Legal Practitioners Complaints Committee v Tomlinson
[2006] WASC 211
LEGAL PRACTITIONERS COMPLAINTS COMMITTEE -v- TOMLINSON [2006] WASC 211
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 211 | |
| FULL BENCH | |||
| Case No: | LPD:6/2005 | 1 SEPTEMBER 2006 | |
| Coram: | MARTIN CJ MURRAY J McKECHNIE J | 22/09/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Practitioner struck off Roll of Practitioners | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PRACTITIONERS COMPLAINTS COMMITTEE MICHAEL MURRAY TOMLINSON |
Catchwords: | Legal practice Professional disciplinary proceedings Practitioner convicted of stalking offence Unsatisfactory conduct under Legal Practice Act 2003 (WA) Relevance of practitioner's psychological state Failure to seek treatment Practitioner struck off Roll |
Legislation: | Legal Practice Act 2003 (WA), s 185, s 187, s 190, s 194 |
Case References: | A Solicitor v Law Society of NSW (2004) 216 CLR 253 S v Legal Practice Board of WA (2004) 29 WAR 173 Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 Barristers' Board v Young [2001] QCA 556 Council of Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 Law Society of South Australia v Rodda (2002) 83 SASR 541 Re Maraj (A Legal Practitioner) (1995) 15 WAR 12 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : FULL BENCH CITATION : LEGAL PRACTITIONERS COMPLAINTS COMMITTEE -v- TOMLINSON [2006] WASC 211 CORAM : MARTIN CJ
- MURRAY J
McKECHNIE J
- Applicant
and
MICHAEL MURRAY TOMLINSON
Respondent
Catchwords:
Legal practice - Professional disciplinary proceedings - Practitioner convicted of stalking offence - Unsatisfactory conduct under Legal Practice Act 2003 (WA) - Relevance of practitioner's psychological state - Failure to seek treatment - Practitioner struck off Roll
Legislation:
Legal Practice Act 2003 (WA), s 185, s 187, s 190, s 194
(Page 2)
Result:
Practitioner struck off Roll of Practitioners
Category: B
Representation:
Counsel:
Applicant : Mr M G Murphy SC & Ms G L Roberts
Respondent : Mr M Tedeschi
Solicitors:
Applicant : Law Complaints Officer
Respondent : Taylor Smart
Case(s) referred to in judgment(s):
A Solicitor v Law Society of NSW (2004) 216 CLR 253
S v Legal Practice Board of WA (2004) 29 WAR 173
Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279
Case(s) also cited:
Barristers' Board v Young [2001] QCA 556
Council of Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408
Law Society of New South Wales v McNamara (1980) 47 NSWLR 72
Law Society of South Australia v Rodda (2002) 83 SASR 541
Re Maraj (A Legal Practitioner) (1995) 15 WAR 12
(Page 3)
1 JUDGMENT OF THE COURT: On 9 July 2004, the respondent pleaded guilty in the Court of Petty Sessions at Carnarvon to a charge of stalking contrary to s 338E(1) of the Criminal Code (WA). The offence is constituted by the pursuit of another person, within the extended definition of the word "pursue" in s 338D(1), with intent to intimidate that person. It is a serious crime, punishable in the circumstances charged in this case by imprisonment for 3 years on indictment, or imprisonment for 18 months and a fine of $18,000 if dealt with summarily.
2 The respondent told the Court that he attributed his behaviour over the period covered by the charge, 16 January 2004 to 7 May 2004, a period of nearly four months, to depression following the break-up of his relationship with the victim of the offence. He told the Court that he had been seeing a Mr Beaton, a clinical psychologist, once a week "for the last several weeks". He tendered a report by Mr Beaton. The respondent came before the Court as a 37-year-old legal practitioner and presented a reference from the solicitor who was his employer and also a friend. It is dated 7 July 2004. He described the respondent's conduct as being entirely out of character. He said the respondent was "extremely remorseful".
3 The Magistrate noted that the respondent was a highly educated professional man, not only having a law degree, but also a Masters degree as a psychologist. He had no previous convictions and had pleaded guilty at an early stage. However, the Magistrate thought that the facts of the case, to which we shall return, were extremely serious. They had had, he thought, a substantial traumatising effect upon the victim, who was also a young solicitor. Only imprisonment would suffice as a proper punishment. A term of 9 months imprisonment was imposed, but the sentence was suspended for a period of 18 months.
