The Prothonotary of the Supreme Court of New South Wales v Sukkar
[2007] NSWCA 341
•29 November 2007
NEW SOUTH WALES COURT OF APPEAL
CITATION: The Prothonotary of the Supreme Court of New South Wales v. Sukkar [2007] NSWCA 341
FILE NUMBER(S):
40513/06
HEARING DATE(S): 11 October 2007
JUDGMENT DATE: 29 November 2007
PARTIES:
The Prothonotary of the Supreme Court of New South Wales - claimant
Steven Sukkar - opponent
JUDGMENT OF: Hodgson JA Tobias JA Basten JA
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
Mr. P. Singleton for claimant
Mr. M. Abboud (s) for opponent
SOLICITORS:
I.V. Knight, Crown Solicitor for claimant
Michael Abboud & Co., Parramatta for opponent
CATCHWORDS:
LEGAL PRACTITIONERS - Removal from Roll - Professional misconduct - Fit and proper person - Conviction for serious drug offence - Whether finding should be made that opponent gave false evidence.
LEGISLATION CITED:
CASES CITED:
Briginshaw v. Briginshaw (1938) 60 CLR 336
Gonzales v. Claridades [2003] NSWSC 508, 58 NSWLR 188
Health Care Complaints Commission v Wingate [2007] NSWCA 326
In re Thom; Ex parte The Prothonotary (1962) 80 WN (NSW) 968
New South Wales Bar Association v Maddocks (unrep, NSWCA, 23 August 1988)
New South Wales Bar Association v. Cummins [2001] NSWCA 284, 52 NSWLR 279
Prothonotary of Supreme Court of New South Wales v. P [2003] NSWCA 320
R v. Sukkar [2005] NSWCCA 54
Tripodi v. The Queen (1961) 104 CLR 1
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
DECISION:
(1) Declare that Steven Sukkar, having been found guilty upon a charge that he was knowingly concerned in the importation into Australia of narcotic goods (namely, 34.4 kilograms of pure 3,4 methylene-dioxymethamphetamine in an admixture totalling 123.75 kilograms, commonly known as “ecstasy”) and was sentenced to 14 years’ imprisonment with a non-parole period of nine years, is a person who is not of good fame and character. (2) Declare that Steven Sukkar, in giving evidence on oath in September 2003 that he had not knowingly been concerned in the importation before 1 December 2001, that evidence being false to his knowledge, engaged in professional misconduct. (3) Declare that Steven Sukkar is not a fit and proper person to remain on the Roll of lawyers of the Supreme Court of New South Wales. (4) Order that the name of Steven Sukkar be removed from the Roll of lawyers of the Supreme Court of New South Wales. (5) Order that Mr Sukkar pay the Prothonotary’s costs of these proceedings.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40513/06
HODGSON JA
TOBIAS JA
BASTEN JAThursday 29 November 2007
PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES V. SUKKAR
Judgment
HODGSON JA: By Summons dated 17 August 2006, and amended on 11 October 2007, the claimant seeks the following orders:
1. A declaration that the Opponent has been guilty of professional misconduct in each of the following respects:
1.Between 23 November 2001 and 6 December 2001 he was knowingly concerned in the importation into Australia of narcotic goods (namely, 34.401 kilograms of pure 3,4 methylene-dioxymethamphetamine mixed into an admixture totalling 123.75 kilograms, divided into several thousand tablets).
2.On 29 September 2003 he was found guilty upon a charge that he was knowingly concerned as set out in (1) above and on 19 December 2005 he was sentenced to imprisonment for 14 years (with a non-parole period of 9 years), a sentence that he is presently serving.
3.Between 23 November 2001 and 6 December 2001, knowing that a quantity of 3,4 methylene-dioxymethamphetamine mixed into an admixture and divided into several tablets had been imported into Australia and was located in premises owned by himself (namely, 84 Consett Street, Concord West) failed to advise police of these facts and failed to take any other appropriate action regarding these facts but instead
(a)participated in the unpacking of the said tablets from the packaging in which they were packed, in doing so being in possession of those tablets;
(b)participated in separating the said tablets from other, inert tablets which had been placed into the said packaging by police,
(c)engaged in efforts to locate other tablets of 3,4 methylene-dioxymethamphetamine which he (or alternatively other persons known to and associated with him) had expected would be in the said packaging but were not and engaged in efforts to ascertain what had happened to the other tablets of 3,4 methylene-dioxymethamphetamine which he (or alternatively other persons known to and associated with him) had expected would be in the said packaging but were not; and
(d)took steps to remove from the said Concord West premises items which were capable of being material evidence of the said importation and related crimes.
4.From 1 to 10 September 2003 he gave evidence under oath to the effect that he had not been knowingly concerned in the said importation before 1 December 2001, that evidence being to his knowledge false.
