LEGAL PRACTITIONERS COMPLAINTS COMMITTEE -v- McKERLIE [2007] WASC 119 (21 May 2007)

Supreme Court of WA|2007-05-21|Before: Martin CJ

1 MARTIN CJ: This is a motion by the Legal Practitioners Complaints Committee seeking an order that Colin Robert McKerlie, a legal practitioner, be removed from the Roll of Practitioners ("the Roll").

2 In evidence before the Court is a reference from the State Administrative Tribunal dealing with the matter and recommending that Mr McKerlie be struck off the Roll of Practitioners. There is also a reference from the Legal Practitioners Disciplinary Tribunal recommending that Mr McKerlie be struck off the Roll. I will come back to the second reference later.

3 The reference I will deal with first is a reference based upon Mr McKerlie's criminal convictions. There are three relevant convictions. The first is for an unlawful and indecent assault which occurred on 7 February 2002 when Mr McKerlie unlawfully and indecently assaulted a female by placing his mouth on her breast.

4 On the same day, Mr McKerlie committed the offence of sexual penetration of the same female without consent by inserting his thumb or finger into her anus and then Mr McKerlie committed his third offence; being, sexual penetration of the same female without consent by inserting his penis in her vagina.

5 He was convicted of all of those offences after a trial before Judge Nisbet in the District Court and a jury and was sentenced to a period of imprisonment of 1 year for the unlawful and indecent assault, 3 years and 6 months imprisonment for the first count of sexual penetration without consent, and 4 years and 8 months imprisonment on the second count of sexual penetration. All sentences were directed to be served concurrently, so that the total term was 4 years and 8 months imprisonment.

6 Sentence was passed by Nisbet DCJ. His remarks at the time of passing sentence are before the Court. In the course of those remarks, he observed that not only did Mr McKerlie's victim have to endure the physical aspects of his assault upon her, the memory of which she would carry with her for a very long time, but she also had to endure the assault upon her character which he had perpetrated in the running of his defence, a defence which, in his Honour's view, the Crown prosecutor correctly described as a farrago of lies.

7 The question that comes before the Court in a circumstance in which application for removal from the Roll is made because of criminal conviction is whether the material demonstrates that the practitioner is not a fit and proper person to remain a legal practitioner. Authority for that proposition is to be found in the decision of the High Court in the case of A Solicitor v Law Society (NSW) [2004] HCA 1; (2004) 216 CLR 253.

8 As that decision and a series of decisions in this Court have made clear, honesty and integrity are essential prerequisites to the right to practice law and the conduct most likely to result in striking-off of the Roll is that which undermines the trustworthiness of the practitioner or which suggests a lack of integrity, so that the practitioner cannot be trusted to deal fairly within the system within which he or she practises.

9 If any authority for that self-evident proposition is required it can be found in the decision of this court in the Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129. The decision of the High Court in Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 is another case in which the High Court has dealt with the circumstances in which a practitioner's fitness comes to be considered in the context of the commission of a crime. In that case, Kitto J set out a number of the principles properly applicable when cases of that kind arise.

10 Relevant to the application of those principles are the extent of premeditation, whether the crime indicates a tendency to vice and lack of probity. All of those circumstances are present in the circumstances that gave rise to Mr McKerlie's conviction. It is also clear from the remarks made by the sentencing Judge that the circumstances of the trial showed a lack of remorse or insight in relation to the commission of his offences, which is of course relevant to the assessment of the risk of further transgressions.

11 It follows that this Court cannot have the confidence in Mr McKerlie that is required of its practitioners. The circumstances giving arise to the offences and the convictions themselves demonstrate a lack of the personal qualities that are required to enable Mr McKerlie to remain on the Roll.

12 As I have mentioned, there is another reference before the Court from the Legal Practitioners Disciplinary Tribunal which deals with a large number of matters of unprofessional conduct in which adverse findings were made against Mr McKerlie. Because of the view to which I have come in relation to the reference based upon his criminal convictions, it seems to me to be unnecessary to deal with that reference and I would simply propose that that reference be stood over.

13 For those reasons, I would make an order removing Mr McKerlie's name from the Roll.

14 SIMMONDS J: I agree both with the reasons and the orders proposed.

15 BLAXELL J: I agree with the Chief Justice that the respondent should be struck off the Roll and I have come to that conclusion for the same reasons as expressed by the Chief Justice.

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