the unethical nature of his conduct. The passage from Mr Hilton’s affidavit set out above appears to reach the same conclusion. While that might show some insight, a finding of amorality means that he possessed the most damning type of character defect that a legal practitioner can ever possess. It renders the task of him persuading the Court that he has reformed that much more difficult.”

30. Paragraphs [69]-[73] addressed “Mr Hilton’s post release life”. This comprised three elements. First, following Mr Hilton’s failure to obtain work in legal publishing, he worked for around two years with an insurance agency selling various insurance products. Secondly, he then established a company operating a small finance brokerage business. Thirdly, from August 2013 to date, Mr Hilton has worked as a “lay associate” with the legal practice known as “& Legal”, following approval to do so from the Administrative Decisions Tribunal: Double Bay Law Pty Ltd t/a & Legal v Council of the Law Society of New South Wales [2013] NSWADT 182. He was subject to conditions that he not handle funds of the firm’s clients or be a signatory to the firm’s bank accounts, that he not tender legal advice, that he be supervised and that material sent under his name identify him as a “lay associate”. His work in that period included assisting counsel, appearing at mentions and directions hearings (pursuant to leave) and drafting correspondence. In 2014, he completed a Graduate Diploma in Legal Practice at the Australian National University, which had the effect that “the fit and proper person” requirement in s 17(1)(c) was the only outstanding requirement for a compliance certificate.

31. The primary judge observed that the evidence presented by Mr Hilton “does not reveal much about the scale and scope of the insurance and finance broking work undertaken by Mr Hilton”: at [73]. However, his Honour was prepared to observe that “the selling of insurance and finance broking can present opportunities for the unscrupulous” and that undertaking that work required Mr Hilton to display honesty and integrity, as had his performance of the duties of a lay associate. His Honour observed that “there was no suggestion that he did not do so and the testimonial evidence which I will refer to next suggests to the contrary”.

32. Paragraph [74]-[95] summarise the extensive testimonial evidence tendered in support of Mr Hilton’s appeal. The primary judge classified the testimonials into four categories. The first were affidavits from the principal and staff of & Legal, all of whom were aware of the facts and circumstances of his conviction, but regarded him as contrite, regretful, repentant and sorry. All were favourable. Mr Iacono (the firm’s principal) instanced an occasion where Mr Hilton identified inappropriate conduct by a client and intervened to have it rectified.

33. The second category were testimonials from solicitors, junior counsel and senior counsel who had met Mr Hilton since his release from prison in 1989, either socially or through his work as a finance broker or lay associate.

34. The third category were lay persons who had met Mr Hilton since his release from prison in 1989, either socially or as a finance broker or lay associate.

35. The fourth category constituted six persons (a retired Queen’s Counsel, a junior counsel, a practising solicitor, a retired executive director of Macquarie Bank, a chartered accountant and a company director), who had known Mr Hilton since prior to his conviction.

36. The primary judge concluded this section of his reasons as follows (at [93] and [94]):

“There is no doubt that the cumulative effect of all this evidence is to present a strong case that Mr Hilton is fully contrite for the conduct that led to his conviction and its consequential damage to the legal profession, a matter addressed above (see [60]). The material also demonstrates, and I accept, that Mr Hilton acted honestly as a finance broker and then as a lay associate. The material provides strong support for his case that he is now honest and ethical and, if admitted, presents no risk to the public or profession.

Nevertheless, the limits of this material need to be identified. They are best illustrated by considering the affidavits provided by those persons who have known Mr Hilton from before the time he committed his offence. It can be accepted that each of Mr Stratton QC, Mr Mordant, Mr Sharpe, Mr Gibson and Mr Arnold were good judges of character when they knew Mr Hilton in 1982. Their respective success in their careers since that time reinforces that assessment. Yet each of their assessments of Mr Hilton’s character in the 1980s proved to be completely mistaken. This simply reflects the truism that the very nature of serious transgressions committed by legal practitioners is that they are committed by persons who appear trustworthy and honest. Many of the ethical rules applying to legal practitioners can only be enforced by that practitioner’s own conscience. Much can occur behind the veil of legal professional privilege as often neither the unscrupulous or desperate client nor the unethical or weak practitioner have any interest in the privilege being lifted. Testimonial evidence cannot advance too far the analysis of how an applicant for admission will act when confronted with a conflict between compliance with rules of ethics and advancing a client’s cause. Mr Newlinds SC submitted that this is particularly so in this case when it is not really known why Mr Hilton committed the offence and thus the deponents are not able to opine upon what has changed about Mr Hilton other than the weight of the regret he bears from the damage that his conduct caused. There is considerable force in that submission.”

37. Finally, the primary judge recorded a submission advanced by the Law Society that the deponents had been selected on the basis that all knew and liked Mr Hilton personally. His Honour rejected that position, accepting Mr Hilton’s submission to the contrary.

38. The primary judge dealt with the issue of fitness and propriety at [96]-[117]. The primary judge recorded, by reference to authority, the following propositions.

1. The court was exercising a protective rather than punitive function.

2. The relevant question was whether Mr Hilton was currently a “fit and proper person”. The fact that an applicant had been convicted of an offence is relevant, but not necessarily determinative, and the court can inquire into the conduct of the trial and ascertain “the real facts of the case” (referring to Ziems v The Prothonotory of the Supreme Court of New South Wales (1957) 97 CLR 279 at 288; [1957] HCA 46).

