Hilton v Legal Profession Admission Board

[2016] NSWSC 1617

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Hilton v Legal Profession Admission Board [2016] NSWSC 1617
Hearing dates:	24 October 2016
Date of orders:	17 November 2016
Decision date:	17 November 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1)   The Summons filed 12 May 2016 be dismissed. (2)   The proceedings stand over to 9.30am on 29 November 2016 for mention.
Catchwords:	LEGAL PRACTITIONER – appeal from decision of Legal Profession Admissions Board to refuse applicant a “compliance certificate” – applicant admitted as solicitor in 1966 – convicted of conspiracy to bribe Minister for Corrective Services – removed from roll of solicitors in 1988 – whether fit and proper person – good fame and character – contrition – reason for offending – testimonial evidence – onus of establishing fit and proper person not discharged – appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Admission Rules 2005 (NSW) Legal Profession Uniform Admission Rules 2015 (NSW) Legal Profession Uniform Law Legal Profession Uniform Law Application Act 2014 Special Commissions of Inquiry Act 1983 (NSW)
Cases Cited:	Camille Eduoard Dezarnaulds and Stephen Wawn v The Law Society of New South Wales unreported, 27 June 1995 Childs v Walton [1990] NSWCA 41 Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Dawson v Law Society of New South Wales [1989] NSWCA 58 Dona v Council of the Law Society of NSW [2014] NSWCA 444 Double Bay Law Pty Ltd t/a & Legal v Council of the Law Society of NSW [2013] NSWADT 182 Ex parte Dennis; Re the Legal Practitioners' Act, Court of Appeal (NSW), 23 December 1988, unreported Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 Gregory v QLS Inc [2001] QCA 499 Jackson v LPAB [2006] NSWSC 1338 Jackson v Slattery; Hilton v Slattery (1984) 1 NSWLR 599 Janus v Queensland Law Society Incorporated [2001] QCA 180 Kotowicz v Law Society of New South Wales Court of Appeal, 7 August 1987, unreported Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 McBride v Walton [1994] NSWCA 199 New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 New South Wales Bar Association v Evatt (1968) 117 CLR 177 New South Wales Bar Association v Hamman [1999] NSWCA 404 Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons [2012] NSWSC 260 Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 R v George & Ors, BC 8701346, unreported, 19 June 1987 R v Harris & Ors, unreported, 10 November 1986 R v Jackson & Anor, unreported, 2 September 1987 Re Davis (1947) 75 CLR 409 Saunders v Legal Profession Admission Board [2015] NSWSC 1839 The Prothonotary of the Supreme Court of New South Wales v Hilton, unreported, 27 June 1988 Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279
Category:	Principal judgment
Parties:	Howard Hilton (Plaintiff) Legal Profession Admission Board (Defendant) Law Society of New South Wales (Intervener)
Representation:	Counsel: DMJ Bennett QC; M Gaven (Plaintiff) CRC Newlinds SC; G Johnson (Law Society of NSW)   Solicitors: & Legal (Plaintiff) Law Society of New South Wales (Intervener)
File Number(s):	2016/135340

Judgment

1. HIS HONOUR: In the 1980s a great corruption scandal erupted in this State when it was discovered that the Minister for Corrective Services was receiving bribes to facilitate the early release of prisoners from gaol. On 8 November 1986 the plaintiff in these proceedings, Howard Hilton, was convicted by a jury of having been a party to a conspiracy to corrupt that Minister to achieve that end. When Mr Hilton committed the crime he was a successful solicitor with a busy practice. Following his conviction he was imprisoned and disbarred. At least for a period his name became synonymous with corruption. Mr Hilton and his family paid a heavy price for his crime.

2. Now, thirty years later, Mr Hilton appeals a decision of the Legal Profession Admission Board (the “LPAB”) refusing him a “compliance certificate” under s 19(1) of the Legal Profession Uniform Law (NSW) (the “LPUL”) on the basis that he is not a “fit and proper person” to be admitted to the Australian legal profession. The LPAB did not take an active role in these proceedings. Instead the Law Society of New South Wales (the “Law Society”) intervened to oppose Mr Hilton’s appeal.

3. The practical consequence of allowing this appeal would be to effect Mr Hilton’s readmission to practise as a lawyer. As I will explain, the 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.

4. 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.

5. 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.

6. 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. [1] 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.

   1. Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279 (“Ziems”)

7. It follows that the appeal must be dismissed.

Legislative Scheme and the LPAB Decision

8. On or about 27 March 2015, Mr Hilton applied for readmission as a lawyer in New South Wales under r 99(5) of the Legal Profession Admission Rules 2005 (NSW).

9. With effect from 1 July 2015, the LPUL commenced. [2] Clause 3(3) of Schedule 9 of the Legal Profession Uniform Law Application Act 2014 (NSW) (“LPULA”) provides that “[a]ny act, matter or thing” subsisting immediately before the commencement of the LPUL and which “could have been done or omitted under” the LPUL “is taken to have been done or omitted under that Law”. As rule 14 of the Legal Profession Uniform Admission Rules 2015 (NSW) (“the Rules”) made under the LPUL makes provision for applications for readmission by solicitors previously removed from the roll of solicitors, this means that Mr Hilton’s application is taken to have been “done” under that rule and is to be determined in accordance with the LPUL.

   2. see Legal Profession Uniform Law Application Act 2014 (NSW); “LPULA”, s 4

10. Section 16(1) of the LPUL empowers this Court to admit an individual aged 18 years or over to the “Australian legal profession” as an “Australian lawyer” but only if, inter alia, “the designated local regulatory authority has provided the Supreme Court with a compliance certificate in respect of the person and the certificate is still in force”. In this context the designated local regulatory authority is the LPAB.

11. Sections 17 and 19 of the LPUL relevantly provide:

“17   Prerequisites for compliance certificate

(1)   The prerequisites for the issue of a compliance certificate in respect of a person are that he or she—

(a)   has attained the academic qualifications specified under the Admission Rules for the purposes of this section (the specified academic qualifications prerequisite); and

(b)   has satisfactorily completed the practical legal training requirements specified in the Admission Rules for the purposes of this section (the specified practical legal training prerequisite); and

(c)   is a fit and proper person to be admitted to the Australian legal profession.

(2)   In considering whether a person is a fit and proper person to be admitted to the Australian legal profession—

(a)   the designated local regulatory authority may have regard to any matter relevant to the person’s eligibility or suitability for admission, however the matter comes to its attention; and

(b)   the designated local regulatory authority must have regard to the matters specified in the Admission Rules for the purposes of this section.” (emphasis added)

19   Compliance certificates

(1)   A person may apply, in accordance with the Admission Rules, to the designated local regulatory authority for a compliance certificate if the person proposes to be admitted in this jurisdiction.

(2)   The designated local regulatory authority may require an applicant for a compliance certificate to provide further information to it within a specified time.

(3)   The designated local regulatory authority may issue and provide to the Supreme Court a compliance certificate stating that the applicant has satisfied it that he or she -

(a)   has satisfied the specified academic qualifications prerequisite and the specified practical legal training prerequisite (or is exempted under section 18); and

(b)   is a fit and proper person to be admitted to the Australian legal profession (as referred to in section 17(1)(c)).

…” (emphasis added)

12. Section 17 of the LPUL directs attention to the Rules. Rule 12 requires that an application for a compliance certificate be accompanied by a statutory declaration in a form determined by the Board and include various documents. As noted, rule 14 deals with applications for readmission and includes a requirement that the applicant must address, inter alia, the circumstances that led to them being removed from the roll of the Supreme Court, the applicant’s view about those circumstances and the events which tend to establish that they are of good fame and character.

13. Of particular relevance is rule 10(1) which provides:

“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,

(g)   whether the person is or has been a bankrupt or subject to an arrangement under Part 10 of the Bankruptcy Act or has been an officer of a corporation that has been wound up in insolvency or under external administration,

(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,

….”

14. I address these provisions below.

15. On 5 April 2016, the LPAB determined to refuse Mr Hilton a compliance certificate on the basis that it was not satisfied that he was a fit and proper person to be admitted to the Australian legal profession. [3] In its reasons the LPAB stated: [4]

“The applicant’s 2012 Statutory Declaration did not express remorse, but offered a prediction that the conduct would not recur because the same opportunities would not be presented to him again in similar circumstances. His 2015 Statutory Declaration, whilst expressing remorse with respect to the impact of his conduct, does not satisfy the Board that he fully appreciates why his conduct was found to be extremely serious. The applicant does not resile from the description he gave in his 2012 Statutory Declaration of the circumstances in which the offence was committed. On a fair reading it seeks to portray his role as a minor one, when the Sentencing Judgment and the Court of Criminal Appeal Judgment found that he supplied the names of offenders and their payments to Harris, with a motive of enhancing his practice in the criminal field.”

