Legal Profession Board of Tasmania v Hall - [2015] TASSC 63

[2015] TASSC 63

COURT: SUPREME COURT OF TASMANIA

CITATION: Legal Profession Board of Tasmania v Hall [2015] TASSC 63

PARTIES:  LEGAL PROFESSION BOARD OF TASMANIA
  v
  HALL, Adrian John

FILE NO:  894/2015
DELIVERED ON:  11 December 2015
DELIVERED AT:  Hobart
HEARING DATE:  10 December 2015
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Professions and Trades – Lawyers – Complaints and discipline – Disciplinary proceedings – Tasmania – Professional misconduct – What constitutes – Convictions for stealing – Good character – Whether presently permanently unfit to practise – Suspension – Removal of name from Roll - What order appropriate.

Legal Profession Act 2007 (Tas), s 35.

The Council of the Law Society of NSW v Doherty [2010] NSWCA 177; Stanoevski v The Council of the Law Society of NSW [2008] NSWCA 177; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320; A Solicitor v Council of the Law Society of New South Wales (2004) 2016 CLR 253; Johns v Law Society of NSW [1982] 2 NSWLR 1; Director of Public Prosecutions v Avery [2009] TASSC 27; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; Law Society of Tasmania v Turner (2001) 11 Tas R 1; An Application by the Law Society of Tasmania Concerning a Legal Practitioner (G G Haros) B 14 of 1984, referred to.

Aust Dig Professions and Trades [1274]

REPRESENTATION:

Counsel:
             Applicant:  C Gunson
             Respondent:  W Griffiths
Solicitors:
             Applicant:  Tremayne Fay and Rheinberger
             Respondent:  G A Richardson