5.On one or more occasions before November 2001 he
(a)was involved in the importation into Australia of illegal drugs, or
(b)being aware that an importation into Australia of illegal drugs by persons known to or associated with him
(i)was going to occur,
(ii)was occurring, and/or
(iii)had occurred,
failed to advise police of relevant information and failed to take any other appropriate step.
2. A declaration that the Opponent is not a person of good fame and character.
3. A declaration that the Opponent is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of New South Wales.
4. An order that the name of the Opponent be removed from the Local Roll of Lawyers of the Supreme Court of New South Wales.
5. An order that the Opponent pay the Claimant's costs of and incidental to these proceedings.
6. Such further other orders as the Court sees fit.
The opponent opposes the making of an order that his name be removed from the roll of lawyers, contending that the appropriate order is that he be prevented from practising law until granted parole or otherwise released from custody, and thereafter be entitled to practice as a lawyer on such terms and conditions as are imposed on him by the Council of the Law Society of New South Wales.
AGREED FACTS
The parties provided the following Statement of Agreed Facts:
1. On 17 November 2001, 34.401 kilograms of pure 3,4 methylenedioxymethamphetamine (commonly called 'Ecstasy'), mixed into an admixture totalling 123.75 kilograms and then divided into several tablets, arrived in Brisbane in a shipping container that had been shipped from Belgium via Singapore. It had been concealed within 48 columns that purported to be parts of a portable cool room and were packed into the said shipping container. The wholesale value of the Ecstasy was between $7.2 and $12 million.
2. The shipping container was consigned to CJ Trade Consultants Pty Ltd ('the company'), a company registered in April 1999 as part of a business venture between Huynh Joon Choi and the opponent. The opponent, his brother Louis Sukkar and Choi were originally listed as directors of the company. The opponent and Louis Sukkar ceased being directors on 26 January 2000.
3. The Ecstasy was detected by customs and police, who removed 480,000 of the Ecstasy tablets from the columns. Thirteen thousand of those tablets were repacked into the columns along with a large number of tablets made from an inert substance.
4. The columns and some other cool room parts were transported to 84 Consett Street, Concord West ('the Concord West premises'), arriving on the morning of 24 November 2001. The Concord West premises were owned by the opponent and occupied by Louis Sukkar, Michelle Royal and another person.
5. The opponent arrived at the Concord West premises about noon on 24 November 2001. The opponent participated in the moving of the columns from the truck into a garage and then to a shed at the Concord West premises. During the afternoon the columns were examined, the contents of at least some were removed, and some of the tablets were tasted (or otherwise inspected) and found not to be Ecstasy. The opponent left the premises about 4:23 pm, returning to be there from about 6:23 to 6:29 pm.
6. During the evening of 1 December 2001 and thereafter, the opponent was a party to a number of telephone calls that were directed at discovering how, when and where the substitution of inert tablets for Ecstasy tablets had occurred and at discovering whether or not various persons who had been involved in the importation (other than a member of the Sukkar family) had obtained the drugs.
7. The first of those conversations included the opponent telling his brother Louis that a Max Messina of Intergroup Shipping (to whom the opponent had, using a false name, spoken about the movements of the said shipping container) had been 'sussing' him out and had known what was arriving. That conversation continued thus:
Opponent: He knew it was cool rooms.
Louis Sukkar: Yes but John knew it was cool rooms too.
…
Louis Sukkar: He knew from last time.
Opponent: All right so he knew from last time.8. Shortly after 10:49 pm on 1 December 2001, the opponent spoke with Choi about the need to make inquiries before certain people arrived from Europe to investigate the loss of the drugs:
Opponent:Intergroup Customs, you're telling me, took it from the port and delivered it to the port to the warehouse?
Choi: Yeah, yeah.
Opponent: Okay now. [Pause] Where are they? In Brisbane?
Choi: In Brisbane.Opponent:All right well we'll just have to contact them and make sure where, where they delivered it to.
…
Opponent: But believe me these people are super suspicious and if everything isn't covered - because they're, they're convinced that there is nothing wrong from their end.
Choi:Steven, I can a hundred percent tell you even if we have that piece of paper right -
Opponent: Hm.
Choi: They are gonna suspect us.Opponent: No, I know, I know, but at least we know that there is no no no little no little loop left untied there's no hole no hole that we can fall into and right now that little time period I know it's impossible but it is a hole and they will suspect it because they don't know what we're capable of so they they're even contemplating because the ship landed in Sydney someone took 'em off in Sydney and put them back on that's just how far their thinking goes.
Choi: Hm.
Opponent:And you don't want to get on the wrong side of these people because they are very connected very heavy and they do things drastically.
