Re: King

[2017] QSC 15

SUPREME COURT OF QUEENSLAND

CITATION:

Re: King [2017] QSC 15

PARTIES:

IN THE MATTER of the Legal Profession Act 2007 and the Supreme Court (Admission) Rules 2004
and
IN THE MATTER of an Application by JASON WILLIAM KING for admission as a Legal Practitioner

FILE NO/S:

SC No 6148 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Court of Appeal

DELIVERED ON:

28 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2016

JUDGE:

Holmes CJ

FINDING:

The applicant has failed to meet his duty of candour to the Court.

ORDER:

Application for admission adjourned for further hearing by the Court of Appeal on 2 May 2017.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS – where the applicant applies for admission as a legal practitioner – where the applicant has met the academic and practical training requirements for admission – where the applicant applied for admission in Queensland when an application for admission in the Australian Capital Territory was still pending – where the applicant pleaded guilty to a charge of aggravated stalking with intent to intimidate under s 338E(1) of the Criminal Code 1913 (WA) – where the applicant in his affidavits supporting his application challenged the version of facts on which he was sentenced – whether the applicant in his affidavits and evidence met his duty of candour to the court

COUNSEL:

D Kake (sol) for the applicant

K N Wilson QC for the respondent

SOLICITORS:

1Legal for the applicant

Jensen and Company for the respondent

1. HOLMES CJ: The applicant seeks admission as a legal practitioner. The purpose of this hearing is to make a finding of fact as to whether in the course of his application he has met his duty of candour to the Court.

   The applicant’s earlier application for admission in the ACT

2. The applicant had previously applied for admission in the Australian Capital Territory. In an affidavit sworn on 12 May 2016 in support of the ACT application, he disclosed that he had been convicted in Western Australia of an offence of aggravated stalking with intent to intimidate, contrary to s 338E(1) of the Western Australian Criminal Code. He pleaded guilty to the charge and was fined and placed on a two year restraining order. In the affidavit, the applicant provided a short version of the events which had led to his conviction.

3. The ACT Legal Practitioners Admissions Board (the ACT Board) enquired whether there had been a protection order in place when the applicant was arrested, which led to his filing another affidavit, sworn 4 June 2016.  A further request by the ACT Board for a statement of facts relating to the charge resulted in the applicant’s emailing a Statement of Material Facts prepared by the Western Australian Police Service, which had been put before the Magistrates Court dealing with the offence.  He followed it with a further affidavit, sworn 15 June 2016, for the purpose, as he put it, of explaining any inconsistency between his earlier affidavits and the Statement of Material Facts.

   The applicant’s application for admission in Queensland

4. On 22 June 2016, the applicant filed an application for admission to the legal profession in Queensland and served it on the Legal Practitioners Admissions Board (the Board).  In a supporting affidavit, filed on 11 July 2016, he disclosed the stalking conviction and annexed a copy of the Statement of Material Facts. Notwithstanding his plea of guilty, the applicant took issue with many of the things alleged in the Statement, providing a different version of events.  He did not mention his ACT application for admission. 

5. On 27 July 2016, the Board advised the applicant that his application was opposed because of the existing ACT application and that he was required to provide any material submitted in connection with that application.  The applicant then withdrew his ACT application and provided copies of the affidavits filed in connection with it as exhibits to an affidavit filed on 11 September 2016.  The Board resolved at that stage not to oppose his application. However, apparent inconsistencies between the allegations in the Statement of Material Facts, the affidavits filed in the ACT, and the affidavits filed in this State, particularly the affidavit filed on 11 July 2016, led the Court of Appeal to set the matter down for hearing by a single judge, so that a finding of fact could be made as to whether he had complied with his duty of candour to the Court.

   The background to the stalking charge

6. The applicant was an officer in the Australian Federal Police between 2002 and 2011; he then became a private investigator. The stalking charge concerned events between December 2011 and 21 March 2012.  The complainant was the applicant’s former partner, who held a Navy post. Their relationship had begun in February/March 2010.  In the Statement of Material Facts, it is said that it had been “on and off”.  In early December 2011, the complainant was posted to Western Australia.  On 14 December 2011 she emailed the applicant to confirm that their relationship was over, but continued to receive calls and text messages from him.  The allegation of stalking turned largely around three visits that the applicant then made to Western Australia.  It is necessary at this point to compare the allegations made in the Statement of Material Facts about what occurred during those visits with the applicant’s different accounts in his affidavits and in his evidence here.

