Victorian Lawyers RPA Ltd v "X" [2001] VSC 429

Supreme Court of Victoria|2001-11-05|Before: HARPER, J.

Legal Practitioners - Application for admission to practice as a barrister and solicitor of the Supreme Court - Certificate of the Board of Examiners - Whether the applicant a fit and proper person - Failure to inform the Board of relevant circumstances surrounding a plea of guilty to charges of making false reports - Effect of such failure - Rules of the Supreme Court, Chapter II, r. 14.12.

The defendant, who has been designated for the purpose of this proceeding as Ms X, completed her articles of clerkship on 15 March this year. She was during the period of her articles a model articled clerk. She was so described in an affidavit sworn on 6 July 2001 by the person to whom she was articled. He also described her in that affidavit as "a highly principled young person". He looked forward to working with her in the future.

I accept this evidence. It is supported by certificates of character signed by, respectively, the Melbourne managing partner of her firm and by another partner. It is further supported by an affidavit, also sworn on 6 July 2001, by a fourth partner of the firm. The deponent there attests to the defendant's standing among her peers as a popular and likeable person who is respected for her legal skills.

In short, the evidence before me supports the conclusion that the defendant is a person of very considerable intelligence and ability. She is likely to make a valuable contribution to the community. There has been no suggestion in this case that she does not meet the tertiary qualifications or practical training requirements for admission to practice as a barrister and solicitor of this court. Of one of the other requirements, her knowledge of English, there is likewise no doubt. Moreover, her good reputation and character have not been challenged. On the contrary, the evidence going directly to that point is entirely in her favour.

Rule 4.01 of the Legal Practice (Admission) Rules 1999 prescribes only one further qualification for admission. It is that the applicant be "a fit and proper person to be admitted"; and that requirement is in addition to the necessity to be of good reputation and character. It follows that one may not be fit and proper although one's reputation and character are beyond reproach. It also follows that a finding that an applicant fails the first of these tests does not necessarily cast any doubt on that applicant's ability to pass the other. In this case the fact that the defendant's fitness to practise the law is under challenge says nothing about her inherent worth. She is obviously a person who has much of which she can be very proud. She also has much to offer her colleagues and her community.

At or towards the end of her articles the defendant put in train the steps necessary for her admission to practice. Her documentation included an affidavit sworn by her on 2 March 2001. Paragraphs 2-5 of that affidavit are as follows:

"2. I refer to the notice of intention dated 2 February 2001 to apply for admission to legal practice at the sitting of the Supreme Court on 7 May 2001. Further to that notice I set out below details of the matters relevant to my admission which I believe required disclosure.

The following information is provided to the best of my knowledge after making full and thorough enquires. (My underlining.)

3. On 13 October 2000 I appeared before the ... Magistrates' Court and pleaded guilty to six counts of making a false report. Without conviction I was placed on a two year bond and required to pay $4,077 as restitution to the police. I have made this payment but am still subject to the bond (until 12 October 2002).

4. The offences were committed over a four week period in or about July 1999 when I was in my final year of law at the University of Melbourne.

5. I deeply regret that these offences occurred and offer the following by way of explanation."

The explanation included allegations that the defendant was the victim of serious sexual abuse "between the ages of 11 and 15". According to the defendant, the person responsible was a relative of hers.

She did not tell anyone about this, and her parents were unaware of it, until she confided in one of the teachers at her school. Through the agency of the school and her parents, contact was then made with the Department of Community Services. Nothing of consequence came of this, however. The defendant's parents subsequently decided not to prosecute; and no charges were laid. Nor did the defendant receive any counselling, certainly not of a professional kind. Rather, according to an affidavit sworn by her father on 25 October 2001, the defendant "dedicated herself to her studies, music, debating and other activities. I had thought that she appeared to be coping so it was best not to raise the matter with her." .

The defendant herself in an affidavit sworn on 6 July 2001 describes the same period in the following words:

"10. After that [i.e. the decision not to prosecute] the sexual abuse was rarely discussed with me. I became very focused on study so that I would not think about what had happened. I filled my day with study, winning an academic scholarship and a number of short trips as an exchange student to Japan. I also participated in orchestras, music, debating and a number of other extracurricular activities. I found that if I were busy I did not think about the abuse and if I were tired I did not have nightmares which I otherwise experienced.

