The Council of the Law Society of the Australian Capital Territory v Hoyle
[2020] ACTSCFC 3
•13 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT
Case Title: | The Council of the Law Society of the Australian Capital Territory v Hoyle |
Citation: | [2020] ACTSCFC 3 |
Hearing Date: | 13 November 2020 |
DecisionDate: | 13 November 2020 |
Before: | Murrell CJ, Burns J and Elkaim J |
Decision: | See [24] |
Catchwords: | LEGAL PRACTITIONERS – Application to remove practitioner from the roll – history of sexual misconduct – whether defendant is a fit and proper person to practice law – practitioner’s name removed from roll |
Legislation Cited: | Legal Profession Act 2006 (ACT) |
Cases Cited: | Hoyle v The Queen [2018] ACTCA 42 Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 R v Hoyle (No 2) [2017] ACTSC 175 The Council of the Law Society of the Australian Capital Territory v Bandarage [2019] ACTSCFC 1 The Council of the Law Society of the Australian Capital Territory v Giles [2020] ACTSCFC 1 |
Parties: | The Council of the Law Society of the Australian Capital Territory (Plaintiff) Arthur Marshal Hoyle (Defendant) |
Representation: | Counsel D A Moujalli (Plaintiff) No appearance (Defendant) |
| Solicitors McInnes Wilson Lawyers (Plaintiff) | |
File Number: | SC 299 of 2020 |
THE COURT:
Introduction
On 13 December 2002 the defendant was admitted to the Roll of Legal Practitioners maintained by the Supreme Court of the Australian Capital Territory.
On 22 March 2017 the defendant came to trial before a judge and jury facing 10 counts of unlawful sexual activity in respect of five separate female complainants.
On 5 April 2017 the jury returned verdicts of guilty on eight of the 10 counts. Notably these included Counts 6 and 8 which were offences of sexual intercourse without consent.
The defendant was sentenced for the offences of which he had been found guilty on 14 July 2017. The total sentence was four years with a non-parole period of two years and six months (R v Hoyle (No 2) [2017] ACTSC 175).
The defendant appealed against both his convictions and the sentences. The appeal was dismissed on 28 September 2018 (Hoyle v The Queen [2018] ACTCA 42).
On 26 August 2020 the plaintiff filed an originating application seeking an order that “pursuant to the inherent jurisdiction and powers of the Court”, the defendant’s name be removed from the above roll. The application is supported by an affidavit of Mr Robert Reis sworn on 18 August 2020. Mr Reis is the professional standards manager of the ACT Law Society.
On 9 November 2020 the Associate to the Chief Justice wrote, by email, to the parties asking the defendant if he objected to Elkaim J (the trial and sentencing judge) being a member of the court hearing the application. The defendant, on the following day, replied that he had no objection and continued:
As I have advised I am not contesting this matter, and meaning no disrespect to the Court, and consistent with the restrictions NSW authorities have on my parole do not intend attending the hearing.
The email exchange is Exhibit 1. Consistently, the defendant did not appear at the hearing.
Based on the above response it can be confidently concluded that the defendant does not oppose the application.
Notwithstanding the defendant’s position, however, it is incumbent upon the court to satisfy itself that the defendant’s name should be removed from the roll.
This issue is dependent upon the answer to this question: Is the defendant a fit and proper person to practise as a legal practitioner. The question must be answered as at the time of the decision.
It is first of all necessary to refer to the conduct that made up the charges against the defendant. They were summarised, together with the relevant sentences, by the Court of Appeal in this way:
12. On 14 July 2017, the trial judge sentenced the appellant. The outcomes of the charges were as follows:
(a) Count 1—On 20 April 2015, commit an act of indecency in the presence of ZG without consent and being reckless as to consent (he showed her pornographic material on websites that he alleged that she had surfed while doing the assignment). Guilty: two months’ imprisonment, 5 September 2020– 4 November 2020.
(b) Count 2—On 20 April 2015 (on the same occasion as Count 1), commit act of indecency on ZG without consent and being reckless as to consent (after she began to cry, he suggested that she could do something to make it go away and then placed his hands on her thighs “in a comforting touch with some strength”). Not guilty.
