The Prothonotary Supreme Court of NSW v Darveniza

[2001] NSWCA 113

Reported Decision: 121 A Crim R 542

New South Wales

Court of Appeal

CITATION:	THE PROTHONOTARY SUPREME COURT OF NSW v DARVENIZA [2001] NSWCA 113
FILE NUMBER(S):	CA 40655/00
HEARING DATE(S):	17 April 2001
JUDGMENT DATE:	27 April 2001
PARTIES :	The Prothonotary Supreme Court of New South Wales - Claimant Paul Matthew Darveniza - Opponent
JUDGMENT OF:	Sheller JA at 1; Powell JA at 19; Hodgson CJ in Eq at 20

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	N/A
LOWER COURT JUDICIAL OFFICER :	N/A

COUNSEL:	G Craddock - Claimant N/A - Opponent
SOLICITORS:	I V Knight - Crown Solicitor - Claimant
CATCHWORDS:	Legal Profession - misconduct, unfitness and discipline - criminal offence - removal of name from Roll
LEGISLATION CITED:	Service and Execution of Process Act 1992 (Cth) Legal Profession Act 1987 (NSW) Mutual Recognition Act 1992 (Cth) Oaths Act 1900 (NSW)
CASES CITED:	N/A
DECISION:	1. Declare that the opponent is not a person of good fame and character; 2. Declare that the opponent is not a fit and proper person to remain on the Roll of Legal Practitioners for the State of New South Wales; 3. Order that the name of the opponent be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales; 4. Order that the opponent pay the claimant’s costs.

THE SUPREME COURT

CA 40655/00

SHELLER JA

POWELL JA

HODGSON CJ in EQ

Friday, 27 April 2001

THE PROTHONOTARY SUPREME COURT OF NSW v DARVENIZA

The claimant sought declarations that the opponent was not a person of good fame and character, and not a fit and proper person to remain on the Roll of Legal Practitioners. The claimant also sought orders that the opponent be removed from the Roll, and be required to pay the claimant’s costs. In 1998 the opponent had been convicted on two drug supply charges. The opponent had been admitted as a barrister in Queensland before being mutually admitted in New South Wales in November 1999. In June 2000 the Queensland Court of Appeal ordered that the opponent’s name be struck from the Queensland Roll of Barristers.

Held: (per Sheller JA, Powell JA and Hodgson CJ in Eq agreeing):

1. By failing to acknowledge these criminal proceedings on his application for a practicing certificate in New South Wales, the opponent demonstrated at best a lack of awareness of professional standards; at worst a willingness to make a deliberately false statement in a statutory declaration.

2. This Court was entirely in agreement with the Queensland Court of Appeal. The evidence presented as to the opponent’s conduct clearly demonstrated that the opponent was neither a fit and proper person, nor of good fame and character.

1992 (Cth)

1987 (NSW)

1992 (Cth)

1900 (NSW)

DECLARATIONS AND ORDERS

1. Declare that the opponent is not a person of good fame and character.

2. Declare that the opponent is not a fit and proper person to remain on the Roll of Legal Practitioners for the State of New South Wales.

3. Order that the name of the opponent be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales.

4. Order that the opponent pay the claimant’s costs.

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THE SUPREME COURT

CA 40655/00

SHELLER JA

POWELL JA

HODGSON CJ in EQ

Friday, 27 April 2001

THE PROTHONOTARY SUPREME COURT OF NSW v DARVENIZA

REASONS FOR JUDGMENT

1    SHELLER JA: By summons filed on 22 August 2000 the Prothonotary of the Supreme Court of New South Wales claimed declarations that the opponent, Paul Matthew Darveniza, “is not a person of good fame and character” and that the opponent “is not a fit and proper person to remain on the Roll of Legal Practitioners for the State of New South Wales”. Orders were sought that the name of the opponent be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales and that the opponent pay the claimant’s costs. When the summons was called on for hearing on 17 April 2001 there was no appearance for the opponent. Service of the summons pursuant to the Service and Execution of Process Act 1992 (Cth) was proved by the affidavit of Barry Frank Lyon sworn on 30 August 2000 and filed in Court on the morning of the hearing.