4 Disciplinary proceedings were instituted by the applicant before the Legal Practitioners Disciplinary Tribunal. The reference was dated 27 September 2004. It alleged unsatisfactory conduct, relying on the illegal conduct which was the stalking offence. The proceedings were in due course transferred to the State Administrative Tribunal and pursued there. The respondent admitted the allegation, and after a hearing on 22 June 2005, by reasons delivered on 19 August 2005, the Tribunal found that the respondent was guilty of unsatisfactory conduct and made and transmitted to this Court a report constituted by its reasons for decision. The practitioner was suspended from practice. The matter was brought on in this Court by a motion of the applicant seeking to have the respondent struck off the Roll of Practitioners.
(Page 4)
5 The Legal Practice Act 2003 (WA), s 185(1), gives the Tribunal jurisdiction to make a finding that a legal practitioner is guilty of unsatisfactory conduct. Under subs (2)(a), on doing so the Tribunal may make and transmit a report on the finding to the Full Bench of the Supreme Court. By s 194(1) the report is to be taken to be conclusive as to all facts and findings mentioned therein. Under s 194(2), the Full Bench is given the power, upon reading the report and without any further evidence, to fine, suspend from practice or strike off the Roll of Practitioners the practitioner who is the subject of the report.
6 In addition, the Full Bench is given the power to make any order which the State Administrative Tribunal might make under s 185(2)(b). That is the subsection which gives the Tribunal power to deal with the practitioner under s 187. The relevant provision of s 187, for present purposes, is s 187(1), which is in the following terms:
"(1) The State Administrative Tribunal may, under section 185(2)(b), order any one or more of the following -
(a) the suspension of the legal practitioner from practice -
(i) for a period, not exceeding 2 years, specified in the order; or
(ii) until the Board is satisfied that any injury or mental or physical illness, or any problem caused or affected by drugs or alcohol, which the Tribunal has determined to have substantially and adversely affected the professional competence or reliability of the legal practitioner, has been overcome; "
(Page 5)
8 This is a case in which it is useful to remind ourselves of what was said in Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279. That was an appeal to the High Court by a barrister who had been struck off the Roll of Practitioners for unprofessional conduct constituted by his conviction and sentence to imprisonment for a motor vehicle manslaughter. The Court held that where the question of disbarment arises in respect of conduct of a legal practitioner not directly connected with his professional practice, the question remains, not whether further punishment should be inflicted upon the practitioner, but whether the court's protective supervisory jurisdiction must be exercised by striking the practitioner off the Roll, because it is necessary to take that course for the protection of the public and because it has been demonstrated that the practitioner is simply not, at the relevant time, a fit and proper person to remain a legal practitioner. The members of the High Court in Ziems differed in respect of the orders which should be made in that case.
9 It is recognised that not all illegal conduct will require removal from the Roll of Practitioners. Under the Act, conviction of an offence in the circumstances described in s 190(1) will always justify a finding of unsatisfactory conduct, but as to whether the penalty should be striking off the Roll of Practitioners or whether some lesser disposition should be adopted, "the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner's name presently appears"; A Solicitor v Law Society of NSW (2004) 216 CLR 253, 265 [15], citing Ziems at 297 - 298.
10 It will be relevant, not only to consider the nature of the conduct and the extent to which it reflects aspects of the practitioner's character which may demonstrate unfitness to practice, but also of relevance will be the extent to which the practitioner has insight into the significance of his behaviour and the extent to which the practitioner expresses remorse and a determination to amend the demonstrated character defect: S v Legal Practice Board of WA (2004) 29 WAR 173, where, at 188 [64], the Court said of the practitioner's conduct in that case:
"It displayed a lack of understanding of the need to protect the dignity and privacy of another person, where they conflicted with the appellant's own desires, and a disposition to oppress and to harass in the pursuit of his own interests. In the absence of insight into that behaviour and in the absence of remorse, it would be difficult to regard the appellant as a person in whom
(Page 6)
- clients should be encouraged to place complete trust, particularly when it is remembered that legal practitioners are not infrequently consulted by vulnerable persons and are often entrusted with sensitive personal information."
- As will be seen, such observations are apposite in this case.
11 The Tribunal having found the respondent guilty of unsatisfactory conduct by and arising out of his conviction of stalking over the period of nearly four months involved, it is sufficient to summarise what occurred. On 16 January 2004 he damaged or destroyed the victim's clothing, a handbag, shoes and her car. On 17 January he again interfered with her car. On 19 January he poured some sort of liquid over the car, damaging the paintwork. On about 20 January he sent a videotape to his victim at the place where she was employed. It showed her and the respondent engaged in sexual activity. On 25 January the respondent took items of the victim's clothing and damaged her home.
