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[2014] VSCA 253
Court of Appeal (Vic)
2014-10-17
Mr P, Garde J, Nettle JA
Original judgment source is linked above.
2 There are four grounds of appeal. First, it is said that the decision was affected by ostensible bias and lack of procedural fairness in that the Tribunal failed to advise the applicant's counsel of circumstances which might have given rise to 'a situation of ostensible bias'.
3 Secondly, it is contended that the Tribunal erred in law in treating findings of fact made by Garde J (as President of VCAT), during earlier sexual harassment proceedings against the applicant, as evidence on which the Tribunal could rely.
4 Thirdly, it is contended that the Tribunal erred in law in rejecting expert evidence as to the applicant's psychological state at the time of the misconduct as being in conflict with Garde J's findings in the earlier sexual harassment proceeding or because it was contrary to the Tribunal's own views on Asperger's Disorder and the effects of it.
5 Finally, it is said that the Tribunal erred in law when fixing penalty by failing to appreciate that the requirements of general and specific deterrence had already been satisfied by the order made by Garde J in the sexual harassment proceedings that the applicant pay the complainant $100,000 compensation.
6 At the time of the misconduct, the applicant was 46 years of age. He was admitted to practise as a barrister and solicitor of the Supreme Court of Victoria on 7 November 2001. During the same year, he met the complainant when they were both employed at a leading city law firm. In November 2002, he established his own legal practice in a Melbourne suburb, as the sole principal of the firm, and for the present he continues so to carry on practice with several employees.
7 During 2006, the applicant and the complainant renewed their acquaintanceship and, in the following year, the complainant's marriage broke down. At that stage her friendship with the applicant was platonic.
8 In 2007, the complainant registered a conveyancing business and completed the conveyancers' course but was later informed that, in order to be granted a conveyance's licence, she would first need to complete more supervised hours of work.
9 The complainant divorced in 2009 and then, between August 2010 and July 2011, she and the applicant exchanged hundreds of text messages, a number of which were cheeky and peppered with sexual imagery and banter.
10 In March 2011, the complainant commenced a Graduate Diploma of Legal Practice, of which the requirements included that she undertake 80 days' practical experience with a solicitor. In the same month, she met the applicant's partner[2] and developed a close relationship with her. Thereafter, the applicant, his partner and the complainant socialized together on a routine basis which included visiting each other's homes.
11 On or about 17 May 2011, the complainant commenced legal practical training with the applicant. They agreed that the complainant would be paid $50 per working day and that was later increased to $100 per working day.
12 On or about 23 May 2011, the applicant made an uninvited sexual advance towards the complainant and she rejected him. In or around the first week of June 2011, the applicant made uninvited sexual comments to the complainant and, after she rejected him, he referred to going home and fantasizing about her. Later in the same month, the applicant showed the complainant a pornographic video of a prostitute performing a sexual act on him, and he made direct sexual comments to the complainant. Again she rejected him. On a further occasion in or around late June 2011, the applicant ogled the complainant's breasts and made sexual comments to her.
13 On or about 27 June 2011, the applicant had his partner send a text message to the complainant incorporating a photograph of him naked and, on or about 29 June 2011, he made further persistent sexual advances towards the complainant.
14 On or about 1 July 2011, the applicant gave the complainant an unwelcome massage and referred to sexual matters. Later that night, the applicant's partner expressed her view to the complainant that, if the complainant did not sleep with the applicant, the applicant might not sign the complainant's papers.
15 On 4 July 2011, the applicant made further persistent sexual advances to the complainant, including 78 requests to have sexual intercourse and made references to fantasizing about her. On that occasion he also made secret video and sound recordings of their conduct and conversations.
16 On 5 July 2011, the applicant sent the complainant a sexual text message and, on the following day, he made additional sexual advances towards her, including attempting to touch her sexually.
17 On 9 July 2011, the applicant, his partner and the complainant went to the complainant's beach house with the object of resolving the issues between them. Three days later, on 12 July 2011, the applicant terminated the complainant's placement. In a letter from the applicant's solicitors to the complainant dated 13 July 2011, it was alleged that the applicant had terminated the complainant's placement because of irregularities which had come to the applicant's attention and were being investigated by the applicant The complainant was directed not to visit the applicant's offices and to conduct any further communications through the applicant's solicitors.
18 On 13 July 2011, the complainant responded to the letter from the applicant's solicitors, by email, as follows:
Further, [the applicant] has made several sexual advances towards me on several occasions. Some were even in the presence of his [female life] partner, which upset her greatly. The last such time was on Saturday night expressing his sexual intentions towards me. As was the case on numerous occasions, I again told him that I would not cross that line because he has a partner whom I have the utmost respect for and the fact that [she] is my friend and I was an honest, moralistic person. That did not seem to worry him, he still keeps insisting. Further details can be provided.
19 On 17 July 2011, there was an altercation between the applicant and the complainant in the presence of the applicant's partner outside a suburban restaurant. Subsequently, the applicant and the complainant accused each other of assault but, following an investigation, police determined not to press charges against either of them.
20 On 19 July 2011, the complainant filed a complaint with the Victorian Equal Opportunity and Human Rights Commission ('EOHRC') alleging sexual harassment during her placement with the applicant. The applicant did not file a response and he declined to attend a conciliation.
21 On 1 August 2011, the complainant made a complaint against the applicant to Consumer Affairs Victoria and, on 8 August 2011, she made a complaint to the Legal Services Commission.
