Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board

Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board - [2006] NSWSC 1338 - NSWSC 2006 case summary — Zoe

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Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51 Re B (1981) 2 NSWLR 372 A Solicitor v Council of Law Society of NSW [2004] 216 CLR 253 Morrissey v The New South Wales Bar Association [2006] NSWSC 323 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Veghelyi v Council of the Law Society of NSW (1989) 17 NSWLR 669 Doherty v Law Society of NSW [2003] NSWSC 105 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Frugtniet v Board of Examiners (No. 2) [2005] VSC 332 Board of Examiners v XY [2006] VSCA 190 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Wentworth v NSW Bar Association (1992) 176 CLR 239 Gersten v Law Society of NSW (2002) 56 NSWLR 16 Skerritt v Legal Practice Board of WA [2004] WASCA 28 Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported, BC9402256) Helton v Allen (1940) 63 CLR 691 Rejfek v McElroy (1965) 112 CLR 517 Bannister v Walton (1993) 30 NSWLR 699 Kriss v Legal Practitioners Admission Board [2002] NSWSC 967 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 Briginshaw v Briginshaw (1938) 60 CLR 336 B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 Stanoevski v Council of the Law Society of NSW [2005] NSWCA 428 In Re Davis (1947) 75 CLR 409 Melbourne v The Queen (1999) 198 CLR 1 CASES CITED : Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Barristers Board v Khan [2001] QCA 92 Re Hampton [2002] QCA 129 Thomas v Legal Practitioners Admission Board [2004] QCA 407 Re Bell [2005] QCA 151 Legal Practitioners Complaints Committee v Palumbo [2005] WASC 129 Barristers' Board v Darveniza (2000) 112 A Crim R 438 Frugtniet v Board of Examiners (No. 1) [2002] VSC 140 Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470 R v Subramaniam [2000] NSWCCA 441 R v Subramaniam [2002] NSWCCA 372 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Prothonotary of the Supreme Court of NSW v Del Castillo [2001] NSWCA 75 Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77 R v Murphy (1985) 4 NSWLR 42 R v Drummond and Domican (No. 2) (1990) 46 A Crim R 408 Prothonotary of the Supreme Court of NSW v Helen Maria Coughlan (Dowd J, 21 April 1998, unreported) R v Smith [2000] NSWCCA 202 Burns v The Queen (1975) 132 CLR 258 R v Green (2002) 4 VR 471 R v Pederick (NSW Court of Criminal Appeal, 21 May 1997, unreported, BC9701982) Mallard v The Queen (2005) 80 ALJR 160; [2005] HCA 68 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 Smith v NSW Bar Association (1992) 176 CLR 256 Thomas v Legal Practitioners Admission Board (2005) 1 QdR 331 Smith v NSW Bar Association (1992) 176 CLR 256

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The Role of the Board on Appeal 16 The Plaintiff has commenced proceedings nominating the Board as the sole Defendant. The Council of the New South Wales Bar Association and the Council of the Law Society of New South Wales have a statutory entitlement to be represented before this Court on a s.14 appeal: s.16(1). The Plaintiff did not join either Council as a party to the proceedings and neither Council has sought to be added as a party. 17 At the commencement of the hearing before me, Ms Anderson, counsel for the Board, submitted that the Board's appearance in the appeal would be limited to assisting the Court in determining the question whether the Plaintiff is of good fame and character and is otherwise suitable for admission. The Board did not oppose the orders sought by the Plaintiff and it did not seek to participate in the proceedings as an ordinary litigant with a vested interest. In this respect, Ms Anderson relied upon the decision of the Victorian Court of Appeal in Board of Examiners v XY [2006] VSCA 190 and, in particular, the statements of Chernov JA (Nettle and Neave JJA agreeing) at [18]-[20] and [25]. 18 In Board of Examiners v XY, Chernov JA observed, at [25], that the Board of Examiners is a statutory body that performs a quasi-judicial function in the public interest and appears on an appeal brought against its decision, not as a protagonist, but only for the purpose of assisting the Court. I accept that the function of the Board in the present appeal is similar to that of the Board of Examiners in Victoria as characterised by Chernov JA in Board of Examiners v XY. 19 This is not a claim for prerogative relief where a possible outcome is that the matter may be remitted to the original decision maker for reconsideration. It is the Court which will now exercise its original jurisdiction, by way of de novo hearing, and determine for itself the question whether the Plaintiff is of good fame and character and is otherwise suitable for admission. Considerations of the type mentioned in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 do not arise in this case. 20 In Re B, Moffitt P observed at 374-375, that where the ultimate decision as to whether a person is of good character depends upon a determination of disputed factual questions, including questions of credit, the Court is better equipped to deal with those issues than a body constituted such as the Board. A Court is in a position to decide matters of fact which are open to question, and the consequential question of good fame and character, aided as it can be by the presentation of evidence, and cross-examination upon it by counsel, and by hearing their submissions. 21 In circumstances where the Plaintiff did not join the Council of the Bar Association or the Council of the Law Society and neither Council has sought to be added as a party to the proceedings, it is, in my view, appropriate for the Board to fulfil the function exercised by counsel appearing for it on this appeal. It is necessary that evidence adduced by the Plaintiff bearing upon her good fame and character be tested by cross-examination, and that other evidence bearing upon the same issue be adduced before this Court to enable it to fulfil the statutory function under a s.14 appeal. 22 If the Board had not taken the approach which it has, I would, in any event, have requested the Council of the Bar Association or the Council of the Law Society to participate in the hearing or, alternatively, requested the Attorney-General to appoint counsel to act as amicus curiae on the hearing of the appeal. In the result, this is the function which Ms Anderson has fulfilled on behalf of the Board at the hearing of the appeal. The involvement of the Board at the hearing has assisted the Court in the determination of the matters falling for determination which, as will be seen, involve the public interest and the protection of the public.

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Proceedings for Admission to the Legal Profession 23 The present proceedings seek the Plaintiff's admission to the legal profession. It has been said that admission proceedings are not ordinary legal proceedings directed to the resolution of a contest as to the private rights of the disputing parties. Admission proceedings are "sui generis". Protection of the public is a significant feature of admission proceedings. In Wentworth v NSW Bar Association (1992) 176 CLR 239, Deane, Dawson, Toohey and Gaudron JJ said at 250-251: "The nature of proceedings concerned with the admission and discipline of barristers tells decisively against the construction of s.51(b) advanced on behalf of Ms Wentworth. There are, of course, differences between admission and disciplinary proceedings. Those differences flow from the different issues involved. However, disciplinary and admission proceedings are alike in that they are not ordinary legal proceedings. Admission proceedings are not directed to the resolution of some contest as to the private rights of disputing parties, as is usually the case with civil proceedings. And as has often been said, disciplinary proceedings are not criminal proceedings [ Weaver v. Law Society of New South Wales (1979) 142 CLR 201, at p 207; Re Veron; Ex parte Law Society of N.S.W . (1966) 84 WN (Pt.1)(N.S.W.) 136, at p 141; Attorney-General of the Gambia v. N'Jie 1961 AC 617, at p 631]. Disciplinary proceedings and admission proceedings are 'sui generis' [Weaver v. Law Society of New South Wales (1979) 142 CLR 201 at p 207] , a case concerned with disciplinary proceedings. Disciplinary proceedings have been described as proceedings concerned with the protection of the public [ Clyne v. N.S.W. Bar Association (1960) 104 CLR 186, at pp 201-202; New South Wales Bar Association v. Evatt (1968) 117 CLR 177, at pp 183-184; Weaver v. Law Society of New South Wales (1979) 142 CLR, at p 207; Walter v. Council of Qld Law Society (1988) 62 ALJR 153, at p 157; 77 ALR 228, at p 235] . And it has been said that, because they have the protection of the public as one of their primary objects, they cannot necessarily be determined on the same basis as adversarial proceedings [ Walter v. Council of Qld Law Society (1988) 62 ALJR, at p 157; p 235 of ALR]. That is also true of admission proceedings, although that may be more obvious in cases concerned with readmission. In any event, the right to practise in the courts is such that, on an application for admission, the court concerned must ensure, so far as possible, that the public is protected [ Re B (1981) 2 NSWLR, at p 380 and see, in relation to readmission, Incorporated Law Institute of New South Wales v. Meagher (1909) 9 CLR 655, at p 661] from those who are not properly qualified and, to use the language of s.4(2) of the Act, from those who are not 'suitable ... for admission'." 24 The exercise of the power of the Supreme Court on appeal under s.14 of the 1987 Act to admit or not admit a person as a legal practitioner does not involve punishment, but a determination whether the Court is justified in holding out the person as a fit and proper person to be entrusted with the duties and responsibilities of a legal practitioner: A Solicitor v Council of the Law Society of NSW at 264 [12]. 25 The jurisdiction of the Court to admit legal practitioners, and to discipline them once admitted, is exercisable in the public interest and for the protection of the public: Gersten v Law Society of NSW (2002) 56 NSWLR 16 at 24 [53]. 26 Matters relevant to a person's fitness for admission include matters which might, as a matter of ordinary experience, put the Court or any interested person on notice that further enquiry as to the applicant's fitness to practice may be prudent: Skerritt v Legal Practice Board of WA [2004] WASCA 28 at [48].

