Counsel for appellant: Mr K Mccarthy QC, with him Mr Hevey

Solicitors for respondent: The Legal Practitioners Complaints Committee

JUDGE1 MILLHOUSE J

1. The appellant is a legal practitioner. He is aged 34 and has been in practice on his own account since 1987.

On 6 March 1995 the Legal Practitioners Complaints Committee laid a complaint against him, pursuant to the Legal Practitioners Act 1981. The Legal Practitioners Disciplinary Tribunal heard the complaint. The Report of the Tribunal is dated 27 April 1995.

The Complaints Committee charged the appellant with unprofessional conduct "in that:- 1. By letters dated the 27th day of April 1993, the 29th day of April 1993, the 9th day of May 1993 and the 17th day of May 1993 addressed to a Mr. Steve Herberth the practitioner sought to arrange for the importation into Australia of firearms or parts or firearms which he believed were prohibited imports:

2. By letter to Mr. Steve Herberth dated the 27th day of April 1993 the practitioner proposed dishonestly to avoid duty payable on imported goods.

3. On the 3rd day of July 1993 the practitioner knowingly made a statement to a customs officer that was false in a material particular namely that the practitioner was not bringing into Australia firearms or weapons.

On the 3rd day of July 1993 the practitioner brought into Australia prohibited firearms or parts thereof, namely:- (1) one (1) barrel, handguard and upper-receiver assembly for an AR15/.223 Military rifle (2) two (2) handguards for an AR15/M16 Military rifle (3) three (3)x.22LR Conversions Kits for an AR15/M16 Military rifle (4) two (2) grenades, uncharged (5) three (3) x 30 round .22LR magazines for AR15/M16 Conversion Kits (6) two (2) x 90 round .223 drum magazines for an AR15/M16 Military rifle.

By letter dated the 19th day of September 1994 to the Legal Practitioners Complaints Committee the practitioner misled or attempted to mislead the Committee in as much as he implied or stated:- (1) that the Australian Customs Service had no interest in the contents of the correspondence the practitioner had been having with Mr. Herbeth, then knowing that the practitioner had been prosecuted under the Customs Act; (2) that he had not been knowingly involved in any relevant improper activities."

PARTICULARS OF CHARGE NO. 5 (a) The correspondence with Mr. Herberth included an acknowledgment by the practitioner that parts usable on or attachable to an AR15/M16 rifle (and in particular a replacement gun barrel) are prohibited imports. (b) The prosecution of the practitioner included allegations that the practitioner imported prohibited imports (including a barrel and other parts for an AR15/M16) and that he knowingly or recklessly made a false customs declaration with respect thereto. (c) (i) the letter of 19 September 1994 was in response to a letter from Deputy Commissioner Hurley bringing to notice the practitioner's activities as briefed by Det. Superintendent Lister (sic). (ii) The letter of 19 September 1994 contained the following statements: (1) that a senior Customs service officer had no real interest in the matter whatsoever; (2) that the practitioner had not been involved in any knowingly improper activities whatsoever." (That is not the original form of the complaint but as it was amended during the course of proceedings.) 4. It is to be noted that the charge is "unprofessional conduct". What follows in the complaint are in effect particulars of that charge: they go to shew the nature of the unprofessional conduct. The appellant was asked to plead separately to the allegations. His pleas were:- 1. Guilty

3. Guilty to "recklessly" but Not guilty to "knowingly" (The plea was not accepted).

4. (1) Guilty (2) Not guilty (3) Not guilty (4) Not guilty (5) Not guilty (6) Guilty

5. These are the findings of the Tribunal with respect to the matters in issue:- " We find the practitioner guilty of the matters alleged in paragraphs 3, 4 and 5 of the complaint. The findings as regards paragraph 4 need only be made with respect to Items (2), (3), (4) and (5) as the practitioner pleaded guilty with respect to Items (1) and (6)."

The appellant therefore either pleaded guilty or was found guilty of all allegations in the complaint.

The Tribunal expressed the view "that the matter deserves the attention of the Supreme Court."

In its Report the Tribunal refers to the relevant standard which, it found, the appellant had breached. It cited In re a Practitioner (etc) [1927] SAStRp 9; 1927 SASR 58. Murray CJ said (at 60-61):- " 'Unprofessional conduct' is not defined in the Law Society's Acts. We regard it as wider than 'unprofessional misconduct,' which is the expression used in the English Act. The criterion applied to 'professional misconduct' in England is whether anything has been done by the practitioner, in the pursuit of his profession, which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency; ........In our view 'unprofessional conduct' is not necessarily limited to conduct which is 'disgraceful or dishonourable,' in the ordinary sense of those terms. It includes, we think, conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency."

The appellant is a shooter and collector of firearms. All this arose out of his wish to import into Australia from the United States prohibited imports, either entire firearms or parts or accessories - not only to import them but to cheat the Customs out of paying the proper duty on what he did bring in.

It started with him writing four letters to Mr Herberth, a gun dealer in Kentucky, soliciting his help to carry out his plans.

The Report contains lengthy extracts from the letters which I need not reproduce. Mr K R McCarthy QC with Mr G Hevey for the appellant, making a virtue out of necessity, confessed and avoided the letters by saying that the appellant did not mean to do what the letters suggest: he was merely "big-noting" himself to Herberth for some reason and had no intention of doing what was unlawful.

So far as I can see from the Report the Tribunal did not even consider this interpretation of the letters. I can see no justification for the interpretation. The letters must be taken to mean what they plainly say. Mr�McCarthy referred to them as "stupid" (amongst other derogatory adjectives from time to time during his submissions). I described them as "disgraceful" and I stick to that.

Apart from the extracts from the letters in the Report I pick out one other, being at the beginning of the first letter sent, dated "Tuesday 27 April 1993". It sums up what the appellant was about:- "My main problem is that some of the items which I am looking to procure are not permitted imports into Australia. However, as a practising Lawyer I can tell you that they only need to be prohibited if our Customs official know just what they are!"

Having rejected Mr McCarthy's interpretation of the letters I should go to the Tribunal's findings on credibility and the standard of proof which it used.