Choi: Yeah.
Opponent: And believe me we're all in the firing line here.
...Opponent:So if we can cover this little this little two two hour gap.
…
Choi: Now if I ask him again for another piece of information which it seems totally unnecessary since we already received the goods [wds] something funny going on you know.
Opponent: Well John we we'll just try and find out we'll call this [wds]
[Overtalk]
Opponent: And try and find out ourselves but if we can't find out for ourselves you're gonna have to ask him we'll have to lose that connection just to save our own skins.
Choi: Oh okay.
Opponent:But to be honest with you to keep ourselves in the clear is much more valuable than keeping this connection 'cause you can always get another connection.
…
Opponent: I'm thinking of our own skin here.
…Choi: I think you're thinking that they guy who bloody coming over to see Joe is the guy who organised the bloody thing [wds].
…
Opponent:Well any way leave it for now but don't do anything for now we'll just try to do our own inquiries … and see how we go.
Choi: Yeah it's best to do it that way because I mean you don't blow your um bridges all over the place.
9. Shortly after 10:42 on 2 December 2001 the opponent was party to the following conversation:
Joseph Sukkar: Are we going to do something with him Steven?
Opponent: Oh yeah.
Joseph Sukkar: You're really sure?
Opponent: I'm a hundred.
Joseph Sukkar: Loui, Steven, [wd]
Opponent: [Wds] his legs.Joseph Sukkar: Elias [Louis] got mad got crazy nearly died of it he can't believe what happened. Elias can't believe what happened. He wants to bash him and that but this will be useless he will have to [wds].
Opponent: Let Elias bash him a bit at the beginning see if he can get him to um see if he can get.
Joseph Sukkar: Take Elias serious like that Elias will remain easy.
Opponent: Let him [wds] Elias that's why we have a swap-over we'll just catch the bloke it'll makes it easier for them makes it easier for us seriously let him do that 'cause I wanna fucking smash him a few times myself.
Joseph Sukkar: [Wds]
Opponent: We'll get it back.Joseph Sukkar: [Wds] Steven, if we're lucky if we get his share off him if we get his share back we're laughing
Opponent: We'll get it back.
…Opponent: Joe, Joseph, trust me [overtalk] trust em when I get him I'm gonna get him you watch I'm not going to leave him if he doesn't come (wds) he won't be able to get out of it.
Joseph Sukkar: It's not fair it's not fair my goodness what he did [whistles].
Opponent: [Wds] something alright you know now we'll fix it up mate get another one and we'll do It ourselves next time it’s alright
…
Opponent: Louis, when are you gonna call him?
Louis Sukkar: I'll ring him in a few hours [wds].
Joseph Sukkar: We need to work.Opponent:When you call him just say look there's this little we haven't found we're gonna call on Monday see if we can find out there's a little discrepancy if we can't find out Monday you're just gonna have to come back and explain that gap 'cause they here tell him tell him they're coming from overseas.
10. Shortly after 12:13 pm on 2 December 2001, the opponent and his three brothers (Paul, Louis and Joseph) gathered at the Concord West premises and undertook the task of dividing the Ecstasy tablets from the inert tablets. During that task, the conversation included the following:
Opponent: [wds] wanna do a [wds] for the next one. [Pause] aren't you going to work with him?
Joseph Sukkar: [wds] if there's work why not [wds] Ough if we can do work with the Chinese [wds].
…
Opponent:Do you think they will still work with you on this shit?
Joseph Sukkar: They should still [wds].
…Joseph Sukkar: [Wds] better things. We're talking about tens [wds] what would I say we're talking about a tonne cocaine from Brazil this on its own. ...
There was then discussion about sending Tony some money so that he could come to Australia, and the conversation then continued:
Opponent:Keep him happy as much as you can. They'll appreciate what you are doing and then just get started on the next one.
…
Louis Sukkar: Well shall I give [Choi] a ring right?
…Paul Sukkar: Just tell him, say, 'look the guys are here in the next couple of days; get your arse back here; we gotta clear this up.
…
Opponent: Just say look we need to cover that gap; once we cover that gap that's it; we say it's not our end then we just get onto the next one but tell him see he's insisting on that money to make sure that once we pay that fifty then he's clear; he goes oh they really don't suspect us so we gotta say look John we don't have anything we can't pay it please just come and help us organize the next one.
In further conversation, Joseph and Louis Sukkar, in the presence of the opponent, discussed five hundred kilos in Brazil and doing 'another one'. Later, the conversation included:
Joseph Sukkar: John wants one hundred fifty thousand dollars the son of a bitch. ...
Paul Sukkar: [Wd] the way we did the last one [wd] even bigger one.