3. Court Book (“CB”) at 308

4. CB 315 at [31]

16. As I will explain, Mr Hilton states that this paragraph is inaccurate as he is remorseful for his actions and disputes the finding made by the Judge who sentenced him, Carruthers J, that he committed the offence because he was motivated to enhance his practice in the criminal field. [5] In his affidavit sworn in these proceedings on 15 July 2016 he also states that he was only intending to describe his role in the conspiracy as “minor” relative to the role played by others. [6] In view of the discussion at [20] to [37] that is a broadly correct characterisation of his role in the conspiracy.

    5. CB 321 at [27]

    6. CB 321 at [25]

17. In its reasons, the LPAB referred to Mr Hilton’s offence as one that was “rightly described [in the sentencing judgments referred to below] as striking the fabric of democratic society because of its corruption of the public administration of a program for early release of offenders closely connected with the administration of justice”. [7] The LPAB concluded that: [8]

“While the applicant expresses remorse as to the impact of his conduct, and relies on his employment history and character references in relation to rehabilitation, the material provided does not satisfy the Board that as a person engaged in such misconduct the applicant now appreciates the standards of conduct required of a solicitor. In the circumstances the Board is not satisfied that the applicant is currently a fit and proper person to be re‑admitted as a lawyer.”

7. CB 315 at [33]

8. CB 313 at [33]

18. Section 26(1) of the LPUL confers on Mr Hilton a right of appeal to this Court against the refusal of the LPAB to issue a compliance certificate. Section 28(1) of the LPUL provides that the appeal is to be by way of a “rehearing” and fresh evidence may be adduced. The consequence is that this Court is not confined to considering whether there was any error, factual or legal, in the LPAB’s determination. Further, in resolving the appeal the Court may make “any orders it considers appropriate”[9] and may make a direction that any order that it issues “has the same effect as a compliance certificate provided to the Court by the designated local regulatory authority”. [10]

    9. LPUL; s 26(4)

    10. LPUL; s 26(5)

19. As noted, the Law Society was granted leave to intervene and opposed the application. The basis of the Law Society’s opposition was not restricted to the matters identified by the LPAB in its decision.

The Offence

20. 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.

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

22. 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. [11]

    11. R v Harris & Ors, unreported, 10 November 1986, Carruthers J

23. 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. [12]

    12. R v George & Ors, BC 8701346, unreported, 19 June 1987, Street CJ, Yeldham and Finlay JJ

24. On 27 June 1988, the Court of Appeal ordered that Mr Hilton be removed from the roll of solicitors. [13]

    13. The Prothonotary of the Supreme Court of New South Wales v Hilton, unreported, 27 June 1988, Kirby P

25. In the meantime, Mr Jackson was retried, this time with Mr Hakim. Both were convicted. On 2 September 1987, Roden J sentenced Mr Jackson to 7½ years imprisonment with a non-parole period of 3 years and 9 months. Mr Hakim was sentenced to 6½ years imprisonment with a non-parole period of 3 years and 3 months. [14]

    14. R v Jackson & Anor, unreported, 2 September 1987, Roden J

26. No doubt due to the passage of time, the only material now available concerning the details of Mr Hilton’s crime is the Court’s judgments and his own recollections as set out in the statutory declarations he provided to the LPAB and his affidavits and oral evidence in this Court.

27. In the Court of Criminal Appeal, Street CJ described the Crown case as one whereby Mr Harris “was the immediate link down from Mr Jackson”, Mr Hakim communicated with Mr Harris and that he, that is, Mr Hakim, utilised Messrs Hilton, George and witness X to source prisoners seeking release in exchange for money. [15]

    15. BC 8701346 at 4

28. Roden J described Mr Jackson as an “inveterate gambler” whose “financial affairs were in tatters” such that it was known that “he was in desperate need” of cash. [16] In a statutory declaration dated 11 December 2012, placed before the LPAB (the “2012 statutory declaration”), Mr Hilton referred to his knowledge that Mr Jackson owed substantial gambling debts to Mr Harris. [17]

    16. CB 68

    17. CB 46 at [56]

29. In the Court of Criminal Appeal, Street CJ described the role of Mr Hilton as follows: [18]

“The Crown alleged that Hilton was aware of the existence of the conspiracy [between Jackson, Harris and Hakim]. Hilton joined the conspiracy and he also supplied the names of such persons to Hakim. The evidence showed that Hilton was directly involved in arranging for a sum of money to be paid to Hakim, to Harris and then to Jackson so that three prisoners from Broken Hill Gaol, namely Salvatore Falvo, Tony Giofrelle and Angelo Romeo (hereinafter referred to as the Broken Hill Three) were released from prison.”

18. CB 88.3

30. Roden J described the events surrounding the release of the “Broken Hill Three” as follows: [19]

“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 added)

19. CB 70

31. At least part of the evidence of Mr Hilton’s involvement in this conspiracy were telephone intercepts obtained by the Australian Federal Police (“AFP”) who were monitoring Mr Hakim’s calls. In his evidence in this Court on this application Mr Hilton agreed that, at his trial, the prosecution replayed a telephone intercept of him saying to Mr Hakim words to the effect of “[w]ell, he [ie, Mr Jackson] has got his money, what’s the delay”. [20]

    20. T 24/10/16, p 27.35

32. In sentencing Mr Hilton, Carruthers J referred to Mr Hilton’s role as a solicitor and his motivation for committing the offence as follows: [21]

“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 added)

21. CB 63

33. As stated, Mr Hilton did not accept this finding as to why he committed the offence.

34. As is to be expected in sentencing Mr Hilton, Carruthers J addressed the seriousness of his criminality, finding as follows: [22]

“The crime of which they [ie, Harris, Hilton and George] have been convicted is a serious one. The maintenance of a democratic system of government is dependent upon public acceptance and the trust of public officials. Any attempt therefore to corrupt public officers strikes at the very fabric of our democratic way of life.

The prisoners have been convicted at a time when there is a grave and abiding concern on the part of the public in this State over the whole question of corruption. Indeed, it could fairly be said that the citizens of this State are sated with corruption and a rumour of corruption. The community is entitled, therefore, to receive from sentencing judges an appropriate response to its level of disquiet.”

22. CB 61.6

35. To similar effect, when sentencing Messrs Jackson and Hakim, Roden J referred to the capacity of “wholesale corruption in high places [to] destroy the very fabric of our society”. In the Court of Criminal Appeal, Street CJ observed that the “maintenance of a democratic system of government is dependent upon public acceptance and the trust of public officials” and therefore “any attempt therefore to corrupt public officers strikes at the very fabric of our democratic life”.

36. 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.

37. 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.

Mr Hilton’s Explanation for and Attitude Towards the Offence

38. Mr Hilton was born in 1943. He was 43 years old when he was convicted. He is now 73. In 1961 he enrolled at the Law School of the University of Sydney. He graduated in 1965. After completing articles he was admitted as a solicitor in August 1966. After initially working in Armidale he returned to Sydney and worked for various firms. He developed an interest in criminal law. In around 1977 he commenced his own practice based in Redfern. His major areas of practise were criminal law but he also practised in conveyancing and personal injury. In his oral evidence he agreed that, by the time of the events that led to him being charged, he was “at the top of [his] game” as a “very successful criminal lawyer”. [23]

    23. T 24/10/16, p 10

39. Mr Hilton placed the 2012 statutory declaration before the Administrative Decisions Tribunal (the “ADT”) [24] in the circumstances described below (at [71]). It was later provided to the LPAB and was supplemented by further statutory declarations and affidavits sworn in this Court and he was cross-examined on their contents. He described the events that led to his commission of the offence as follows.