Under the heading "Practitioner's Credit and State of Mind" the Tribunal says: " We have difficulty in accepting the practitioner's evidence upon points of contention in view of his actions as particularised in his letters to Mr Herberth and his subsequent explanations.

On critical issues we are left in the position of not knowing what to believe so far as Mr Kerin's evidence is concerned."

Mr McCarthy attacked this as shewing that the Tribunal did not know what to believe and therefore it should not have purported to make any findings at all. The paragraphs are, unfortunately, a bit loose but read in context they mean, I am confident, that the Tribunal was saying, in a gentle way, that the members simply could not accept what the appellant said: they could not rely on his evidence. That meaning is strengthened by reading on. The next sentence is, "However we can make some positive findings as follows:- ....." The word "However" contrasts - and separates

• what has gone before from what is to follow.

Mr McCarthy argued that the Tribunal had not set out the onus of proof which it used. He contended the onus should be "beyond reasonable doubt" but, he said, he did not care if it were that or a standard derived from Briginshaw v Briginshaw [1938] HCA 34; (60 CLR 336): either way, Mr McCarthy said the appeal should succeed. Dixon J in Briginshaw's Case said (at 361):- "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

...it must very rarely happen that a tribunal of fact, upon a careful scrutiny and critical examination of the circumstances proved in evidence or of the testimony adduced, forms a definite opinion that adultery has been committed and yet retains a doubt, based upon reasonable grounds, of the correctness of the opinion." (at 368).

The Briginshaw onus is heavier than "on the balance of probabilities" but not as heavy as "beyond reasonable doubt" - where it lies on the scale between the two depends upon the case. As Olsson J said in Heinrich v The Medical Board of South Australia (Judgment S5559 of 11 April 1996 at page 15 of the print), "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."

As to the onus the Tribunal mentioned, "in view of the seriousness of the allegations made in Count 5, have borne in mind the heavy onus faced by the complainant in proving them." (The Tribunal was there referring, of course, only to "count 5" but there is no reason to think it adopted a different onus for the other charges).

This, it seems to me, is the Briginshaw onus and despite the dicta of Matheson J in T v The Medical Board of South Australia (58 SASR 382 at 391) I suggest that is the appropriate onus. (Matheson J was considering a provision in the Medical Practitioner's Act similar to that in the Legal Practitioner's Act.)

I have digressed from the narrative of events. In fact nothing ever came of the letters between the appellant and Herberth. The appellant did not buy anything from Herberth. The appellant did, however, go to the United States and on his return to Australia in July 1993 made a false customs declaration and brought in (or tried to - he didn't get past Customs at Sydney Airport) prohibited goods. These actions are the subject of the allegations 3 and 4.

Mr McCarthy made much of the error, which it seems no one but he picked up - he conceded it had not been raised before he raised it on the hearing of the appeal - that the appellant did not try to bring in any entire firearm, but only parts of firearms. Parts are not specifically mentioned on the Customs Declaration form. Therefore technically, Mr McCarthy argued, the appellant was not guilty of that false declaration. The fact remains, though, whatever the appellant did try to bring in, weapons or merely parts, they were prohibited goods. Therein lies his fault. The distinction Mr McCarthy drew is one without a difference. Had the point been taken at the hearing before the Tribunal it could have been cured by amendment then. It could be now, I suppose. The Court has power under s86(3) of the Legal Practitioners Act 1981 to do that. However Mr McCarthy said he didn't care too much about it. What really concerned his client is allegation (5).

All that was in 1993. In 1994 two Informations were laid against the appellant in a Local Court in Sydney. The charges were that he:- 1. "- on or about 3rd of July 1993, at Sydney in New South Wales, knowingly or recklessly made a statement to an officer that was false in a material particular,

WHEN in a Customs Quarantine and Wildlife Statement produced to an officer he answered 'NO' to the question: 'ARE YOU BRINGING INTO AUSTRALIA: 2. Prohibited goods such as narcotic drugs, firearms, spring bladed knives or weapons of any kind?

2. -on or about 3rd of July 1993, at Sydney in New South Wales, imported prohibited imports, being: A. parts specifically for firearms other than exempt firearms, namely the prohibited goods listed in Part A of the Schedule annexed to this Information;

AND B. appliances or equipment designed or adapted for warfare or like purposes, being grenades of any type, whether charged or not, namely 2 inert hand grenades described in Part B of the said Schedule;

AND C. detachable magazines having a capacity of more than 5 rounds for self-loading centre-fire rifles as described in Part C of the said Schedule."

The hearing of the charges was set for 24 September.

The letters between the appellant and Herberth had fallen into the hands of Customs. They wanted to put them before the Court in Sydney. There were discussions between the appellant and the prosecution. On 14 September the appellant wrote this letter, on his professional letterhead:- "Re: Customs prosecution - Hearing Date; 23rd September, 1994

Further to our conversation this day I confirm that I am agreeable to the tendering of the correspondence between me and Mr. Herberth in the United States without the need for Officer Howarth to be called for only that reason. Of course the relevance of that correspondence, once tendered, is another matter but that can be addressed on the day.

My intention is to avoid any unnecessary costs or inconvenience to either you, your client or your Counsel in the matter.

I will contact you this Friday to discuss the matter further. I do not need or require - at this stage - any letter from you in response hereto. I may ask you for same after we have spoken on Friday."

In the meantime the letters (or copies) had also come into the possession of the South Australian Police. The Deputy Commissioner wrote to the Secretary of the Legal Practitioners Complaints Committee sending the letters. His letter of 19 August ends by saying:- ".. given the tenor of these documents, I believe it is appropriate that your organisation should be given access to them for any action that you consider necessary."

The secretary of the Committee on 23 August wrote to the appellant, asking for an explanation. The appellant wrote an eight page letter in reply. The letter, apparently typed on 8 September (that is the date typed in) was apparently sent on 19 September (that date has been substituted in hand for the earlier date). (I should also mention that the letter had been settled by the appellant's then counsel sometime between the 8th and 19 September - but the appellant had assured counsel that the Herberth letters had nothing to do with his prosecution.)

