NEW SOUTH WALES BAR ASSOCIATION v MOORE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and SHELLER JJA 1, 2 June and 20 September 1993, 2 November 1993 [1993] NSWCA 191 The opponent, a barrister, paid a bribe to a police prosecutor in 1983 while practising as a solicitor. He failed to report this conduct to any authority until 1992 and did not disclose it when applying for admission as a barrister in 1989. The applicant sought the removal of his name from the Roll of Barristers. The opponent submitted he should be allowed to continue in practice because he had paid the bribe under duress, and had not disclosed his conduct because trauma had caused it to be repressed from his consciousness. Held: 1. The evidence was not convincing that the threats made to the opponent produced in him such a fear of violence to himself or to his family that his will to refuse to take part in the bribery was deflected. 2. The evidence did not support the conclusion that the events were repressed from the opponent's memory but rather that he did not disclose his conduct because of his realisation of the consequences. 3. The opponent's conduct, measured against the standard of conduct expected of a solicitor, showed him not to be a fit and proper person to practise as a barrister. Meagher JA I agree with Sheller JA. Handley JA In this matter I have had the benefit of reading the reasons for judgment of Sheller JA in draft form. I agree with those reasons and the orders he has proposed. In my opinion the decision in this case very much depends on its special, indeed unique, facts. Accordingly, I express no view on what the proper approach of this Court should be in a case where a legal practitioner freely and voluntarily disclosed some undetected past wrongdoing either in the public interest or as part of his or her own rehabilitation. Sheller JA BACKGROUND On 7 April 1989 the opponent Ian Marshall Moore was admitted as a barrister. He held a current practising certificate when on 4 December 1992 he wrote to the Registrar of the claimant New South Wales Bar Association informing him that while practising as a solicitor in February 1983 the opponent had paid a bribe to Sergeant Mal Spence, a police prosecutor. The opponent wrote: "T did that in response to pressure of threat to me and my family and in the contest [sic] of a vicious assault upon me. Realising that, having paid the bribe, I was totally compromised, I sold my practice and let my certificate lapse, left the profession and became a teacher. The man actually applying the pressure was one Colin Fisk. In 1989 I applied for admission to the Bar intending to practise in Newcastle only. I did not disclose the bribe, which was entirely undisclosed at that time. I commenced practice in Newcastle and in this I was successful. In December 1991 Fisk, now out of prison, rang my home. Realising that I was again vulnerable I made 2 UNREPORTED JUDGMENTS immediate arrangements to speak to the Police Professional Integrity Unit and to 'make a clean breast' of it all. Inspector Scott of that Unit expressly and firmly asked me NOT to mention the matter to anyone and specifically in response to my query, not to disclose the facts to the Bar. There were, she said, people on the Bar Council who might leak' the facts and risk my life and the lives of my family. 'These are dangerous men,' she also said." On 23 December 1992 the claimant commenced these proceedings in the Court of Appeal by summons claiming, inter alia, an order that the name of the opponent be removed from the Roll of Barristers of the Court. On 17 February 1993 the opponent undertook to the Court that he would not practise as a barrister until the determination of the proceedings or until further order. The parties filed affidavits and the matter came on for hearing on | and 2 June 1993. The affidavit of one deponent, Kevin James Kelleher, a barrister, filed on behalf of the opponent, was not read because, due to late notice, the deponent was not available to be cross examined on the dates set down for hearing. Because the Court proposed to reserve its decision and Mr Kelleher was potentially an important witness, 20 September 1993 was appointed for him to give evidence. CLAIMANT'S CASE The following acts of the opponent, which he admitted, form the basis, either individually or in combination, for the claimant's application that the opponent's name should be removed from the Roll of Barristers: (a) The opponent's conduct in paying a bribe in or about February 1983 to Sergeant M Spence, a police prosecutor, to do other than his duty in connection with the prosecution of Gregory John Smith; (b) The opponent's conduct in failing to report to the relevant police or justice authorities in 1983 the payment of the bribe; (c) The opponent's conduct in misleading, or permitting the misleading, of the Local Court in February 1983 when the proceedings brought by the police against Mr Smith were heard; (d) The opponent's failure fully and frankly to disclose the conduct set out in (a) to (c) above at the time of his application for admission as a barrister in April 1989; (e) The opponent's swearing of an affidavit of 9 March 1989 which was false in that it contained in paraS the following statement which was untrue, namely: 'Except in so far as the Court may consider that my good fame and character or my fitness to be admitted to practise at the Bar are affected by the facts and circumstances (stated in a document attached to the affidavit and presently immaterial) I have not done or suffered anything likely to affect adversely my good fame and character, nor am I aware of any circumstance which might affect my fitness to be admitted to practise at the Bar. ' (f) The opponent's continued failure from 9 March 1989 until December 1992 to disclose to the Court, or any of its judges, or to the Bar Association of New South Wales or any of its Council, his conduct as described in para(a) to para(e) above. Such admitted conduct amounts to a formidable case for the order the claimant seeks. OPPONENT'S CASE In his affidavit of 8 March 1993 which was read to the Court the opponent said: "3. The matters sought to be relied on by the applicant, while committed by me, were done so at a time when my state of mind was overborne by the criminal actions of others. By duress, both subtle and direct my mental health has suffered. URJ NEW SOUTH WALES BAR ASSOCIATION v MOORE (Sheller JA) 3 Both my association with the police force and members fo the criminal element over a period of two decades, but more particularly in 1982 and 1983 has caused me to suffer from depression and anxiety even through to the present date. 4. As to my recollection of events, in 1984 my residence where I stored all my personal records was inundated by flood. I lost most of my records. Because of that loss, I have been unable to refresh my mind as to many of the details to which I make reference in this my affidavit. Also, my memory of many of the events described herein is not complete as to details but I do have recall of facts in the absence of such detail. " The opponent submits he should be allowed to continue in practice because, in doing what he did, he had been coerced by pressure brought upon him. As to non disclosure and the false statement made when he applied for admission to the Bar he says that he did not recall the events with Spence and seeks to explain this by expert evidence that intense crisis or trauma caused the events to be repressed from his consciousness at the time he applied for admission. DURESS The opponent's assertion that the matters relied upon by the claimant were done when the opponent's mind was overborne by the criminal actions of others and his reliance upon duress as exculpation require analysis of the principles by which the claimant's application for removal of the opponent's name from the Roll should be determined. In exercising its protective jurisdiction the Court must decide whether the opponent is a fit and proper person to practise as a barrister. This must be assessed by reference to his conduct, when a solicitor, measured against the standard of conduct required of a solicitor. In determining the standard required regard must be had to how the Courts, the solicitor's professional colleagues and members of the public expect a competent solicitor of good repute to behave. The expected conduct of a solicitor faced with threats of violence is not necessarily determined by showing that in reliance upon duress the solicitor would have been acquitted if prosecuted for the acts complained