    24. Which has since been replaced by the Civil and Administrative Appeals Tribunal

40. In the course of his practice Mr Hilton met Mr Hakim. In his March 2015 statutory declaration Mr Hilton described Mr Hakim as the “Lebanese Godfather”, that is, someone with strong links to Lebanese community. Mr Hilton said that Mr Hakim referred him work and passed on information he obtained from the police. Mr Hilton stated that after some years of practice he and his partner perceived Mr Hakim to be an inconvenient presence so they decided to “pay him a few hundred a week, mainly to stay away” although he still “brought work”. [25]

    25. CB 45 at [50]

41. Mr Hilton stated that in 1982 he acted on behalf of three men accused charged with cultivating marijuana (being the “Broken Hill three” referred to at [29] above). They pleaded guilty immediately prior to their trial commencing. It seems that this occurred in or around October 1982. They were sentenced to a term of imprisonment that included a twelve month non-parole period. In his oral evidence, Mr Hilton accepted that the three accused were not “overly enthusiastic about pleading guilty” and in doing so understood that they would inevitably go to gaol. [26] He said at the time they pleaded he advised them about the existence of the early release scheme. [27]

    26. T 24/10/16, p 14

    27. T 24/10/16, p 14

42. Mr Hilton said that around this time Mr Hakim told him that he had met Mr Harris whom he understood was close to Mr Jackson. [28] As noted, Mr Hilton said he understood Mr Jackson owed gambling debts to Mr Harris. Mr Hakim told Mr Hilton that Mr Harris said he could use his influence to have Mr Jackson release prisoners and that Mr Hakim’s role was to “provide clients”. Mr Hilton stated that at first he did not believe Mr Hakim, but Mr Hakim nevertheless persisted in asking for clients to participate in the scheme.

    28. CB 46 at [55]

43. Curiously, in the 2012 statutory declaration, Mr Hilton stated that, although he was not interested in Mr Hakim’s scheme, “I was though interested in meeting Mr Harris as he sounded like a substantial person who could have been useful to the practice”. [29] Mr Hilton was pressed on this in cross-examination. He accepted that, based on what Mr Hakim had told him, he knew that Mr Harris “was a crook” but rejected the suggestion that he thought Mr Harris could be useful to his practice because he was a “rich crook”. Instead Mr Hilton explained that Mr Harris “was a wealthy businessman and probably had lots of legitimate businesses and other work and that would have been a good thing to have at the office”. [30] Mr Hilton said that he eventually met Mr Harris “once during the Broken Hill three transactions”, [31] which appears to be a reference to a time after he joined the conspiracy.

    29. CB 47 at [63]

    30. T 24/10/16, p 14

    31. T 24/10/16, p 20.32

44. As noted, Mr Hilton explained that when the Broken Hill Three pleaded guilty, he told them that he would make representations on their behalf for the participation in the early release scheme. In the 2012 statutory declaration he recalled telling them that they “might well expect to be released in 8 months”. [32] Mr Hilton said that “approximately eight months later” he was contacted by Frank Falvo, the brother of one of the Broken Hill Three, Sam Falvo, about securing his brother and co-offenders’ release. [33] Although Mr Hilton accepted that he could have simply written a letter to the Department of Corrective Services to achieve this, instead he approached Mr Hakim who told him that it would “cost $10,000 which [Hakim] said was going to Rex Jackson via Keith Harris”. [34] Mr Hilton said he then approached Frank Falvo who gave him the $10,000 which he in turn provided to Mr Hakim. In his oral evidence, Mr Hilton stated that he collected the $10,000 in cash from Mr Falvo at Flemington Street Markets which he “thinks was cash”, [35] but could not remember other details, including the circumstances in which he gave that sum to Mr Hakim. [36] It was this sum that was referred to in the telephone conversation noted above (at [31]).

    32. CB 48 at [66]

    33. CB 48 at [67]

    34. CB 48 at [70]

    35. T 24/10/16, p 31

    36. T 24/10/16, p 32.9

45. In his oral evidence Mr Hilton stated that Mr Falvo became concerned about the delay in the release of his brother. [37] In the 2012 statutory declaration he said that there were “various phone calls made between the parties including me and the men were ultimately released”. [38] The scheme unravelled because the AFP were intercepting Mr Hakim’s telephone calls. The full details of the scheme emerged during a Commission of Inquiry conducted by Slattery J pursuant to the Special Commissions of Inquiry Act 1983 (NSW). [39]

    37. T 24/10/16, p 32.33

    38. CB 49 at [73]

    39. see Jackson v Slattery; Hilton v Slattery (1984) 1 NSWLR 599

46. At this point, it is necessary to address five related matters concerning Mr Hilton’s involvement in the conspiracy and attitude towards his criminal conduct.

47. The first issue concerns Mr Hilton’s knowledge about whether Mr Jackson was paid for facilitating the early release of prisoners. In the passage extracted at [30], Roden J found that funds were passed through to Mr Jackson. Nevertheless, in the 2012 statutory declaration Mr Hilton was equivocal about whether he was aware of that. Thus, in summarising the events of his trial, Mr Hilton said that he made a “dock statement”[40] denying wrongdoing and stating that any money he paid to Mr Hakim was “to the best of my belief to be retained by him and Mr Harris no matter what Mr Hakim told me” and that “I did not know that the money was actually paid to Mr Jackson and on balance thought that it was not to be paid to him”. [41] This summary of his defence is consistent with the description of his defence in the judgment of the Court of Criminal Appeal. [42] Later in the 2012 statutory declaration under the heading “wrongdoing” Mr Hilton stated. [43]

“Although I was uncertain about Jackson receiving any and certainly all of the $10,000 and even now on balance [I] don’t think he did I admit to being indifferent as to that matter and certainly acquiescing in the possibility that he would obtain the funds. I entered into an agreement or conspiracy whereby I was aware that he might well obtain the funds and in return assist my clients. I turned a ‘blind eye’ to the consequences of what I did.” (emphasis added)

40. An unsworn statement allowed for by former s 409 of the Crimes Act 1900 (NSW)

41. CB 50 at [83]

42. CB 90.5

43. CB 53 at [102]

48. Mr Hilton was pressed on this part of his statutory declaration in cross-examination. He agreed that he was aware of Mr Jackson’s debt to Mr Harris and he accepted that either Mr Jackson was being paid, or was working off his gambling debt to Mr Harris [44] and “he knew that at the time”. [45] When asked about this part of his statutory declaration, Mr Hilton agreed that Mr Jackson “probably got something”. [46]

    44. T 24/10/16, p 17

    45. T 24/10/16, p 7

    46. T 24/10/16, p 35

49. As noted, there was only limited material available to this Court concerning the conspiracy. There is no reason to depart from the finding of Roden J that Mr Jackson received funds. His Honour had the benefit of hearing the evidence that unfolded at the trial. More relevantly, in assessing Mr Hilton’s criminality at the time and his insight into his own conduct thirty years later I see no relevant distinction between whether Mr Hilton knew that Mr Jackson received some of the funds he paid over or knew that, at the very least, Mr Jackson received a reduction in his gambling debt for assisting his clients. Mr Hilton certainly knew the latter.

50. The second issue concerns the period of time over which Mr Hilton participated in the conspiracy and the steps he took to further it.

51. A review of Mr Hilton’s statutory declarations and his careful cross-examination reveals that his participation in the conspiracy involved him undertaking at least the following separate steps. First, after being told by Mr Hakim of the scheme he was pursuing with Messrs Harris and Jackson, Mr Hilton approached Mr Hakim about seeking the release of the Broken Hill Three. [47] Either in that conversation or shortly afterwards Mr Hilton discussed the proposed fee of $10,000 with Mr Hakim. [48] Second, Mr Hilton explained the operation of the scheme and specified the price to Frank Falvo. [49] Third, Mr Hilton collected the $10,000 “fee” from Mr Falvo. [50] Fourth, Mr Hilton conveyed that sum to Mr Hakim. [51] Fifth, as noted, at some point Mr Hilton met with Mr Harris (see [43]). Sixth, Mr Hilton received Mr Falvo’s complaints about the delay in the release of his brother and his two co‑offenders. [52] Seventh, Mr Hilton participated in the various telephone call(s) to ensure that they were ultimately released, [53] including the call noted above (at [31]).

    47. T 24/10/16, p 30

    48. T 24/10/16, p 30.30

    49. T 24/10/16, p 30.40; CB 48 at [71]

    50. CB 48 at [71]

    51. T 24/10/16, p 32.9

    52. T 24/10/16, p 32.35

    53. CB 49 at [73]

52. In his oral evidence, Mr Hilton agreed that his participation in the conspiracy “probably” took place “over a period of a month”. [54] This is consistent with the findings of Roden J extracted above at [30].

    54. T 24/10/16, p 33

53. The third issue concerns Mr Hilton’s knowledge of the impropriety and criminality of his participation in the scheme. The 2012 statutory declaration includes statements that are ambiguous as to whether he accepts that he knew from the outset that his conduct was criminal. Thus, in describing the moment that he approached Mr Hakim to seek the release of the Broken Hill Three, Mr Hilton states that his conduct was “clearly wrong and improper” but adds that “although I knew this intellectually it did not strike me emotionally as such and it slipped past my guard”. He described his discussions with Mr Hakim as “just like some conversation with no consequences attached and thus of no real significance” and said that only “later when the money was obtained by me and paid to Hakim [that] the wrongness of it all was unavoidably obvious”. [55]

    55. CB at 48, [69]-[72]

54. In cross-examination, Mr Hilton attempted to explain these paragraphs by saying that he drew a distinction between “understanding things in our minds and understanding things in our hearts” [56] and stated that he “knew it was wrong” but “it just didn’t strike be as being perhaps at that point it didn’t strike me as important”. [57]

    56. T 24/10/16, p 26.17

    57. T 24/10/16, p 26.21

55. It suffices to state that I have no doubt that from the time Mr Hakim first outlined to Mr Hilton the proposal for Mr Harris to exercise influence over Mr Jackson to seek the release of prisoners, that Mr Hilton knew that what was being proposed was dishonest and corrupt.