11. Shortly after 5:05 pm on 2 December 2005 the following conversation occurred:
Joseph Sukkar: We should now do something nice we should [wds] the man's goods John whatever you can get off JOHN and we'll do one more [wds]
Opponent: [Wd] What's it worthwhile [wds]
Joseph Sukkar: Believe me you'll do very nice money in the next two months.
Opponent: All right.
12. After most, if not all, of the sorting of tablets had been completed, the opponent left the Concord West premises.
13. On 3 December 2001, shortly after 7:11 pm, the following conversation occurred:
Opponent: The pipes inside were fucking Australian made. Michelle Royal: How do you know?Opponent:I saw it it just fucking jerried with me about an hour ago.
Louis Sukkar: They're exactly the same pipes as last time. Michelle Royal: Really it says made in Australia.
Opponent: No they're Australian fucking made.
Louis Sukkar: They came in the same pipes as last time.Opponent:No they're not no they're not Paul's looking at them up there he's got the ones last time.
Louis Sukkar: Has he
Opponent: Yeah he's still got the fridge from the last one
Louis Sukkar: And he compared exactly the pipes?
Opponent: He did I told him to he did they're different.
Louis Sukkar: They wouldn't have needed to change the pipesOpponent:Loui, you can't open those pipes without breaking them.
14. Shortly after 6:04 pm on 4 December 2001, the opponent asked Paul Sukkar to check if other tubes were Australian made.
15. The opponent was arrested on 5 December 2001. He had taken no steps to inform police of - or take any other appropriate step in respect of - the importation of the Ecstasy or its presence in Concord West. Rather, he took steps calculated to have evidence of the importation and presence of the Ecstasy removed from the Concord West premises.
16. In August and September 2003, the opponent was tried, and on 29 September 2003 he was found guilty, upon a charge that he was knowingly concerned in the said importation of Ecstasy. On 19 December 2001 he was sentenced to imprisonment for 14 years (with a non-parole period of 9 years), a sentence that he is presently serving. An appeal against conviction was dismissed; an appeal against the sentence was also dismissed.
It was also not disputed that the opponent was admitted as a legal practitioner of the State of New South Wales, and that his name remains on the roll of Local Lawyers.
FACTS IN ISSUE
There is a contest as to certain of the primary facts included in the declaration in Order 1 in the Summons: in particular, as to the assertion in declaration 3(c) that the opponent had expected that ecstasy tablets would be in the packaging, as to the assertion in declaration 4 that his evidence was false and false to his knowledge, and as to the whole of declaration 5.
To support the findings sought in those declarations, the claimant relied particularly on the agreed facts and inferences to be drawn from them, on an intercepted phone conversation that occurred on 24 November 2001, and on parts of the evidence at the opponent’s trial.
The transcript of the telephone conversation is set out at pp.2326-28 of Exhibit JR3. It took place between the opponent’s brothers Louis and Joseph a little after 7.30 in the evening. Louis is recorded as saying “It’s all I I am I I ate nothing it’s about three of them … There’s nothing and ah Michelle ate one Steven ate two there’s nothing at all”. The words “It’s nothing it’s all” and “there’s nothing” and “there’s nothing at all” were spoken in Arabic, the other words in English.
It can readily be inferred that the word “Michelle” was referring to Michelle Royal, an occupant of the Concord West premises, and that the word “Steven” referred to the opponent. It can also be readily inferred that what was referred to as being eaten were tablets removed from columns on 24 November 2001.
Whilst making no detailed submissions as to primary facts to be found, Mr. Baran for the opponent contended that, in committing the offence with which he was convicted, the opponent, for what appears to be the first time, gave in to into the temptation of blind loyalty to other members of his family, resulting in an isolated albeit very serious incident.
FINDINGS OF FACT
The conviction of the opponent is evidence of the elements of the offence with which he was convicted, but not of the detailed facts found by the sentencing judge or by the Court of Criminal Appeal dealing with his appeal: Evidence Act 1995 (NSW) ss.91 and 92, Gonzales v. Claridades [2003] NSWSC 508, 58 NSWLR 188. The detailed facts set out in the Court of Criminal Appeal’s judgment R v. Sukkar [2005] NSWCCA 54 may have some relevance to the opponent’s reputation, but cannot support findings by this Court as to what the opponent actually did, beyond the bare elements of the offence with which he was convicted.
The telephone conversation on 24 November 2001 between the opponent’s brothers Louis and Joseph was admitted into evidence in the criminal trial, as being evidence of a common purpose, in accordance with Tripodi v. The Queen (1961) 104 CLR 1. It was admitted without objection before this Court, as part of the evidence at the criminal trial. It thereby became admissible as evidence of the truth of what was said, unless an order was made limiting its use: Evidence Act ss.60 and 136. The circumstances of the conversation were such that, in my opinion, it was probative evidence of the truth of the assertion that “Steven ate two”; that is, that on 24 November 2001 the opponent participated in testing some tablets and determining that they were not ecstasy.
