JARVIS and LEGAL PRACTICE BOARD
[2012] WASAT 28
•13 FEBRUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: JARVIS and LEGAL PRACTICE BOARD [2012] WASAT 28
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MR M SPILLANE (SENIOR MEMBER)
MS R MOORE (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 13 FEBRUARY 2012
FILE NO/S: VR 176 of 2011
BETWEEN: RONELLE ANNE JARVIS
Applicant
AND
LEGAL PRACTICE BOARD
Respondent
Catchwords:
Application for admission to the legal profession - Fit and proper person - Prior convictions - Suitability matters
Legislation:
Legal Profession (Admission) Rules 2009 (WA)
Legal Profession Act 2008 (WA), s 8, Pt 4 Div 4, s 20(a), s 21(2), s 22, s 25, s 26, s 30, s 31(1), s 31(3), s 32(2)(b), s 32(4), s 552
State Administrative Tribunal Act 2004 (WA), s 27, s 60(2)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr J Thomson
Respondent: Mr A McNay
Solicitors:
Applicant: Thames Legal Barristers & Solicitors
Respondent: MDS Legal
Case(s) referred to in decision(s):
Australian Broadcasting v Bond (1990) 170 CLR 321
Frugtniet v Board of Examiners [2002] VSC 140
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338
Legal Practitioners Complaints Committee v Pepe [2009] WASC 39
Mungar v Legal Practice Board of WA [2009] WASC 135
Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246
Re Owen [2005] 2 NZLR 536
Tavelli v Johnson (Unreported, WASC, Library No. 960693, 25 November 1996)
Thomas v Legal Practitioner's Admission Board [2005] 1 Qd R 331
Zampatti v Western Australian Planning Commission [2010] WASCA 149
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
In February 2011, the applicant applied to the Supreme Court (Full Bench) for admission as a legal practitioner. However, the Legal Practice Board declined to provide a compliance certificate to the Court, on the basis that the Board did not consider the applicant to be a fit and proper person for admission to the legal profession.
The applicant applied to the Tribunal for a review of the Board's decision.
The Tribunal considered the applicant's application for admission and the other documents which she submitted to the Board. The Tribunal also considered the applicant's submissions to the Tribunal. The Tribunal concluded that, in the light of, amongst other things, the applicant's criminal record and her lack of candour in the manner in which she disclosed relevant matters in her application, the Board's decision was correct and the application was dismissed.
Introduction
Under s 25 of the Legal Profession Act 2008 (WA) (LP Act), a person may apply to the Supreme Court (Full Bench) to be admitted to the legal profession. The Supreme Court may admit a person as a lawyer if the Supreme Court is satisfied, amongst other things, that the person 'is a fit and proper person to be admitted to the legal profession'. For that purpose, the Supreme Court may rely on the advice of the respondent (Board); see s 26 of the LP Act.
The Admissions and Registrations Committee (Committee) is a committee of the Board pursuant to s 552 of the LP Act. The Board has delegated various powers and duties to the Committee, including those of the Board under Pt 4, Div 4 of the LP Act.
Sections 30 and 31 of the LP Act, which are in Pt 4, Div 4, relevantly provide as follows:
30.Board to advise on applications for admission
The Board must
(a)consider applications by persons for admission to the legal profession under this Act; and
(b)advise the Supreme Court as to whether it considers that
(i)the applicant is eligible for admission; and
(ii)the applicant is a fit and proper person to be admitted; and
(iii)the application is in accordance with the admission rules.
31.Compliance certificates
(1)If, after considering an application for admission to the legal profession, the Board considers that
(a) the applicant is
(i) eligible for admission; and
(ii) a fit and proper person to be admitted;
and
(b)the application is in accordance with the admission rules; and
(c)there are no grounds for refusing to give a certificate of the matters mentioned in paragraphs (a) and (b) (a "compliance certificate"),
the Board must, within the time specified in or determined in accordance with the admission rules, advise the Supreme Court to that effect by filing a compliance certificate.
