Prothonotary of the Supreme Court of New South Wales v P

[2003] NSWCA 320

CITATION:	Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320
HEARING DATE(S):	18/09/03
JUDGMENT DATE:	18 September 2003
JUDGMENT OF:	Meagher JA at 1, 35, 37; Young CJ in Eq at 2-34; Tobias JA at 36
DECISION:	Application dismissed with costs.
CATCHWORDS:	A solicitor pleaded guilty to importing a trafficable quantity of cocaine and served a sentence of imprisonment. The Prothonotary of the Supreme Court of NSW applied to have her removed from the Roll of Legal Practitioners on the grounds that her conviction constituted professional misconduct within the meaning of s 127(1)(b) of the Legal Profession Act and that she was not a fit and proper person to remain on the Roll of Legal Practitioners. The Court found that the solicitor had been drug free for almost five years and that the factual matrix of the case was such that the solicitor was not a risk to the public. LEGAL PRACTITIONERS- Legal professional standards- Good fame and character- Professional misconduct- Application to have solicitor struck off the Roll- Criminal offence- Punished for her crime- Was the solicitor a fit and proper person to remain on the roll of Legal Practitioners- Protection of the community and the profession- Rehabilitation from addiciton to illicit drugs- Five years since commission of offence- Period of self-imposed suspension- Substantial character evidence from referees fully aware of the facts of the matter.
LEGISLATION CITED:	Legal Profession Act 1987, ss 32, 33 48K(5)
CASES CITED:	Barristers' Board v Darveniza (2000) 112 A Crim R 438 (QCA) Briginshaw v Briginshaw (1938) 60 CLR 336 Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455 Council of Law Society of NSW v A Solicitor [2002] NSWCA 62 McBride v Walton (NSWCA, 15.7.1994) NSW Bar Association v Cummins (2001) 52 NSWLR 279 NSW Bar Association v Hamman [1999] NSWCA 404 NSW Bar Association v Maddocks (NSWCA, 23.8.1988) NSW Bar Association v Somosi (2001) 48 ATR 562 Prothonotary v Del Castillo [2001] NSWCA 75 Prothonotary v Richard (NSWCA, 31.7.1987) Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236 Re Leardo (1991) 805 P (2d) 948 Re Nadrich (1988) 747 P (2d) 1146 Re Quick (17.3.03) Re Weare [1893] 2 QB 439 Ziems v Prothonotary (1957) 97 CLR 279
PARTIES :	Prothonotary of the Supreme Court of NSW (Claimant) P (Opponent)
FILE NUMBER(S):	CA 41115/02
COUNSEL:	D Dickinson (Claimant) P L G Brereton SC and P E McDonald (Opponent) R J Collins (Solicitor for Law Society of NSW)
SOLICITORS:	Crown Solicitor (Claimant) Greg Walsh & Co (Opponent)

41115/02

MEAGHER JA
TOBIAS JA
YOUNG CJ in EQ

Thursday 18 September 2003

PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v P

Judgment

1 MEAGHER JA: The Court is now in a position to give judgment and I will ask Young CJ in Eq to give the first judgment.

2 YOUNG CJ IN EQ: I think we should entitle this the Prothonotary v P.

3 This is an application by the Prothonotary for an order that the name of the opponent be struck off the Roll of Solicitors. On this application, the Court has been assisted by the submissions of Mr David Dickinson of Counsel for the claimant, Mr PLG Brereton SC and Ms PE McDonald of Counsel for the opponent and by Mr RJ Collins, solicitor, for the Law Society.

4 The opponent, who is now aged forty-two, was admitted as a solicitor of this Court on 3 July 1987. She practised her profession up until 3 February 2000. Mr Dickinson in his submissions acknowledged that the opponent prior to the matter to which I will refer had acquitted herself both competently and honourably in her professional life. Her status until 3 February 2000 was as a senior associate solicitor for a relatively large and reputable law firm. She had been accredited as a specialist in personal injury law at solicitor level.