Judgment Number: [2015] TASSC 63
Number of paragraphs: 24

Serial No 63/2015
File No 894/2015

LEGAL PROFESSION BOARD OF TASMANIA v ADRIAN JOHN HALL

REASONS FOR JUDGMENT ESTCOURT J

11 December 2015

The applicant, the Legal Profession Board of Tasmania, has applied for a declaration that the respondent, Adrian John Hall, is guilty of professional misconduct by committing a number of crimes of stealing from Grant Tucker, Barrister & Solicitor of Launceston in Tasmania, contrary to s 234 of the Criminal Code, and by failing to disclose to this Court upon his application for admission as a legal practitioner, that he had been found guilty of an earlier crime of stealing by a Court of Petty Sessions sitting at Launceston on 25 July 1988.
The applicant seeks a further declaration that the respondent is not a fit and proper person to remain on the Roll of Practitioners maintained by this Court, and seeks an order that the respondent's name be removed from the Roll of Practitioners.
It is not necessary for the purposes of this application for me to consider any crime other than those for which I convicted the respondent on 17 December 2014 following a trial at which he was found guilty of those crimes.
It is not necessary because I have reluctantly reached the view that, on the basis of the commission of those crimes, the respondent must be found guilty of professional misconduct and must be found to be presently, permanently unfit to practise, or as it has been alternatively expressed, "likely to be unfit to practice [sic] for the indefinite future": The Council of the Law Society of NSW v Doherty [2010] NSWCA 177 at [60] citing Stanoevski v The Council of the Law Society of NSW [2008] NSWCA 93 at [54].
For the reasons that follow I am satisfied to the requisite standard (the civil standard informed by Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 – see Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17]) that the applicant has established the negative proposition that the respondent is not a fit and proper person to be a legal practitioner of this Court: Stanoevski at [57]-[58] citing A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 at [15] and Ex parte Brounsall [1778] EngR 95; (1778) 2 Cowp 829 at 830; [1778] EngR 95; 98 All ER 1385 at 1385 and Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441-442.
I commence by setting out the comments I made on passing sentence on the respondent on 17 December 2014. I set out those comments in full because I wish to make it clear that I have not lost sight of the psychological and emotional issues that played a part in the respondent's offending, nor of the respondent's many fine qualities and, in respects other than honesty, the exemplary features of his character. Further, it is well established that it is necessary to examine the facts of cases such as this in meticulous detail.
I remain aware however that whenever it is suggested that there is material before a court to lead it to conclude that past proved unfitness has been changed to fitness, that is to say, where there is admitted or proven professional misconduct and a claim of rehabilitation or of fitness replacing unfitness, while the ultimate onus remains on the Legal Profession Board, the Court will look to what evidence there is to establish the asserted change, and will expect the lawyer who claims there is such a change to point to such evidence as there is: Johns v Law Society of NSW (1982) 2 NSWLR 1 at 9-10.
On passing sentence I said:
"The defendant has been found guilty by a jury of four counts of stealing. On four other counts he was found not guilty, one of those verdicts was a directed verdict of not guilty.
The defendant was a barrister and solicitor in the employment of the Launceston legal firm of Grant Tucker Barrister and Solicitor at the time each offence was committed. The stealing comprised taking cash payments on account of legal costs and fees from clients charged with criminal offences and not paying those monies into the firm's trust account.
The thefts were committed on 6 August 2010, 18 April 2012, and 15 and 13 July 2012. The amounts particularised in the indictment on the counts on which the defendant was found guilty were, respectively, $9,000, approximately $300, approximately $600 and $800. That is a total of $10,700.
However, for the reasons that will follow I am satisfied beyond any doubt that, consistent with the jury's verdict, the defendant stole only $900 of the alleged amount of $9,000 particularised in count 1, leaving a total stolen of only $2,600 over a period of approximately two years. The four thefts over two years being in amounts of $900, $300, $600 and $800.
Count 1 involved an alleged stealing from the firm by the defendant accepting a cash payment of $9,000 on 6 August 2010 from a Mrs Fulton, the wife of a client of the firm who had been sentenced to a term of imprisonment the previous day. Only $8,100 was ultimately paid in to the firm's trust account by the defendant.
On 6 August 2010, the defendant wrote an informal receipt for the $9,000 on a firm With Compliments slip and signed it and handed it to Mrs Fulton. This was done in the presence of a friend of Mrs Fulton.