of. The effect upon the solicitor of threats of violence must, I think, be weighed against the standard of conduct expected of a competent solicitor of repute. Even so duress as understood in the criminal and civil law throws light upon the conduct that can reasonably be expected of a solicitor. The recognition in the criminal law of duress as exculpatory has been described as a concession to human frailty. The extent of the concession and of the indulgence of human frailty have fuelled considerable debate. Lord Simon of Glaisdale in Director of Public Prosecutions of Northern Ireland v Lynch [1975] AC 653 at 686 while acknowledging that duress was an extremely vague and elusive juristic concept, gave a helpful "working definition". (The conclusion of the House of Lords in that case that a defence of duress was open on a charge of murder, from which Lord Simon dissented, was overruled in R v Howe [1987] AC 417). Duress denotes a fear, which must be well grounded, produced by threats of death or grievous bodily harm if a certain act is not done, that overbears the actor's wish not to perform the act, and is effective, at the time of the act, in constraining the actor to perform it. The threat must be of harm to the person required to perform the act or, at least, to the immediate family of that person. Anomalies exist. Thus threat of injury to property or reputation does not suffice. In Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 McHugh JA, as he then was, in a judgment with which the other members of the Court agreed, referred at 45 to Lynch's case and said: "The Law 4 UNREPORTED JUDGMENTS Lords were unanimous in coming to the conclusion, perhaps best expressed (at 695) in the speech of Lord Simon of Glaisdale 'that duress is not inconsistent with act and will, the will being deflected, not destroyed'." I need not pause to consider the distinction perceived by McHugh JA between "overbearing" and "deflecting" the will. The essence of duress was pithily stated by Lord Hailsham of Marylebone in R v Howe at 435E. The defence of duress allows "a reasonable man to make a conscious choice between the reality of the immediate threat and what he may reasonably regard as the lesser of two evils". Its elements as applied in a criminal prosecution to proof by the Crown that an act was done voluntarily were discussed recently by Hunt J, as he then was, with the concurrence of the Chief Justice and Mahoney JA, in R v Abusafiah (1991) 24 NSWLR 531. But before considering whether the choice made in this case by the opponent was a reasonable one it is necessary to determine whether he was coerced by threats to bribe Sergeant Spence. This requires consideration of his subjective processes; see R v Abusafiah at 532 per Mahoney JA. Relevant to this is the question of whether the opponent failed to take advantage of any opportunity which was reasonably open to him to render the threats ineffective, as, for example, by seeking advice or reporting them to the police or other justice authority. The failure to take advantage of such an opportunity may be explained by the nature of the threat, for example, an antecedent threat of future violence, or it may be explained by the threat's being ineffective and hence the payment of the bribe an exercise of free will. Ultimately, it seems to me, the question to be answered is how do the Courts, fellow members of the profession and members of the public expect a reputable solicitor to conduct him or herself faced with the threats the opponent described. Would such a solicitor reasonably be expected to resist them or take steps, if available, to render them ineffective by reporting them? This assessment must take account of the fact that a solicitor is bound to uphold the law and the proper administration of justice. The evil the opponent chose was one which strikes at the very heart of the justice system and is in violation of those high standards of honesty always expected of solicitors in their dealings with the police and the Courts; see The Prothonotary of the Supreme Court of New South Wales v Pangallo (unreported) Court of Appeal 16 April 1993 per Clarke JA at 5. With these matters in mind I turn to consider the facts of this case. NATURE OF OPPONENT'S EVIDENCE For the most part the account of the circumstances of the bribe and the events leading up to it depends upon the opponent's statements and evidence. From these the Court must attempt a scrutiny of his subjective processes to decide whether at various times and in particular when he bribed Sergeant Spence the opponent was coerced by the threats he described. An understanding of the opponent's case is made difficult because of the disorganised and incoherent way in which he put it before us. He made little attempt to focus on matters germane to the central issues. The claimant filed affidavits by its Registrar Mr JO Morrice and a solicitor Ms DJ Truss to which were annexed: B1, a copy of the letter of 4 December 1992; B2, a statement by the opponent to the New South Wales Police dated 15 February 1992; B3, a record of interview of the opponent on 27 February 1992; B4, an unsigned statement by the opponent dated 3 November 1992, and URJ NEW SOUTH WALES BAR ASSOCIATION v MOORE (Sheller JA) 5 the transcript of evidence given by the opponent in public hearings in the Independent Commission Against Corruption (ICAC) on 1 and 2 December 1992, provided by the Principal Lawyer of the ICAC for the purpose of these proceedings. The affidavit sworn by the opponent and filed in the proceedings of 8 March 1993 should have provided a complete and coherent account of the relevant facts. Instead, after seventeen paragraphs which dwelt in detail on historical matters, the opponent when he reached the critical event of the bribe deposed as follows: "18. It was in the seventies that I met Colin Fisk who introduced me to Sgt Spence the Police Prosecutor involved in prosecuting Gregory Smith in March, 1983 at the Court of Petty Sessions at 302 Castlereagh Street, Sydney. In regard to my association with Fisk and others associated with that matter I will rely on my evidence before the Independent Commission Against Corruption, my statements and record of interview. " The opponent over the next six paragraphs dilated upon various matters, most of marginal significance, before describing in considerable detail events after he ceased to practise as a solicitor in 1983. This continued up to and included para31. Para32, which picked up this long and involved account, it would appear, in 1988 or early 1989 was as follows: "32. My wife and children first suggested to me that I should go back to the law. I was at that time very depressed. I made application for admission to the Bar. I cannot now remember what I was thinking at the time. I do know that nearly all the time I was very conscious of the threats that had been made to me. The threats that played on my mind were primarily physical violence but also that I had been set up in some way. I vividly recalled the threat that my reputation would be ruined. I used to get very depressed when I thought of what could happen to my family if that happened. Over all that was the feeling that if I stayed away from them, those responsible for the threats and the attack, nothing further would happen. For that reason and as a result of deeper feelings I did not wish to return to Sydney. When I applied for admission I don't even recall being aware of the events with Spence. I had had many dark periods earlier just thinking about that but I developed a way of putting that out of mind. It was almost as if it had not happened. By doing that I seemed to be able to decrease the level of depression. " In what remains of his affidavit the opponent deposed to an occasion in 1991, when he was in Sydney attending a readers' course organised by the claimant and, in the lobby of the Supreme Court building, ran into the man who, he believed, was the perpetrator of the assault referred to in his letter of 4 December 1992 and who said to him: "I want to talk to you Mr Solicitor". The opponent described his reactions of fear. He abandoned the course and returned early to Newcastle. "As a result of that incident I became very depressed." The opponent then deposed to an occasion in December 1992 [he meant 1991] when on returning home from a function he was informed by his wife that Colin Fisk had telephoned while he was out. The next day he had a conversation with Fisk which he said left him fearful and depressed. His affidavit finished as follows: "37. At some stage in January I had a telephone conversation about the Spence incident with the Police Internal Security Unit and particularly Inspector Scott. It was my information and statement that initiated the action by the police over the matter. She arranged to come and see me in my chambers at Newcastle on a Saturday morning. There I made the complaint about what had happened in 1982/1983 and she recorded it in a statement which was prepared immediately. That statement was an annexure to the affidavit of JO Morrice in these 6 UNREPORTED JUDGMENTS proceedings. She said a number of things to me the exact words of which I do not recollect but which I recall concerning the need to not let anyone know about the complaint I had made. [Annexed were copies of letters sent by the opponent to the Police Profession Integrity Unit and the ICAC on 13 January 1993 and a letter in reply from the ICAC of 29 January 1993 and a fax in reply received from Detective Inspector Scott on the same date.] Before I received the facsimile I received a telephone call from Inspector Scott. I recognised her voice and she said, "Hello Ian, it's Lola Scott here. I'm about to send you a fax in answer to the request you made. 