Jackson (formerly Subramaniam) v Legal Practitioners Admission Board

Court of Appeal (NSW)|2007-09-28|Before: Beazley JA, Giles JA, Johnson J

CITATION: Jackson (formerly Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Bryson AJA at 60

DECISION: If leave to appeal is necessary, leave granted. Appeal dismissed with costs.

Clyne v New South Wales Bar Association (1960) 104 CLR 186; Frugtniet v Board of Examiners (No 2) [2005] VSC 332; Gersten v Law Society of New South Wales (2002) 56 NSWLR 16; CASES CITED: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Prothonotary of the Supreme Court of New South Wales v Castillo [2001] NSWCA 75; R v Subramaniam [2002] NSWCCA 372; Subramaniam v The Queen [2004] HCA 51; (2004) ALR 1; (2004) 79 ALJR 116.

PARTIES: Karla Jackson (formerly Subramaniam) - Appellant Legal Practitioners Admission Board - Respondent

COUNSEL: K Eastman & M Seck - Appellant T Anderson - Respondent

SOLICITORS: Hall Partners - Appellant I V Knight, Crown Solciitor - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT DATE OF DECISION: 5 December 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40023/07 SC 12670/03

BEAZLEY JA GILES JA BRYSON AJA

Wednesday 17 October 2007 JACKSON (formerly Subramaniam) v LEGAL PRACTITIONERS ADMISSION BOARD Judgment 1 BEAZLEY JA: I agree with Giles JA 2 GILES JA: This is an appeal from the dismissal by Johnson J of an appeal from the respondent's refusal to approve of the appellant's application for admission as a legal practitioner. For the reasons which follow, in my opinion no error has been shown in the judge's decision and the appeal should be dismissed.

The refusal of the application 3 On 6 June 2003 the appellant lodged with the respondent an application for admission as a legal practitioner. Section 12(1) of the Legal Profession Act 1987 ("the Act"), since repealed, required the respondent to consider whether it was satisfied that the appellant was of good fame and character and was otherwise suitable for admission, and by s 12(2) it was obliged to refuse to approve of her application unless it was so satisfied. 4 The appellant's application disclosed that she had been "a victim of an horrendous unjustified District Court matter over a 'red traffic light offence'", which it was said "ran over many years, for political reasons". It was said, "I have no conviction in law against me." Further details were not provided, although a person was named who "will speak to you in relation to this issue if needed", and a handwritten note stated names of two judges and dates apparently of hearings before them. 5 It seems having informed itself from the judgment of the Court of Criminal Appeal in R v Subramaniam [2002] NSWCCA 372, because it said that it had "had an opportunity to consider" the appeal, the respondent advised the appellant that although she had 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 practise". The respondent invited evidence or submissions from the appellant, and said that it had deferred consideration of her application. 6 From the judgment of Beazley JA in R v Subramaniam, on 1 May 2002 the appellant was found guilty at a special hearing under s 21 of the Mental Health (Criminal Procedure) Act 1980 on a charge that on 29 February 1996 she made a statutory declaration knowing it to be false with intent to pervert the course of justice. She had also been charged that on 5 August 1996 she gave false evidence in the District Court with intent to pervert the course of justice, on which charge the jury had returned a verdict of not guilty. 7 In the statutory declaration of 29 February 1996 the appellant had said that she was driving a motor vehicle which went through a red light on 21 August 1995. The appellant's employer, Ms Leigh Johnson, owned the vehicle and had received a traffic infringement notice for driving through the red light. Ms Johnson had completed a "court election form" to contest the infringement, and as at 29 February 1996 the hearing was fixed for 29 May 1996. The statutory declaration was forwarded to the authorities, and was provided on behalf of Ms Johnson to the court. Ms Johnson was nonetheless convicted and fined in her absence. She appealed to the District Court against the conviction, and the appellant gave sworn evidence in the District Court on 5 August 1996 consistent with what she had said in the statutory declaration. 8 Beazley JA said of the special hearing - "13 It was the Crown case, accepted by the jury, that Ms Subramaniam was not the driver of the vehicle on the occasion in question but had agreed with Ms Johnson to make the false declaration that she was. The Crown case was based essentially upon the evidence of a Ms Coughlan, who at the time, had been a legal clerk in Ms Johnson's employ. Ms Coughlan alleged that she was present at a conversation between Ms Johnson and the appellant when this was agreed. She was subsequently 'wired' with a tape recorder and recorded a conversation with the appellant which, the Crown alleges, contains an admission by the appellant that this was the case.

