Plaintiff v Defendant

2 The plaintiff has applied for a second time to have the defendant's name removed from the roll kept by this Court of persons admitted to the legal profession (the 'roll') pursuant to s 2.4.42(5) of the Legal Profession Act 2004 (the 'Act'). The first such application was heard by me on 12 May 2010. The defendant did not appear at that hearing or otherwise contact the court in respect of it. Nor did the defendant involve himself in any way with the present application.

3 On 17 June 2010, I handed down my decision rejecting the plaintiff's first application because the majority of the evidence adduced in support of it was inadmissible. However, I granted the plaintiff liberty to apply, as it saw fit, once it had corrected the identified deficiencies fatal to its first application.

The facts out of which the present application arises

4 In my earlier decision, I summarised the facts out of which this application arises as follows:

The defendant was admitted to practice on 1 April 1981. Until the events giving rise to this application occurred, the defendant had never been the subject of any complaint, been suspended from practice, or struck off the Roll. He practised as a sole practitioner under the entity name 'F McGrath & Co' from 31 January 1992 until 30 June 2008. Prior to that he was an employee, and then a partner at a law firm known as 'Petersons'.

On 21 October 2008, the defendant pleaded guilty to

[on 8 February 2008] one count of knowingly possessing child pornography, contrary to s 70(1) of the Crimes Act 1958; and

[between 1 July 2007 and 8 February 2008] one count of using an online information service to publish child pornography contrary to section 57A of the Classification (Publications, Films and Computer Games)(Enforcement) Act 1995.

He was sentenced to 12 months imprisonment on each charge to be served concurrently by way of an intensive correction order. He was also registered as a Sex Offender for fifteen years.

On 11 May 2010, the defendant was convicted of (on 20 February 2009) two counts of knowingly possessing child pornography, contrary to s 70(1) of the Crimes Act 1958. He was sentenced to 290 days imprisonment, 90 days of which were suspended, and was registered as a Sex Offender for life. He lodged an appeal against that decision and was granted bail on his own undertaking.[2]

5 The evidence now before me contains four additional facts relevant to the present application.

6 First, I now have before me the affidavit of Peter Butland, the informant in the case against the defendant.[3] Exhibit PJB1 of that affidavit is the informant's summary of the charges against the defendant from his Magistrates' Court hearing. It includes a description of the nature and quantity of the child pornography found in his possession at the time he was first charged. For the purposes of this application, I need not reproduce in specific detail what that material involved. Suffice to say that the defendant had 'well in excess of 5000 photographs' and 'hundred of movies involving child pornography' on his computer. That summary concludes as follows:

Many of the photographs and movies were of the worst kind imaginable. The photographs and movies of babies, toddlers and small children being raped are horrific. The photographs and movies of young children involved in bondage and beastiality [sic] are horrific. Many of the children in the photographs and movies appeared frightened, distressed and horrified.

7 Secondly, Exhibit PJB1 indicates that the defendant admitted consuming and transmitting child pornography over a not insignificant period of time:

The defendant stated that he regularly used adult chat rooms where he would live out sexual fantasies. He states that he was often sent child pornography while in these chat rooms. He stated that he first became involved with child pornography about 5 years earlier when he was acting in a trial involving incest charges. He claims he became intrigued by the adult/child sexual relationship. He then began to receive child pornography and this interest got "carried away and snowballed". The defendant claims he has transmitted child pornography photographs and movies via e-mail about 100 times. He admitted sending the photographs and movies from about 18 months earlier up until just before his arrest. He would send the child pornography photographs and movies to other anonymous persons he would chat with over the internet.

8 That paragraph also makes clear that, thirdly, and of critical importance to this application, the defendant admitted to police that his interest in child pornography began after he was involved in a professional capacity in a case involving child sexual abuse.

9 Fourthly, the plaintiff has also supplied me with a psychiatric report commissioned with respect to the defendant after he was charged with the offences in question.[4] That psychiatric report indicates that the defendant was not suffering from a mental disorder at the time when he committed the offences in question, or that such a disorder was responsible for his behaviour. Instead, it indicates the consultant psychiatrist's belief that the defendant exhibited poor judgment and a lack of appreciation of the harm caused by the production of child pornography.

10 In my earlier decision, I set out the principles on which applications of this nature are approached by the court. I drew special attention to the fact that:

...the Court approaches the making of such decisions with caution and 'meticulous care', and with a great appreciation for 'the possibly disastrous consequences of disbarment to the individual concerned'.[5] [Footnotes omitted]

11 Before I begin my discussion of the instant case, I emphasise that each application of this type must be approached on its own facts in light of the applicable legal principles. These principles are of long standing and high authority and must be applied carefully. Applications of this type must be decided by reference to the law, not to more nebulous concepts of personal morality or moral distaste, especially when they involve sensitive issues like child pornography.