5 Unbeknown to anyone but her close friends and unbeknown to anyone associated with her legal career, the opponent had been using cocaine from 1994. She first used heroin in 1995 and by September 1996 she realised that she was addicted to heroin. She endeavoured to detoxify from heroin and was put on a methadone program. However, she was unsuccessful in becoming drug free.

6 The opponent had been cohabiting with a person called Wheeler since 1994. In January 2000 she went with Mr Wheeler for a holiday in Argentina and Uruguay. On 26 January 2000 Mr Wheeler obtained some cocaine in Argentina. The opponent knew this and knew that Mr Wheeler intended to bring back about 200 grams of cocaine into Australia.

7 It would seem that the opponent completed her incoming passenger card when she was about one hour out from landing in Sydney. At that stage she personally had no cocaine on her person or in her luggage. However, between then and the time of landing Mr Wheeler persuaded her to carry some of the cocaine as he was having difficulty in carrying all of it. The opponent took what was later described as 52.7 grams of pure cocaine in a bulk of 78.2 grams. She put this in a money belt and secreted it in her underwear. Mr Wheeler retained the balance, described as 86 grams of pure cocaine in a bulk of 130.2 grams.

8 On arrival at Sydney Airport on 29 January 2000, the Customs Department drug detector dogs alerted officials to the probability that the opponent and Mr Wheeler were carrying prohibited drugs. The opponent and Mr Wheeler were questioned. The opponent admitted that she was importing cocaine to Federal Officers. She was then charged under s 233B(1)(b) of the Customs Act 1901 (Comm) with importing in Australia not less than the trafficable quantity of cocaine. The trafficable quantity for cocaine is two grams and the commercial quantity is two kilograms.

9 In December 2000 the opponent pleaded guilty to the charge before the District Court. On 30 March 2001 her sentencing hearing commenced before his Honour Keleman DCJ. On 12 April 2001 his Honour sentenced the opponent to six months imprisonment but he ordered she be released after three months upon entering upon a recognisance to be of good behaviour for three months from the date of her release. The opponent served her time in prison first at Mulawa, where she spent two weeks, and then at the Emu Plains Correctional Centre. She was released on 11 July 2001 and she entered into and complied with her recognisance.

10 She has been working, at least part time, in an accountant’s office after she left her job as a solicitor and before she went to prison and she resumed that employment in August 2001. She has not worked since February 2000 as a solicitor and her practising certificate expired in the year 2000. She has also been involved in working for charities.

11 The opponent informed the Law Society of her guilty plea in March 2001. Keleman DCJ when sentencing the opponent said that he was satisfied that the opponent had shown that the importation was not committed for the purpose of sale or commercial dealing with the cocaine. His Honour remarked that the opponent had not used illicit drugs or alcohol since her admission to the Northside Clinic in February 2000 and that she had shown genuine remorse. However, his Honour also said that it was surprising that the opponent over the years had been able to conduct her practice as a solicitor so well for as long as she did whilst addicted to drugs such as cocaine and heroin and was able to conceal her addiction from those with whom she worked, her friends and her family. His Honour also accepted that the drugs were handed to her only shortly before she reached Sydney but remarked that she was fully aware of what she was doing and was sufficiently calculating to secrete the drugs in her underwear.

12 The opponent has been punished for her crime, the question before this Court is whether she is a fit and proper person to remain on the Roll of Legal Practitioners.

13 By his summons the claimant seeks declarations that the opponent is not a person of good fame and character, a declaration that she is not a fit and proper person to remain on the Roll of Legal Practitioners and an order striking her name off that Roll.

14 The opponent does not dispute the basic facts, however she has produced an impressive amount of character evidence in support of her contention that she is, at least at the present time, a person of good fame and character. These include a reference from a former District Court judge. It was pleasing to see that in contrast with many cases of this type each of the character referees appears to have been made fully aware of all the relevant facts and circumstances of the opponent’s offence. None of the character referees were cross-examined and indeed neither the opponent nor Mr Wheeler were cross-examined before us, though both were here in Court in case that application were made.

