Legal Practice Board of WA v Rodgers
[2024] WASC 247
•9 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : FULL BENCH
CITATION: LEGAL PRACTICE BOARD OF WA -v- RODGERS [2024] WASC 247
CORAM: TOTTLE J
MCGRATH J
ARCHER J
HEARD: 14 JUNE 2024
DELIVERED : 14 JUNE 2024
PUBLISHED : 9 JULY 2024
FILE NO/S: LPD 2 of 2024
BETWEEN: LEGAL PRACTICE BOARD OF WA
Plaintiff
AND
GARY MARTIN RODGERS
Defendant
Catchwords:
Legal practitioner conspired to pervert the course of justice - Not a fit and proper person - Practitioner's name removed from the Supreme Court roll
Legislation:
Nil
Result:
Order that the practitioner's name be removed from the Supreme Court roll of legal practitioners
Category: B
Representation:
Counsel:
| Plaintiff | : | E M Heenan SC & A L Spencer |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Legal Practice Board |
| Defendant | : | In person |
Case(s) referred to in decision(s):
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Legal Profession Complaints Committee v Brennan [2010] WASC 198
Legal Profession Complaints Committee v Oud [2019] WASC 287
Re Maraj (a legal practitioner) (1995) 15 WAR 12
Rodgers v The State of Western Australia [2023] WASCA 52
Victorian Legal Services Board v Gobbo [2020] VSC 692
JUDGMENT OF THE COURT:
Overview
Gary Rodgers was found guilty of conspiring with others to pervert the course of justice. On appeal, the Court of Appeal was satisfied beyond reasonable doubt that Mr Rodgers had agreed with at least one other person to pervert the course of justice by pressuring a witness to falsely change his statements to police.[1] However, the Court of Appeal was not satisfied that the State had proved the case it had run at trial.[2] It therefore quashed his conviction.
[1] Rodgers v The State of Western Australia [2023] WASCA 52 [118] ‑ [136] (Buss P & Livesey AJA), [377] ‑ [382], [398] (Mitchell JA).
[2] Rodgers v The State of Western Australia [137] ‑ [140] (Buss P & Livesey AJA), [383], [394], [397], [401] and [403] (Mitchell JA).
Mr Rodgers was a legal practitioner. The Legal Practice Board asked the court to remove his name from the Supreme Court roll of legal practitioners under s 23(1)(b) of the Legal Profession Uniform Law (WA) (Uniform Law). It alleged that, on the basis of the Court of Appeal's conclusions, Mr Rodgers was not a fit and proper person to remain on the roll.[3]
[3] Originating motion filed 29 February 2024.
The Board's application was listed for hearing on 14 June 2024. The day before the hearing, the Board filed a minute of proposed consent orders which had been signed by both parties.[4] In that minute, the parties consented to an order that Mr Rodgers' name be removed from the roll.
[4] Minute of proposed consent orders, signed by both parties, filed 13 June 2024.
In our view, by signing this minute and consenting to the order sought by the Board, Mr Rodgers implicitly admitted the conclusions of the Court of Appeal. This is because the sole ground of the Board's application was that it contended that Mr Rodgers was not a fit and proper person to remain on the roll because of those conclusions.
On the day of the hearing, the court ordered that Mr Rodgers' name be removed from the roll, giving brief reasons. The court said it would publish formal reasons in due course. What follows are those reasons.
The critical issue was whether, in light of the admitted conclusions, we were satisfied that Mr Rodgers was not a fit and proper person to remain on the roll. As we will explain, we were satisfied of this.
What is the proper approach?
The Supreme Court must maintain a roll of Australian lawyers (which is referred to as the Supreme Court roll) for this jurisdiction containing the names and other relevant particulars of persons admitted by the court, whether conditionally or without conditions.[5]
[5] Section 22 of the Uniform Law.
The Supreme Court may order the removal of the name and other particulars of a person from the Supreme Court roll on the recommendation of the designated local regulatory authority, under s 23(1)(b) of the Uniform Law.