14 There was other evidence in the case which was corroborative of Ms Coughlan's evidence. In particular, there was the evidence of Ms Halls, who had been a office assistant employed by Ms Johnson at the time and the evidence of a Mr Dib, who was employed by Ms Johnson as a legal clerk." 9 The Court of Criminal Appeal dismissed the appellant's appeal against the verdict of guilty of making a false statutory declaration. A special hearing is conducted where an accused person is unfit to be tried for the offence, and the verdict was "on the limited evidence available" (Mental Health (Criminal Procedure) Act, s 22(1)(c)) and constituted "a qualified finding of guilt … [and not] a basis in law for any conviction for the offence to which the finding relates" (s 22(3)(a)). 10 Returning to the application for admission, the appellant made a written submission to the respondent. It included that an application for special leave to appeal to the High Court from the decision of the Court of Criminal Appeal was pending, and noted that the verdict at a special hearing was not a conviction. The appellant said that she had not given evidence at the special hearing because she was "not in a fit state", and that "I cannot and do not accept that the conduct proven in the charge was committed by me"; she also said that when she signed the statutory declaration she believed that she was driving Ms Johnson's vehicle at the time. 11 On 20 August 2003 the respondent informed the appellant that it had resolved to refuse her application. The letter did not state expressly that the refusal was because it was not satisfied as required by s 12(1) of the Act, or give the respondent's reasons for failing to be satisfied.

The appeal to the Supreme Court 12 Pursuant to s 14(1) of the Act, the appellant appealed to the Supreme Court against the refusal to approve of her application. She joined the respondent as the defendant to her proceedings. In her amended summons filed on 17 February 2004 the appellant claimed a declaration that she "is of good fame and character and is otherwise suitable for admission as a legal practitioner to the Supreme Court of New South Wales", and an order that the respondent deal with her application for admission "accordingly [sic] to law". 13 By s 14(4) of the Act the appeal was by way of re-hearing, and fresh evidence, or evidence in addition to, or in substitution before the respondent, could be given. It was common ground that the hearing was de novo, and that the Court was not concerned with whether the respondent had made an error of fact or law. The judge said at [15] - "The issue on this appeal is whether, having regard to the evidence adduced at the hearing of the appeal, I am satisfied that the plaintiff is of good fame and character and is otherwise suitable for admission as a legal practitioner." 14 Prior to the hearing of the appeal the High Court allowed an appeal from the decision of the Court of Criminal Appeal and quashed the jury's verdict of guilty of making a false statutory declaration: Subramaniam v The Queen [2004] HCA 51; (2004) 211 ALR 1; (2004) 79 ALJR 116. The appeal was allowed because the jury had not been directed as required by the Mental Health (Criminal Procedure) Act (see s 21(4)), and a new trial was ordered. The Director of Public Prosecutions thereafter determined not to take any further proceedings against the appellant in relation to making a false statutory declaration. 15 The trial judge heard the appeal over four days in late October-early November 2006. A number of affidavits were read in the appellant's case in chief, including an affidavit of the appellant in which she addressed what she described as the evidence that the respondent had filed "concerning the facts and circumstances arising from the red light camera incident … and the events that have unfolded since this time." She said in the affidavit that the information in the statutory declaration was true and that the evidence she gave in the District Court was true. The affidavits also included an affidavit of Ms Johnson, the substance of which was that she (Ms Johnson) had not been driving the vehicle, the appellant had told her that she (the appellant) was driving it, and hence the statutory declaration was made. 16 Affidavits were read and documents were tendered in the respondent's case. A deal of the evidence was concerned with whether the appellant had been driving the vehicle and the circumstances in which she came to make the statutory declaration, and went to establish that she had made a false statutory declaration and given false evidence in the District Court. Further oral evidence was called, the evidence including that of Ms Halls and Mr Dib and of the recorded conversation with Ms Coughlan. 17 There was cross-examination of many of the deponents, including the appellant and Ms Johnson. The judge said (at [28]) that "[t]he central factual issues in the appeal relate to the circumstances in which the Plaintiff made a statutory declaration and gave evidence in 1996, where a body of disputed evidence indicates that the Plaintiff did so falsely". 18 The judge gave his decision on 5 December 2006. After a detailed examination of the evidence, he said - "249. With respect to the disputed issues concerning alleged impropriety on the Plaintiff's part, I record that I am reasonably satisfied, on the balance of probabilities (in accordance with the Bringinshaw principle) of the following facts: (a) the Plaintiff was not the driver of Ms Johnson's BMW motor vehicle registered number AAV 31Q at 8.20 am on 21 August 1995, when that vehicle passed through a red traffic light at the intersection of Crown Street and Albion Street, Surry Hills;