2    The claimant’s application was supported by his own affidavit sworn on 22 August 2000, the affidavits of Alice Coolican Paul, a solicitor in the employ of the Crown Solicitor, sworn on 6 and 31 October 2000 and 11 April 2001 respectively and the affidavit of Helen Barrett, the Professional Affairs Director of the New South Wales Bar Association, sworn on 30 October 2000. From conversations with the opponent deposed to by Ms Paul it was apparent that the opponent had no intention of appearing before the Court to oppose the making of the declarations and orders sought. The last of these conversations took place on 10 April 2001.

3    After hearing submissions from Mr Craddock of Counsel who appeared for the claimant, the Court made the declarations and orders sought and said reasons would be given later.

4    The opponent is 40 years of age. He was a member of the Queensland Police Force from 1979 to 1993 and served with distinction. In 1994 he graduated in law from Bond University and on 10 April 1995 was admitted to practice as a barrister in Queensland. On 12 October 1999 he served the New South Wales Bar Association, the Legal Practitioners’ Admission Board and the Law Society of New South Wales with an amended notice under the Mutual Recognition Act 1992 (Cth). On 19 October 1999 the opponent was admitted as a legal practitioner of the Supreme Court of New South Wales pursuant to the Mutual Recognition Act.

5    In November 1999 the opponent applied to the New South Wales Bar Association for the issue of a practising certificate under the Legal Profession Act 1987 (NSW). The application consisted of a form and statutory declaration in which the opponent on 10 November 1999 solemnly and sincerely declared that the information and particulars set forth in the application for a practising certificate were true in substance and in fact and made “this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act 1900 (NSW)”. Included in the application form was the following question:

“Are you aware of any facts or circumstances which might give rise to a complaint or disciplinary proceedings against you or which might influence or affect your good fame and character or your fitness to remain a legal practitioner?”

To this question the opponent answered “No”.

6    The opponent furnished to the New South Wales Bar Association a letter dated 1 November 1999 from the Chief Executive of the Bar Association of Queensland confirming that according to the Association’s records no complaint had been made to the Association about the opponent and no order had been made directing his suspension from practice in Queensland nor any proceedings been instituted to strike his name off the Roll of Barristers. The letter went on to say that the Association knew of no facts concerning the opponent which should be disclosed to the Bar Association or to the Court on the hearing of his application for admission in New South Wales.

7 On 17 November 1999 the Executive Director of the New South Wales Bar Association issued a practising certificate in accordance with s32 of the Legal Profession Act entitling the opponent to practise as a barrister until 30 June 2000.

8    On 30 July 1998 and 8 and 9 September 1998 Dowse SM in the Magistrates’ Court at Southport conducted a summary trial of two charges laid against the opponent which the opponent defended. The first charge was that on 26 January 1997 at the Gold Coast, he supplied a dangerous drug, namely methyl dioxide methylamphetamine to one Jeffrey Spencer. The second was that on 27 December 1996 he supplied a dangerous drug, namely methylamphetamine, to Jeffrey Spencer. On 7 October 1998 the magistrate found the opponent guilty on each charge. On each the opponent was “convicted” and fined $1,000. However, the magistrate determined not to record convictions against the opponent. The magistrate said:

“The decision as to whether or not to record a conviction is actually the one with which I am having most difficulty. I regard this offence, as I have said, as a very serious offence. The fact that you are prepared to involve yourself in the supply of a dangerous schedule 2 drug. However, I think I have been persuaded by Mr Kimmins [who appeared for the opponent], that in the circumstances in which you have found yourself the - no previous convictions, as a concession for the service that you have already performed for the people of Queensland, the fact that it was a minor amount involved.
I am persuaded not record a conviction against you today.”

9    The opponent’s appeal against conviction and sentence and a cross appeal against the adequacy of the sentence were both dismissed by Judge Healy QC on 26 March 1999.

10    The nature and outcome of these criminal proceedings made the opponent’s answer to the question in the application form to the New South Wales Bar Association, which I have quoted, insupportable and almost certainly false. As the claimant submitted, no legal practitioner, acting reasonably, could fail to regard the proceedings as germane to the determination of his good fame and character and his fitness to remain a legal practitioner.