56. The fourth issue concerns the extent of Mr Hilton’s contrition for his conduct. I address the principles to be applied to a determination of fitness and propriety below but it suffices at this point to note that the paramount interest is the protection of the community. In Childs v Walton [1990] NSWCA 41, Samuels JA (with whom Priestley and Meagher JJA agreed) observed that:

“The law does not require the expression of contrition as the satisfaction of some arcane ritual. In cases such as this, where the protection of the community is the paramount interest, contrition, if accepted as honest, may indicate that no occasion for protection exists.”[58]

58. Cited in Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 at [34]

57. In his 2012 statutory declaration, Mr Hilton stated that “in terms of what happened I am extremely remorseful and upset with myself”. [59] He referred to his loss of income and the ability to carry out his profession. He stated that “this was all gone, thrown away by me in act of criminal folly for which I think I have paid a very heavy price”. [60] He stated that “I disgraced myself and damaged all those whom I loved and who loved me”. [61] In other parts of the statutory declaration he described the consequences of his conviction and imprisonment for his family, including his parents.

    59. CB 53 at [100]

    60. CB 53 at [101]

    61. CB 53 at [100]

57. In the proceedings before the ADT concerning Mr Hilton’s application to work as a “lay associate” (see [71]) it was contended by the Law Society that this statutory declaration did not reveal any regret for the damage he caused to the profession at large and the community confidence in the justice system. [62] In another statutory declaration prepared in March 2015 (the “2015 statutory declaration”), Mr Hilton sought to address this, stating: [63]

“I very much regret losing the respect, confidence and good fellowship of my fellow practitioners and for embarrassing and scandalising them. Some were my good friends and classmates and I feel shame for my behaviour.”

“… I am very conscious of the broader effect that my behaviour had on the public perception of justice and the legal system and its practitioners…I deeply regret the deleterious effect that such behaviour may have had in diminishing the public respect and confidence in the legal system.”

62. CB 11 at [12]

63. CB 11 at [11], [14] and [15]

59. Mr Hilton expressed similar sentiments in the affidavit he swore in these proceedings on 15 July 2016. [64] At the commencement of his oral evidence he reiterated that he was “embarrassed and ashamed” when he approached former colleagues in the legal profession. [65] Further, a number of the authors of the testimonial affidavits referred to below described his remorse for his actions and their consequences, including the damage he caused to the legal profession.

    64. CB 319 at [18] to [19] and [23]

    65. T 24/10/16, p 9.31

60. I accept Mr Hilton’s evidence on this topic. I am satisfied that Mr Hilton is ashamed of his conduct and truly remorseful. From my observation of him and my reading of the testimonial material I expect that throughout the last 30 years Mr Hilton has ruminated upon the events that led to his imprisonment and ignominy. No doubt part of that involves a consideration of what was done to him rather than by him. However I am satisfied that he has learnt to accept that it was the latter that precipitated the former. Further I am satisfied that he now accepts the seriousness of his conduct and the damage he has occasioned to the legal profession by his conduct. In this respect Mr Hilton has overcome a significant aspect of the LPAB’s reasoning for refusing his claim. However, as stated, the Law Society’s opposition to Mr Hilton’s appeal was put on a much broader basis than that stated by the LPAB.

61. Fifth, a significant matter relied on by the Law Society was Mr Hilton’s inability to explain why he committed the offence.

62. In an affidavit sworn 15 July 2016, Mr Hilton responded to the finding of Carruthers J that he committed the offence to “enhance his practice in the criminal field”, [66] stating: [67]

“…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 added)

66. See [32]

67. CB 321 at [27]

63. In both this passage and the 2012 statutory declaration, Mr Hilton conceded that to pursue the release of the Broken Hill Three under the early release scheme, all he needed to do was write a letter or telephone the Department of Corrective Services. [68] Instead, he chose the course of involving himself in a conspiracy to corrupt a Minister. In cross-examination, Mr Hilton was asked why he chose the latter. Mr Hilton stated “I haven’t the faintest idea”. [69] In the end result, Mr Hilton rejected the conclusion of Carruthers J that he was seeking to promote his practice as a criminal solicitor by achieving their release, [70] and did so “absolutely”, [71] but nevertheless could not offer any explanation for his conduct:

    68. CB 48 at [68]

    69. T 24/10/16, p 23.9

    70. T 24/10/16, p 23.42

    71. T 24/10/16, p 41.47

“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.” [72] (emphasis added)

“Q.    I think the position we got to is, you’re not able to identify yourself why you did what you did?

A. Not in a word or two, no. I can give you, as I have, the combination of circumstances that appear to me to be playing on my mind, as I have done, but I can’t go much further than that.” [73]

72. T 24/10/16, p 24

73. T 24/10/16, p 41.16

64. Senior Counsel for the Law Society, Mr Newlinds SC, placed great emphasis upon both Carruther J’s finding as to why Mr Hilton joined in the conspiracy as well as Mr Hilton’s refusal to accept that finding in the face of his inability to proffer any alternative reason for his conduct. He submitted that this demonstrated a lack of insight on the part of Mr Hilton. He contended that such a lack of insight meant that there was a not inconsequential risk that, if he was allowed to practice, Mr Hilton would fail to recognise a recurrence of the circumstances that lead to him transgressing and consciously avoid transgressing. He drew an analogy with the approach adopted by sentencing courts of inquiring into why an offender committed an offence and whether the offender had insight into their own offending as an indication of the likelihood of reoffending.

65. 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 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 (at [31]).

66. 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.

67. Further, while I cannot theorise as to the psychology that has led to Mr Hilton being unable to recall why he committed the offence, I can draw conclusions from the other matters noted above and Carruthers J’s findings, about what that conduct reveals about his character at the time he committed the offence.

68. Mr Hilton’s crime was not an impulsive one. He 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. I can conceive of a legal practitioner engaging in even serious misconduct that is out of character in an instant or brief period of time, or perhaps even over a longer period, because of pressure from a client or an associate such as Mr Hakim, financial pressure, a misguided attempt to cover up a mistake or the like. However, I do not accept that Mr Hilton joined in the conspiracy for any of those reasons. Mr Hilton’s practice was prosperous. He was not desperate or under any real pressure from anyone. If he felt under “pressure” from the Broken Hill Three, he only needed to write a letter to the Corrective Services. Presumably Mr Hakim was persuasive but there is no suggestion that he had any leverage over Mr Hilton. It is inconceivable that a busy and prosperous criminal lawyer with 16 years of post-admission practice would meekly surrender to suggestions of the kind made by Mr Hakim or seek to pacify Mr Falvo by joining in a conspiracy to corrupt a Minister. 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 (see [62]). 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.

Mr Hilton’s Post Release Life

69. Mr Hilton was released from gaol in 1989. [74] He attempted to obtain work in legal publishing but was unsuccessful. He then worked for two years with an insurance agency specialising in superannuation, savings products and personal risk insurance. [75] Part of his work involved “cold calling” potential customers. [76] Otherwise, he solicited work from personal acquaintances including legal practitioners. He described his aptitude for this work as “average”. [77] After a period he created a small finance brokerage business which was still being conducted in March 2015. [78] In his 2012 statutory declaration, he stated that the business “generally does commercial work” and “rarely [does] domestic house financing”. In undertaking this work Mr Hilton drew on his experience in conveyancing derived from his time as a solicitor.