(b) the Plaintiff made a statutory declaration on 29 February 1996 in which she claimed, falsely and to her knowledge, that she had been the driver of this motor vehicle at that time and place;

(c) the Plaintiff gave evidence before his Honour Judge PJ Phelan in the District Court on 5 August 1996 in which she again claimed, falsely and to her knowledge, that she had been the driver of this motor vehicle at that time and place;

(d) the Plaintiff falsely stated that she had been the driver of Ms Johnson's motor vehicle on 21 August 1995 for the purpose of assisting Ms Johnson;

(e) the Plaintiff delayed making her false admission that she was the driver of the motor vehicle until more than six months had passed from the date of the offence - in this way, the Plaintiff avoided prosecution for the offence and any loss of demerit points - at a time of making her statutory declaration, the Plaintiff was aware that it was too late for the Police or the Roads and Traffic Authority to proceed against her for the offence;

(f) the Plaintiff made a credible and reliable admission with respect to this conduct in a conversation with Mr Dib on about 14 October 1996;

(g) the Plaintiff made credible and reliable admissions concerning this conduct during conversation with Ms Coughlan on 6 December 1996;

(h) the Plaintiff's evidence in this Court on 24 and 25 October 2006, in an effort to explain away the admissions made by her in the conversation with Ms Coughlan on 6 December 1996, was glaringly improbable and did not constitute credible and reliable evidence." 19 The judge then considered over a number of paragraphs, in the light of his findings, the appellant's disclosure to the respondent at the time she applied for admission and her maintenance in her evidence before him that she had been victimised. He concluded - "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." 20 After emphasising that he was conscious of the significance of findings that the appellant had engaged in improper conduct, involving the making of a false statutory declaration and the giving of false evidence, and did not lightly make findings which he described (at [266]) as "findings of fact of substantial impropriety against the Plaintiff", the judge said - " 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 to 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 [sic] 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. Conclusion 273 Having regard to the findings which I have made, I am not satisfied that the Plaintiff is of good fame and character and is otherwise suitable for admission as a legal practitioner."

Leave to appeal to the Court of Appeal? 21 The appeal to this Court was brought purportedly as of right, although the Pt 51 r 8 affidavit recognised the possibility that leave to appeal was required. The respondent did not move to strike the appeal out as incompetent. 22 It may be that the appeal falls within s 101(2)(r) of the Supreme Court Act 1970 and leave to appeal is required: Clyne v New South Wales Bar Association (1960) 104 CLR 186; Gersten v Law Society of New South Wales (2002) 56 NSWLR 16. When the Court raised the matter, the respondent did not oppose the grant of leave if it was required. The importance to the appellant of the determination of her suitability for admission is manifest. It is not necessary to decide whether leave to appeal is required; if it is required, it should be granted.