At the beginning of the letter the appellant said:- "I presume that Detective Jim Litster" (a South Australian Police Officer) "called you of his own volition - but nonetheless at the instigation of another. Detective Litster spoke to and asked me about the subject correspondence some months ago and after I advised him that I had already been asked about the subject correspondence by a senior Australian Customs Service officer - who had no real interest in the matter whatsoever - Detective Litster himself appeared to have no further interest in pursuing the correspondence any further."

A Customs Service Officer, Howarth, had visited the appellant's premises and searched them but had taken no further action. The very officer, though, who was within a few days to prove the letters in court had the appellant not been prepared to consent to their tender! What the appellant wrote - that "a senior Australian Customs Service officer - who had no real interest in the matter whatsoever" - was an outright lie!

Secondly, towards the end of the letter:- "May I apologise yet again most sincerely for any concern raised in the minds of any readers of the 'prankish' correspondence between Steve and I.

It should not, in my respectful submission, be felt that I am recklessly indifferent to all appropriate import rules and requirements ....

I have never actively sought to avoid my liability to duty or sales tax - notwithstanding my admittedly clumsy and cavalier initial attitude to the unsolicited offers made to me by Dave - and I do ask that it be noted that when it came to the crunch, as it were, at the time when I took delivery of the various accessories from Dave, I

asked him for an invoice which showed the full and true value of all of the accessories which he had obtained for me. The quantum of these invoices were checked and verified by the Australian Customs Service."

32. Mr McCarthy argued that, strictly, there was no need to disclose the prosecutions because the appellant had been invited to explain only the letters. Yet suppressio veri suggestio falsi. The situation called for the appellant to disclose fully and frankly everything - and certainly that he was to be prosecuted for Customs offences - to some of which he must have already decided to plead guilty - and that the letters were to be tendered in the Court with his consent.

33. Those two matters are the nub of the 5th set of allegations, "Charge No. 5" as it is described in the amended complaint.

34. Mr McCarthy sought to cast doubt on the accuracy and sufficiency of the particulars of Charge No. 5. I must confess I could not follow his arguments. Whatever they were, the deficiencies could be no more than technical and a charge of unprofessional conduct should not be decided on technicalities. The technicalities could, I expect, be cured by amendment if the appellant wishes. Yet the fact remains and would still remain after amendment, that the appellant quite deliberately in that letter of explanation to the Complaints Committee misled it on two matters. That was as reprehensible as it is inexcusable.

35. The charge against the appellant is that he has been guilty of unprofessional conduct. I have no doubt that what he wrote in that letter - however the particulars are framed - was unprofessional conduct. The appellant's conduct "(fell) short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency."

36. The finding by the Tribunal of Guilty to the 5th set of allegations was amply justified.

ADDENDUM - Since preparing my own Reasons I have read those of my brothers Duggan and Debelle. I regret that there seems no way of reconciling my view with that of Duggan J. We are in too much disagreement. However on considering the Reasons of Debelle J I think I may now agree with his conclusions where, in three respects, they differ from mine. This will then give a majority decision rather than the appeal being dismissed by default of agreement between the members of the Court.

(1). I have said: "The fact remains, though, whatever the appellant did try to bring in, weapons or merely parts, they were prohibited goods. Therein lies his fault. The distinction Mr McCarthy drew is one without a difference. Had the point been taken at the hearing before the Tribunal it defend the finding of the Tribunal in answer to paragraph 4. I agree with Debelle J that "the appeal in respect of paragraph 4 should be allowed so that the misconduct relates only to allegations in sub could have been cured by amendment then. It could be now, I suppose."

Debelle J suggests the appropriate amendment, deleting in paragraph three the final three words "firearms or weapons" and substituting therefore "prohibited goods." I agree that that would be an appropriate amendment.

(2). I now recall that Mr David Quick QC for the respondent did not argue to defend the finding of the Committee in relation to paragraph 4. I agree with Debelle J that "the appeal in respect of paragraph 4 should be allowed so that the misconduct relates only to allegations in sub-paragraphs (1) and (6) of paragraph 4."

(3). The most substantial point of difference between us has related to paragraph 5. I now realise, from a reading of the evidence that the appellant denied in examination in chief an intention to mislead or an attempt to mislead the Complaints Committee. He was not cross-examined on that denial. That being so, the denial should stand. To shew an intention to mislead was essential to establish the allegation in paragraph 5. With regard to sub paragraph (1) that has been done but I accept it has not been done, as Debelle�J shews, with regard to sub-paragraph (2).

The appeal therefore should be allowed but only to the extent of striking from the particulars of the unprofessional conduct the matters alleged in paragraphs 4(2) to 4(5) inclusive and paragraph 5(2).

JUDGE2 DUGGAN J 44. The appellant pleaded guilty before the Legal Practitioners Disciplinary Tribunal (the tribunal) to various charges of unprofessional conduct and was found guilty by the tribunal of other charges which were laid in the same complaint. The complaint charged unprofessional conduct in that: 1. By letters dated the 27th day of April 1993, the 29th day of April 1993, the 9th day of May 1993 and the 17th day of May 1993 addressed to a Mr. Steve Herberth the practitioner sought to arrange for the importation into Australia of firearms or parts or firearms which he believed were prohibited imports:

2. By letter to Mr. Steve Herberth dated the 27th day of April 1993 the practitioner proposed dishonestly to avoid duty payable on imported goods.

3. On the 3rd day of July 1993 the practitioner knowingly made a statement to a customs officer that was false in a material particular namely that the practitioner was not bringing into Australia firearms or weapons.

4. On the 3rd day of July 1993 the practitioner brought into Australia prohibited firearms or parts thereof, namely:-

(1) one (1) barrel, handguard and upper-receiver assembly for an AR15/.223 Military rifle (2) two (2) handguards for an AR15/M16 Military rifle (3) three (3)x.22LR Conversions Kits for an AR15/M16 Military rifle (4) two (2) grenades, uncharged (5) three (3) x 30 round .22LR magazines for AR15/M16 Conversion Kits (6) two (2) x 90 round .223 drum magazines for an AR15/M16 Military rifle.