(c) Count 3—On 23 April 2015, commit an act of indecency on KA without consent and being reckless as to consent (after raising the allegation of plagiarism and asking her what she could do about it, he held her on the back, pulled her face towards his face and—she thought—wanted to kiss her). Guilty: two months’ imprisonment, 5 October 2020–4 December 2020.
(d) Count 4—On 23 April 2015 (at the first meeting with her), commit an act of indecency on TL without consent and being reckless as to consent (after raising the allegation of plagiarism, he suggested that she could “do something” to prevent it being taken further, then he touched her knee and tried to touch her breast but she pushed him away). Guilty: four months’ imprisonment, 5 October 2020–4 February 2021.
(e) Count 5—On 29 April 2015 (during his second meeting with her) commit an act of indecency on TL without consent and being reckless as to consent (after asking her what she would like to suggest in relation to the plagiarism allegation, he touched her breast and leg, placed his hands under her skirt and touched her underwear). Guilty: four months’ imprisonment, 5 November 2020–4 March 2021.
(f) Count 6—On 29 April 2015 (during his second meeting with her) engage in sexual intercourse with TL without consent and being reckless as to consent 7 (he pulled down her stockings and engaged in digital penetration). Guilty: three years’ imprisonment, 5 April 2017–4 April 2020.
(g) Count 7—On 29 April 2015 (during his second meeting with her) commit an act of indecency on TL without consent and being reckless as to consent (he lifted her up, kissed her on the lips, touched her breast and tried to put his tongue in her mouth). Guilty: four months’ imprisonment, 5 November 2020–4 March 2021.
(h) Count 8—On 29 April 2015 (during his second meeting with her) engage in sexual intercourse with TL without consent and being reckless as to consent (he removed his clothing and underwear and engaged in penile/vaginal intercourse). Guilty: three years and six months’ imprisonment, 5 April 2017–4 October 2020.
(i) Count 9—On 24 April 2015 commit an act of indecency on EO without consent and being reckless as to consent (he placed his hands on her thighs and briefly touched her upper arm). Not guilty.
(j) Count 10—On 28 April 2015 commit an act of indecency on UU without consent and being reckless as to consent (after telling her that he didn’t want her to fail and asking her for a kiss, he touched her face, kissed her forehead, cheeks and lips and touched her breast). Guilty: two months’ imprisonment, 5 February 2021–4 April 2021.
As reflected in the respective sentences, the overall sentence was dominated by Counts 6 and 8.
The background to the charges was that the defendant was a lecturer in the Business Law course at the University of Canberra. The complainants were students in this course. They were all international students attending the University on student visas. The defendant conducted the various assaults on the premise of examining assignments submitted by the students and suggesting to them that they had been guilty of plagiarism. The assaults were an attempt to obtain sexual gratification from the students by taking advantage of their vulnerability as holders of temporary visas.
All of the students were significantly younger than the defendant who held a position of authority over them and also a position of influence, in particular in his role as their lecturer and assessor of their assignments.
The offences were committed in 2015 and took place against a number of complainants over a number of days.
The defendant gave evidence at his trial. He vehemently denied the allegations. It is implicit in the verdicts that he was not believed and lied to the jury.
The defendant’s current attitude to the offences is unknown. There is however no reason to anticipate that he now acknowledges his wrongdoing or has any insight into his criminal conduct. As recently as 6 April 2019 he continued to assert his innocence (see the letter to Mr John Wilson at page 881 of the exhibit to Mr Reis’s affidavit).
A criminal conviction alone does not necessarily affect the status of being a fit and proper person to practise law. The New South Wales Court of Appeal said this in Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230, from [12]:
12 The ultimate question for this Court is whether Mr Thomson is a fit and proper person to remain on the roll. Its determination requires the application of established principles reflecting the purpose of disciplinary proceedings against a legal practitioner, which is the protection of the public, rather than the punishment of that individual: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250–251 (Deane, Dawson, Toohey and Gaudron JJ). In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20], Spigelman CJ identified four “interrelated interests” which may be regarded as protected by such proceedings:
Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
13 Three principles are particularly significant in this application.
14 First, although the fact of a criminal conviction and sentence is not necessarily sufficient to disqualify a person from continuing as a member of the legal profession, the defects of character revealed by the criminal conduct, and the disgrace flowing from conviction, may be incompatible with practice: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 especially at 288 (Fullagar J), 298 (Kitto J). That consequence follows more readily in relation to crimes involving dishonesty and misappropriation. In Re Davis (1947) 75 CLR 409 at 420, Dixon J observed that a member of the Bar must:
… command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges. It would almost seem to go without saying that conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with the existence in a candidate for admission to the Bar of the reputation and the more enduring moral qualities denoted by the expression, ‘good fame and character’, which describe the test of his ethical fitness for the profession.
15 These considerations are not limited to applicants for admission to the Bar; they apply with equal, if not greater, force to practitioners who may seek to work as solicitors, in which capacity they would be entitled to hold trust moneys on behalf of clients. And an unfitness to do so may be shown by the commission of misappropriation offences with less objective seriousness than crimes such as break, enter and steal.
16 Secondly, conduct occurring outside the practice of law may nevertheless indicate a present unfitness to practice: Ziems at 290 (Fullagar J). As explained by Mason P in New South Wales Bar Association v Hamman [1999] NSWCA 404; (1999) 217 ALR 553 at [21]:
The fact that the misconduct is not directly involved with practice in the law makes no difference where, as is conceded in the present case, the practitioner’s behaviour would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750; Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 at 203).”
17 Mr Hamman’s tax offences were described as involving “significant and prolonged dishonesty for personal gain”: at [101]. Repeated misappropriation from any entity that has entrusted a person with control of its funds will expose a characteristic inconsistent with the holding of trust moneys for clients.
18 Thirdly, fitness to practise requires an appreciation of the high degree of trust that the court, of necessity, reposes in legal practitioners and of their general and ongoing obligation of candour to the court in which they desire to serve as an “agent of justice”: Davis at 426 (Dixon J); Prothonotary v Montenegro [2015] NSWCA 409 at [70] (Meagher and Leeming JJA and Emmett AJA); Prothonotary v Comeskey [2018] NSWCA 18 at [29]–[31] (Basten JA). That obligation of candour applies especially in relation to the disclosure of past misconduct that is otherwise relevant to fitness to practise. Non-compliance with this obligation may confirm that defects in character remain or demonstrate a further inadequacy: see Thomas v Legal Practitioners Admissions Board (2005) 1 Qd R 331 at 333; [2004] QCA 407, where de Jersey CJ observed that “making candid disclosure of relevant information … demonstrates a proper perception of [the] duty” and thereby demonstrates good character.
The above principles were recently re-stated by this Court in the Council of the Law Society of the Australian Capital Territory v Bandarage [2019] ACTSCFC 1 and the Council of the Law Society of the Australian Capital Territory v Giles [2020] ACTSCFC 1.
It cannot be the case that a person capable of behaviour of the type constituting the serious, repeated and relatively recent sexual offences, committed by the defendant against students in respect of whom he was in a position of trust and authority, could be seen as a fit and proper person in whom the public and fellow practitioners could have trust and upon whom reliance for honest and honourable conduct could be placed. The continuing denial of the offences and lying in the witness box re-enforces this conclusion.
The defendant did have a long and distinguished career as an academic but the credit he receives for this history is overwhelmed by the offences and the attendant dishonesty.
This Court, almost inevitably, has reached the conclusion that the defendant is not a fit and proper person to remain on the roll.
Orders
The Court makes the following orders:
1.The name of Arthur Marshall Hoyle be removed from the roll of persons admitted to the legal profession maintained by the Supreme Court of the Australian Capital Territory pursuant to section 27 of the Legal Profession Act 2006 (ACT).
2.The defendant is to pay the plaintiff’s costs of the proceedings.
3.The defendant has leave to request an alternate costs order but must do so, in writing and including submissions, within 14 days of these orders.
4.If the defendant does make a request for an alternate costs order the plaintiff is to file any written submissions within 7 days of receipt of the defendant’s request. Any issue on costs will then be decided on the papers.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Burns and Justice Elkaim. Associate: Date: 13 November 2020 |
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