"I became determined that I wanted to deal with my taxation matters."
71 This is a neutral statement in terms of any assessment of Mr Somosi's character. There is no basis on which this Court can find that his motivation was a fear of imminent discovery. Why he came forward in the way he did is, in my opinion, a neutral matter.
72 The issue that has arisen in this Court about the admissibility of evidence, focuses on a period in time after his failure to honour his legal and civic obligations had been established over a period of seventeen years. Attention focused on the Notice leading to his conviction, and the discussions with the Australian Taxation Office concerning the replacement of his full obligation by an obligation to file returns for only three of the seventeen years. Mr Somosi's efforts to regularise his affairs with the Australian Taxation Office were not pursued with any degree of diligence on his part and his side of the arrangement was only performed after considerable delay. The delay is material, but not significantly so in the light of the whole of the circmstances.
73 These proceedings are not concerned to protect the revenue. These proceedings are concerned with what Mr Somosi's default reveals about his character and fitness. No doubt the taxation authorities are and were primarily concerned to get what they can. These authorities will no doubt consider issues of punishment for purposes of general deterrence. However, the jurisdiction which this Court is exercising is a protective jurisdiction. It is not directed at punishment. It is not concerned with revenue collection. Whether or not the taxation authorities were prepared to accept three years of returns in total satisfaction of Mr Somosi's taxation obligations, is not a matter entitled to significant weight for present purposes. What the taxation authorities were prepared to accept, in the exercise of their discretion, says nothing about Mr Somosi's character or fitness.
74 The recording of a conviction is often a matter of significance for issues of fitness. It would also be material to an issue of "good fame and character" which, obviously overlaps with an issue of fitness. The issue of good fame and character has not directly arisen in these proceedings.
75 In the present case the conviction and penalty is not, of itself, a matter entitled to substantial weight. The significant matter is the conduct underlying the convictions. The convictions were for the failure to comply with a notice to file seventeen years of returns within a period of about a month from the Notice. However, the underlying conduct, to which the conviction only indirectly related, was the failure by a legal practitioner, over a long period of time and in a systematic way, to comply with his legal and civic obligations. It is that conduct that is entitled to determinative weight in making the judgments the Court has to make in these proceedings, both as to the findings of fact upon which it acts and also on the issue of relief.
76 I emphasise that, in this case it is the conduct itself that is entitled to such weight, not the fact that in an indirect manner that conduct has manifested itself in a particular conviction with a particular penalty. I am not saying the latter is irrelevant, but in the circumstances of this case I would come to no different conclusion, either in terms of identifying misconduct or in terms of determining what should be the relief, if there had never been a conviction at all. In the case of Cummins there was no conviction.
77 The matters sought to be agitated by the evidence, to the admission of which objection is taken, involve, at best, a secondary issue in the overall context. They are directed to the factual foundation for the determination by the magistrate, and by the District Court judge, that Mr Somosi's failure to comply with the Notice - not, I re-emphasise his failure to file the original returns - was in part motivated by a purpose of avoiding taxation. That purpose was, of course, of central significance in those proceedings. It is of trivial, if any, significance for the issue before this Court. It do not find it necessary to make any finding of fact about Mr Somosi's purpose for not complying with the Notice. Nor is his subsequent conduct, belatedly, to comply with the Notice, of sufficient significance to affect the outcome.
78 The determinative consideration for these proceedings is that he avoided tax for seventeen years. In the absence of any suggestion to the contrary in his own evidence, I find no difficulty in drawing the obvious inference that his failure to comply with his obligations over that period of time was deliberate and that he intended to avoid taxation. His subsequent conduct does not qualify the impropriety of this failure. Indeed, he has repeated the failure in two subsequent years.
79 The convictions must be regarded as finally determining the issues necessarily decided in those proceedings. There were, and are, options for reviewing such convictions e.g. invoking the supervisory jurisdiction of the Supreme Court or seeking review under Pt 13A of the Crimes Act 1900.
80 Insofar as the conviction itself is a material fact, this Court would not permit the opponent to challenge it in these proceedings (see Hunter v Chief Constable of the West Midlands Police [1982] AC 529 esp at 541-542; Rogers v The Queen (1994) 181 CLR 251 esp at 279-280; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 240-245). However, in this case, the Court is not materially concerned with the conviction as such.
81 In proceedings of this character the Court is entitled to assess the underlying conduct on which a conviction is based from the distinctive perspectives of professional misconduct and fitness to practice (see Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 esp at 283, 285-286, 288-291, 296, 297-298, 299-300, 301). In these matters the mere fact of conviction is not necessarily determinative. It is not in this case.
82 In these circumstances the two bases on which counsel for the Bar Association contended that the evidence should be rejected have not been made out. The public policy against collateral attack of a conviction is not engaged. This Court would take no different course even if it were minded to reach a different conclusion from that of Graham DCJ and, accordingly, there is no warrant in assessing the new evidence with a view to determining any such a question. Furthermore, there is no unfair prejudice within s135 of the Evidence Act. The evidence should be admitted. However, it is not necessary to make any findings of fact with respect to the evidence.