12 Convictions for, or arising out of, child pornography offences are not prima facie evidence that a person is not a fit and proper person to remain on the roll kept by this Court. The nature of the material involved, the extent and circumstances of the offending in question, its relationship to the offender's professional life, and the behaviour of the offender before, during and after the legal processes which result from that offending will all be relevant to deciding any application to strike that offender from the roll. As the High Court's decision in A Solicitor v Council of the Law Society of New South Wales[6] indicates, even an individual convicted for the sexual abuse of minors can, albeit in a very small number of conceivable circumstances, remain a fit and proper person to practise law in this country.

13 That being said, I wish to make three additional points.

14 First, conviction for any serious breach of the law must call into question a practitioner's willingness and ability to obey the law which is integral to the civic office which they perform and the trust reposed in them to properly perform that function. As Spigelman CJ held in New South Wales Bar Association:

The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or public in the performance of professional obligations by professional people.

...

Neither the relationship of trust between a legal practitioner on the one hand, and his or her clients, colleagues and the judiciary on the other hand, nor public confidence in the profession can be established or maintained, without professional regulation and enforcement.[7]

15 Secondly, the legal profession is one which demands both empathy and insight into the victims of criminal behaviour if it is to be performed to the standard expected by the courts, fellow practitioners and the general public. Any conviction which appears to show a disdain for such victims will raise a serious concern about a practitioner's professional and moral fitness to remain an officer of the court.

16 Finally, any suggestion that crimes committed at arm's length, such as those which involve child pornography, can be considered of lesser seriousness in deciding upon an individual's fitness to remain on the roll should be the subject of intense scrutiny. As Mason P observed in New South Wales Bar Association v Hamman in the context of tax fraud:

I emphatically dispute the proposition that defrauding 'the Revenue' for personal gain is of lesser seriousness than defrauding a client, a member of the public or a corporation. The demonstrated unfitness to be trusted in serious matters is identical. Each category of 'victim' is a juristic person whose rights to receive property are protected by law, including the criminal law in the case of dishonest interception. 'The Revenue' may not have a human face, but neither does a corporation. But behind each (in the final analysis) are human faces who are ultimately worse off in consequence of fraud.[8]

17 Four interconnected circumstances are relevant to deciding the present application.

18 First, the defendant has been convicted of a number of serious offences involving child pornography. The amount of such material found in his possession was both extensive and of a highly disturbing and serious nature. The defendant was not only involved in criminal use of the internet and his computer, but was vicariously complicit through the consumption and transmission of this pornographic material in the commission of the crimes depicted therein. This consumption and transmission occurred over a not insignificant amount of time. As was observed in Clyne v New South Wales Bar Association, a single act that would not of itself warrant striking out, may do so if it is 'shown to be part of a deliberate and persistent system of conduct'.[9] It is also clear on the evidence before me that the defendant, whilst he did not commit the offences in the course of his professional duties, admitted that he was prompted to access and distribute the material in question after acting in a case involving incest and becoming intrigued by sexual relations between adults and children. This, in and of itself, raises serious concerns about the fashion in which the defendant has approached his professional obligations over the course of his career. It indicates a serious lack of understanding and judgment with regard to his professional role. The defendant was engaged in both the consumption and the transmission of pornographic material, the later, admittedly, not for pecuniary gain. Finally, the defendant's offending was not the result of a mental disorder. He committed it with full knowledge of what he was doing and its criminal character.

19 Secondly, since that conviction, the defendant has been convicted of another set of child pornography offences. He has appealed that second set of convictions, but did not inform the plaintiff of that fact or the charges which gave rise to it. The plaintiff has not relied upon those convictions in making its application. However, in deciding what orders to make in the matter I may also act pursuant to the court's inherent jurisdiction to discipline the lawyers under its supervision[10] and am not constrained by the plaintiff's submissions. As set out in my previous decision in this matter, the evidentiary value of those convictions prior to that appeal being decided is limited. However, it is admissible to prove a breach of the defendant's continuing obligation to disclose to the plaintiff facts that were material to the plaintiff's decision as to what action to take against him and I will treat it as such.

20 Thirdly, and significantly, the defendant has not appeared at this hearing, or any previous disciplinary hearing arising out of his offences nor has he provided the court with any reasons for his failure to appear. As was noted in Prothonotary of the Supreme Court of New South Wales v Nikolaidis:

In circumstances where the respondent chooses not to come forward to assist by giving evidence in the disciplinary proceeding, the failure to provide an exculpatory statement or explanation means that inferences from proved facts can be drawn more safely because the defendant has failed to give any explanation of matters peculiarly within his knowledge: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50; Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217; Power at 463-467 [20]-[29]; and Einfeld at [23]. Similarly, in the context of assessing whether reformation may or may not have occurred, in circumstances where the respondent does not give evidence, it is difficult to see how it can be concluded that the reflection upon the underlying character of the respondent by the commission of a planned offence of dishonesty does not reflect on him over ten years later.[11]