   The Applicant’s January 2012 Trip to Western Australia

7. On 11 January 2012, the applicant flew to Perth.  According to the Statement of Material Facts, the complainant met him to confirm that their relationship had ended. However, in the week following that meeting, the Statement of Material Facts alleges, the applicant contacted the complainant on 49 occasions in different forms, including calls, text messages and emails. The Statement of Material Facts alleges that on 12 January 2012 the complainant changed her phone number in an effort to end contact with the applicant.  The applicant sent an increased number of emails to both her personal and work email addresses.  He resumed sending text messages to her old mobile phone between 25 January 2012 and 2 February 2012. 

8. In his May 2016 ACT affidavit, the applicant said that he and his former partner had both moved to Western Australia.  On his arrival there she had suddenly ended the relationship and required him to leave the residential property they were sharing in a town some 80 kilometres from Perth.  He left and spent two weeks in Perth with a friend, during which he was in contact with the complainant a number of times in order to discuss their relationship.

9. On the other hand, in his Queensland affidavit filed on 11 July 2016, the applicant disputes that there was anything “on and off” about the relationship or that the complainant ever ended it.  He concedes that he was in Perth between 11 and 15 January 2012 to attend job interviews. He says that he met the complainant at a hotel in Perth, both having intended to stay two nights together, but because of work commitments, she was unable to do so.  Although he appears to admit the 49 contacts, he says that there was nothing preventing them, and he emailed only the complainant’s home address; he does not know if she changed her telephone number. The applicant agrees that he sent text messages to the complainant, but says that she responded to them. 

10. Asked in cross-examination about the apparent difference between his versions as to whether the complainant ended the relationship, the applicant said it was because of the circumstances of his move to Western Australia. He continued:

    “My former partner knew of my background and my messy family law matter with my son and knew that I was sacrificing a lot to move from Queensland to Perth, so for her to say it was over when I got to Perth was way off the mark because she knew the sacrifice I had made, you know, leave my son in Brisbane”. 

    Still, it was not “totally true” to say that his partner ended the relationship:

    “[T]hat was her version of – it is not that you know, of her saying, you know, she wanted it to end”. 

    The applicant’s statement in the ACT affidavit that the complainant ended the relationship was not, he said, what he had meant to portray. He should have written the relevant paragraph better; he should have said that her demeanour was a surprise to him, rather than that she wanted to end the relationship.  The complainant had not asked him to leave her residence on that first visit; he had confused it with a later visit.  Asked which visit, the applicant said that she had never asked him to leave her property.  He did not know why he had deposed to the contrary in his first ACT affidavit.  That affidavit was also incorrect in saying that he had stayed with a friend in Perth for two weeks; that had in fact occurred in March 2012. 

    The Applicant’s February 2012 Trip to Western Australia

11. The Statement of Material Facts alleges that, intending to return to Perth to attend job interviews, the applicant contacted the complainant and pressured her to let him stay with her. Intimidated, she agreed.  He arrived around 3 February 2012 and stayed with her.  During his stay, they had an argument. She asked him to leave the house; he refused to do so.  On 17 February 2012, she paid for a flight for him to leave the state.

12. The applicant does not mention this visit to Western Australia in the first of his ACT affidavits, but in the second affidavit sworn on 4 June 2016, he says that he stayed with his former partner at her residence for two weeks in February 2012 to celebrate her birthday. In his July 2016 Queensland affidavit, the applicant denies intimidating the complainant. He says that they had been communicating daily over the week before his arrival and had agreed that he would stay with her.  They were a couple during this period, he deposes, and it did not appear that the relationship was over. They had no argument in which he was asked to leave; to the contrary, during his stay they had visited a mutual friend and had celebrated the complainant’s birthday with other friends. (Asked in cross-examination about whether he had made any attempts to obtain evidence to this effect from the friends, he said that the mutual friend they had visited was now dead and the friends with whom they celebrated the birthday were the complainant’s friends; he had only met them that night.) He had booked a return ticket and denies that the complainant bought a ticket for him.  During this period, he says, she sent a naked photograph of herself to his mobile phone.