22 During September 2011, the complainant completed her practical legal training with another solicitor and then, on 8 December 2011, she made a further complaint to the Legal Services Commission alleging that she had been sexually harassed by the applicant.
23 On 9 December 2011, the complainant filed an application with VCAT alleging sexual harassment during her placement with the applicant and seeking unspecified compensation. On 7 March 2012, the applicant objected to the complainant's admission to practise as a legal practitioner on the ground that she was not a fit and proper person. That objection was filed with the Board of Examiners and, at the time of hearing of the subject proceeding before VCAT, had still not been determined.
24 The hearing of the sexual harassment claim before Garde J proceeded over 7, 8 15, 16 and 27 November and 3, 4 and 13 December 2012 and 23 January 2013. On 13 March 2013, Garde J brought down a decision in which he found (among other things) that:
a) the complainant was an employee of the applicant;
His Honour made an order awarding $100,000 compensation in favour of the complainant.
25 On or about 22 March 2013 the Legal Services Commissioner undertook an investigation pursuant to section 4.4.8 of the Legal Profession Act 2004 and later charged the applicant with professional misconduct under s 4.4.3(1)(b) the Legal Profession Act and at common law. The misconduct alleged was the 11 instances of sexual harassment which Garde J had found proved.
26 The charges of professional misconduct came on for hearing before the Tribunal on 14 April 2014. Counsel for the Legal Services Commissioner opened Garde J's findings as establishing the professional misconduct for which the Commissioner contended.
27 Senior counsel who appeared for the applicant responded by informing the Tribunal that the applicant accepted Garde J's findings of 'what [Garde J] found [the applicant] did and what it was, was sexual harassment'. He contended, however, that the issue for the Tribunal was 'a different one'. It [was] to reflect upon the ramifications for [the applicant's] suitability for practice of his having engaged in this conduct'. Counsel said that he intended to call evidence, including expert psychological evidence, to demonstrate:
the extent of likely awareness and insight at the relevant time had by [the applicant] as to what was taking place and the likelihood of its having deleterious consequences for the victim. What we'll be putting to you is that [the applicant] wasn't a reasonable person. That he has particular attributes which resulted in an obsession on his part and which resulted in limited consciousness of the likely consequences that would ensue from his behaviour.
28 Counsel added that it was not his purpose to impugn any of Garde J's findings:
That's not to justify it in any way but it's to say that his level of moral culpability for what objectively was sexual harassment is less than one might otherwise apprehend and that goes to the extent to which your Honour needs (1) to deter him from repeating such behaviour; and (2) the appropriateness of utilising him as a fair call for general deterrence.
It's no back door attempt to impugn what [Garde J] has found. We accept all of it. But it's to assist [y]our Honour to appreciate our proposition that [the applicant's] moral culpability for some of his behaviour is less th[a]n otherwise you might have concluded.
29 Counsel further explained, however, that what he would be seeking to show was that the applicant's behaviour was the product of high functioning autism (known as Asperger's Disorder) in the context of a complex relationship with a highly functional, articulate and assertive woman, and that the nature and gravity of what the applicant had done, and his moral culpability, were therefore to be understood as the actions and moral culpability of:
a man who was obsessed and childlike in his demeanour in the context of interacting with someone [the complainant] who was actually a highly functional, articulate, assertive person of about the same age.
that's [not] to be critical of [the complainant]. Now are there subjective feelings still that he was [indistinct but, presumably, not in the wrong], yes there are. Has he resolved all of that, not completely? Is he working on it with Dr List now going into I think his 32nd session, yes he is? What we'll essentially be putting to you ... is that this is a man with real limitations in terms of his sophistication in interaction by reason of having high functioning autism, also known as Aspergers.
That he perceive things in his own somewhat limited and at times distorted way and that the kinds of conclusion to which you might otherwise properly move in terms of being highly condemnatory of the person and the behaviour are not ones to which you should go and we'll be saying to you that you should see a significant measure of what has occurred as arising in advertence part way and I'll develop that argument later, as influenced by the mental impairment suffered by [the applicant].
You should conclude that the likelihood of his repeating it is extremely low. You should be impressed by the efforts he is making at self-exploration which are not concluded, so that he understands better what takes place in different social situations.
You should be influenced by the fact that he is committing himself to work with Ms Langford who is the one whose actually arrived at the formal diagnosis of Asperger's which is at the back of the List report ...she's an expert in that area.
31 The evidence then proceeded over the remainder of the day and into the next day, after which the hearing concluded with detailed submissions from counsel on each side. The Tribunal reserved its decision.
32 On 1 July 2014, the Tribunal announced its decision and published reasons.[3] It found that the charges of professional misconduct were proved and that it was not established on the balance of probabilities that the applicant had suffered or was suffering from Asperger's Disorder or that there was any other reasonable basis for accepting that the applicant's moral culpability was diminished. To the contrary, the Tribunal said, '[T]he evidence presents a conflicted picture of the [applicant's] level of insight and genuine remorse in respect of the nature and gravity of his misconduct'.[4]
33 Although the applicant had not previously committed any act of professional misconduct, the Tribunal said that it considered that specific deterrence was a particularly relevant consideration and that general deterrence was also a particularly important objective, because there was no doubt the applicant's conduct had caused the complainant serious and ongoing anxiety, stress and humiliation in circumstances where she had nowhere to turn other than to make an external complaint and immediately risk dismissal.[5]
34 The Tribunal thus determined that, because of the objectives of general and specific deterrence to which it referred, and because it was not satisfied that the applicant was at low risk of reoffending, it was necessary to order cancellation of the applicant's practising certificate in preference to 'mere suspension'.