    74. CB 54 at [105]

    75. CB 12 at [16]

    76. CB 54

    77. CB 55 at [109]

    78. CB 55 at [112]; CB 12 at [16]

70. As at 2013, the Legal Profession Act 2004 (NSW) (“LPA”) contemplated the engagement by law practices of persons described as “lay associates”, being persons who were not admitted as an Australian legal practitioner and who performed work under supervision. [79] However, a person who had previously been removed from the roll of solicitors or been convicted of a serious offence like Mr Hilton could not be employed as a lay associate of a legal practice unless they had the approval of the Law Society in the case of the former and the ADT in the case of the latter. [80] If the Law Society refused permission then an appeal against that refusal lay to the ADT. [81]

    79. former LPA; s 7

    80. LPA; s 17(1)

    81. LPA; s 17(4)

71. On 14 August 2013 the ADT granted Mr Hilton permission to work as a lay associate in the legal practice known as ‘& Legal’ on certain conditions,[82] including that he be supervised by the firm’s principal solicitor Darian Iacono, that he not handle funds of the firm’s clients or potential clients or be a signatory to any of its own bank accounts, that he not tender legal advice, that the material authored by him not be despatched unless approved by the solicitor (except for “routine correspondence”) and that any material sent under his name identify him as a “lay associate”. [83] In so concluding, the ADT found that the employment of Mr Hilton “would not pose a risk to the public nor a risk to the profession”. [84] In making its decision, the ADT applied a principle derived from the judgment of Spender AJ in Camille Eduoard Dezarnaulds and Stephen Wawn v The Law Society of New South Wales [85] to the effect that a lay “associate is not a legal practitioner” and “[o]ne does not … translate the requirements demanded of practising members of the profession, to those who are applying to become associates”. [86]

    82. Double Bay Law Pty Ltd t/a & Legal v Council of the Law Society of NSW [2013] NSWADT 182

    83. [2013] NSWADT 182 at [53]

    84. [2013] NSWADT 182 at [52]

    85. Unreported, 27 June 1995

    86. [2013] NSWADT 182 at [46]

72. As a consequence of this decision, since early September 2013 Mr Hilton has worked at ‘& Legal’ as a Lay Associate under the supervision of Mr Iacono. In his 2015 statutory declaration, Mr Hilton stated that he has primarily assisted Mr Iacono and another solicitor, Mr Denes, with commercial litigation including preparing draft correspondence, assisting counsel and appearing at mentions and directions hearings in various courts with a grant of leave. [87] In 2014 he undertook and completed a graduate diploma in legal practice at the Australian National University. [88] Mr Hilton stated that he has found working as a lay associate stimulating, he feels accepted by his clients and other legal practitioners and that he has “experienced virtually no adverse reaction as a consequence of my old offence since being employed as a Lay Associate”. [89]

    87. CB 13

    88. CB 110

    89. CB 14 at [31]

73. The evidence presented, including that noted below, does not reveal much about the scale and scope of the insurance and finance broking work undertaken by Mr Hilton. Nevertheless, the selling of insurance and finance broking can present opportunities for the unscrupulous. The undertaking of that work by Mr Hilton required him to display honesty and integrity as has the performance of the duties of a lay associate. There was no suggestion that he did not do so and the testimonial evidence which I will refer to next suggests to the contrary.

Testimonial Evidence

74. As stated, tendered in support of Mr Hilton’s appeal was a large body of testimonial evidence. In the end result, thirty five people provided affidavits confirming, and in some cases elaborating upon, testimonals they provided to the LPAB. Many of the deponents have known Mr Hilton for long periods in a variety of capacities. They can be conveniently grouped into the four categories noted below. I also note that a further six persons provided statutory declarations to the LPAB which were tendered on the appeal although they did not swear affidavits. I have considered those statutory declarations as well. They reinforced the effect of the evidence described below.

75. First there were a number of affidavits from the principal and staff of ‘& Legal’ describing his duties as a lay associate and the author’s opinions concerning his contrition, honesty and competence.

76. Mr Iacono is the principal of ‘& Legal’. He supervises 18 staff. [90] He stated that he first met Mr Hilton in 2004 when Mr Hilton was acting as a mortgage broker in a transaction in which one of Mr Iacono’s clients was investing. Mr Hilton told him of the facts and circumstances of his conviction. [91] In cross examination he stated that Mr Hilton had not discussed “why he thinks he did it”. [92] Mr Iacono supported Mr Hilton’s application to the ADT. In his affidavit, Mr Iacono described the range of functions Mr Hilton has performed as a lay associate and confirmed Mr Hilton’s competency to practise. [93] He stated that, based on his “discussions and interactions” with Mr Hilton “over the years”, Mr Hilton is “genuinely contrite and deeply sorry for what he has done both to himself, his family, to the public and to the reputation of the legal profession”. [94] In the statutory declaration provided by Mr Iacono to the ADT he said that “on many occasions during his employment [with] me [Mr Hilton has] shown that his moral compass is certainly aligned in the correct direction”. [95] Mr Iacono instanced an occasion where Mr Hilton identified inappropriate conduct by a client and intervened to have it rectified. [96] In cross examination, Mr Iacono was not able to recall an instance where Mr Hilton was confronted with a choice “between doing something the right way or the same thing the wrong way”. [97]

    90. CB 324.2

    91. CB 341 at [4]

    92. T 24/10/16, p 48.25

    93. CB 325 at [16]

    94. CB 326 at [24]

    95. CB 343 at [17]

    96. CB 343.10

    97. T 24/10/16, p 48.20

77. Mr John Denes is employed as a consultant by ‘& Legal’. He was previously a partner in a firm that merged with ‘& Legal’ in 2013. [98] At the time of the merger Mr Iacono advised him that Mr Hilton was working as a lay associate and told him of his conviction. Mr Denes researched Mr Hilton’s conviction. Since 2013 Mr Hilton has assisted Mr Denes with his commercial litigation practice. In his affidavit, Mr Denes attests to Mr Hilton’s competence. More significantly Mr Denes stated that from his “close observation” of Mr Hilton he has ascertained that Mr Hilton “deeply regrets his past actions”. He considers Mr Hilton to be a fit and proper person. [99] In cross examination, Mr Denes stated that he had not discussed the circumstances of the offence with Mr Hilton, including why he committed it. [100]

    98. CB 351.6

    99. CB 352

    100. T 24/10/16, p 44.5

78. Mr Michael Dunkel is also a consultant at ‘& Legal’. He has known Mr Hilton for over three years and has interacted with him on a daily basis. [101] In his affidavit he stated that, to his knowledge, Mr Hilton has complied with the conditions imposed by the ADT. He stated that having “observed [Mr Hilton’s] behaviour and spoken often to him I believe that he is genuinely repentant” and otherwise a fit and proper person. [102] Mr Dunkel did not speak to Mr Hilton about the circumstances that gave rise to his conviction. [103] Another consultant at ‘& Legal’, Robert Ebner, gave evidence to the same effect [104] although he also had not spoken to Mr Hilton about the events that led to his conviction. [105] Ms Laura Morley, a solicitor who formerly worked for ‘& Legal’ and who worked with Mr Hilton directly, also observed him to “act honestly and fairly in the client’s best interest” [106]

    101. CB 373

    102. CB 376

    103. T 24/10/16, p 49.35

    104. CB 383

    105. T 24/10/16, p 50

    106. CB 517.2

79. Second, a number of affidavits were provided by various legal practitioners who have met Mr Hilton since his release from prison in 1989, either socially or via his work as a finance broker or lay associate.

80. During the time he worked for ‘& Legal’, Mr Hilton instructed Mr Julian Sullivan an experienced Junior Counsel at the NSW Bar. [107] Mr Sullivan observed Mr Hilton to demonstrate “competence, diligence and timeliness” but not undertake the work reserved for admitted practitioners with a practising certificate. [108] He stated that Mr Hilton has “expressed remorse and contrition” and “believe[s] him to be fully rehabilitated”. [109]

    107. CB 389

    108. CB 389.9

    109. CB 392.6

81. Mr Daniel Abraham is a solicitor practising in Strathfield. He met Mr Hilton in 2013 during some bankruptcy proceedings initiated by a client of ‘& Legal’. They have had regular contact since then. [110] Mr Abraham is aware of Mr Hilton’s circumstances. He said that Mr Hilton had discussed his conviction and imprisonment. He said he had “expressed deep remorse and regret as to what he considers his foolish actions”. He considers that Mr Hilton has made “a complete recovery, has put the past behind him and is a fit and proper person to practise”. [111] In cross examination Mr Abraham confirmed he had discussed the offence with Mr Hilton. [112] It is not clear whether the description “foolish” was Mr Hilton’s characterisation or that of Mr Abraham. Mr Abraham has not discussed with Mr Hilton why he committed the offence. [113]

    110. CB 471

    111. CB 472.1

    112. T 24/10/16, p 51

    113. T 24/10/16, p 52

74. Mr Francis Douglas QC met Mr Hilton socially about five years ago. [114] At the time Mr Douglas QC met Mr Hilton he was familiar with his role in the events involving the bribing of Mr Jackson. After that time he dealt with Mr Hilton professionally as he was providing assistance to “certain clients … in a very substantial piece of litigation”. [115] Based on his dealings with Mr Hilton, the passage of time and the material concerning him that he has reviewed, Mr Douglas QC formed the view that Mr Hilton’s conviction was “an aberration, albeit an extremely serious one, which he should be allowed to put behind him”. [116] In his oral evidence Mr Douglas QC recounted that Mr Hilton had “expressed his very great regret… both from a personal point of view but also from the perspective of what [his conduct] did to the administration of justice in New South Wales and to the profession”. [117] Mr Douglas QC said that he had asked Mr Hilton why he committed the offence but Mr Hilton responded that he could not recall why. [118]

