The Prothonotary of the Supreme Court of NSW v “A” (a pseudonym)

Case •

[2023] NSWCA 258

•

27 October 2023

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: The Prothonotary of the Supreme Court of NSW v “A” (a pseudonym) [2023] NSWCA 258
Hearing dates: On the papers
Date of orders: 27 October 2023
Decision date: 27 October 2023
Before: Ward P; Payne JA; Stern JA
Decision:

1. Pursuant to ss 7(a) and 8(1)(d) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the name of the respondent and the name of the victim of the respondent’s offending conduct is suppressed (unless and until the victim gives consent under s 578A of the Crimes Act 1900 (NSW) to disclose the victim’s identity).

2.   Declare that the respondent is not a fit and proper person to remain on the Roll of Australian Lawyers.

3.   Order that the name of the respondent be removed from the Roll of Australian Lawyers.

4.   Order that the respondent pay the costs of the applicant of these proceedings.

Catchwords:

LEGAL PRACTITIONERS – solicitors – personal misconduct – criminal convictions – misconduct involving aggravated sexual abuse – whether the practitioner not “a fit and proper person” to remain on the roll – whether the practitioner “likely to be unfit for the indefinite future” – orders not opposed

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7(a), 8(1)(d)

Crimes Act 1900 (NSW), ss 61m(2), 578A

Legal Profession Uniform Law 2014 (NSW), s 264(1)

Cases Cited:

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1

Council of the Law Society of New South Wales v Green [2022] NSWCA 257

Council of the Law Society of New South Wales v Parente [2019] NSWCA 33

Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163

Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428

Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135

Ex Parte Tziniolis; Re The Medical Practitioners Act [1967] 1 NSWR 357; (1966) 67 SR (NSW) 448

Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630

New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284

Prothonotary of the Supreme Court of New South Wales v Hansen [2023] NSWCA 189

Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325

Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93

Ziems v The Prothonotary of the Supreme Court of New South Wales (1975) 97 CLR 279; [1957] HCA 46

Category:Principal judgment
Parties: The Prothonotary of the Supreme Court of NSW (Applicant)
“A” (Respondent)
Representation:

Counsel:
CO Gleeson SC (Applicant)
P Gibson (Respondent)

Solicitors:
Crown Solicitor for NSW (Applicant)
Nyman Gibson Miralis (Respondent)
File Number(s): 2023/181984
Publication restriction: Pursuant to ss 7(a) and 8(1)(d) of the Court Suppression and Non-Publication Orders Act 2010 name of respondent and the name of the victim is suppressed (unless and until the victim gives consent under s 578A of the Crimes Act 1900 (NSW) to disclose the victim’s identity) in order to protect the identity of the victim

JUDGMENT

  1. THE COURT: The Prothonotary of the Supreme Court of New South Wales, by summons filed on 7 June 2023, seeks declaratory and other relief for the removal of the name of the respondent from the Roll of Australian Lawyers (the Roll) on the basis that the respondent is not a fit and proper person to remain on the Roll. The application is brought invoking the Court’s inherent jurisdiction and powers with respect to the control and discipline of local lawyers (and see s 264(1) of the Legal Profession Uniform Law 2014 (NSW)).

  2. The respondent does not oppose the relief sought and has adduced evidence to the effect that he has no intention of renewing his practising certificate or of making an application for re-admission as a lawyer. The respondent accepts that it is necessary for the Court to determine whether he is not a fit and proper person to remain on the Roll and that, in so doing, the Court will need to examine the circumstances of his conduct, make a finding of fact and address the basis on which the orders sought are made (in this regard, see Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 per McColl JA, with whom Campbell JA and Meagher JA agreed; Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 at [10]-[11] per Hodgson JA, with whom Beazley JA, as her Excellency then was, and McColl JA agreed).

  3. The conduct on which the applicant relies for the contention that the respondent is not a fit and proper person to remain on the Roll relates to the respondent’s conviction of a number of counts of aggravated indecent assault of a minor. Pursuant to s 578A of the Crimes Act 1900 (NSW) (the Crimes Act), publication or broadcast of the name of, or any matter which could identify, the complainant of such an offence is prohibited without the complainant’s consent. Accordingly, on 19 June 2023, the Court of Appeal Registrar made an interim suppression order in respect of the names of the respondent and of the victim of the offending until the conclusion of the proceedings or until the victim gives consent under s 578 to the disclosure of her identity.