In this State 'the designated local regulatory authority' is the Board.[6] The Board has delegated all its powers and duties under pt 2.2 of the Uniform Law[7] (which includes the power to make a recommendation under s 23(1)(b)) to a committee of the Board, the Admissions and Registrations Committee.[8] That committee resolved, on 6 September 2023, to recommend the removal of Mr Rodgers' name from the roll and to commence proceedings in this Court to seek that removal.[9] That resolution and the application by summons together constitute such a recommendation.
[6] Legal Profession Uniform Law Application Act 2022 (WA), s 20.
[7] Affidavit of Francis Hall affirmed on 29 February 2024 (Hall Affidavit) Attachment FXH‑2 page 18.
[8] The Committee was established pursuant to s 53(2)(a) of the Legal Profession Uniform Law Application Act 2022 (WA).
[9] Hall Affidavit FXH‑3.
The court is not bound to accept the recommendation of the regulatory authority but must independently exercise the power on the evidence before it.[10]
[10] Plaintiff's outline of submissions filed 5 March 2024 [12]; Victorian Legal Services Board v Gobbo [2020] VSC 692 [5].
The principles to be applied in an application to remove a practitioner from the roll are well established. They were summarised by this Court in Legal Profession Complaints Committee v Oud[11] and include the following:[12]
(a)The court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession;
(b)Where the motion is to remove a practitioner from the roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner;
(c)Fitness to practice law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges;
(d)Removal from the roll is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice;
(e)Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner.
[11] Legal Profession Complaints Committee v Oud [2019] WASC 287.
[12] Legal Profession Complaints Committee v Oud [17] (Quinlan CJ, K Martin & Smith JJ).
An important object of the disciplinary function is to maintain and protect the reputation of the legal profession.[13] The court must also consider the effect which its order will have on the understanding of both the public and the profession of the standard of behaviour required of legal practitioners.[14]
[13] Re Maraj (a legal practitioner) (1995) 15 WAR 12, 24 ‑ 25 (Malcolm CJ); Legal Profession Complaints Committee v Brennan [2010] WASC 198 [10] (Martin CJ).
[14] Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, 444F (Mahoney JA).
What were the conclusions of the Court of Appeal?
Buss P and Livesey AJA expressed their conclusions about the involvement of Mr Rodgers in a conspiracy to pervert the course of justice as follows:[15]
[15] Rodgers v The State of Western Australia [118(d)], [119], [123], [125] ‑ [126], [129] ‑ [130], [132] ‑ [134], [136].
118We are satisfied, on our review of the trial record, that the State proved beyond reasonable doubt that the role of the appellant and his co-accused in relation to Mr Tonta was as follows:
…
(d)The appellant's role was, first, in his capacity as a lawyer, to take instructions from Mr Curry; secondly, in his capacity as a lawyer, to meet with Mr Tonta for the purpose of taking a statement or statements from Mr Tonta in which Mr Tonta falsely changed his original statements to police for the purpose of exculpating Mr Taylor, Mr Noormets and Ms Atkinson; and, thirdly, in his capacity as a lawyer, to use Mr Tonta's false statement or statements to achieve the purpose of exculpating Mr Taylor, Mr Noormets and Ms Atkinson.
119We are also satisfied, on our review of the trial record, that the only reasonable inference open on the whole of the evidence admissible against the appellant, in the relevant context, is that the appellant agreed with, at least, Mr Curry to pervert the course of justice, upon the prosecution of Mr Taylor, Mr Noormets and Ms Atkinson for deprivation of liberty and violent offences, by pressuring Mr Tonta to falsely change his original statements to police. We are of that opinion for the following reasons.
…
123Fourthly, at least by 27 August 2018, the appellant knew that Mr Curry had not retained the appellant to obtain a truthful statement from Mr Tonta. Rather, the appellant knew that Mr Curry had retained him to obtain a statement in which Mr Tonta recanted his complaint to police and exculpated at least Mr Noormets, irrespective of the truth.