The appeal to the Court of Appeal 23 The appellant did not contend on appeal that the judge's findings that the appellant had not been driving the vehicle, and had made a false statutory declaration and given false evidence in the District Court, were erroneous on the evidence before him; nor that his findings as to glaring improbability, lack of credibility and lack of frankness were incorrect. Her submissions, which were (with respect) somewhat Protean, were concerned with -

(a) whether the judge should have made the findings at all;

(c) their consequences for the judge's conclusion that he was not satisfied as to the appellant's good fame and character and suitability for admission as a legal practitioner.

(a) Making the findings at all 24 Ground of appeal 1 was that the judge erred in determining the appellant's suitability for admission - " … by determining whether the Appellant had made a false statutory declaration and/or gave false evidence in circumstances where the Director of Prosecutions [sic] had decided that there would be no further proceedings with respect to the alleged making of a false statutory declaration." 25 Ground of appeal 2 was that the judge erred - " … in that it was not open to him to determine whether past conduct had in fact occurred. In this respect, it was not open to His Honour to determine whether the Appellant had in fact knowingly made a false statutory declaration in February 1996, and whether in August 1996, she knowingly gave false evidence in related District Court proceedings, in circumstances where no further proceedings had been taken in relation to those allegations. According his Honour erred in actually determining whether the alleged conduct occurred when he should have treated the allegations of past conduct as no more than allegations for the purpose of determining the Appellant's fitness for admission." 26 In the appellant's written submissions she accepted that "the allegations in relation to her conduct in 1996" were relevant considerations to her suitability for admission. She submitted, however, that the proper approach was "to examine the findings of the previous Courts and assess this past conduct against Ms Jackson's present fame and character", that the appeal was not to "re-try the 1996 charges", and - "44 His Honour did not limit his consideration of the evidence as [sic] that presented in the previous hearings or as found by previous courts. Curiously, he said that he did not consider himself bound by any earlier factual findings. He said that 'the various findings made in those proceedings have no legal effect for the purpose of the issues to be determined by me.' see Red Book 21 at [94]. 45 As a result, His Honour refused to give Ms Jackson the benefit of an acquittal in relation to the charge of giving false evidence in August 1996. This finding was effectively ignored because his Honour considered it was open to him to find for himself whether Ms Jackson gave false evidence. Further, his Honour does not give Ms Jackson the benefit of the High Court's order quashing the conviction in relation to making a false statutory declaration, together with the DPP's decision not to proceed with a retrial." 27 The appellant's written submissions acknowledged that no principle of double jeopardy applied and "that an acquittal in relation to criminal conduct does not prevent a professional body inquiring into the same conduct for the purpose of determining whether the conduct constitutes professional misconduct or unsatisfactory professional misconduct". The appellant submitted, however, that it was otherwise "in the context of an admission application", because it was not a case of determining whether professional misconduct had occurred. The written submissions said - "48 … The Appellant submits that it is not the role of the Board or the Court to determine whether any conduct engaged by an applicant for admission at any past time would have constituted professional misconduct to justify their removal from the roll, as if the applicant had been admitted. In the same way, on an application for readmission, the allegations of misconduct are not re-tried. The focus is whether the practitioner's character has changed such that the practitioner should be readmitted. It is respectfully submitted that His Honour has confused the approach to be taken in assessing suitability for admission with the approach to be taken to determine whether the conduct in question justifies removal from the roll." 28 In oral submissions the judge's error was at times not linked with suitability for admission as distinct from removal from the roll or readmission. The submissions included that the appellant had the benefit of an acquittal and the judge was not entitled to "go behind that acquittal" and "find out whether or not she really did engage in that conduct". What the judge should have done was at one point explained - "Of course his Honour had to have a look at past conduct to determine present fitness but what his Honour should have done is to say I don't need to determine whether or not in February 1996 she made a false declaration or whether in August 1996 she gave false evidence, what I need to do is to look at what available facts there are in relation to those circumstances, make an assessment in relation to the facts as they exist." 29 The further explanation of what was meant by making an assessment in relation to the facts as they exist was rather tortuous. It ended up that the judge had to determine - " … whether or not the charges and the allegations that that declaration is false have some substance not to prove that she made the false declaration but to establish whether or not the circumstances surrounding the allegation that she engaged in making a false declaration but to establish whether or not the circumstances surrounding the allegation that she engaged in making a false declaration have substance that would now affect her present fitness or good fame and character. [sic]" 30 This was unclear, and could have been unfair to the appellant through leaving her with a black mark of unresolved suspicion. When this was put to the appellant's counsel it was accepted that the judge was obliged to decide whether or not the appellant had made a false statutory declaration. 31 The oral submissions later returned to a difference between admission and removal from the roll or readmission. It was said that on a person's application for admission "one does not look at their past conduct and say, "I am in effect conducting a disciplinary proceeding as if I would the person being already admitted [sic]". How comparison with disciplinary proceedings, in particular an application for readmission, meant that the judge was in error in making findings as to the appellant's conduct in 1996 was not explained. 32 The submissions varied in their presentation, and were not easy to follow; I have attempted to record the thrust of the submissions. In my opinion, there was no error as put forward in the grounds of appeal. 33 It should be noted that the judge recorded at [91] that 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."