'I said, "Thank you very much' She said, 'Where can I send it to?' I said, 'My chambers (049) 297077. ' She said, 'Check it and see if it's accurate and, if you have any comment, ring me back. I'm not at North Sydney now. I'm at Ultimo' There followed further conversation and the call ended. " The annexed letter from the ICAC confirmed that the opponent voluntarily attended at the Commission, participated in the record of interview and attended to give evidence at the public hearing concerning the improper payment to Sergeant Spence on 9 February 1983. The opponent's letter of 13 January 1993 to the Police Professional Integrity Unit, marked attention Inspector Scott, contained the following passage: "You asked me not to notify the Bar Association as there could be a leak of security there, you also said you had reason to believe that there was real danger for me and my family and that if and when I needed it in relation to the Bar Association, you would provide a letter confirming that you had made that request of me and that you were prepared to say that, I had been of assistance to you in relation to several other matters..... Could you please provide the promised letter. Could you ensure it covers what was stated above and that I volunteered the statement both to your unit and to ICAC. " The faxed reply stated: "Mr Moore did provide assistance to the New South Wales Police Service identifying an alleged corrupt police officer. I informed Mr Moore at the time of interview that I did not want him to speak to anyone about the matter including the Bar Association. This was for security purposes. Mr Moore also had fears for his family. I can confirm Mr Moore provided voluntarily this information to the New South Wales Police Service and later the Independent Commission. " It is to be noted that this reply gave no indication that Inspector Scott had expressed any views about any danger to the opponent or his family. An overview of the opponent's affidavit demonstrates that while it deals in detail with background material most of it already covered by his earlier statements it deals with the two most important matters in the case, the bribe and the non disclosure and false statement on his application to be admitted to practise as a barrister, in a cursory fashion. The Court was left to piece together from various statements by the opponent, written and oral and often inconsistent one with another, the exculpatory facts relied upon. At the Court's request the opponent filed a further affidavit on 2 June 1993 to which he annexed a chronology "of events being a series of dates relevant to events relating to the statement made by me to my solicitor on 3 November 1992 being the annexure B4 to the affidavit of JO Morrice sworn 22 December 1992 and other documents referred to by the affidavit of Dianne Truss sworn 10 February 1993." The opponent said that to the best of his knowledge the chronology of events was true and correct. As the opponent's letter of 4 December 1992 stated, the source of pressure upon him was Colin Fisk. The pressure was alleged to have been produced by threats to reveal personal matters meaning, apparently, confidential material URJ NEW SOUTH WALES BAR ASSOCIATION v MOORE (Sheller JA) 7 about the opponent and other persons, presumably sensitive, confided by the opponent to Fisk, by threats to make false statements about the opponent and by threats of violence. The reality of the threats of violence was said to be shown by two incidents one in 1981 and one in 1982. The impact of these incidents on the opponent was said to be heightened by the opponent's early experience as a solicitor. The opponent was employed in 1967 as a solicitor by Messrs Gaden Bowen and Stewart. In his affidavit of 8 March 1993 he said that he handled almost entirely litigation work and that it was at this point that he had his first interaction with unsavoury elements of the police force and experienced criminal coercion. "These early experiences and those leading up to the incident referred to in my statement, with Sgt Spence have affected me greatly." The opponent referred in his affidavit in detail to his part in the Barton v Armstrong litigation. Having given this description he said "I became very wary and disillusioned with the authorities at this stage as several contacts were initiated with the Commissioner of Police, the, then Premier, Askin and all were met with evasion or less than full or frank responses. " THE BRIBE On 12 December 1982 Gregory John Smith was arrested on a charge of driving with the prescribed concentration of alcohol. Some time after that date, according to the opponent's chronology, he was approached by a member of the Sydney Swans Football Club to give a view as to what might happen to Mr Smith. According to his statement B4 the opponent said to Fisk "if you think anything can be done to assist, get in touch with him (referring to the official to whom I had spoken). There may be some Grand Final tickets in it for you." Fisk suggested the opponent contact Spence. According to the statement B4 he said: "it has been arranged that you contact Spence to discuss the matter. Smith's record will not be mentioned. " The statement continued: "T think that I said something to the effect 'I don't want to be involved in the matter you can handle it'. He said to me, "you'll have to handle it. This will show your commitment. You'll have to appear for Smith. Then we can both have the Grand Final tickets can't we?' I said words to the effect, 'I'm not interested'. He said words to the effect, you're to go to Smith and tell him that it's all been arranged and then discuss it with Mal Spence. You'll have to play along with them as you could see one of your family get hurt this time. They are really rough people these blokes. It's been arranged. It's out of my hands'. " The opponent saw the official or Smith or both and said words to the effect: "it's been arranged with the prosecution. I'll get in touch again. " According to the chronology the opponent then contacted Spence. A meeting may have taken place between the opponent and Spence. The most coherent account of what happened thereafter is contained in his statement to the police of 15 February 1992 (B2). The statement was signed by the opponent and was said accurately to set out the evidence he would be prepared, if necessary, to give in court as a witness. He said: "The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true." "9. Spence and I had a telephone conversation in which to the best of my recollection he said to me, 'it's all arranged it will cost $2000 or $3000', I can't remember the amount. I spoke to Smith and told him what the situation was and I think he said to me, 'I couldn't get that sort of money.' I remember having 8 UNREPORTED JUDGMENTS further conversation with Spence on the telephone, I rang Paddington Police Station for him. I told him Smith said he couldn't get that sort of money. Spence said something to the effect, 'well, it's just got to be paid. ' In the end Smith did come up with the money and on the final hearing day of his DUI matter, I went to the Castlereagh Street Court, I met Spence in the foyer of the court and he told me he would meet me in the back stairwell. I went to the stairwell and met with Sergeant Spence where I handed him an envelope containing the money. He said to me, 'Do you want the envelope back. ' He said that as he took the money out and put it into his coat pocket. 