  4. The applicant now seeks, and the respondent does not oppose, a suppression order under ss 7(a) and 8(1)(d) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) in respect of the name of the respondent and the name of the victim of the offending in order to protect the identity of the victim. Such an order is clearly appropriate having regard to the prohibition on disclosure of anything that may identify the complainant in a prescribed sexual offence, which includes the present offences. Insofar as there is a requirement to specify the duration of such an order, given the prohibition in s 578 of the Crimes Act the suppression order should operate unless and until the victim consents to the publication of her identity.

Respondent’s offending conduct

  1. In support of the present application, the Prothonotary has affirmed an affidavit on 10 July 2023 and has tendered a statement of agreed facts signed by the parties on 10 July 2023.

  2. The respondent’s offending conduct consisted of a pattern of sexual abuse of the respondent’s daughter over a period of over a year from 2004, while the victim was aged seven and eight years old. The offending conduct comprised at least 10 occasions, between 2004 and 2005, over a period during which the respondent was separating from the victim’s mother. On each occasion, the offending occurred on the bed on which the respondent was sleeping. The conduct involved removing the victim’s clothing, tickling her on her back, stomach, chest and legs, and touching her on her genital area either over her pyjamas or after her clothing was removed. When touching the victim the respondent asked her whether the tickling felt “good”.

  3. In September 2016, the victim disclosed the offending to her counsellor and then to her siblings, who disclosed it to her mother. On 26 September 2016, the respondent was confronted with the offending by the victim’s mother and admitted to touching the victim “inadvertently”.

  4. On 26 July 2017, the respondent was legally recorded by a surveillance device having a conversation in which he disclosed the offending but said that the victim “would want” him to tickle the victim on her genital area, that the victim never indicated she was uncomfortable with the touching, and that described the offending as a “ritual” that was a way of “connecting” with the victim.

  5. On 4 August 2017, the respondent participated in an electronically recorded interview with New South Wales Police, in which he admitted to touching the victim on the buttocks or in between her legs but denied that the touching was sexual and alleged that it was something she “enjoyed”.

  6. On 26 November 2020, the respondent pleaded guilty to seven counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act. When sentenced, four other offences of aggravated indecent assault in contravention of that section were taken into account on two Form 1 documents.

  7. Evidence was led at the sentencing hearing that the victim has suffered severe mental health conditions and that she attributed her emotional, psychological and physical distress to the abuse she experienced at the hands of her father.

  8. Evidence was also led at the sentencing hearing that the respondent has a long history of depression and that it was likely that he suffered from that condition during the period of the offending. The applicant notes that that evidence did not go so far as to attribute the offending to the respondent’s mental state in any causal sense.

  9. At the time of the offending, and when it was disclosed and charged, the respondent was a partner in a successful legal practice. Evidence was led at the sentencing hearing as to the respondent’s general character by a number of friends, who said that they were shocked on learning of the respondent’s conduct and that they had never observed any such behaviour and trusted the respondent with their own children. Evidence was also led as to the respondent’s professional character by colleagues as to his leadership in his professional field and his general reputation as an honest, ethical and trustworthy lawyer.

  10. The medical evidence and all of the testimonials tendered at the hearing on sentence confirmed the respondent’s expressions of remorse for the offending. The respondent also wrote a letter to the victim in 2016 or 2017 in which he did not admit to the offending but expressed his sorrow for the hurt he had caused her.

  11. The respondent pleaded guilty to the offences and was convicted and sentenced in the District Court of New South Wales on 26 November 2020 to an aggregate term of imprisonment of four years with a non-parole period of two years. The respondent filed an application for leave to appeal against the sentence. Leave was granted and the appeal was dismissed on 3 December 2021.

  12. The respondent did not renew his practising certificate in New South Wales after 1 July 2018, following disclosure to the New South Wales Law Society on 10 August 2017 that he had been charged with the criminal offences to which he ultimately pleaded guilty. As noted above, the respondent adduced evidence on the present application as to his intention not to make an application to renew his practising certificate nor for re-admission as a lawyer.