5. By letter dated the 19th day of September 1994 to the Legal

Practitioners Complaints Committee the practitioner misled or attempted to mislead the Committee in as much as he implied or stated:- (1) that the Australian Customs Service had no interest in the contents of the correspondence the practitioner had been having with Mr. Herbeth, then knowing that the practitioner had been prosecuted under the Customs Act;

(2) that he had not been knowingly involved in any relevant improper activities."

PARTICULARS OF CHARGE NO. 5 (a) The correspondence with Mr. Herberth included an acknowledgment by the practitioner that parts usable on or attachable to an AR15/M16 rifle (and in particular a replacement gun barrel) are prohibited imports. (b) The prosecution of the practitioner included allegations that the practitioner imported prohibited imports (including a barrel and other parts for an AR15/M16) and that he knowingly or recklessly made a false customs declaration with respect thereto. (c) (i) the letter of 19 September 1994 was in response to a letter from Deputy Commissioner Hurley bringing to notice the practitioner's activities as briefed by Det. Superintendent Lister (sic). (ii) The letter of 19 September 1994 contained the following statements: (1) that a senior Customs service officer had no real interest in the matter whatsoever; (2) that the practitioner had not been involved in any knowingly improper activities whatsoever."

Pleas of guilty were entered before the tribunal to counts 1 and 2. A plea of not guilty was entered in relation to count 3, but the appellant conceded that he had made a false statement to a customs officer on this occasion and was reckless as to whether or not it was true. The appellant pleaded guilty to count 4, but his plea was limited to the particulars in paragraphs 4(1) and 4(6). The other particulars of this count were denied. A plea of not guilty was entered in relation to count 5.

The tribunal found the appellant guilty of those counts to which he pleaded not guilty and found all the particulars proved. A recommendation was made for disciplinary action to be taken before this court. The court is not concerned at this stage with the last-mentioned aspect, but with an appeal against the convictions which was instituted pursuant to s86 of the Legal Practitioners Act, 1981.

It is convenient to deal first with an assertion in the notice of appeal that the tribunal misdirected itself as to the standard of proof required in relation to the charges of unprofessional conduct. Although the matter was not argued at length Mr McCarthy QC, for the appellant, submitted that the correct standard was proof beyond reasonable doubt. He relied on a dictum of Matheson J when sitting in the Full Court in T v The Medical Board of South Australia (1992) 58 SASR 382. The appellant in that case was a medical practitioner who was charged before the Medical Practitioners Disciplinary Tribunal with unprofessional conduct consisting of acts of sexual misconduct with a patient. Matheson J said (p391): "A charge against a medical practitioner of sexual misconduct with a patient is a very serious charge, and the consequences flowing from a finding of guilt are inevitably very grave. It was assumed sub silentio in Re Frederick (1957) SASR 149 that such a charge must be proved beyond reasonable doubt, but there does not appear to be any clear authority on the appropriate degree of proof. We are not, of course, concerned here with the proof of a crime in civil proceedings or with the proof of adultery under old and repealed divorce laws. I do not regard cases such as Briginshaw v Briginshaw (1938) 68 CLR 336 as very helpful in this context. I can find no authority that prevents me from holding, which I do, that the charges here must be proved beyond reasonable doubt. As it happens, that was ultimately the approach taken by the Tribunal, and, needless to say, the appellant does not complain about that. I leave open for further consideration whether proof so strict is required when the charge does not involve moral turpitude (compare Basser v Medical Board of Victoria [1981] VicRp 88; (1981) VR 953)."

Olsson J expressed the following view (p404): "Having so summarised the basic facts, the Tribunal turned its attention to the question of onus of proof. It basically accepted that the approach proper to be adopted was that articulated by the

High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Having done so the Tribunal went on to say: �In the present case, we have deliberately applied a very high standard of proof having regard to the nature of the allegations made by the patient, the difficulty in providing a positive refutation of allegations of that nature and the extraordinary seriousness of the consequences liable to flow from an acceptance of the allegations. Indeed, we have gone so far as to test our conclusions against the onus of proof which applies in criminal cases.�

That approach to a case such as this was, I consider, entirely appropriate."

Debelle J agreed with the orders proposed by Matheson J but expressed no view on the question of standard of proof.

Disciplinary proceedings of the type under discussion are proceedings sui generis; they are not criminal proceedings. (Weaver v Law Society of New South Wales ((1979) [1979] HCA 35; 142 CLR 201 at 207). In the joint judgment of the High Court in NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183 their Honours said: "The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v N.S.W. Bar Association [1960] HCA 40; (1960) 104 C.L.R. 186, at pp.201, 202."

Nevertheless it is well settled that, particularly in cases where fraud or moral turpitude is alleged, the considerations referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 are applicable. In that case Dixon J, as he then was, said (at p361): "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But 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. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters �reasonable satisfaction� should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

His Honour then went on to explain that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. He held that upon the issue of adultery: "The importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation".

The so-called Briginshaw standard of proof has been applied regularly in serious disciplinary cases. (See discussion in JRS Forbes, "Disciplinary Tribunals" (1990) para 12.22). However it must be said that the appropriate standard in such cases never has been decisively determined. In Bannister v Walton (1993) 14 LR No. 22 the High Court refused to grant special leave to consider whether the standard of proof prescribed by Briginshaw's case should be applied to cases heard by a tribunal authorized under the Medical Practitioners Act 1938 (NSW).

There is a useful discussion on the topic in the judgment of Thomas J in Adamson v Queensland Law Society Inc (1990) 1 Qd. R. 498 at 504. His Honour said: "It is true that prior to Rejfek's case there was a divergence of approach between courts in different States as to the standard of proof applicable in disciplinary proceedings when breach of a penal provision was an issue. In contrast to the Queensland decisions in Re N.E.G. and Michel the civil standard was applied in some other jurisdictions. (Re Hodgekiss (1962) 62 S.R. (N.S.W.) 340; Bhandari v. Advocates Committee (1956) 1 W.L.R. 1442; (1956) 3 All E.R. 742 (P.C.)), although due recognition was given to what might be called the serious civil standard of proof in relation to allegations

involving moral turpitude or breach of a statutory prohibition.