11    The Queensland Police Service notified the Barristers’ Board of Queensland that the opponent had been found guilty of the two offences charged. The Barristers’ Board began proceedings to have the opponent’s name struck from the Queensland Roll of Barristers. In the course of that proceeding and in response to evidence concerning the commission of the offences the opponent swore a supplementary affidavit dated 6 June 2000 in which he deposed:

“4. At my trial in the Southport Magistrates Court on 30 July and 8 September, 1998 I gave evidence to the effect that I did not use illegal drugs including the dangerous drug amphetamine. Dowse SM rejected this evidence in her findings. I still maintain my denial that I have ever used illegal drugs of any kind.
5. My main area of practice has been in the area of Liquor Licensing and I had found after my admission to practice in 1995 that attending at nightclubs, restaurants and other licensed premises was helpful to me in the development of this aspect of my practice.
6. The second offence occurred on 26 January, 1997. In early March, 1997 I travelled to Melbourne for the purposes of assisting a friend in the starting of his business in Melbourne. I remained mainly in Melbourne until the early part of August, 1997. I was arrested in September, 1997. After I had returned from Melbourne I did not continue with my previous practice of attending at nightclubs and accordingly I no longer involved myself socially with people who attended at such places.
7. The reason for my ceasing contact with the three persons alleged to have been involved in the offences was that I had decided that I no longer needed to involve myself in going to nightclubs or to socialising with people who frequented such places.
8. Bradley Lund, Daniel Johns and even the undercover police officer Jeffrey Alan Spencer all became known to me through my attendance at licensed premises. I had no contact with these people subsequent to March, 1997.
9. I am not a user of dangerous drugs and have never been.
10. I accept that involvement in illegal actions such as the possession of or use of dangerous drugs would inevitably be harmful to myself and to others. I also clearly understand that any such involvement could call into question my fitness to practice [sic] as a barrister. The process of being charged found guilty and now being subject to an application to this Honourable Court to have my name removed from the roll of barristers has even further emphasised to me the seriousness which the profession and the Court regard involvement in any illegal and socially harmful practice. It has been a matter of great and continuing regret to me that the publicity surrounding my being charged and dealt with by the Courts may have brought the profession into some degree of disrepute.
11. I wish to assure the Court that I will not involve myself with drugs or with any activity which would call into question the practice of my profession. I still practice [sic] on the Gold Coast and am aware that any activity of mine will be the subject of close scrutiny by fellow legal practitioners.
12. All the facts and circumstances herein deposed to are within my own knowledge and belief save such as are deposed to from information only and my means of knowledge and sources of information appear on the face of this my Affidavit.”

12    The Barristers’ Board’s application came before the Queensland Court of Appeal comprising McMurdo P, Thomas JA and White J in June 2000. Thomas JA gave the principal judgment with which the other members of the Court agreed. After quoting in part from the passage in the opponent’s affidavit of 6 June 2000 which I have quoted, Thomas JA said:

“[6] In reply the Bar Association filed an affidavit by Spencer (the undercover police officer) refuting those allegations. With tapes to support his evidence he said that his association with the respondent continued until 17 July 1997, giving particularised accounts of eight meetings with the respondent over that period in circumstances highly discreditable to the respondent. During that time Spencer posed as and was plainly taken by the respondent to be a drug dealer. In the course of their meetings the respondent offered money-laundering services to Spencer. He also attempted to promote sales of ephedrine (a controlled substance) to Spencer and actually sold Spencer 300 tablets for $1,250. His conversations with Spencer will be mentioned in more detail later.
[7] When the matter was called on again counsel for the respondent did not seek to cross-examine Spencer or to challenge the material in his affidavit.
[8] It would seem then that in addition to the particulars upon which the case was originally brought, the respondent has been shown to have lied to the Court in endeavouring to present himself as a reformed character from very soon after the second conviction, and that serious reflections on his character flow from the nature of his dealings and attempted dealings with Mr Spencer whom he believed to be a drug dealer. The worst sting would seem to lie in the tail of this case.”

