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[2022] QCA 129
General information, not legal advice.
Court of Appeal (Qld)
2022-07-22
Bowskill CJ and Boddice and Kelly JJ
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: In the matter of an application by GBK for admission to the Legal Profession [2022] QCA 129
PARTIES: IN THE MATTER OF THE LEGAL PROFESSION ACT 2007 (QLD) AND THE SUPREME COURT (ADMISSION) RULES 2004 (QLD) / and / IN THE MATTER OF AN APPLICATION BY GBK / (applicant)
FILE NO/S: Appeal No XYZ of 2022 / SC No 9823 of 2022
DIVISION: Court of Appeal
PROCEEDING: Application for Admission
DELIVERED ON: 22 July 2022
DELIVERED AT: Brisbane
HEARING DATE: 11 July 2022
JUDGES: Bowskill CJ and Boddice and Kelly JJ
ORDER: Application for admission as a legal practitioner refused.
CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS – where the applicant applies for admission as a legal practitioner – where the applicant has met the academic and practical training requirements for admission – where the applicant has convictions for possessing child exploitation material, using a carriage service to access child exploitation material and for observing or recording in breach of privacy – where the Legal Practitioners Admissions Board opposed the applicant’s admission – whether the applicant is a fit and proper person to be admitted to the legal profession in Queensland / Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 35, s 36 / Legal Profession Act 2007 (Qld), s 9, s 34, s 35, s 39 / Supreme Court (Admission) Rules 2004 (Qld) / In the matter of an application for admission as a legal practitioner by MCF [2015] QCA 154, cited / Legal Services Board v McGrath (2010) 29 VR 325; [2010] VSC 332, cited / Legal Services Commissioner v CBD [2012] QCA 69, cited / R v Booth [2009] NSWCCA 89, cited / Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, cited
COUNSEL: S J Keim SC, with S D Malcolmson, for the applicant / M Timmins (sol) for the respondent
SOLICITORS: No appearance for the applicant / Legal Practitioners Admissions Board for the respondent
THE COURT: The applicant applies under s 34 of the Legal Profession Act 2007 (Qld) to be admitted to the legal profession. Section 35(2) of the Act confers power on the Court to:(a)make an order admitting the applicant to the legal profession as a lawyer if the court is satisfied the applicant for admission is –eligible for admission to the legal profession under the Act; anda fit and proper person to be admitted to the legal profession under the Act; or(b)refuse the application if the court is not satisfied as mentioned in paragraph (a).
By s 35(3), the Court’s order under s 35(2)(a) may be made unconditionally or on conditions the Court considers appropriate. In deciding the application, the Court may rely on a recommendation of the Legal Practitioners Admission Board (Board) (ss 35(4) and 39).
The applicant has completed all of the academic and practical legal training requirements for admission under the Act as well as the Supreme Court (Admission) Rules 2004 (Qld). However, in the material filed in support of his application, the applicant disclosed that he had been convicted of a number of serious criminal offences.
The recommendation of the Board, given under s 39, is that the applicant is not at present a fit and proper person for admission to the legal profession, having regard to the matters disclosed.
On 29 March 2017, the applicant pleaded guilty to and was convicted of:(a)two counts of possessing child exploitation material, an offence under s 228D of the Criminal Code, in the three and half year period between 12 March 2012 and 11 September 2015;(b)a further count of possessing child exploitation material, on 10 September 2015;(c)one count of using a carriage service to access child pornography material, an offence under (what was then) s 474.19 of the Commonwealth Criminal Code Act 1995, in the period between 12 March 2012 to 11 September 2015; and(d)four counts of “observations or recordings in breach of privacy”, an offence under s 227A of the Criminal Code, in July and August 2015.
The offences were committed when he was aged 20 to 24, he was sentenced when aged 25 and he is now 30 years of age.