3. Conviction of an offence is clearly relevant to an assessment of fitness but is not necessarily determinative.

4. Consideration was required to be given to the passage of time since the offence and the person’s age when the offence was committed. His Honour noted that although the offence had been committed some 34 years earlier, Mr Hilton had been 43 at the time, which his Honour observed was “an age where character is often fully formed. Human experience suggests that defects of character are harder to eliminate in the second half of life than the first” (at [103]).

5. Mr Hilton bore a heavy onus of demonstrating his current fitness and proprietary, having been removed from the roll of solicitors, which itself was based on a test of probable permanent unfitness.

6. There is a public interest in promoting the rehabilitation of practitioners who have previously transgressed.

39. His Honour referred to the requirement to have regard to whether the applicant was of “good fame and character” and at [106]-[109] addressed certain divergent approaches to the latter test. This need not be summarised, notwithstanding the submissions made in relation to this portion of his Honour’s reasoning on the appeal, because his Honour did not express any firm conclusion, and concluded expressly that “in the end result the outcome of this case does not turn upon any adverse assessment of Mr Hilton’s fame per se” (at [109]).

40. The primary judge accepted that “Mr Hilton has expressed contrition and is contrite” and that “his conduct since his release from prison is strongly in his favour, as are the considered opinions of the authors of the testimonials”. His Honour also accepted that:

“the prospects of him committing some further transgression of the same magnitude as his conduct in joining the conspiracy are so low that they can be discounted”: at [110].

41. At [111], the primary judge reproduced a passage from the judgment of Kirby P in Dawson v Law Society of New South Wales [1989] NSWCA 58, which distinguished (in the context of misappropriation of client funds by a solicitor) on the one hand offences committed over “an extended period, with deliberate intent” and resulting in severe losses by clients, with cases where “offences are isolated, when there is no evidence of prolonged deliberate conduct and where, to the full extent possible in the circumstances, the funds of clients have been restored”. In the first category of case, Kirby P had said that it would be “very difficult to contemplate any circumstances in which the name of the offender will be restored to the role”. In the second category, Kirby P observed that the public interest protected by this Court included the interest in restoring the practitioner to the roll.

42. An important paragraph in the primary judge’s reasons involved the application of those principles to the facts of the case:

“Obviously, there is no strict dichotomy between these two types of offending and this passage was not meant to exhaustively describe all the forms of offending that could result in disbarment. That said, Mr Hilton’s offending falls more in the first of the categories described by Kirby P in Dawson. His offending may not have occurred over an extended period but it was sustained conduct. His conduct involved “deliberate intent” and resulted in “severe losses” in the form of damage to the integrity of the State’s institutions of government and the legal profession. I would add that none of the authorities cited by either party involved an offence so incompatible with the role of a solicitor as that committed by Mr Hilton. The closest was Jackson, in which a person was refused admission in circumstances where ten years previously they had made a false statutory declaration and given false evidence.” (at [112], citations omitted)

43. In the following paragraph, his Honour expressed an ultimate conclusion:

“I described the three significant features of the offence committed by Mr Hilton in [5]. I have also set out the conduct of Mr Hilton that constituted his participation in the conspiracy, the time frame over which it occurred and his knowledge of his impropriety. I have also concluded that his crime was not just the result of some momentary moral weakness on his part but was demonstrative of his amorality (see [68]). Bearing in mind the heavy onus on Mr Hilton, that conclusion and the nature of his offence, I am not satisfied of his present good character and thus his fitness even all these years later and notwithstanding his efforts in the meantime, his contrition and the powerful testamentary evidence assembled on his behalf.” (at [113])

44. His Honour stated that he was “reinforced in his finding of unfitness” by the matters discussed by Mahoney JA in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 444-445, to the effect that it was necessary for members of the public, and members of the profession, to have a relationship of trust with persons admitted as legal practitioners. His Honour observed that members of the public and many solicitors who would deal with Mr Hilton would not have had the opportunity to familiarise themselves with his criminality. However, his Honour said that if such persons had full knowledge of the circumstances of his offence, the passage of time, and the matters said to support his readmission, even so his Honour considered that:

“the circumstances of the offence were so grave, and the significance of the finding of amorality was such that a decision to readmit him would undermine public confidence in the standards expected of the legal profession, and unjustifiably place members of the profession in the position of having to place trust in him when they would have been entitled to have serious reservation in doing so”.

45. Finally, at [117], the primary judge recorded a submission, also advanced on the appeal, to the effect that “if 34 years is not enough, one has to say, if not now, when”. However, notwithstanding Mr Hilton’s age, the primary judge expressly denied that his determination precluded any future application for readmission.

The nature of the appeal

46. Mr Hilton now appeals against the judgment of Beech-Jones J to this Court. Leave is required by reason of s 101(2)(r) of the Supreme Court Act 1970 (NSW): Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40. Leave was not opposed by the Council of the Law Society of New South Wales, which was the moving party at first instance, and is the second respondent to Mr Hilton’s appeal (the LPAB filed a submitting appearance). The appeal was conducted on the basis that there would be a grant of leave.

