DECISION
27 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.
28 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.
29 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.
30 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.
31 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.
32 TOBIAS JA: I agree with Hodgson JA.
33 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.
34 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.
35 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.
36 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.
37 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].
38 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.
39 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 Ziems v 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.
40 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."
41 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."
42 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."
43 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.
44 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.
45 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.
46 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.
47 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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