Ground 1: Ostensible bias and procedural fairness
35 Under cover of Ground 1, counsel for the applicant before this Court contended that the applicant was denied procedural fairness (in the sense of an opportunity to apply to the Tribunal to be reconstituted because of ostensible bias). He submitted that the potential for ostensible bias was similar to that which arose in LAL v R[6] and that the applicant had been denied procedural fairness because the Tribunal had not drawn LAL to counsel's attention.
36 In our view, that argument is untenable. As Buchanan JA said in LAL, 'The mere fact that a judge is related to a victim of crime is not sufficient to disqualify the judge from presiding at a trial of a person accused of a like crime'.[7] It requires a much more direct and substantial connection than that.
37 In LAL, there was such a connexion. The judge was related to the victim of a crime committed by a different offender some years before the offence for which the accused stood to be tried. The nature of the earlier crime was in relevant respects similar to the subject offence and the victim of the earlier offence was of much the same age as the victim of the subject offence. Hence, as Buchanan JA said:
the relationship of the judge to the victim of the first crime, the similar age and circumstances of the victims and the emotional involvement of the judge might have led a fair minded observer to think the similarity in the crimes and victims might have induced in her Honour a sympathy for the alleged victim of the offences with which the applicant was charged which prevented her from bringing an impartial mind to the conduct of the trial. In this respect I think it is significant that the judge underwent the harrowing experiences of searching for her child overnight and then dealing as best she could with her daughter's distress.[8]
38 In contrast, in this case, although the Tribunal as constituted is said to have been related to a onetime victim of crime, there is no suggestion of the Tribunal as constituted having had any sort of a close relationship with a woman of the complainant's age[9] who was subjected to sexual harassment by a solicitor in the workplace in the course of a professional placement. In the absence of that sort of connexion, it is not reasonably arguable that a fair minded lay observer might reasonably apprehend that the Tribunal as constituted might not have brought an
impartial mind to the resolution of the matters which the Tribunal was required to decide.[10]
39 The contention of lack of procedural fairness fails for the same reason. It was not incumbent on the Tribunal to say anything to counsel about LAL because there was nothing about it which suggested a basis for any claim of ostensible bias in the context of this case. In any event, even if the Tribunal had mentioned the case, and even if counsel had made an application that the Tribunal be reconstituted, the result was bound to have been the same.[11]
41 Under cover of Ground 3, it was contended that the Tribunal erred by treating all of the findings made by Garde J as admitted facts.
42 That contention is also without merit. As has been seen, senior counsel for the applicant before the Tribunal expressly opened to the Tribunal that the applicant accepted 'what [Garde J] found [the applicant] did and what it was, was sexual harassment' and that what would be put in mitigation of penalty was 'no back door attempt to impugn what [Garde J] has found'.
43 Counsel for the applicant before this Court next submitted that the Tribunal erred in rejecting the expert evidence of Dr List and Ms Langford 'on the basis that it conflicted with findings made by Garde J which were not admitted by the applicant and not capable of being derived from the evidence before her Honour'.
44 That submission is equally misdirected. The Tribunal was entitled to rely on Garde J's findings because they were admitted.
45 Counsel for the applicant argued then that, be that as it may, the Tribunal erred by relying not only on Garde J's findings but also on some of the evidence which was before Garde J.
46 The difficulty with that submission, however, is that the only instance of the Tribunal having so acted which counsel was disposed to identify was in paragraph [121] of the Tribunal's reasons, and it is clear from paragraph [121] of the Reasons that the only use which the Tribunal purported to make of any evidence before Garde J, as opposed to his Honour's findings, was to refer to the evidence which Garde J adumbrated in support of his findings.
47 We see no error in that. The evidence to which Garde J referred in support of his findings was in effect part of his Honour's findings and the only use which the Tribunal made of it was as a double check, in the interests of the applicant, that the charges of professional misconduct which the applicant had admitted had in fact been proved. As the Tribunal put it:
Having carefully scrutinised the evidence which support[s] admitted findings made by Garde J, I am comfortably satisfied, on the balance of probabilities, that the charge of professional misconduct is proven for the purposes of the statutory definition and at common law.[12]
Since that can only have been of benefit to the applicant, there is no basis for complaint.
48 Counsel for the applicant next contended that the Tribunal erred by substituting the Tribunal's own views of Asperger's Disorder for the views expressed in evidence by Dr List and Ms Langford, and counsel instanced three passages of the Tribunal's Reasons in which the Tribunal was said to have committed that error. We shall deal with them separately.
Asperger's Disorder is a condition that exists on the Autism spectrum. It may be difficult or impossible for a person with no genuine Asperger's symptoms to create a history and persona consistent with the condition. However, even if the [applicant] exhibits certain personality traits that are consistent with Asperger's, equally such symptoms are not exclusively apparent only in a person with a discernable autism spectrum.
50 We do not see any fault in that. The fact that Asperger's Disorder is a condition that exists on the Autism spectrum emerged from Ms Langford's evidence. So did the notion that, although it may be difficult or impossible for a person with no genuine Asperger's symptoms to create a history and persona consistent with the condition, such symptoms are not apparent only in a person within the discernible autism spectrum.