If it could have objected to the appellant taking a different stance on appeal, the respondent did not do so. 34 Because of the different burdens of proof, an acquittal does not bar civil proceedings arising out of the same facts. For the same reason and because of the different "purpose and focus of the proceedings", an acquittal does not inhibit disciplinary proceedings arising out of the same facts: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635-6. No res judicata, issue estoppel, doctrine of autrefois acquit or other rule of law prevents examination of the conduct relied on for the crime: Prothonotary of the Supreme Court of New South Wales v Castillo [2001] NSWCA 75 at [32]. The facts can be investigated and determined adversely to the defendant or the person subject to the disciplinary proceedings, and the court or tribunal is not confined to the evidence in the criminal proceedings, let alone to an examination of the "findings" - a difficult task in the case of a jury's verdict. 35 The reasons for this are equally material when the court or tribunal is addressing admission to the practice of a trade or profession, rather than discipline of a practitioner. If the conduct the subject of the criminal proceedings is relevant to the admission, just as it would be relevant to the disciplinary proceedings, because going to the fitness of the practitioner to practise, it can be investigated and findings can be made. Indeed, it would be quite wrong for the court or tribunal not to address the conduct and make findings, turning its back on what might in the public interest be significant in relation to the admission of the practitioner. 36 That findings of misconduct are ordinarily not revisited on an application for re-admission has no bearing on determining facts relevant to admission. There are no findings, of misconduct or otherwise. The acquittal means that the application for admission starts without findings adverse to the applicant, but does not mean that there are findings favourable to the applicant. 37 At one point the appellant submitted, perhaps as the distinction between admission and readmission, that she was not required to displace an earlier decision finding unfitness to practise. The submission was beside the point. There was no such decision, and the judge did not require her to displace any earlier decision. 38 The appellant relied on the statement by Gillard J in Frugtniet v Board of Examiners (No 2) [2005] VSC 332 at 22 that "an acquittal of a person applying for admission to practice of itself must be given full effect to", as a reason for inability to investigate the past conduct and perhaps also in connection with the ground of appeal next mentioned. His Honour went on to say that this did not preclude full investigation and consideration of all circumstances which might lead to a decision that the applicant was not a fit and proper person. It is clear that he meant only that (as he also went on to state) it was not open to draw an adverse inference against the applicant because the applicant had been charged with an offence and been acquitted. 39 In my opinion, these grounds of appeal fail.