…
Section 22 of the LP Act requires the Supreme Court or the Board, when considering whether a person is a fit and proper person to be admitted, to consider each of the 'suitability matters' and any other matters considered relevant.
Section 8 of the LP Act includes the following as 'suitability matters':
(a)whether the person is currently of good fame and character;
…
(c)whether the person has been convicted of an offence in Australia or 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;
…
Background
In February 2011, the applicant lodged a formal Notice of Application for Admission and Originating Motion paper (Application) with the Supreme Court and provided a copy to the Board. The Committee, as the Board's delegate, considered the Application for the purpose of assessing whether the Board could advise the Supreme Court that the applicant is eligible for admission to the legal profession, is a fit and proper person to be admitted and the Application is in accordance with the admission rules.
There was no question nor was it disputed that the applicant was eligible for admission, having attained the necessary academic and practical legal training required under s 21(2) of the LP Act, and that the applicant has lodged an application in accordance with the Legal Profession (Admission) Rules 2009 (WA). However, the Application disclosed the following matters:
1)a conviction in 1985 of giving a false name to the police;
2)a conviction in 1989 of stealing as a servant from her then employer, Two Wheel Wholesalers;
3)a conviction in 2002 of stealing as a servant from her then employer, the Equestrian Federation; and
4)a conviction in 2008 for obtaining a financial advantage from Centrelink.
Accordingly, on 11 February 2011, the Committee resolved to hold a formal inquiry to determine whether or not the Committee could form the view that the applicant was a fit and proper person to be admitted.
On 1 July 2011, the Committee conducted the inquiry. At the hearing the Committee heard evidence from the applicant and received into evidence the documents accompanying the Application.
To be satisfied that it should form the opinion that she is a fit and proper person to be admitted, as required by s 31(1) of the LP Act, the Committee had to consider whether any of the suitability matters apply to the applicant. This led the Committee in turn to consider the relevant conduct, what light that conduct has on the applicant's fitness to be admitted as a lawyer and the impact on the public confidence in the legal profession if the applicant were to be admitted as a lawyer.
On 1 September 2011, the Committee delivered its decision which concluded that the applicant was not 'currently a fit and proper person to be admitted'.
On 26 September 2011, the applicant applied to the Tribunal for a review of the decision of the Committee.
The matter was listed for a directions hearing on 25 October 2011 at which time the Tribunal issued orders requiring the filing of submissions and thereafter ordered that the matter was to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Facts
The facts which are set out below and which are largely agreed between the parties have been derived from:
1)the applicant's statement of issues, facts and contentions dated and filed with the Tribunal on 8 November 2011;
2)the applicant's bundle of documents, filed with the Tribunal on the same date;
3)a statutory declaration of the applicant, dated 17 January 2011 which accompanied the Application;
4)the Committee's written reasons for its decision delivered on 1 September 2011.
The applicant was born in Victoria on 14 July 1965. After moving to Western Australia she completed Year 10 at Hedland Senior High School in 1980. The applicant did not continue her schooling and left to commence full time employment.
1985 conviction giving a false name to police
At the relevant time, the applicant was driving under the terms of an extraordinary licence, which permitted her to drive only for work related purposes during specific times.
On 16 February 1985, the applicant was driving outside the prescribed permitted hours of operation of her extraordinary licence. The applicant was stopped by police for speeding, and when asked for her name, she gave a friend's name instead of her own. When the infringement notice was received, the applicant presented herself to the police and admitted that she had been the driver of the vehicle and had given a false name when questioned by the police. As a result, in July 1985, the police prosecuted the applicant for:
1)driving at a speed of 84 kilometres per hour in a 60 kilometre per hour zone;
2)giving a false name when questioned by police;
3)breaching the conditions of her extraordinary licence by driving outside of permitted hours;
4)failing to display her P plates; and
5)failing to produce her extraordinary licence on demand.
The applicant was convicted and the National Police Certificate shows that the applicant was fined $50 for this conviction.
Home invasion
In November 1985, the applicant was the subject of a home invasion and serious assault. The Tribunal has little information about this event but accepts that the applicant has merely referred to the incident as part of providing a history of events in her life.