47. There was a lively exchange of submissions as to the nature of the further appeal to this Court, pursuant to s 101 of the Supreme Court Act 1970 (NSW). Mr Hilton was at pains to submit that he did not need to establish House v The King error in order to succeed. He submitted that the ultimate conclusion as to whether or not he was a “fit and proper person to be admitted to the Australian Legal Profession” was not a discretionary decision but instead a binary determination, namely, a “simple question of fact” (as it was put orally). He emphasised the proposition that the majority of primary facts were not only favourable to him, but were not subject to factual challenge, and so relied upon the nature of this Court’s appellate function as stated in Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9 to the effect that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn by findings of primary fact, and that in deciding the proper inference to be drawn, the appellate court will give respect and weight to the trial judge’s conclusion but, once having reached its own conclusion, will not shrink from giving effect to it.

48. On the other hand, the Law Society emphasised the restraint associated with Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, and maintained by reference to Branir Pty Ltd v Owston Holdings (No 2) Pty Ltd (2001) 117 FCR 424 at [24] that it was necessary to demonstrate error before this Court would intervene.

49. Mr Hilton is correct to deny that his appeal is constrained by the limitations attaching to the principles in House v The King. The rehearing, or “real review” of the proceedings before the primary judge, is in accordance with the principles stated in Warren v Coombs, not House v The King. That said, the distinction framed in oral submissions, that it was a “question of fact rather than a matter of discretion” creates a false dichotomy insofar as is relevant to this appeal. There are three (related) considerations which combine to constrain the exercise of appellate jurisdiction by this Court.

1. The first is that the test posed by statute of whether Mr Hilton is now a “fit and proper person” is one which is peculiarly evaluative and which accordingly warrants a measure of deference to the trial judge: see Singer v Berghouse (1994) 181 CLR 201 at 211-212; [1994] HCA 40 and Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 at [36]. In the latter case, the expression “just and equitable” was said to be a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. The same is true of the syntactically similar expression “fit and proper”.

2. The second is that when dealing with questions such as the weight to be given to the testimonial evidence from Mr Hilton as to why he participated in the conspiracy and to what extent there is any likelihood of further reprehensible conduct in the future, the primary judge enjoyed a considerable advantage in appreciating the tone, nuances, pauses and other aspects of Mr Hilton’s demeanour , which cannot be discerned from the transcript alone. To take for example the piece of evidence which is centrally relevant to this appeal, the primary judge enjoyed the very considerable advantage of seeing Mr Hilton give such limited explanation as he could for why he had participated in a conspiracy to corrupt a Minister.

3. The third is related to the second. It is the point recently reiterated by Lords Neuberger and Mance writing for the Privy Council in Chen v Ng (British Virgin Islands) [2017] UKPC 27 at [56]:

“... [S]pecific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”

50. That said, it is not necessary for the purposes of this appeal to identify with any greater precision its nature

The grounds of appeal

51. The notice of appeal contains no fewer than 22 grounds. In oral submissions, Mr Bennett QC focussed on the principal ground of appeal, ground 4, which was that the ultimate conclusion that Mr Hilton was not currently a “fit and proper person … was not properly open to the primary judge on the evidence before the Court” and that “the proper conclusion to be drawn from the established facts was that Mr Hilton currently is a fit and proper person to be admitted to the Australian legal profession.” Ground 4 particularised the following 10 unchallenged factual findings made by the primary judge:

“i. The Plaintiff ‘presents no risk to the public or profession’ (J[93]);

ii. ‘the prospect of him committing some further transgression of the same magnitude as his conduct in joining the conspiracy are so low that they can be discounted’ (J[110]);

iii. the Plaintiff ‘is contrite’ (J[109]), ‘ashamed of his conduct’, ‘truly remorseful’ (J[60] and ‘remorseful for his action’ (J[4]);

iv. the Plaintiff ‘understands the damage that he caused, not just to himself and his family but to the legal profession as a whole’ (J[4]; see also J[60]);

v. ‘he now accepts the seriousness of his conduct and the damage occasioned to the legal profession by his conduct’ (J[60];

vi. he ‘has insight into the gravity of his conduct’ (J[98]);

vii. he was an honest witness (J[66]);

viii. the Plaintiff held positions of responsibility since his release from prison (J[4], J[69] with the evidence establishing that he performed those roles with honesty and integrity (J[73]);

ix. the Plaintiff is ‘honest and ethical’ (per the testimonial material); J[93];

x. the body of uncontradicted testimonial material as summarised at J[74]-[93]”.

52. Mr Hilton’s written submissions were also addressed to the remaining 18 individual grounds (grounds 1, 2 and 3 were general, and may be passed over). However, the oral submissions did not address the individual grounds but sought to counter the findings particularly adverse to Mr Hilton’s application, namely:

1. Mr Hilton “surreptitiously and deliberately pursued a corrupt scheme over a sustained period in circumstances when at all times he knew what he was doing was corrupt” and that his conduct was a display of “amorality in the sense of an indifference to the unethical nature of his conduct”;

2. Mr Hilton had possessed the “most damning type of character defect that a legal practitioner can ever possess” [ie amorality], rendering “the task of him persuading the Court that he has reformed that much more difficult”; and

3. a decision to readmit Mr Hilton would undermine public confidence in the standards expected of the legal profession and would “also unjustifiably place members of the legal profession in the position of having to place trust in Mr Hilton when they would be entitled to have serious reservations in doing so.”

