Appellant v Respondent

Appellant v Respondent - [2005] VSC 332 - VSC 2005 case summary — Zoe

[7]

7 Their Honours also referred to Allasch v Maunz.[2]

8 Accordingly, on this appeal the Court makes its decision based upon the evidence placed before it which may include evidence additional to that adduced before the Board. This Court is not concerned with whether or not the Board has or has not made any error of fact or law and the appeal does not depend upon showing any error at first instance. In addition, I am not concerned with the evidence that was placed before the Board, unless of course it is admitted in evidence on this appeal. The viva voce evidence given below may be admitted into evidence on this appeal for the purpose of establishing an admission or a prior inconsistent statement. Whilst I have read the reasons for the Board's refusal of the certificate, this Court decides the matter afresh, unfettered by anything that the Board has said. Because of the Board's wide experience, I note its conclusion. But having said that, in the end the appeal must be decided by this Court on the evidence before it.

9 Two appeal books were prepared for the purposes of this appeal and the parties agreed to tender and place before this Court all documents in Appeal Book 1 and all documents in Appeal Book 2 save and except for the transcript of the proceedings before the Board in October and December 2004. In addition, Mr A. Street SC, who appeared with Mr Latham for the appellant, tendered two additional affidavits, one of the appellant and another from Peter Edward Wyatt, an accountant who gave evidence relating to character. The appellant gave viva voce evidence and was cross-examined. In the course of his cross-examination, Mr Robin Brett QC for the Board tendered a number of documents.

Board of Examiners and Admission to Practise

10 As stated, the Board was established by s.338 of the Act and its functions are stated in s.341(1). It has the powers conferred on it by the Act or any other Act, "including by the admission rules". Rules were made on 17 December 1999 and came into operation on 1 January 2000. They are the Legal Practice (Admission) Rules 1999, S.R. No. 144/1999 ("the Rules").

11 Part IV of the Rules deals with qualifications for admission. The appellant was required to establish that he had the necessary tertiary qualifications and had completed the practical legal training requirements.[3] He has satisfied those qualifications for admission. In addition, he was required to establish as a qualification:

[11]

14 It can be seen that the onus rested upon an applicant for admission to disclose any matters which were relevant to the question of his reputation and character and whether he was a fit and proper person to be admitted to practise as a barrister, solicitor and officer of the Court. Clearly the obligation was not confined to convictions for criminal offences. It required the provision of any information which included any charges of criminal offences.

15 The Board is required by Rule 4.11 to consider each application and if the Board is satisfied that the applicant meets the requirements of the Rules, give "the applicant a certificate in the form set out in Schedule 14."[6]

16 The Board is empowered by reason of Rule 4.13 to make any enquiries it thinks fit concerning any application, including "the fitness of the applicant to be admitted in Victoria".

The Appellant's Conduct and Reputation

17 The appellant, in the past, has been convicted of criminal offences of dishonesty, and has been sentenced to a period of imprisonment. In addition he has been charged with a number of offences of dishonesty between 1989 and 2003 involving alleged activities of deception, fraud and dishonesty between 1989 and the year 2000. He has given evidence on oath before tribunals which led to charges of perjury against him, which were dismissed. Moreover, in 1995 a judicial officer described him as a witness who was verbose, argumentative, whose evidence in parts was incredible and who could not be accepted "uncritically as a witness of truth".[7] I interpolate to observe that the appellant gave evidence on this appeal admitting his wrongdoing and dishonesty in the past and informing the Court that he was a changed person and would not indulge in any dishonest or wrongful conduct in the future. Of course in considering the question of his fitness, the Court is bound to take into account his conduct in the past. This establishes his reputation and character particularly in relation to honesty and fair dealing. If his reputation, based as it is on his past, shows he is a man who is dishonest and cannot be trusted he must show that today his past is behind him, he has turned over a new leaf and can be trusted to pursue an honest career in the law. The appellant's history can be stated in chronological form:

[44]