13    Thomas JA set out the facts in the Barristers’ Board’s proceedings in the Court of Appeal under four heads “Two Drug Offences”, “Conduct in Obtaining Practice Certificate in New South Wales”, “Untruthful Affidavit”, of which his Honour said “his affidavit [of 6 June 2000] cannot be explained as a mere error in relation to dates. It was a deliberate attempt to present an untrue picture to the Court” and “Conduct with Spencer February to July 1997”. After reviewing the principles applicable in striking off applications his Honour said:

“ Level of seriousness of respondent’s conduct
[39] The four principal areas of misconduct will now be considered.
[40] The misconduct revealed by the respondent’s convictions has really been overtaken by the more serious conduct and attitude revealed in the course of his continued association with Spencer. His conduct on the particular occasions in relation to which charges were laid must be seen as part of a wider opportunistic involvement in the drug culture. However, even standing alone, the conviction of a barrister on such offences is a matter for some concern by the court.
[41] The drugs which the respondent was prepared to assist others to obtain are the origin of much suffering in the community. Participation in the furtherance of usage of such drugs is seriously regarded, even if the offence is toward the lower level of seriousness for such offences. An affidavit of Mr Brown, an expert pharmacologist, demonstrates the nature and effect of the drugs in question. These include their high rating for dependence liability, and a range of toxic results from their abuse, ranging from hyperactive reflexes to psychotic effects. Among other undesirable effects are those upon the drivers of motor vehicles. Experience in the criminal courts all too frequently reveals methylamphetamine or ‘speed’ as a potent factor in serious crimes including homicide and armed robbery. I mention these matters to emphasise that the use of such drugs is generally seen by responsible persons in the community as a serious problem and particularly by persons interested in the maintenance of law and order.
[42] On the respondent’s behalf it was submitted that the relevant acts happened in private, and that such acts do not scandalise the public unless and until there is conviction. That submission is far from convincing. The same comment might be made of any crime (including murder) committed in private. What is relevant are the acts committed by the respondent and the extent to which they reflect upon his character as a barrister who is expected to play an important role in the administration of justice.
[43] The conduct in question plainly revealed irresponsible and antisocial behaviour. But this pales into insignificance in the light of his subsequent conduct.
[44] His conduct in denying awareness of any circumstances that might influence or affect his good fame and character when seeking admission in New South Wales reveals at best a lack of awareness of the standards of the profession. At worst it was a deliberate false statement in a statutory declaration. Of course a question of opinion is involved in the answer and there may be marginal cases where it is difficult for a practitioner or aspiring practitioner to know whether a conviction of a minor offence needs to be mentioned. I cannot think however that recent convictions by a practising barrister for supply of methylamphetamines could fairly be regarded as something that could not influence or affect his good fame and character. Standing alone this conduct might be regarded as an error or as attracting no more than a mild disciplinary response. But in the context of his other misconduct it is just another untoward demonstration of opportunism.
[45] The swearing of the respondent’s supplementary affidavit was a deliberate attempt to present an untrue picture to the court. Quite apart from any question of perjury, ‘a barrister does not lie to a judge who relies on him for information’. ( Clyne v New South Wales Bar Association (1960) 104 CLR 186, 200 per Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ). Such a rule is fundamental. His deception in the context of the present application is no less serious than deceptions in the course of practice that are condemned in the above statement.
[46] The respondent’s conduct in June 1997 really speaks for itself. It shows a person who was willing to promote crime including money-laundering, and who was willing to fraternise with a known drug dealer with a view to profit. It shows persistence in attempting to sell unlawful money-laundering, the sale of the controlled substance ephedrine, and even some aggression in his attempt to obtain further sales. It shows a picture, far more tellingly than the limited convictions reveal, of an easy familiarity with the drug scene and of his willingness to make money from it. It shows a person with no respect for the law.
Conclusion
[47] The respondent who is 39 years old has practised, mainly from the Gold Coast since his admission in April 1995. He has continued to practise after his arrest in September 1997 and after his conviction in October 1998. He had no obligation to cease practice unless restrained, and no proceedings were brought to restrict his activity until the present application was filed last March. He was formerly a member of the police force (1979-1993) where he served with distinction. He has deposed that he is a respected member of the legal community on the Gold Coast and is regularly sought by ‘professionals’ seeking advice in respect to matters pertaining to liquor licensing and gaming law, and that he employs three persons at his chambers to assist in his workload. Three Gold Coast solicitors who brief him have filed affidavits expressing their confidence and belief in his knowledge of the law, professionalism and ability as an advocate. No testimonial was filed on behalf of any member of the Bar.