15 The principles that we have to apply in this sort of case clearly appear from the authorities, though the application of those principles to the facts of this case are what causes the difficulty. There is no escaping from the general feeling in the community that there is no place in the legal profession for people with a serious criminal record. There is no place in the profession for drug addicts. There is also no doubt that this case represents a singular personal tragedy for the opponent. She might think that one stupid criminal mistake has cost her very dearly. Of course, it should be noted in that connection that she had in fact been involved in criminal conduct for six years before her offence but in order to keep some balance in the equation it must also be said that there may well be many members of the community who would be severely embarrassed if everything they did behind closed doors was laid bare in the public arena.

16 However, the Court does not decide this type of case by some draconian rule of thumb, but looks closely at the facts of each individual case. The decision in this case might be devastating for the opponent; however, whether this be so or not the Court must keep its eye firmly on the basic feature of the case, which is the protection of the community and the profession should this person continue to be on the Roll of Legal Practitioners.

17 A series of propositions as to the law clearly have appeared from the cases and I will briefly summarise them.

(1) The onus is on the claimant to show that the opponent is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236. However Briginshaw v Briginshaw (1938) 60 CLR 336, 362 shows the particular standard that must be applied when working out the civil onus of proof.

(2) An order striking off the Roll should only be made when the probability is that the solicitor is permanently unfit to practice: Prothonotary v Richard (NSWCA 31.7.1987 per McHugh JA) and see NSW Bar Association v Maddocks (NSWCA 23.8.1988).

(3) The fact that the opponent has a conviction for a serious offence is not necessarily sufficient reason for an order striking that person off the Roll; see Ziems v Prothonotary (1957) 97 CLR 279, 283.

(4) The fact of conviction and imprisonment is, however, far from irrelevant and may be regarded as carrying a degree of disgrace itself. See Ziems case at 288.

(5) The Court needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the opponent should not remain a member of an honourable profession: Re Weare [1893] 2 QB 439, 446; Barristers’ Board v Darveniza (2000) 112 A Crim R 438 (QCA).

(6) The fact that the opponent pleaded guilty to the charge will usually be counted in her favour: NSW Bar Association v Maddocks. Though we do not assume that all pleas of guilty necessarily show remorse, it is significant that in the instant case Keleman DCJ said that it did.

(7) Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civic obligations: NSW Bar Association v Cummins (2001) 52 NSWLR 279, 289; NSW Bar Association v Somosi (2001) 48 ATR 562.

(8) The concept of good fame and character has a twofold aspect. Fame refers to a person’s reputation in the relevant community, character refers to the person’s actual nature: McBride v Walton (NSWCA 15.7.1994 per Kirby P); Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455, 459.

(9) The attitude of the professional association is that the application is of considerable significance.

(10) The question is present fitness, not fitness as at the time of the crime: Prothonotary v Del Castillo [2001] NSWCA 75 at para 71.

18 Regrettably, there have been a series of cases in the last fifteen years or so where this Court has had to consider the question as to whether a person’s name should be removed from the Roll of Legal Practitioners. I should briefly examine some of those, but as each case is different, no great assistance is afforded by this examination and the actual result of the present case. It should also be noted that as the standards of the profession and the standards of the community change, what might have been considered disreputable by one generation may be accepted by a subsequent one and vice versa.

19 A good place to commence is Ziems' case. Mr Ziems, then a barrister of many years’ standing and of good reputation, was on circuit in Newcastle. He became involved in an altercation at his hotel at about 10 pm one night and was advised by the police to have his injuries seen to at a hospital. He was affected by liquor. He drove to the hospital on the wrong side of the road and collided with a motor cycle, killing the cyclist. He was convicted of manslaughter and sentenced to two years imprisonment. This Court struck his name off the roll but the High Court reversed the order, in lieu ordering that the barrister be suspended whilst actually in prison. I have already taken from that case some of the key propositions and it should be noted that the decision has been followed on countless occasions ever since.