11. I rarely spoke about or dealt with what happened and I coped reasonably well until early 1999."

The affidavit does not reveal how it was that the period of at least relative stability came to an end. What is not in dispute is that in July or August that year (1999) the defendant had an experience which she has since maintained disturbed her greatly. Late one night she was driven from a function to her place of work where she was to collect her car. The driver of the first vehicle was a male friend of her then employer. When they arrived at their destination he engaged her in activity of a sexual kind. Her accounts of the episode have varied greatly, both in relation to the degree of sexual contact (her most serious allegation was that she was raped) and the extent to which she made known to the other party that she did not consent. But that question is not here of particular relevance. What is relevant is that the defendant has since asserted, and her treating psychologist and psychiatrists have accepted, that the incident precipitated some gravely antisocial behaviour on the part of the defendant.

There remains a question whether the defendant's treating specialists are correct in taking this view and, if they are not, the significance of their error. It is one of the unsatisfactory aspects of this case that the matter was not explored with them. I suspect that the issue and its significance was lost in the pressure to have this proceeding dealt with as quickly as possible. Certainly I did not appreciate the problem until I came to prepare this judgment.

The problem is this. The defendant's antisocial behaviour in fact began on 16 August 1999 and continued until 29 August, during which two week period she was (on evidence I accept) suffering from a dissociative disorder. But a body of material, the credibility of which was not tested before me, would have it that the incident which the defendant identifies as precipitating her antisocial behaviour took place in July: the male participant has it as occurring on 8 July. The defendant herself, as well as her psychologist and her legal advisers, consistently asserted to the Board of Examiners that both the incident and its antisocial aftermath all occurred in July. If, however, the so-called precipitating event happened in early July and the antisocial behaviour in late August, then the link between the two is perhaps more tenuous than anyone has yet appreciated. That may have had and may yet have some consequences for the appropriateness of the treatment which the defendant has received. But I make no findings and base no conclusions on the point. It is for present purposes relevant because it casts light on the defendant's inability thus far to come to terms with what she did on 16 August 2001 and in the two weeks which followed. I shall return later in this judgment to that aspect of the case. For present purposes I simply note that in an affidavit made as late as 6 July 2001 the defendant herself swore to her understanding that the antisocial behaviour occurred "over a one month period in July 1999"; and in an affidavit also sworn on 6 July 2001 the defendant's treating psychologist, Ms Barbara O'Loughlan, stated at paragraph 10:

"It is my opinion that [the defendant] suffered from a period of dissociation in July 1999 triggered by a sexual advance by a friend of her employer. This incident triggered disturbing memories of the childhood abuse of which she had not spoken or with which she had not dealt. It is my opinion that this incident is what caused her subsequent dissociative state and precipitated her conduct over that one month period in July [1999]."

In submissions to the Board of Examiners dated 23 July 2001 the defendant's counsel put it to the Board that all of the professionals who treated the defendant following the commission of the offences acknowledged that in July 1999 a sexual advance made to the defendant, following a social function related to her job, triggered a severe traumatic reaction. The submission continued at paragraph 24:

"It was during the dissociative episode immediately following the sexual advance made to the applicant in July 1999 that the applicant committed the offences to which she later pleaded guilty. The offences involved the applicant telephoning the police on several occasions over a one month period in July 1999 to report allegations of current sexual and other abuse against (inter alia) [a relative] and the man who made the sexual advance to her. The telephone calls were all made in the middle of the night or very early in the morning and during the false reports the applicant spoke in the voice and with the demeanour of a child." (My underlining.)

In fact (as I indicated above) the offences to which the defendant pleaded guilty were committed in the second half of August 1999. They resulted in the six charges to which the defendant referred in her affidavit of 2 March this year. Each was laid under s.53(1) of the Summary Offences Act 1966 which is in the following terms:

"53(1) Any person who falsely and with knowledge of the falsity of the report voluntarily reports or causes to be reported to any member of the police force that an act has been done or an event has occurred, which act or event as so reported is such as calls for an investigation by a member of the police force shall be guilty of an offence. Penalty: 120 penalty units or imprisonment for one year."