Relevant principles

  1. As noted above, the applicant invokes the Court’s inherent jurisdiction and powers with respect to the control and discipline of local lawyers, which jurisdiction has been preserved by s 264 of the Legal Profession Uniform Law2014 (NSW). The relevant principles on such an application have been considered recently by this Court in Prothonotary of the Supreme Court of New South Wales v Hansen [2023] NSWCA 189 (Hansen).

  2. The ultimate issue, which must be determined as at the date of the hearing, is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner’s name presently appears (see A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 (A Solicitor) at [14]-[15], [21] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ). Whether a practitioner is of “good fame and character” is also to be determined as at the date of the hearing (Ex Parte Tziniolis; Re The Medical Practitioners Act [1967] 1 NSWR 357; (1966) 67 SR (NSW) 448 (Tziniolis) at 475 per Holmes JA, with whom Wallace P agreed).

  3. It is necessary to determine the question not only whether the respondent is unfit to practice but also whether the practitioner is likely to remain so.

  4. Where the circumstances of the offending and the prospects of rehabilitation or redemption point to an opportunity for re-admission in the foreseeable future, an order for removal may not be appropriate (see Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [53]-[54] (Campbell JA, with whom Hodgson and Campbell JJA agreed); Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 (Parente) at [33] (Basten and Meagher JJA), [44] (Brereton JA); Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 at [99] (Leeming JA, with whom Macfarlan and McCallum JJA agreed); Hansen at [18] (Gleeson, Kirk JJA and Basten AJA)).

  5. Where serious misconduct has occurred in the past, one does not assume (in the absence of evidence to the contrary) that a change in a lawyer’s character has occurred merely by the absence of repetition of that conduct (see Tziniolis at 460-461 (Walsh JA); Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637 (Gleeson CJ, Meagher and Handley JJA); Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428 at [40]-[41] (Meagher JA, with whom Beazley P and Leeming JA agreed)).

  6. The present application falls within the category of case in which the offending conduct is personal misconduct rather than conduct in connection with the legal practitioner’s professional functions. In Ziems v The Prothonotary of the Supreme Court of New South Wales (1975) 97 CLR 279; [1957] HCA 46 (Ziems), Fullagar J considered (at 290) that the “whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct” and said that “[g]enerally speaking, the latter must have a much more direct bearing on the question of a man’s fitness to practise than the former”.

  7. It has nevertheless been recognised that criminal conduct, and the penalties imposed for that conduct, are relevant to the consideration of a person’s fitness to practise as a legal practitioner because of the importance of the honesty and integrity expected of the legal profession (see New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [19]-[20] per Spigelman CJ) and the need to maintain the confidence of the community in the administration of justice (see Parente at [26] per Basten and Meagher JJA).

  8. In A Solicitor, the High Court found that a practitioner’s conviction for four offences of indecent assault on two daughters of a woman with whom he was in a domestic relationship were sufficiently remote from his professional practice as not to warrant removal from the Roll (see at [34]). However, in that case, as noted by the Court in Hansen, the practitioner’s original sentence was one of imprisonment for three months and the sentence was reduced on appeal to a good behaviour bond for three years. The Court in Hansen observed (at [20]) that an apparently lenient sentence should put the court on enquiry as to the circumstances, contrasting this with a severe sentence which it was said would have its own consequences because the public would not readily have confidence in a practitioner who is sentenced to a lengthy period of imprisonment.

  9. In Hansen, the Court ordered that the practitioner be removed from the Roll following multiple convictions for sexual activity with children in Vietnam and the Philippines, and the production and possession of child pornography for which the practitioner was sentenced to an effective aggregate sentence of 19 years. The Court noted the patent seriousness of the misconduct; that it was neither isolated nor opportunistic, taking placed over some four years, and that it was carefully planned (to manage the likelihood of suspicions being raised (see at [21])). The Court also took into account the age of the children concerned, noting that the harm which may be done to young children by sexual abuse by adults cannot be minimised (see at [22]). Also there relevant were matters such as the duration of the sentence and the age of the practitioner on his expected release (see at [25]-[27]). The Court said (at [28]):

More importantly, the repeated and prolonged exploitation of young boys in Vietnam and in the Philippines who were between the ages of 10 and 14 demonstrates such a serious deficiency of character as to render the practitioner currently and for the foreseeable future a person who is not a fit and proper person to be a legal practitioner.

Determination

  1. In the present case, the applicant accepts that the conduct bore no connection to the practice of law but submits that the serious nature of the offences and the status of the victim are such as to require disqualification from practice. For the following reasons, we agree.

