Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Croke [2024] NSWCA 195 Hearing dates: On the papers Date of orders: 8 August 2024 Decision date: 08 August 2024 Before: Bell CJ at [1]; Leeming JA at [18]; Stern JA at [19]. Decision: 1. A declaration that Michael Anthony Croke is not a fit and proper person to remain on the Roll of Australian Lawyers maintained by the Court under s 22 of the Legal Profession Uniform Law (NSW) (the Roll). 2. An order that the name Michael Anthony Croke be removed from the Roll. 3. An order that Michael Anthony Croke pay the Applicant's costs of, and incidental to, these proceedings. Catchwords: LEGAL PRACTITIONERS – disciplinary proceedings – solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers - where Respondent convicted of six offences involving false and misleading conduct and participation in a criminal group and sentenced to a term of imprisonment – where Respondent did not oppose relief sought Legislation Cited: Crimes Act 1900 (NSW) ss 93T(1A), 192G(b), 319 Evidence Act 1995 (NSW) s 91 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) r 3.1 Legal Profession Uniform Law (NSW) ss 22, 23, 264 Cases Cited: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57 Council of the Law Society of New South Wales v Duncan [2024] NSWCA 147 Council of the Law Society of New South Wales v Green [2022] NSWCA 257 Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 Council of the Law Society of New South Wales v Karimjee [2021] NSWCA 179 Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 Croke v R [2021] NSWCCA 249 Hamilton (a pseudonym) v R [2020] NSWCCA 80 Hilton v Legal Profession Admission Board [2017] NSWCA 232 Morris v Leaney [2022] NSWCA 95 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 R v Croke [2020] NSWDC 460 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Mr Michael Anthony Croke (Respondent) Representation: Solicitors: Law Society of New South Wales (Applicant) Fox & Staniland Lawyers (Respondent) File Number(s): 2024/157955 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. BELL CJ: By way of a summons filed on 29 April 2024, the Council of the Law Society of New South Wales (the Law Society) seeks a declaration that the Respondent, Mr Michael Anthony Croke, is not a fit and proper person to remain on the Roll of Australian Lawyers (the Roll) and an order that his name be removed from the Roll. Costs are also sought. 2. The relief sought lies within the Supreme Court's inherent jurisdiction to grant: Council of the Law Society of New South Wales v Karimjee [2021] NSWCA 179 (Karimjee) at [5]-[6] citing A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [10]-[12], [15], [21]. That inherent jurisdiction is preserved by ss 22, 23 and 264 of the Legal Profession Uniform Law (NSW) (the Uniform Law). 3. On 20 April 2020, following a jury trial in the District Court, the Respondent was convicted of the following six offences: 1. Count 1: On 4 April 2012, he made a false assertion with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW) (Crimes Act); 2. Count 2: On 4 April 2012, he published a statement that was false or misleading in a material particular with the intention of obtaining a financial advantage contrary to s 192G(b) of the Crimes Act; 3. Count 3: On 15 April 2012, he published a statement, namely a statutory declaration, that was false or misleading in a material particular with the intention of obtaining a financial advantage contrary to s 192G(b) of the Crimes Act; 4. Count 4: On 14 May 2012, he published a statement, namely a tax return, that was false or misleading in a material particular with the intention of obtaining a financial advantage contrary to s 192G(b) of the Crimes Act; 5. Count 5: On 28 May 2014, he made a false assertion with intent to pervert the course of justice contrary to s 319 of the Crimes Act; and 6. Count 6: Between 9 April 2012 and 30 November 2014, he participated in a criminal group knowing at the time that his participation in that group contributed to the occurrence of criminal activity contrary to s 93T(1A) of the Crimes Act. 1. Drawing upon matters that must be taken to have been found by the jury together with findings by her Honour Judge Syme (the sentencing judge) (R v Croke [2020] NSWDC 460 (ROS)), the Law Society summarised Mr Croke's criminal conduct as follows: "Between August 2011 and November 2014, the Respondent and his co-offenders invented a story to avoid money seized by police being forfeited to the Crown as either unlawfully obtained or the proceeds of crime. The Respondent intended that in the event the money seized by police was returned, it would be paid into his trust account and ultimately distributed between himself and his co-offenders. In furthering the joint criminal enterprise, the Respondent gave legal advice as to the outline of the story required to enable the return of the money; suggested and drafted various forms of documentary evidence to show allegedly legitimate business activity between his co-offenders, including drafting a false statutory declaration and instructing the preparation of a false tax return; attended police interviews of co-offenders and assisted where necessary with explanations; and filed process in the New South Wales Supreme Court seeking the return of the funds plus interest and instructed counsel to appear and argue the case." 1. It was the Respondent who had suggested to his co-offenders that there needed to be a better story than "the money was from illegal gambling". He thereafter contributed to the development of the story and was involved in the fabrication of evidence and witness coaching in an attempt to pervert the course of justice. As explained by the sentencing judge, "[h]e intended the $702,000 confiscated be paid into his own trust account and ultimately distributed between himself and his co-offenders": ROS at [25]. The sentencing judge described the totality of the Respondent's offending as representing a "serious assault on the system of justice in this State": ROS at [63]. 2. The Respondent's criminality was assessed as high and his remorse as non-existent: ROS at [54], [79], [83]. He was sentenced to an aggregate term of imprisonment of five years and nine months, commencing on 5 May 2020 and expiring on 4 February 2026, with a non-parole period of three years and nine months. 3. The Respondent's appeal against sentence was dismissed by the Court of Criminal Appeal on 27 October 2021: Croke v R [2021] NSWCCA 249. In his judgment, Bathurst CJ, with whom Beech-Jones J and Fagan J agreed, held that the sentencing judge was entitled to find that Mr Croke "used his skill and position as a solicitor in furtherance of the criminal activity" and in breach of his professional obligations: at [88]-[89]. The Chief Justice also rejected the Respondent's submission on appeal that his conduct could be characterised as that of a "service provider" who was acting "very much at the direction" of his co-offenders: at [82]. More will be said about this later in these reasons. 