Re Application for Admission as a Legal Practitioner - [2004] SASC 426

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
IN THE MATTER OF AN APPLICATION FOR ADMISSION AS A LEGAL PRACTITIONER
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry, The Honourable Justice Debelle and The Honourable Justice White)
17 December 2004
PROFESSIONS AND TRADES - LAWYERS - QUALIFICATIONS AND ADMISSION
Application for admission as a legal practitioner - applicant previously convicted of a number of offences committed as part of a course of dishonest conduct - disclosure of conduct incomplete - whether applicant a fit and proper person and of good character.
Legal Practitioners Act 1981 (SA) s 15(1)(a), referred to.
Re Harrison (1992) 168 LSJS 84, discussed.
Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655; New South Wales Bar Association v Davis (1963) 109 CLR 428; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 270; Ex parte Lenehan (1948) 77 CLR 403; In re Vadasz (1988) 146 LSJS 455, considered.

IN THE MATTER OF AN APPLICATION FOR ADMISSION AS A LEGAL PRACTITIONER
[2004] SASC 426
Full Court: Doyle CJ, Perry, Debelle and White JJ

DOYLE CJ: The Full Court heard submissions, at its instance, on an application by the applicant for admission as a practitioner of this Court. We heard submissions from counsel for the applicant and counsel for the Law Society.
The issue is whether the applicant satisfies the requirement for admission as a practitioner of the Court that he be of good character: see s 15(1)(a) of the Legal Practitioners Act 1981 (SA). He has complied with the other statutory requirements.
The Board of Examiners has reported to the Court that it is satisfied that the applicant is a fit and proper person to be admitted as a practitioner of the Court. The certificate from the Board was accompanied by a Report from the Board relating to the applicant. Matters raised in the Report caused the Court to invite submissions on the application for admission.
The Report by the Board, and material provided by the applicant, discloses that the applicant has been convicted of a number of offences, and that they were committed as part of a course of dishonest conduct. Moreover, the disclosure initially made by the applicant to the Board was incomplete. He disclosed his convictions, but not the course of conduct of which they were part. These are the matters that require consideration.
Facts
The applicant was born in 1975. He began to study law in early 1988. He completed the academic and practical requirements for admission at the end of 2002.
He applied for admission in November 2002. Consideration of the application has been considerably delayed because the applicant has been overseas for much of the time since then.
In his statutory declaration accompanying the application, the applicant stated:
“Apart from expiation offences, I have not been convicted or found guilty by a court of any offences, nor, so far as I am aware, are there any charges or proceedings outstanding against me in relation to any offence or offences alleged to have been committed by me, save and except for those referred to in [a letter annexed to the declaration].”
The annexed letter discloses two matters. First, that in July 1993 he pleaded guilty to a charge of larceny committed in May 1993. No conviction was recorded. The charge related to an item of clothing. The offence is one commonly described as shoplifting.
The applicant attributed the offence to peer pressure and his immaturity. He expressed remorse.
He further disclosed that in November 1997 he pleaded guilty to two counts of larceny, one count of receiving stolen property, and one count of giving a false name and address. These offences were committed in March 1997. He disclosed that he was convicted on each count, was fined and entered into a bond to be of good behaviour for a term of three years. At this time he was 22 years of age. The larceny and receiving offences involved items of clothing, the larceny offences again being shoplifting offences.
In the letter the applicant explained in some detail that at this time he was experiencing some difficulties in his personal and private life. He was anxious to impress a girlfriend and stole an item of clothing intending to give it to her as a gift. The other charge of larceny, he said, related to a pair of jeans, although the facts stated by the applicant suggest an offence of receiving rather than one of larceny. The charge of receiving also related to an item of clothing which the applicant said he had borrowed from a friend, knowing it to have been stolen. The applicant said that when detected in connection with these offences he initially gave a false name and address, but in due course realised that he could not maintain the pretence and so disclosed his true identity.
The applicant expressed remorse and regret over his conduct. He outlined his career since 1988. He had succeeded in his studies, had had employment with a number of employers, and had succeeded at a very high level in his chosen sport. He assured the Board that his conduct was that of an adolescent boy, and that the Board could be confident that he was now a fit and proper person to be admitted.
The Board required the applicant to obtain a copy of the relevant Police Apprehension Report (PAR) and character references. The PAR was provided to the Board in February 2003.
The PAR disclosed that the offence in 1993 involved two items of clothing, and not the item of clothing referred to by the applicant. The PAR disclosed that the applicant had been observed concealing the items of clothing on his person, and had been detected as he left the shop in question.