10. We went into court, Sergeant Spence handed up Smith's antecedents and I recall tendering many character references on my client's behalf. I remember drawing his Worship's attention to the fact that Smith was a married man with children and in employment and held in high regard by members of the community. Sergeant Spence made no reference to Smith's previous, I think it was two PCA charges, that was the reason the money was paid to Spence. I can't recall the penalty that was imposed on Smith but there was no publicity or custodial sentence. " In his oral evidence before the ICAC on 1 December 1992, the opponent was questioned about the bribe and agreed that what was being done was to his knowledge a deliberate arrangement to pay a senior police prosecutor a bribe in order to have him conceal in some way his client's true driving record from the court. He understood that the money was paid over so that the police prosecutor would not read out to the magistrate any information about the client's prior conviction on a charge of refusing a breath analysis. He agreed that even if the previous conviction had been revealed to the magistrate it was unlikely that his client would have gone to gaol since there was a space of years separating the two offences. The opponent was asked why he told the client that there was a prospect - not just a prospect, but a very good prospect - that he would go to gaol. He answered: "It was because I'd been told that and I had to make the situation that had been put to me work. " The opponent was asked: "But really, according to your testimony you were, in a real sense standing over your client and you were doing so because in turn you were being stood over? - Yes. " He was asked whether he told his client that if he did not pay the $3,000 he would serve a minimum of three months gaol. The opponent replied: "I don't recall saying that but I don't dispute that I could have said it. " Asked by the counsel appearing for him whether, before he met Smith, Smith's matter was discussed by him with Fisk, the opponent said: "It could have been. I'm having difficulty with that. It's more than likely that it was." He was asked what his state of mind was at the time the Smith events occurred to which he replied: "Oh I was - I was scared but I was also - it is hard to explain. I was doing something the nature of which I knew and I didn't want to do it but I felt I had to do it. Because of the fear that you felt? - That's right. " In the course of his cross examination before us the opponent answered questions as follows: "Q. Why was it in Smith's case that you had to pay money to obtain a favour? A. In Smith's case it was because Spence said to me in a telephone conversation words that were to the effect of 'He's got to pay $3,000 or his record is going to put him in'. He probably used some basic term, more like "You are in deep trouble' or 'He's in deep trouble' or something like that. URJ NEW SOUTH WALES BAR ASSOCIATION v MOORE (Sheller JA) 9 Q. So in other words Mr Smith would suffer the consequences of the revelation of the true facts about his driving record - that's what Spence told you? A. I guess so, yes. Q. He said nothing to you about what would happen to you, did he, if you didn't pay any money? A. No. Q. Or cause Smith to pay any money? A. No, he didn't say anything directly. Q. You accept, don't you, that you were the cause of Mr Smith paying the money - that is to say, you approached Mr Smith about payment of the money and told him that that is what he needed to do? A. Yes, I accept that, yes. Q. Any you accept that you gave Smith a reason for payment of the money? A. Yes. Q. Which was probably not accurate? A. Yes, but I won't say that I knowingly knew it was intentional. I think that was marginal. Q. And you did it in circumstances where you say the only direct contact was with Spence by telephone? A. Yes. Q. Where Spence did not reveal to you that he had spoken to Fisk about it? A. I can't remember that. Q. In that telephone call? A. Ican't remember that, I'm sorry. Q. And where Spence did not threaten you at all? A. No. Q. There was no reason for you, arising out of anything that Spence did, to pay the money, was there? A. Well, I thought there was but - I thought there was. " PRESSURE ON THE OPPONENT According to the chronology the opponent met Colin Fisk in mid 1975. In his statement B4 the opponent said: "T cannot recall as what stage it was that I became sufficiently friendly with Fisk that I told him several personal matters. I cannot recall exactly but I believe that I used to discuss matters with Fisk that I now wish that I hadn't. I came to place too much confidence and trust in him. This involved me in disclosing some matters that had occurred prior to my marriage, about the time of my marriage and otherwise. " A little later in the statement the opponent said: "Early in the acquaintanceship, he began to ask me about my work and in particular cases I was handling. I, foolishly, was flattered by his interest and discussed details with him. I cannot recall at what stage he first started talking with me about his associations with some police. He frequently told me of his acquaintanceship with police at Manly and in particular with a Sergeant Ron Fluitt. I recall him saying often that he often drank with police and often had to drive them home in their squad cars as they were so drunk. I recall him telling me about a series of 'Porn' movie days at the back of a butcher shop in or near Manly. He told me of how he felt the need to entertain police at lunches or buying them drinks. At first I didn't know whether to believe him or not. I gained the impression that he held police in as much contempt as I did. He also told me that his 'influential friends' or powerful friends' as he called them knew of me and 10 UNREPORTED JUDGMENTS that I was a 'shit stirrer.... who was heading for trouble' and similar expressions. He gave veracity to this by telling me at time who were the police involved in cases in which I was involved and why they disliked what I was doing I can recall him saying to me 'they say you must be a poof You're always defending them'. That clearly was not true and I told him so. He also commented, 'most of your employees are you know'. " The opponent went on in the statement to describe his association with Fisk to the point where he was lending Fisk amounts of money, usually about $20, and not being repaid. "T asked him to pay back the money he had borrowed. I didn't know how much it was. I would have been happy with almost any sum. I said to him words to the effect, 'how about you pay me back the money you borrowed?' I was shocked when he was overtly threatening and said to me words to the effect, 'a wealthy professional man with a family and position to protect shouldn't want money from me. He should be happy with me speaking up for him where it matters. You need all the friends that you can get. You can't afford to make more enemies. Put it down to me helping you get some powerful friends. Then you can feel safe and sound. Can't you?' Although I felt scared, I said to him words to the effect, "Fuck off. You and your mates can all go to hell. ' I think it was about then that he said to me words to the effect, 'you know it would be easy to put it around that you are gay. You have quite a few gay friends, quite a lot of gay clients and look at me I'm a close friend, aren't I. Who knows, people might think that there's something going on mightn't they?' I recall responding to the effect, 'it wouldn't be believed. I'm not concerned about that'. In truth I was. My recollection is that he said 'my powerful friends could set up what could sink you. Who knows it might already have been done. After all you've lent me your car on occasions. Who knows what might have happened?' He said that sort of thing with increasing threats as time went by and into the beginning of the nineteen eighties. I still thought that he was referring to what his police friends would do. He had told me something about his relationship with them that they held over him. That was when I became really fearful of what I had got myself into. " The opponent said he felt vulnerable because of his perception of Fisk as either threatening the opponent for past indiscreet statements about himself, because of Fisk's association with the police, or because the opponent hoped that Fisk could help him in "the difficult situation that I perceived that I had with