He was sentenced to 18 months’ imprisonment on the possessing child exploitation material offences, which was wholly suspended. He was sentenced to two years’ imprisonment on the Commonwealth offence, but ordered to be released forthwith, on a recognisance release order. For the remaining offences he was ordered to be supervised under a probation order for two years. As a result of the convictions, he became a reportable offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) for five years. That obligation recently expired.
“At this point in time, I do not consider that [the applicant] requires ongoing psychological or psychiatric intervention to manage his mental health. While I believe that he has good insight into his mental health issues and needs, I would also consider it useful that any professional supervisor/mentor/sponsor be aware of his vulnerability to anxiety, in order to prompt him to seek external support as soon as such a need arises. In the event that [the applicant] does require such support in the future, I am happy to resume sessions with him and he is aware that he is able to contact me at any time in order to arrange this.
I have no further concerns about [the applicant’s] capacity to function in a professional role within the legal system and I consider that, while challenges will always emerge along the pathway from student to practitioner, he has the capacity to learn and grow through these…”
In the Board’s letter of recommendation under s 39 of the Act, it noted that the applicant’s offending was reprehensible in nature, occurred over a lengthy period of time (approximately 3 and a half years) and included significant breaches of trust (his housemate’s privacy) on multiple occasions. The Board also referred to the diagnosis and treatment of the applicant by Mr Smith for a severe pornography addiction, anxiety and depression, in circumstances where Mr Smith raises the possibility that the applicant may require further professional support from a psychiatrist or psychologist in the future. The Board distinguished the applicant’s case from other cases considered by this Court such as:(a)Legal Services Commissioner v CBD [2012] QCA 69, in which the practitioner was said to have “stumbled upon” the offending material that inadvertently came before him while looking for adult legal pornography; and(b)In the matter of an application for admission as a legal practitioner by MCF [2015] QCA 154, in which the applicant was 17 at the time of the offence, the offence concerned a relatively small number of images and movie files, and the evidence indicated that the files had been accessed but not saved by the applicant.
Without binding any further determination of the applicant’s suitability for admission, the Board expressed the view that it may be satisfied of the applicant’s suitability for admission at a future time were the applicant to:(a)obtain employment in the legal profession under the supervision of a more senior practitioner for a period of 12 months; and(b)provide the Board with an affidavit from a more senior practitioner who has supervised him for a period of 12 months, deposing to the applicant’s good character, and fitness and propriety for admission.
Notwithstanding the Board’s recommendation in that regard, the applicant elected to press for his application for admission to be determined by the Court at the hearing on 11 July 2022.
Under s 31(1) of the Act, a person is suitable for admission to the legal profession only if the person is a fit and proper person to be admitted. In deciding if the person is a fit and proper person, s 31(2) requires the Court to consider each of the “suitability matters” in relation to the person and any other matters the Court considers relevant. However, as s 31(3) makes clear, the Court may consider a person to be a fit and proper person to be admitted despite a suitability matter, depending upon the circumstances.
Relevantly, under s 9(1) the following are suitability matters:
(a)whether the person is currently of good fame and character; and
(e)whether the person has been convicted of an offence in Australia or a foreign country, and if so –
(i)the nature of the offence;
(ii)how long ago the offence was committed; and
(iii)the person’s age when the offence was committed.
“[8] By requiring the Court to consider the nature of the offence and its temporal relationship with the application, s 9(1)(c)4 substantially reflects the common law. In that regard, it has long been accepted as necessary in most cases to look behind the conviction for an offence in order to consider what Fullagar J described in Ziems v The Prothonotary of the Supreme Court of New South Wales as the ‘real facts of the case’. It is only when that exercise is undertaken that the Court may properly assess the conduct underlying a conviction and then decide how, if at all, such conduct bears on an overall assessment of the applicant’s fitness to be admitted. Of course, a conviction for some kinds of offences may bespeak unfitness because it is, by proof or admission of the essential ingredients for that offence, revealing of a defect of character that is incompatible with satisfaction of the statutory test. In such a case, it may not be necessary for the Court to look any further. But in all other cases, the statutory requirement to consider the nature of the offence is unlikely to be satisfied merely by reference to the ingredients of the offence – the ‘real facts’ underlying the conviction need to be considered.