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Both the nature and purpose of admission and disciplinary proceedings indicate that, unless and save to the extent that specific procedures are laid down by statute or by rules of court, and subject, of course, to the requirements of procedural fairness, they may be conducted in whatever manner the court considers appropriate to the matter before it." 31 The Board is not appearing as an ordinary litigant on this appeal with a case to advance in the usual way in contested adversarial litigation. Rather, counsel for the Board is fulfilling the function of counsel assisting in placing relevant evidence before the Court and testing evidence adduced by the Plaintiff. 32 Ms Anderson submits that there is doubt that the Evidence Act 1995 applies to this appeal, given the peculiar and non-adversarial nature of an admission application: Wentworth v NSW Bar Association at 250-251. Ms Anderson submits that the question for determination on this appeal is the statutory question under ss.11 and 12 of the 1987 Act, namely whether I am satisfied that the Plaintiff is of good fame and character and is otherwise suitable for admission. 33 I agree with Ms Anderson's submission that the statute poses the question to be asked and answered by me on this appeal. Given that the question is being asked in curial proceedings, by way of statutory appeal, what level of satisfaction is required before an answer may be given in the Plaintiff's favour? 34 There is no provision in the 1987 Act which excludes the Evidence Act 1995 from application to a s.14 appeal. Section 4(1) Evidence Act 1995 provides that the Act applies in relation to all proceedings in a New South Wales court. Of course, the definition of "NSW court" in the Dictionary to the Act includes the Supreme Court. The term "civil proceeding" is defined in the Dictionary as meaning a proceeding other than a criminal proceeding. Prima facie, s.140(1) Evidence Act 1995 applies to the present proceedings. The Plaintiff bears the onus of proof, on the balance of probabilities, in these civil proceedings: s.140(1) Evidence Act 1995. The Board does not bear any onus of proof. 35 If these were disciplinary proceedings seeking the removal of the Plaintiff from the roll of legal practitioners, the onus of proof would lie upon the party seeking such an order and the standard of proof to be applied would be the civil standard, proof on the balance of probabilities, being qualified having regard to the gravity of the questions to be determined. The test has been said to be whether the issue has been proved to the reasonable satisfaction of the court or tribunal, such satisfaction not being produced by inexact proofs, indefinite testimony or indirect inferences: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 701; Rejfek v McElroy (1965) 112 CLR 517 at 521. The court or tribunal should be comfortably satisfied, on the balance of probabilities, before such a finding is made: Bannister v Walton (1993) 30 NSWLR 699 at 711-712. 36 If the Plaintiff had been struck off and was making application for readmission as a legal practitioner, the onus would lie upon her to satisfy the Court that she is now a person of good fame and character and is fit to be admitted as a legal practitioner: Kriss v Legal Practitioners Admission Board [2002] NSWSC 967 at [71]. On such an application, it has been said that the applicant must discharge the onus of proving to the satisfaction of the relevant tribunal his or her present fitness to practice on solid and substantial grounds: Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 98. 37 I approach the resolution of the present proceedings upon the basis that the Plaintiff bears the ultimate onus of proving, on the balance of probabilities, that she is of good fame and character and otherwise suitable for admission as a legal practitioner.

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Approach to Resolution of Disputed Factual Issues Where Impropriety Alleged Against the Plaintiff 38 There are significant areas of factual dispute to resolve on this appeal. The Plaintiff claims that she is of good fame and character. She denies that she made a false statutory declaration and gave false evidence in the District Court in 1996. There is evidence before the Court which indicates that the Plaintiff did act in this way. What approach should be taken to the resolution of these factual issues on this appeal? 39 Mr Hall, for the Plaintiff, submitted that I should not find that the Plaintiff made a false statutory declaration and/or gave false evidence in the District Court unless I was reasonably satisfied, on the balance of probabilities, that she had so acted in accordance with the Briginshaw principle. 40 In B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 at 460, McHugh JA (as his Honour then was) observed that, in Briginshaw, the High Court held that at common law only two standards of proof existed - the ordinary civil standard of proof upon a balance or preponderance of probabilities and the criminal standard of proof beyond reasonable doubt. McHugh J continued at 460: "However, although in Briginshaw their Honours held that only two standards of proof existed at common law, they recognised that satisfaction as to the civil standard of proof does not involve a mechanical weighing of probabilities. Thus while Dixon J said (at 362) that, except in a trial upon a criminal issue, the affirmative of an allegation only needs to be made out 'to the reasonable satisfaction of the tribunal', he went on to say that reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. This led Dixon J to declare (at 362) that reasonable satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences'. Rich J pointed out (at 350) that in a serious matter the satisfaction of 'a just and prudent mind' could not be produced by slender and exiguous proofs of circumstances pointing with a wavering finger to an affirmative conclusion." 41 McHugh JA said at 461: " Briginshaw decided that the standard of proof in a civil case was the balance of probability but it also decided that satisfaction as to whether that balance had been established depended upon the gravity of the allegation and its consequences. This distinction between quantum of proof and satisfaction as to proof may seem unsatisfactory to many minds. But it is a distinction which the law has long recognised." 42 The rationale for this approach was explained in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 (footnotes excluded): "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involved criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." 43 In Stanoevski v Council of the Law Society of NSW [2005] NSWCA 428, Mason P at [49] observed that the Briginshaw principle is a guide as to judicial method in resolving factual issues in professional disciplinary proceedings. 44 In The Matter of An Application by Deo [2005] NTSC 58, BR Martin CJ considered the approach to determination of an application for admission which was objected to by the Northern Territory Law Society, which participated at the hearing. The Chief Justice said at [4]: "The only questions in issue are whether the court should be satisfied that the application is of good fame and character and a fit and proper person to be admitted to practise. While the applicant's past conduct is relevant to a determination of these critical issues, and for that reason evidence as to past conduct is admissible, the question is not whether the applicant was in the past a fit and proper person to be admitted to practise but whether he is, today, of good fame and character and a fit and proper person to be admitted. The burden rests on the applicant to satisfy the Court of those matters, but where the Law Society has objected to the application and, in support of the objection, asserts the existence of facts adverse to the application, the burden rests upon the Law Society to satisfy the Court of the existence of those adverse facts." 45 It is accepted by the Plaintiff and the Board that the Plaintiff carries the onus of proof in these proceedings. In practical terms, what does that mean in the circumstances of this case? 46 The jurisdiction which I am exercising is not a punitive one. It is exercisable in the public interest and for the protection of the public: Wentworth v NSW Bar Association at 251. Subject to the requirements of procedural fairness, the proceedings may be conducted in whatever manner the court considers appropriate to the matter before it: Wentworth v NSW Bar Association at 251. 47 Where serious allegations of improper conduct are raised on an application for admission, and are disputed by the applicant, it is necessary to devise a mechanism for resolution of those disputed matters. The approach of BR Martin CJ in Deo (see paragraph 44 above) is of assistance to the present case. 48 The Board has tendered evidence, called witnesses and cross-examined the Plaintiff's witnesses on topics which bear upon the issues to be determined. Given the approach which I have allowed the Board to adopt on this appeal, the function performed by counsel for the Board is analogous to that of counsel assisting a Royal Commission or investigative tribunal. In the Final Report of the Royal Commission into the Building and Construction Industry, (Volume 2, February 2003, page 49), Commissioner Cole QC observed: "I do not regard the concept of the onus of proof as applicable in the context of a Royal Commission. That is because, in leading evidence during hearings of the Commission, Counsel Assisting were not putting a case. They were participants in an investigation. If, in accordance with the approach I have just outlined, I was reasonably satisfied that certain events had occurred, then I found that they had occurred. If I did not reach that level of satisfaction, I did not make that finding. That was, however, as a result of the application of the relevant standard of proof. It was not because Counsel Assisting had failed to discharge any onus."

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53 In Melbourne v The Queen (1999) 198 CLR 1, McHugh J contrasted character and reputation at 15 [33]: "In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called 'disposition - which is something more intrinsic to the individual in question.' [Preliminary paper 27, Evidence Law: Character and Credibility (1997), par 99] It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person [ Plato Films Ltd v Speidel [1961] AC 1090 at 1132, per Lord Denning ] ." 54 In Melbourne, Gummow J said at 24 [64]: "In the law, the notion of 'character' takes varying significance and shades of meaning from particular fields of discourse and the particular fact in issue. It may be said that 'character', that which marks out an individual, may not correspond with the reputation attributed to that person. However, as will appear, the law does not always clearly distinguish between the two, nor indicate the probative force to be attributed to whichever of them is to be established as a fact in issue, nor specify the evidentiary means, including permissible inference, by which that fact in issue may be proved." 55 Later in Melbourne, Gummow J at 25 [66] distinguished the use of the term "character" with respect to admission to a profession with the term as used in the criminal law and the law of defamation: "The issue in a proceeding may be whether an individual has the good character required for admission to pursue a particular profession or calling. Here the concern is not with disposition to perform particular acts with a requisite intention. Nor is the question simply one of the opinion others may have of the individual in question. In Ex parte Tziniolis ; Re The Medical Practitioners Act [(1966) 67 SR(NSW) 448 at 475-476] , Holmes JA said: 'The Act provides for the circumstances in which the name of a registered medical practitioner may be removed from the register and the expression 'infamous conduct in a professional respect' has been used to define such conduct. 'Good character' is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn.' His Honour emphasised that the court was not there dealing with good character in some particular sense developed by the criminal law or by the law of defamation." 56 Whilst there is a certain overlapping of the two terms "fame" and "character", there is a distinction. Fame involves being known, favourably, by a large section of the public, whilst character is directed to a more objective evaluation which might conflict with what the general public thinks: Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 at 29 (Miles CJ).

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Candour, Honesty and Integrity 57 High standards are expected of legal practitioners, so that members of the public, litigants, other practitioners and the courts themselves can have confidence in the integrity of those who enjoy special privileges as legal practitioners: Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 412C. This Court is the guardian of the maintenance of those standards: Law Society of NSW v Foreman at 412D. 58 Honesty and integrity are central prerequisites to a right to practice law: Legal Practitioners Complaints Committee v Palumbo [2005] WASC 129 at [23]-[24]. It has been observed, in the context of striking off proceedings, that the quality most likely to result in striking off is conduct which undermines the trustworthiness of a practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system in which he or she practices: Barristers' Board v Darveniza (2000) 112 A Crim R 438 at 445 [33]. 59 An applicant for admission as a legal practitioner must be candid and act with utmost good faith in making comprehensive disclosure of issues relevant to any matter which might reasonably be regarded as touching on the applicant's fitness to become a legal practitioner: Barristers Board v Khan [2001] QCA 92 at page 5; Re Hampton [2002] QCA 129 at [14], [26]-[29], [36]-[37]; Thomas v Legal Practitioners Admission Board [2004] QCA 407 at pages 8-10; Re Bell [2005] QCA 151. The obligation is closely related to the ethical duty of a legal practitioner, as an officer of the Court, not to mislead the Court: Re Bell at [5]. 60 The obligation of candour requires disclosure of convictions, even if the applicant believes in his or her own innocence and regards them as unjust, and hopes (or even expects) that they would be overturned on appeal: A Solicitor v Council of Law Society of NSW at 272 [30]. The obligation is not confined to disclosure of convictions for criminal offences, but requires the provision of information concerning criminal charges: Frugtniet v Board of Examiners (No. 2) at [14]. The obligation of candour requires disclosure irrespective of self interest or embarrassment: Frugtniet v Board of Examiners (No. 1) [2002] VSC 140 at [10], where Pagone J said at [11]: "His obligation was to disclose matters that could inform a judgment about whether he was a fit and proper person for admission to practice. It was not an obligation merely to list convictions or charges, but was an obligation to inform the decision maker of everything that could bear upon the judgment that needed to be made about him and his character. His task was not to select or edit from his life's experiences only some events that might be relevant to the question, but to disclose every matter that might fairly assist in deciding whether the applicant was a fit and proper person at the time of admission. Revealing more than might strictly be necessary counts in favour of an applicant; especially where the disclosure still carries embarrassment or discomfort. Revealing less than may be necessary distorts the proper assessment of the applicant and may itself show an inappropriate desire to distort by selection and screening of relevant facts." 61 The duty of an applicant for admission is one of full and frank disclosure. It is not for an applicant to decide what is or is not relevant to place before the Board or the Court. The duty is to put forward any matter that might reasonably be regarded by the Board or the Court as touching on the question of fitness to practice. However, in appropriate circumstances, an initial failure to make full disclosure may be remedied by the later provision of material: Morrissey v NSW Bar Association at [137]. 62 In Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470, McColl JA (Sheller and Beazley JJA agreeing) said at [50]-[51]: "Legal practitioners are under an obligation of candour to the Court: In re Davis [1947] HCA 53; (1947) 75 CLR 409 at 417 and 426. Lack of candour by a practitioner may lead to the conclusion that a practitioner is not a fit and proper person to remain on the roll. That obligation is essential to ensure that counsel may 'command the personal confidence ... of other members of the Bar and of judges': In re Davis , above, at 420 and so that the Court may hold out legal practitioners to members of the public as fit and proper persons to act for them: Ziems v Prothonotary of the Supreme Court of New South Wales , above, at 290; see also Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681; Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 at 625. The confidence a legal practitioner commands in judges and other members of the profession must be such that they can rely implicitly on the practitioner's word and behaviour: Barristers' Board v Young [2001] QCA 556 at [42] per Mackenzie J.