The money was in an envelope and the envelope was left either on the defendant's desk or in a desk drawer as the defendant hurried out to meet his girlfriend to buy a $500 television stand.
The money was later seen in the defendant's desk drawer by his personal assistant, and when she asked about it he told her that it was money from the sale of his motor vehicle. That was a lie, but I am not satisfied that it was one told out of a consciousness of guilt of the conversion of the whole $9,000.
The defendant also stated to Mr Tucker after the matter came to light, that the reason he issued an unofficial receipt was that the payment was made out of normal office hours and no staff member was present. I am not satisfied that that was a deliberate lie as the previous afternoon after office hours Mrs Fulton had in fact been in the defendant's office talking about the amount of the bill, how much it would be for cash, and the sum of $9,000 was agreed upon, but it was too late at that stage for Mrs Fulton to go to the bank. It would seem that on that day the defendant gave Mrs Fulton a business card with the figure $9k on it and his mobile telephone number.
The defendant also staged for his personal assistant a pretence namely, that Mrs Fulton had been in the office during her lunch hour one day and paid $8,100 in cash and wanted a receipt and some $54 change. Now that lie could have been told out of a consciousness of guilt but again, not necessarily of the whole $9,000, or it could, equally, have been told to maintain consistency with the lie that the money his personal assistant had seen in his desk drawer was money from the sale of his car. In a similar vein I see the lie told by the defendant to his personal assistant after Mrs Fulton rang her to complain that she had been sent an overdue account notice when she had paid the defendant in cash, the lie, namely that Mrs Fulton was lying when she said she had paid him cash.
Also of significance was the evidence of Mrs Fulton that when defendant rang her to tell her things would be sorted out, he said that he could get into trouble in a similar vein to her husband. Her husband had been convicted of fraud. Mrs Fulton was so vague about the details of that conversation, notwithstanding she claimed to have relived it many times, that I could not be sure that Mr Hall said what she said he said at all, or that if he did that he was making an admission as opposed to commenting on the appearance of the situation he was in.
In all of the circumstances, particularly the issue of the unofficial but signed receipt on firm stationery and the presence of the open envelope in the drawer when the defendant's personal assistant first saw it, I could not be satisfied beyond reasonable doubt that the defendant dishonestly converted the whole $9,000. Conversely, I am satisfied, on the balance of probabilities, that some time after the cash was left on his desk the defendant appropriated the $900 that was never seen again or satisfactorily explained on the evidence. He could only have done that dishonestly.
This route to a verdict of guilty was clearly explained to the jury and, in my view that was the basis upon which the jury arrived at its verdict on that count.
The Crown's primary position is, and was before the jury, that the dishonest intent arose at a very early stage and that it related to the whole $9,000, even if the intent did not arise at the time of receiving the payment, and that the conversion was of the whole $9,000. The possibility that the dishonest conversion was only of $900 was nonetheless left very clearly open to the jury.
Counsel for the State addressed me on the law relating to the sentencing of solicitors who steal from their clients. I do note however, that to the extent it makes some difference when one is concerned with general deterrence and protection of the reputation and standards of the legal profession, the defendant here stole from his employer after being lawfully entrusted with monies from his clients. The breach of trust involved was vis a vis his employer. The client suffered no loss.
In Director of Public Prosecutions v Avery [2009] TASSC 27, Slicer J said at [12]:
'12 The question of punishment of legal practitioners might also involve public perception. It expects those within our discipline to act with integrity. We occupy a privileged and exclusive position, trusted with confidences and finances alike (Scott [1986] TASSC 81). Privilege is accompanied by responsibility. Loss of the right to practice, correctly a factor in sentencing, should not be unnecessarily elevated over other occupations or, at least, offset by the betrayal of a deeper trust. Here, comparison is of little use except in consideration of the issue stated in Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 of whether the sentence itself manifests error.'
In the same case Blow J, as he then was, said at [78]-[79]:
'Stealing by legal practitioners
78 In R v Cole, unreported, 10 May 1974, the New South Wales Court of Criminal Appeal (McClemens CJ at CL, Begg and Lee JJ) said, at 2:
"Defalcations by persons in a position of trust have to be regarded by the courts as much more serious than other types of defalcations. In this regard the solicitor stands in a particular position. He is an officer of this court, he is held out by it as a fit and proper person to practise his profession, to receive his clients' money and to be the recipient of their justified financial trust and confidence. It is not possible for the courts to regard lightly the defaulting solicitor whose actions tend to undermine the security of ordinary people and the fabric of a profession on which and on whose integrity the public are to such an extent dependent. This is particularly the type of case in which the court is entitled to express itself on behalf of the community, its disapproval of a particular type of breach of trust involved."
79 That passage was cited with approval by Flatman J in R v House [2002] VSC 197 at par35, by Osborn J in R v Just [2003] VSC 274 at par40, and by Habersberger J in R v Grant [2006] VSC 235 at par26.
80 Because of the factors referred to in Cole, I think that the stealing by a solicitor must ordinarily involve a worse breach of trust than stealing by, say, a clerk, the treasurer of a sporting club, or a financial adviser entrusted with money for investment in shares.'
In the matter of O'Rourke, Pearce J, identified in his comments on passing sentence that it was an aggravating factor that each theft by the defendant constituted a breach of trust that his client had placed in him, and that as a solicitor the defendant was an officer of the court and was in a special and privileged position which carried with it responsibility. Justice Pearce said:
'The community expects legal practitioners to conduct themselves with the utmost integrity. He was held out by the court as a fit and proper person to conduct legal practice, to receive client's money and to be the recipient of their trust and confidence. Dishonesty by persons in a position of trust are already more serious than other types of dishonesty. Defalcations by solicitors are particularly serious. General deterrence plays a significant role in sentencing to ensure that the high standards of the profession are maintained.'
The question in imposing sentence in this case is what is an appropriate and just penalty in the circumstances of the theft of sums of $900, $300, $600 and $800 on four separate occasions over two years by a solicitor from his employer? I instruct myself, generally and relevantly in accordance with the observations in the cases and comments on passing sentence to which I was referred by Crown counsel.
The defendant is 39 years old. He has been in a relationship for some six months and the couple are expecting the defendant's first child and intend to marry. The defendant and his partner accommodate and care for her two children from another relationship.
The defendant's only prior convictions are traffic violations, although they are numerous. He is a person of previous good character. Indeed, unlike his present predicament, his past, traffic violations aside, has been exemplary.
He was born in Launceston, the eldest of 10 children and was educated at Ravenswood High School where he was head prefect and head of the Student Representative Council. He did his HSC at Alanvale College where he was dux of the College. He left home at 16 as a result of family problems and he worked to put himself through a law degree. After qualifying in 1998 he worked as a barrister and solicitor in Devonport and later Launceston.
The defendant was Lions Youth of the Year in 1991, and he has invested his old school with a bursary. He was the Chair of the NTFA Football Tribunal for 10 years, and he is the chair of the Statewide Football Tribunal. He has been the chair of the Time Out House which assists with the prevention of youth suicide, and he is a Lifeline trained suicide counsellor. He was asked to stand for the Liberal Party in the last State election but declined because of the charges he was facing.
The defendant was a member of the Council of the Law Society of Tasmania for two years and sat on the Society's Criminal Law Committee. He has been a very active criminal barrister having appeared in over 100 jury trials, including the most serious. He has a pro bono ethic and has appeared without a fee in two murder cases, including a two-week murder trial earlier this year.
He is apparently much loved and liked by many. I was handed a number of references. One from a Federal Circuit Court Judge, who has been a friend and a former colleague for 12 years, and who attests that the defendant is genuine in his remorse. The reference also states that the defendant has always been prepared to fight for the underdog, is passionate about the rights of others, and is a highly respected member of the legal protection held in high regard and in much demand for his expertise as a criminal lawyer. The reference states, 'That he has been respected for his personal and professional integrity makes these convictions and his actions all the more incongruent'.
One reference from a senior professional colleague in Victoria describes the defendant as a hard working and dedicated practitioner and a respected advocate who gives his all for his clients.