18 The chronology shows that the appellant commenced his criminal career when he was aged somewhere between 18 and 21 years. The English convictions occurred in relation to activities over a two year period according to an affidavit sworn by him on 7 March 2002, namely, during the period from 1974 to 1976 when he was aged between 19 and 21 years. Each charge involved dishonesty and some involved deception. He has sworn on a number of occasions that he got into bad company, was naïve and vulnerable and this explains his criminal conduct over this period. However, it is noted that he pleaded guilty to four charges of obtaining a benefit payment from the Department of Health and Social Security by falsely representing that his children were living with him and his wife. He informed the Court on this appeal that he was not married at the time and did not have any children. This raises a real question as to his assertion that he was led by others. Indeed, he admitted on this appeal that one of those who was also involved in criminal conduct was his brother. At the age of 22 he was sentenced to four years' gaol and served two years. His level of criminality was serious and grave as the offences occurred over a two year period. This course of conduct, albeit at a young impressionable age, raises a presumption against his fitness for the profession of lawyer. The public interest demands that a lawyer is a person who is honest, honourable and trustworthy. In an application such as the present, the Court must consider the interests of the Court, the applicant, the profession and above all the public[8]. To overcome the presumption based on past conduct the appellant has to show that he has learnt from his past, has pursued a blameless career and life and is a person who is honest and trustworthy.

19 For the next 11 years he did not fall foul of the law. However, in 1989 he was charged with other offences, followed by the airline tickets charges, perjury charges, ANZ charges and the Centrelink frauds. All these charges involved dishonesty of a serious nature. He has been acquitted of three groups of charges and the State Bank matter in 1989 did not proceed. On the other hand he pleaded guilty to an offence involving dishonesty arising out of the sale of invalid airline tickets in 1997. The course of conduct over the period from 1989 to 2000 reinforces the presumption against admission based on his English convictions and the 1997 finding. Whilst he is entitled to rely upon the presumption of innocence and the judgment of acquittal the fact is that he is a person who has been charged with crimes of dishonesty in respect of events over a period from 1989 to 2000. It is clear from the form of affidavit in Schedule 8 that the fact of him being charged with crimes of dishonesty is relevant to the questions of good character, reputation and fitness and propriety to be admitted to practise and must be disclosed to the Board. The very fact that he was charged with offences of dishonesty over a substantial period of time places a heavy burden upon him to persuade this Court on the appeal that he is a man of good character and reputation and a fit and proper person to be admitted to practise as a lawyer. A matter of substance is that there is a pattern of conduct which raises real questions concerning the honesty of the appellant. Another disturbing feature is that he allows himself to be put into a position where allegations of dishonesty are made against him. Having gone through a perjury trial, he allowed himself whilst an employee of the ANZ to be involved with a person who stole money from the bank. He told the Court he knew his accomplice and had in the past assisted the person in relation to criminal charges brought against him. He lost his job in May 1998, however, over the next two years he obtained a social service benefit which led to charges of obtaining money from Centrelink by deception. All these matters have to be carefully weighed giving, of course, full effect to the presumption of innocence and his acquittals, in determining whether he is a person who is fit and proper to be admitted to practise.

20 The question does arise, what effect should be given to the fact that an applicant for admission has been charged with criminal offences and acquitted. The appellant's counsel submitted that full effect must be given to the acquittal and no adverse inference should be drawn against the appellant by reason of the fact that he has been charged with criminal offences concerning dishonesty. Counsel for the Board referred to the text The Victorian Solicitor by Heymanson at page 235, where the author discussed the question in the context of striking a practitioner off the roll. It was submitted that the same principles apply to an application for admission. The learned author notes that it is the offence with which the Court is concerned and not whether the practitioner has been convicted or acquitted. In the case of Re Crick[9], a practitioner who was the Minister of the Crown was found by a Royal Commission to have accepted bribes. He was twice brought to trial for the criminal offence but on each occasion the jury disagreed and the Crown ultimately entered a nolle prosequi. He was struck off the roll for misconduct. In an earlier case of Re Salwey[10], a solicitor was found to have committed fraud in a civil proceeding but was acquitted in a criminal court but nevertheless was struck off the roll for misconduct. A close reading of these cases reveals that the alleged misconduct of the practitioner was investigated and a decision was made by a responsible authority that the practitioner in question was guilty of misconduct. Hence, the mere fact of acquittal was not to the point. In those cases there was ample evidence before the Court justifying the removal from the roll.