51 The second passage of the Tribunal's reasons to which counsel referred was as follows:
In the [applicant's] case, the evidence of both reporting psychologists is seriously compromised by the flawed and conflicted history given to each of them. Furthermore, there are many aspects to the [applicant's] academic, professional and social life, particularly as reported in his testimonials, which are either inconsistent with a diagnosis of Asperger's Disorder or at the very least inconsistent with any borderline disorder being relevant to the [applicant's] misconduct. Accordingly, I do not consider that the principles enunciated in the Verdins case or subsequent authorities, acknowledging the relevance of psychological or psychiatric disorders to general deterrence, have any relevance to this case.[13]
52 We see no fault in that either. The fact that each expert's opinion was dependent on the history given by the applicant to the expert was acknowledged by each of the experts in the course of their oral evidence. The fact that each history so given was flawed, and in conflict with Garde J's findings and each other, emerged from the experts' evidence of what the applicant told each of them and by comparison between those two versions of events. Each version was indeed at odds with significant aspects of the admitted findings of Garde J and also inconsistent in significant respects with the version given to the other expert. The fact that the two versions of facts given to the experts were also inconsistent with the 15 testimonials on which the applicant relied was apparent from comparison of the versions of facts given to the experts with the testimonials; and it was expressly acknowledged by Ms Langford in evidence that the picture painted by the testimonials was at odds with someone suffering from Asperger's Disorder.
53 The third passage of the Tribunal's reasons identified by counsel was as follows:
I am also not satisfied that either psychologist provided a proper basis for concluding that the [applicant] poses a very low risk of re-offending. In particular:
54 There is nothing in that which suggests the substitution of personal views on Asperger's Disorder for the views of the experts. Each of those observations is self-evidently based on the evidence given by Dr List and Ms Langford.
55 Counsel for the applicant contended then that all of the evidence before the Tribunal was directed to the applicant's relationship with the complainant and that there was no suggestion of sexual misbehaviour towards any other staff member, client or other person which whom the applicant had contact in the course of his professional life or beyond it. In counsel's submission, the Tribunal had thus gone beyond the evidence in finding that:
he [the applicant] has been portrayed as someone reflecting a Dr Jekyll and Mr Hyde personality. On the one hand, he is seen by his clientele, professional colleagues and close friends as a highly competent, respected, intelligent and outgoing solicitor and friend. On the other hand, his behaviour toward the complainant portrays a persistent sexual predator capable of considerable cunning, humiliating behaviour and deceit.[15]
56 Read alone, that passage does appear questionable. The reference to 'Mr Hyde' implies that the Tribunal conceived of the applicant as someone known to have committed a succession of acts of sexual harassment, if not worse transgressions, against a multiplicity of victims. But the Tribunal's observation needs to be read in context and, critically, in the context of the next but two following paragraphs of the Tribunal's reasons:
I find that specific deterrence is a particularly relevant objective in determining any sanction, notwithstanding the absence of prior findings of misconduct against the [applicant]. The [applicant's] misconduct which has been described in detail, traverses 11 separate incidents in the workplace where over a period of two months he engaged in relentless predatory sexual pursuit of the [c]omplainant which also involved humiliating and deceitful behaviour. Although the [applicant] does not in any way fall to be punished in this proceeding for the manner in which he resisted the [c]omplainant's allegations in the previous proceeding, such conduct is indicative of the [applicant's] readiness to demonise the [c]omplainant and absolve his own conduct.
I also find that general deterrence is a particularly important objective in this case. The misconduct committed by the [applicant] demonstrates a gross abuse of his superior position as the supervising solicitor and of the professional trust placed in him. While there is no suggestion that the [applicant] misappropriated client moneys or otherwise acted dishonestly in his professional practice as a solicitor, there is no doubt that such behaviour caused serious and ongoing anxiety, stress and humiliation to the [c]omplainant, in circumstances where she had nowhere to turn other than to make an external complaint and immediately risk dismissal. In addition, such behaviour inevitably and deservedly brings the profession into disrepute and warrants sanction sufficiently severe to reflect appropriate condemnation and compel compliance in future.[16]
57 Seen in that context, it appears that, by referring to the applicant as a 'Dr Jekyll and Mr Hyde personality', what the Tribunal meant to convey was a Mr Hyde who, in contradistinction to the miscreant of Robert Louis Stevenson's creation, limited his misdeeds to just one woman.
58 Counsel for the applicant next contended that the Tribunal erred by failing to give appropriate weight to the video of the occasion[17] on which the applicant propositioned the complainant 78 times and thus in rejecting Ms Langford's opinion as to the support which the video provided for her diagnosis of Asperger's Disorder. Contrary to the applicant being 'a persistent sexual predator capable of considerable cunning, humiliating behaviour and deceit' whose conduct caused the complainant 'serious and ongoing anxiety, stress and humiliation in circumstances where she had nowhere to turn', as the Tribunal concluded, in counsel's submission the video showed that the applicant's demeanour 'was almost childlike; the complainant appeared to enjoy his attention and at times to respond in a physically affectionate manner; the complainant sat next to the applicant facing him and later appeared to sit on his lap; there were several instances of patently physical affection, including kissing; and the complainant did not appear at all intimidated.
59 Obviously, the video shows what it shows, and we accept that there are aspects of it which, at least on one view of the matter, closely accord with counsel's description. The problem with that, however, is that Garde J viewed the video and, based on his viewing of it and the other evidence before him, reached the following conclusion:
I am satisfied that [the applicant's] sexual advances, badgering for sexual intercourse and requests for sexual favours were unwelcome to [the complainant] as she herself said in her evidence. They were unwelcome to her for a number of reasons:
...