Another from a very senior criminal lawyer in Tasmania attests that over the period he has known the defendant since 1998/1999 he has 'watched him develop into an extremely talented criminal lawyer and one that I admire and respect'.
References from the defendant's partner and his sister speak of the defendant as passionate, loving, reliable, compassionate, loyal and respectful, as well as committed to his family.
He was asked by a football club recently to assist a talented young player who had nowhere to live and he took the young man in to his own home where the young man has had secure living conditions for the last eight months.
I was provided with a report from the defendant's treating psychologist who first saw the defendant on 18 April 2013. The report asserts in the author's opinion that the defendant's difficulties – and, in the context of the report, those difficulties were unrelated to the charges against him - were the result of personality characteristics consistent with Narcissistic Personality Disorder (DSM-V; American Psychiatric Association, 2013) and that the essential feature of the psychiatric disorder is a pervasive pattern of grandiosity, sense of entitlement and need for admiration.
There is no doubt in the defendant's case that he felt a sense of entitlement to take the sums he did on the basis of seeing himself more as a partner of Mr Tucker's able to help himself to cash sums from time to time, rather than as a mere employee with an obligation to account faithfully to his employer.
In R v Verdins; R v Buckley; R v Vo [2007] VSCA 102, Maxwell P and Buchannan and Vincent JJA said in reviewing the case of R v Tsiaris [1996] 1 VR 398 at [5] and following:
'5 The sentencing considerations identified in R v Tsiaras are not – and were not intended to be – applicable only to cases of 'serious psychiatric illness'. One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.
6 The Court in R v Tsiaras referred to R v Anderson, where Young CJ and Jenkinson J adopted the following statement of Young CJ in R v Mooney:
'In sentencing generally it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight. ... General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.'
The Court then proceeded to restate the Tsiaris principles at [32] as follows:
'32 Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:
1 The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2 The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3 Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4 Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5 The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6 Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.'
Whilst the defendant bears the onus on this issue in this case, and the psychologist's report is rather scant, I am nonetheless satisfied on balance from the defendant's relevant statements to police in his video record of interview that he felt a sense of self-entitlement to take cash sums and not pay them into the firm's account, in what was a 'what's good for the goose is good for the gander' approach to his employment. As a mere employee he had no entitlement to take cash sums, as his employer did on occasions, and on no rational basis could the defendant have considered that he did. The defendant saw himself with the same level of entitlement as the principal of the firm, who is, of course, the owner of the business.
The revelation of the defendant's diagnosis of a DSM-V Personality Disorder, which psychiatric illness exhibits a pervasive pattern of self-entitlement, is sufficient to satisfy me on the evidence that the defendant's disorder reduces, to an extent, the moral culpability of his offending conduct, as distinct from his legal responsibility, and that denunciation is less likely to be a relevant sentencing objective, and that the need for general deterrence is moderated. In so saying I do not elevate this consideration above the competing factors to which I was referred by Crown counsel.
Other factors I take into account in sentencing are the defendant's seemingly pathetic emotional state around the time of the offending, particularly the latter part of the period which appears to have been caused by his break-up with his then fiancée; and also the fact that whilst the defendant did not plead guilty, he offered to do so prior to trial on all of the counts on which he was found guilty, including $900 of the $9,000 alleged in count 1. He is entitled to some credit for that.
In all of the circumstances, I do not consider that an actual custodial sentence is demanded or warranted. I convict the defendant on four counts of stealing. I sentence the defendant to four months' imprisonment which sentence I wholly suspend on condition that the defendant commit no offence punishable by imprisonment for a period of two years, and I order that he undertake 210 hours of community service.
I make a compensation order in favour of Grant Tucker Barrister and Solicitor ABN 56 968 620 093 in the sum of $1,700.
I make the usual victim of crimes levy order."