  2. The respondent was admitted as a legal practitioner in the Supreme Court of New South Wales nearly 40 years ago. He was also admitted to practice in Queensland, the Australian Capital Territory and Victoria. The evidence adduced at the sentence hearing was that the respondent’s reputation as a legal practitioner was that of a person of good character, who enjoyed the respect of his colleagues. The respondent had no previous convictions.

  3. The offending conduct was serious criminal conduct. It involved the indecent assault, over a period of over a year, of a very young person in a position of vulnerability and dependence on the respondent. As the sentencing judge found, it involved a betrayal by the applicant of his position of trust. As the sentencing judge also found, it constituted very serious offending. The maximum sentence for such an offence (10 years imprisonment for each count) reflects the seriousness of the offending. As noted above, the sentence imposed was an aggregate sentence of four years (and the appeal therefrom was dismissed). The circumstances of the present case are thus distinguishable from those in A Solicitor.

  4. The applicant submits, and we accept, that in the circumstances of this case the offending was so serious and of such a character that it is incompatible with the maintenance of confidence in the integrity of a legal practitioner and does not meet the standard of behaviour to be expected of a member of the legal profession. As set out by Dixon CJ in Ziems at 285-286:

If counsel is adequately to perform his functions and serve the interests of his clients, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment upon him which must ordinarily mean the loss by him of the standing before the court and the public which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and responsibilities of an advocate. There may be convictions for a crime of which this is not true, but I cannot think that the present is one of them.

  1. Those observations apply equally to a solicitor such as the applicant. The applicant’s offending conduct reveals defects of character that are incompatible with the standards and behaviour required of a member of the legal profession.

  2. Although the respondent pleaded guilty to the charges, it appears that he sought at first to minimise the conduct (and to suggest it was consensual), which indicates a lack of insight or perception at least at that stage as to the misconduct in question. The applicant suggests that this tempers the effect of the statements of remorse and contrition offered to the Court in his case on sentence. However, the sentencing judge was of the view, which we accept, that the respondent had demonstrated clear remorse and had accepted responsibility for his criminal conduct and acknowledged the significant harm caused to the victim by his conduct.

  3. Another relevant factor as to the character of the offending is the profound degree of harm suffered by the victim as recorded in the remarks on sentence, which we do not here need to recount. As noted, the applicant accepts that significant harm was caused to the victim.

  1. The respondent’s term of imprisonment will expire on 25 November 2024. However, the applicant contends that it would be incongruous to the disapprobation reflected in the imposition of that sentence (even if the respondent is currently on parole) to conclude that the respondent could retain the confidence of the community in the administration of justice if he were permitted to remain on the Roll. For the reasons set out above, we accept that submission.

  2. The respondent has not filed and served any evidence in these proceedings in support of a contention that he is of good fame and character or that steps have been taken that would give confidence that reformation is a future possibility. As noted above, the mere effluxion of time without further adverse complaint does not amount to a reformation of character.

  3. Having taken into account all of the above matters, we are satisfied that the respondent is not a fit and proper person to remain on the Roll having regard to the offending conduct and his lack of good character; and that such unfitness is likely to continue for the foreseeable future.

  4. As to costs, it is appropriate that the respondent be ordered to pay the applicant’s costs of these proceedings. The proceedings could not be resolved by consent, it being necessary for the Court to examine the circumstances of the conduct carefully before making its decision. Costs should follow the event (see Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [97]-[100] (Ward P, Kirk JA and Griffiths AJA)).

Orders

  1. For the above reasons, the Court orders that:

  1. Pursuant to ss 7(a) and 8(1)(d) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the name of the respondent and the name of the victim of the respondent’s offending conduct is suppressed (unless and until the victim gives consent under s 578A of the Crimes Act 1900 (NSW) to disclose the victim’s identity).

  2. Declare that the respondent is not a fit and proper person to remain on the Roll of Australian Lawyers.

  3. Order that the name of the respondent be removed from the Roll of Australian Lawyers.

  4. Order that the respondent pay the costs of the applicant of these proceedings.

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Decision last updated: 27 October 2023

Most Recent Citation
Cases Citing This Decision

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Prothonotary of the Supreme Court of New South Wales v Armstrong [2024] NSWCA 98