In evidence at the trial, the opponent denied seeing any of the columns opened on 24 November 2001, seeing what was in any of them, or tasting any of what was contained in them: transcript 1297-98. He also denied any knowledge of an attempted importation of ecstasy prior to 1 December 2001: transcript 1370.
However, it is common ground that the opponent was present at the Concord West premises on 24 November 2001 from noon to 4.23pm, that the columns had arrived there that morning, that he participated in moving the columns from the truck on which they arrived into a garage and then to a shed, and that during the afternoon the contents of some columns were removed and some tablets or otherwise inspected and found not to be ecstasy.
In my opinion, those facts would make it highly probable that there was some opening of columns and examination of their contents during the period of more than four hours when the opponent was present and participating in moving the columns, and highly improbable that he was not aware that this was happening.
The opponent also gave evidence that, in undertaking the task of dividing ecstasy tablets from inert tablets on 2 December 2001, he had just one objective, namely to get them out of his house: transcript 1420. He could not explain why he did not simply require everything to be removed immediately. Furthermore, in my opinion the recorded telephone conversations occurring on and after 1 December 2001, particularly the excepts in the Agreed Statement of Facts, indicate a commitment by the opponent to the task of finding out what happened to the missing ecstasy tablets and recovering those tablets or money from a person suspected of involvement in their disappearance, which is wholly inconsistent with the opponent’s evidence about his objective.
Those telephone conversations also suggest an identification of the opponent with the importation which is inconsistent with his only just having learnt about this, and being shocked by it. It is true that other telephone intercepts prior to 1 December 2001 show open discussion of importation when the opponent was not participating, which is absent when the opponent is involved; but in my opinion the telephone intercepts on balance strongly confirm the opponent’s knowledge of the importation prior to 1 December 2001.
For the purpose of these proceedings, facts alleged against the opponent must be proved on the balance of probabilities, having regard to the considerations discussed in Briginshaw v. Briginshaw (1938) 60 CLR 336. On the basis of the evidence I have outlined, and the reasons I have given, in my opinion it is established, to the Briginshaw standard, that the opponent did taste tablets taken from the columns on 24 November 2001, and that his evidence to the contrary was false.
The claimant seeks further findings, to the effect that prior to opening the columns, the opponent expected they would contain ecstasy, that the opponent deliberately gave false evidence, and that the opponent had been knowingly involved in prior drug importations.
I note that in New South Wales Bar Association v. Cummins [2001] NSWCA 284, 52 NSWLR 279, at [24], Spigelman CJ (with whom Mason P and Handley JA agreed) referred to the importance of the Court recording its findings on the matters put forward as constituting misconduct, so that they will be available to be dealt with in the event of a future application by a former lawyer for re-admission to practice.
Having regard to that consideration, I think it is appropriate for this Court to make a finding as to whether the opponent deliberately gave false evidence. There seems to be no other explanation for the falsity of the evidence given by the opponent denying his tasting of tablets on 24 November 2001 and denying his knowledge concerning the importation of ecstasy prior to 1 December 2001, other than that he gave this evidence knowing it was false. The opponent has not offered any such explanation. In those circumstances, I am satisfied to the Briginshaw standard that this false evidence was given deliberately.
As regards the other findings sought by the claimant, they are less significant, and the evidence in support of them is less clear. In my opinion, it is not necessary to make findings on those matters, and I think it is appropriate not to consider them further.
RELEVANT PRINCIPLES
Both sides relied on principles stated by Young CJ in Eq. in Prothonotary of Supreme Court of New South Wales v. P [2003] NSWCA 320 at [17]:
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, …
(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.
The opponent also relied on the result in that case, which concerned a solicitor who had pleaded guilty to a charge of importing into Australia not less than the trafficable quantity of cocaine, and had been sentenced to 6 months’ imprisonment (to be released after 3 months upon entry into a recognisance to be of good behaviour for 3 months). The summons against that solicitor was dismissed upon her entering into an undertaking to the Court.
There is also an important discussion of the principles in Cummins. Spigelman CJ said this at [19]-[20]:
19 Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.
20 There are four interrelated interests involved. 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.
That judgment also contains a significant discussion of what amounts to professional misconduct, the effect of which is summarised in par.[56]:
56 There is authority in favour of extending the terminology “professional misconduct” to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of “professional misconduct” overlaps with and, usually it is not necessary to distinguish it from, the terminology of “good fame and character” or “fit and proper person”.