…
125Sixthly, on 27 August 2018, the appellant knew that the statement signed by Mr Tonta at the meeting on 27 August 2018 contained materially false statements; that the materially false statements exculpated Mr Noormets; and that the materially false statements would significantly impact upon Mr Tonta's credibility in relation to his complaint against Mr Taylor and Ms Atkinson.
126Seventhly, on or about 30 August 2018, the appellant gave to Mr Manera (the lawyer acting for Mr Noormets) the statement signed by Mr Tonta at the meeting on 27 August 2018 which exculpated Mr Noormets.
…
129Tenthly, at least by 11 September 2018, the appellant knew that Mr Tonta felt under pressure from Mr Curry to give a statement in which Mr Tonta recanted his complaint to police and exculpated Mr Taylor and Ms Atkinson (in addition to Mr Noormets), and the appellant was unconcerned about that matter.
130Eleventhly, at least by 11 September 2018, the appellant knew that Mr Curry had retained him to obtain a statement in which Mr Tonta recanted his complaint to police and exculpated Mr Taylor and Ms Atkinson (in addition to Mr Noormets), irrespective of the truth.
…
132Thirteenthly, the only reasonable inference, in the circumstances, is that the appellant intended, by making the agreement with Mr Curry, that the proper administration of the course of justice in relation to the pending criminal charges against Mr Taylor, Mr Noormets and Ms Atkinson should be negatively interfered with in the manner we have specified at [131] above.
133Fourteenthly, the only reasonable inference, in the circumstances, is that the appellant intended to play a role in carrying out the unlawful purpose that he had agreed upon with Mr Curry.
134Fifteenthly, the only reasonable inference, in the circumstances, having regard to the facts and circumstances set out at [120] ‑ [133] above is that the appellant, by continuing to perform his role in relation to Mr Tonta, necessarily agreed that those facts and circumstances would be aspects or part of the agreement he had made with at least Mr Curry.
…
136We are also satisfied, on our review of the trial record (in particular, having regard to the evidence set out or referred to in our reasons), that the only reasonable inference open on the whole of the evidence admissible against the appellant, in the relevant context, is that the appellant knew that Mr Curry had pressured or was pressuring Mr Tonta, by pestering, encouraging and cajoling him, to falsely change his original statements to police. The appellant's knowledge that Mr Curry had pressured or was pressuring Mr Tonta, by pestering, encouraging and cajoling him, is to be inferred, as the only reasonable inference, from the whole of the dealings and communications between the appellant and Mr Curry, the whole of the dealings and communications between the appellant and Mr Tonta and Mr Tonta's evidence at trial.
Mitchell JA expressed his conclusions about the involvement of Mr Rodgers in a conspiracy to pervert the course of justice as follows:[16]
378The appellant's participation in that agreement is, in my view, the only reasonable explanation for the appellant's approach to the 27 August 2018 meeting. The appellant did not say anything to Mr Tonta about his need to be truthful. He rather started the meeting by explaining that Mr Tonta was there to 're‑explain' his account so that the main two charges against Mr Taylor and others were dropped ... The appellant would 'reword' what Mr Tonta told him as the appellant was preparing the statement, so that it was not Mr Tonta's true account of the events ... The appellant prepared a statement which was materially false and told Mr Tonta to sign the statement without Mr Tonta having read the notes ... The meeting ended with the appellant telling Mr Tonta not to identify anyone when the matter went to trial ...
379The conduct described in the previous paragraph is only consistent with the appellant seeking to obtain a false statement from Mr Tonta. Recorded communications made it clear that the appellant was taking his instructions from Mr Curry rather than Mr Tonta. In these circumstances, the irresistible inference is that the appellant agreed with at least Mr Curry that a false statement would be obtained from Mr Tonta to exculpate Mr Taylor, Mr Noormets and Ms Atkinson.