Whatever the merits of the pre-1965 authorities, the post-Rejfek era has affirmed the application of the civil standard to such proceedings. In Re Evatt; ex parte New South Wales Bar Association (1967) 67 (S.R.) N.S.W.) 236 the New South Wales Court of Appeal observed:�"The onus of proof is upon the Association but is according to the civil onus. Hence proof in these proceedings of misconduct has only to be made upon a balance of probabilities: Rejfek v. McElroy [1965] HCA 46; (1965) 112 C.L.R. 517. Reference in the authorities to the clarity of the proof required where so serious a matter as the misconduct (as here alleged) of a member of the Bar is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336, at p. 362 per Dixon J., as he then was; Helton v. Allen [1940] HCA 20; (1940) 63 C.L.R. 691; Smith Bros. v. Madden Bros. (1945) Q.W.N. 33, at p. 42 per Dixon J." (1967) 67 S.R. (N.S.W.), at p. 238.�

An appeal was brought from that decision to the High Court, (New South Wales Bar Association v. Evatt [1968] HCA 20; (1968) 117 C.L.R. 177) where no suggestion was made that the wrong standard of proof had been applied. Indeed, the court considered both an appeal and cross -appeal and allowed the Association's appeal by imposing disbarment in place of suspension. It is difficult to think that the High Court regarded any higher standard of proof being required than that expressed by the New South Wales Court of Appeal.

The question was expressly raised in the important decision of Ex parte Attorney-General; Re A Barrister and Solicitor (1972) 20 F.L.R. 234, 246 (Fox J., Blackburn J. and Woodward J.) where the court decided to apply the standard expressed in Evatt's case. This

has since been followed (cf. Re A Barrister and Solicitor; Re Legal Practitioners' Ordinance (1970) A.C.T. (1979) 40 F.L.R. 1, 21).

In my view disciplinary proceedings before a professional tribunal (as distinct from proceedings in a court for penalty) cannot generally be regarded as 'criminal proceedings' whether or not the tribunal happens to have the additional power of imposing a fine. The superior courts, in their inherent power to discipline legal practitioners, possess the power to fine as well as strike off (Re Heydon (1901) 1 S.R. (N.S.W.) 81; Re Fanker (1913) 30 W.N. (N.S.W.) 39), and many statutory committees have the express power to impose a fine (e.g. the Disciplinary Committee under the Canberra Ordinance in issue in Ex parte Attorney-General; Re A Barrister and Solicitor). It can no longer be suggested that in exercising

functions of discipline the courts or the statutory committees are conducting criminal proceedings or that the golden thread of Woolmington v. D.P.P. [1935] UKHL 1; (1935) A.C. 462 runs through their proceedings. The power of a disciplinary tribunal to order a practitioner to pay a pecuniary penalty to the professional body (as s.41 of the Medical Act does) may be regarded differently from the recording of a conviction and the imposition of a fine by a court, as the former proceedings are still essentially disciplinary in nature and are a form of self-regulation by a profession. On this basis the Briginshaw standard may satisfactorily accommodate all proceedings before professional disciplinary tribunals. Without questioning the correctness of the decision in McKay's case, to the

extent indicated above neither Re N.E.G. or Michel's case can any longer be regarded as good law."

I respectfully agree with the views expressed in the extract from the judgment of Thomas J and I think the Briginshaw standard was applicable in the circumstances of the present case.

However Mr McCarthy argued that the tribunal did not apply such a standard in proof in the present matter. It is true that the tribunal did not refer specifically to the standard which they were applying. Nevertheless, when discussing the fifth count in their report, the tribunal said: "We have considered those explanations and the evidence put before us in the hearing and, in view of the seriousness of the allegations made in Count 5, have borne in mind the heavy onus faced by the complainant in proving them."

The report then goes on to summarise a series of findings in relation to that count.

I think it is a wise practice for tribunals to make specific reference to the standard of proof being applied. However I do not think it can be inferred that a standard less than that referred to in Briginshaw's case was applied in the present case. (cf. Elliott v Harris (No. 2) (1976) 13 SASR 516 at 525). On the contrary I think it can be inferred from the choice of words in the passage from the report which I have just quoted that the Briginshaw standard was applied.

Mr McCarthy also drew particular attention to a passage in the report where it is stated: "We have difficulty in accepting the practitioner's evidence upon points of contention in view of his actions as particularised in his letters to Mr Herberth and his subsequent explanations.

On critical issues we are left in the position of not knowing what to believe so far as Mr Kerin's evidence is concerned."

It was suggested that this comment was open to the inference that the tribunal was unable to reach any conclusions on the key aspects of the matter, whatever standard of proof was applied. However I do not think that the passage should be read in that way. I think the tribunal was there explaining that the appellant's evidence on some important issues did not assist them to reach findings. Immediately after making this observation the tribunal went on to say: "However we can make some positive findings as follows: ..." and certain findings were then set out. To my mind this is a clear indication that various findings were possible on the evidence when considered as a whole.

I have reached the conclusion, therefore, that the tribunal did apply the Briginshaw standard of proof and that before findings were made the evidence was weighed in order to determine whether that standard of proof was satisfied.

Mr McCarthy's main criticism of the tribunal's findings was in relation to count 5. Before discussing this aspect it is necessary to say something about the background to that charge. During April and May 1993 a series of letters passed between the appellant and a man named Herberth who is a dealer in firearms based in Kentucky, USA. In the letters the appellant discussed importing firearms into Australia. The correspondence was described by the tribunal in the following terms: "The correspondence speaks for itself. It is alarming. Mr Kerin is endeavouring to incite Mr�Herberth to become party to transactions some of which can only be described as dishonest. The correspondence from Mr Kerin is written upon his professional letterhead and includes references which show Mr Kerin to be contemplating the use of clients and friends for the purpose of his dishonest proposals."

The appellant has since stated that he is thoroughly ashamed of what he wrote in the letters and he claims that much of it was fantasy. In particular he describes as false the claim he made in the correspondence that he had imported firearms into Australia illegally. It would appear that the appellant did not enter into any transaction with Herberth as a consequence of the correspondence and he had not been charged with any offence by reason of the fact that he was the author of the letters sent to Herberth.