The expressions "voluntarily" and "causes to be reported" are defined in sub-s.(2) of s.53. The former is of some present relevance. For the purposes of sub-s.(1) that word means, "(i) of that person's own motion and volition; and (ii) otherwise than in the course of an interrogation made by a member of the police force." .

It is therefore to be read with the expression "with knowledge of the falsity of the report" as expressing Parliament's intention that an element in the offence is a conscious and voluntary decision by the accused to make a report to the police which report the accused knew was false. This is the offence which by her plea of guilty the defendant admitted having committed on six separate occasions.

The first charge arose out of a telephone call made before 9 p.m. On Monday 16 August 1999 by the defendant to Lifeline, which is a 24 hour telephone counselling and referral service. The defendant, who gave a false name, assumed the persona of a 13 year old girl who had been raped either by her baby-sitter or while she was baby-sitting. The telephone number which she gave to the Lifeline counsellor was the silent number of a family known to the defendant. The defendant therefore cast suspicion over the members of that household, especially the male members.

The second charge arose out of a telephone call received at 9 p.m. That same night by the South East Centre Against Sexual Assault. On this occasion the defendant, again giving a false name, said that she was a 14 year old girl who on three occasions had been raped by her father. No identifiable individual was the subject of this allegation.

A third telephone call was made on Wednesday 18 August. Again the call was made to the Centre Against Sexual Assault. Neither the time at which the call was made nor the name used by the defendant is in evidence. The defendant said that she taught legal studies at a suburban primary school. She went on to say that one of her students, whom she identified, had not only burst into tears when the subject of rape was mentioned, but told the caller that (I quote from the police summary) "people are not allowed to do that to kids and someone is doing something to [me] that is not supposed to happen to children."

The child identified in this conversation belonged to another family known to the defendant. Again the call cast or at least had the potential to cast a slur on that family. It was the subject of the third charge.

The next charge arose out of a telephone call to the Department of Human Services made on 19 August. On this occasion the defendant identified herself as a teacher at a large private school for girls, which she named. She also told an employee of the department that a student (again whom she named) had told her that the student had been touched by someone (to quote again from the police summary) "where they shouldn't". According to the defendant, the student then indicated to the defendant where on her body this touching had occurred.

It is, in my opinion, significant that the student so identified was a member of the family whose silent telephone number had three days before been given by the defendant to the Lifeline counsellor.

The fifth charge arose out of another call to the Department of Human Services. It was made on Monday 23 August. The defendant identified herself as "Ann" from the Premier's office. She was, she said, unsure whether she should report a matter involving a seven year old female friend of her daughter's. The friend, according to the defendant, had suggested, in effect, that her father had raped her. The defendant gave the name of the friend who was, in fact, known to the defendant, although she had not been the subject of any of the earlier reports. This allegation, then, was another which reflected very adversely indeed on an innocent person or persons.

The sixth charge is, in my opinion, the most disturbing of all. On Saturday 28 August Senior Constable Sharon Rooney was performing reception duties at Kew Police Station. At about 3.45 p.m. She received a telephone call from a woman who stated, in effect, that she had been sexually assaulted by a person who was not known to her. Nothing else of relevance happened on that day; but at 3.15 p.m. The following day (Sunday 29 August) Senior Constable Rooney returned a call which the other person had made to her some three hours earlier. The other person was the defendant. She did not give her surname but did supply her first given name. At a later point the defendant gave her surname as "Anderson".

The second telephone conversation covered more ground than the first. The defendant then told Senior Constable Rooney that she had been raped the previous Thursday at work. She named the alleged rapist, who was then a politician or aspirant for political office. He was and is entirely innocent of the offence. The defendant later told other police officers that she "just pulled a name out of a ministerial adviser book". Yet the defendant not only accused this person of a particularly vile rape, which she described in graphic detail to the police, but also said that she had informed the Premier of the incident-to be told by him that he had heard similar stories about the person whom she had accused.