53. It will be convenient to follow the course adopted by Mr Bennett in oral address and deal with each of those matters in turn, and then to address points emerging on the remaining grounds. However, it is appropriate first to resolve a discrete issue, which was a challenge to a finding of fact.

The finding that Mr Hilton’s purpose was to enhance his practice

54. There was only one matter of primary fact in relation to which this Court was invited to intervene. That was his Honour's finding at [68], in accordance with the basis on which Carruthers J had sentenced Mr Hilton, that he had participated in the conspiracy in order to enhance his practice. In written submissions in reply and orally on appeal, although not before the primary judge, it was submitted that his Honour had erred in relying on the reasons of Carruthers J, which was said to be contrary to s 91 of the Evidence Act 1995 (NSW). This submission was supported by what was recently said in Prothonotary v Gregory [2017] NSWCA 101 at [23].

55. However, the Court in that case was not referred to the substantial line of authority conveniently collected in Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]-[272] where the point was considered in some detail to the effect that “not admissible” in the Evidence Act means “not admissible over objection”. To the same effect (although not reviewed in Perish) is the unanimous decision of the High Court of Australia in Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 at [57]:

“The note did not become part of the record in consequence of being tendered by either party; but neither party objected to receipt of the note as part of the record. In the proceedings in the Court of Appeal and in this Court, no objection was taken to the note on the ground that it was hearsay. Given these circumstances, the question is not whether it is inadmissible as hearsay, but whether it has any probative value.”   

See also Rexel Electrical Supplies Pty Ltd v Morton (as liquidator of South East Queensland Machinery Manufacturing and Distribution (Mining No. 1) (in liq)) [2015] QCA 235; 110 ACSR 341 at [19].

56. To return to the reasons of Carruthers J, Mr Hilton tendered those reasons at the outset of the hearing before the primary judge. The reasons were tendered without objection. Section 91 does not apply.

57. Further, the change of stance by Mr Hilton in his submissions in reply, and his oral submissions, attracts the principles in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35. Parties may not raise new arguments on appeal if the contention could possibly have been met by evidence at the trial. Had Mr Hilton not tendered the reasons of Carruthers J and had he indicated that he would object to reliance being placed upon them, then the Law Society may well have taken steps to explore Mr Hilton’s motivation at the time. For example, conspicuous by its absence from the documents tendered before the primary judge was the report of the Special Commission of Inquiry, or the evidence available to that inquiry. And it is plain from the reasons of Roden J that there had been a deal of evidence as to precisely what had occurred in 1983 which was not in evidence before Beech-Jones J (for example, Roden J recorded that “there was a deal of drama surrounding the payment”).

58. It is not necessary, therefore, to deal with the effect of s 91 if objection had been taken to Mr Hilton’s tender of the reasons of Carruthers J. It is also not necessary to deal with a point (raised during the hearing of the appeal) as to the relationship with the power conferred by s 17(2)(a) of the Uniform Law to “have regard to any matter relevant to the person’s eligibility or suitability for admission, however the matter comes to its attention” and any restriction imposed by s 91 of the Evidence Act.

59. There is, with respect, an inconsistency with Mr Hilton being unable to explain precisely why he did so, and his position of absolute certainty that it was not for the reason confidently ascribed to it, decades closer to the time, by the trial judge who had seen the evidence at the trial. And the primary judge saw Mr Hilton’s explanation reproduced above as it was given. There was no error in the primary judge rejecting Mr Hilton’s denials that he had not participated in the conspiracy in order to enhance his practice.

60. It was also put that there was a minor inconsistency in the finding that Mr Hilton’s participation in the conspiracy was “surreptitious” and the conclusion that his motive was to enhance his practice. There is nothing in this. The enhanced practice anticipated by Mr Hilton was with the criminal underworld. The reference to surreptitious was to Mr Hilton’s conduct passing undetected by lawful authorities. There is no inconsistency between the two.

Participation in a corrupt scheme over a “sustained period” and “amorality”

61. Mr Hilton challenged the language used by the primary judge. He said that rather than pursuing a corrupt scheme, “participated” would have been more accurate, although acknowledging (correctly) that nothing much turned on that. Two issues of greater importance turned on the description of Mr Hilton’s offending conduct as occupying a “sustained period” and the finding of “amorality”.

62. Mr Hilton submitted that the roughly one month period in March and April 1983 was not a “sustained period”. The unchallenged finding of primary fact is that Mr Hilton’s participation in the conspiracy “probably” took place “over a period of a month”: at [52]. Reading that finding with the reference at [68] to Mr Hilton “surreptitiously and deliberately pursued a corrupt scheme over a sustained period in circumstances when at all times he knew what he was doing was corrupt” it is clear that the “sustained period” to which the primary judge referred was a period in the order of a month. Further, the primary judge, favourably to Mr Hilton, and in the dispositive part of his reasons, accepted that the offending “may not have occurred over an extended period but it was sustained conduct”: at [112].

63. There is no error in describing the period of Mr Hilton’s active involvement in the conspiracy by either of the expressions used by the primary judge. What is clear is that it was not a momentary lapse of judgment, but rather conduct occurring over a number of weeks, during which Mr Hilton appreciated the criminality but nevertheless continued to participate.