However the correspondence did come into the possession of the customs authorities who spoke to the appellant about their contents. Furthermore the letters were tendered as part of the prosecution case against the appellant in relation to an importation of goods which was unconnected with the correspondence. Presumably the relevance of the letters in that prosecution was that they indicated the appellant's interest in importing firearms and associated items and, on their face, suggested that he would be prepared to flaunt customs regulations if necessary.

The correspondence was passed on to the South Australian Police Department by the Customs Service and Detective Superintendent Litster made some enquiries and spoke to the appellant. The police decided not to take any action in respect of the letters but the Deputy Commissioner of Police sent copies of the correspondence to the Complaints Committee of the Law Society. The secretary of that committee forwarded them to the appellant for explanation. The appellant then sent to the committee the letter dated 19th September 1994 which gave rise to the charge in count 5. The appellant wrote in part: "I presume that Detective Jim Litster called you of his own volition - but nonetheless at the instigation of another. Detective Litster spoke to and asked me about the subject correspondence some months ago and after I advised him that I had already been asked about the subject correspondence by a senior Australian Customs Service officer - who had no real interest in the matter whatsoever - Detective Litster himself appeared to have no further interest in pursuing the correspondence any further.

I am unaware of to what �activities� Deputy Commissioner Hurley might be referring in the third line of his letter to you of 19/8/94 - I having been involved in no knowingly improper activities whatsoever - and I respectfully submit that it should be considered to be most significant that the Police Department has no interest whatsoever in any action as a result of the correspondence.

I can understand Deputy Commissioner Hurley's concern at the �tenor� of the documents as he calls it and it is for this reason that I am writing to you at length - not to justify my �attitude� in the correspondence, but to explain it away."

He then commented in detail on what he had written to Herbeth. He concluded the letter as follows:

"May I apologize yet again most sincerely for any concern raised in the minds of any readers of the �prankish� correspondence between Steve and I.

It should not, in my respectful submission, be felt that I am recklessly indifferent to all appropriate import rules and requirements. In fact I am regularly in the practice of importing whole firearms - including handguns - from America and go to pains to ensure that all requisite permission and approvals are obtained ahead of time. As evidence of this I also enclose herewith copies of:

1. An S.A. Police Department Firearms Section Form B709A in relation to a particular revolver;

2. A letter which I sent to the Australian Customs Service back in May in relation to the same commemorative revolver; and

3. The response from the Australian Customs Service to my letter to them.

The importation of the subject revolver was considered by the Australian Customs Service to have been much more �serious� (if that is the right word) than the accessories and scopes which I had no problems in bringing back with me last year.

I have never actively sought to avoid my liability to duty or sales tax - notwithstanding my admittedly clumsy and cavalier initial attitude to the unsolicited offers made to me by Dave - and I do ask that it be noted that when it came to the crunch, as it were, at the time when I took delivery of the various accessories from Dave, I asked him for an invoice which showed the full and true value of all

of the accessories which he had obtained for me. The quantum of these invoices were checked and verified by the Australian Customs Service.

In closing I offer still yet again to the committee my most sincere and heartfelt apologies for my less than judicious actions which were in any event never intended to publicly concern or embarrass anyone but which were only ever intended as and to be private correspondence between me and an associate in the United States."

In his evidence before the tribunal the appellant conceded that he was aware prior to replying to the complaints committee that the prosecution intended to use the letter to Herberth as part of the case against him in the proceedings which were to take place in New South Wales. However he said that when Litster and Mr Howarth of the Customs Service spoke to him about the letter their enquiries were concentrated on whether any illegal activity was disclosed in the letter. The appellant claimed that when he stated in his reply to the committee that he had been asked about the subject correspondence by a senior Customs Service officer "who had no interest in the matter whatsoever", he was confining his remarks to the correspondence and any offence which it might have disclosed. He said it was with the same thought in mind that he said that Detective Superintendent Litster "appeared to have no further interest in pursuing the correspondence further".

It is my view that the appellant's letter, taken at face value, conveyed the impression that the Customs Service officer had no interest in the correspondence at all. As the tribunal pointed out, it is obvious that such was not the case. The correspondence had led the Customs Service to investigate the appellant and it was to be used as part of the prosecution case in relation to the pending proceedings. The appellant knew this at the time he wrote his reply to the complaints committee.

Of course count 5 could not have been made out unless it had been established that the appellant intentionally misled or attempted to mislead the complaints committee and it was in this respect that his explanations as to why he wrote what he did, including the explanation I have summarised above, became relevant. The credibility of the appellant was crucial to this particular issue and in this respect the tribunal made unfavourable findings against him both generally and in relation to the matter presently under discussion. The tribunal carefully considered the evidence on this count and I was unable to detect any flaw in the reasoning of its members. After perusing the evidence, albeit without the advantage of seeing and hearing the witnesses, I agree with the conclusions reached by the tribunal and I am of the view that misconduct was established by reason of the matters alleged in paragraph 5(1) of the complaint.

There is a further particular in the fifth charge which was the subject of a finding unfavourable to the appellant. As is apparent from the extracts which I have quoted above, the tribunal found that the appellant misled the committee by saying that he had been involved in "no knowingly improper activities whatsoever" when he knew that this statement was untrue because he had committed an offence in respect of which a prosecution had been launched by the Customs Service. It has been the appellant's claim throughout that he did not knowingly commit any customs offence and this is the statement he made in his letter to the committee. In my view it is inappropriate to use a claim of innocence made to the committee before the hearing of a charge then pending in a court as the basis of a charge of unprofessional conduct laid after the practitioner is found guilty of the offence. I think this would create an undesirable precedent. It would follow that a practitioner who denied possessing the mens rea for any alleged offence about which he was questioned could be convicted of an offence of misconduct after an unfavourable finding by a court or, presumably, the tribunal. Of course there is nothing to prevent a court or tribunal from taking into account an accused person's reaction to allegations prior to the hearing of a charge as a matter relevant to the assessment of the seriousness of that person's total conduct. For these reasons I think that the finding of unprofessional conduct in relation to the fifth count should be restricted to the particulars alleged in paragraph 5(1).