4. In his separate reasons in the Court of Criminal Appeal, Fagan J observed at [142] that: "As a solicitor, and therefore an officer of the Court, the applicant's first duty was to uphold the law and to support the integrity of authorities and institutions through which it is applied. Instead of advising and representing his clients within the law, he joined them in a criminal enterprise. He abused the respect and trust that would customarily be accorded to a legal practitioner by both the police and the Court. The learned sentencing judge was right to characterise his endeavour to subvert public office holders in the performance of their duties as arrogant. Contrary to the submissions made on the applicant's behalf, the breach of his professional responsibilities that contributes so greatly to the seriousness of these offences is not in the least reduced by ineptitude or inefficacy. The applicant did his best to derail the proper administration of the law, for financial benefit to himself and to the criminals with whom he acted in concert." 1. The fuller detail of the offending and Mr Croke's participation in it is set out in in the ROS as well as in the reasons of the Court of Criminal Appeal. The Respondent did not oppose the relief sought (including as to costs) and did not file any evidence or submissions. In these circumstances, s 91 of the Evidence Act 1995 (NSW) does not preclude reliance upon statements in judgments of the Court to prove a fact or facts in issue in the proceedings in the context of disciplinary proceedings: Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [55]-[56]; see also Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]–[272]; Morris v Leaney [2022] NSWCA 95 at [41]; Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [58]; Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [48]. 2. Notwithstanding the Respondent's non-opposition to the relief sought, this Court must be independently satisfied that he is not presently fit to practise and is likely to be unfit in the indefinite future such that the removal of his name from the Roll is appropriate: Council of the Law Society of New South Wales v Duncan [2024] NSWCA 147 at [3] (citing Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 at [9], Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [33], [45] and Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 at [99]). 3. The present is a clear case for removal from the Roll. Admission to legal practice is a privilege, not a right. The administration of justice in this State relies upon legal practitioners adhering unwaveringly to the oaths or affirmations they swear or make on admission to legal practice, a core component of which is an undertaking to the Supreme Court to conduct themselves honestly in the practice of the law. That oath or affirmation, sworn or made at the outset of a lawyer's career, is one of a continuing and critical nature and significance. The privilege of admission will be withdrawn in cases where a lawyer is established not to be a fit and proper person to continue in practice. 4. In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20] (Cummins), Spigelman CJ (with whom Mason P and Handley JA agreed) identified four reasons why the legal profession has long required the highest standards of integrity: "Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people." 1. Dishonesty and attempting to pervert the course of justice are paradigm cases for the withdrawal of the privilege of practising law in this State. Such conduct, although fortunately rare, does disproportionate harm to the reputation of the many thousands of decent and honest lawyers who practise in this State, and undermines confidence in the entirety of the legal profession. 2. Such dishonourable and disgraceful conduct not only calls for, but demands, public denunciation in the form of the declaration sought. In this context, I repeat my endorsement in Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 at [44] of the sage observations of Spigelman CJ in Cummins at [32], namely that: "The act of removal from the Roll is the act with operative effect. Nevertheless, it is appropriate for the Court to declare in a formal way, and not merely in reasons for decision, the basis on which that order was made. Such a declaration serves the public interest, not least by reaffirming the high regard the Court has for the reputation and standing of the legal profession, represented before the Court by the Bar Association. A formal declaration will go some way to assuring the public that conduct of this character cannot be and is not tolerated in the profession. The damage that Mr Cummins has done may be somewhat redressed (see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-582). Where, as here, the public interest is involved, the Court should formally record the result (see Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 83; (1993) 41 FCR 89 at 100, 106, 107)." 1. As was the case in Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57 at [9], where Mr Clarke was found not to be a fit and proper person to be a lawyer presently and in the indefinite future on the basis that his "offences involved him taking advantage in a deliberate and calculated fashion of opportunities arising out of his employment as a solicitor and involved significant breaches of trust and serious dishonesty" such that they were "antithetical to central requirements for being a fit and proper person, namely honesty and integrity", so too with the Respondent. In like vein, see Karimjee. 2. It is also appropriate to say something in this judgment about the Respondent's argument in the Court of Criminal Appeal that he was a "service provider" who acted "very much at the direction" of his co-offenders. That submission bespeaks a fundamental and deeply flawed misconception about the role of a solicitor or a barrister. A lawyer's first and paramount duty is to the Court and the administration of justice. This paramount duty prevails to the extent of any inconsistency with any other duty: Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW), r 3.1. A failure to recognise this fundamental obligation also underscores the Respondent's ongoing lack of fitness to practise. 3. For the above reasons, the Court should make the following orders: 1. A declaration that Michael Anthony Croke is not a fit and proper person to remain on the Roll of Australian Lawyers maintained by the Court under s 22 of the Legal Profession Uniform Law (NSW) (the Roll). 2. An order that the name Michael Anthony Croke be removed from the Roll. 3. An order that Michael Anthony Croke pay the Applicant's costs of, and incidental to, these proceedings. 1. LEEMING JA: I agree with Bell CJ. 2. STERN JA: I agree with the Chief Justice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2024