    114. CB 498

    115. CB 501.1

    116. CB 502.5

    117. T 24/10/16, p 54.30

    118. T 24/10/16, p 54.38

75. A number of other practitioners testified to Mr Hilton’s honesty and contrition, including Mr Robert Upfold, a retired legal practitioner who had known Mr Hilton for twenty five years, [119] Ms Phillippa Wearne, an experienced solicitor who has known for him for about 18 years, [120] Mr Peter Wise, a solicitor who has known Mr Hilton since 1990 and dealt with him as a mortgage broker. [121] Michael Osborne, a solicitor who has known him for nine years and acted on his behalf in various broking transactions, [122] Ian Mitchell, a solicitor who has known him since 2003 and dealt with him as a finance broker, [123] David Purcell, a solicitor who has known Mr Hilton on a social basis since 2012, Peter English, a solicitor who has known Mr Hilton for over twenty years, [124] Emmanuel Conditsis, a solicitor who has known Mr Hilton since 1973, [125] John Hajje, a solicitor who has known Mr Hilton for 35 years, [126] George Newhouse, a solicitor who has known Mr Hilton for 15 years, [127] and Mark Lacy, a Queensland solicitor who has known Mr Hilton for over 10 years [128] and dealt with him when he worked as a finance broker. [129]

    119. CB 519

    120. CB 381

    121. CB 409

    122. CB 412

    123. CB 398

    124. CB 464.2

    125. CB 416

    126. CB 424

    127. CB 448

    128. CB 452

    129. CB 192

76. Third, affidavits were also provided by various lay persons who have met Mr Hilton since his release from prison in 1989 either socially or via his work as a finance broker or lay associate. Peter Pinson OAM, an Emeritus Professor of the University of New South Wales has known Mr Hilton since the 1990s through his wife on a social basis. [130] He is aware of his conviction and his subsequent work as a finance broker. He said that based on his “familiarity with Mr Hilton, acquired over two decades, I believe him to conduct his professional and business affairs with soundness, prudence and integrity.” [131]

    130. CB 483

    131. Affidavit of Peter Pinson dated 9 June 2016 at [15], CB 481, 483.

77. Affidavits to similar effect, some of which also testified to Mr Hilton’s contrition, were provided by Louise Nettleton, who has known Mr Hilton and his family on a social basis for about 15 years, [132] Michael Dowe, a retired businessman who has known Mr Hilton for approximately 15 years, [133] Allan Furlong, a stockbroker who has known him for ten years, [134] Vincent Gibbs, a manager of a mortgage trust who has known him for 13 years, [135] Linda Anstee, a financial consultant who has known him since shortly after his release from prison and who has allowed Mr Hilton to invest money for her and her partner, [136] Anthony Canvin, a retired finance broker who has known him since 2007 and undertook finance transactions with him, [137] Kim Batcheldor, an accountant who has known him since 2012, [138] Scott Carnie, a security advisor who has known Mr Hilton since 1997 [139] and Anthony John Flynn, a retired academic from the Australian National University who has known Mr Hilton on a personal basis since 1989. [140]

    132. CB 354.4

    133. CB 358

    134. CB 368

    135. CB 394

    136. CB 403.9

    137. CB 436

    138. CB 438

    139. CB 266

    140. CB 512

78. Fourth, a number of affidavits were provided by persons who have known Mr Hilton since prior to his conviction. Mr Bruce Stratton QC was admitted as a barrister in 1969 and was appointed Queens Counsel in 1986. He ceased practising in 1982. In his affidavit he states that he met Mr Hilton shortly after commencing at the bar. Mr Hilton briefed him regularly until 1986. He stated that “[d]uring those nearly twenty years he instructed me in countless numbers of cases ranging from appearances in the Local Court to the Court of Criminal Appeal”. Mr Stratton QC stated that “in all of those cases, without exception, he conducted himself in a thoroughly professional and honest manner”. He stated that Mr Hilton “obviously made a devastating error of judgment” and that “he has learnt from that as he is not the type of person who would offend again”. [141]

    141. CB 365.1

79. In cross examination, Mr Stratton QC agreed that “if someone had asked you whether you thought Mr Hilton was an honest and upstanding legal practitioner [prior to his conviction], [he] would have most certainly said yes”. [142] He was then asked: [143]

“Q.   So what is it that he has told you or that you have observed since the events, that have caused you to think that he is no longer the type of person which he obviously was?

A. Well I have seen him on a number of occasions since he was released from prison which was back in 1989, I think, according to my recollection.  We kept in touch with each other, not as closely as we were before as I spoke to him.  I didn't go into any great details about how he became involved but he told me that he became involved then he felt that he should not have become involved, it was completely wrong of him to become involved in the way he did, and there was no way that he would be involved in something like that again.”

142. T 25/10/2016, p 67

143. T 25/10/2016, p 68

88. Mr Arthur Porter recently retired as an executive director of Macquarie Bank in 1989 after almost 40 years in property investment and financing. In his affidavits, he stated that he has known Mr Hilton for over 30 years. [144] They first met in the late 1970s through Mr Hilton’s practice as Mr Porter was then a manager of a finance company. They became friends. He considered Mr Hilton to be “above reproach” and “completely transparent in all matters”. [145] He said he was “completely taken aback” by Mr Hilton’s conviction. He is aware of the work Mr Hilton undertook as a finance broker after his release from gaol and said he had a “reputation for honesty and professionalism”. He has recently undertaken around four to five broking transactions with Mr Hilton. [146] In cross examination Mr Porter stated that he could not recall discussing with Mr Hilton why he committed the offence. [147]

    144. CB 430.2

    145. CB 430.5

    146. T 25/10/16, p 75.5

    147. T 25/10/2016, p 74.9

89. Mr Simon Mordant AM, a successful company director, is a friend of Mr Hilton who has known him for over thirty years. He recalled Mr Hilton as a busy and well regarded criminal lawyer in Sydney who had a “deep concern for the welfare of his clients”. [148] He recalled being “stunned” upon learning of Mr Hilton’s involvement in the conspiracy to bribe Mr Jackson. In his affidavit, Mr Mordant testified to Mr Hilton’s fitness and propriety. He referred to him being “tested and at that moment of stress his character briefly failed and he let himself down”. In cross examination he identified the period in which Mr Hilton committed the offence as “very stressful” at that “[m]ost weekends he was visiting his clients in prison”. [149] He said that based on what Mr Hilton told him his involvement in the offence took place for a “brief period of time” and that Mr Hilton told him he was “under stress”. [150] I note that these observations are contrary to the above findings.

    148. CB 489.4

    149. T 24/10/16, p 4.5

    150. T 24/10/16, p 5.4

90. Mr Norman Gibson has been practising as a solicitor for 50 years. He has conducted a practice in his own name since 1972. In his affidavit he met Mr Hilton as they were both practising in personal injury work and criminal law. [151] He said that in the early 1980s he had “a little more to do with Howard” as they acted for co-accused. He said that he regarded him as a “competent and ethical fellow practitioner”. [152] He said that “many of us [himself and barristers] were aware of the rumours of Mr Jackson accepting bribes for a variety of purposes and of his gambling problems” but recalled being surprised when he learnt of Mr Hilton’s involvement with Mr Jackson because of his belief that Mr Hilton was an “ethical solicitor”. [153] Mr Gibson visited Mr Hilton in gaol. He recalled Mr Hilton expressing regret and contrition then, [154] as he has done so recently. [155] More recently, Mr Hilton has organised refinancing for one of Mr Gibson’s clients. Mr Gibson found Mr Hilton to be “efficient, competent and trustworthy”. [156] In Mr Gibson’s assessment, Mr Hilton does not present “any danger to the community” and if allowed to practise “he will do so in an ethical and competent manner”. [157] Mr Gibson did not ask Mr Hilton why he committed the offence although Mr Hilton had told him that he did not know why he joined the conspiracy. [158]