These then are the facts on which were based the six charges about which the defendant, as she swore in her affidavit to the Board of Examiners dated 2 March 2001, had made "full and thorough enquiries". All of the information recited by me above was available to her had she wished to obtain it. With the possible exception of the charges themselves it was made available to the person to whom she was articled and to another partner in her firm on 7 May 2001. In his affidavit of 22 October 2001 the defendant's principal swore that on that date in May he and his partner read the following documents at the offices of the solicitors who acted for the defendant at the Magistrates' Court on 13 October 2000:

"(a) the summary of the six charges prepared by the police;

(d) 16 formal sworn witness statements prepared by the police;

(e) a transcript of the formal record of interview of [the defendant] by the police;

My own recitation of the facts upon which the charges were founded is based upon documents (a) and (e) in that list, two of the witness statements referred to in (d) (assuming that these included the statements of Senior Constable Rooney and another senior constable by the name of Debbie Cranage) and the six charges themselves; to all of which, of course, the defendant pleaded guilty. There is no suggestion that they (the charges) were not available to her when she swore her several affidavits for use before the Board. In the third of these affidavits, made on 6 July 2001, the defendant deposed in paragraph 24 as follows:

"Whilst I am unable to recall the subject of the charges, I was informed of the details by my lawyer ... at the time that I first consulted him and I am informed that he showed me various material including my record of interview with the police. Based on what he explained to me I summarise below to the best of my understanding and belief what I now know:

(a) apparently I telephoned or reported to the police on several occasions over a one month period in July 1999 and made allegations including against [the relative referred to in paragraph 6 of this judgment] and my employer's friend that I was (at that time) being abused by a relative; and

(b) apparently on these occasions I spoke in the voice and with the demeanour of a child and told the police that I was being sexually abused. I was told that the calls were made in the middle of the night or very early morning and were traced to my home or the office where I worked. The police traced the calls which is how they eventually called me into the station and I was interviewed."

This account may, of course, accurately reflect the best of the defendant's understanding and belief as at 6 July this year. In no way, however, could it be properly said to be the product of full and thorough enquiry. It is inaccurate or incomplete in at least the following respects:

(a) Only one of the six charges arose from telephone calls made to the police by the defendant. Each of the other five were based upon an initial call not to the police but to another agency from which the matter was reported to the police.

(b) The incidents took place over a 14 day period, not a month.

(c) They took place in the second half of August, not in July.

(d) Only twice did the defendant speak in the voice and with the

demeanour of a child.

(e) None of the allegations the subject of the six charges were made against the relative to whom reference is made in paragraph 6 of this judgment; and none were made against the person (who was her employer's friend) who was a party to the "precipitating event". This point is particularly significant because the defendant's reference to that relative makes no logical sense; of course she would not have pleaded guilty to having made a false report about a person whom she has at all material times insisted was the perpetrator of despicable assaults upon her. The reference to that person in this part of her affidavit of 6 July 2001 demonstrates that she was not then thinking clearly about what she was saying.

(f) In only three of the six false reports did the defendant allege that she, the caller, was the victim.

(g) Although not all of the documents in evidence specify the time at which the calls were made, several put that time not in the middle of the night or early morning, but in the early to middle evening or (in the case of charge number six) much earlier than that.

(h) Five of the reports the subject of the six charges implicated innocent people in the commission of very serious crimes. In the last of them the alleged perpetrator was identified directly by name as having raped the defendant by means which were even more abhorrent than, but also included, vaginal penetration.

(i) The defendant first presented herself at the police station before she was requested to participate in a police interview.

The plaintiff in the present proceeding filed a document dated 24 October 2001 and headed "particulars of grounds of objection". It states that the court should not for a number of identified reasons be satisfied that the defendant is a fit and proper person to be admitted to legal practice. Those reasons, according to the document, include the fact that the commission of the offences implicated a number of presumptively innocent persons who were thereby put at risk of significant harm: paragraph 3 of the particulars. Paragraphs 4-6 continue:

"4. The report, the subject of charge six, included as well as a false accusation of rape, a false accusation that a prominent politician was very supportive and would take action against the accused person because he had heard of another similar type of incident involving the accused person;

5. The offences the subject of the charges involved personal attendance at police stations at Kew and Box Hill and not merely telephone calls;

6. The offences the subject of the charges involved in the case of charges 3, 4, 5 and 6 the adoption of the persona of an adult."