some police. The opponent was questioned about Fisk's threats to make false accusations of a public nature that the opponent was homosexual and said he was concerned about this. He agreed that this occurred around about mid 1982 or perhaps slightly earlier and certainly long before he was retained on behalf of Mr Smith. Asked about the conversation I have quoted from B4, the opponent gave the following evidence: "Q. Having regard to that conversation you realised by that stage that Mr Fisk was a thoroughly undesirable piece of work? A. Yes. Q. You must have realised it could not have done you much good to continue to associate with him? A. Yes. Q. Why did you not at that stage sever all connection with him? URJ NEW SOUTH WALES BAR ASSOCIATION v MOORE (Sheller JA) 11 A. I tried to do that at the time when I asked him for the money that he owed me because I knew I wasn't going to get it. I was at that stage fearful of the guy and his relationship with these police. I didn't contact him at all during this period, I might add. He was coming out of the blue. A phone call would come and he would be saying he wanted to see me about something and he would make some comment like, 'It'll be helpful to you, ' or something like that, and I was fearful. Q. Why did you not say, "Get lost.'? A. I did at one stage but it didn't make any difference. I was really fearful of the bloke. If he could have been out of my life I would have been very very happy. He was like a black cloud I couldn't get rid of. Q. From your statement I am not quite clear what it was you were frightened of. Was the fear that he would make these false allegations about your private life? A. I don't think so. That was obviously in my mind but my major fear then was that I believed something could be done to one of my children. He had expressed on a couple of occasions something about my youngest. " INCIDENTS The opponent recalled two particular incidents, which he said heightened his fears. According to his chronology in November 1981 a man approached the opponent and his son while they were walking in Rose Bay and looking at the opponent's son, Patrick, who was then aged about ten, said "Patrick, I think you' ve lost your bike". Patrick said "no I haven't, Daddy". The man said "Yes he has, Daddy and I think I can get it back for you. " He then addressed Patrick directly again and said "You'd like me to get your bike back wouldn't you?" Patrick said "yes". The man said 'well see me here tomorrow and I may be able to give it to you. " The opponent recalls that he was really shaken and took his son away. They went straight home. He told Patrick not to see the man and reinforced a warning previously given not to deal at all with strangers. At home they were unable to locate the bicycle. The opponent said in his statement B4: "I was really worried. I realised that he could just as easily have spoken to Patrick alone. I also realised that I was being given a message. I became fearful for my children. I associated that incident with what Fisk had said to me. I still believed that Fisk was a friend and was trying to help me by acting as a go between with his police friends and to smooth the troubled waters between the police and myself I contacted him and told him what had happened. I recall he said words to the effect 'That's terrible. It shows you how much you need powerful friends like the boys. I'm sure they can stop it.' I remember my feeling of gratitude but I was also confused at the whole incident. It increased my fear but it also made me feel more reliant upon Fisk. The next morning, Patrick came and reported that his bike was back on the verandah. I felt almost sick with fear. Whoever had returned the bike had been physically on the verandah which was just outside our daughter's bedroom alongside a pair of French doors while we were all asleep. " The evidence of this incident was corroborated in an affidavit by Patrick. The opponent's wife in her affidavit said that she did not recall the incident. After it the opponent had a two metre fence built around his house and an elaborate security system installed. He said that prior to this incident he had never been robbed or suffered an intrusion. 12 UNREPORTED JUDGMENTS The second incident was what the opponent referred to in his letter of 4 December 1992 as a vicious assault upon him in the context of which he said he paid the bribe. The assault occurred, according to his chronology, in late February/March 1982. The opponent described it in his statement to the police of 15 February 1992 (B2). He said he was attacked near his office when he was in his car. The assailant stopped him by placing his car in a way that prevented the opponent's progress. The assailant got out of his car. The assailant had in his hand a metal object, about a metre long. He smashed it on the bonnet of the opponent's car and told the opponent to get out. "He then said some things to me, the exact contents I cannot remember but they were threatening at this time, I think I was struggling with his arm that had the metal object. He managed a glancing blow to my right ear and shoulder. He drove off and I went straight home. I told my wife about the incident and I also recollect telling the barrister, Kevin Kelleher, who I had seen just before the incident occurred. I told many people about this incident including Colin Fisk. To the best of my recollection, he said something like 'That's what happens when you make powerful enemies'. I think it was around about this stage that I had worked out that if I didn't go along with them I was in real trouble and if I did go along with them it would only be the beginning. I was scared. I still am scared. I decided that I would have to co operate. " The contemporaneous report of this incident to the opponent's wife and to Mr Kelleher was corroborated by their evidence. The opponent described further warnings he received in the months following in 1982 from Fisk: "You should change your attitude. You are riding for a serious fall and it mightn't be only you that gets hurt. You ring me when you make up your mind to co operate and don't do anything stupid. Remember to give my best to Janet and the kids. " "With kids to worry about you need to worry which I'd choose not whether ''d choose. Your littlest will be great some day. " Subsequently in the period of March and April 1982 the opponent had a meeting with Max Schweinsberg, who had been a client since 1975, and his first meeting with Spence. The opponent revealed little about the meeting with Schweinsberg except that it had been arranged by Fisk and that during the course of it Fisk "spelled out what can transpire between lawyers and police and especially prosecutors in relation to corrupting cases". The opponent's recollection was that the meeting with Spence was arranged by Fisk. The opponent said in his statement B4: "T recall that there was some discussion about how prosecutors and lawyers can assist each other. That subject was couched in terms that did not imply anything of a wrongful nature. I recall that he said that some police did do the wrong thing with particular solicitors. At no stage did he indicate that he was such a person. I recall that I raised the possibility that what he was describing could be seen to be wrong and that there was the likelihood that such schemes could come undone. I clearly recall that he said that they protected themselves by ensuring the people who betrayed the situation would have their 'arms and legs broken or worse' The whole tenor of the conversation was that we were speaking about other people but the impression was that we could be describing or feeling our way towards' a situation in which we would be involved. My recollection is URJ NEW SOUTH WALES BAR ASSOCIATION v MOORE (Sheller JA) 13 that nothing transpired for some time after that meeting. I was grateful for that but Fisk kept asking me what I was going to do. I recall that I used to avoid the issue by replying, 'I don't know'. " In July 1982 the opponent acted for one Mel White on an assault matter. He said that at some time subsequently Fisk said something to him which left the opponent with the impression that Fisk got something out of the White matter as did the arresting officers. WAS THE BRIBE INDUCED BY THREATS? I do not find the opponent's evidence about the connection between Fisk's threats and the payment of the bribe to Sergeant Spence at all convincing. I am not satisfied that Fisk's threats produced in the opponent such a fear of violence to himself or his children that his will