[9] Such is the approach to be taken in the case of the convictions with which this application is concerned. Indeed, that very point was made by Warren CJ in Legal Services Board v McGrath (No 2)5 in the course of dealing with an application to have a practitioner who had been convicted of several child pornography offences struck from the roll:
‘Convictions for, or arising out of, child pornography offences are not prima facie evidence that a person is not a fit and proper person to remain on the roll kept by this court. The nature of the material involved, the extent and circumstances of the offending in question, its relationship to the offender’s professional life, and the behaviour of the offender before, during and after the legal processes which result from that offending will all be relevant to deciding any application to strike that offender from the roll. As the High Court’s decision in A Solicitor v Council of the Law Society of New South Wales indicates, even an individual convicted for the sexual abuse of minors can, albeit in a very small number of conceivable circumstances, remain a fit and proper person to practise law in this country.’
[10] These considerations provide the context for the assessment which must be made by the Court in a case such as this. What must be determined is whether the conduct underlying a conviction, together with any explanation for it, tells against an applicant’s ability to practise as a lawyer. Furthermore, it must be determined whether the existence of such a conviction, considered in its proper context, means that an applicant is not ‘currently of good fame and character’. The fact that someone has been convicted of an offence may, depending on the offence, carry with it a degree of opprobrium but, for the reasons given, that is certainly not the end of the inquiry. As Warren CJ observed, in addition to the circumstances of the offending, the behaviour of the offender before, during and after any criminal proceedings taken with respect to the offending will all be relevant to consider. So, too, will be the steps the offender has taken to rehabilitate himself or herself including any treatment he or she has obtained with respect to any medical condition that may have contributed to the offending.” [references omitted]
In MCF, the applicant for admission was 24 at the time his application was heard in June 2015. He had been convicted, about four years earlier, in October 2011 of various offences related to child pornography, which were committed in August 2007 (when he was 17 and had accessed the material for about a month, but did not save any of it) and then between April and September 2009 (when he accessed but did not save a number of images). The offences were said to be concerned with a relatively small number of images and movie files, compared to the number usually encountered; and none were in the worst category. A large proportion of the images and movies were found on the applicant’s computers as temporary internet files, indicating they had been accessed but not saved. The offending was described as being at the lower end of the scale of seriousness for offending of this type.
The applicant in MCF also cooperated fully with the authorities, both in the investigation and subsequent prosecution. The sentencing judge in MCF’s case observed that the offending appeared to have arisen from a combination of the applicant’s “very moralistic upbringing and some confusion as to (his) own sexual identity”.6 The applicant had undertaken extensive treatment with a psychiatrist, both prior to his sentence and subsequently. The psychiatrist provided a report for the purpose of the application for admission expressing the view the treatment outcome was “extremely favourable”, the applicant was “very well and stable” and “does not require any further psychiatric intervention” and that it was extremely unlikely that he would reoffend.7
The applicant in MCF had also been working in a firm of solicitors for over 12 months before his application for admission was heard, and had fully disclosed his convictions to his employers.8
The Court of Appeal said, at [22], that:
“When proper regard is had to the conduct underlying the convictions, the applicant’s behaviour before, during and after the criminal proceedings and his impressive rehabilitation, it cannot be concluded that the convictions tell against his ability to practise as a lawyer. Nor do they mean that the applicant is not currently of good fame and character. We were therefore satisfied on the hearing of this application that the applicant is a fit and proper person to be admitted as a legal practitioner, and that he should be so admitted.”