Next there is the challenge to the conviction on count 3. The case against the appellant in relation to this matter was that on 3rd July 1993 he made a false statement in a customs form which he was required to fill out on his return to Australia from overseas. The form required an answer to the question: "Are you bringing into Australia prohibited goods such as narcotic drugs, firearms, spring loaded knives or weapons of any kind?"

The appellant answered "No". The appellant did not contest the fact that on this occasion he was bringing into the country a gun barrel and two drum magazines for an AR15/M16 Military rifle.

According to the argument for the appellant the charge was misconceived. The appellant was bringing prohibited imports into the country, but they were not firearms or weapons; they were parts of weapons. It was said that the appellant did not make a false statement in these circumstances. When the appellant was questioned about the items in his baggage at the airport, he said he did not declare the rifle accessories because they were only parts of weapons and not weapons.

The definition of "firearm" in the Customs (Prohibited Imports) Regulations does not include parts of firearms; they are prohibited by reason of their inclusion in a schedule to the regulations. According to the appellant it was his understanding, gleaned from discussions held before departing Australia with the South Australian Police Department and a customs officer, that he was not bringing firearms into the country. He said he thought he was entitled to bring in parts of firearms and that he was answering the question correctly.

The issue in this charge was not whether the appellant was importing prohibited goods; that was not in dispute. The point in issue was whether he knowingly made a false statement in the Customs form. Accordingly it was essential for the tribunal to assess the appellant's state of mind at the time of the filling in of the customs form and, in the course of doing so, to have regard to the fact that the question posed in the form referred to firearms and not parts of firearms. I think it was also important for the tribunal to give some indication of its process of reasoning in relation to this critical issue. I am inclined to think that issue may not have been made clear enough to the tribunal. Indeed it did not emerge all that clearly in the argument before this court. However the appellant's evidence at the hearing before the tribunal does give rise to the considerations to which I have referred.

In any event the report of the tribunal does not provide an insight into its reasoning on this charge. The report correctly states that one of the issues to be decided was whether the practitioner's statement on 3rd July 1993 was made knowingly. (AB 307) Later in the report a letter from the Australian Government Solicitor to the complaints committee setting out the appellant's explanation which he gave to the customs officer for filling out the form in the way in which he did is quoted. (AB 312) The next reference to the issue is in the following finding (AB 322): "When Mr Kerin made his statement to a Customs Office on 3 July 1993 he knew that the statement was false in a material particular namely with respect to the rifle barrel. It is unlikely that his dishonest state of mind was confined to this one item but any conclusion regarding the other items before us must be a matter of inference having regard to Mr Kerin's legal training and interests in the Customs rules."

The only other relevant passage is in the summary of conclusions where it is stated (AB 339): "As regards paragraph 3 of the complaint

• the practitioner knowingly made a statement to a Customs Officer that was false in the manner alleged."

The tribunal may have gone through the steps which I have identified as essential in a consideration of this particular count but that cannot be determined by reference to the report itself and, without hearing and seeing the appellant give evidence on the topic, I feel that an appeal court is unable to determine the matter at this stage. Accordingly I have reached the conclusion that the conviction on count 3 should be set aside.

The final matter concerns count 4. The respondent did not contest the contention of the appellant that the items described in paragraphs 4(2), (3), (4) and (5) should be deleted from the particulars which were found proved and was content that the conviction should be amended so as to include only the particulars in paragraphs (1) and (6). In these circumstances I think that this conviction should be amended accordingly.

In summary I am of the view that the appeal should be allowed for the following purposes:

2. To amend the conviction on count 4 by confining it to the allegations made in paragraphs 4(1) and 4(6).

3. To amend the conviction of unprofessional conduct on count 5 by confining it to the allegation made in paragraph 5(1).

JUDGE3 DEBELLE J The facts are set out in the reasons of Millhouse�J and Duggan�J.

I agree with the reasons of Duggan J and with his conclusion that the appropriate standard of proof is that referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. I agree also with his reasons for holding that the Tribunal applied that standard in this case.

I turn to the appeal in relation to the three particulars of the charge of unprofessional conduct. It is important to emphasise at the outset that the appellant was charged with unprofessional conduct. The matters set out in paras1- 5 are in the nature of particulars of that unprofessional conduct. They are not separate charges but ingredients of the charge of unprofessional conduct. Nevertheless, it must not be overlooked that the gravity of the unprofessional conduct will turn upon the extent to which each of the matters particularised is proved. In addition, the practitioner must be properly apprised of the case he has to answer. It is important, therefore, that care is taken to ensure that the particulars of the unprofessional conduct alleged against a legal practitioner are carefully drawn so that they contain no ambiguity and clearly state the nature of the alleged misconduct. In this case, the particulars alleged in paras3 and 5 have led to difficulty. In either instance, it is beyond contention that the particulars were not carefully drawn.

I turn to the appeal in relation to para3 which alleges: "On the 3rd day of July, 1993 the practitioner knowingly

made a statement to a customs officer that was false in a material particular namely that the practitioner was not bringing into Australia firearms or weapons."

The Customs form which the practitioner was required to complete asked: "Are you bringing into Australia: ... 2. Prohibited goods such as narcotic drugs, firearms, spring-bladed knives or weapons of any kind? ..."

The practitioner answered the question "No." The answer was incorrect. He was bringing into Australia prohibited goods. Those prohibited goods were parts of firearms. He was not, however, importing firearms or weapons. The allegation in para3 has made the mistake of assuming that the answer was false in that the practitioner incorrectly stated that he was not bringing into Australia firearms or weapons.