SUBMISSIONS FOR THE OPPONENT
The circumstances in which this matter was heard are set out in the Court’s judgment on the opponent’s application for an adjournment: [2007] NSWCA 292. The opponent provided written submissions as there contemplated; and in those submissions it was proposed that evidence would be given by the opponent by an affidavit stating inter alia (a) that the opponent is not engaged in any conduct whereby he was being brought to the attention of any of the authorities regarding the sentence that he is serving; (b) that the opponent is a model prisoner; and (c) that the opponent is being paid by the Crown to supervise prisoners under the age of 25 and assist them in serving their custodial sentences, acting in the nature of a mentor and it is understood that his character, qualifications and educational experience is being utilised for the advancement and betterment of younger prisoners to assist them in their rehabilitation and education. The Court does not intend to receive this evidence: it is too late, and in any event, would make no difference.
Mr. Baran also submitted:
12.It is respectfully submitted that having regard to the opponent's conduct in prison, his prospects for parole in 2010 are reasonable.
13.It is anticipated that in the event that the opponent obtains parole he would then be under the supervision of the Probation and Parole Service and would be permitted, inter alia, to obtain employment.
14.The court should take into account the fact that there has never been a single disciplinary proceeding, complaint or action against the opponent. As a lawyer he appeared to be reasonably successful not only as an employee but also as a sole practitioner. It is understood that he operated a Trust Account and it is further understood that never did he ever come to the attention of The Law Society in respect of any disciplinary matter.
15.The opponent relies upon the bundle of testimonials and references that were tendered before his Honour Judge Andrew.
…
17.It is respectfully submitted that although the opponent has been convicted of a very serous criminal offence and is serving a term of imprisonment, he is otherwise a fit and proper person.
18.His removal from the roll must be based upon the fact that there is a probability that the opponent is permanently unfit to practise. It is respectfully submitted that there is no evidence that would suggest that there is a permanent unfitness in this regard.
19.The factual matrix of the prosecution involved an isolated yet very serous incident there is no probative evidence that would suggest a probability of permanent unfitness to practise unlike other cases involving, for example, serious dishonesty.
20.It is submitted that this is a case where although the conviction is for a serous offence, it does not necessarily mean that that of itself is a sufficient reason for an order to strike that person off the roll. .
21.The influence of the opponent's family and his error of judgment needs to be considered.
22.In all other respects, having regard to the totality of the opponent's life, his life history, absence of any prior criminal behaviour arid the quite probative and convincing evidence that for most of his life with the exception of one event, the opponent fought hard not to be involved in criminal behaviour unlike other members of his family, this is a case where a similar approach that was taken to Ziems should be considered by this court.
23.This is also a case where there is no behaviour that is similar to that as was demonstrated in Barristers Board v. Darveniza (2000) 112 A Crim R 438, namely the solicitor was not involved in the promotion of crime, money laundering, willing to fraternise with drug dealers with a view to profit, a familiarity with the drug scene, willingness to make money from it or a person who showed no respect for the law.
24.The present opponent also falls within some of the 10 points referred to by Justice Young at paragraph 24 of his Honour's Judgment in P.
25.This is not a case involving a drug addict, however, it is a case that should be given similar considerations to P in that the court has not been made aware of any behaviour whilst in prison that would be inconsistent with conduct in the nature of personal rehabilitation or self improvement in the prison system.
26.Accordingly, the order sought by the opponent is that he be suspended from practising law until he is granted parole or is otherwise released from custody and thereafter be entitled to practise as a legal practitioner on such terms and conditions as are imposed upon him by the Council of the Law Society of New South Wales, otherwise the summons should be dismissed and the claimant pay the opponent’s costs.
DECISION
In my opinion, the gravity of the offence of which the opponent was convicted is such as to demonstrate present unfitness to practice, that is likely to continue indefinitely. This is strongly confirmed by the opponent’s failure to acknowledge the full extent of his involvement in the importation of ecstasy, his giving of false evidence at his trial, and his failure to acknowledge that he gave false evidence.
In my opinion, although the conduct in question was outside the course of the opponent’s practice as a lawyer, it was conduct involving a very serious breach of the law, and involving assistance to others to commit a serious breach of the law and the giving of false evidence in court. As such, this conduct manifested qualities incompatible with the conduct of professional practice; and in my opinion, the opponent’s conduct amounted to professional misconduct, in accordance with the discussion of that term in Cummins.
In these circumstances, a mere suspension of the opponent from practice would be inappropriate: no period of time can be specified after which there is a probability that the opponent will be fit for practice. The protection of the public requires removal from the roll.
I do not think it appropriate to make formal declarations of the facts found. The reasons I have given support declarations that the opponent has been guilty of professional misconduct, and that the opponent is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of New South Wales; and also orders that the name of the opponent be removed from the Local Roll of Lawyers of the Supreme Court of New South Wales, and that the opponent pay the claimant’s costs of these proceedings.