64. It is also to be borne in mind that Mr Hilton maintained his innocence over a lengthy period. He commenced proceedings, as he was entitled to do, seeking to invalidate on constitutional grounds the law pursuant to which his conversation with Mr Hakim had been recorded. These proceedings, which were removed to the High Court, were designed to prevent the recording being played to the jury at his criminal trial. When the constitutional proceedings were dismissed and the trial took place Mr Hilton lied to the jury in an attempt to persuade them to bring in a verdict which he knew would be contrary to the facts.

65. The attempt to minimise the gravity of Mr Hilton’s criminal actions by disputing the primary judge’s description of “sustained conduct” faces the further obstacle that Mr Hilton was prepared, years after being charged, to lie in a courtroom, albeit not on oath. Mr Hilton’s actions in the courtroom were not criminal but they demonstrate a capacity for calculated dishonesty that bears on whether the primary judge was entitled to conclude that he is not a fit and proper person to be readmitted to practise.

The finding of “amorality”

66. Mr Hilton maintained that distinctions between immorality and amorality did not take the case much further. Mr Bennett QC observed, rhetorically, that “the question of whether amorality is worse than immorality would make a fascinating debating topic in a religious seminary” and added that the label did not much assist the critical questions, which was to evaluate the seriousness of the offending conduct, and how it affected the critical question, which was how it affected the prospects of rehabilitation. There is some force in Mr Hilton’s criticisms as to the aridity of a distinction between immorality and amorality in this context. However, the references to Mr Hilton’s “amorality” were taken from his own affidavit, in which he attempted to explain why he did not simply write a letter requesting early release. Mr Hilton gave evidence that:

“why I did not take this course has troubled me and occupied my mind a great deal. In some ways this may be regarded as worse: completely amoral.”

67. His Honour’s references to “amorality” merely picked up, and accepted, what Mr Hilton had himself said of his own criminal conduct.

68. Mr Hilton’s submissions on these two issues reflected a understandable forensic desire to direct attention to the more recent past, rather than the offending conduct which caused him to be struck off. However, the evaluative judgment of fitness and propriety involves a balancing process, as disclosed by the following exchange:

“BATHURST CJ: ... Would you accept that the gravity of the offence is something to be weighed in the balance with the rehabilitation which has taken place in reaching the ultimate conclusion whether or not your client is a fit and proper person to be readmitted?

BENNETT: Yes, your Honour, but only for that purpose.

...

BATHURST CJ: Why isn’t that what the judge did? I understand what you say about amorality [and] immorality, but in effect the judge said, well putting it very, very simply, not doing him justice, this was an extremely grave offence striking at the heart of the administration of justice. True it is that Mr Hilton has taken extremely strong steps to rehabilitate himself. There was some difficulty about contrition, but he accepted he was contrite and in those circumstances but balancing all those factors I remain of the view at the present time he's not fit and proper. I accept what you say about House v The King but why is that an erroneous means of analysis?

BENNETT: Your Honour, the methodology may not be erroneous, but the conclusion is. Because it ignores the 34 years, it ignores the extent of the rehabilitation, the finding of the present absence of risk, the finding of the, as I say, the total rehabilitation from which the only conclusion one can draw is that he isn’t a fit and proper person and then says, no, we look at this one event over a period of one month, a single transaction over one month, I'll come back to that, 34 years ago.”

69. Contrary to Mr Hilton’s response, and to anticipate what follows, it was open to the primary judge to reach the conclusion that he did. If indeed the primary judge had ignored the three decades which had elapsed, the extent of the rehabilitation, the present absence of risk, then the evaluative exercise performed by his Honour would have been vitiated. But no one could read the judgment without concluding that the primary judge was acutely conscious of all of those matters.

Confidence in members of the legal profession

70. The third main submission advanced orally was that it was for the primary judge to determine for himself whether Mr Hilton was a fit and proper person, and that it was not to the point to attempt to determine whether another solicitor would share that conclusion, especially when that other solicitor might not have the advantage of all of the evidence which the primary judge had before him. This was said to be “just not an appropriate form of legal reasoning in this type of case”.

71. This submission may be resolved concisely. First, this aspect of the reasons of the primary judge followed his Honour’s conclusion that Mr Hilton was not a fit and proper person, and was expressly not dispositive. It commenced at [115] with the words “I am reinforced in this finding of unfitness”. Secondly, his Honour was doing no more than applying what Mahoney JA had said in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 444-445, which the primary judge reproduced extensively. Thirdly, we consider that it was entirely correct to proceed on the basis that public confidence in the standards of the profession would be impaired by readmitting Mr Hilton, and that solicitors who would deal with him would have serious reservations in doing so. Accepting that Mr Hilton’s crime occurred 34 years ago, and that he has worked in positions of trust thereafter, the fact that to this day he cannot explain why he committed such a serious crime is a matter which is apt to undermine public confidence as well as the trust which practitioners are entitled to enjoy within the profession.