21 Mr Brett QC also referred to the Full Court decision of the Supreme Court of the ACT in Re Del Castillo[11]. The applicant had stood trial for murder and was acquitted. He revealed that fact to an admission board. The Full Court said:

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22 In my opinion the cases establish that an acquittal of a person applying for admission to practise of itself must be given full effect to. However, that would not preclude the Admission Board from fully investigating and considering all the circumstances which may lead to a decision that the applicant is not a fit and proper person. Absent a full and proper investigation in my opinion it is not open to an admission Board to draw any adverse inference against an applicant because he or she has been charged with a criminal offence and is subsequently acquitted. Of course, each case must be considered in relation to its particular circumstances.

23 In the present appeal, the appellant has revealed some information concerning the charges brought against him. However, he was not cross-examined in relation to any particular set of charges, other than the airline tickets matter, which would enable this Court to draw any inference against him concerning his character, reputation and fitness to practise as a lawyer. He was asked questions about the airline tickets offences, one of which he pleaded guilty to, and in my opinion it is open on that evidence for this Court to draw certain conclusions as to his conduct. As earlier stated, the pattern of the appellant's conduct between 1989 and 2000 requires this Court to closely consider the appellant's statements that he is a reformed person and a person who is honest, of good character and can be trusted as a member of the legal profession.

24 In addition to the matters referred to above, when he made his application on the first occasion in August 2001 he failed to disclose his prior criminal history save for the finding at the Broadmeadows Court in 1997 (airline tickets charges). He failed to refer to the other criminal matters and in particular his English convictions. This serious non-disclosure meant that he failed in persuading both the Board and the Court on appeal that he was a fit and proper person. On that occasion the Board were never told about the three charges for perjury, the UK convictions, or the ANZ charges. On the appeal these were revealed.

25 In his reasons for judgment, Pagone J said:

[48]

26 The judgment was delivered on 1 May 2002. The appellant appeared for himself. He swore an affidavit in support of his appeal on 7 March 2002. He did reveal the matters that had not been disclosed to the Board. In his affidavit sworn 7 March 2002 the appellant recognised the hurdle that he had to overcome, namely, to show that he had changed his ways and would not offend again. He was aware in this present appeal that he carried the burden of persuading the Court that despite his past, he was a reformed character, who could be trusted and who would act honestly and reasonably in the course of a professional life as a member of the legal profession. The presumption against his admission is strengthened by the history of his conduct between 1989 and 2002. He does not inspire any confidence in him that he has learned by his experiences and is a reformed character - see observations of High Court in Ex parte Lenehan[13] concerning the raising of the presumption against admission and meeting it by evidence of making amends for the early misdemeanours and overcoming the defects of character.

Honesty and the Legal Profession

27 All true professions are built on a solid foundation of honesty. The legal profession is no exception. Indeed, the demands of honesty and fair dealing are probably greater in the legal profession than any other profession. There must be honesty and fair dealing between lawyer and client, between lawyers when conducting litigation on behalf of a client, and dealings with any of the courts or tribunals in this State. There must be no hesitation on the part of any member of the legal profession when confronted with a situation which could involve dishonesty to immediately desist from any dishonest conduct.

28 Indeed, the courts and tribunals in this State would not be able to function properly unless the presiding officer was able to rely upon the honesty and reputation of the persons appearing before them or who as solicitors are involved in conducting litigation.

29 Pagone J summarised the obligation in a passage with which I respectfully and fully agree. His Honour said:

[56]

34 In that case, the applicant during 1928-31 when he was aged 25 to 28 years, stole money. Thereafter his conduct was exemplary, including service during the war in which he served with distinction. The High Court by a majority was prepared to admit him to practise in 1948.