The child pornography offences of which the applicant in the present case was convicted are very serious, for the reasons explained by Warren CJ in Legal Services Board v McGrath [2010] VSC 332 at [24], by reference to R v Booth [2009] NSWCCA 89 at [40]-[43]. The offences are of importance in considering whether a person is fit and proper to be admitted to the legal profession not only because they call into question the person’s willingness and ability to obey the law, but also because they call into question the person’s empathy and insight into the victims of criminal behaviour.9 The applicant’s offending was not fleeting, and he did not “stumble” upon the images. His conduct persisted over a three and a half year period, from age 20 to 24, during which he not only actively accessed the images and videos, but stored them on various devices. The number of images was substantial, and said to involve many in the most serious of categories. His offending was driven by a severe addiction to pornography, which he describes as “an unhealthy way to relieve stress”, in contrast to the explanation given and accepted in MCF.
Added to that is the offending, committed in the months before the applicant’s arrest in September 2015, which involved secretly filming his housemate whilst she was in the shower on four separate occasions; aptly described by the Board as involving a significant breach of trust. This conduct too calls into question the applicant’s fitness and propriety for admission to the legal profession, a hallmark of which is the ability of the judiciary and the public to have trust and confidence in its members.
The applicant has not tested his ability to deal with stress by working in the legal profession, as many other applicants for admission have (including MCF). Senior counsel for the applicant informed the Court at the hearing that the applicant had undertaken the practical work experience element of his practical legal training, but this is of only short duration and does not address this shortcoming.
The report of the psychologist, Mr Smith, is positive in terms of the gains made by the applicant through treatment with him, and the Court acknowledges the applicant’s positive progression in the years since he was arrested and sentenced. However, Mr Smith makes two important points:(a)in his first report, that he was “unsure how [the applicant] will respond to the rigours of legal practice”, however, “would consider that if he has completed his studies, then his fitness to practice law would be greater than when I last saw him”; and(b)in his second report, that while he believes that the applicant has good insight into his mental health issues and needs, he “would also consider it useful that any professional supervisor/mentor/sponsor be aware of his vulnerability to anxiety, in order to prompt him to seek external support as soon as such a need arises”.
These are the facts upon which the applicant was sentenced. In his affidavit filed on 4 February 2022, the applicant said at the time he was “discovered by the police” his pornography addiction was such that he had over 300,000 images and pornographic videos with roughly 8,000 of those being child exploitation material images and videos. ↩
Cf the applicant’s submissions at paragraph [18]. It is apparent from the transcript of submissions on sentence (exhibit J to the applicant’s affidavit filed 28 March 2022, at pp 6-7) that the relevant provision is s 13B, not s 13A of the Penalties and Sentences Act. ↩
It appears from the sentencing submissions and remarks (exhibits J and K to the applicant’s affidavit filed 28 March 2022) that the applicant had also seen a psychologist prior to the sentence, but there is no evidence, in the form of any further reports, before the Court in relation to that. ↩
As s 9(1)(e) was then numbered. ↩
Legal Services Board v McGrath [2010] VSC 332 at [12]. ↩
MCF at [11] and [12]. ↩
MCF at [14]-[15]. ↩
MCF at [17]. ↩
McGrath at [14] and [15]. ↩
(2010) 29 VR 325
(1957) 97 CLR 279
In his affidavit filed 4 February 2022, the applicant describes the convictions as having followed “after years of suffering from a pornography addiction as an unhealthy way to relieve stress”, an addiction that “led me to seeking out new and more disturbing pornography to satisfy my growing tolerance for normal pornography and a near constant need to masturbate and to watch pornography”. He describes “years of watching and collecting normal pornography and child exploitation material”. The observations or recordings in breach of privacy offences involved the applicant, “during one of [his] hour’s long masturbation sections (sic, sessions)” setting up his phone and recording his housemate in the shower on four separate occasions.
When police searched the applicant’s home, on 10 September 2015, he is said to have cooperated with them by making admissions to possession of child exploitation material and directing police towards a number of electronic devices on which the material was stored (a computer and two USB devices). In total, there were 4,753 accessible images and 333 accessible videos located on the devices (there were more that were inaccessible).1 The majority fell within the worst categories of such material. The sentencing judge described the content as “disgusting” and said “it is terrible offending”.