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The Plaintiff and the Criminal Proceedings Brought Against Her 67 The Plaintiff was born in Sydney in 1972. She completed a Bachelor of Science degree (majoring in psychology) at the University of New South Wales graduating in 1993. She commenced studying law at Macquarie University in 1994 with the degree of Bachelor of Legal Studies being conferred in 2002. 68 Over a period between 1993 and 1997, the Plaintiff was employed as a legal clerk with Leigh Johnson, solicitor, practising as Leigh Johnson Lawyers at 155A Palmer Street, East Sydney. Ms Johnson conducted a practice specialising in criminal law. 69 On or about 15 December 1996, summonses were served upon the Plaintiff, alleging two offences of perverting the course of justice under s.319 Crimes Act 1900. The first charge was that the Plaintiff "On 29 February 1996, made a statutory declaration knowing it to be false with intent to pervert the course of justice". The second charge was that "On 5 August 1996, [the Plaintiff] gave false evidence to the District Court with intent to pervert the course of justice". 70 Following committal proceedings extending over 15 days, the Plaintiff was committed for trial in the District Court on these charges by Dr E Elms, Magistrate, on 31 October 1997. 71 On 23 August 1999, the trial of the Plaintiff commenced before his Honour Judge Shillington QC and a jury in the Sydney District Court. The Plaintiff gave evidence at the trial. On 3 September 1999, the jury was discharged because it was unable to reach a verdict. 72 Thereafter, the Plaintiff's mental health deteriorated. On 11 April 2000, the Plaintiff applied for a permanent stay of the criminal proceedings. His Honour Judge Gibson QC refused the application. The Court of Criminal Appeal rejected an interlocutory appeal against the refusal of the stay of those proceedings: R v Subramaniam [2000] NSWCCA 441. 73 On 16 March 2001, following a hearing under s.11A Mental Health (Criminal Procedure) Act 1990, his Honour Acting Judge Stewart found the Plaintiff unfit to be tried. On 25 September 2001, the Mental Health Review Tribunal, acting pursuant to s.16 Mental Health (Criminal Procedure) Act 1990, formed the view that, because of the Plaintiff's moderate intellectual disability, she would not meet the criteria for fitness to be tried and that, on the balance of probabilities, this situation would continue and the Plaintiff would not become fit during the period of 12 months after the finding of unfitness. 74 On 28 November 2001, the Attorney General for New South Wales directed that a special hearing be conducted of the charges against the Plaintiff under s.19 Mental Health (Criminal Procedure) Act 1990. 75 On 24 April 2002, the special hearing under s.21 Mental Health (Criminal Procedure) Act 1990 commenced before his Honour Judge Luland QC and a jury. Before then, a further application for a permanent stay was made and refused. On 1 May 2002, the jury returned a verdict of not guilty on the second count (giving false evidence). On the first count (making a false statutory declaration), the jury was satisfied that, on the limited evidence available, the Plaintiff committed the offence charged: s.22(1)(c) Mental Health (Criminal Procedure) Act 1990. Such a verdict is a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the findings relates: s.22(3)(a). The verdict constitutes subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings: s.22(3)(c). Pursuant to s.9 Crimes (Sentencing Procedure) Act 1999, the trial judge directed that the Plaintiff enter into a good behaviour bond for a period of three years: s.23(2) Mental Health (Criminal Procedure) Act 1990. 76 On 25 November 2002, the Court of Criminal Appeal dismissed an appeal against the verdict returned on the first count at the special hearing: R v Subramaniam [2002] NSWCCA 372. 77 On 10 November 2004, the High Court of Australia allowed an appeal against the verdict on the first count of the special hearing, quashed the finding and directed that a new trial be held: Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51. The appeal was allowed upon the ground that the presiding Judge at the special hearing had failed to give the jury a sufficient direction to satisfy the mandatory requirements in s.21(4) Mental Health (Criminal Procedure) Act 1990 to explain the process and consequences of the special hearing( see 13-15 [42]-[48], 17 [61]). Other grounds of appeal against the verdict were rejected by the Court. 78 On 23 December 2004, the Director of Public Prosecutions informed the Plaintiff that no further proceedings were to be taken against her in relation to the s.319 Crimes Act 1900 count alleging the making of a false statutory declaration.

[61]

The Plaintiff Applies to the Board for Admission 79 On 6 June 2003, the Plaintiff made application to the Board for admission as a legal practitioner expressing a preference, in the application form, for inclusion in the admission ceremony on 11 July 2003. The application was made after the Court of Criminal Appeal had dismissed the appeal (on 25 November 2002) and before special leave to appeal was granted by the High Court of Australia (on 14 November 2003). Following a query concerning an aspect of the application form, the Plaintiff lodged a further application with the Board on 16 June 2003. Included in the application was a declaration in paragraph 7.4 to the following effect: "I have not done anything likely to affect adversely my good fame and character, and am not aware of any circumstance that might affect my fitness to be admitted as a legal practitioner ( CROSS OUT the following words if you do not have anything to disclose ) unless the Board considers that my good name and character or my fitness may be affected adversely by the circumstances in the attached 'Disclosure' signed by me." 80 Attached to the application form was a document addressed to the Board which contained the following: "I was a victim of a horrendous unjustified District Court matter over a 'red light traffic offence'. It ran over many years, for political reasons, at the expense of my health and career. Despite this, I managed to complete my law degree. I have no conviction in law against me . Mr Charles Waterstreet, of Counsel will speak with you in relation to this issue if needed. He is my barrister and is available on 02 9267 4955. I am also available on the details provided. I very much look forward to practising within the profession. [Plaintiff's signature] I have NEVER been bankrupt or committed an act of bankruptcy or tax offence. [Plaintiff's signature] Stewart J 19/3/01-21/3/01 Luland J 22/4/02 - Special Hearing. [Plaintiff's signature] " 81 It is not clear, on the evidence, whether the Plaintiff provided the Board, at that time, with a copy of the judgment of the Court of Criminal Appeal of 25 November 2002. 82 By letter dated 2 July 2003, the Executive Officer of the Board informed the Plaintiff that her application had been considered at a meeting of the Board on 1 July 2003. It was stated that the Board had had an opportunity to consider the judgment of the Court of Criminal Appeal "but has not had any other material". It stated that "at the present time, the Board does not consider itself able to properly determine your application". The Plaintiff's attention was drawn to ss.11 and 12 of the 1987 Act. The letter continued: "While it may be correct that you have not been convicted of an offence, it would appear that after trial, a jury has found you guilty of certain conduct, which might be considered sufficient to throw doubt on your good fame and character and your suitability to practice. The Board has neither made nor refused a declaration of the type required by section 11. It does not consider that it has sufficient information from you about the matters you have disclosed and which are contained in the Court of Criminal Appeal judgment. You may wish to seek advice or assistance, but any evidence or submissions you wish to make should, at least, address the conduct that led to the charge, which was found proven. You may also wish to consider obtaining a psychiatric or other medical report dealing with the question of your fitness to practice as a legal practitioner having regard to the fact that there was evidence finding you unfit to stand trial at the time of the Special Hearing." 83 By letter dated 21 July 2003, the Plaintiff replied to the Board's letter. She stressed that the finding of the jury at the special hearing was not a conviction and pointed to the medical evidence. Further, she emphasised that she was not guilty of the charge and had not made a false statutory declaration. The Plaintiff provided medical reports to the Board. 84 On 20 August 2003, the Executive Officer of the Board informed the Plaintiff that, following consideration of the material supplied by her, the Board had resolved to refuse her application at a meeting on 19 August 2003. The Plaintiff's attention was drawn to the appeal provision contained in s.14 of the 1987 Act. 85 By Summons filed on 13 October 2003, the Plaintiff commenced the present proceedings. 86 By letter dated 3 February 2005, the Plaintiff's then solicitors informed the Board of the decision of the Director of Public Prosecutions not to proceed further in relation to the false statutory declaration count. At a meeting on 8 February 2005, the Board resolved not to alter its decision to refuse to the Plaintiff a declaration that she is of good fame and character and otherwise suitable for admission.

[66]

Relevance of the Plaintiff's Acquittal on the Second Count and Discontinuance by the Crown of the First Count 91 It was accepted by the parties that the acquittal of the Plaintiff on the second count and the Crown's decision not to proceed with the first count had no effect on the ventilation of the factual matters underlying those prosecutions, for the purpose of my determining whether the Plaintiff is of good fame and character for the purposes of s.14 of the 1987 Act. 92 An acquittal by a jury turns upon failure to establish guilt beyond reasonable doubt, whereas the civil standard applies in the present proceedings: Zaidi v Health Care Complaints Commission at 86. There is no principle of double jeopardy applicable in professional disciplinary proceedings, or proceedings for admission as a legal practitioner, consequent upon an acquittal in criminal proceedings based on the same facts: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 636; Prothonotary of the Supreme Court of NSW v Del Castillo [2001] NSWCA 75 at [32]; Frugtniet v Board of Examiners (No. 2) at [20]-[22]. 93 If the Plaintiff had been convicted of either offence, public policy suggests that so long as the conviction stands, the facts necessarily established ought to be regarded as proved for the purpose of any civil proceedings: Zaidi v Health Care Complaints Commission at 86. A collateral attack upon a conviction in subsequent civil (disciplinary) proceedings ought not be allowed: Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77. Of course, the Plaintiff was acquitted on the second count and the adverse finding at the special hearing on the first count was quashed by the High Court of Australia. The Director of Public Prosecutions then determined not to proceed further on that count. Accordingly, no criminal finding adverse to the Plaintiff remains. 94 Although the criminal proceedings against the Plaintiff, and the evidence adduced at those proceedings, represent an important part of the history of the present application, and provide the source of substantial documentary evidence which is before the Court, the various findings made in those proceedings have no legal effect for the purpose of the issues to be determined by me.