20 There have recently been a series of cases where a barrister has been disbarred because of income tax offences over a long period of time. Three of such cases which have been mentioned in counsel’s submissions are NSW Bar Association v Hamman [1999] NSWCA 404 and Cummins' case and Somosi’s case, to which I have already referred. These are only relevant to illustrate the seventh point that I made above. In his thorough judgment in Council of Law Society of NSW v A Solicitor [2002] NSWCA 62, Sheller JA gives a comprehensive review of the principles that appear from the cases, although the actual decision in that case is of little guidance in the present one.

21 The only decision of an Australian court concerning drug use that was cited to us was Darveniza. It is no real guide as the Court struck the barrister off, to use the words of Thomas JA at 448, because the evidence showed him to be:

“willing to promote crime, including money laundering, and who was willing to fraternise with a known drug dealer with a view to profit … . It shows a picture ... of an easily familiarity with the drug scene and that of his willingness to make money from it. It shows a person with no respect for the law.”

That is hardly the present case.

22 However, in South Australia the Legal Practitioners Disciplinary Tribunal in Re Quick (17 March 2003) considered a case where a senior practitioner had been involved in the use of drugs over a considerable period. The tribunal noted that at the time when it heard the matter, the practitioner had not used illicit drugs for a year, it did not strike him off the roll but said that the proper order was three months suspension and thereafter to be issued with a practising certificate with specific conditions to be attached to it, to ensure that as much as possible that his drug use would not continue.

23 Mr Brereton cited to us a series of decisions of the courts of the United States. These are of limited value because of the social and cultural differences between the two countries. However, he supplied a digest of these cases which I found of great value. I will not mention all of them. The general rule which was cited in Re Nadrich (1988) 747 P (2d) 1146, 1148 and again in Re Leardo (1991) 805 P (2d) 948, 953-954, both decisions of the Supreme Court of California, is that drug offences (the offences in those cases involved an attorney who had been convicted of possessing controlled substances with intent to distribute) involve moral turpitude and warrant disbarment with the absence of compelling mitigating circumstances. The court did say, however, that there were such circumstances in both those particular cases.

24 Mr Brereton put forward ten propositions which he says one gains from those cases and which are useful to guide this Court and I would not demur from that. The ten points are that there are compelling mitigating circumstances within the meaning of the American authorities if the Court can see that, when considering these ten factors, the solicitor can show that she has fulfilled most of them. The ten points are: (1) absence of prior disciplinary record or criminal record; (2) absence of motive for personal enrichment; (3) honesty and cooperation with the authorities after detection; (4) the offences being unrelated to the practice of the law in that the addiction has not compacted on her professional duties and have not resulted in harm to her clients or other people; (5) the ignominy of having suffered a criminal conviction and the deterrent element; (6) the absence of premeditation with respect to the commission of the crime; (7) evidence of good character; (8) any voluntary self-imposed suspension or court imposed temporary suspension from practice; (9) delay in commencing disciplinary proceedings; and (10) most importantly, clear and convincing evidence of rehabilitation.

25 When one turns to the evidence in the present case, the opponent scores well on those ten points.

26 The Court was concerned that the Law Society had not indicated its view on this application. As a result of contact made by the Registrar with the Law Society, we were told that a meeting of the Professional Conduct Committee of the Law Society was held this morning. At about three-quarters of an hour after this matter commenced Mr R J Collins, solicitor, appeared and presented to us a report of that committee. We were informed that the committee had, with one dissentient, resolved the present case was not one which in the circumstances warranted the removal of the name of the solicitor from the roll.

27 It would seem that there is some protocol between the Law Society and the Prothonotary that the Law Society only becomes involved in these types of case where the solicitor concerned has a current practising certificate and one can understand the reason for that protocol. However, it does mean that in this sort of case in which the Court very much values the views of the opponent’s peers the Court is not favoured with the views of those peers. I would respectfully suggest that the protocol be renegotiated so that in this class of case, where a person shows by her resistance to the Prothonotary’s application that she resists the order and does seek to practise, that the Law Society be notified so that it can present in due course its considered views to this Court.