Two Wheel Wholesalers stealing as a servant
In 1989, the applicant was employed as an office clerk by Two Wheel Wholesales. One of her duties was to bank each day's takings. The applicant states in her statutory declaration that whilst working for Two Wheel Wholesalers, she was subjected to continual harassment by a senior officer of the company. The applicant stated that one day she made the decision not to return to work and as a result, the banking for that day was not done and the monies belonging to her employer 'remained in the glove box of [the applicant's] vehicle until such time as the police arrived'.
The applicant also explained in her statutory declaration that she pleaded guilty to the charge upon legal advice. The sentencing Judge apparently stated that the large part of the monies the subject of the theft, being approximately $18,000 and comprising cheques, were the subject of a 'technical theft' because the applicant made no attempt to appropriate the cheques. The sum of about $178 which was in cash, was the amount which the applicant used for her own benefit.
In July 1989, the applicant was convicted of three charges of stealing as a servant. She was fined $500, ordered to repay the sum of $178 and in default would be subject to imprisonment for five weeks.
Child support
The applicant married in 1990 and had two children, the first son being born in May 1991 and the second son being born in September 1992. In 1995, the applicant separated from her husband and in October 1996, they were formally divorced. This left the applicant as a single mother caring for her two young children, who at the relevant time were aged 5 and 4 respectively.
Shortly after her separation from her husband in 1995, the applicant was receiving approximately $1,000 per month from her husband by way of financial support for herself and her sons. After two or three years this amount was reduced to $200 per month, said by the applicant to be due to a business restructure by the applicant's former husband resulting in him reporting a much reduced income to the Child Support Agency. This resulted in the applicant's husband being legally obliged to pay no more than $200 per month to the applicant.
Equestrian Federation
In 2001, the applicant obtained employment as a registrar with the Equestrian Federation of Australia Western Australian branch (Federation). In her statutory declaration to the Committee the applicant stated that whilst working as a registrar with the Federation she had taken money from the Federation to meet her everyday living expenses. Her explanation contained in the statutory declaration is set out as follows:
…
[19]2002: This was in relation to my employment as Registrar for the Equestrian Federation of Australia for Western Australia.
[20]I had, prior to being charged, admitted to my employees [sic] that I had 'borrowed' the money with the full intention of repaying it, as I was finding it financially difficult since my marriage separation to provide for my sons.
[21]My employees [sic] seemingly empathised with my predicament and a signed agreement was made that the police would not be contacted. However they would withhold any leave/pay entitlements owed to me as recompense. I believed, as did they, that any entitlements owed to me would have well and truly covered the money owed.
[22]At a later date, I was asked to come in for an interview with the police, which I did. During this interview it became apparent that a number of alleged offences I was accused of were incorrect and I was able to provide evidence of that. These alleged offences were subsequently discontinued.
[23]As I had no record of the money that I had 'borrowed', I felt that I had no other option but to admit to the remaining amounts that I was accused of taking and could not explain.
[24]I have since repaid the money stolen from this employer and have also forgone any monies that were previously due to me, as was our prior agreement.
On 31 January 2002, the applicant entered a plea of guilty to 123 counts of stealing as a servant and was convicted of stealing $9,000, sentenced to an 18 month intensive supervision order and 180 hours of community service work.
Further education
In 2002, the applicant decided to return to school and obtain further qualifications which would enable her to earn a sufficient income to care and provide for her children. She enrolled at Cyril Jackson High School to complete her TEE and thereafter gained admission at Edith Cowan University in 2003 to study a Bachelor of Arts with a double major in criminology and psychology.
When Edith Cowan University commenced its law course in 2005, the applicant applied to the university for enrolment and was subsequently accepted. The applicant then proceeded to complete her Bachelor of Arts and Bachelor of Laws degrees simultaneously. She completed the abovementioned courses in 2008, and in 2010 completed a Bachelor of Criminology and Justice Honours degree.