380Other objective evidence also supported the inference that the appellant agreed to procure a false statement from Mr Tonta with the intention of perverting the course of justice, and tended to exclude any other reasonable explanation:
1.The appellant's conduct in passing the statement to Mr Noormets' lawyer, without Mr Tonta asking him to do so, indicates that the appellant intended that the statement would be used to derail the prosecution of Mr Taylor and others.
2.The clear lies that the appellant told Mr Emilien and Ms Austin as to the purpose of his meetings with Mr Tonta … indicate the appellant's intended subterfuge. While these lies were not left to the jury as an implied admission of guilt, the appellant's conduct was part of the circumstantial evidence from which an agreement to procure a false statement, to be used to exculpate Mr Taylor, Mr Noormets and Ms Atkinson, could be inferred.
3.The appellant gave advice to Mr Tonta at the second meeting, which took place on 11 September 2018, as to how Mr Tonta could avoid implicating Mr Taylor, Mr Noormets and Ms Atkinson if he gave evidence at trial ... That advice was consistent only with an intention to procure false statements in Mr Tonta's oral evidence.
4.The appellant's clear lie to police as to when he first met Mr Curry … was an implied admission that the appellant had attempted to procure a false statement from Mr Tonta at Mr Curry's direction. If the plan was simply to obtain a true statement from Mr Tonta, then there would be no reason for the appellant to lie to police about the instructions he received from Mr Curry. This was properly seen as a lie, which an innocent person would not tell, being told because the appellant appreciated that the truth would implicate him in an agreement with Mr Curry to obtain a false exculpatory statement from Mr Tonta.
[16] Rodgers v The State of Western Australia [378] ‑ [380].
What are Mr Rodgers' circumstances?
Mr Rodgers was admitted as a lawyer in Western Australia on 20 July 2005 under the Mutual Recognition (Western Australia) Act 2001 (WA), having already been admitted to the Australian Capital Territory Supreme Court roll of practitioners on 15 April 2005. He held a practising certificate from and including 20 July 2005 until 29 April 2021.
Since 1 October 2010, Mr Rodgers worked as a sole practitioner under the name 'Gary Rodgers Barrister and Solicitor'.
The court has no other information about Mr Rodgers' personal circumstances. Mr Rodgers did not appear in these proceedings. That said, given the protective nature of the jurisdiction, Mr Rodgers' personal circumstances would be of limited significance.
Is Mr Rodgers a fit and proper person?
The jurisdiction the court is called upon to exercise is protective and not punitive. One feature of the protective nature of the jurisdiction is that it is invoked to maintain the reputation of the profession in the eyes of the public. The removal of Mr Rodgers' name from the roll serves an important aspect of the public interest by demonstrating to the public that legal practitioners are required to observe the highest standards of honesty and integrity. A failure to observe those standards calls into question the suitability of a legal practitioner to enjoy the privilege of practising as a lawyer.
Mr Rodgers' agreement to pervert the course of justice is misconduct of a most serious kind. It demonstrates disregard for the very system with which Mr Rodgers has been entrusted, as an officer of the court, to aid in administering. His conduct was not only at odds with the requisite characteristics of a fit and proper person, it was destructive of the confidence the court, clients and the public are entitled to place in his ability to uphold and participate in not only the criminal justice system, but the administration of justice more generally.
If this Court were to permit Mr Rodgers to remain on the roll having manifested such dishonesty and disregard for the system he was entrusted to uphold, it would undermine the public's trust and confidence in the honesty and integrity of legal practitioners. The court must send a clear signal to the community and the profession that dishonest conduct of the nature and extent engaged in by Mr Rodgers is manifestly incompatible with his remaining on the roll and will not be tolerated.
For these reasons, the court ordered that Mr Rodgers' name be removed from the Supreme Court roll.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Hon Justice Archer
9 JULY 2024
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