    151. CB 505 at [8]

    152. CB 505.4

    153. CB 505 at [10]

    154. CB 506 at [17]

    155. CB 507 at [21]

    156. CB 506 at [18]

    157. CB 507 at [24]

    158. T 24/10/16, p 58.37

91. Mr John Sharpe was admitted to practice as a solicitor in 1970 and as a barrister in 1975. He knew Mr Hilton from his childhood and was briefed by Mr Hilton in some criminal matters but mostly common law when he first commenced practice at the bar. This work diminished as Mr Hilton concentrated on criminal law. [159] Nevertheless Mr Sharpe had a high opinion of Mr Hilton’s professionalism and observed that he “conducted himself in a most proper way”. [160] Mr Sharpe followed the publicity surrounding Mr Hilton’s conviction closely. After Mr Hilton’s release, Mr Sharpe had social contact with him that extended to professional dealings when he was allowed to work as a lay associate. [161] Mr Sharpe attests to Mr Hilton’s contrition [162] and his belief that Mr Hilton is a fit and proper person to be readmitted to practice. [163] He reiterated those views in his oral evidence but added that he had never asked Mr Hilton why he committed the offence. [164]

    159. CB 460

    160. CB 460.6

    161. CB 457 at [4]

    162. CB 457

    163. CB 458

    164. T 24/10/2016, p 62.14

92. Mr Richard Arnold is a chartered accountant who has known Mr Hilton for over 40 years. [165] In his affidavit he describes being “entirely surprised” when he learnt of Mr Hilton’s involvement in the “Jackson affair”. He stated that based on his discussions with Mr Hilton he knows how affected Mr Hilton was by his conviction. He considers that since his release Mr Hilton has “worked hard and honestly”.

    165. CB 477.2

93. 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.

94. 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.

95. Mr Newlinds SC also submitted that this material was only worthy of diminished weight because each of the deponents “clearly all know and like [Mr Hilton] personally”. In his written submissions, Senior Counsel for Mr Hilton, Mr Bennet QC, submitted that this imposed an impossible standard on Mr Hilton in that it would require him to call persons to attest to his character who either do not know him or know him but do not like him. It was contended that instead “people with familiarity with the plaintiff would be the expected witnesses to be called, capable of saying something meaningful about the [Mr Hilton’s] current reputation and character”. [166] I agree.

    166. Plaintiff’s closing submissions dated 25 October 2016 at [46]

Fitness and Propriety: Principles and Disposition

96. Mr Bennett QC’s closing submissions took issue with two particular aspects of the LPAB’s decision, namely, its finding that Mr Hilton did not express remorse in his 2012 declaration or otherwise fully appreciate why his conduct was so serious (see [15]). [167] I have already made findings on this matter which are to an extent at variance with the approach adopted by the LPAB (see [60]). Mr Bennett QC’s closing submissions also took issue with the LPAB’s finding as to his motive for committing the offence. [168] However, the LPAB simply adopted Carruthers J’s finding that Mr Hilton was motivated to “enhance his practice in the criminal field” (see [15]). I have already accepted that finding ([65]).

    167. Plaintiff’s closing submissions at [39] to [44]

    168. Plaintiff’s closing submissions at [45]

97. Mr Bennett QC’s principal contention was that Mr Hilton has demonstrated that he is fit and proper and of good fame and character. Although the seriousness of his offence was accepted, it was contended that when proper regard is had to the passage of time and the overall effect of the uncontested testimonial evidence, Mr Hilton is a fit and proper person. [169] It was submitted that the LPAB did not engage in any consideration of whether and, if so, how Mr Hilton could “pose any threat to the public”. It was submitted that any decision to deny Mr Hilton admission to the legal profession would be punitive and not protective. [170]

    169. Plaintiff’s closing submissions at [33]

    170. Plaintiff’s closing submissions at [34]

98. Aspects of Mr Newlinds SC’s submissions on behalf of the Law Society have already been addressed. Further, in his written and oral submissions, Mr Newlinds SC effectively made three related contentions as to why Mr Hilton’s appeal should be refused. First, he contended that Mr Hilton had failed to establish that he was of good character and that the opinions of the testimonial witnesses should be discounted for the reasons already addressed. [171] In furtherance of this it was submitted that Mr Hilton had little insight into the gravity of his conduct, [172] a matter I have already rejected. Second, it was submitted that Mr Hilton was not of good ‘fame’ given his conviction and the notoriety surrounding it. [173] Third, it was submitted that, in its protective jurisdiction, the Court should have regard to the effect that a decision to readmit Mr Hilton would “have on the understanding in the profession and among the public of the standard of behaviour required of solicitors”. [174]

    171. Law Society’s written submissions dated 11 October 2016 at [18]

    172. Law Society’s written submissions at [27]

    173. Law Society’s written submissions at [19]

    174. Law Society’s written submissions at [21]

99. I have already set out the relevant statutory provisions governing the determination of whether Mr Hilton is a fit and proper person to be admitted to the Australian legal profession. The phrases “fit and proper” and “good fame and character” have been extensively discussed in the authorities and it was not suggested that any relevant aspect of that discussion was altered by the statutory provisions. The relevant principles are as follows.

100. First, in determining this application the Court is not exercising a punitive function but only a protective role, which requires it to have primary regard to the protection of the public interest and the interests of the profession (Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-2 and New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183). A particularly significant aspect of this protective jurisdiction was described by Mahoney JA in the passage from Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (“Foreman”) set out below.

101. Second, the relevant question is whether Mr Hilton is currently a “fit and proper person” and of "good fame and character", that is, at the time of the hearing (Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 at 475 (“Tziniolis”); Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [34]).

102. Third, the fact that an applicant for readmission has been convicted of an offence is clearly relevant to an assessment of fitness but it is not necessarily determinative (Ziems at 288, per Fullagar J). Although the Court cannot “look behind the conviction” it can inquire into the conduct of the trial and ascertain “the real facts of the case” (Ziems id). This is reflected in rule 10(1)(h)(i). In this case, that inquiry has been undertaken above.

103. Fourth, in the case of an applicant who has been convicted of an offence, rule 10(1)(h)(ii) requires that consideration be given to the passage of time since the offence and rule 10(1)(h)(iii) requires consideration be given to the person’s age when the offence was committed. These rules encompass some of the considerations that the Court must weigh up in determining whether the circumstances surrounding a previous offence mean that an applicant for admission is not a currently fit and proper person. In some cases those matters point in the same direction and in others they do not. This is an example of the latter. The long passage of time since Mr Hilton’s offence was committed tends in favour of a conclusion that he is presently fit and proper although by itself the passage of time without a transgression does not necessarily prove a change in character (Tziniolis at 461 per Walsh JA with whom Wallace P agreed; Saunders v Legal Profession Admission Board [2015] NSWSC 1839 at [62] per Schmidt J). Against that, as submitted by Mr Newlinds SC, Mr Hilton committed the offence when he was 43, an age when 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.

96. Fifth, as previously noted, it was accepted by all parties that having been removed from the roll of solicitors, Mr Hilton bore a heavy onus of demonstrating his current fitness and propriety. In Ex parte Dennis; Re the Legal Practitioners' Act [175] Samuels JA described that onus as follows:

“The applicant bears the onus - which is a heavy one - of satisfying the Court that he should be readmitted, and in order to do so he must displace the decision as to probable permanent unfitness which was the basis of his removal: Ex parte Munro: Re Legal Practitioners' Act (1969) 71 SR 448 at 454; Kotowicz v Law Society of New South Wales (No 2) (Court of Appeal 7 August 1987, unreported) per Kirby P at 19 and 20 and per Samuels JA at 3; Ex parte Lenehan (1949) 77 CLR 403 at 422. In reaching its decision the Court should act with the greatest caution and only on solid and substantial grounds, and must depend upon its own assessment of the applicant's character, uprightness, honour and trustworthiness: Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 664 and 692; Lenehan at 422.”[176]

175. Court of Appeal (NSW), 23 December 1988, unreported

176. Cited with approval in Dona v Council of the Law Society of NSW [2014] NSWCA 444 at 65, per Barrett JA with Gleeson JA and Emmett JA agreeing.

105. Sixth, the supplementary submissions filed on behalf of Mr Hilton directed the Court to various authorities referring to the public interest in promoting the rehabilitation of practitioners who have previously transgressed. [177] In Dawson v Law Societyof New South Wales [1989] NSWCA 58 (“Dawson”) at 7, Kirby P stated that “[t]here is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners.” That said, the issue always remains whether present fitness has been demonstrated.