35 It goes without saying that the appellant carries the burden of showing that he is of good reputation and character and a fit and proper person to be admitted.[18] In Re S (a solicitor) the Full Court was dealing with an application by a former practitioner who had been struck off the Supreme Court Roll. An affidavit placed before the Court contained what the Full Court said was misleading information. The Court held that a former solicitor seeking to have his name restored to the Roll must show that, notwithstanding his past misconduct he can be safely trusted in the future to demean himself with honesty and propriety. It was noted that it was up to the applicant to convince the Court and if he left the Court in doubt he failed. The Court placed considerable weight on the fact that in the applicant's affidavit he tried to gloss over his previous misconduct. The applicant failed.

36 In cross-examination in the present matter, the appellant was exposed as a person who was loose with the truth, had sworn affidavits which were inconsistent and misleading. He sought throughout to exculpate himself in respect of his admitted criminal conduct and on occasions his attempts were misleading. I accept he is entitled to show, if he can, that his conduct was not bad or his level of criminality slight, but if he distorts the facts to achieve his goal, this reflects adversely upon him.

37 Some of his evidence I do not accept as truthful or accurate. He struck me as a witness whose first move was to think of an answer which would help his cause rather than being frank and honest. He told the Court that he was sorry and remorseful for his past conduct, but I am not persuaded that he is an honest person, a person of good character, and fit and proper person to be admitted to practise as a barrister and solicitor and officer of this Court. In reaching that conclusion, I rely upon his past, the way the appellant gave evidence, his attitude to obvious wrongdoing which he was not prepared to candidly accept was very wrong, his attempts to mislead the Court and his looseness with the truth.

A fit and proper person for admission

38 The conduct of the appellant in the past has shown that he was not a fit and proper person to be a member of the legal profession. The question now is, on the evidence before this Court, has he overcome the presumption by a full and candid recognition of his past wrongdoing, and a blameless career for a substantial period leading to the conclusion that he could be trusted to perform his work and activities as a lawyer in an honest, proper and fair manner? Making allowance for lapses of memory, and the fact that the appellant is in a difficult position when answering questions about his past conduct, especially where he has been acquitted of serious offences, in my opinion the appellant has not established that he is a fit and proper person to be admitted to practise. In support of that conclusion I rely upon the following matters:

A. English convictions

39 The first matter concerns his attempt to explain away his English convictions as being due to the folly of youth and being led astray by others. In the affidavit sworn in support of his application to the Board on 3 September 2004, in paragraph 3 he said:

[68]

If yes, please attach details including dates."

46 The appellant put a cross in the "No" circle. He supported the document with a statutory declaration in which he stated that the information he had provided "is complete, correct and up to date in every detail."

47 The date of the declaration is 26 October 1999. On no view could that answer be correct. He admits as much now. At that time he was facing nine charges concerning his employment at the ANZ Bank. The answer to the question: "Are you the subject of any criminal charges still pending before a court?" should have been "Yes". When asked by the Court as to his explanation, the appellant prevaricated, did not initially answer the question but referred to the fact that the matter was raised years later by MARA, he gave them an explanation and no further action was taken by the authority. Eventually he admitted to the Court that his answer was wrong and he should have answered "Yes". Another matter of concern is that he did not appreciate the importance of making a false declaration. He informed the Court that he had in fact in a separate document told MARA of the charges. He was unable to produce a copy and MARA did not have any copy. I have grave doubts about his evidence. But as was put to him, if he was revealing this information to MARA in another way, then his answer should have been "Yes", and reference back to an earlier communication. The way he gave evidence in relation to this raises considerable concerns about his honesty and more importantly whether he is prepared to be frank about his past indiscretions. His seemingly ignorant attitude to the importance of a statutory declaration is also a matter of concern. As the Court asked him "Would you advise a client to do what you did in the circumstances?" He said "No".