More significantly, the PAR disclosed that the offences of March 1997 were part of a course of conduct between December 1996 and late March 1997. Over this time the appellant was observed, on a number of occasions, engaging in a course of dishonest conduct. In brief, it involved not just the taking of clothing from shops, the offences charged, but also the exchange of items of clothing that the applicant had worn for new items. The material indicates that this was achieved by deception, by concealing that the items of clothing had been worn by the applicant, and possibly on some occasions by pretending that items of clothing had been bought in a shop when they had not in fact been bought there. As part of this course of conduct the applicant used false identification documents on some occasions. The PAR indicates that the applicant had not been charged in respect of a number of acts of dishonesty in which he engaged, but only with the more obvious offences.
A further police record, made available to this Court, discloses that in November 1997 the applicant actually pleaded guilty to three counts of larceny, one count of unlawful possession and a charge of giving a false name and address. This record also discloses that he was sentenced to two months’ imprisonment, but that that imprisonment was suspended upon him entering into a bond to be of good behaviour for three years.
Thus, the further material discloses a course of dishonest conduct to which the applicant made no reference, an offence that the applicant did not disclose, and also indicates that the Magistrate before whom he came regarded the conduct as sufficiently serious to warrant the imposition of a suspended sentence.
In two letters to the Board, written after the PAR was provided, the applicant referred again to this conduct, expressed regret and remorse and assured the Board that his career and conduct since 1997 demonstrated that he had changed. He asked that the Board defer considering his application until December 2003, when he anticipated returning to Australia.
In December 2003 the Registrar of the Board wrote to the applicant summarising the effect of the PAR and inviting him to comment on the discrepancies between his disclosure and the material in the PAR. He said that the Board had adjourned the application until April 2004, on the understanding that the applicant would then be able to appear before the Board.
The applicant wrote to the Board again. As to the 1993 offence he said that he could not explain the inconsistency as to the item stolen, and that he still believed that the item he had stolen was the item he said he had stolen.
He did not dispute the substance of what was contained in the PAR.
He explained that when he prepared the attachment to his statutory declaration he was relying on memory, because although he had tried to obtain a copy of the PAR from the police, he had been unable to get one. He also explained that he thought that he was required only to disclose offences with which he had been charged, and so was not obliged to disclose the course of conduct referred to by me.
The applicant appeared before the Board in April 2004. He answered a number of questions from the Board. A transcript of that appearance was available to this Court. He admitted the substance of the PAR. Although he said that some details might not be correct, he made no challenge of any significance to the contents of the PAR. As well, he volunteered the fact that he had dealt dishonestly with items of clothing on occasions not recorded in the PAR. He repeated and elaborated on his explanation for his misconduct. This, in brief, was that he was suffering from feelings of inadequacy, and felt the need to impress friends by being well dressed. He also explained some aspects of his personal life that might have caused him to behave in a dishonest fashion.
The Board resolved that it was satisfied that he is a fit and proper person to be admitted. The Chairman of the Board wrote to the applicant explaining the importance of honesty and candour on the part of a legal practitioner.
After the Court indicated that it wished to hear submissions, there was some further delay while the applicant arranged to be represented. The Court heard submissions from counsel for the applicant and counsel for the Law Society. The Court invited the applicant to submit any further material that he wished the Court to consider, including character references.
The applicant subsequently provided a reference from a family friend, the reference indicating that the referee was aware in general terms of the applicant’s misconduct. The reference is a helpful one. He had previously provided to the Board three other references, all of them supportive, but only one of them from a person who was aware of his misconduct.
In a written statement that he provided to the Court, the applicant fully and frankly acknowledged his misconduct, offered explanations along the lines outlined above, and outlined his career since 1998. The applicant is now working in another country in a position akin to that of an in-house solicitor, albeit without formal qualifications. The Court has also been provided with a copy of a reference from his current employer, which confirms the description of his work, and indicates that his employment will continue.
In their helpful submissions counsel for the applicant and for the Law Society put submissions as to the seriousness of the offending conduct, the inadequacy of the initial disclosure, the applicant’s character and conduct since 1997, and the issue of whether he is a fit and proper person to be admitted.
Is the applicant of good character?
It is necessary to consider the conduct in question, the light that it throws on the fitness of the applicant to be admitted as a practitioner, and the impact on public confidence in the legal profession if a person with the applicant’s background is to be admitted.
Each aspect, the character of the applicant and the impact on public confidence of the Court admitting the applicant, are relevant. A practitioner is an officer of the Court. The public would expect, and the public interest requires, that only persons of good character be given that status. By admitting a person as a legal practitioner the court holds that person out to the public as a fit person to be entrusted by the public with their affairs and confidences, and as a person in whose integrity the public can be confident. As well, the role of the legal profession in the administration of justice requires that it be comprised of persons whose conduct would not undermine confidence of the ordinary member of the public in the profession or the administration of justice. There may be circumstances in which the court is satisfied that a person is, in fact, of good character, despite past misconduct. Yet the court might conclude that public confidence in the profession would be shaken if a person with the relevant background were to be admitted as a member of the profession.