Rehabilitation and Mr Hilton’s inability to explain his motivation

72. An understanding and acknowledgement of wrongdoing is vital to an assessment of rehabilitation. This point was made in the following exchange:

“BATHURST CJ: That is all the more reason why it may well be important to have some understanding of why he committed the offence. He is saying he felt bad about it and yet he did it and he pleaded not guilty. Now there may be an explanation for all of that, but Mr Hilton unfortunately didn’t give one.

BENNETT: Your Honour, the explanation is that he lapsed, he did something which he knew was wrong and he is asked 34 years later to give a reason for that. It is not easy. However much he has been thinking about it, the reason for doing it is perhaps not something that he would regard as the most important thing. It is more the fact that he did it and that he regards it as wrong and that he is contrite about it. That is what is important. And his Honour accepts, specifically accepts, the truthfulness of his inability to give a reason.”

73. The fact that Mr Hilton “lapsed” is not, with respect, an explanation. It is merely a benign way of stating the fact of the crime, which sheds no light on the reason or reasons motivating Mr Hilton to commit the crime.

74. Further, that answer (and other oral and written submissions advanced on behalf of Mr Hilton) emphasised the time that had passed. For example:

“34 years is a very long time, and whatever age one starts from it is a very long time in a person’s life, it is a very long time in the history of events, and in my respectful submission once one acknowledges the possibility that there can be rehabilitation in relation to an offence of this nature, one has to say why isn’t 34 years enough?”

75. One aspect of these submissions should be corrected. The offending conduct took place slightly more than 34 years ago. But as we have pointed out, Mr Hilton lied to the jury at his trial several years later. Carruthers J when sentencing Mr Hilton in November 1986 referred to his “unrelenting lack of contrition”. If the focus is on the period of time throughout which Mr Hilton has attempted to rehabilitate himself, it would be more accurate to refer to three decades, rather than 34 years.

76. The more significant response to this submission is that the mere fact that three decades had passed, during which the evidence disclosed Mr Hilton’s conduct to have been blameless, does not predetermine the evaluative decision on applications such as this. Mr Hilton had the heavy burden of displacing a decision against him as to probable permanent unfitness by positively demonstrating rehabilitation: Ex parte Clyne (1961) 62 SR (NSW) 436 at 441; Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461.

77. An example of what may be required to displace this burden can be found in Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45. A majority of the High Court held that a man who had committed dishonest acts involving the moneys of employees and clients in 1928 and 1929 when aged 25 to 26, and giving false explanations in endeavours to exculpate himself subsequently, had undergone a sufficient transformation to be readmitted (at 424-5):

“[Mr Lenehan] has since given further proof of good character by his war service, and has undergone a discipline and a set of experiences which should contribute somewhat more to the strengthening of his moral nature and the raising of his standards and, indeed, of his outlook on life.

…

The present case discloses the strongest contrast between two periods, one of early manhood under bad influences without proper guidance and dealing with difficult circumstances; the other of a fully adult life of seemingly correct and exemplary conduct and every outward manifestation of good character. A fine war record is something which ought to count in such a question.

In short this appears to be a case in which this Court ought to give effect to the view that the adverse conclusions that might otherwise be drawn from an unsatisfactory beginning may be displaced by a completely satisfactory subsequent career sustained over a lengthy period of time. The true conclusion from all the material before the court is that the appellant now is a fit and proper person to be admitted as a solicitor.”

78. In Mr Lenehan’s favour were his youth and difficult circumstances at the time of the dishonest conduct, and an unfaltering good record in the later part of his life, including military service from September 1939 until April 1946. The majority emphasised that what was necessary was more than merely a period of unblemished conduct.

79. In Tziniolis, this Court refused an application for an order directing the New South Wales Medical Board to register the applicant as a medical practitioner, on the grounds that the applicant was not a person of good character.

80. Walsh JA framed the issue of reformation of character in the following terms (at 461):

“Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he is known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant.”

81. These principles have been repeatedly approved in this Court: see for example Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, Prothonotary of the Supreme Court of New South Wales v Leon Nikolaidis [2010] NSWCA 73 at [23]; The Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428 at [40] and Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409 at [78].

82. It is true that many more years have passed in the case of Mr Hilton, and that he is, now, genuinely contrite. But the approach taken by Walsh JA shows that the entirety of Mr Hilton’s conduct must be weighed to determine his current fitness and propriety.

83. In short, the evaluative balancing process adopted by the primary judge was correct, and his Honour’s conclusion was one which was open to him in light of the evidence as a whole, and the heavy onus which Mr Hilton bore.

84. The balance of these reasons address the remaining grounds of appeal, and relatively concisely, in light of the foregoing.

Grounds 5 and 6 – failure to address Mr Hilton’s current fitness

85. Ground 5 was said to be that the primary judge “erred in fact and law in placing undue consideration” on Mr Hilton’s character at the time of the crime, with the effect of failing properly to assess his current state of fitness. There is nothing in the ground. On a fair reading of the reasons of the primary judge, his Honour was at pains to have regard to both Mr Hilton’s character at the time, and his (rehabilitated) character today.

86. Ground 6 alleged error in such finding as there was by the primary judge that Mr Hilton was currently amoral. This was said to flow from what was said at [6], [68] and [113]. It was said to be at odds with the primary judge’s other positive findings of fact, could not have been found without expert psychological evidence and was not the case advanced by the Law Society. Once again, the primary judge made no such finding.