The applicant cooperated further, by pleading guilty to the offences and also in a manner capable of being taken into account under s 13B of the Penalties and Sentences Act 1992 (Qld).2 The sentencing judge accepted he was remorseful.
The applicant also discloses that, on one occasion during the reporting period, on 5 June 2018, he failed to report that he had a new internet service provider while he was moving house. He was charged with failing to comply with his reporting obligation. However, he says that by the time the matter came to court, as he was close to the end of the probation order and had admitted the failure to report, the prosecution offered no evidence and the judge dismissed the charge.
For completeness, we note the applicant also disclosed some speeding infringements, a tax debt that arose from insufficient PAYG deductions and a small Centrelink debt, none of which we regard as being relevant for present purposes. He had no criminal history prior to the child pornography offences.
Shortly after his conviction, the applicant started to see a psychologist, Mr Smith.3 He was directed to do so by the Corrective Services officer supervising him under the probation order. He saw Mr Smith on 14 occasions from June 2017 to December 2018. In a report dated 2 February 2022, submitted to the Board with the applicant’s application, Mr Smith noted that:(a)over the course of treatment, the applicant “showed improved self-awareness and self-regulation skills, such that he was no longer reliant on pornography to cope with stress or manage his emotional responses” and had “also demonstrated improved management of anxiety issues, learned assertive communication skills, and showed a steady overall improvement of depressive symptoms”;(b)at the time of cessation of treatment, in December 2018, he “had no ongoing concerns about [the applicant’s] mental stability or risk of re-offending”;(c)he had not seen the applicant for three years, however, was “happy to hear that he has completed his university studies and would consider this to be a clear demonstration of his ability to maintain focus and achieve his goals”;(d)he was “unsure how [the applicant] will respond to the rigours of legal practice”, however, “would consider that if he has completed his studies, then his fitness to practice law would be greater than when I last saw him”;(e)he expected that the applicant would be compliant with any future recommendations that he resume treatment, or to seek it out himself in the event that he felt he was not coping; and(f)the applicant had not, to Mr Smith’s knowledge, reoffended and it had been “at least six years since he was charged in relation to CEM”. Mr Smith said: “Generally speaking, the rate of sexual recidivism can be considered to reduce by half after five or more years offence-free in the community. Given the already low rates of recidivism for internet-only offenders, I would consider that confidence in [the applicant] continuing to lead a productive and law-abiding life, would be well placed”.
Following that report, the applicant saw Mr Smith for a further two appointments, in April and May 2022. Mr Smith prepared a further report, dated 9 May 2022, for the Board. In this report, Mr Smith notes that:(a)although the applicant reported that he continues to experience symptoms of anxiety at times, which have led to brief periods of depressed mood, “he described being able to work through periods of increased stress and low mood without relying on avoidance-based coping behaviours, such as substance use or excessive pornography use”; and(b)the applicant “described maintaining better boundaries with his family and managing sexual needs without difficulty” and also “reported minimal alcohol use and no illicit substance use”.
Mr Smith expresses the opinion that:(a)“[the applicant] has a vulnerability to developing symptoms of anxiety when stressed, and these in turn can impact on his mood;(b)“he appears to have notably improved his self-management of this over the last few years, completing his Law degree and functioning in the workplace, without the need for antidepressant or anxiolytic medication”; and(c)“he also presents as more insightful and self-aware of his mental health needs, with a greater willingness to seek help, which is a positive indicator for the future”.
Mr Smith concludes his further report by saying:
In light of Mr Smith’s report, and the circumstances of the offending as a whole, we consider that the recommendation of the Board, set out at paragraph [18] above, is an entirely sensible and reasonable one.
The applicant’s offending conduct is not such that it should be concluded he will never be a fit and proper person to be admitted to the legal profession. However, it is such, having regard to the nature of the offences committed, the time over which and since the offences were committed, the applicant’s age over the period when the offences were committed and the explanation for the commission of the offences, as to lead us to conclude that, at this time, the applicant is not a fit and proper person to be admitted to the legal profession.
The application for admission to the legal profession is therefore refused.