to refuse to have any part in bribery was deflected and he felt that he had to choose between bribing the police prosecutor and the threats of violence being carried out. The opponent's evidence, if accepted, showed that Fisk from an early stage in their association told the opponent about what he asserted were the views of influential or powerful friends about the opponent. The threats were not threats by Fisk but accounts by Fisk of what other people, he said, would do. They were expressed in the vaguest terms. If the opponent's evidence is to be accepted his continued association with Fisk is incomprehensible. Here was a man prepared to talk in these terms luring the opponent into meeting people, who, he must have recognised, were dishonourable, to discuss dishonourable schemes. If the incidents were connected with the threats about which Fisk told the opponent, and I am not satisfied they were, they occurred a year or more before the bribe was paid. The fact that the opponent's w;fe did not recall the bicycle incident is some indication that when it occurred it was not regarded as being as serious as the opponent now claims it to have been. The opponent said that Fisk extorted money from him by not repaying loans. This was confirmed by later events to which I will come. The reason for Fisk's ability to extort money from the opponent was not, I think, fully disclosed. During the course of his cross examination the opponent said he was in fear of violence to himself and his family and in fear "of maybe being discredited in some way by Fisk and his friends. " Asked whether the latter would cause him to pay a bribe he said "no". Asked "It was fear of physical violence to yourself or your family that caused you to pay this bribe" he stated "Well, I think it was, yes". The opponent was questioned about the "several personal matters" which he disclosed to Fisk. He agreed these matters involved his personal life and he regretted disclosing them to Fisk. Asked: "Q. Because Mr Fisk held them over you thereafter? A. No, not so much that. It was just that it was a betrayal of confidence in other people - for other people. Q. So that if Fisk had revealed it or revealed one or a number of those matters, you would have had your reputation damaged? A. Yes, but that wasn't the main problem. Q. What was the main problem? A. That other people would have been involved too, to a certain extent. Q. So you gave Fisk information which, if used by him, would damage your reputation? A. Yes. Q. And others' reputations? A. Yes. 14 UNREPORTED JUDGMENTS Q. And would cause, you thought, undue harm to those others? A. Well, to them and to myself, yes. " He was then asked whether that was one of the reasons why he participated at Fisk's request in the bribery of Sergeant Spence to which he replied "TI guess it was playing on my mind, yes". This may be compared with evidence he had given shortly before when he had said that it was not fear of "maybe being discredited in some way by Fisk and his friends" that caused him to pay the bribe but fear of physical violence to himself or his family. "Well, I think it was, yes". Yet it is to this man that the opponent turned when he was asked by a member of the Sydney Swans Football Club to give a view as to what might happen to Mr Smith. I am satisfied that the opponent, who seems to have been remarkably pliable, was amenable to the dishonest and illegal proposals, being at least hinted at, at the meeting with Spence. A person of the opponent's experience must have been only too well aware of what was involved. He expressed no outrage but only his doubts as to whether he should take part. To avoid the risk to his family about which the opponent said he was so concerned he had the obvious choice of refusing to accept further criminal cases involving the police. Asked why he did not choose to do so he answered "Because at that stage I felt I was still in control. " The opponent said that he did not feel vulnerable to any suggestion from Fisk in the early stages and accepted that he could have ceased accepting instructions in matters involving the police. This work, although it involved about thirty percent of his time, did not represent as large a part of his practice in monetary terms. Asked why he did not choose to follow this course he said "Because I felt fairly, I suppose, passionate about it. " He said that when the attack was made upon him that was when he first realised that it was a serious situation and not just a idle situation. "That was when I started to realise that I had got myself into a very deep situation. " He was asked why he did not thereafter cease to accept instructions on any matter involving criminal offences. He answered: "Because I just didn't. I just went on. I suppose I believed that maybe this wasn't going to happen. I don't know what I was actually thinking at the time. Round about then I started to get into a really panic state and I just really can't simply explain anything that I was doing then. " The opponent was asked: "Mr Moore, you would agree that participating in accepting the cases that you believed put you at physical risk is inconsistent with a perception that there was a very great physical risk? The opponent gave the following answer: "No I don't because at any event there were some cases that were continuing that I had started earlier, and, secondly, what I am probably really trying to say is that I wasn't even thinking in a straightforward manner. I was operating from moment to moment. I was afraid. But at that stage I wasn't prepared to give up what I believed in - my profession, at that stage. I gradually came round to that point, but at that stage I wasn't prepared to. I really didn't believe - I didn't know for certain that this was going to happen again or it was going to happen to one of my family. All I can say is, it was a very confused state of mind. I just - all I know is that whole lot of things were going on at once, building up and getting more difficult." URJ NEW SOUTH WALES BAR ASSOCIATION v MOORE (Sheller JA) 15 In the context of this sort of evidence I am not satisfied that it was the very serious threats of violence that he says he perceived to his wife and young family which explain the opponent's proceeding to the point of bribing a police prosecutor. Quite apart from refusing to accept work which was obviously tainted, such as the Smith case, he had ready to hand the opportunity to seek advice from an experienced and long standing friend, Kevin Kelleher. He was only too willing to confide in a rogue like Colin Fisk not only details of his personal life but also details of his clients' affairs. The attack upon him near his office he described shortly after it occurred to his wife, Kelleher, Fisk and "many people". Under threat of violence to his family not only did he continue his association with Fisk and continue to handle matters, notably the Smith case, which carried the taint of corruption but never made any attempt to confide that he was being asked to bribe a police prosecutor in the obvious, but honourable, person, Kelleher, who could have assisted him at the very least with advice. I accept the claimant's submission that the opponent's participation with Fisk in the events he described was voluntary. There are two other matters which, to my mind, point in this direction. OPPONENT'S EARLY EXPERIENCE AS A SOLICITOR The opponent's early experience as a solicitor, which he described in evidence, and the wariness it engendered in him made him a person well able to detect at an early stage the danger, particularly to a practising solicitor, of continuing in association with the likes of Colin Fisk who, the opponent said in his statement of 15 February 1992, he knew was closely associated with various detectives in the Sydney area and who told him on various occasions "that my confrontations with various police in various cases could only lead to trouble and it was better to get on well with them. He also told me at various times, not in an overt threatening way, that it was not uncommon for them, police, to load someone up or set someone up and it was easy to destroy reputations. Fisk continually talked about his powerful friends. " The opponent asks the Court to accept that despite his awareness of the dangers of such associations and despite threats of violence to his wife and young children he continued the association against his will. On the material before the Court I do not accept this. SALE OF THE OPPONENT'S PRACTICE The other particular matter concerns the sale of the