Grounds 7 and 8 – Rehabilitation evidence

87. The ground complained that the primary judge had failed properly to consider the testimonial evidence of Mr Hilton’s rehabilitation. The complaint, which was only advanced in writing, was that “scant regard” had been given to testimonial evidence favourable to Mr Hilton as to his change of character. The written submissions gave a single example, which was that a junior barrister had said during cross-examination:

“the difference in the person back all those years ago and the person subsequently that I’ve come to know are in a different sphere; they are different people.”

88. There is nothing in this ground. The primary judge made favourable findings about Mr Hilton’s rehabilitation. Further, in relation to the particular evidence relied upon by Mr Hilton, the primary judge expressly found that he was one of the witnesses who had known Mr Hilton prior to his offending and who accepted that his assessment of Mr Hilton’s character in the 1980s had proved to be completely mistaken.

89. Ground 8 was to much the same effect. The complaint is that the primary judge had erred by “placing undue limitations” on the weight to be given to the substantial body of testimonial evidence. His Honour did not do so.

Ground 9 – Mr Hilton’s age at the time of offending

90. This ground alleged that the observation by the primary judge that “defects of character are harder to eliminate in the second half of life than the first” was irrelevant, because the evidence adduced was to the contrary, the observation was contrary to the statutory scheme which expressly provided for the possibility and opportunity for change, and was “simply wrong in fact and without any evidential basis”.

91. There is nothing in this. The prospect that youthful criminal conduct is susceptible to rehabilitation more so than offending conduct in the second half of life is invoked and applied on a daily basis in the sentencing of young offenders. It is evident in the reasons of the High Court in Ex parte Lenehan (1948) 77 CLR 493, for example in the reference to the period “of early manhood under bad influences and proper guidance in dealing with difficult circumstances” which Mr Lenehan faced at 424. Walsh JA in Tziniolis said at 461 that “adverse findings on the facts relating to an earlier period when he was already mature in years make it difficult to come to a conclusion that he is now of good character at this later time.” There are many examples of sentencing courts having regard to the fact that an offender is youthful. “The sentencing of a twenty year old is a very different procedure from the sentencing of a twenty-five year old”: R v Makisi [2004] NSWCCA 333; 151 A Crim R 245 at [33]. It derives statutory recognition in, for example, s 17 of the Children (Criminal Proceedings) Act 1987 (NSW) permitting offenders who are under 21 to serve part or all of their sentence as a juvenile offender. In the legislative regime applicable to Mr Hilton’s application, it derives from r 10(1)(h)(iii) which required the LPAB to have regard to Mr Hilton’s age when the offence was committed.

Grounds 10-11 – Onus of proof

92. Ground 10 complained that there was error in not articulating in which respect Mr Hilton fell short of discharging the burden imposed on him. But there was no obligation upon the primary judge to put forward hypothetical matters which might, had they been established, have led to a different ultimate conclusion. This ground was linked to the (erroneous) assertion that the primary judge had found that Mr Hilton could never be readmitted.

93. In any event, as Mr Bennett QC acknowledged during the course of the hearing of the appeal, one could readily contemplate scenarios in which the rehabilitative and redemptive conduct of the applicant was substantially greater than that manifested by Mr Hilton. For example, one could contemplate an applicant who had spent many years working on a voluntary basis in providing legal advice in community centres, or non-legal professional advice. One could contemplate a person who needed to generate an income to support his or her family who devoted one day each week to charitable or benevolent works. Conspicuous by its absence from the entirety of the evidence put forward by Mr Hilton is any voluntary, pro bono or charitable work performed by him, by way of an attempt to repair the damage he had done to legal system.

94. Ground 11 was that in finding that Mr Hilton had not discharged the onus, the court had elevated the standard of proof to a standard beyond the balance of probabilities. No separate submissions were made directed to that ground, orally or in writing. In any event, that is not what the primary judge did on a fair reading of his Honour’s reasons.

Grounds 12-13 – public interest

95. Grounds 12 and 13 complained that the primary judge had failed “to have proper regard” to the submissions which had been made as to the important public interest in redemption, rehabilitation and the utilisation of skills, given the favourable findings in that regard, and that his Honour had “erred in fact and law in failing to properly apply” the consideration of the public interest in the protection of the public, given the favourable finding that the appellant would not present a risk to the public if readmitted. These grounds go no further than ground 4, dealt with above.

Grounds 14-17 – absence of explanation

96. Grounds 14-17 were all directed to the explanation (or absence of explanation) offered by Mr Hilton for his offending conduct. It was said that there was error in finding that he did not offer “any” explanation, in so far as it was contended that Mr Hilton provided the best explanation he was able to (Ground 14). It was also said that the primary judge’s reasoning to the effect that Mr Hilton’s “inability to explain” why he committed the offence made it more difficult for him to persuade the Court that he would not misconduct himself again was erroneous, having regard to the length of time that had elapsed, the favourable finding that no transgression of the same magnitude would be committed in the future, and the other favourable findings (ground 16). It was said that the primary judge had proceeded on an erroneous assumption that Mr Hilton’s inability clearly to articulate his reasons for committing the offence was critical to proving he was currently a “fit and proper” person for readmission (ground 17). In light of the oral and written submissions made in relation to it, ground 15 should be stated in terms:

“The primary judge erred in fact and law (J[67],[68]) by ignoring or insufficiently appreciating the evidence found by the trial judge (Carruthers J) with regard to the state of mind of the plaintiff at the time of the commission of the offence, being “…that in 1983 he was suffering emotion disorders of such severity as to require professional treatment.”