    The Applicant’s March 2012 Trip to Western Australia

13. The Statement of Material Facts alleges that after the applicant’s February departure, the complainant continued to receive unwanted calls, texts and emails from him, to which she did not respond.  On 4 March 2012, she received another request from the applicant to stay with her, he having returned to Western Australia. She informed him that he was not welcome.  On the following day, he went to her house, after sending her text messages which she did not answer.  She eventually let him into the house.  He asked her to have sex with him.  She did not want to, but again intimidated, she agreed.  Afterwards he left, but continued to call, text and email her.

14. The Statement of Material Facts says that on 13 March 2012, the complainant was at her tennis club when she saw the applicant sitting on a bench, although she had not told him where she played tennis. He followed her to where her car was parked. After the tennis club encounter, the applicant continued to make calls and send texts and emails to the complainant.  On 17 March, he sent her a text message saying that he was knocking on her door.  She was out at the time, but returned home to find the applicant at the front of her house. She contacted police, who served him with a restraining order.  After the order expired the applicant contacted the complainant and asked to meet her, resulting in his arrest.

15. Giving evidence, the applicant said that on his return in March 2016, he had intended to stay permanently in Western Australia.  In his ACT affidavit of 12 May 2016, deposing as to the events of March 2012, he said that he had arranged to meet the complainant on 21 March.  When she did not arrive, he telephoned her; she said that she was sorry and could not see him that night.  On returning to his car, however, he was apprehended, arrested, interviewed and charged with stalking.  His communication with the complainant had only consisted of his seeking answers as to why the relationship was breaking down. (In evidence he said that the communication he was referring to in the affidavit was the meeting in order to say goodbye.) He pleaded guilty because he accepted that he should not have contacted her and also because he did not want to embarrass her about things such as the naked photos she sent to him. 

16. In his 4 June 2016 ACT affidavit, the applicant gave a little more detail; he said that about five days prior to the 21 March incident, he and the complainant had a domestic dispute, at which point he left the country town where she resided and went to stay with his former school friend.  On 21 March, they had made dinner arrangements. He had planned to tell her that he was going to return to Queensland, because he had realised their relationship was over; he previously felt as though the complainant had moved on, but had not ended the relationship. What followed was the complainant’s non-arrival and the telephone conversation between them in which she indicated that she would not be coming. He pleaded guilty in order to avoid embarrassment to her and because he had decided that he was returning to Queensland and wanted the matter dealt with.  In his third ACT affidavit, filed after provision of the Statement of Material Facts, the applicant said that looking at the document, he realised he should not have pleaded guilty. There were inconsistencies in it which he “should have disputed at the time”.

17. At no point in any of the ACT affidavits did the applicant mention the existence of the restraining order.  In response to the ACT Board’s enquiry as to whether he was arrested because there was a protection order in place, he answered in the second affidavit that at the time of the arrest,

    “There never was a protection order or any type of domestic violence order in place”.  

18. In the version given in his July 2016 Queensland affidavit, the applicant deposes that he returned to Perth about 4 March 2012 and did call the complainant on that date.  She advised him that she would not be home that night, so he made alternative arrangements. However, the following day he met her at a café for coffee, after which they went back to her house and had consensual sexual intercourse; he disputes any intimidation by him. The applicant says that on 13 March 2012, the complainant texted him and told him that she was having tennis lessons and he was welcome to come along.  She did not give him the address but he Googled the tennis club.  The complaint did not appear to be upset that he was there or ask him to leave.  She told him that she would not be home until 17 March, and they made arrangements to meet then. The applicant says that as arranged, on that date, he knocked on the complainant’s door, without response.  He was returning to his car when he saw her arriving home.  He returned to the house and they had a short conversation.  The police arrived soon after and served a 72 hour restraining order on him.  At that point he came to the conclusion that the relationship was over and made arrangements to return to Queensland.

19. He subsequently contacted the complainant again, asking if they could meet so that he could say goodbye, as he was returning to Queensland.  He did so because he had realised after the service of the restraining order that the relationship was over and wanted to leave on amicable terms.  She answered his text and they arranged to meet at a restaurant that evening.  She did not arrive.  After about 15 minutes, he telephoned her; she said that she could not meet him.  He was then apprehended by detectives and took part in a record of interview in which he admitted contacting the complainant, but not that he had intimidated her or done anything excessive.  He appeared in court the following morning and pleaded guilty because he could not afford legal and travel costs to defend the matter.