[84]

The Evidence of Ms Halls 97 Ms Halls was employed in Ms Johnson's office as the officer junior and then as a legal secretary. She knew the Plaintiff who was, at relevant times in 1995 and 1996, Ms Johnson's personal assistant. 98 Ms Halls gave evidence of an occasion in 1995 when an infringement notice for Ms Johnson arrived in the mail. Ms Halls gave evidence to the following effect at the Plaintiff's first trial on 31 August 1999, and adhered to this evidence before me (T411, 31 August 1999): "Q. What was happening, what was she doing and what were you doing? A. Well I was coming up the stairs, I handed the mail to Kala [the Plaintiff] , she'd been sitting down on the computer and I sat behind her because there was four desks in the accounts room. She was sitting at the front left and I actually sat on the back left, not on a chair on the table and she was proceeding to open up the mail and she turned round and she said look what Leigh's got. I said what and she showed me the infringement notice and when we both had a look at it I said where would she be coming from, Harry's or John's because they live out that way, Maroubra, Botany way and Kala said I think she might be coming from John's. And then where's she going to get the money for this and what about the points she'll lose. I said I don't know and then I heard nothing about it. Kala said I'll get a photo to see where it was and then I didn't hear another thing about it until the police contacted me." 99 Ms Halls gave evidence to a similar effect at the special hearing on 30 April 2002 (Exhibit 1, Tab SS9, T45-46). 100 Ms Halls was cross-examined before me and it was suggested to her that no such conversation had taken place with the Plaintiff. Ms Halls maintained that such a conversation had taken place and that she had a good recollection of it (T40-42, 24 October 2006). When challenged in cross-examination about that part of the conversation concerning "where's she [Ms Johnson] going to get the money" ($184.00), Ms Halls said "there was a time when our wages were in question, so financial situations did come up" (T41.13).

[85]

The Evidence of Mr Dib 101 Mr Dib worked as a legal clerk in Ms Johnson's office from about 25 September to 22 October 1996. He gave evidence in the criminal proceedings against the Plaintiff on 27 June 1997 (committal proceedings), 3 August 1999 (first trial) and 11 May 2002 (special hearing) and again in the present proceedings before me. 102 Mr Dib stated that, on 14 October 1996, he was giving the Plaintiff a lift home and they stopped at McDonalds in Oxford Street, Sydney to get a meal. Mr Dib gave evidence to the following effect at committal proceedings on 27 June 1997, to which he adhered in evidence before me (T12, 27 June 1997): "HOWARD: Q. Yes? A. Kala went inside the McDonald's restaurant and she got a meal for me and then she hopped in the car and I proceeded to driver [sic] her home. The lights went yellow. Q. Where were you travelling at this stage? A. Down at Oxford Street. Q. Continue? A. The lights went yellow and I braked and she said, 'Go, go, go', and I just looked at her and said, 'No, it's not worth it'. Then she looked at me and said to me, 'Leigh went through a red light once and there was some sort of investigation', and I asked her, 'What happened?' and she said, 'We denied it and we got away with it'. Q. And did she do anything after she said that? A. She just put on a laugh. Q. She put on a laugh? A. Yes, she laughed. Q. And did you then drive her home? A. Yeah, I dropped her off at Potts Point." 103 A strong challenge was made in cross-examination before me to the veracity and reliability of Mr Dib's evidence. It was suggested in cross-examination that he bore a grievance towards Ms Johnson. Mr Dib said that he complained to the Law Society about Ms Johnson's "abuse between employer and employee" which involved "shouting and screaming and intimidation" (T139, 25 October 2006). It was suggested to Mr Dib that he falsely alleged that the conversation with the Plaintiff had taken place on 14 October 2006 as a means of harming Ms Johnson (T143, T155-156). Mr Dib denied this and maintained that the conversation with the Plaintiff had, in fact, taken place.

[143]

[Plaintiff]: (Laughs) That's true . [Coughlan]: I've got a dreadful one. Well I haven't really, it's just parking. [Plaintiff]: I've got a lot of parking fines and stuff, but, you know, that's not a driving record. [Coughlan]: Do you what, um, happened to me? I didn't pay a parking fine, because you know how I moved from Croydon to Camperdown. [Plaintiff]: They cancelled your licence . [Coughlan]: Yeah, they cancelled my - how did you know? [Plaintiff]: That's what happened to Leigh a couple of years ago too . [Coughlan]: Ah right, so I've got to go down and ah … [Plaintiff]: Yeah. [Coughlan]: … and pay it. But, um, and get my licence back. But I can't drive anyway. They've taken my … [Plaintiff]: What you do is go down and pay and make a big noise. Because otherwise they'll make you pay to reinstate your licence. [Coughlan]: Yeah. [Plaintiff]: I mean Leigh had, Leigh went down there, like two or three years ago . [Coughlan]: Right. [Plaintiff]: It was also an unpaid parking fine. They cancelled her licence: just sent a letter saying they cancelled it. She went off her head. Oh my God she went off her head that day . [Coughlan]: Yeah. [Plaintiff]: I don't think you were at the office at that time were you? [Coughlan]: No, no, no, no. [Plaintiff]: You weren't working there. [Coughlan]: No. [Plaintiff]: Oh my Godfather. We went down to the RTA … [Coughlan]: Mm. [Plaintiff]: … and she made the biggest scene you've ever seen. [Coughlan]: Well, she's good at that." 106 In the judgments of the Court of Criminal Appeal and the High Court of Australia, it was observed that statements of the Plaintiff during this conversation were aptly described as admissions or confessions by her of the offences charged. 107 In the Court of Criminal Appeal, it was argued for the Plaintiff that the trial Judge had erred in refusing to exclude the tape recording and conversation. Beazley JA, at [43]-[45], outlined the bases for these objections: "On 6 December 1996, Ms Coughlan was fitted with a listening device for the purposes of recording a conversation with the appellant. There was no challenge to the validity of the recording, which followed the obtaining of a warrant under the Listening Devices Act 1984 (NSW). The appellant submitted that the record of the conversation should not have been admitted into evidence because the admissions obtained in the conversation were the result of a number of deceptions practised upon the appellant by Ms Coughlan and were also made following a series of leading questions. The deceptions said to have been practised upon the appellant included the pretence that Ms Coughlan was a friend of the appellant; that she had taken the day off; that she had run into the appellant unexpectedly and insisted that she go for coffee, taking the appellant away from her intended task of going to the bank; and complaint is also made about the continual degrading of Ms Johnson during the course of the conversation, including discussions of embarrassing sexual matters and alleged unethical behaviour with criminal clients, so as, in effect, to form a special clique or bond with the appellant against Ms Johnson.

[148]

In my opinion, none of the complaints which the appellant makes about the manner in which the conversation was pursued or the admissions obtained has been made out. Rather, it is more than apparent from the material portions of the tape relied upon by the Crown that the appellant was a willing participant in the conversation. It has not been demonstrated that the trial judge erred in the exercise of his discretion in admitting the transcript." 109 Beazley JA (Sully J agreeing) rejected all grounds of appeal raised by the Plaintiff in the Court of Criminal Appeal. Simpson J agreed with Beazley JA, with the exception of the appeal against the refusal to grant a stay of proceedings (a ground unrelated to the recorded conversation between the Plaintiff and Ms Coughlan). 110 As mentioned earlier in this judgment, the High Court of Australia allowed the Plaintiff's appeal with respect to a ground added during the course of the appeal to that Court, complaining of the failure of the trial Judge at the special hearing to comply with the requirements of s.21(4) Mental Health (Criminal Procedure) Act 1990. The High Court upheld this ground of appeal alone. With respect to a ground of appeal concerning the recorded conversation between Ms Coughlan and the Plaintiff, Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ said at 127 [49]-[51]: "The next ground relates to the directions of the trial judge with respect to the reception in evidence of the taped record of the conversation between Ms Coughlan and the appellant and the in-court evidence of the former. It is necessary first to say something about the true character of the taped evidence. In the Court of Criminal Appeal the appellant argued that the trial judge erred in admitting the evidence because it had been obtained as a result of a number of subterfuges and deceptions. Several were sought to be identified: that Ms Coughlan exploited her friendship with the appellant; that she claimed to the appellant to have accidentally encountered her and had insisted they take coffee together, and, that Ms Coughlan continually disparaged Ms Johnson to the appellant so as to encourage her to speak against Ms Johnson's interests. The answer to these submissions was correctly given by Beazley JA in the Court of Appeal: '... there is nothing in the conversation to indicate that the appellant felt overborne, threatened or prevailed upon during the course of the conversation.'

[178]

Q. Madam, I suggest to you that the evidence you're giving in relation to this conversation and the fact of it all being just fantasy and rubbish is untrue? A. That's not true." 121 The Plaintiff acknowledged in cross-examination at the first trial that she had been, and remained, a close friend of Ms Johnson (T455, 31 August 1999). The Plaintiff confirmed that Ms Johnson had been present, from time to time, outside the Court during the first trial in August 1999 (T455, 31 August 1999). The Plaintiff acknowledged that she was aware that the listening device recording of the conversation between Ms Coughlan and the Plaintiff was not admissible in evidence at the committal proceedings against Ms Johnson (T457, 31 August 1999). 122 The Crown Prosecutor concluded cross-examination in the following way (T462, 31 August 1999): "Q. And I suggest to you that you're motivated to protect your own self and also someone very close to you, namely Leigh Johnson? A. That's not true and I don't appreciate that sort of insinuation." 123 It is appropriate to set out extracts from the Plaintiff's evidence before me to illustrate its content and flavour. 124 In her evidence on this appeal on 24 October 2006, the Plaintiff adhered to the view expressed in her application to the Board in June 2003 that she was "a victim of a horrendous unjustified District Court matter" which "ran over many years for political reasons" (T48, 24 October 2006). Under cross-examination before me, the Plaintiff was asked (T49): "ANDERSON: Q. What are the political reasons to which you referred? A. I don't recall now what I thought at the time but I certainly had no idea before entering law and wanting to become a lawyer that things like the red light court case, which I call it at the moment, could be perpetrated, that sort of an attack could be perpetrated on somebody who is telling the truth. I had no idea. I was completely shocked and I didn't realise that corruption like that existed in a western democracy.