     177. Including Kotowicz v Law Society of New South Wales, Court of Appeal (NSW), 7 August 1987, unreported.

106. Seventh, as noted, rule 10(1)(f) refers to an applicant for admission being of “good fame and character”. In Re Davis (1947) 75 CLR 409 at 420, Dixon J referred to this as the “test of ethical fitness for admission to the legal profession”. At times the authorities have drawn a distinction between “fame” and “character”. Thus, in Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 (“P”) at [17], Young CJ in Eq (with whom Meagher and Tobias JJA agreed) described “good fame and character” as having “a twofold aspect” in that “[f]ame refers to a person’s reputation in the relevant community, [whereas] character refers to the person’s actual nature”. [178]

     178. Citing McBride v Walton [1994] NSWCA 199 at [6] per Kirby P and Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455 (“Clearihan”) at 459 per Miles CJ.

107. In submissions filed on behalf of Mr Hilton following the hearing, reference was made to the authorities that have deflected attention from inquiries into reputation and reorientated it towards character. Thus in Janus v Queensland Law Society Incorporated [2001] QCA 180 (“Janus”) at [12], de Jersey CJ stated, “one should in this [good fame and character] inquiry focus on the applicant’s intrinsic character, and not be unduly distracted by his good fame, whether within the legal profession or the wider community”. This approach was endorsed by Thomas JA in Gregory v QLS Inc [2001] QCA 499 at [18].

108. The supplementary written submissions filed on behalf of Mr Hilton also made reference to the passage in Re Davis at 416, in which Latham CJ referred to good fame as being “of good reputation among those who knew him” and suggested that in this case it means the persons who supplied the testimonial material noted above. This suggested construction of those comments is difficult to reconcile with the proposition stated by Young CJ in Eq in P in [106] above and various statements that refer to a person’s fame within a “large section of the public” (Clearihan at 459 per Miles CJ; Jacksonv Legal Practitioners Admission Board [2006] NSWSC 1338 (“Jackson”) at [56] per Johnson J). Although it is not necessary to resolve this issue, it is likely that Latham CJ’s reference to “those who knew him” is not a reference to a person’s personal acquaintances but to a body of persons who are taken to have knowledge of the applicant for admission’s circumstances, including their offence and subsequent conduct. This was the approach adopted by Adams J in Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons [2012] NSWSC 260 (at [9]).

109. Otherwise, there is considerable force in the approach suggested in Janus. No case was cited in which an applicant for admission was found to have the requisite qualities to be of good character yet their personal reputation was such that they were refused admission. In the age of the internet and social media whereby every mistake in life has the potential to be recorded forever, the approach suggested by the Queensland cases has much to commend it. It may be that the proper role for the concept of “fame” in rule 10(1)(f) is that set out in the passage from the judgment of Mahoney JA in Foreman set out below. In the end result the outcome of this case does not turn upon any adverse assessment of Mr Hilton’s fame per se. Instead, I return to a consideration of Mr Hilton’s character and consequently his fitness and propriety bearing in mind the heavy onus he bears.

110. As noted, I accept that Mr Hilton has expressed contrition and is contrite. I also accept that his conduct since his release from prison is strongly in his favour as are the considered opinions of the authors of the testimonials summarised above. He has occupied positions of responsibility since his release. I accept 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. However, a determination of whether Mr Hilton has demonstrated that he is fit and proper involves a much wider inquiry than that. Mr Hilton must demonstrate that he will uphold the “high standards” [179] of honesty and integrity expected of practitioners in all respects relevant to legal practice. As stated in Dennis, in undertaking that inquiry the Court must apply the “greatest caution” in considering whether someone such as Mr Hilton has discharged the onus of demonstrating his character and thus his fitness and propriety.

     179. Foreman at 412

111. In Dawson at 7, Kirby P contrasted two different types of offences in the context of an application by a solicitor seeking readmission after having been removed following a conviction:

“In the case of some offences, committed over an extended period, with deliberate intent and resulting in severe losses by clients, it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the roll. But where the 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 to so that there is no eventual pecuniary loss, the public interest which this Court protects includes the public interest, certain matters being affirmatively proved, in the restoration of the practitioner to the roll.”

112. 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. [180]

     180. Jackson at [249] per Johnson J

113. 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.

114. I am reinforced in this finding of unfitness by considering an aspect of the Court’s protective jurisdiction and fitness that was discussed by Mahoney JA in the following passage from Foreman: [181]

“It is also, I think, relevant for the Court to take into account the effect which its order will have upon the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors. The Court will no doubt, where appropriate, articulate the standards required and that they are high. However, the Court must, I think, also take into account the effect upon what it has said of, for example, a decision to allow a solicitor guilty of a serious infringement of those standards, to continue to practise.

The Court may also have regard to whether, in the light of the offence in question, the solicitor can establish and maintain the kind of relationship which must exist between solicitors. In Re Weare, in the passages to which I have referred, Lord Esher MR and Lindley LJ referred to the relationship which must exist between solicitors. The Master of the Rolls said of Mr Weare (at 446) that “no other solicitors ought to be called upon to enter into such relations” — he had described them as “that intimate intercourse with him which is necessary between two solicitors” — “with a person who has so conducted himself”. Lindley LJ said (at 447): “What respectable solicitor could without loss of self-respect, knowing the facts, meet him in business?”

Their Lordships were not referring to the niceties of social intercourse. They were referring, amongst other things, to the assumptions and the understandings which the nature of the business between solicitors requires to be made, one of the other. A solicitor should be able to place reliance upon the word of another and to accept his undertaking that he will do what he promises: as to the role and significance of solicitors' undertakings, see generally, Halsbury's Laws of England, 4th ed, vol 44, pars 255-258. He should be able to assume that, for example, a document bearing the solicitor's signature as witness was executed in the solicitor's presence and that an affidavit made by a solicitor is properly made. If such assumptions cannot be made in the ordinary course of dealing between solicitors and each is required in prudence to check the truth of what the other has suggested, the administration of justice would be seriously impeded. (emphasis added)

181. At 444 to 445

115. This discussion in Foreman concerning the extent of the Court’s protective jurisdiction does not address the question of fitness by drawing any strict distinction between “fame” on the one hand and “character” on the other. Instead it approaches fitness by considering both the effect on the necessary level of trust that members of the public have in the legal profession if the applicant is readmitted and whether the applicant for admission, if successful, can “establish and maintain the kind of relationship that must exist between solicitors”. This was further emphasised by Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at [20] who identified a number of important interests that must be upheld when insisting upon the “highest standards of integrity” for legal practitioners, namely, that “[f]ellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues” and the “public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice.”

116. In this context it is to be remembered that, if he is readmitted, neither the public nor many of the solicitors with whom Mr Hilton will deal have had or will have the opportunity to first acquaint themselves with him, as the authors of the testimonials have, in order to determine for themselves whether he can be trusted. Instead, those persons can be taken to have full knowledge of the “facts”, being the circumstances of his offence, the passage of time and the matters said to support his readmission. I consider that the circumstances of the offence were so grave and the significance of the finding at [68] are such that, notwithstanding the passage of time and the other matters put forward in support of Mr Hilton’s appeal, a decision to readmit him 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.

117. Finally, I note that during the hearing Mr Bennett QC deployed all his experience as an advocate to characterise the Law Society’s case as being that Mr Hilton’s offence was so serious that he could never be readmitted because “obviously if 34 years is not enough, one has to say, if not now, when”. [182] In light of Mr Hilton’s age it may seem that the answer to that rhetorical question is “never”. To similar effect, the supplementary written submissions filed on behalf of Mr Hilton after the hearing emphasised that the statutory scheme did not contemplate that any particular conviction would necessarily preclude a person from later being readmitted and referred to the statement of Mason P in New South Wales Bar Association v Hamman [1999] NSWCA 404, at [101] that “the door to readmission is never closed”. This can be accepted, but it may be that in a given case the circumstances surrounding a conviction are so grave that the particular applicant has no realistic prospect of ever being readmitted in the remaining years that they intend to practice. However, it is unnecessary to consider this further. It is not this Court’s function to make an assessment about the prospects of any future applications for readmission. Instead, its function is to answer the question of whether Mr Hilton is currently a fit and proper person to be admitted to the Australian legal profession. The answer to that question is “no”.

     182. T 25/10/2016, p 79.25

Orders

118. It follows that the Summons will be dismissed. I will allow the parties to consider their respective positions concerning costs. To facilitate that, I will stand over the proceedings for mention at 9.30am on 29 November 2016. If an outcome on costs is agreed prior to then, the parties can notify my associate accordingly.

119. Accordingly the Court orders that:

(1)   The Summons filed 12 May 2016 be dismissed.

(2)   The proceedings stand over to 9.30am on 29 November 2016 for mention.

**********

Endnotes

Amendments

24 March 2017 - [5], last sentence - insertion of the word "in"

28 November 2016 - [15] - date corrected [5 April 2016]

18 November 2016 - [20] - date corrected [1 August 1983]

Decision last updated: 24 March 2017