48 Another matter of considerable concern over this whole episode concerns his explanation to MARA some years later. The failure to reveal relevant information to MARA was raised by the authority in 2002. The appellant forwarded a nine page letter including attachments explaining his views dated 14 August 2002. He noted that the authority did not appear to have any documents sent by him. He was unable to produce copies. One might think that a careful man, bearing in mind his history during the 1990's concerning the perjury charges, would have been very careful in answering the question in his application form and more importantly if he had apprised the authority earlier, would have kept copies of the correspondence. A matter of concern is found on page 5 of his long letter in which he sought to explain the ANZ charges. He said the following:

[70]

49 The first observation is that he refers to "others to commit theft". There was only one other person involved. He was a person well known to the appellant. He could not explain this error. Secondly, his observation that it was a pay back by certain individuals was also demonstrably wrong. Again he could not explain why he said that. Finally, to suggest that his perjury charges were frivolous is a gross distortion of the truth. On no view could they be considered frivolous taking into account that he was asked the questions a number of times at a number of hearings and totally denied the prior English convictions. This letter was written well after Judge Jones' ruling and after the issue was raised in the earlier application and on the appeal.

50 His letter of explanation to MARA is rambling, full of irrelevant detail and obviously aimed at creating confusion in the minds of the persons looking into his conduct. He was successful. MARA did not take any further action.

C. Perjury ruling

51 I have already adverted to what Judge Jones ruled. The appellant could not have been under any misapprehension. The English and Commonwealth Acts concerning spent convictions did not apply to State authorities. For some years after he was acquitted he appears to have adopted the view that he still did not have to reveal those convictions. On any view, and I have no doubt he understood this, he was not obliged if asked the question in England to reveal the convictions nor was he obliged in a Commonwealth situation to reveal them. On the other hand, he knew that he was obliged to reveal them in a State situation. The omission to disclose the conviction on his first application to the Board is something that, taking into account the context, was extremely serious. Whilst I accept that this was a matter considered by Pagone J, the appellant's evidence before this Court did not persuade me that he fully understands the gravity of what he did. The gravity is that he knew he could not rely on the legislation but deliberately set out to mislead.

D. Airline tickets

52 The offences concerning the airline tickets when examined reveal a serious level of dishonesty by the appellant. He was cross-examined about some of the circumstances. In my opinion he prevaricated, he sought to minimise the degree of culpability, he told an untruth and was less than forthcoming about the conduct in question. This is again a matter of considerable concern because it was his evidence in this Court that supports the conclusions I have just stated. He gave evidence in chief that he was a reformed character, that he recognised that he had done wrong in the past, that he had been guilty of some criminal conduct in the past, but the Court could be assured that he had changed and could be trusted to carry out the obligations of a member of the legal profession.

53 The gravamen of the charges was that the appellant had purchased eight invalid airline tickets, knowing they were invalid, and sold them some years later, thereby cheating the clients.

54 Early in his evidence, the Court asked him whether his wife's travel agency was authorised to issue tickets. Only certain travel agents are permitted to issue tickets and they must have IATA accreditation. He was asked the question by the Court whether his wife's travel agency was authorised to issue tickets and he said, "It was, Your Honour".

55 Later in his cross-examination when he was being asked about the issue and use of invalid tickets, it was put to him that he must have known that the tickets were invalid because IATA had circulated the travel agencies informing them of that fact. His response to that was to state that he would not know because his wife's agency was not IATA accredited. This occurred on the following day, having told the Court that she could issue tickets. The Court put the following question to him: "I asked a question yesterday, and admittedly I'm getting old and my memory is not as good as it used to be, but didn't I ask you yesterday whether at Melton you could issue tickets. Didn't I ask you that yesterday?" His answer was, "Issue tickets?"

56 The transcript then records the following:

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57 In my opinion his evidence given on the earlier date could not be put down to a loss of memory, or misunderstanding. He was very experienced in travel matters including the issue of tickets.

58 There were further matters concerning these tickets which raise real questions as to his honesty or lack thereof and his explanations for his conduct were, to say the least, evasive and lacking in belief.