Centrelink debt
During the period 2002 2004 the applicant incurred a debt to Centrelink of approximately $5,000 as a result of overpayments made to her when in receipt of her single parent benefit (Centrelink debt). Those overpayments were made because the applicant had been incorrectly stating her income to Centrelink. During this period the applicant was working on a casual basis in the restaurant industry, studying and looking after her two children.
Centrelink conviction
In 2008, the applicant was charged with, during the period between 27 May 2005 and 11 June 2006, obtaining a financial advantage for herself from a Commonwealth entity, namely payment of Parenting Payment Single in the amount of $6,091.76 from Centrelink. The applicant pleaded guilty to the charge and in May 2008 was fined $1,200 as well as being obliged to repay the amount of the overpayment and interest to Centrelink.
During the period of offending the applicant was working part time in the restaurant industry, and then subsequently for the Legal Aid Commission on its 'Infoline'.
Academic misconduct
In 2002, the applicant was charged with academic misconduct by Edith Cowan University arising from the submission of her Honours thesis entitled 'Sex Offenders: Predicting Risk of Future Reoffending' as part of her Bachelor of Criminology and Justice Honours degree. The misconduct took the form of incorrect citations and a failure to cite sources within the literature review section of her thesis.
The University conducted an investigation as to whether the applicant was guilty of plagiarism but found instead that her failure to adequately cite sources was a 'serious but not intentional error'.
The applicant's current situation
The applicant is now in full time employment with the Legal Aid Commission of Western Australia. She is no longer financially responsible for her children, one of whom is with the armed forces and the other being a student with a part time job.
References
The applicant provided a number of references to the Committee in support of the Application. Two of these references take the form of 'Certificates of Good Character' which accompanied the Application. A number of other references were provided, but most of these would appear to be references relating to the applicant's earlier sentencing.
The applicant also provided references from, respectively, her mother, Margarite Jarvis, and a friend, Gordon Standley. With her application to the Tribunal, the applicant provided updated references from Ms Jarvis and Mr Standley.
The Committee's decision
The Committee's reasons for its decision can be summarised as follows:
1985 conviction giving a false name
The Committee noted that the applicant had failed to disclose in the application the fact that she had previously lost her driver's licence which led to her driving under an extraordinary licence. However, the Committee was prepared to accept that the events occurred some 25 years previously and that the applicant's recollection of the details of those events may be a little unclear. The Committee also accepted that the applicant was only 18 years old (she was in fact almost 20 years old) at the time and may have failed to appreciate the consequences of her conduct.
The Committee stated that the conviction and the circumstances leading up to it did not, on their own, lead the Committee to the opinion that the applicant is not a fit and proper person to be admitted.
Two Wheel Wholesalers stealing as a servant
The Committee observed that the applicant's statutory declaration failed to disclose that the applicant had in fact removed some $178 in cash from the glove box of the applicant's vehicle and used that money to meet her own living expenses. The applicant at the inquiry conceded that she might have been a little more forthcoming with regard to that fact.
The Committee felt that, although this detail might appear to be somewhat minor, it demonstrated to it that there was an attitude of carelessness on the part of the applicant when presenting facts.
Again, the Committee was prepared to accept that at the time of the commission of this offence the applicant was only 23 years old and had acted out of impulse in failing to return the money to her employer when she decided not to return to work.
Again, the Committee concluded that this conviction on its own did not lead to the conclusion that the applicant is not a fit and proper person to be admitted as a lawyer.
Equestrian Federation
The Committee noted that the applicant attributed the thefts to the fact that her exhusband's monthly child support payments had decreased significantly, which resulted in her facing financial hardship.
The Committee also observed that this incident was fairly recent, having occurred during 2001 and 2002. The Committee did not dispute the applicant's assertion that it was not a premeditated and calculated series of events, but it noted that the events were protracted and ongoing.
The Committee formed the opinion that the conduct could not be excused by the 'folly of youth', the applicant being 36 years of age at the time, or the fact that she was unaware of the consequences of the theft, given her prior convictions in 1989. The Committee said that it was of the view that the applicant knew what she was doing when she wrongfully took money from her employer, who trusted her and who relied upon her trust as an employee.