opponent's practice. The opponent gave the following evidence to ICAC. "All right. Well then, at the time when these Smith events occurred, the payment of money, what was your state of mind? - Well, my state of mind then? Yes? - Oh I was - I was scared but I was also - it is hard to explain. I was doing something the nature of which I knew and I didn't want to do it but I felt I had to do it. Because of the fear that you felt? - That's right. And did you realise that you were involved in something that could be a repeater? - Oh, I thought it would be, yes. Yes. And was that the reason that you embarked upon the sale of your practice and the selling of your practice and sending back of your practising certificate? - That's right, yes. " In his letter to the claimant of 4 December 1992 he said that realising that, having paid the bribe, he was totally compromised "I sold my practice and let my certificate lapse, left the profession and became a teacher. " During the interview of 27 February 1992 asked why he sold his Sydney practice he said there were a number of factors "but I was extremely stressed and fearful as a result of the Smith case experience, and I believed the only way out of the situation I was in 16 UNREPORTED JUDGMENTS was to cease being a practitioner and I even intended leaving Sydney." However in his statement B4 he said that it was before things really went from bad to worse surrounding the Smith matter that he formed the view, that he had already been considering, that he would have to get out of the law or it would get much worse and certainly not better. "I had been considering that before as I saw it as a means of denying them of any use from [sic] me but as they hadn't made me do anything then, I always clung to the hope that they wouldn't..1 made my decision to dispose of my practice as I recall after Fisk made it apparent that White had paid money to him and the detectives for something in relation to the case. " I interpolate here that if this is true it makes it entirely unlikely that he unwillingly accepted the Smith case or unwillingly continued with it after he knew that it was proposed that he bribe the police prosecutor. Elsewhere he referred to initial discussions concerning the sale of his practice at a period between April 1992 and the Smith matter and discussing it with Kevin Kelleher. Ihave already quoted paral8 of the opponent's affidavit of 8 March 1993 and the unsatisfactory way that sought to deal with the important events surrounding the bribe. In the following paragraph the opponent referred "to the sale by me of my practice in December 1982/February 1983, as referred to in evidence to the ICAC" and annexed a copy of the agreement. The agreement was in the form of a deed said to have been made on 23 February 1983. It recited the revocation of a previous deed dated 22 December 1982. In para19 of his affidavit the opponent went on to say: "I sold my practice in a very short time and at very short notice. I did so because I believed that I had been compromised by the actions I undertook in the circumstances referred to in the previous paragraph and that I would in all likelihood, be even further compromised by the person or persons referred to in earlier statements unless I removed myself from the ability to do such acts in the future. That is why I also did not renew my Solicitor's Practising Certificate. " In para23 of his affidavit the opponent said that he recalled that by the end of 1982 he was very tired and feeling very stressed. "That was when the Greg Smith matter began and when I determined the sale of the practice. I wanted to get out as soon as I could. The pressure being exerted by Fisk purportedly for his police 'powerful friends' was too much for me. I was very worried, depressed and scared. " Asked about the actions to which he was referring in paral9 the opponent said in cross examination: "T was referring to the fact that I had communicated with the Smiths, I think, or I had made the arrangement with Spence to demand the money off Smith. " Asked to identify the circumstances referred to in the previous paragraph the opponent said: "The matter of the prosecution of Gregory Smith. " It is tolerably plain, and the opponent agreed, that the first agreement to sell his practice was executed on 22 December 1982 well before the bribe was paid to Sergeant Spence. I do not accept that the decision to sell the practice was made during the period of ten days after Smith was arrested on 12 December 1982. I am satisfied that the opponent recognised that if in truth he had decided to sell his practice before he became involved with Smith it is unlikely that he would involuntarily have undertaken the defence of Smith and involuntarily engaged in paying a bribe to the police prosecutor. I do not accept the opponent's evidence that the sale of his practice was, to use the language of his letter to the claimant, as a result of a realisation that, having paid the bribe, he was totally URJ NEW SOUTH WALES BAR ASSOCIATION v MOORE (Sheller JA) 17 compromised. The bribe was paid to Spence on 9 February 1983. It may be that the opponent looking at the date appearing on the face of the deed believed that this was the course of events and overlooked that he had entered into an earlier deed on 22 December 1982. However all this may be the bribe was paid at a time when the opponent had already decided to sell his practice and seems to have been well on the way to doing so. SUBSEQUENT EXTORTION BY FISK In his affidavit the opponent describes his movements and occupations after he ceased practice in 1983 to the time he applied for admission to the Bar in 1989. It appears that he continued, at least until 1984, to be a victim of extortion by Fisk. He said in his affidavit: "T remained worried that Fisk who at the beginning of that year (that is to say 1984) took my Valiant sedan car and required me to sign it over to him would re emerge in my life and make trouble again. " The opponent said in his statement B4 that Fisk continued to ask that he "lend" him sums of money, about $50 each time on an irregular basis. Fisk said to him on numerous occasions 'your safety and your family's can't be assured if you're foolish enough to report anything that's happened. The boys have more than enough on you to ruin you and you'll still be in danger." He was never directly threatening but gave the impression that he too was being coerced. "When I referred to the 'Smith' matter, he said that they'd ensure that I was never believed and all I'd do was ruin myself and I'd be in serious danger from them. " The opponent made an arrangement with Fisk whereunder the opponent's unemployment benefits were to be paid into a bank account to which Fisk would have access. After the opponent transferred his car to Fisk he did not hear further from him until the telephone conversation with the opponent's wife in 1991 to which I have referred. CONCLUSION I accept that Colin Fisk exerted unhealthy pressure on the opponent. The opponent was a pliable object for such pressure. I am satisfied that the opponent early recognised the danger of confiding in Fisk not only details of his own affairs but of his clients' affairs. The situation that developed was largely of the opponent's making. The belief that he had control of the situation suggests he was a voluntary participant. The meeting with Spence in March or April 1982 must have made it plain, if it were not plain earlier, that the opponent was being asked to take part in a scheme whereby, in accordance with the evidence he gave to the ICAC, solicitors and police officers got together and "jockeyed up" cases that went before the courts by not handing up antecedents and handing up fabricated material. In that evidence the opponent agreed that he gained the impression from the meeting that Spence was saying to him that unless he co-operated with this illegal and disgraceful scheme whereby they would fabricate material before magistrates, his arms and legs would be broken. He said that he took the threat seriously. Nowhere does the opponent express outrage at such a proposal. The question for him was only should he take part. Again when the specific proposal was raised with the opponent by Fisk to bribe the police prosecutor in Smith's case the opponent's reaction was not one of outrage but "T don't want to be involved in the matter; you can handle it". I have no doubt that at many points of time before February 1983 and particularly when Spence asked the opponent for money, the opponent, if he had wanted, could have