59 The story of the airline tickets shows a significant level of criminality.

60 The appellant pleaded guilty to one charge relating to the use of invalid airline tickets, and accordingly has admitted every element of the charge of dishonestly obtaining property, namely, cash belonging to a client of his wife's travel agency. Some of the statements of witnesses to be called in that prosecution were in evidence on this appeal. A plea of guilty does not mean that the convicted person admits all the facts stated in the depositions. The appellant was asked a number of questions concerning the evidence of the wrong doing. Some of his answers were less than satisfactory.

61 In considering the evidence, the appellant's fairly long history of experience as a travel agent is to be taken into account. In particular, his knowledge that only IATA accredited travel agents can issue international airline tickets. I have already adverted to his change in evidence on this appeal when he stated that his wife's agency could issue tickets and the following day, when pressed, he stated that she was not IATA accredited and accordingly did not receive IATA information. The evidence revealed that on 4 November 1991 the wife's travel agency, through the appellant, purchased eight net airfare tickets, destination Europe, at $1,000 each from Travel Trend International. Prior to this sale the appellant had had some interest in that firm. On 1 February 1991, Denhall Pty Ltd trading as Travel Trend International, was authorised by IATA to issue tickets. However, later that year, IATA discovered that the firm was operating in breach of an agreement and its IATA accreditation was withdrawn. This occurred around about November/December 1991. When the IATA accreditation was withdrawn, a ticket audit was carried out and it revealed 28 IATA supplied airline tickets were missing. Their serial numbers were noted. The tickets were published as blacklisted tickets on 19 December 1991 in the IATA loss prevention bulletin to which IATA agents may subscribe and the matters reported to the Fraud Agency of the New South Wales Police. It appears that the appellant, acting on behalf of his wife's travel agency, paid the purchase price for the tickets in February 1992. Nearly three years later the appellant sold two of the blacklisted tickets for travel on Lufthansa to two clients. The appellant admitted that he sold the tickets although one of the clients stated that the person who sold him the tickets was called Steven. The appellant denied that he had ever used the name Steven. Each ticket cost $2,171. The client in his statement said that the details on the Lufthansa tickets were in handwriting but he did not think that was unusual. One thing was very apparent when this evidence was placed before the Court, and that was that the travel agency, having spent money on the tickets, kept them for a number of years before they were used. It was put to the appellant that this was unusual because it was not a commercially sound decision. The appellant suggested that the reason was that they were limited tickets on Lufthansa and had a fixed destination of Belfast. An expert who looked at the tickets stated that they had been retained in a blank format and filled out as required with the details of each traveller, as no obvious corrections had been made to the tickets. It was put to the appellant that he held them back hoping that with the passage of time the fact that they were invalid would not have been observed. He denied that suggestion. I do not believe him. Further, between February and March 1996 a further six blacklisted tickets were issued by "Steven" on behalf of Karina Travel. Some of these tickets were used for flights on KLM Dutch Airlines. It was put to the appellant that he knew from the IATA information distributed in 1991-1992 that these tickets were invalid. It was then that he told the Court that his wife's agency was not IATA accredited. The evidence strongly leads to the conclusion that he did purchase the tickets knowing that they were invalid. The price tends to support that view. Secondly, the delay in using them provides very strong evidence that it was all part of the appellant's plan. Further, the expert's evidence revealed that Karina Travel as a non-IATA accredited agent "should not be in possession of blank, validated or blacklisted tickets".

62 In a recent affidavit sworn by the appellant on 15 August 2005 he deposed in relation to the use of these tickets the following:

[76]

65 The question of objecting to admission is humbug. The only way anybody could ascertain that he was applying for admission was to look at the notice posted on a notice board in the Supreme Court. But more importantly, to say that the events occurred between 1994 and 1996 is a distortion of the truth. The dishonest conduct occurred when he purchased the tickets in circumstances where he knew based upon his experience in travel that the open tickets should not have been purchased by his wife's travel agency taking into account that only IATA accredited travel agents can issue tickets. This conduct occurred two years after the alleged criminal conduct concerning the State Bank.