The Committee's final observation in respect of this matter was that the Committee was not satisfied that the applicant had true insight into her behaviour and does not appear to recognise the damage that she did to her employer. The Committee said that the applicant's statements of remorse and contrition were directed solely to the harm she had done to her children and to herself, not to the Federation.
Centrelink matters
The Committee noted that the applicant failed to disclose the Centrelink debt in the Application. When questioned as to why she did not, she said that she did not understand it to be 'an infringement on [her] character'. The Committee held that the failure to disclose the Centrelink debt and the reason given to the Committee for its nondisclosure also points to the applicant not fully understanding the obligations of candour and honesty imposed on a lawyer, not only when seeking admission as a legal practitioner, but also in the wider sense of understanding a lawyer's basic obligation of honesty and integrity.
The Committee went on to say that the applicant's continuation of underreporting her income to Centrelink demonstrates a lack of regard for the law and her conduct demonstrates a level of wilful and reckless carelessness as to the honesty of her statements to Centrelink and as to the consequences of her actions.
Academic misconduct
The Committee did not consider that the finding of academic misconduct on its own would lead to a conclusion that the applicant is not a fit and proper person to be admitted.
General comments
The Committee then went on to make some further general observations about what they referred to as the applicant's candour and insight issues and it is useful to set these out in the Committee's own words:
…
Candour & Insight Issues
130.There is another aspect of the applicant's past conduct that concerns the Committee. Apart from the incidents in the applicant's youth where the Committee accepts that immaturity and folly of youth led to her making poor decisions, the more recent incidents, namely commencing with the applicant working for the Federation in 2001, demonstrate that the applicant has resorted to theft in one form or another at times when she was in need of money.
131.Whilst the applicant is much more secure financially today than she was in the past, this is not a factor that the Committee can be satisfied will not occur in the future. Financial security cannot be guaranteed. Legal practitioners are not immune from misfortune or the making of poor financial decisions. However it is expected that in such a situation the legal practitioner will not resort to theft to survive.
132.There is no doubt the applicant is remorseful for her past conduct. She recognises that her past conduct has and will continue to have impact on her present and future. But remorse alone is not sufficient. The Committee is not able to form the view that the applicant has true and meaningful insight into her past conduct. Insight is not likely to be demonstrated by mere statements that one has gained insight insight will have to be demonstrated by one's actions.
133.The Committee whilst sympathetic to the applicant and cognisant of the great steps she has taken to reach her current state, is not convinced that she has, at this stage, a full understanding of and insight into her past conduct, such as to enable the Committee to form the view that she is currently a fit and proper person to be admitted.
134.Whilst the Committee is not seeking a guarantee that the applicant will never again in the future break the law, it has to be satisfied, to the requisite standard, that should the applicant in the future find herself in financial difficulty, she has sufficient insight and the necessary integrity and honesty to refrain from taking advantage of situations for her own personal benefit. The Committee is not so satisfied.
135.The applicant's statutory declaration in support of her application was less than frank. It was incomplete and at times misleading. The Committee understands that in the circumstances of this matter the applicant felt that she had to explain her criminal convictions, but one has to question whether that was merely because there was an independent record of the same. The Committee is not satisfied with the applicant's explanation in this regard, namely that her lack of disclosure was an oversight and due to carelessness. That said, the Committee notes that it would not for this reason alone, find the applicant not to be a fit and proper person to be admitted as a legal practitioner.
136.As further evidence of the lack of candour and therefore insight by the applicant is the fact that none of her referees appear to have a full knowledge of her past convictions and actions. Given what the Committee assumes to be an important step in the applicant's life, namely seeking admission as a legal practitioner, the Committee is surprised that none of the references meet this simple and obvious test knowledge of the applicant's past. Whilst it is accepted that the applicant is not proud of her past and would rather not have to disclose the same, at the same time the Committee and the community expect the applicant to be full and frank in her disclosures, even when embarrassing.