I am prepared to put the 1993 incident to one side. It was a single incident, when the applicant was aged only 18 years. The conduct in late 1997 and early 1998 is, however, serious. It continued over several months, and ended only when the applicant was arrested. This conduct did not involve casual or impulsive acts. While his method might not have been particularly sophisticated, nor was it what one might call simple shoplifting. The applicant wrongly used identification documents belonging to a friend, putting his friend at risk. He was 22 years of age at the time.
I have some reservations about the explanation that the applicant offers. He does not claim to have been in difficult financial circumstances. However, having read all of the material that he put before the Board, and the material that he put to this Court, and bearing in mind that the Board had the benefit of seeing him before it, and was satisfied with his explanation, I am satisfied that the applicant’s explanations should be accepted.
I am therefore prepared to treat the offending conduct as the product of immaturity and some difficulties that he was facing in his personal life at the time. The material before the Board and before the Court indicates that since early 1998 there have been no blemishes in the applicant’s record. He has completed the academic and practical requirements for admission, and along the way has had responsible employment in which he appears to have given his employers every satisfaction. He appears to be well regarded by those who know him. In the light of all that I find that the offending conduct is not, of itself, an obstacle to a conclusion that the applicant is of good character and so is a fit person to be admitted.
The lack of complete disclosure is troubling. I accept that the applicant did not have the PAR to assist him, and that his memory of the events was not complete. When he made his first disclosure it was getting on for five years since he had appeared in court, and it was longer than that since the relevant misconduct had occurred. I also accept that the applicant thought that the convictions were the main issue. The standard form of the affidavit or statutory declaration suggests that. However, I do not accept that the applicant did not realise that he should have disclosed, at least, that the offences of 1997 were part of a course of conduct. The applicant was not completely candid in his initial disclosure. I am satisfied that he knew that he should have been more forthcoming. However, I accept his claim that he tried to obtain a copy of the PAR before completing a statutory declaration, and had been unable to. I am prepared to proceed on the basis that he thought the convictions were the most significant matter, and that it is a case of failure to consider with sufficient care what he should do, rather than a deliberate attempt to conceal material from the Board. His own letters are consistent with the view that even after the PAR had been disclosed, he did not at first appreciate that the additional material should have been disclosed, or that the failure to disclose it was significant. I consider that he should also have informed the Board that a suspended sentence of imprisonment was imposed. He could not have been unaware of this, having regard to the significance of something like that for a person in his position.
I am troubled not just by the failure to think more carefully about what should have been disclosed. I am troubled by the fact that this occurred in November 2002, at which stage he had been working for some time, and should have had a better understanding of what would be required of an applicant for admission in these circumstances.
However, in the end I am again prepared to conclude that this matter does not prevent me finding that the applicant is a fit person to be admitted. I do so on the basis that the non-disclosure is attributable to an error of judgment, and to some extent to immaturity, and not to a deliberate attempt to mislead the Board.
I turn now to the question of public confidence in the administration of justice and in the legal profession. As I said earlier, it is conceivable that the court might be satisfied that an applicant for admission has changed his or her ways, but might at the same time take the view that earlier misconduct was so serious that public confidence in the administration of justice and in the profession would be shaken were the public to learn that a person with the applicant’s record had been admitted as a practitioner.
I have considered this aspect of the matter carefully. In the end I consider that the ordinary member of the public would also accept, as I have, that the deficiencies in the applicant’s conduct are due to immaturity and misjudgment, and do not point to the conclusion that the applicant is not a fit and proper person to be admitted. Likewise, I am satisfied that the ordinary member of the public would appreciate the role of youth and immaturity in the applicant’s conduct, and would accept that this can now be put behind him, and that the applicant can be trusted to adhere to the standards required of a legal practitioner. I do not regard the applicant’s misconduct as so serious that, however much he has changed, he should not be permitted to be a member of the legal profession, and I do not consider that the ordinary member of the public would take that view.
Conclusion
For all those reasons I am satisfied that the applicant is a fit and proper person to be admitted, and should be admitted as a practitioner of this Court.
PERRY J: I agree with the order proposed by the Chief Justice and with his reasons.
DEBELLE J: The facts are recited in the reasons of Doyle CJ, which I have had the advantage of reading.