These matters are pursued in paragraph 12 of the document. So far as is relevant, that paragraph reads as follows:

"The defendant has failed to make full, accurate and candid disclosure of all matters affecting her fitness to practice. The following matters are relied upon: (a) the defendant made affidavits of disclosure on 2 March 2001, 11 April 2001, 6 July 2001 and 6 August 2001; (b) the affidavits failed to reveal or explain the matters referred to in paragraphs 3, 4, 5 and 6 above; .... (d) in the affidavit of 2 March 2001 the defendant states that she does not have any recollection of making reports and describes them in the following manner: 'Apparently I contacted the police on a number of occasions and made allegations of sexual assault against people including [a relative] and my employer's friend. However, I do not have any recollection of doing so.' In fact, the defendant was aware of more detail of the offences as a result of the proceedings in the ... Magistrates' Court on 13 October 2000 and the provision to her legal advisers of material on the informant's file; (e) in paragraph 2 of the defendant's affidavit of 11 April 2001 the defendant gives a further account of the offences which still does not reveal or explain the matters referred to in paragraphs 3, 4, 5 [or] 6; ... (g) in paragraph 24 of the affidavit of 6 July 2001 the defendant adds to her account of the offences without, however, revealing or explaining the matters referred to in paragraphs 3, 4, 5 [and] 6; ... (i) in the affidavit of 6 August 2001 the defendant deposed that she had made full disclosure including but not limited to any formal charges of criminal offences."

The discrepancies between the facts behind the six charges and the defendant's description of them were therefore squarely before the court in this proceeding. In submissions put on her behalf the defendant argued that no serious misleading, if any misleading at all, of the Board of Examiners was involved. The important point, it was submitted, is that the Board properly found that "there was very little, if any, moral blame to be attributed to the [defendant] for acting in the way that she did" in making the false reports: Reasons for the Board of Examiners's decision dated 22 October 2001.

It is hardly surprising that the defendant relied strongly on this conclusion of the Board. It has always been her position that the charges arose out of actions taken by her when suffering from a period of dissociation. This in turn was precipitated by an event which for her was especially traumatic because it caused her to revisit those years of her youth forever disfigured by the sexual abuse that she suffered at the hands of a member of her family. She sees herself as a victim. On the basis of the position taken by the parties to this proceeding (the accused relative denies the accusations, but before me they were accepted as being true) that is entirely understandable and indeed inevitable. The danger is that the defendant will take this an impermissible step further and see herself simplistically as a mere conduit through which the person who victimised her is now victimising others through her.

A glimpse of this danger is provided by two short passages in the material presently before me. The first of these is taken from a letter dated 23 October 2001 to the solicitor for the plaintiff. It is written by Celia Kemp, a friend of the defendant, who was contacted by her after this hearing began. The letter recounts in the following words part of the conversation which then took place:

"She [that is, the defendant] asked me why I thought Kelly was opposing her admission and expressed shock that Kelly would blame her instead of blaming her [relative] for what he had done to her. She said she was very surprised and hurt that Kelly would oppose her admission rather than talking to her about the hurt she had caused the [named] family in person." (My underlining.)

The second excerpt comes from an affidavit sworn on 13 September 2001 by the person with whom the defendant served her articles. He refers at paragraph 20 to an affidavit filed in opposition to the defendant's application for admission. He goes on to say that of that affidavit that it highlighted the fact that the web of victims of [the defendant's relative's] actions goes beyond [the defendant] . . .". (My underlining.)

There is another point, to my mind of greater significance, to be made about the defendant's failure accurately to describe the charges to which she pleaded guilty. It is that, notwithstanding that plea, there is much evidence, emanating not only directly from the defendant herself but also indirectly from the professional persons in whose care she has entrusted her health and the conduct of her application for admission, that (a) she has not properly taken into her conscious mind, let alone adequately there confronted and dealt with, the nature of the false allegations made by her, and (b) she has little, if any, insight into the impact which those allegations may have had on innocent persons accused of crimes of a particularly repellent nature. Her failure to apologise to the subjects of her false allegations is one demonstration of this.

