Is the respondent a fit and proper person to remain on the roll?
30The question for the Court is whether these findings justify the undoubtedly serious conclusion that the respondent presently is not a fit and proper person to remain on the roll and continue as an officer of the Court.
31The grounds said to establish that unfitness are the fact of the convictions and sentences, the conduct underlying those convictions and that the respondent knowingly gave false evidence at his trial and sentencing hearing and has not acknowledged that he did so. Similar grounds were relied upon in The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341, although in that case the relevant conviction was of being knowingly concerned in the importation of a significant quantity of narcotics.
32Whether a lawyer is a fit and proper person to continue on the roll ordinarily directs attention to conduct of that person, whether personal or professional. As Fullagar J observed in Ziems v The Prothonotary at 290, generally speaking professional misconduct has a much more direct bearing on the question of a person's fitness to practise than personal misconduct.
33Because the Court is exercising its inherent jurisdiction, the definition of "professional misconduct" in s 497(1) of the 2004 Act does not apply and it is unnecessary to adhere to any distinction drawn by that definition between professional and other conduct. As the Court observed in A Solicitor v Council of the Law Society at [21]:
"when the Supreme Court is exercising its inherent jurisdiction, it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connexion with professional practice."
34Conduct may be contrary to the standard of conduct expected of members of a profession closely involved in the due administration of justice irrespective of whether it occurs in the course of professional practice. If it is contrary to that standard, it may justify an adverse conclusion as to a person's continuing fitness to practise. It may also indicate underlying qualities of character which are inconsistent with those demanded of a lawyer, and for that reason justify the same adverse conclusion: A Solicitor v Council of the Law Society at [20]; In re Davis [1947] HCA 53; 75 CLR 409.
35The respondent's conduct, with the exception of that relating to the giving of knowingly false evidence, occurred over a period of 12 hours or so and in the context of a complex and troubled personal relationship. His evidence at the sentencing hearing shows that conduct to have occurred, from his perspective, against a background of alcohol dependence, anxiety and depression. The evidence on this application did not, except incidentally, explore those matters and the extent to which, if any, they mitigated against the seriousness of the respondent's conduct. They were not, it should be added, separately relied upon as relevant to the question at hand.
36The grounds relied upon by the Bar Council in my view do require that an order be made that the respondent's name be removed from the roll of lawyers because he is not a fit and proper person to continue to hold that office. Although his conduct in April 2007 did not take place in the practice of law, or directly involve any dishonesty, it included the most serious crime of sexual intercourse without consent in circumstances of aggravation. That offence carried a maximum sentence of 20 years and the respondent was sentenced to a term of imprisonment for seven and a half years, with a non-parole period of four and a half years.
37The fact alone of his conviction of that offence was sufficient to justify disqualification from practice, essentially for the reasons identified by Dixon CJ in Ziems v The Prothonotary at 285-286:
"If counsel is adequately to perform his functions and serve the interests of his clients, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment upon him which must ordinarily mean the loss by him of the standing before the court and the public which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and responsibilities of an advocate. There may be convictions for a crime of which this is not true, but I cannot think that the present is one of them."
38This observation is directed primarily to the consequences of conviction of a serious crime for the lawyer's standing and general reputation. In the language of Kitto J in the same case at 298, the respondent's conviction of aggravated sexual assault is one which "of its own force [carries] such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails."
39It is also necessary, as the Court emphasised in A Solicitor v Council of the Law Society at [18], to examine the circumstances of the relevant offences. Here that conduct is inconsistent with the respondent's possessing qualities of integrity and willingness to comply with the law and reveals defects of character incompatible with the standards and behaviour required of a member of the legal profession. To that extent the respondent's underlying criminal conduct reflects adversely on his character and accordingly on his fitness to remain on the roll.
40That conduct occurred over seven years ago. When addressing the question of present fitness, the approach which should be taken to conduct which occurred some time ago is that stated by Walsh JA in Ex Parte Tziniolis; Re the Medical Practitioner's Act (1966) 67 SR (NSW) 448 at 460-461, in a passage approved in part by this Court in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637:
"Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he has known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant - see Ex Parte Clyne [[1962] SR (NSW) 436 at 441], and cases there cited."
41In the absence of any evidence from the respondent to show that he has addressed the defects of character revealed by his criminal conduct, that conduct continues to speak as to his present unfitness to practise.
42Finally, the fact that the respondent has on two occasions given knowingly false evidence also reveals defects of character, in particular as to his honesty, that are incompatible with the standards and behaviour required of a member of the legal profession. That aspect of his conduct involved misconduct which, although not occurring in the course of his professional practice, was sufficiently connected to it to be characterised as professional misconduct: see The Prothonotary v Sukkar at [28], [43] - [44]. In the face of the respondent's continuing refusal to acknowledge that he gave false testimony (evidenced by his recent statement asserting his innocence), it should be concluded that those defects of character continue and also demonstrate a present unfitness to practise.