I accept [the complainant's] evidence as to the twelfth incident, and reject [the applicant's] account. Given the videos and sound recordings, there is no doubt that [the applicant] hounded and pressured [the complainant] for sexual intercourse and other sexual favours.
I find that:
60 Given those findings were admitted for the purpose of the proceeding before the Tribunal, we consider that it was open to the Tribunal to proceed on the basis that the applicant was a 'sexual predator' in the sense of someone who was preying on the complainant for sexual intercourse, and who thereby caused the complainant anxiety, stress and humiliation.
61 It is also to be observed that the Tribunal did not rely wholly on Garde J's findings. At the urging of the applicant's counsel, the Tribunal also viewed the videos itself and came to its own views about them, which the Tribunal expressed as follows:
I have now had the opportunity to re-examine the videos. In my view, [the applicant's] [c]ounsel has described certain excerpts in a manner which tends to present the complainant as confident, somewhat sexually provocative and in control. In my view, the above descriptions do not present either a balanced or accurate representation of the videos, and in particular do not accurately represent the fact that:
...
In my view, the 4 July videos reflect the [applicant's] arrogance and confidence in seeking to coerce and humiliate [the complainant] for his own sexual ends, consistent with earlier behaviour toward her.[21]
62 We see no error of law in that. Notwithstanding the view which we take of the videos, we cannot say that it was not open to the Tribunal to view them as it did, and we note that the Tribunal was justifiably strengthened in its view of them by the applicant's forensic choice not to give evidence of his mental state and emotions at the relevant time.
Ground 4 - The applicant's failure to give evidence
63 Under cover of Ground 4, counsel for the applicant contended that the Tribunal erred by conflating the sexual harassment proceedings before Garde J and the professional misconduct proceedings the Tribunal; thus, treating inconsistencies in the applicant's evidence before Garde J as requiring explanation in the proceedings before the Tribunal; and, hence, concluding that the applicant's absence from the witness box enabled the Tribunal more readily to draw adverse inferences from those inconsistencies. Counsel relied in particular on paragraphs [119] and [120] of the Tribunal's reasons, which were as follows:
The [applicant's] failure to enter the witness-box and give a direct account of the circumstances of his offending and of his claims of remorse and rehabilitation, and expose himself to the scrutiny of cross-examination, must reflect significantly adversely upon those claims. In my view, such significance is greater than that applicable in Stirling's case by reason that there are apparent inconsistencies in the evidence presented to the Tribunal, which on their face are irreconcilable, and the current level of the [applicant's] insight, genuine contrition and risk of reoffending in a similar manner, remain problematic at best.
In the history given to both psychologists, the [applicant] has apparently attempt to portray the [c]omplainant as being sexually provocative, and responsible for the [applicant's] misreading of the situation. However, the findings made by Garde J and accepted by the [applicant], preclude the [applicant] from reducing his culpability by this means. Furthermore, in relation to the 4th July and covert videos taken by the [applicant], certain matters which were previously considered by Garde J have again been raised in this proceeding to deflect blame away from the [applicant]. I have addressed these matters already and am equally unpersuaded that they reflect in any way adversely upon the [c]omplainant or otherwise portray the [applicant] in a vulnerable light.
I acknowledge that the [applicant] has committed himself to psychotherapy sessions with Dr List in the past and ongoing therapeutic session with Ms Langford, which of itself demonstrates a preparedness to better understand his behaviour and motivations; and address any predisposing behavioural factors to further reoffending.[22]
64 We see no conflation of the two proceedings in that. As it appears from [119] and [120] of the Tribunal's reasons, the Tribunal did no more than contrast Garde J's admitted findings of fact with the histories which the applicant gave Dr List and Ms Langford (on the basis of which they said they based their opinions) and conclude that, in the absence of the applicant from the witness box, the findings of fact and the histories were irreconcilable.
65 Although the Tribunal referred in the second of the paragraphs set out above to inconsistencies in the evidence presented to the Tribunal, read in context it appears that what the Tribunal was attempting to convey was that a comparison of the histories which the applicant gave Dr List and Ms Langford with the evidence to which Garde J referred as part of his Honour's findings showed that there were marked inconsistencies. In effect, it is the same point as we dealt with above under Ground 3.[23]
66 Counsel for the applicant further contended that the way in which the Tribunal approached the matter was inconsistent with the approach of this Court in Stirling v Legal Services Commissioner.[24]
67 We do not accept that contention either. In Stirling, the Court said that:
The resolution to this matter sits somewhere in between the competing submissions of the respondent and the appellant. The respondent is correct to say that the forensic decision of the appellant not to provide a full explanation left the Tribunal with the unenviable task of attempting to piece together the evidence available to it to provide a complete picture of the appellant's evidence. Further, it was open to the Tribunal, as it is open to us, to question the veracity of the claims of rehabilitation and remorse because the appellant did not provide it with any first hand explanation as to his charged conduct or the rehabilitation he has allegedly undergone.
On the other hand, the appellant is correct in noting that it is not open to a court or disciplinary tribunal to simply ignore the other evidence put on the grounds that the appellant could provide a more complete explanation by giving direct evidence.