21 The first of these points, is apposite to the instant application. I have only had the benefit of the submissions of the plaintiff and must proceed accordingly. I am more circumspect with respect to the final sentence set out above. The reasons for not attending a hearing of this nature, arising out of offences of this type, may be manifold. The court should be slow to draw any conclusive inferences from such a decision. It may result from a disregard for a lawyer's obligations to the court, equally it may be the result of shame. In a case in which no effort has been made to contact the court in any fashion, I am more inclined to believe that it is the result of something approaching the former of these two concepts. At the very least, it bespeaks a disturbing degree of indifference to the seriousness of the application which I am required to decide upon. It suggests that that individual does not properly understand or take seriously their obligations of candour to the court, or value sufficiently the benefits and trust conferred on them by being placed on the roll, to overcome whatever reluctance they may feel to appear before the bench, brief another practitioner to make submissions on their behalf, or at least contact the court to explain their decision not to appear in any capacity.

22 Finally, although serious, it must be said in the defendant's favour that his legal career until the circumstances giving rise to this application occurred was unblemished.

23 Counsel for the plaintiff directed my attention to the comments of Harper JA in the recent Victorian Court of Appeal decision of DPP (Cth) v D'Alessandro.[12] With respect to child pornography offences, his Honour stated that:

...there seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender's prior good character.[13]

24 The observation of Simpson J, McClelland CJ at CL and Howie JJ concurring, in R v Booth[14] eloquently expresses why offences involving child pornography should be regarded as extremely serious when they form the basis for applications to remove practitioner's names from the roll:

Possession of child pornography is a callous and predatory crime.

In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.

What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.

And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.[15]

25 I am satisfied on the facts of the present application that at the time at which the offences of which the defendant has been convicted occurred he was not a fit and proper person to be on the roll. He allowed his criminal conduct to germinate from his professional practice without recognising the deviance of his sexual interest, the seriousness of his offences, or controlling urges that the court and the community regards as callous, predatory and exploitative in the extreme. His unfitness to be on the roll at that time is exacerbated by his professional involvement with child sexual abuse and incest, an experience which can only have cast into stark relief the harm, degradation and exploitation consequent on the kind of material he then proceeded to access and transmit over the internet. The fact that, on the contrary, it appears to have 'whetted his appetite', so to speak, is seemingly inexplicable and completely inconsistent with his membership of the legal profession. Furthermore, this behaviour was consciously and deliberately criminal. It cannot be excused by any temporary mental condition as the evidence indicates. The lack of judgment and understanding displayed by such conduct is incompatible with the judgment and understanding required of members of the legal profession.

26 The defendant's convictions and their attendant circumstances raise a presumption that the defendant is not a fit and proper person to remain on the roll. However, those offences took place more than two years ago. As I observed in my first judgement, to make the orders sought by the plaintiff, the court must be:

satisfied at the time of the hearing that the practitioner in question is shown 'not to be a fit and proper person to be a legal practitioner' ... and will likely remain so for the indefinite future.[16] [Footnotes removed]

27 The defendant has displayed a continuing lack of candour to both this court and the plaintiff. He has failed to involve himself in these proceedings in even the most minimal fashion. The presumption of his unfitness having been raised by his conduct, only his appearance before this Court to explain that conduct and his behaviour since it occurred could preclude me from regarding him as presently and indefinitely unfit to remain on the roll. His unwillingness or inability to do so indicates a fatal lack of understanding or capacity to fulfil his obligations towards this court, the profession and the general public as a legal practitioner and as an officer of the court.

28 Therefore, I am satisfied that the defendant is presently and indefinitely not a fit and proper person to remain on the roll and I will order that:

1. Pursuant to section 2.4.42(5) of the Legal Profession Act 2004, and this Court's inherent power to discipline the lawyers under its supervision, the name of the defendant be removed from the roll of persons admitted to the legal profession kept by this Court.

2. The Prothonotary of the Supreme Court of Victoria remove the name of the defendant from the roll of persons admitted to the legal profession kept by this Court.

3. The defendant pay the plaintiff's costs of the proceeding save for the costs of the days of 12 May 2010 and 17 June 2010 and reserve costs.

[1] Legal Services Board v McGrath [2010] VSC 266 (Unreported, Warren CJ, 17 June 2010) ('McGrath').

[4] Exhibit CMM2 attached to the affidavit of Carly Monique Moodie dated 21 July 2010.

[6] A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253.

[7] [2001] NSWCA 284; (2001) 52 NSWLR 279, 284.

[8] (1999) ALR 553, 568.

[9] Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186, 200. See also Law Institute of Victoria v Gough [1995] VSC BC9506541 (Unreported, Hansen J, 10 February 1995) [13].

[10] Clause 20 Legal Profession Amendment (Education) Bill 2007 (Explanatory Memorandum).

[11] [2010] NSWCA 73 [25].

[12] [2010] VSCA 60 (Unreported, Redlich and Harper JJA and Williams AJA, 24 March 2010).

[14] [2009] NSWCCA 89 (Unreported, McClelland CJ at CL, Simpson and Howie JJ, 6 April 2009).