[242]

Evidence of Ms Johnson 142 Ms Johnson has given evidence in the present appeal, for the first time, concerning events surrounding the red-light camera offence of 21 August 1995 and subsequent events. She was not called as a witness by the Crown or the Defence in the Plaintiff's District Court trial in 1999 nor at the special hearing in 2002. In submissions, Mr Hall emphasised the significance of Ms Johnson's evidence to the resolution of the factual matters arising in these proceedings. 143 In her affidavit sworn 23 October 2006, Ms Johnson said that she was not driving her BMW motor vehicle through the intersection of Albion and Crown Streets, Sydney at 8.20 am on 21 August 1995. She stated that, when the camera infringement notice arrived in the mail (on about 7 September 1995), she had a recollection of having crossed an intersection at Crown Street, Sydney through an amber traffic light. She assumed that the camera infringement notice related to this incident and, as she had not driven through a red light, she signed the back of the notice requesting that the matter proceed by way of court hearing. 144 Ms Johnson stated that, after receiving the photographs of the incident (following a written request on 30 January 1996), she became aware that the photograph did not depict the particular intersection that she recalled traversing through an amber light. When she saw the photographs, she placed a yellow post-it note on them containing words to the effect "This was not me, check who was driving". The photographs bearing this note were forwarded to the Plaintiff, who was then employed by Ms Johnson as a legal clerk. Several hours later, the Plaintiff came to Ms Johnson and said, "I think that was me driving the car, because I had to go and pick up files". Having listed the matter for hearing by filling in the court hearing notice, Ms Johnson said to the Plaintiff, "You better get a stat dec and send it to the Infringement Bureau". Ms Johnson stated that she had no reason to believe that any person other than the Plaintiff was driving her BMW vehicle through the relevant intersection at 8.20 am on 21 August 1995. 145 Ms Johnson was cross-examined on her affidavit. I put to one side, for the moment, her non-responsive answers given from time to time despite exhortations from me to listen to and answer the question asked (T109-110, 115, 119-120, 130). She stated that she was "indignant" at receiving a camera infringement notice when, in her view, she had passed through an amber, and not a red light. Ms Johnson stated that she was unaware that it was possible to obtain photographs of alleged camera-recorded traffic light infringements and that she first learned of this in a conversation at the Downing Centre with a then serving police officer, Mark Light, some time after receipt of the camera infringement notice. It was at that time, she said, that written application was made for the photographs (on 30 January 1996). There was no mention of Mr Light in Ms Johnson's affidavit of 23 October 2006. 146 Ms Johnson was asked whether, to her knowledge, enquiries had been made of the staff working for her as to whether she had been in her office at 8.20 am on 21 August 1995. Ms Johnson was unable to point to any material or information obtained on her behalf, for the purpose of the committal proceedings in 1997, which supported her statement that she was in her office, and not driving her motor vehicle, at 8.20 am on 21 August 1995 (T114-118). 147 A significant issue arose during the cross-examination of Ms Johnson concerning her initial response on receipt of the camera infringement notice on about 7 or 8 September 1995 (T118.48): "Q. But in any event, when you first saw the infringement notice you believed that it applied to a situation where you had gone through an amber light? A. Yes, I do.

[281]

Q. So that if it could be found that the driver could not be identified Ms Subramaniam could execute a statutory declaration to say that she was in fact the driver at the time of the infringement? A. No." 152 In one of her answers during this exchange (T128.24), Ms Johnson stated that the orange-light incident which she had assumed was the subject of the 21 August 1995 camera infringement notice occurred "in the afternoon". The camera infringement notice dated 31 August 1995, the back of which was signed by way of court election by Ms Johnson on 8 September 1995, bore the following clear entries on its face: "OFFENCE DATE: 21/08/95 at 08:20 AM OFFENCE: DISOBEY TRAFFIC LIGHT SIGNAL - CAMERA DETECTED OFFENCE PLACE: CROWN STREET (68) AND ALBION STREET SURRY HILLS This offence carries the loss of three demerit points." 153 Ms Anderson submitted that an important matter for my fact-finding function was an assessment of Ms Johnson's evidence that she had not looked closely at the notice and observed the time and date of the offence, but had assumed that the notice related to some other incident which had occurred on an afternoon and not a morning. 154 In re-examination, Ms Johnson was asked about concerns in her life in August 1995 and she referred to the death from cancer of her partner on 2 July 1995 (T133). From submissions made by Mr Hall, it appears that this evidence was led from Ms Johnson to support a submission that, as at August 1995, she had other distractions and concerns on her mind that would render it unlikely that she would give close consideration to a camera infringement notice, let alone embark upon a course of conduct leading to a false denial that she was the driver, and a false claim by the Plaintiff that she had been driving the car. However, this evidence may go to a further issue, namely the general reliability of Ms Johnson's account of events in August 1995 and following. 155 I will return to the evidence of Ms Johnson for the purpose of making findings which are relevant to the determination of this appeal.

[317]

The Plaintiff's Submissions 166 Mr Hall submits that the Court should be satisfied that the Plaintiff is of good fame and character and is otherwise suitable for admission as a member of the legal profession. He points to the unchallenged evidence concerning the Plaintiff's academic results and the affidavits of Ms Viselle, Mr Rae, Mr Clowes and Ms Barclay, together with the statement of Mr Vu, which testify to their opinions that the Plaintiff is a person of honesty and integrity and a fit and proper person to be admitted as a legal practitioner. 167 Mr Hall submits that the matters surrounding the statutory declaration made by the Plaintiff and evidence given by her in 1996 ought only operate to prevent a finding in her favour of good fame and character if the Court is reasonably satisfied in accordance with the Briginshaw principle that the Plaintiff misconducted herself in that way. 168 For reasons explained earlier in this judgment (paragraphs 38 to 49), I accept that a finding should not be made that the Plaintiff was not the driver of the motor vehicle which passed through the red traffic light on 21 August 1995, and that she had thereby made a false statutory declaration on 29 February 1996 and gave false evidence in the District Court on 5 August 1996, unless I am reasonably satisfied, on the balance of probabilities, in accordance with the Briginshaw principle, that the Plaintiff had so misconducted herself. 169 Mr Hall submits that no adverse findings should be made against the Plaintiff arising from the events of 1995 and 1996 and that, accordingly, the Court should be satisfied that she is of good fame and character and otherwise suitable for admission. 170 With respect to the various categories of evidence adverse to the Plaintiff, Mr Hall makes the following submissions. 171 The evidence of Ms Halls is unreliable insofar as it alleges that a conversation took place with the Plaintiff in early September 1995 following the receipt of the camera infringement notice in Ms Johnson's office. Mr Hall submits that the evidence of the Plaintiff should be preferred to that of Ms Halls on this question, although he does not submit that Ms Halls was giving deliberately false evidence in alleging the conversation referred to in her evidence. 172 Mr Hall submits that the evidence of Mr Dib that the Plaintiff made admissions to him in a conversation in October 1996 ought be rejected as being deliberately untruthful evidence. It was submitted that Mr Dib, who had complained to the Law Society about Ms Johnson's conduct, had a strong dislike for her and that Mr Dib was not an objective witness. There was no contemporary record made of the alleged conversation, with no complaint being made of it until Mr Dib was speaking to Law Society investigators. Although Mr Hall could not point to any reason for Mr Dib wishing to make a damaging allegation against the Plaintiff (as opposed to Ms Johnson) he submitted that the alleged conversation between Mr Dib and the Plaintiff ought be treated as an attempt by Mr Dib to harm Ms Johnson by alleging wrongdoing on her part. 173 With respect to the recorded conversation between the Plaintiff and Ms Coughlan on 6 December 1996, Mr Hall submits that the evidence of the Plaintiff characterising the entire conversation as "rubbish", "gossip" or "fantasy" ought be accepted. He emphasised the need to read the entire transcript of the conversation, which extended over more than one hour, to gauge the flavour of it. He submitted that it would be erroneous to treat the statements made by the Plaintiff concerning the red-light camera offence of 21 August 1995, her statutory declaration of 29 February 1996 and her evidence in the District Court on 5 August 1996 as being credible and reliable admissions of wrongdoing on her part. He pointed to parts of the conversation, including references to Hollywood actors and other items of personal gossip, as a reflection of the tenor and content of the entire conversation. 174 With respect to the documents which are in evidence before me, and which were in evidence in the criminal proceedings, Mr Hall submits that a finding that the Plaintiff acted improperly would require a finding of a type of conspiracy between the Plaintiff and Ms Johnson which was on foot from early September 1995 until August 1996. He submitted that this was farfetched. The appropriate conclusion, Mr Hall submitted, was that the correspondence emanating from Ms Johnson's office, some of which was signed by the Plaintiff, illustrated the relative unimportance of the red-light camera offence of 21 August 1995. To the extent that erroneous statements were contained in that correspondence, this served to emphasise the absence of a careful criminal plan. He submitted that the documents either taken alone, or in conjunction with the other evidence, ought not be treated as evidence of wrongdoing on the Plaintiff's part. 175 Mr Hall submits that the critical additional evidence on the present appeal (which had not been before the criminal courts) was the evidence of Ms Johnson and Mr Light. Although acknowledging that Ms Johnson had been, at times, an argumentative and troublesome witness, he submitted that this could be explained by the degree of bitterness or animosity on her part towards those who had caused her to be prosecuted for the events of 1995 and 1996 arising from the red-light camera offence. He submitted that Ms Johnson should be accepted as a credible witness who had given her evidence in a forthright manner. It was her sworn evidence, he submitted, that she had not been driving her BMW motor vehicle at 8.20 am on 21 August 1995 when it passed through a red light at the intersection of Crown and Albion Streets, Surry Hills. He submitted that her sworn denial to this effect, and her denial of an improper arrangement whereby the Plaintiff would take responsibility for this offence, ought lead to a finding in the Plaintiff's favour in these proceedings. Mr Hall sought to call in aid, with respect to Ms Johnson's evidence, statements by the Court of Criminal Appeal in R v Drummond and Domican (No. 2) (1990) 46 A Crim R 408 at 416-419 with respect to evidence given by Ms Johnson in that appeal. 176 He submitted that the evidence of Ms Johnson concerning her discovery, from a conversation with Mr Light, of the facility to obtain photographs of an alleged red-light camera offence was corroborated by the evidence of Mr Light called in these proceedings. Although Mr Light could not be specific as to when this conversation occurred (beyond the statement that it was many years before October 2006), Mr Light's evidence supports Ms Johnson in her claim that such a conversation took place. Further, he submitted that Mr Light's evidence under cross-examination of his association with Ms Johnson did not undermine the substance of his evidence that such a conversation had taken place with Ms Johnson. 177 Mr Hall submitted that, at worst, the Plaintiff had engaged in a reckless and unwise conversation with Ms Coughlan on 6 December 1996. He submitted, however, that none of the statements made by the Plaintiff in that conversation ought be treated as credible and reliable admissions of improper conduct on the part of the Plaintiff. He submitted that the Plaintiff's explanation of this conversation, and her expression of regret for having had such a conversation, ought be accepted by the Court. 178 In summary, Mr Hall submitted that the Court should not be reasonably satisfied that the Plaintiff had made a false statutory declaration on 29 February 1996 nor that she had give false evidence to the District Court on 5 August 1996 with respect to the red-light camera offence of 21 August 1995. 179 He submitted that the Plaintiff had disclosed the existence of the proceedings which had been brought against her in her application for admission in 2003, and that no basis existed for a conclusion that she had been less than candid in her disclosure to the Board. 180 Mr Hall submits that a finding should be made that the Court is satisfied that the Plaintiff is of good fame and character and otherwise suitable for admission as a member of the legal profession.