In assessing an appropriate penalty, the appellant's failure to give evidence does somewhat diminish his claims as to rehabilitation and remorse. However, it should not be seen as eliminating those matters altogether, especially considering the weight of evidence pointing the other way from character references and the appellant's conduct in repaying his ATO debt. [25]
68 The Tribunal did not ignore the expert evidence or treat the applicant's absence from the witness box as eliminating the need to consider the experts' testimony. To the contrary, the Tribunal considered the expert testimony in detail and compared it closely with the Garde J's admitted findings of fact. As this Court said in Stirling, an applicant's forensic choice to absent himself from the witness box leaves the Tribunal with the unenviable task of attempting to piece together such evidence as may be available in support of and in opposition to the applicant's case. But, in that process, it is open to the Tribunal, as it is to the Court, to question an applicant's claims of remorse and the extent of rehabilitation which is alleged to have been achieved. Evidently, that is the way in which the Tribunal approached the assessment of the applicant's conduct and the degree of rehabilitation which he alleged he had achieved.
69 Finally, counsel for the applicant contended that the penalty which the Tribunal imposed was manifestly excessive, the result of the Tribunal overlooking that the requirements of general and specific deterrence had already been met by Garde J's order that the applicant pay the complainant $100,000 compensation and, further or alternatively, the result of the Tribunal improperly distinguishing what counsel described as the comparable cases of Mullany v Psychologists Registration Board[26] and Ha v Pharmacy Board of Victoria.[27]
70 There is more force in those submissions. The Tribunal referred to the compensation order as being a 'significant financial penalty' and that it 'ought constitute a deterrent'.[28] But the Tribunal did not refer to and it does not appear to have considered why the compensation order of $100,000 would not be an adequate deterrent. A sum of $100,000 is a very large sum of money for most suburban solicitors, and certainly much larger than the kinds of fines sometimes imposed by criminal courts for relatively serious criminal offending. We regard the Tribunal's failure to consider that matter as a significant omission.
71 Certainly, the Tribunal did stress the need for denunciation and general and specific deterrence, and of course there is no question that they are important. But the Tribunal did not say why the compensation order of $100,000 ought not be regarded as expressing sufficient denunciation and providing adequate specific and general deterrence.
72 No doubt, the added obligations and responsibilities of the applicant as a member of the legal profession mean that the considerations which informed the order for compensation for the sexual harassment of the complainant are not identical to those which dictate the appropriate sanction for the professional misconduct comprised of sexually harassing the complainant. But, to adopt and adapt the words of Gillard J in Ha v Pharmacy Board of Victoria,[29] the order that the applicant pay the complainant $100,000 compensation means that in effect:
[the applicant] has been severely punished for his stupidity and serious misconduct. His reputation has been tainted. What he has experienced to date should be a constant reminder to him of what he has risked by his stupidity, namely, the permanent loss of reputation, position in the community and to his [practice].[30]
73 The Tribunal considered that Ha was incomparable because, the Tribunal said, the offending there was comprised of two distinct incidents rather than an exercise in continuing sexual harassment over a period of time; and, since Ha had been charged, convicted and sentenced for those offences, it was not thought there was need of any further specific or general deterrence.[31]
74 With respect, however, the professional misconduct in Ha was in most respects far worse than in this case. It consisted of three counts of moderately serious indecent assault committed by a pharmacist on two young female employees - one of whom was only 20 years of age and the other of whom was a girl of only 14 - and both of whom were plainly less able to respond to their predicaments than a woman of the complainant's much greater age and experience. In contrast, no matter how obnoxious or offensive the sexual harassment in this case may seem, it was not a criminal offence; it did not involve any indecent touching; in all probability it was not productive of anything like the psychological sequelae likely to have been suffered by the young victims in Ha; and, on any proper view of the matter, it did not warrant the degree of opprobrium properly attaching to Ha.
75 In Ha, after the pharmacist had been found guilty, he was sentenced very mercifully on one of the counts of indecent assault to a fine of only $1,500 (without conviction) and, on the second and third counts, to a community based order (without conviction) with a condition that he perform 150 hours community work, undergo psychological treatment and continue to be treated by a nominated psychiatrist. Yet the only additional sanction imposed for the professional misconduct comprised of that offending was an order that he be reprimanded in the strongest possible terms; that his practice as a pharmacist be subject to conditions that he not be alone in his place of practice with a member of the public in a private area unless a clear, unobstructed view of that area was available or another person was present; and that he consult his treating psychiatrist every three months.
76 By comparison, given that the applicant in this case has already been ordered to pay the complainant $100,000 compensation, the order that his practising certificate be cancelled for a period of eight months and that he not be eligible to regain his certificate unless he satisfy the conditions imposed by the Tribunal, is a vastly harsher disposition.
77 The Tribunal considered that Mullany v Psychologists Registration Board[32] was incomparable because the offending there was relatively 'marginal' and most unlikely to be repeated. In fact, however, the offending in Mullany was also considerably worse than in this case. It involved a psychologist seeking to coerce a young female student under his training into what was euphemistically described as an 'intimate relationship', and it continued for almost three years. In contrast, the offending in this case was committed for only one month against a much more mature woman with whom the applicant had previously enjoyed a long standing flirtatious relationship and who, as the video shows, was anything but the ingénue.
78 In Mullany, it does not appear that the psychologist was subject to any criminal proceedings or punishment at all and yet the only sanction imposed on him for the professional misconduct constituted of his misdeeds was that he be reprimanded. Once again, by comparison, given that the applicant has been ordered to pay $100,000 compensation to the complainant, the order that his practising certificate be cancelled for at least eight months appears to be an exorbitant penalty.