(b) How the findings were made 40 Ground of appeal 3 was - "In circumstances where the Respondent asserted the existence of facts adverse to the Appellant's application for admission, his Honour erred by failing to attribute the burden upon the Respondent to satisfy the Court of the existence of those facts adverse to the Appellant." 41 The appellant's written submissions included that the judge's approach - " … was to start with an adverse inference against Ms Jackson because of the manner in which the charges against her were concluded. His Honour then seeks to confirm the adverse inference by re-trying the earlier charges."

In oral submissions it was said that the judge "assumed a finding of guilt and then, in effect, required the appellant to disprove that finding". 42 These unfortunately framed submissions should be rejected. The judge stated very clearly (at [49]) his approach that he should not find as a fact that the appellant made a false statutory declaration in February 1996 or gave false evidence in the District Court in August 1996, unless he was reasonably satisfied on the balance of probabilities that she did act in such a way. He carefully considered the evidence, and his reasons show why he came to the findings in his [249]. There is nothing to suggest that his fact-finding was affected by commencement with an adverse inference against the appellant or assumption of guilt, and in my opinion it is plain from the reasons that he did not. 43 The appellant contended in her written submissions that if the respondent "seeks to assert that the applicant for admission was in fact guilty", it bore "a heavy onus to prove such guilt, even on a civil standard". It was said that the respondent "bore the evidentiary onus to establish that Ms Jackson was guilty", and at another point that the respondent "bore the evidentiary and legal onus in relation to proving that she was guilty of the conduct as alleged in the 1996 charges". 44 Here as elsewhere in the appellant's submissions, the language of guilt was inappropriate. The Court was not concerned to find commission of a criminal offence. Its concern was with conduct bearing upon suitability for admission. The judge found facts, not verdicts of guilty. 45 The judge said at [37] that the appellant "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". The appellant accepted that she bore this onus. In oral submissions the assertion of a legal onus on the respondent was, I think, abandoned, and the substance of the submissions was that it was for the respondent to put before the Court evidence from which the Court was satisfied that the appellant had made a false statutory declaration and given false evidence. 46 It is difficult to see the point of the ground of appeal. Understandably in the light of the probable basis for the respondent's refusal of her application for admission, the appellant led evidence in chief of the events of 1996, and through them put forward that she had not acted improperly. The appellant was the moving party on the appeal to the Supreme Court, and it was reasonable for her to anticipate that the respondent would lead evidence which, if accepted, could prove that the appellant had acted improperly. (I say "improperly" because the facts found went beyond making a false statutory declaration and giving false evidence.) The respondent did so. 47 If there was an evidentiary onus on the respondent, it was discharged, and there was left the "ultimate onus". The ultimate onus was as to the appellant's suitability for admission, which turned on more than whether she had acted improperly in 1996, but as to that the judge said (as I have earlier noted) that he would not find as a fact that the appellant made a false statutory declaration in February 1996 or gave false evidence in the District Court in August 1996 unless he was reasonably satisfied on the balance of probabilities that she did act in such a way. An onus of proof in that respect was not wrongly imposed on the appellant. 48 I have referred to the appellant's reliance on Frugtniet v Board of Examiners (No 2). In oral submissions it appeared to be suggested that in connection with the onus of proof the judge had not given the appellant the benefit of her acquittal. It was said that in order that the appellant have the full benefit of acquittal "the onus must be on the person who seeks to go behind the acquittal". I do not agree. It is not necessary to consider whether acquittal on a special hearing, and quashing a conviction with an order for a retrial followed by a decision not to take further proceedings, are in a different position from acquittal following a conventional trial. The benefit of the acquittal is the absence of any adverse inference against the appellant. The issue in the appeal was a different issue, the appellant's suitability for admission. Once the question of her conduct in 1996 was raised, as it was accepted it was by the appellant leading her evidence in chief, whether she engaged in improper conduct in 1996 could be investigated and facts could be found. There was no onus on the respondent to go behind or in some manner displace the acquittal. 49 In my opinion, this ground of appeal fails.