[48] The conduct revealed in this case by the respondent is inconsistent with the high standards expected of barristers. The misconduct shows utter disrespect for the law and is serious enough to demonstrate that the respondent’s character is unsuitable for legal practice. In addition, it might be thought that his misconduct (including offers to perform money-laundering) would readily transpose into his professional activities. Deprivation of the right to practise is a serious matter, but in the circumstances the only appropriate order that can be made is one of disbarment.”

The Court of Appeal ordered that the respondent’s name be removed from the Roll of Barristers.

14    In his reasons for judgment, Thomas JA referred to the fundamental rule that a barrister does not lie to a judge who relies on that barrister for information. The opponent’s conduct in 1997 in seeking to promote crime including money-laundering and in fraternising with a known drug dealer with a view to profit, the sale of the controlled substance ephedrine and some aggression in his attempt to obtain further sales, showed a person with no respect for the law. At best his negative answer to the New South Wales Bar Association on his application for a practising certificate revealed a lack of awareness of professional standards and at worst a deliberate false statement in a statutory declaration.

15    On 6 July 2000 the New South Wales Bar Association sought from the opponent an explanation for this negative answer. On 17 July 2000 the opponent replied as follows:

“I can state that it was my honest and reasonable belief that the circumstances surrounding the finding of guilt by Dowse SM did not and would not have given rise to a question concerning my fitness to practise. I hope to be able to substantiate this belief by outlining the facts of the matter for the information of the Council.
From the day I was charged in September 1997 to the date my appeal was determined in the District Court in March of 1999, I kept the executive of the Bar Association of Queensland fully informed by letters in writing, on no less than 3 occasions. The last letter to the Qld Bar Assn. was on the 29th of March 1999 (a copy is attached), which clearly indicated the result of the court action and the comments of the Appeal Judge in that instance. I was informed by my Lawyers and it was also my understanding that owing to the order of the court that no conviction be recorded against me in the matters, I would not face disciplinary proceedings.
Some 7 months later, I had received no advice from either the Supreme Court or the Qld Bar Assn. that a complaint had been lodged or they were considering and [sic] further action. My belief was further confirmed by the very fact that no complaint had been lodged against me at the Supreme Court, Brisbane when I applied for a certificate of fitness, which was issued on the 15th September 1999 (copy attached). The ultimate confirmation was the letter issued by the Qld Bar Assn. on the 1st of November 1999 which clearly stated that they believed that ‘no facts or circumstances which should be disclosed’ (copy attached).
I ask that the Council take into consideration the facts as stated above and understand that my decision not to disclose was not an attempt to deceive the Council, but a genuine belief that circumstances I found myself in, would lead a reasonable person, to come to the same conclusion.”

16    The claimant submitted that this could be contrasted with paragraphs [9] and [10] in the opponent’s affidavit of 6 June 2000 in the Queensland Court of Appeal which I have already set out.

17    For my part, I would not accept the opponent’s statement that he had an honest and reasonable belief that the circumstances surrounding the finding of guilt by Dowse SM did not and would not have given rise to a question concerning his fitness to practise. If this was his belief it demonstrated a basic failure to appreciate the standards of behaviour required of a legal practitioner.

18    I have had the benefit of reading the reasons for judgment in the Queensland Court of Appeal. I agree with them entirely. The evidence presented in this Court showed that the claimant was entitled to the declarations and orders sought which the Court has made.

19    POWELL JA: I agree with Sheller JA.

20    HODGSON CJ in EQ: I agree with the judgment of Sheller JA.

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