Since writing the above, I have read in draft the judgment of Basten JA. To the extent that there is a difference between us as to whether certain aspects of the opponent’s conduct constituted professional misconduct, I do not consider it necessary for this to be resolved in the orders made by the Court; and I am content to support orders in the form proposed by Basten JA.
TOBIAS JA: I agree with Hodgson JA.
BASTEN JA: I agree with Hodgson JA that Mr Sukkar’s name should be removed from the Register and that he should be ordered to pay the Prothonotary’s costs. There remains a question as to the propriety of making declarations in the form sought by the Prothonotary.
I agree with the conclusion reached by Hodgson JA that Mr Sukkar knowingly gave false evidence at his criminal trial. That follows from a consideration of relevant aspects of the evidence identified by his Honour, read in the context of the agreed facts and the essential factual elements established by his conviction, combined with the absence of any explanation which might provide the basis for drawing a different inference.
The approach taken by Mr Sukkar to these proceedings has vacillated. When the matter was first listed for hearing, his solicitor attended for the limited purpose of seeking an adjournment. That concession was granted to allow Mr Baran, who had been briefed in the matter, to prepare submissions and attend the hearing. The written submissions, filed on 17 October 2007 foreshadowed the adducing of evidence to demonstrate that Mr Sukkar had been a model prisoner, since his conviction and sentence and had reasonable prospects for parole in 2010. He also sought to rely upon the character evidence tendered in written form before the sentencing judge. However, he has not given evidence before this Court, nor attended the hearing of these proceedings brought by the Prothonotary. The evidence which he gave at his trial, which sought to provide an innocent explanation of this conduct, was clearly rejected by the jury. It should be inferred, in the absence of any basis for a contrary conclusion, that his evidence was false and known to be false.
The seriousness of the offence is sufficiently reflected in the prescribed maximum penalty and the sentence imposed in the District Court and upheld by the Court of Criminal Appeal. Those factors are sufficient to demonstrate that the practitioner is not a person of good fame and character, despite the subjective evidence given in the criminal proceedings and the evidence of subsequent good works. In the written submissions presented in this Court, reference was made to the judgment of Smart AJ in the Court of Criminal Appeal. His Honour (in the minority) would have imposed a lesser sentence, in large part because of the subjective features of the case. Nevertheless, his Honour noted that Mr Sukkar’s “career as a solicitor has been destroyed”: Regina v Sukkar [2005] NSWCCA 54 at [214]. (Even on his Honour’s approach, a sentence of 11 years imprisonment with a 7 year non-parole period was required.) I agree with his Honour’s assessment of the professional consequences of the conviction. A declaration that Mr Sukkar is not of good fame and character should be made. Knowing involvement in a crime of such seriousness is and should be declared to be inconsistent with the qualities of integrity and willingness to comply with the law which form essential prerequisites of character for a legal practitioner.
Whether his conduct constitutes professional misconduct is, however, a separate question. The conduct which constituted the criminal offence did not take place in the practice of law, nor in circumstances in which a lawyer, perhaps as a litigant, engages in activities closely related to legal practice: see, eg, In re Thom; Ex parte The Prothonotary (1962) 80 WN (NSW) 968 at 969 (Herron CJ, Walsh and Wallace JJ agreeing); New South Wales Bar Association v Maddocks (unrep, NSWCA, 23 August 1988) discussed in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [45]-[48].
Two particular incidents arose in Maddocks, which were the subject of consideration by this Court. The first involved a business relationship with a Mr Logan. Pursuant to that relationship, Mr Maddocks had the use of a car which, whilst being driven by his son, was substantially damaged. The car was uninsured at the time, but Mr Logan sought to take out insurance and claim that the damage occurred thereafter. Subsequently apparently unrelated civil litigation was commenced by Logan against Maddocks, in the course of which Maddocks threatened to disclose the insurance fraud unless the proceedings were discontinued. The second incident involved an application by Mr Maddocks to be appointed a director of a company, at a time when he was disqualified as a bankrupt.
In Maddocks the three members of the Court addressed the conduct which was outside the barrister’s practice as a barrister, in different ways. Kirby P, after reference to Ziemsv The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 299, noted that some convictions would have no “significance for any professional function” but dismissed the distinction as irrelevant where the subject of the charge was “activity in connection with litigation in the Court”: at p 20.
After referring to the same passage in Ziems, Samuels JA spoke in general terms (in his judgment at p 4):
“It is true in the present case that the threat made against Mr Logan had no connection with any professional function of the opponent. But it cannot for a moment be asserted that it had no significance for the conduct of the opponent’s professional obligations. Deficiencies of character and dishonourable conduct, which might render a barrister unfit to practise, may well manifest themselves in transactions which do not form part of the barrister’s professional life. Acts of dishonesty do not cease to be a professional disqualification because they are perpetrated outside the scope of professional engagements.”