12 On about 3 February he sent the videotape referred to, again to her workplace, this time not to her, but so that it was viewed by her supervisor and other staff members. On 24 February he scratched and damaged the paintwork on her vehicle. On 12 April he damaged the vehicle by spray-painting it. He slashed the soft-top canopy of the vehicle. On 24 April he repeated that activity. On 29 April he again attended at her home. On 7 May he did so again, took various items of her property, and later on that day took one of her dogs. There is, in the circumstances, no reason to dissent from the view of the Tribunal that the respondent's conduct was not only unsatisfactory, but "utterly deplorable".
13 We have mentioned that the respondent was dealt with in the Carnarvon Court of Petty Sessions on 9 July 2004, on which date a clinical psychologist, a Mr Beaton, had provided a report which was presented to the Magistrate. The matter of treatment had apparently not been progressed by the time the matter came first before the Tribunal for hearing on 22 June 2005. The Tribunal then adjourned the hearing to give the respondent the opportunity to obtain evidence from a psychologist bearing upon his conduct, and to consider attending the hearing. He did not do so when the matter came again before the Tribunal on 5 August 2005.
14 On that date, the respondent called a Dr Watts, a clinical and forensic psychologist who had had a consultation with the respondent on 30 July 2005. Dr Watts thought the respondent may have been suffering from post-traumatic stress disorder, the trauma being the break-up of the
(Page 7)
- relationship with the victim of his offending behaviour, and he commented upon the respondent's strong avoidance of the need to deal with his psychological state so far as it had produced his offending behaviour. Dr Watts made the recommendation that the practitioner undertake further personal counselling to deal with the psychological issues.
15 Importantly for present purposes, the Tribunal concluded that the psychological evidence assisted to explain the respondent's behaviour during a time of aroused emotional state following what he considered to be the betrayal by his former girlfriend. The Tribunal noted that his behaviour ceased only when the police intervened following surveillance organised by the victim. The Tribunal commented that Dr Watts had expressed the opinion that the respondent had not recovered from his psychological problems, and that it might be another eighteen months to two years, with the help of therapy, before there was, finally, recovery.
16 In addition, the Tribunal thought that it was not possible, in any relevant sense, to say that the respondent was remorseful for his conduct. It noted Dr Watts' evidence that the respondent still thought that his former partner's conduct was morally wrong and provided some justification for his behaviour. The Tribunal said that there was no indication that the practitioner was interested in obtaining psychological therapy, hence its conclusion that the proper course was to make and transmit the report to this Court.
17 We were, of course, extremely interested to ascertain what, if anything, the respondent had done to obtain treatment for his psychological problems since the Tribunal made its report dated 19 August 2005. It appeared, sadly, that the respondent had taken no effective action in this regard.
18 He put before us an affidavit sworn on 31 August 2006. The affidavit was concerned to describe how he had not renewed his practice certificate on 1 July 2004 or since. He had not been practising. He had been living in the country, employed otherwise than as a lawyer, and he had not attended upon Dr Watts since 30 July 2005, an attendance, it would appear, for the purpose of equipping Dr Watts to give evidence on the resumption of the hearing before the Tribunal.
19 Further, the respondent swears that he has not seen a psychologist, counsellor or general medical practitioner since 30 July 2005 and he is not currently on any medication for depression. He says, "I reside about
(Page 8)
- three hours from Perth, and I have tried to not dwell on the past events and to get on with life."
20 In his affidavit he goes on to say that he has made an appointment with Dr Watts to provide up-to-date evidence to this Court in respect of his psychiatric condition, his ability to practice as a legal practitioner, and any further treatment which he may require. We were told, on 1 September, that he has made an appointment to see Dr Watts on 25 September and that he will consult with a psychiatrist, Professor Burvill, on 24 October 2006.
21 Finally, it may be that the respondent is coming to realise that he may not continue to rely upon the avoidance behaviour described by Dr Watts in his evidence to the Tribunal. All he is doing is burying the psychological problem, and he fails to address its causes and cure.
22 In those circumstances, we have no confidence that the matter can be adequately dealt with by this Court exercising the powers of the Tribunal under either limb of s 187(1) of the Act. It seems to us that the conduct is of the seriousness appropriately described by the Tribunal. It is conduct for which the respondent was not suggested to be otherwise than fully criminally responsible. It is conduct inimical to his capacity to practice as a legal practitioner and there can be no confidence, in the circumstances, that that capacity will be restored.
23 In our opinion, the only reasonable measure which this Court can take for the protection of the public is to strike the respondent off the Roll of Practitioners. That will leave him in the position, under s 34 of the Act, that he may apply to this Court for readmission as a legal practitioner upon being able to satisfy the Legal Practice Board that he is a fit and proper person to be readmitted. The matter is thereby placed squarely in his hands.
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