79 The Tribunal went on to say that, because the applicant had chosen not to give evidence, the Tribunal could only speculate as to the applicant's level of insight and the manner in which his psychological therapy to date had given him different 'coping mechanisms'. Consequently, the Tribunal concluded, protection of the public remained a paramount consideration and thus rendered it necessary to impose a sanction which would provide adequate protection of female administrative and professional staff over whom the applicant might in future be in a position to exert care, supervision and control.
80 As counsel for the applicant submitted, however, there was little reason to suppose that the applicant would ever offend against another woman under his care, supervision or control. Given that his offending behaviour had arisen out of a decade-long and at times vigorously flirtatious relationship that began well before the complainant began her placement with the applicant, and given that there was no suggestion of the applicant having ever sexually harassed any other woman, the applicant's actions towards the complainant could not lightly be extrapolated to a significant risk of him re-offending against some other woman, whether in the course of his professional practice or at all. So much was confirmed by the expert opinions of Dr List and Ms Langford.
81 Furthermore, even if there were a risk of the applicant reoffending against another woman in the complainant's position, it does not appear why the need to protect against that possibility required any greater sanction than an order (along the lines which the Tribunal made in addition to cancelling the applicant's practising certificate) that the applicant not employ or otherwise supervise any female law student or graduate whose employment or supervision is a pre-requisite to satisfying academic criteria or admission to practice; or at least that he not do so until he has once again proved himself worthy.
82 The Tribunal referred to the decision of the Legal Professional Tribunal in Victorian Lawyers RPA v Constantinou[33] as providing relevant guidance. In that case, the practitioner sexually propositioned three female clients on three separate occasions, in each case detaining them in his locked office and on two such occasions masturbating in front of them. The Legal Profession Tribunal was not satisfied that the practitioner was not at risk of re-offending and, although he had not practised for five months by the time of the hearing, the Tribunal ordered that he not apply for a practising certificate for another 15½ months and until he had demonstrated his fitness to practise.
83 We do not think that case to be comparable to this one. The applicant did not sexually proposition three women. He propositioned one, albeit repeatedly. The applicant did not sexually proposition clients with whom his relationship was and should have remained wholly professional. He sexually propositioned a woman with whom he had a long standing and at times vigorously flirtatious relationship, albeit that in the course of it she became a trainee. The applicant did not lock anyone in a room[34] or physically constrain them and he did not masturbate in front of anyone let alone in front of two of his clients. Perhaps most significantly, while it appears there was some concern that the offender in Constantinou may re-offend against other clients in the way that he had offended against his three victims, here (for the reasons already given) there is little reason to suppose that the applicant will re-offend.
84 The Tribunal also referred to the decision of the Tribunal in Legal Profession Tribunal v Moir[35] as providing relevant guidance. The legal practitioner in that case had arranged a lunch alone with a disabled client. After the lunch, he and the client continued to drink at the hotel where they lunched and later at a house which belonged to a friend of the practitioner. The practitioner there had sexual intercourse with the client. Upon the misconduct being discovered, the practitioner resigned and it was accepted that he was genuinely remorseful and unlikely ever to offend again. Even so, he was disqualified from practice for three years.
85 We allow that Moir is in some respects comparable to this case. The offending in Moir, however, was of a different order altogether. The victim in Moir was disabled. That was not so here. As the video shows, the complainant was fit, ambulant and unquestionably mobile. The offender in Moir had sexual intercourse with a disabled client. That was not so here. The applicant did not have sexual intercourse with the complainant and he showed no intention of doing so unless she consented. The offender in Moir had sexual intercourse with a woman with whom his relationship until then had been totally professional and should have remained so. That was not so here. At the risk of repetition, the applicant did not have sexual intercourse with the complainant and, so far from their relationship being wholly professional, they had for some years shared a close and flirtatious affinity. The following exchange, in the course of what Garde J called the 12th occasion, serves to illustrate the nature of that relationship:
APPLICANT: Yeah, I wouldn't mind to fuck you on the table, but - - -
COMPLAINANT: No. The answer is no.
APPLICANT: You've got to - you've got to - I don't know. It just seems to be a bit of sexual frustration there , anyway - - -
...
COMPLAINANT: If you were single, yes.
APPLICANT: No, I would like to just have one fuck.
COMPLAINANT: No, no, no.
...
COMPLAINANT: Tell your mum, 'Back off. Mum, I'm a grown man. Love you to bits. Do anything for you. Back off. Let me live my life with [the applicant's partner] the way I want to live. Okay. Don't get in my relationship'. If I get too close to your relationship, tell me to back off. You don't, but tell me to back off if I do. Tell me to back off.
APPLICANT: I don't.
COMPLAINANT: Right. If I say anything to you, you've got to understand it's because I love you and care for you.
APPLICANT: You can say whatever you want, and I've said that to you.
COMPLAINANT: I know, but if I say - - -
APPLICANT: Because I have a connection with you, and that's why you can get away with it.
...
COMPLAINANT: If you were on your own [meaning not in a relationship with the applicant's partner], I wouldn't think twice about fucking you on that table. Okay? Guaranteed.
APPLICANT: ...bullshit.
COMPLAINANT: Okay. Guaranteed. Okay. You know that, and I say that sincerely, but I won't cross that line.
APPLICANT: You wouldn't even go part of the way?
COMPLAINANT: I would have to live with it.
APPLICANT: You wouldn't even go part of the way?
COMPLAINANT: No.
APPLICANT: Like cuddle?
