THE PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v HILTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 27 June 1988, 27 June 1988 [1988] NSWCA 119 LEGAL PRACTITIONERS — solicitors — removal from Roll of Solicitors — application by Prothonotary — solicitor convicted of conspiracy to corrupt a public officer — sentenced — appeals — Court of Criminal Appeal confirms sentence — solicitor indicates consent — proof of service of application made — held: (1) Summons may be dealt with by single Judge of Appeal for the Court. Supreme Court Act 1970, s46; (2) Order removing solicitor's name from Roll and declaration of unfitness made. Supreme Court Act 1970, s46. ORDERS 1. Declare that the opponent has been guilty of professional misconduct by reason of the matters set forth in this judgment. 2. Order that the opponent's name be removed from the Roll of Solicitors of the Court. Kirby P I am dealing with this summons pursuant to the powers conferred on me by s46 of the Supreme Court Act 1970. By that section I am empowered to exercise the powers of the Court of Appeal and to direct the entry of any judgment by consent or to make any order by consent which the Court may make. Power to remove a solicitor from the Roll of Solicitors is vested in the Court. The Prothonotary of the Supreme Court moves the Court for a declaration that the opponent, Howard Hilton, a solicitor, has been guilty of professional misconduct by reason of matters set forth in the summons. He seeks a consequential order that Mr Hilton's name be removed from the Roll of Solicitors of the Court. From the affidavit of the Prothonotary and the annexed documents it appears that the opponent was admitted by the Court as a solicitor on 26 August 1966. His name has remained on the Roll of Solicitors since that date. The Prothonotary has certified that on 8 November 1986 the opponent was convicted of a charge that he, Morres George, Keith Godfrey Harris and Rex Frederick Jackson between | October 1982 and | August 1983 at Sydney and elsewhere in New South Wales conspired with Fazez Hakim and another, together and amongst themselves that a sum of money should be corruptly given to the said Rex Frederick Jackson in his official capacity. Rex Frederick Jackson was then a public officer namely, the Minister for Corrective Services. It was charged that the said sum of money should be corruptly accepted by Mr Jackson in his official capacity as an inducement to him to show favour to certain prisoners in violation of his official capacity. On 10 November 1986, following his conviction, the trial Judge, Carruthers J, sentenced the opponent to penal servitude for nine years. His Honour fixed a non-parole period of six years to date from 6 November 1986. The opponent subsequently appealed to the Court of Criminal Appeal against his conviction and sentence. On 27 May 1987 that Court handed down its judgment on the appeal. On 19 June 1987 that Court ordered that the appeal against the conviction be dismissed; that the appeal against sentence be dismissed 2 UNREPORTED JUDGMENTS with regard to the head sentence but allowed in respect of the non-parole period fixed by Carruthers J. The non-parole period was quashed. In lieu of his Honour's order a non-parole period of four and a half years was specified by the Court of Criminal Appeal. The sentence and non-parole period were ordered to run from 6 November 1986. The time up to release on bail was to count as part of the sentence and non-parole period. The sentence and non-parole period were to recommence running on 27 May 1987. Placed before the Court was the judgment of Carruthers J on the sentence and the documentation from the judgments of the Court of Criminal Appeal. The Prothonotary has drawn to the attention of the Court the fact that certain other criminal charges are outstanding against the opponent. However, counsel for the Prothonotary properly has indicated that no reliance is placed on this fact in respect of this summons. I disregard those charges for this purpose. The Court has before it an affidavit of Marcus Opit sworn 23 May 1988. This makes it plain that the documents which are before me were served upon the opponent in person at the Malabar Training Centre, Long Bay Complex, Malabar, on 18 May 1988. Also placed before the Court is an affidavit of Bernadette June Grant sworn 22 June 1988. Miss Grant is an officer in the service of the State Crown Solicitor. Her affidavit deposes to a conversation between her and the opponent on 21 June 1988. After identifying himself to the opponent, the following conversation took place between Miss Grant and the opponent:- "T said, 'I am ringing to find out what you intend to do in connection with the matter which comes before the Court of Appeal on Monday 27 June 1988.' He said, 'I am not going to come in. I do not oppose the application. If anyone had bothered to ask me I would have agreed to a consent order.'" In the light of the material placed before the Court by the Prothonotary it is plain that the declaration sought should be made. The order should also be made by the court as sought. In the light of affidavits of service and of the conversation deposed to by Miss Grant it is equally plain that I have jurisdiction to deal with the matter under s46 of the Supreme Court Act 1970. So I will do so. Accordingly, the following orders will be made by the Court: 1. Declare that the opponent has been guilty of professional misconduct by reason of the matters set forth in this judgment. 2. Order that the opponent's name be removed form the Roll of Solicitors of the Court. As the Prothonotary does not seek costs of and incidental to these proceedings, no order will be made in respect to the costs. COUNSEL: Claimant: Ms Bennett SOLICITORS: Claimant: H K Roberts (NSW State Crown Solicitor)