In the Tribunal, the practitioner admitted to recklessly making the false statement but denied that he knowingly made the false statement. Thus, the hearing in the Tribunal focussed on the question whether the practitioner knowingly made a false statement. The gist of the allegation was making a false statement to a person in authority. There was no issue in the Tribunal as to the terms of the false statement. Had a question arisen as to the terms of the false statement, the Tribunal would have permitted the Complaints Committee to amend para3 to allege that the statement was false in that it stated that the practitioner was not bringing prohibited goods into Australia. The practitioner does not assert that he did not make a false statement. The only issue was his state of mind. The Tribunal found that his statement was made knowingly and not recklessly. There was ample evidence on which the Tribunal could find that the practitioner knew the statement was false. That evidence included the fact that the prohibited goods he imported were parts of automatic rifles. The practitioner's correspondent with a Mr�Herberth in the United States of America discloses that he was aware that parts of automatic rifles were prohibited imports. It has not been demonstrated that the Tribunal did not properly decide the matter.

It is clear from the submissions made by Mr�McCarthy�QC, who appeared for the practitioner, that the appeal against the findings in this allegation has been brought for the purpose of emphasising that the particulars are inaccurate. They are. Mr�McCarthy conceded that the difficulty could have been cured by amendment. He conceded also that there was evidence to support the allegation as amended. In my view, the appropriate course is to amend para3 by deleting the words "firearms or weapons" at the end of the paragraph and substituting therefor the words "prohibited goods". Once it is amended, the appeal must fail.

Counsel for the respondent did not contest the appeal against the findings made in respect of para4. The appeal in respect of para4 should, therefore, be allowed so that the misconduct relates only to allegations in sub-paras(1) and (6) of para4.

The most substantial issue in the appeal was the allegation set out in para5 of the grounds of misconduct. There is no allegation as to the practitioner's state of mind. I agree with Duggan�J that this allegation could not have been proved unless it was established that the appellant intentionally misled or attempted to mislead the Complaints Committee. I am also in substantial agreement with the reasons of Duggan�J for concluding that the appeal in respect of the misconduct alleged in sub-para(1) of para5 should be dismissed.

The question of intent was particularly relevant in respect of the misconduct particularised in sub-para(2) of para5. The statement in the letter was misleading. By this letter the practitioner was seeking to explain and justify his conduct. Once he asserted that he had not been knowingly involved in any improper activities, the practitioner was obliged to disclose all relevant facts. The fact of the prosecution obviously indicated that the Customs Department held a view of his conduct which differed from that held by the practitioner. Thus, he was required to disclose that he was being prosecuted under the Customs Act. The practitioner should have pointed out that he was being charged with knowingly or recklessly committing an offence contrary to the provisions of the Customs Act. If he had wished, he could have added that, while he admitted that he might have been reckless, he denied committing the offence knowingly. The failure to mention the prosecution had the effect that, when viewed objectively, the practitioner's letter was misleading. However, the question whether the practitioner intended to mislead the Complaints Committee was not pursued before the Tribunal. This may have been a consequence of the terms in which para5 was expressed. The practitioner denied an intent to mislead. For the reasons which follow, I do not think there was sufficient evidence upon which the Tribunal could find that the practitioner intended to mislead the Complaints Committee.

The Tribunal concluded that, standing alone, the practitioner's letter to the Complaints Committee was consistent with his intention to plead not guilty at the hearing in Sydney. Later in its reasons, it said that, although it might have been prudent to disclose the fact of the prosecution, it would not hold that it was then necessary to disclose it. Having reached that conclusion, the Tribunal should have held that the practitioner had not intended to mislead the Committee with the second of the two statements. Yet, for reasons which are not articulated, the Tribunal made the following finding which is quite inconsistent with its earlier reasoning: "What we do find, however, is that for reasons of his own, the practitioner went further than merely dealing with the correspondence and actively sought to mislead LPPC by the statements quoted in his letter of 19�September."

It then found that the practitioner was guilty of both of the aspects of unprofessional conduct particularised in para5.

The Tribunal returned to this issue when it summarised its conclusions. It then said: "The practitioner knew that his statement as mentioned in paragraph�3 of the complaint was untrue and that he had committed an offence which the prosecution was entrained by the Customs Service. The statements particularised from the practitioner's letter of 19�September 1994 were knowingly wrong or knowingly misleading. The practitioner by his letter of 19�September 1994 made a gratuitous attempt to distract the Legal Practitioners Complaints Committee from further enquiry which might have led to discovery of events then unfolding in Sydney and which led to his conviction. We find that the practitioner attempted by his letter to mislead the recipient."

It appears, therefore, that to some extent the Tribunal's reasons were based on the fact of the prosecution and subsequent conviction in Sydney.

The Complaints Committee did not rely on the terms of the practitioner's correspondence with Mr�Herberth. The allegation that the letter was misleading was based on the practitioner's conduct in falsely answering the Customs declaration on 3�July 1993. To the extent that the Tribunal's finding was based upon the statement made by the practitioner on 3�July 1993, the Tribunal reasoned that, because the practitioner knew that his answer to the Customs declaration was untrue, he intended to mislead the Committee. The Tribunal was entitled to conclude that the practitioner knowingly made an untrue statement when completing the answer on the Customs form. It does not necessarily follow that he intended to mislead the Complaints Committee or that the statement made in his letter to the Complaints Committee was knowingly wrong or knowingly misleading. The practitioner had said that he did not intend to mislead the Committee. There was evidence that he had obtained advice from counsel as to the terms of the letter and whether he should disclose the fact of the prosecution. There was no challenge to that evidence. The practitioner was not cross-examined as to his intentions when drafting that part of the letter which stated that "he had not been knowingly involved in any relevant improper activities". The Tribunal has dealt with the matter on the footing that the letter, when viewed objectively, was misleading. It was. While that is an important factor, it does not, standing alone, determine the issue whether the practitioner intended to mislead the Committee. These difficulties may have arisen from the manner in which sub- para(2) of para5 was drawn. The evidence before the Tribunal was not so compelling as to prove the intention to mislead. The Tribunal should not have found that the practitioner was guilty of the misconduct alleged in para5(2). I do not think it appropriate to refer this single aspect of the matter back to the Tribunal for re-hearing. The appropriate course is to allow the appeal of the practitioner.

For these reasons I would allow the appeal for the purpose of striking from the particulars of the unprofessional conduct the matters alleged in paras4(2) to 4(5) inclusive and para5(2). In all other respects I would uphold the finding of unprofessional conduct.