137.The Committee is not convinced that the applicant will be prepared to disclose all relevant facts in full when required to do so. As a legal practitioner, the Committee and the Court and most importantly the public must have this confidence.
Confidence in the Legal Profession
138.The Applicant has a significant history of theft and dishonest conduct. Accepting that the Applicant only stole money when she was in dire financial circumstances, the end result is that the public cannot have confidence that the Applicant, if admitted, will put the rule of law and respect for the legal system, above her own personal needs. The events that led to the convictions are not events that are unlikely to occur in the future. In fact, in this day and age, they are very common, even amongst legal practitioners.
139.Given the gravity of the Federation and Centrelink convictions, the fact that at the relevant time the Applicant was not young, immature or without experiences that one would have expected her to learn from (namely her prior convictions for stealing as a servant) the Committee is not satisfied that enough time has elapsed since the convictions and the events leading to the convictions such that the Committee and the public can have confidence in the Applicant upholding the law and the legal system.
The Committee concluded its reasons by saying that the Committee had formed the opinion that the applicant is not currently a fit and proper person to be admitted.
Nature of the review
When the Tribunal determines a matter in its review jurisdiction, the Tribunal is bound to have regard to the requirements of s 27 of the SAT Act. First, under s 27(1), the hearing is a de novo hearing, which means it is heard afresh. The Tribunal is to consider afresh all of the facts and circumstances and make a decision on the merits of the case; see Zampatti v Western Australian Planning Commission [2010] WASCA 149 at [62]. Secondly, s 27(2) identifies the purpose of the review which is 'to produce the correct and preferable decision at the time of the decision upon review'. Thirdly, pursuant to s 27(3) the reasons for decision provided by the original decisionmaker, or any grounds for review set out in the application do not limit the Tribunal in conducting a proceeding for the review of a decision.
The principles to be applied
The principles that guided the Committee in reaching its decision are set out in its reasons. In essence, the admission of a person as a lawyer carries with it an assurance to the public that the person in question is a fit and proper person to be entrusted by members of the public with their private information, their assets, including their money and their intimate thoughts and plans. The public are entitled to expect that lawyers will at all times act with integrity and the utmost honestly in their dealings with their clients, the Courts and other lawyers. The public also require confidence in the administration of justice and the legal profession itself. It follows that the public are entitled to expect that lawyers themselves abide by that system.
The Tribunal concurs with those views.
The phrase 'fit and proper person' has received much judicial consideration. In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at [156], Dixon CJ and McTiernan and Webb JJ said:
The expression "fit and proper person" is, of course, familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection.
There can be no inflexible rules and no policy and the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework; see Tavelli v Johnson (Unreported, WASC, Library No. 960693, 25 November 1996). The expression takes its meaning from its context and from the activities in which the person is or will be engaged; Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246 at [18]. It is not a concept which is to be narrowly construed or confined; Australian Broadcasting v Bond (1990) 170 CLR 321 at [348].
In so far as this application is concerned, the Committee in determining whether the applicant is a fit and proper person to be admitted as a legal practitioner, considered whether:
1)the applicant has the personal qualities of character that are necessary to discharge the role of a lawyer; see Frugtniet v Board of Examiners [2002] VSC 140 (Frugtniet) at [10];
2)the applicant has a commitment to honesty and integrity in all her dealings; see Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 at [58];
3)the applicant has demonstrated candour and honesty in disclosing relevant matters in her application, irrespective of self interest or embarrassment; see Frugtniet at [10];
4)the applicant has insight into her past conduct and the effect of the her conduct on others; see Mungar v Legal Practice Board of WA [2009] WASC 135 (Mungar) at [13];
5)the past conduct is indicative of the applicant's current fame or character; see Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 at [49];
6)the circumstances identified by the applicant as being causes or contributing factors to her past conduct have been removed or are no longer likely to affect the applicant, such that the Committee can have confidence that such conduct is not likely to reoccur; see Mungar at [17].
The Tribunal considers that this approach is appropriate in the circumstances of the Application and adopts the same approach for the purpose of its review.