There next arises for consideration the capacity in which the respondent was acting when his criminal conduct occurred, that is, was he acting in a personal capacity or in a professional capacity?
In Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, Kitto J explained at 298:
"It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task."
In A Solicitor v Council of the Law Society of New South Wales (above) Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ said at [20]:
"The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct. Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise."
In my view, the respondent's criminal conduct could scarcely be more intimately connected with his professional practice. It is certainly sufficiently connected to such practice as to amount to professional misconduct.
In Law Society of Tasmania v Turner (2001) 11 Tas R 1, Crawford J (as he then was) considered the statutory definition of "professional misconduct" in the former Legal Profession Act 1993, and said the following at [45]:
"Apart from the statute's inclusionary meanings, professional misconduct consists in behaviour on the part of a legal practitioner which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency. In re a Solicitor [1912] 1 KB 302 at 311, 312; Grahame v Attorney-General of Fiji [1936] 2 All ER 992 at 1002; Myers v Elman [1940] AC 282 at 288, 289; Re Thom; ex parte the Prothonotary (1962) 80 WN (NSW) 968 at 969; Re Veron; ex parte Law Society of New South Wales (1966) 84 WN (Pt1) (NSW) 136 at 143; In re Three Solicitors [1949] VLR 72 at 73; Re a Solicitor [1960] VR 617 at 620. That definition or test has been accepted in unreported decisions of this Court which concerned complaints made under the Legal Practitioners Act 1959. See, for example, In re a Legal Practitioner Serial No 105/1982 at 9; Law Society of Tasmania v Walker Serial No 56/1988, per Cox J at 22. It is derived from a case which concerned a member of the medical profession. Allinson v General Medical Council [1894] 1 QB 750. It is not an exhaustive definition. See Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 207. Counsel for the Society accepted that to be so, adding that it is his essential submission that professional misconduct is, simply speaking, grave conduct which in the Court's judgment would warrant reprobation and condemnation from reasonable legal practitioners of good repute and competency. I think there is some danger involved in searching for words to further define the term and I will not do so."
As explained in Ziems (above) convictions for some kinds of offences are an instant demonstration of unfitness to practise. In my view, the respondent's convictions for four counts of stealing moneys entrusted to him by clients for deposit in his employer's trust account are of such a kind. The conclusion that I have reached is that the respondent's conduct shows "a defect of character incompatible with membership of a self-respecting profession". He is guilty of professional misconduct and he is not a fit and proper person to remain on the roll of practitioners maintained by this Court. Nettlefold J reached the same conclusion in the not dissimilar circumstances of the case in An Application by the Law Society of Tasmania Concerning a Legal Practitioner (G G Haros) B14/1984.
The ameliorating features I referred to in my comments on passing sentence on 17 December 2014 which have by and large been put in evidence in the present proceedings, are not sufficient to prevent the conclusion I have reached.
Nor does the fact that there is no suggestion that the respondent has committed any act of dishonesty since 13 July 2012 dissuade me in any way from my conclusion. That is admittedly a period of over three years, during 28 months of which period the respondent continued to practise, albeit as a barrister on his own account without the need to account to anyone but himself for his fees. However, one must balance against that the fact that the crimes of stealing for which he was convicted were committed intermittently over a period of two years, and some 20 months separated the first and second of those crimes.
In Stanoevski (above) at [64]-[65], Campbell JA, with whom Hodgson and Handley JJA agreed, said:
"64 Those remarks [of Hunt J in Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 at 565] are in my view directly applicable in the present case, where the Law Society had the onus of proving a negative proposition, namely that the Appellant was not a fit person to remain on the roll. The evidence it adduced of the various acts of professional misconduct in the period 1991 to 1993 were enough to establish that the Appellant was then unfit. A presumption of continuity would then arise, such that a court or tribunal would be justified in concluding that the Appellant was still unfit, unless the Appellant could produce evidence that gave reason for believing that the situation had changed. That is a totally conventional application of a shifting evidential onus. It involved no error of law by the Appeal Panel.
65 There may be some subject matters concerning which the strength of an inference arising from a presumption of continuity attenuated with time until it totally disappeared. However, the subject matter to which the presumption of continuity is applied in the present case is the character of a person. It is not at all uncommon for aspects of the character of a person to persist over decades, frequently for someone's entire life. In my view, a tribunal of fact would be justified in using the extremely serious acts of professional misconduct in which the Appellant engaged in the period 1991 to 1993 as a basis for inferring that she was then unfit to practise, and that it was likely, notwithstanding that 15 years had passed, that she was still unfit to practise, unless the Appellant could produce evidence that gave reason for believing the situation had changed."
There is nothing in the affidavit material filed by and on behalf of the respondent upon which I could conclude that the respondent's character has changed so as to allow me to say that either he is now, or after a particular period of time will be once again, fit to practise. In such circumstances suspension for a period of time is not an appropriate order.
I accept that the respondent has continued to see a psychologist, Dr Doudle, and that Dr Doudle has continued to assist the respondent in understanding issues regarding his personality. I also accept, as the respondent has attested, that his grief and remorse for his "callow and improper behaviour" will remain with him as a reminder of what is required of him as a legal practitioner for the rest of his life. Such self-assessment falls well short however of establishing that the respondent's character, evidenced by his criminal conduct between 2010 and 2012, has changed or has been displaced so as to allow this Court to now hold him out as a fit and proper person to practise.
Nor do assertions on behalf of the respondent by character witness Mr Malcolm Upston that the respondent's criminal conduct was an aberration and that that the respondent would never repeat an act of dishonesty should he be given the chance to return to practise, establish rehabilitation or demonstrate that unfitness has been replaced with fitness. The same may be said for the assertions of the respondent's honesty and the belief that the respondent would never offend again made by character witness Mr Peter Bignold, and the expressions of admiration and respect for, and trust in, the respondent expressed by character witness Mr Greg Richardson. I do not overlook the evidence of Mr Corey Martin that the respondent's character "remains intact and unchanged" since he was found guilty of stealing in November 2014.
All of these doubtless genuine assertions, and those made in this vein by the respondent on his own behalf, amount in reality to no more than a lament. They do not amount to proof that, notwithstanding the respondent's criminal conduct, he is nonetheless now a fit and proper person to practise. And they do not amount to proof that the referent aspect of the respondent's character, namely his honesty, is materially different to that which it was between 2010 and 2012. In these circumstances it is unnecessary for me to make findings in relation to allegations put to the respondent in cross-examination on the hearing of this application that he had acted dishonestly, as recently as February 2015, in connection with an application made by him for a commercial loan.
Ultimately, the rationale for striking a practitioner from the roll is not the punishment of the individual, but the protection of the public and the need to uphold the standards of the legal profession.
In this case, regrettably because the respondent has been a highly competent and a hitherto respected criminal counsel, the protection of the public and the upholding of the standards of the legal profession nonetheless require that the respondent's name be removed from the roll.
The order of the Court is that the name of Adrian John Hall be removed from the roll of persons admitted to the legal profession maintained by this Court under s 35 of the Legal Profession Act 2007. There is no necessity for the declaratory orders sought by the applicant. I have made all of the required findings.