COMPLAINANT: I give you a cuddle all the time.
86 Furthermore, as the video shows, the complainant did then indeed give the applicant a 'cuddle' - in fact several close and lasting embraces, as well as an apparently warm and affectionate kiss - while for the majority of the time sitting on his knee, facing him and stroking his head.
87 Of course, that is not to diminish the admitted finding that what the applicant did amounted to professional misconduct. Nor is it to overlook the reprehensible manner in which he behaved towards her when terminating her employment and then insinuating that her dismissal was due to concerns about irregularities. There is no evidence of any irregularity and no reason to suppose that the applicant had any concerns about irregularities. To treat a woman under his training in that fashion was unquestionably despicable unprofessional conduct.
88 At the same time, however, it needs be borne in mind that the complainant has now been compensated to the extent of $100,000 at the applicant's expense; and, as the Tribunal recognized, that amounts to a significant penalty. It must also be kept in mind that the principal purpose of any further sanction is public protection and the maintenance of professional standards, and in this case the imposition of any further substantial penalty is unlikely to be productive of either.
89 Apart from this one episode of sexual harassment, the evidence before the Tribunal was that the applicant's professional standards were impeccable; and, as already explained, the order that the applicant pay $100,000 compensation of itself reflects a large measure of denunciation of the applicant's conduct and, in the scheme of things, is likely to provide considerable specific and general deterrence. Further, as previously stated, if there be any risk of the applicant re-offending, it does not appear why sufficient protection against that possibility cannot be achieved by orders restricting the applicant's employment of women in legal trainee positions.
90 Finally, to that needs be added that, because the applicant is a sole practitioner, cancellation of his practising certificate for anything more than a short period of time would, to say the least, be bound to impose a most significant further financial burden on him, seriously diminish such goodwill as may attach to his practice and so put his future livelihood and his employees' positions with him at substantial risk.
91 It follows that the sanction which was imposed went beyond the range open to be imposed in the circumstances of the case and is, therefore, manifestly excessive.
92 In the result, we shall grant leave to appeal, treat the appeal as instituted and heard instanter and allowed and set aside the orders below. In lieu thereof, we shall order that the applicant's practising certificate be suspended for a period of two months and that, for a period of one year thereafter, any practising certificate he may hold shall be subject to the condition that he not employ or otherwise supervise any female law student or graduate whose employment or supervision is a pre-requisite to satisfying academic criteria or admission to practice. That condition is without prejudice to such other conditions as the applicant's practising certificate may at present be subject.
[1] The anonymised name used by the Tribunal in its Order.
[3] Legal Services Commissioner v PLP (Legal Practice) [2014] VCAT 793 (Judge Jenkins) ('Reasons').
[7] Ibid [39], cf R v Goodall [2007] VSCA 63; (2007) 15 VR 673.
[9] She was in her late forties at the time of the events in issue.
[10] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344-5. See also Smits v Roach [2006] HCA 36; (2006) 227 CLR 423, [53] (Gleeson CJ, Heydon, and Crennan JJ), [56] (Gummow and Hayne JJ); Antoun v R [2006] HCA 2; (2006) 224 ALR 51, [51]; Concrete Pty Ltd v Parramatta Design and Development Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, [110]; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429; GP v R [2010] VSCA 142.
[11] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane and Dawson JJ); Re Refugee Tribunal; Ex parte AALA [2000] HCA 57; (2000) 204 CLR 82, 154 (Callinan J); Ucar v Nylex Industries Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 519[75] (Redlich JA).
[17] Which was described in the sexual harassment proceedings as the twelfth occasion.
[22] Ibid [118]-[120] (citations omitted).
[26] Unreported, Supreme Court of Victoria (Causes jurisdiction), 22 December 1997 (Gillard J).
[32] Unreported, Supreme Court of Victoria (Causes jurisdiction), Gillard J, 22 December 1997.
[33] Legal Profession Tribunal Proceeding No T0368 and T0410 of 1998.
[35] Legal Profession Tribunal Proceeding No T0311 of 1998.
PLP
McGarvie and VCAT [2014] VSCA 253
Legal Services Commissioner v PLP (Legal Practice) [2014] VCAT 793 (Judge Jenkins)
LEGAL PRACTITIONER - Appeal against VCAT suspension of practicing certificate - Professional misconduct - Solicitor admitting to sexual misconduct in workplace - Practising Certificate cancelled for term of eight months - Bias and procedural fairness - Whether Tribunal erred in treating all findings made in sexual harassment proceeding as admitted facts - Evidence - Applicant's absence from witness box - Inconsistencies - Inconsistencies in evidence before Tribunal (as to background history given to expert witnesses and also as between those who provided testimonials) - Further inconsistencies with findings in sexual harassment hearing - Whether Tribunal drew adverse inferences as a result - Whether penalty imposed excessive in light of compensation payment levied in respect of same sexual misconduct - Appeal allowed - Practising Certificate suspended for two months - LAL v R [2011] VSCA 111; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Stirling v Legal Services Commissioner [2013] VSCA 374 referred to; Legal Profession Act 2004 ss 4.4.3(1b) and 4.4.8; Equal Opportunity Act 1995 ss 86(1)(b) and 87(1)
(2000) 205 CLR 337
(2007) 15 VR 673
(2006) 227 CLR 423
(2006) 224 ALR 51
(2006) 229 CLR 577
(2011) 273 ALR 429
(1986) 161 CLR 141
(2000) 204 CLR 82
(2007) 17 VR 492