[318]

The Board's Submissions 181 Consistent with the approach of the Board throughout the proceedings, Ms Anderson made submissions as to possible findings which may be open to the Court in the light of the evidence adduced at the hearing, but did not urge a particular outcome. As will be seen from the extracts from cross-examination referred to earlier in this judgment, the Plaintiff, Ms Johnson and Mr Light were tested on a number of issues and propositions were put to them for response. The Board's submissions were designed to assist the Court with possible ways of viewing the evidence, so that the Court could undertake its fact-finding function in aid of a jurisdiction being exercised principally to protect the public and the legal profession and in the public interest. 182 Ms Anderson submits that the Plaintiff was under a duty, as an applicant for admission, to make full and frank disclosure to the Board and that it was open to the Court to conclude that her disclosure was not adequate in a number of respects. 183 Ms Anderson submitted that it was open to the Court to conclude that the evidence of Ms Halls concerning her conversation with the Plaintiff concerning the camera infringement notice in early September 1995 was credible and reliable. There was no reason to doubt or question the evidence of Ms Halls given at the first trial in August 1999, and at the special hearing in April 2002. Significantly, it was Ms Halls evidence that the Plaintiff said to her during that conversation "I'll get a photo to see where it was". This evidence is fundamentally inconsistent with that of Ms Johnson. If the evidence of Ms Halls is accepted, it points to a recognition on the part of the Plaintiff, at a time well before January 1996, that it was possible to obtain a photograph of a red-light camera offence. 184 Ms Anderson submitted that it was open to the Court to accept the evidence of Mr Dib that a conversation took place in October 1996 in which the Plaintiff made admissions, in effect, of improper conduct on her part with respect to the red-light camera offence. Although Mr Hall had made a strong attack on Mr Dib with respect to a suggested grievance on his part towards Ms Johnson, Ms Anderson submitted that no basis had been identified in the evidence for Mr Dib to harbour any bias or grievance towards the Plaintiff. Mr Dib had given evidence of the conversation with the Plaintiff at the committal proceedings on 27 June 1997, a date not too remote from October 1996. Ms Anderson submitted that the Plaintiff agreed that Mr Dib had given her a lift home, but contended that the statement attributed to her by Mr Dib is a concoction. Insofar as there is conflict between the evidence of Mr Dib and the Plaintiff in this respect, Ms Anderson submits that the relevant question is which person is telling the truth. 185 With respect to the evidence of Ms Johnson, Ms Anderson notes that Ms Johnson had not been called in earlier criminal proceedings. She submits that it is open to the Court to infer that the Crown would have regarded Ms Johnson as an unreliable witness in the criminal proceedings against the Plaintiff, and that that Plaintiff's then legal representatives made a tactical decision not to call Ms Johnson at the first trial in 1999 or the special hearing in 2002. Cross-examination of the Plaintiff at the first trial revealed that Ms Johnson had been, to the knowledge of the Plaintiff, in the precincts of the Court during the first trial. 186 Ms Anderson submits that one of the difficulties for the Plaintiff in the present case is that there is significant inconsistency between the evidence of Ms Johnson and the Plaintiff. Ms Johnson's evidence is to the effect that when she first saw the camera infringement notice in her office, she believed that it applied to a situation where she had gone through an amber light and that there was no reason for her to have asked anybody the question "Who was driving the car?" or the question "Who took the car?". In this regard, Ms Johnson was emphatic in her evidence that she had not asked these questions (T118-119). The evidence of Ms Johnson on this issue stands in stark contrast to that of the Plaintiff. 187 Ms Anderson submits that this conflict is capable of reflecting upon the credibility and reliability of the Plaintiff, Ms Johnson or both of them. Ms Anderson posed as a question for consideration by the Court, whether Ms Johnson's personal circumstances in August/September 1995 were such that her memory with respect to events is unreliable. 188 Ms Anderson expanded upon this conflict between the evidence of the Plaintiff and Ms Johnson. It was Ms Johnson's evidence, with respect to the significant delay in requesting the photographs, that she did not know that such photographs could be obtained until after she had a conversation with Detective Light, leading to a letter being sent on 30 January 1996 seeking the photographs. It was submitted that this explanation by Ms Johnson (and the evidence of Mr Light), as to the reason for the delay in ordering the photographs, was inconsistent with the Plaintiff's evidence that on the first occasion that she (the Plaintiff) became aware of the matter (when Ms Johnson first saw the camera infringement notice on or before 8 September 1995), Ms Johnson "basically asked me to order the photos" (T58). 189 Ms Anderson submits that it is open to the Court to find that the Plaintiff's evidence was untruthful or unreliable, in circumstances where the Plaintiff claims that (although she can no longer remember exactly what was said by Ms Johnson) when Ms Johnson first saw the traffic infringement notice (no later than 8 September 1995), Ms Johnson was "carrying on that it wasn't her who was driving the car" and that "she basically asked me to order the photos, which I did and that was the very first time I had any knowledge of it" (T58). 190 Ms Anderson submits that there are aspects of the Plaintiff's evidence before his Honour Judge PJ Phelan in the District Court on 5 August 1996 which give rise to difficulties for her on the present appeal:

[320]

(b) in these proceedings, the Plaintiff said she was a little flustered when giving her evidence before the District Court and that she "obviously didn't hear the night or day" and that it was "a mistake" on her part (T53-55) - this might be compared with the Plaintiff's statement to Ms Coughlan on 6 December 1996 that she was "just, like, sitting back enjoying myself" (Exhibit 1, Tab SS4, page 49) and her evidence (T84) that her statement to Ms Coughlan was not correct. 191 Ms Anderson submits that it is open to the Court to conclude that the Plaintiff signed a letter, on 10 January 1996, directed to the Local Court which contained inaccurate information. The Plaintiff signed the letter on the letterhead of Ms Johnson's firm, seeking to explain the failure of anyone from that firm to attend the Local Court on that day with respect to the proceedings for the red-light camera offence. The letter included the following statement: "I did not receive any notification that this matter was listed and therefore did not attend upon the Court." 192 The Plaintiff had, however, previously signed a letter dated 21 November 1995 to the Local Court (again on Ms Johnson's letterhead) stating, inter alia: "I refer to infringement number Y42979220 listed before the Court on 10 January 1996." 193 Insofar as these two letters are concerned, Ms Anderson points to the Plaintiff's evidence, on this appeal, that at the time that she signed both letters, she believed that their contents were factual (T83). 194 With respect to the recorded conversation between the Plaintiff and Ms Coughlan on 6 December 1996, Ms Anderson notes that, at that time, the Plaintiff had been studying law for approximately two years (T65). 195 Ms Anderson points to the characterisation in the judgment of the High Court (at 15 [50]) of this conversation as "confessional evidence" and that the Plaintiff "was only too willing to volunteer details of her own involvement in the events the subject of the charges". 196 Ms Anderson notes the explanations provided by the Plaintiff for her statements in the recorded conversation that they constituted gossip, exaggeration, boasting and fantasy. Ms Anderson submits, however, that some of the Plaintiff's statements in this conversation were entirely consistent with the facts, including the following:

[326]

Evidence of Ms Halls 199 The evidence of Ms Halls, which I accept, points to a conversation involving the Plaintiff on about 7 September 1995 (just over two weeks after the red-light camera offence on 21 August 1995) in which the Plaintiff does not assert that she was driving the motor vehicle at the time in question. The Plaintiff and Ms Halls discuss the journey which Ms Johnson was undertaking at the time of the offence and potential difficulties for Ms Johnson by way of loss of demerit points and her financial ability to pay the fine. 200 The most important feature of the evidence of Ms Halls was the discussion in that conversation (well before January 1996) that a photograph of the red-light camera offence of 21 August 1995 was going to be obtained. This is entirely inconsistent with the account of Ms Johnson, but is consistent with the Plaintiff's evidence, at least on the present appeal. It is difficult to reconcile the evidence of Ms Johnson with this evidence. Evidence of Mr Dib 201 The evidence of Mr Dib was strongly challenged before me. It is appropriate to consider his evidence with some caution, given the adverse view which he had clearly formed of Ms Johnson at the time when he approached the Law Society of New South Wales. That said, the critical conversation is said to have taken place between Mr Dib and the Plaintiff, and not Ms Johnson. It has not been suggested that Mr Dib had any grievance towards the Plaintiff, or a desire to do her harm. 202 The conversation alleged by Mr Dib to have taken place was not recorded, nor was it the subject of any contemporaneous or near contemporaneous note. However, Mr Dib gave evidence of this conversation for the first time at the committal proceedings on 27 June 1997, an occasion not too remote from the events in question. 203 It is important to observe that some two months later (on 6 December 1996), the Plaintiff was speaking to Ms Coughlan in an open and uninhibited manner, making comments about the red-light camera offence which are similar to the comments alleged by Mr Dib to have been made by her, some two months earlier, on 14 October 1996. 204 For the purpose of assessing the credibility and reliability of the evidence of Mr Dib, it is appropriate to have regard to other evidence, including the undisputed fact that the Plaintiff was making similar comments to Ms Coughlan on 6 December 1996. I see no reason to disbelieve the substance of Mr Dib's evidence that the Plaintiff admitted improper conduct concerning the red-light camera offence during the conversation in October 1996. In approaching this issue, I have had regard to the probability of the Plaintiff making such a statement to Mr Dib in October 1996, a conclusion which is fortified by the undisputed fact that the Plaintiff was making similar comments to Ms Coughlan two months later.