In relation to the incident with Mr Logan, McHugh JA referred to Ziems and stated (judgment at p 7):
“For a barrister to seek to profit from another person’s breach of the criminal law by not reporting it is contrary to the standard of conduct expected of members of a profession so closely involved with the due administration of justice according to law. It constitutes professional misconduct.”
In relation to the failure to disclose his bankruptcy, McHugh JA stated (at p 8):
“However, the question arises as to whether his conduct amounted to professional misconduct? Should his conduct be considered as only that of a private litigant and not as that of a barrister? That is to say, did his failure to disclose to the Court his bankruptcy touch or concern him as a barrister? An analogous problem arose in In Re Thom; Ex parte Prothonotary (1962) … [w]here the Full Court of this State held that a solicitor was guilty of professional misconduct in failing, as required by the then Matrimonial Causes Rules, to disclose his adultery in a suit for the dissolution of his marriage. Likewise the intent of the Opponent to be appointed by the Court as a director, although a bankrupt, should be regarded as professional misconduct since it involves his relationship with the Court.”
While it is true, as explained by Spigelman CJ in Cummins at [36]-[65], that any conduct “which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency”, may be characterised as professional misconduct, it is at least arguable that no purpose is achieved by labelling any conduct of a kind which demonstrates a flaw of character incompatible with membership of the profession as “professional misconduct”: c.f. Cummins at [56]. It is, as the Chief Justice noted in Cummins at [52], a question of usage: nevertheless, the classification loses its significance if applied too broadly.
In the present case, however, the finding that Mr Sukkar gave false evidence in the course of his criminal trial, combined with his failure to provide any explanation in these proceedings, are sufficient to demonstrate misconduct of a kind closely related to legal practice and thus constitute professional misconduct. A declaration to that effect is appropriate, but qualified so as to make clear the basis on which it is made.
The Prothonotary further seeks declarations to the effect that Mr Sukkar engaged in professional misconduct by failing to report the criminal conduct of his associates to law enforcement authorities, whether State or federal. This claim invites consideration of the inter-relationship between the professional obligation of candour and the general law privilege against self-incrimination which would prevent an individual being guilty of misprision of felony in relation to his or her own criminal conduct. These are large questions which were recently adverted to in the context of a medical practitioner making statements to the Medical Board which did not expose the full extent of his criminality: see Health Care Complaints Commission v Wingate [2007] NSWCA 326 at [43]-[50]. To say that a person is disqualified by criminal conduct is one thing; to say that there is some additional professional obligation to disclose criminal conduct in which one is or may become involved is another. It may well be necessary to craft an exception to the obligation of candour in relation to criminal conduct, prior to conviction, but this issue was not considered in the present proceedings and accordingly it is not appropriate to make declarations 1(3) and (5) as proposed by the Prothonotary and set out at [1] above.
So far as the other elements of the proposed declaration with respect to professional misconduct are concerned, there is a distinction to be drawn between the Court recording the findings of fact upon which its operative orders are based and making declarations identifying the legal consequences of such findings. The need to expose those consequences in the form of a declaration should be a recognised purpose of disciplinary orders: see Cummins at [32] (Spigelman CJ, Mason P and Handley JA agreeing). In addition to a declaration that the giving of false evidence constituted professional misconduct, being proposed declaration 1(4), the facts referred to in proposed declarations 1(1) and (2) should be accepted, but as the basis for a finding of lack of good fame and character, rather than professional misconduct.
I would formulate the appropriate orders in this matter as follows:
(1)Declare that Steven Sukkar, having been found guilty upon a charge that he was knowingly concerned in the importation into Australia of narcotic goods (namely, 34.4 kilograms of pure 3,4 methylene-dioxymethamphetamine in an admixture totalling 123.75 kilograms, commonly known as “ecstasy”) and was sentenced to 14 years’ imprisonment with a non-parole period of nine years, is a person who is not of good fame and character.
(2)Declare that Steven Sukkar, in giving evidence on oath in September 2003 that he had not knowingly been concerned in the importation before 1 December 2001, that evidence being false to his knowledge, engaged in professional misconduct.
(3)Declare that Steven Sukkar is not a fit and proper person to remain on the Roll of lawyers of the Supreme Court of New South Wales.
(4)Order that the name of Steven Sukkar be removed from the Roll of lawyers of the Supreme Court of New South Wales.
(5)Order that Mr Sukkar pay the Prothonotary’s costs of these proceedings.
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LAST UPDATED: 30 November 2007
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