(c) The consequences for present suitability 50 Ground of appeal 4 was - "His Honour erred by failing to make any findings or properly consider the Appellant's fitness for admission by reference to her character at the present time and what she was apt to do in the future." 51 The appellant referred to the judge's [271] in which, having found that the appellant made a false statutory declaration and gave false evidence in 1996, he said 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". She said in her written submissions that the question was not whether the appellant was suitable for admission in 1996, but rather whether notwithstanding the allegations about her conduct in 1996 she was suitable for admission as at October 2006. She said that the judge's "focus on finding whether conduct occurred in 1996 made it impossible for him to assess fairly or fully Ms Jackson's present fitness for admission, based on her overall character"; and that his Honour's approach "resulted in little or no consideration being given to Ms Jackson's conduct or action since 1996", and in particular that the affidavits and statement speaking well of the appellant's integrity and standards appeared to have been given little weight. In a summation, it was said that "the whole of the Court's focus was on her past conduct rather than her present suitability for admission". 52 The appellant's oral submissions included that, by the determination that the appellant had made a false statutory declaration and given false evidence in 1996, the appellant "never has the benefit of the conduct being viewed as past conduct, it is viewed as present conduct". It was said that the judge "thought to look at past conduct as very much present conduct". As to the judge's findings concerning recent conduct and credibility with their bearing on future conduct, it was said that the judge's finding concerning credibility was less than a finding that the appellant had lied. It was submitted more generally that the judge had assumed that the only conclusion open was that if the appellant was engaged in improper conduct in the past, she would continue to engage in it in the future, and that the judge did not give the appellant the "benefit for the intervening time" or consider changes such as age and altered perceptions. 53 Again, there were variations in the submissions and I have sought to extract their substance. They were quite extravagant, and should not be accepted. 54 There is no doubt that whether or not the appellant made a false statutory declaration and gave false evidence was significant in the hearing, and to his Honour's decision. His Honour referred at [65] to the "central issues … concern[ing] the circumstances in which the Plaintiff is said to have made a false statutory declaration, and given false evidence before the District Court in 1996, with respect to the identity of the driver of a motor vehicle which disobeyed a red traffic light in August 1995." But the findings adverse to the appellant in this respect were not at all treated by the judge as the measure of her current suitability for admission. He also considered the appellant's maintenance in her evidence before him that she had been the victim of unfounded proceedings against her, correctly observing that it was capable of bearing upon her "current claim of fitness for admission to the legal profession". He did not find her a frank or credible witness, and correctly said that his assessment of her credibility bore upon her character and what she was apt to do in the future. While he did not use the word "lied", his findings of falsity to the appellant's knowledge in [271] meant that the appellant had lied in 1996 and the glaring improbability and lack of credibility in 2006 were severely adverse to the appellant's present character and future conduct. 55 The judge recognised that the appellant's conduct in 1996 had been more than a decade in the past, and did not stop with her suitability for admission as at August 1996. By his [272] he considered that the impediment to good character remained, and that the deficient disclosure to the respondent and the maintenance before him that she had not acted improperly in 1996 also told against the satisfaction necessary for the declaration claimed by the appellant. The judge's attention was specifically upon current good fame and character and suitability for admission: the heading preceding [270] was "Current Good Fame and Character?" 56 The judge did not in the concluding paragraphs specifically refer to the affidavits and statement supporting the appellant's integrity and standards. But at [163]-[165] he had summarised their contents, noted that there was no cross-examination, and said that the evidence related principally to the appellant's reputation but was also relevant to an assessment of her character. I do not think it can properly be concluded that the judge failed to pay regard to that evidence in coming to his conclusion. 57 In my opinion, this ground of appeal fails.

The result 58 I propose that if leave to appeal be necessary leave be granted, but that the appeal be dismissed with costs. 59 BRYSON AJA: I agree with Giles JA. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Parties

Cases Cited (11)

Cited By (4)