[327]

The Recorded Conversation of 6 December 1996 205 The evidence which is most damaging to the Plaintiff is the recorded conversation of 6 December 1996 between Ms Coughlan and herself. There is no dispute that such a conversation took place in which the Plaintiff made admissions. The Plaintiff maintains that her admissions were not true. 206 It is true that a range of topics were discussed during the conversation, some of them involving an element of humour and fantasy, in particular with reference to actors and matters of that sort. 207 That said, the Plaintiff's statements concerning the red-light camera offence, and actions taken by her thereafter with respect to the statutory declaration and the giving of evidence in the District Court, include admissions against interest. These topics were being discussed within months of their occurrence, and neither their content nor the context indicates that the Plaintiff is concocting the statements which she is making. 208 Evidence is often admitted, usually in criminal proceedings, of telephone or face-to-face conversations between persons which are covertly and lawfully recorded, and which are said to contain confessional evidence. It is not uncommon for alleged incriminating statements to be intermingled with conversation about a variety of other topics. That is the case with the conversation of 6 December 1996. On the face of it, there is nothing about the statements made by the Plaintiff in this conversation concerning the red-light camera offence of 21 August 1995, and its sequelae, which suggests that she is fabricating her account of events. 209 Mr Hall, for the Plaintiff, has submitted that Ms Coughlan was and is an entirely unreliable person. He points to the fact that she was dealt with for contempt of court for an incident occurring in the committal proceedings on 2 July 1997: Prothonotary of the Supreme Court of NSW v Helen Maria Coughlan (Dowd J, 21 April 1998, unreported). Ms Anderson does not challenge this characterisation of Ms Coughlan and provides it as an explanation for not calling her as a witness in these proceedings. 210 The significant question for me, however, is the conclusion to be reached with respect to the statements made by the Plaintiff during the conversation on 6 December 1996. The Plaintiff did not require the playing of the tape recording itself at this hearing. The Plaintiff was content to have the transcript of the conversation admitted into evidence. 211 A number of the Plaintiff's submissions were similar to those advanced to (and rejected by) the Court of Criminal Appeal and the High Court of Australia, with respect to the admissions made by the Plaintiff in the recorded conversation with Ms Coughlan. I must form my own conclusions and make findings of fact with respect to that conversation for the purpose of determining these proceedings. 212 However, I note the conclusions of the High Court of Australia (at 15 [50]), that the statements of the Plaintiff in the recorded conversation were "properly characterized as confessional evidence", that there was "no evidence whatever in the conversation of any mental infirmity" on the Plaintiff's part and that the Plaintiff "was only too willing to volunteer details of her own involvement in the events the subject of the charges". 213 With respect, I adopt these observations which are apt for the purpose of assessing the weight to be attached to the Plaintiff's admissions during the conversation. 214 From time to time, an accused in a criminal trial who is said to have made admissions during a covertly recorded conversation, will assert that what was said was "rubbish", and that some statements made in the conversation are inconsistent with other known facts. (See, for example, R v Smith [2000] NSWCCA 202 at [45], [140]-[151]). Where such an explanation is proffered for what otherwise would appear to be a confession of criminal conduct, it is necessary for the tribunal of fact, whether a jury or judge, to assess the evidence with the view to determining whether the confession is credible and reliable: Burns v The Queen (1975) 132 CLR 258 at 261; R v Green (2002) 4 VR 471 at 480-482. 215 It might be contended that the confessor has made a false confession for a number of reasons including self-aggrandisement, attention seeking, or because of some peculiar mental state: R v Pederick (NSW Court of Criminal Appeal, 21 May 1997, unreported, BC9701982 at pages 11-12); Mallard v The Queen (2005) 80 ALJR 160; [2005] HCA 68 at 168-169 [31]-[33], 170 [39]. In these circumstances, it is necessary for a Court to have regard to the circumstances in which the alleged confession was made, in the broader context of all the evidence admitted in the case. 216 The present proceedings are civil in nature. Nevertheless, I approach the present fact-finding function, assisted by authorities which outline the task of a criminal court in resolving such an issue. 217 I have read, and reread, the entire transcript of the recorded conversation. I have considered the admissions made by the Plaintiff in that conversation in the context of all the evidence adduced at the hearing before me.

[330]

The Plaintiff 224 I have set out, earlier in this judgment (paragraphs 114 to 139) extensive extracts from the Plaintiff's evidence to demonstrate her approach to giving evidence on critical factual issues. With respect to her conversation with Ms Coughlan on 6 December 1996, the Plaintiff invariably used a formulaic answer that the entire conversation was "rubbish", "gossip", "fantasy" or "fiction". The Plaintiff was closely cross-examined in 1999, and again in October 2006, concerning admissions made by her in that conversation that she had not been the driver of Ms Johnson's motor vehicle when it passed through a red traffic light on 21 August 1995 and that she had falsely claimed that she had been the driver in a statutory declaration made on 29 February 1996 and, again, in evidence before the District Court on 5 August 1996. I am satisfied that, in adopting this standard or stock response, the Plaintiff sought to deflect attention from her damaging admissions, together with statements damaging to Ms Johnson made in this conversation. 225 I observed the Plaintiff closely whilst she gave evidence in the present proceedings. Her manner and demeanour in giving evidence along these lines was as unconvincing as the substance of the evidence itself. I am conscious that care must be taken in attaching weight, or excessive weight, to demeanour in the process of fact finding as a trial Judge. In making findings concerning the Plaintiff's evidence, it is necessary to take into account the probabilities and consistency with other relevant evidence: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 at [27]. In the present case, the Plaintiff's evidence constitutes an entirely unconvincing attempt to explain away admissions of impropriety made by her on an earlier occasion. The impression of the Plaintiff as a witness, and her demeanour, serves to reinforce the unconvincing nature of the explanations provided by her in evidence. 226 Undoubtedly, there are parts of the conversation between the two women on that day which may be regarded as gossipy and garrulous. However, in my view, the Plaintiff strains credulity in her attempt to characterise the entire conversation, including statements against interest made by her concerning the red-light camera offence and subsequent events, as "gossip" and "mindless garbage". I do not accept the Plaintiff's explanation in this regard. Her evidence in this respect is glaringly improbable. 227 Before reaching this conclusion, I have had regard to the totality of the evidence, including the evidence of the Plaintiff's reputation and character adduced on her behalf. Nevertheless, I am satisfied that the statements made by the Plaintiff in the conversation of 6 December 1996 constituted confessions by her that she was not the driver of Ms Johnson's motor vehicle on 21 August 1995, but that she had falsely claimed to the contrary in a statutory declaration and in evidence before the District Court.

[331]

Evidence of Ms Johnson 228 I have given careful consideration to the evidence of Ms Johnson and the submissions made concerning her evidence. It is true that her evidence adds a new dimension to the evidence given in earlier criminal proceedings against the Plaintiff. 229 Ms Johnson's demeanour and manner of giving evidence were not impressive. At times, she was more of an advocate than a witness. At times, she used her answers as a vehicle for a submission or argument which she wished to make, rather than an answer to the question. 230 As I have mentioned, care must be taken in making demeanour findings: Goodrich Aerospace Pty Limited v Arsic at [16]ff. I have attempted to focus upon the content of Ms Johnson's evidence. It must be said, however, that the presentation of her evidence was unhelpful to the Plaintiff's case. In written submissions (page 22), Mr Hall acknowledged the "argumentative and troublesome way in which certain aspects" of Ms Johnson's evidence were "delivered", but submitted that her evidence was given in "a forthright manner". 231 Ms Johnson's evidence displayed a tendency to move from dogmatic statements concerning relevant events which, upon closer examination, appear to be based upon reconstruction and not recollection, mixed with non-responsive answers and the making of strong allegations against a range of persons. 232 There is a fundamental inconsistency between her account, and that of Ms Halls and the Plaintiff, as to when the obtaining of a photograph of the red-light camera offence of 21 August 1995 was first discussed. On this point, I accept the evidence of Ms Halls, supported as it is by the Plaintiff and do not accept the evidence of Ms Johnson. 233 Ms Johnson was not an impressive witness on this appeal. I have already made mention of her argumentative and non-responsive approach to the giving of evidence. More importantly, Ms Johnson's evidence is inconsistent in certain critical respects, with other evidence. Ms Johnson's account that she did not know of the ability to obtain photographs of red-light camera offences until January 1996 simply cannot stand with the evidence of Ms Halls and the Plaintiff. 234 There are troubling features about the evidence of Ms Johnson touching both the content of her evidence and her demeanour as a witness. I am left with the definite impression that Ms Johnson, as a witness, was an advocate in the Plaintiff's (and her own) cause. I am not assisted by the observations of Ms Johnson as a witness in other proceedings, and in an entirely different context, in R v Drummond and Domican (No. 2). All of these matters touch the reliability and credibility of her evidence in such a way that it is appropriate to look for corroboration before acting upon her evidence. 235 I accept that Ms Johnson proposed that photographs of the 21 August 1995 red-light camera offence be obtained as early as September 1995, when the camera infringement notice had been received in her office, and that the Plaintiff knew at that time that the photographs could and should be obtained. 236 It may be that Ms Johnson's conduct, including her recollection of events, is affected by personal pressure she was experiencing in and after July 1995. Such a conclusion, however, does not assist the Plaintiff with respect to any relevant fact finding in these proceedings. 237 I do not consider that Ms Johnson's denial that she was driving her motor vehicle at 8.20 am on 21 August 1995 ought be given any real weight on this appeal, having regard to the totality of evidence that is before the Court.