28 A key issue is to what extent the opponent is currently affected by her previous drug addiction. Unfortunately, the experience of courts is that it is only too easy for people to relapse into drug culture if the pressure of life becomes too great. Accordingly, it is necessary to look very closely into this aspect of the case. The maxim “once an addict, always an addict” is unfortunately true. Once a person has been an addict, the best that could be expected is to look to see a person with the willpower to know when to see the red light, when to seek appropriate professional help in time of great stress and pressure, and to seek that help and abide by the advice that is given.

29 In the instant case, the evidence shows that the opponent has been under quite considerable pressure in recent years, particularly with the traumatic death of her mother, yet despite these pressures she has not used cocaine or heroin for some forty four months. The opponent was consuming drugs for ten years, relatively heavily for six years. She has shown an almost four years drug free lifestyle and that to my mind, especially in view of the pressure she has withstood, shows a sufficient probability that her rehabilitation is likely to be permanent. Although she still has some association with Mr Wheeler, it would appear that he too has undergone a successful drug rehabilitation program and that association with him is not likely to cause her to relapse into the drug habit.

30 At the commencement of the proceedings, the Court asked Mr Dickinson how will the order which the claimant seeks protect the public and from what. Understandably, that question was never answered and I say understandably because it is hard to see, when one reads all the evidence, what good it would cause to remove the opponent’s name from the Roll of Practitioners.

31 I should note there is currently some tension between the provisions dealing with keeping or striking people off the rolls and the issue of practising certificates. There is some overlap. There is no need, however, to enter into the technicalities of that in this particular case. If the opponent wishes to recommence practise of the law, she will have some difficulties. Under s 48K(5) of the Legal Profession Act 1987, if she seeks to work as an “associate” of a barrister or solicitor, she will need to inform each prospective employer of her conviction. If she wishes to practise as a solicitor, she will need to obtain a practising certificate from the Law Society. Mr Brereton has informed us that she is currently completing a Master of Laws at the University, which degree she will not complete until the end of 2004, and she will then probably seek to apply for a practising certificate. That will mean virtually five years since the date of her offence and since she last practised.

32 The Law Society has, under ss 32 and 33 of the Legal Profession Act power to impose conditions on practising certificates. The conditions, however, would not extend to the sort of conditions which the board in South Australia imposed on the senior practitioner to which I have referred. The Court asked Mr Brereton whether any undertaking could be given and without much prompting the following was proffered:

“The Opponent undertakes to the Court that she will agree, pursuant to the Legal Profession Act s 33(1)(d) to the attachment to a practising certificate issued to her of any reasonable condition considered appropriate by the Law Society Council to the effect that she undergo regular urinalysis or other medical examination to ensure she has not taken any illicit drug and that the result of such examination be conveyed to the Society at intervals of three months for a period of two years from the initial issue of a Practising Certificate.”

33 I am glad that that undertaking has been proffered and I am of the view that the Court should accept it and that will ensure that the Law Society, if it considers it appropriate to do so, will be able to monitor the situation as it exists at the time when the opponent requests her practising certificate.

34 Counsel for the Prothonotary did not challenge the opponent’s evidence of rehabilitation and as I said counsel was unable to answer the vital question that was posed to him by the Court. It does not seem to me that there is any worthwhile deterrent element of this case. In my view, there is no need to protect the public or the profession by ordering that the opponent be struck off the Roll. In my view, the Court should accept the proffered undertaking, the summons should be dismissed and, in accordance with precedent, the summons should be dismissed with costs.

35 MEAGHER JA: I quite agree.

36 TOBIAS JA: At the outset of the hearing of this appeal, the presiding judge asked counsel for the claimant what public good would be achieved by a strike-off order and what would such an order achieve in terms of the protection of the public. In other words, what would the public be protected from. Tellingly, no answer to those questions was proffered by counsel for the claimant. That observation is not intended in any way as a criticism of counsel but it does emphasise the fact that no useful, let alone proper, basis exists for this Court acceding to any of the orders sought in the summons. I therefore agree with the orders proposed by Young CJ in Eq for the reasons he has given.

37 MEAGHER JA: The orders of the Court therefore are that on the opponent proffering to the Court the undertaking which was set out by his Honour Young CJ in Eq the summons is dismissed with costs.

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Last Modified: 11/07/2003