    Explanations of other matters

20. In his 15 June 2016 ACT affidavit, filed in order to provide the Statement of Material Facts, the applicant explained that in writing his original affidavit, he had relied on his memory because he did not have a copy of the Statement.  He had “only managed to obtain a copy” of it when the ACT Board asked for it.  However, in his September 2016 Queensland affidavit, he explained that after the ACT Board requested the Statement of Material Facts, he found a copy in his own file on the matter.  In evidence, the applicant said that he had forgotten he had the material; he acknowledged, however, that his ACT affidavit gave the impression that he had had to obtain a copy of the Statement of Material Facts elsewhere. He could not explain his omission in the ACT affidavits to mention the restraining order; he had not intended to mislead.  He did not advert to it when he was asked whether it was the cause of his arrest because it was not in place on the day of his arrest.

21. The applicant was asked in cross-examination to explain why he had made applications for admission in both the ACT and Queensland and had not disclosed on the latter application that he had made the former.  He said that he applied in the ACT, although then resident in Queensland, because he had completed a Graduate Diploma of Legal Practice at the Australian National University. When the ACT Board required more information he decided instead to apply in Queensland.  It had not occurred to him to disclose the ACT application, because he considered he had provided the Queensland Board with all the information contained in the ACT affidavits.

22. The applicant acknowledged that as a police officer he had arrested people and had given evidence on 20 or so occasions.  He was asked whether he had made any attempt to have his version of events put before the Magistrates Court which dealt with the stalking charge. He asserted that while in the witness box, in a hearing which took “probably five minutes”, he had said that he did not agree with the account in the Material Statement of Facts but would plead guilty anyway. Asked why he had not recorded that account in any affidavit, he said he regarded it as hearsay.

    Conclusions

23. As can been seen from what is set out above, there are significant differences in the versions given by the applicant as between his ACT and Queensland affidavits, which were not satisfactorily explained by him in evidence.  The starkest difference is the acknowledgement in the first of his ACT affidavits that on his arrival in Western Australia the complainant ended the relationship and asked him to leave her property. It is impossible to accept that through some infelicity of language the applicant unintentionally and incorrectly swore to this clear account of the end of the relationship.

24. As the applicant initially said in answer on this topic, he may have confused the demand that he leave the complainant’s property with what occurred on a latter occasion; but the statement as to the complainant’s ending the relationship as soon as he arrived in Western Australia is consistent with what is contained in the Statement of Material Facts about what occurred when the applicant first went to that State.  It is also consistent with the note of indignation the applicant struck, in giving evidence, about the complainant’s failure to recognise his sacrifice in moving to Western Australia.  The allusion to being told to leave the property is, of course, consistent with what the complainant says occurred on the February visit. I do not accept the applicant’s later account, according to which there was a sudden inexplicable breakdown in the relationship in March, only apparent when a restraining order was obtained against him. 

1. The level of disclosure in the applicant’s ACT affidavits is of some relevance to the assessment of his credit. The failure to disclose the existence of the restraining order was, at best, disingenuous; it was, on any view, an important part of the sequence of events leading up to his arrest.  The statement to the ACT Board in his last affidavit that he had “only managed to obtain a copy of the Statement of Material Facts” when the Board asked him to do so was also misleading, I infer because the applicant wished to be able to portray omissions and inconsistencies in his earlier affidavit as a product of poor memory unassisted by reference to the Statement of Material Facts. The failure to mention the ACT application on his application for admission in Queensland also suggests a desire to offer an improved version of events, leaving the Board unaware of those omissions and inconsistencies.

2. The court does not, of course, have any transcript of what occurred in the West Australian Magistrates Court, or indeed any sworn account from the applicant, other than what was given under cross-examination, of the way in which the matter proceeded. His claim in evidence to have indicated during the summary hearing that he did not agree “with exactly what happened” seems a late attempt to account for the plea and was not mentioned in any earlier affidavit.  The applicant is a former police officer and has by his own account given evidence many times.  It is most improbable in light of his experience that he would plead guilty not just to the offence of stalking but the circumstance of aggravation, being the intent to intimidate the complainant, were he not guilty of it. His attempts in his affidavits to suggest innocence of the offence or to minimise the extent of his offending must be rejected.

3. I conclude that in making those attempts, the applicant has failed to meet his duty of candour. I adjourn his application for admission for further hearing by the Court of Appeal to 2 May 2017.