[333]

A Finding of Conspiracy ? 240 Mr Hall submits strongly that findings adverse to the Plaintiff on these issues would involve a finding of a conspiracy between the Plaintiff and Ms Johnson to engage in an elaborate subterfuge for the purpose of defeating the prosecution of Ms Johnson (and saving her the loss of demerit points). 241 It is appropriate to observe that Ms Johnson's driving record revealed speeding offences committed on 14 January 1994 (Court determination on 2 August 1994 - four demerit points) and 29 April 1994 (Court determination on 10 February 1995 - three demerit points). The offence of 21 August 1995 would not have led directly to the cancellation of Ms Johnson's licence. However, a further traffic offence could place her licence in jeopardy, as demonstrated by the issue to Ms Johnson of a demerit points warning letter on 20 July 1996 by reference to the two 1994 speeding offences and the red-light camera offence of 21 August 1995 (Exhibit 1, Tab SS22). 242 It is also noteworthy that Ms Johnson's driving record reveals fine default cancellations of her licence on 3 April 1989, 25 March 1993 and 19 July 1994. Ms Johnson's reaction to fine default cancellation was a topic touched upon by the Plaintiff in the recorded conversation with Ms Coughlan on 6 December 1996. This is a further indication that the conversation, insofar as it related to driving offences and driver licence issues, related to actual events. 243 The Plaintiff's driving record discloses that an unrestricted licence issued to her on 12 July 1991 with no traffic offences recorded against her as at February 1997 (Exhibit 1, Tab SS21). Accordingly, the traffic records of the Plaintiff and Ms Johnson provide broad support for the admissions made by the Plaintiff to Ms Coughlan on 6 December 1996. 244 Although Ms Johnson has given evidence before me and I have made findings critical of her as a witness , she is not a party to the present proceedings. It is the Plaintiff who applies to this Court, seeking a finding that she is of good fame and character and is otherwise suitable for admission as a legal practitioner. For the purpose of this appeal, it is not necessary that I make a finding as to whether a conspiracy existed between the Plaintiff and Ms Johnson in 1995 and 1996. 245 What is necessary to be determined is whether, in 1996, the Plaintiff falsely stated in a statutory declaration, and in evidence before the District Court, that she was the driver of Ms Johnson's motor vehicle at 8.20 am on 21 August 1995 when, in fact, she was not. As in the criminal proceedings, there is a body of admissible evidence against the Plaintiff in support of a conclusion that the Plaintiff made false statements to that effect to assist Ms Johnson. 246 The criminal proceedings brought against Ms Johnson culminated in her discharge at committal proceedings in 1997. There is no more admissible evidence against Ms Johnson now than there was in 1997. 247 I approach my findings on this appeal upon the basis of admissible evidence against the Plaintiff which is capable of supporting, and does support, a finding to the relevant standard that she engaged in misconduct.

[344]

The Plaintiff's Disclosure to the Board 250 The Plaintiff continues to harbour a view, confirmed in her evidence in this Court on 24 October 2006, that she is a victim with respect to past proceedings brought against her concerning this subject matter. Having regard to the evidence against her and, in particular, her own admissions to Ms Coughlan on 6 December 1996, this stance is unrealistic and unhelpful to the Plaintiff in the present proceedings. 251 A number of observations are appropriate with respect to the nature and extent of disclosure by the Plaintiff in her application to the Board of June 2003. There are troubling features concerning the manner in which the Plaintiff purported to satisfy her duty of disclosure at that time, and to explain her approach in evidence on the present appeal. 252 The matters disclosed by the Plaintiff to the Board were set out earlier in this judgment (at paragraph 80). It is clear that a document, partly typed and partly written, was prepared by the Plaintiff for the express purpose of disclosure to the Board. 253 There is no evidence before me that the Plaintiff provided the Board with a copy of the judgment of the Court of Criminal Appeal delivered on 25 November 2002 in R v Subramaniam [2002] NSWCCA 372. Certainly, there is no reference to the judgment of the Court of Criminal Appeal in the typed and handwritten sheet prepared by the Plaintiff for provision to the Board. The evidence reveals that, by 1 July 2003, the Board had obtained and considered a copy of the judgment of the Court of Criminal Appeal, but the source of the judgment is not disclosed in the evidence. 254 The judgment of the Court of Criminal Appeal represented the latest and most complete statement of the findings made against the Plaintiff in criminal proceedings at the time of her application to the Board. Appropriate disclosure in accordance with the Plaintiff's obligations required, as a minimum, provision of this judgment to the Board. 255 The Plaintiff used the occasion of her application to the Board to advance a self-serving argument that she had been "a victim of a horrendous unjustified District Court matter over a 'red traffic light offence'" which "ran over many years, for political reasons, at the expense of my health and career". The Plaintiff stated "I have no conviction in law against me". 256 The finding which had been made against the Plaintiff, and upheld by the Court of Criminal Appeal, involved a verdict under s.22(1)(c) Mental Health (Criminal Procedure) Act 1990 that she had committed an offence under s.319 Crimes Act 1900 of making a statutory declaration, knowing it to be false, with intent to pervert the course of justice. It was technically correct that there was "no conviction in law" against the Plaintiff for this offence: s.22(3)(a) Mental Health (Criminal Procedure) Act 1990. However, such a finding constituted a "conviction" for the purpose of s.2(1) Criminal Appeal Act 1912. The Plaintiff had appealed under that Act to the Court of Criminal Appeal with respect to that finding. 257 Further, to characterise the prosecution of the Plaintiff for public justice offences under s.319 Crimes Act 1900 as being a "matter over a 'red traffic light offence'" tends to understate significantly the nature and seriousness of the charges which had been brought against her, one of which remained proved at the time of the Plaintiff's application to the Board. In the Court of Criminal Appeal, Simpson J (who dissented solely with respect to the refusal of a stay of proceedings in the District Court) said at [83]: "Here, it cannot be gainsaid that the crimes with which the appellant was charged were very serious ones, concerned with the administration of justice. There is a significant public interest in the finalisation of allegations such as were levelled against the appellant. In the ordinary course, a failed trial would not be a reason precluding the further prosecution of such allegations."

[346]

In the same case, McMurdo P said at 335-336: "The difficulty for the appellant is that the disclosure he made to the Board of the details of these offences was incomplete. He was, to say the least, cavalier in that disclosure, referring to having pleaded guilty to a matter in 1995/1996, instead of 1998, and dismissing it as a 'debt charge' when it was a significant fraud committed on his employer involving $8,640.00. He did, however, rightly disclose that 'no conviction was recorded, no probation or community service was issued either'. He did not disclose that a significant fine was imposed. It made clear that he had been involved in criminal behaviour so that it was inevitable that the Board would investigate this matter fully before deciding whether to accede to his application to enter into Articles of Clerkship. This makes his lack of candour, though unfortunate, not nearly as serious as that in Re Hampton [2002] QCA 129. His lack of disclosure does, however, demonstrate a lack of insight into his serious past misconduct and a lack of understanding of his duty to make full and accurate disclosure to the Board." 260 It may be said, on the Plaintiff's behalf, that there was some disclosure of the prior criminal proceedings, together with the provision of Mr Waterstreet's particulars, and that this would have led to a fuller disclosure on her behalf. In my view, this is not a satisfactory answer to the criticisms which arise from the information included in, and omitted from, the Plaintiff's disclosure to the Board in June 2003. 261 The approach taken by the Plaintiff in that disclosure, including the claim of unfounded victimisation "for political reasons", is capable of bearing upon her current claim of fitness for admission to the legal profession. Likewise, the Plaintiff's evidence in October 2006 maintaining the belief that she had been the victim of unfounded proceedings against her. 262 A fundamental difficulty with the Plaintiff's approach is that the principal foundation of the case against her in the criminal proceedings, and again on the present appeal, is her own confession on 6 December 1996 to Ms Coughlan. 263 I am not concluding that admission of guilt by the Plaintiff is an essential prerequisite for admission: cf Zaidi v Health Care Complaints Commission at 100. Nevertheless, the Plaintiff's continuing vigorous claim of victimisation with respect to proceedings which were based principally upon her own confession, casts a shadow over her claim of current good fame and character and suitability for admission to the legal profession. 264 I am conscious of the consequences that flow from a finding that the Plaintiff has engaged in improper conduct, involving the making of a false statutory declaration and the giving of false evidence. A finding that the Plaintiff is not of good fame and character, and is otherwise not suitable for admission as a legal practitioner on those grounds, is capable of constituting a long-standing, if not permanent, impediment to the Plaintiff's admission to the legal profession. It is not a finding to be made lightly. I have given careful consideration to the evidence adduced and submissions made on this appeal. 265 However, the function which I am exercising touches the public interest, and the protection of the community and the legal profession. Admission of a person as a legal practitioner reposes in that person a significant degree of trust. Courts and fellow practitioners are entitled to rely upon legal practitioners, and honesty and integrity are essential preconditions to admission to the legal profession. 266 Being reasonably satisfied, on the balance of probabilities, I have made findings of fact of substantial impropriety against the Plaintiff. These factual findings do not depend upon inexact proofs, indefinite testimony or indirect inferences. The principal basis for the findings which I have made is confessional evidence emanating from the Plaintiff herself.

[347]

Findings Concerning the Plaintiff's Evidence 267 In a number of areas, I have rejected the evidence of the Plaintiff. In particular, I have found that her attempts to explain away her admissions to Ms Coughlan on 6 December 1996 were glaringly improbable. 268 I have had the advantage of seeing the Plaintiff give evidence and I have considered carefully her evidence. For reasons given, I do not find the Plaintiff to be a witness whose evidence was frank and who faced the facts put before her or the implications of them: cf Law Society of NSW v Foreman at 449F. I have found portions of her evidence to be not credible. 269 This assessment of the Plaintiff's credibility bears upon two things: her character and what she is apt to do in the future. These are related issues. Findings as to credibility may be taken into account in arriving at findings as to the two other matters: Smith v NSW Bar Association (1992) 176 CLR 256 at 268-269; Bannister v Walton at 723-729; Law Society of NSW v Foreman at 450C-D. Current Good Fame and Character? 270 I am conscious that the events which have attracted the principal attention of the Court on this appeal occurred more than a decade ago. However, the making of a false statutory declaration and the giving of false evidence in a Court are matters which strike at the heart of the processes of justice. To act in such a way is entirely inconsistent with the requirements of integrity and honesty which are essential prerequisites for admission as a legal practitioner. The Plaintiff had commenced her legal studies by the time of relevant events in 1995 and 1996. Findings that the Plaintiff has acted in this way are inconsistent with the requirement that the Plaintiff be of good character. 271 It is clear that, had the question been asked in August 1996, the Plaintiff could not have satisfied a Court that she was then of good fame and character and otherwise suitable for admission as a legal practitioner. 272 The Plaintiff is not assisted by the passage of time since the events of 1995 and 1996. I have found that she has is not a credible witness, in particular in her glaringly improbable account attempting to explain away her admissions to Ms Coughlan on 6 December 1996: Law Society of NSW v Foreman at 450C-D. This was a central feature of her evidence. The Plaintiff persists in a claim that she is the victim of processes which were based, essentially, upon her own confessions. The Plaintiff's disclosure to the Board in June 2003 was incomplete and self-serving, and did not demonstrate a proper perception of her duty of candour. This does not assist the Plaintiff in the present application: Thomas v Legal Practitioners Admission Board at 334, 335-336.

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