97. In light of what has already been said, these grounds may be addressed concisely. In our view, the primary judge was entirely entitled to proceed on the basis that the inability on the part of Mr Hilton clearly to explain why he had committed such a serious crime was central to the assessment of whether he was currently a “fit and proper” person to be readmitted to the profession. Further, the primary judge – with respect, meticulously – encapsulated, and in large measure quoted, Mr Hilton’s own evidence as to why he had participated in a conspiracy to corrupt a Minister. The primary judge entirely accurately recorded that Mr Hilton’s answer – to a question which must have been one which he anticipated he would be asked in cross‑examination was, “I haven’t the faintest idea”.

98. There must have been one or more reasons for Mr Hilton choosing to participate in the conspiracy, including engaging in the conduct earlier summarised. The fact that Mr Hilton could not give an explanation for why he had done so, notwithstanding its significance in respect of his profession and indeed in respect of his liberty, bore directly upon whether he could satisfy the Court that there would be further misconduct in the future.

99. Ground 15 is antithetical to the submissions advanced in writing (only in reply) and orally to the effect that it was wrong for any regard to be had to the reasons of Carruthers J. But in any event, there was no error in the primary judge giving predominant weight to the testimonial evidence of Mr Hilton, including his evidence in cross‑examination, as opposed to what was recorded by Carruthers J (it may also be noted that, at least in the appeal books, and presumably also in the materials supplied to the trial judge, this aspect of the remarks on sentence is so poorly reproduced as to be almost illegible).

Grounds 18-19 – assessment of the character of the offending conduct

100. Ground 18 was that the primary judge had erred in finding that Mr Hilton’s offending fell “more into the first” of the categories described by Kirby J in Dawson v Law Society of NSW: at [112]. There is nothing in this ground. As is acknowledged in its formulation, the primary judge preceded on a more nuanced basis, observing that there was “no strict dichotomy” between offending committed over an extended period with deliberate intent and resulting in severe losses by clients on the one hand, and isolated offences with no evidence of prolonged deliberate conduct and where funds of clients have been restored so there is no eventual pecuniary loss. His Honour correctly observed that “the offending may not have occurred over an extended period but it was sustained conduct”. We respectfully agree with the primary judge’s characterisation of the conduct.

101. Ground 19 is similar. It is said that the primary judge erred in categorising Mr Hilton’s offence as “the worst category of offence” affecting the person’s fitness and propriety. Bearing in mind that the offence was committed by a solicitor (as the primary judge emphasised at [5] of his reasons) it was entirely correct to categorise a conspiracy to bribe a Minister in that fashion. This ground also alleges error as characterising the offence as one “committed over an extended period, with deliberate intent and resulting in severe losses by clients”. This is simply an inaccurate summary of the reasons of the primary judge, for the reasons given in answer to ground 18 above. No attempt was made to articulate this aspect of ground 19 in either written or oral submissions. Indeed, Mr Bennett at one stage appeared to accept that no worse class of offending could be committed by a solicitor:

“... [N]o authority involves an offence so incompatible with the role of the solicitor as that committed by the appellant. That seems to be the real thrust of what his Honour is saying, regardless of whether you describe it as amorality or immorality or whatever. It’s hard to concede of a more serious offence, isn’t it, to be committed by a legal practitioner, in this case of 16 years standing at the time it happened?

BENNETT: Yes, your Honour, 34 years ago. That is fully accepted.”

102. Finally, this ground alleges error in the finding that the offence was committed over a sustained period of time, which has been addressed above. This ground should be dismissed.

Grounds 20-22 – undermining public confidence

103. Grounds 20 and 21 allege error in the finding that readmitting Mr Hilton would undermine public confidence in the standards expected of the legal profession and a particular error at [116] that members of the legal profession would be required to place trust in Mr Hilton when they would be entitled to have serious reservation in doing so, in light of the favourable findings made by the primary judge. Ground 22 was that there was error in assessing fame and character from the perspective of a person not privy to all of the facts, being a reference to the statements made by the primary judge to the fact that members of the public and other solicitors would not be aware of all of the evidence he had seen. These grounds are wholly addressed by what has already been said above. Hilton had been accepted by his clients and other legal practitioners. These grounds should be dismissed for the reasons given in response to ground 4. Finally, ground 22 asserted error in failing to find that an assessment of fame and character was to be made in respect of a reasonable person privy to all the facts of the case, “not a subset of isolated facts”. This ground was directed to [116], and the proposition that the public and solicitors with whom Mr Hilton would deal would not have had the opportunity to acquaint themselves with him, unlike the authors of the testimonials. Again, there is nothing in this ground. His Honour’s findings disclose no error; indeed, they are self‑evidently correct.

Orders

104. For those reasons, although there should be a grant of leave, the appeal must be dismissed. There is no reason for costs not to follow the event.

105. The orders of the Court are:

1. Grant leave to appeal.

2. Appeal dismissed, with costs.

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Decision last updated: 18 September 2017