66 His evidence given before the Court amply demonstrates his careless approach to the truth, his attempt to distort what happened and his refusal to candidly admit his level of dishonesty.

Conclusion

67 The appellant carries with him a massive bag of dishonest conduct. It is a pattern of conduct committed over an extensive period. In 1978 he commenced imprisonment at the age of 23 years. He was released in 1980. His evidence was that he did not enjoy his period of incarceration. In the next ten years he came to Australia and left on a number of occasions but some time in 1989 whilst working with a travel agency debited on three or four occasions amounts on credit cards which it is alleged were not lawful. He was charged and the matter did not proceed because of a technicality. These events occurred approximately nine years after his release from prison. He relies upon the presumption of innocence. The fact is that charges were laid suggesting he had been dishonest. One might think that an honest person might have learned from his brush with the law. However, in late 1991 he purchased the airline tickets. This was the beginning of another dishonest transaction. In 1992 he denied before a licensing authority in the AAT that he had any convictions. He did so in the strongest terms. At the same time his wife was not permitted to allow him to be involved with a certain travel company. His wife in late 1995/early 1996 lost her travel agent's licence. This came about because of her failure to exclude the appellant from involvement in the company. Again one might think that an honest man concerned with his reputation and character would not have put himself in a position which compromised his wife and his own reputation. In the meantime, in 1994 and 1996 he was carrying out his dishonest plan to use the invalid tickets. In November 1997 he pleaded guilty to one charge and was fined $1,000 without conviction. In 1997 he was charged with three counts of perjury. He commenced employment with the ANZ Bank and on 18 May 1998 was charged with six counts of theft and three of attempted theft. He does not appear to have learned from his experience to avoid any conduct which may bring him into contact with the criminal law. On filling in his MARA application he failed to reveal his pending charges and made a false declaration. In the meantime, after being sacked by the ANZ Bank he obtained money from Centrelink which resulted later in criminal charges. These were dropped in 2003.

68 His pattern of conduct raises a substantial question mark concerning his honesty and his character and reputation. He is a person who does not appear to have learned from his experiences during 1989 to 2000. He carries a very heavy burden of persuading this Court that he is a person of good character and reputation and a fit and proper person to practise law. He has not discharged that burden. The way he has presented himself to this Court shows a man who is loose with the truth and is prepared to distort the truth if he thinks it will help him. Often he was asked questions which he failed to answer and went off on some tangent seeking to minimise his criminality in the past. The evidence does not persuade me that the appellant has learned from his past experience, or that he is a person motivated to tell the truth.

69 I place very little weight on the evidence of the accountant Mr Wyatt who gave evidence concerning the character of the appellant. Mr Wyatt practises in Sydney. He sees the appellant from time to time. In his oral evidence, he did not give what I would describe as true character evidence. He did state on a number of occasions that in his dealings with the appellant he found him as an honest and decent person. He said that he was happy with the services provided. On the other hand he was unable to give any evidence of the appellant's general reputation amongst those who know him.

70 The appellant has to frankly and candidly state the level of his dishonesty in the past, and not seek to hide it. He must show that it will not reoccur. Unfortunately he has not demonstrated any of these matters to the Court. Indeed, he is one of those witnesses who, when asked a question, thinks how he should answer the question rather than answering it truthfully and accurately. It will take, in my view, many years of blameless conduct before one could have any confidence that the appellant has shed his past, turned over a new leaf and intends to pursue a blameless and honest career.

71 Because of my conclusion, it is unnecessary for me to consider the proposition put on behalf of the appellant by his counsel that his permission to be admitted should be subject to fairly stringent conditions, namely that for the first two years of his practise he should be an employee solicitor subject to supervision and secondly, that he should not have any direct involvement in handling clients' money or trust moneys. It appears that the second condition was for an indefinite period. The question did arise as to whether the Court has jurisdiction to permit admission subject to conditions. As presently advised, I have grave doubts that it could. However, it is unnecessary for me to further consider the issue.

72 In my opinion the appeal should be dismissed.

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)