In making this point, I take into account the defendant's plea of guilty, her reference in the conversation with Celia Kemp to the hurt she has caused, and the expressions of regret in her affidavits. But in my opinion, the other evidence before me demonstrates the relative superficiality of these contra-indications.

The defendant was not called as a witness in the proceeding before me. Accordingly she gave no evidence to counter the evidence to which I have referred. That evidence, in my opinion, points to the conclusion that the defendant is not at present a fit and proper person to be admitted to practice as a barrister and solicitor of this court. One who is not capable of dealing appropriately with awkward facts of this kind in one's own life (that is, that she has or may have caused great harm to others) cannot be entrusted appropriately to advise clients who are similarly placed.

In coming to this decision the Board of Examiners did not take this issue into account. Given the way the case for the defendant was (as I understand it) put to the Board, that is not surprising. The result is that while I must, of course, accord the decision of the Board every respect, I cannot allow it to stand.

In these circumstances I do not have to decide whether or not there is any relevant incongruity between the defendant as one who on the one hand faces serious charges to which she has pleaded guilty and which will not be finally disposed of until at the earliest October next year, and who on the other presents herself as a fit and proper person to practise the law. Nor is it necessary to enquire whether the Board was correct in ascribing little, if any, moral blame to the defendant. Even if the Board was correct, she should not, in my opinion, be admitted until she has shown that she appreciates the significance of what she has done and has made for herself a reasonable assessment of the degree of moral turpitude, if any, properly attributable to her.

I refer in this context to the evidence of Dr John Serry who between August 1999 and July 2000 was the defendant's treating psychiatrist. He was, in my opinion, a very impressive witness. He described dissociative states as puzzling and disturbing for both patient and doctor. At the same time there was, in his opinion, evidence that, at some times relevant to the making of the false reports, the defendant had some conscious awareness. It was, he said (and I accept) impossible to ascertain the relative contributions of such awareness on the one hand and dissociative behaviour on the other in these episodes. Even so, in my opinion the defendant must at the least accept that a degree of conscious awareness was involved and, having done so, deal appropriately with that which follows from such a conclusion.

In the result, I find that the defendant is not a fit and proper person to be admitted to practice as a barrister and solicitor of this court. While nothing I now say can bind the Board or any judge before whom a subsequent application may come, it seems to me that an application might be favourably considered when the defendant can demonstrate on the basis of her own evidence and that of appropriately qualified experts that (a) she has acquainted herself with all the charges to which she pleaded guilty and has an awareness of the gravity of those offences, (b) she has appropriately acknowledged that her making the false reports either caused or had the potential to cause justifiable anger, upset and trauma to each of those falsely accused and their families, and (c) she has recognised that while she may be a victim of despicable crimes, her action in making the false reports was in part accompanied by some conscious awareness. For these reasons, the decision of the Board should in my opinion be vacated and the application for admission should be refused.

There will be no order as to the costs of this proceeding. Once again, I'm indebted to counsel for their assistance.

Two things. I did by inadvertence refer to the particular Magistrates' Court before whom the defendant appeared in October last year. Because I think the identity of the defendant should remain suppressed, the revelation of that court could be the vehicle for ascertaining her identity. Accordingly, the name of the court should not be published.

HIS HONOUR: I apologise for inadvertently referring to it.

I have no difficulty myself with the continuation of the present orders relating to restriction in publication. Does anybody wish to say anything about that? Those orders will continue. Thank you.

MR CURTAIN: Can I suggest, Your Honour, in those circumstances that the documents that the court has remain in a file to be sealed and to be opened only with Your Honour's permission.

MR CURTAIN: It is just otherwise they're accessible to any member of the public.

HIS HONOUR: Yes, they will be placed in a suitable envelope marked appropriately.

There are some documents to be handed back. My Associate and Tipstaff can perhaps do that after I've left the Bench.

Practice (Admission) Rules 1999

At a glance

Court

Decision date

Before

Source

Judgment (72 paragraphs)

Parties

Legislation Cited (2)