When an applicant for admission or re-admission has been found guilty of a criminal offence, the question for consideration is whether the applicant has proved that, notwithstanding the earlier criminal conduct, at the time of his application he is a fit and proper person to be admitted: Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 per Higgins J at 692. The question for the Court is whether the applicant has proved that he is a fit and proper person to be a legal practitioner, notwithstanding his past misconduct: New South Wales Bar Association v Davis (1963) 109 CLR 428 at 432. These standards are not imposed for any reason other than in an attempt to protect the public interest.
For these reasons, a Court must exercise the greatest caution before holding out to the public as fit to be a legal practitioner, one whose character has borne the stain of serious misconduct. The issue is whether the applicant is fit to practice. The decision for the Court has nothing to do with punishment: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 270 at 286.

An applicant’s past misconduct is not a bar to admission or re-admission. The question for the Court to consider is whether the applicant has demonstrated that he has renounced his past criminal behaviour and has since led a blameless life. I adopt with respect the remarks of Latham CJ and Dixon and Williams JJ in: ex parte Lenehan (1948) 77 CLR 403 at 424:
“There must be a strong disinclination to admit to the profession of a solicitor any person who has been shown ever to have been guilty of improper conduct. It is a disinclination founded upon the unsafety of such a course and the need of strictness in maintaining the standards of the profession. But the false steps of youth and early manhood are not always final proof of defective character and unfitness. The presumption which, according to circumstances, they may appear to raise may surely be overcome by a subsequent blameless career.”
The applicant bears the onus of establishing that he is no longer likely to err.
It appears that, since his offending in 1997, the applicant has led a blameless life. In some respects he has demonstrated fitness to be admitted as a practitioner. However, in my view, the applicant has failed in one important respect to demonstrate that he is fit to be admitted in that although he disclosed that he had convictions for dishonesty, he did not make full disclosure of all his dishonest conduct and, in particular, failed to disclose a suspended period of imprisonment.
A legal practitioner must at all times act with complete integrity. Financial integrity has been described as a matter of “great importance”: ex parte Lenehan at 422. Members of the public repose great trust in legal practitioners. They entrust them with their money and their personal confidences. The Courts and the members of the legal profession expect to be able to rely on the integrity of a legal practitioner. Legal practitioners are officers of the Court. The Court, other legal practitioners and the public are entitled to expect upright and honourable conduct on the part of officers of the Court: ex parte Lenehan per Rich J at 426. The fact that a person is a solicitor gives him the stamp of trustworthiness and marks him as a person in whom confidence may be reposed: ibid. Thus, the integrity must exist in both financial as well as in personal dealings.
These issues were canvassed in re Harrison (1992) 168 LSJS 84 at 90, where the Full Court said:
“These standards are not imposed for any reason other than in an attempt to protect the public interest. As the Chief Justice of this Court has explained in In re Vadasz (1988) 146 LSJS 455 at 457, there are two reasons for that concern to protect the public interest. Both are related to the Court’s responsibility in holding persons out as fit to be legal practitioners. First, a legal practitioner enjoys a privileged position in relation to legal business and in matters affecting the administration of justice. The public, necessarily for the most part ignorant of these matters, must rely completely upon their lawyers. The Court has a great responsibility to ensure that those whom it holds out as legal practitioners are fit to have such reliance placed upon them. The second reason relates to the dependence of the courts upon the integrity of the legal profession in the administration of justice. To the extent that members of the legal profession fail the trust which is placed in them, the risk of error and injustice increases. For these reasons, a court must exercise the greatest caution before holding out to the public as fit to be a legal practitioner, one whose character has borne the stain of serious misconduct.”
Although these observations were made in respect of a person seeking re‑admission, they apply equally to a person who has offended and who is applying for admission. See also In re Vadasz (1988) 146 LSJS 455 per Jacobs J at 458.
The applicant’s failure to be frank and forthcoming in disclosing the extent of his past criminal conduct betrays a lack of the degree of candour required of a legal practitioner. Candour is one aspect of integrity. In this case, the full picture emerged only after further questioning by the Board and later by the Court. The applicant’s lack of frankness might be explained by his desire to rid his memory of matters of which he is ashamed. It might be explained by a genuine loss of memory as to details of events which occurred some years ago. There might be other explanations. However, no satisfactory explanation was forthcoming. In my view, this lack of candour indicates that the applicant is not yet a fit and proper person to be admitted. In my view, it is not his past criminal conducts which bars his present fitness for admission but the lack of candour in making a full and complete disclosure of that conduct. For these reasons I do not think that, at this stage, the applicant is a fit and proper person to be admitted as a legal practitioner.
I would dismiss the application.
WHITE J: I agree with the order proposed by the Chief Justice and with his reasons.