The applicant's submissions and the Tribunal's findings
The existence of a criminal record is not, in itself, a reason to conclude that a person is not a fit and proper person to be admitted to the legal profession, although some forms of criminal behaviour may inevitably lead to that conclusion. In Thomas v Legal Practitioner's Admission Board [2005] 1 Qd R 331, the applicant in question misappropriated a total of $8,640 of his employer's money. Jersey CJ said at [335] that this 'suggests present unsuitability to practise in a profession in which absolute trust must be of the essence'.
A criminal record, however, does indicate that the applicant may not have the personal qualities of character that are necessary to discharge the role of a lawyer.
It would not be unprecedented for the Tribunal to overlook a prior conviction, even for dishonesty, if it occurred when the applicant was young; see, for example, Re Owen [2005] 2 NZLR 536. Nonetheless, in those circumstances, the Tribunal still needs to consider the manner in which the applicant deals with this aspect of his or her past in the application for admission.
In this case, the 'false name' conviction occurred some 25 years ago and could be excused by the applicant's youth and immaturity at the time. Nevertheless, when framing the Application, the applicant chose not to disclose the circumstances under which she came to hold an extraordinary licence, nor did she disclose a subsequent drink driving conviction in 1988, nor again, her disqualification from driving for life in 1995. These facts only emerged during the Committee's enquiries.
Further, she was not forthcoming about the circumstances leading to the Centrelink debt and the inquiry into academic misconduct. While the academic misconduct can be explained, it and the other failures to disclose information lead the Tribunal to question whether the applicant has a commitment to honesty and integrity in all of her dealings.
The applicant has an explanation for each occasion of failing to disclose information but, with respect, her commitment to honesty and integrity would have been better demonstrated by disclosing everything and providing explanations, rather than taking the approach of deciding herself what should or should not be disclosed.
Turning to the stealing as a servant convictions in 1989, also some time ago, what the applicant failed to disclose was that she had actually taken the $178 which was in her glove box and used it to pay her rent. She confirmed to the Committee that she should perhaps have been a little more forthcoming about that.
Thus, the Tribunal finds that the applicant has not demonstrated candour and honesty in disclosing all relevant matters to the Board.
With regard to the stealing as a servant convictions in 2002, and the Centrelink convictions, these are comparatively recent and serious offences of dishonesty. The Tribunal accepts that the applicant may have been under severe financial stress at the relevant time, but that cannot excuse that conduct or justify it in the context of the applicant wishing to be admitted to the legal profession.
The Committee in its findings questioned the applicant's insight into her past conduct and whether or not she recognised, in the case of the Federation convictions, how her actions would have impacted on her employer. In response to this, the applicant wrote to the Tribunal expressing her 'lasting and ongoing awareness of how my actions would have impacted on my employers'.
The Tribunal accepts this, but is unsure how this progresses the matter much further, given her subsequent Centrelink conviction, which followed her earlier convictions. Genuine remorse usually would not be succeeded by a subsequent offending of a similar nature.
It is clear that in the case of the stealing offences, the applicant's motivation was financial need. The applicant has provided assurances to the Tribunal that she is now in a financially stable position and the 'trigger' for her offending will not arise in the future. That may well be the case, but there is nothing to say that financial pressures will not arise in the future and the Tribunal's view is that to be persuaded that the applicant will not reoffend, it will require some evidence of rehabilitation. While the Tribunal does not expect 'many years of blameless conduct', to use the words of Gillard J in Frugtniet at [70], the Tribunal would certainly expect that a further period of time needs to elapse before the Tribunal is persuaded as to the applicant's reformation.
Conclusion
The Tribunal finds that the Board's decision not to file with the Supreme Court a compliance certificate for the purpose of s 31 of the LP Act was the correct decision, because, in the Tribunal's view the applicant has not yet demonstrated to the Tribunal that she possesses the necessary qualities of character to discharge the role of a legal practitioner. For the reasons explained above, the Tribunal finds that the applicant is not at this time a fit and proper person to be admitted to the legal profession.
Order
The application is dismissed.
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT
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