rendered the threats, such as they were, ineffective by the simple expedient of speaking to Kelleher. He told us in evidence that he had no 18 UNREPORTED JUDGMENTS confidence in any member of the police force. But he had a great deal of respect for Kelleher whom he knew to be a man of complete integrity and on whose advice he had relied from time to time and was then relying in matters then before the Statutory Committee. Asked why he did not go to Kelleher and tell him about the approach from Spence the opponent said: "Because I believed I just had to go ahead with it and I was very ashamed of what I was doing I didn't even tell my wife. " He said later in his evidence that it could have caused him no harm but it would have probably not given him any help either. Asked did he not think at that time that Kelleher might have known how to assist him thereby avoiding the payment of the bribe the opponent said: "It wasn't the method of disclosure that I was concerned about. It was the method of protection that I was concerned about. I'm afraid to say that as much as I admire Kevin, I don't think he could have done anything about it." I am satisfied that the opponent was well aware that, if he had spoken to Kelleher or indeed other professional people of integrity he knew, the abyss into which he was venturing and of which he was ashamed could have been avoided. In fact the opponent did nothing but comply with Spence's demand for money. In my opinion if there were threats they were not effective at the time the bribe was paid. Further I cannot conceive that a reasonable solicitor with the experience of the opponent was likely to have yielded to the pressure the opponent described by taking the course of bribing a police prosecutor. The payment of the bribe shows the opponent not to be a fit and proper person to practise as a barrister. His unfitness is emphasised by his pliable and inappropriate reaction to suggestions made to him which to any reasonable solicitor of integrity would have been outrageous and out of the question. It is of particular importance that members of the public, like Mr Smith, who resort to the services of solicitors like the opponent, and the courts, such as the Local Court, which dealt with Mr Smith's case, should be confident that a solicitor will not submit to threats of the sort here described and will report them immediately if they are made. I consider it extraordinary that the opponent, with his experience, would have continued to associate with Fisk or attended meetings with police officers arranged by Fisk in the atmosphere of corruption consistently being suggested to him. FALSE STATEMENT AND NON DISCLOSURE The excuse that the opponent advanced for the false statement made to the claimant is that at the time he made the application the fact of paying the bribe was repressed from his recollection. A psychologist, Anthony Nicholas, made two reports dated 4 March 1993 and 23 May 1993, which were tendered, and gave oral evidence in which he said it was 'psychologically plausible" that in 1989 when the opponent was admitted to the Bar, he repressed all the bribery events from his conscious memory. Dr Nicholas said: "Ian Moore's forgetfulness was not likely one of intent but rather due to a psychological reaction (repression from conscious memory) because the events of 82/83 were so traumatic. The matter of plausibility arises because such behaviour is well within the pattern of usual human behaviour and clinically, not at all unusual for trauma victims or persons such as Ian Moore, who have undergone prolonged psychological harassment. " He went on to say that the memories could be brought to consciousness and clearly recalled as the result of some triggering event such as that described by the opponent on his visit to Sydney to attend the readers' course organised by the claimant. URJ NEW SOUTH WALES BAR ASSOCIATION v MOORE (Sheller JA) 19 On analysis this evidence does no more than suggest that if the opponent is believed when he says, if indeed he does say, that he had no consciousness or recollection of the events surrounding the giving of the bribe when he made his application to be admitted to the Bar the repression of the event can be explained in terms of the science of psychology. However the opponent said in his affidavit that while he cannot now remember what he was thinking when he made his application for admission to the Bar, he did know that nearly all the time he was very conscious of the threats that had been made to him. "The threats that played on my mind were primarily physical violence but also that I had been set up in some way. I vividly recalled the threat that my reputation would be ruined." This relates to the statement by Fisk referred to in B4 that the opponent's safety and that of his family could not be assured if he was foolish enough to report anything that had happened. "Anything that had happened" included bribing the police prosecutor. *The boys have more than enough on you to ruin you and you'll still be in danger. n In that statement the opponent said that in 1989 "T decided to return to the law but in Newcastle. I believed that if I was in Newcastle and did not do any criminal law, that I could avoid the attention of Fisk and any of his associates. " This statement by the opponent of his belief in 1989 is inconsistent with the assertion that at that time the events surrounding the giving of the bribe were repressed from his consciousness. Dr Nicholas, in the course of cross examination, accepted that there was an inherent contradiction between the opponent's holding that belief, which involved turning his mind to the very traumatic events which preceded the bribery, when he made his application, and the repression of the conscious memory of those events. I am not satisfied that the opponent's non disclosure and false statement are explained by any want of recollection. It is far more likely that they are explained by the opponent's knowledge that if the bribe were revealed his application for admission would be rejected and other criminal consequences might follow. The opponent's object was to practise at the Bar. He knew he could not achieve this object if he revealed that he had given a bribe to a police prosecutor in 1982. Accordingly he failed to disclose it and falsified the affidavit in support of his application. On these findings there can only be one conclusion and that is that the opponent's name should be removed from the Roll of Barristers. OTHER EVIDENCE RELIED UPON BY THE OPPONENT The opponent relied upon a considerable quantity of affidavit evidence largely about his character but also about his health. An insight into the opponent's health and the consequences of an horrific motor car accident in 1967 when his legs were crushed is given in an affidavit of his brother Colin Marshall Moore of 5 March 1993. He describes the high levels of pain and suffering and consequent psychological impact. The opponent is supported by the affidavit of his elder son, Patrick, who described the effects of further surgery the opponent underwent in 1985. Both he and the opponent's wife describe the life of what is undoubtedly a close and resilient family. Others speak of the opponent's integrity and dedication to the law not merely as a means of earning a living but in the wider canvass of public service. The opponent is a faithful Christian and has involved himself in a number of activities of a public nature with great credit. In the course of his affidavit Mr Kelleher deposed: "T have not the slightest doubt that in view of the monumental pressures he placed himself under for, far too, many years in his practice, the singular and extraordinary nature of the cases that fate dealt him as a practitioner giving him a very real and direct feeling of the fear and reality of a threat and the sheer 20 UNREPORTED JUDGMENTS feeling of powerlessness in the face of threats that this would have engendered in him having seen what he had seen in the course of his extraordinary cases, his 'burning out' and his real knowledge of agony after his car accident, that once he was faced with the actuality of a threat he would easily have 'collapsed' in a way that people outside the events of his life at the time would find difficult to comprehend. " In oral evidence Mr Kelleher translated "collapsed" to mean "been manipulated". In his evidence the opponent agreed that from the time he first made disclosure to Fisk of information about himself and other people Fisk was in a position to embarrass him and cause him harm and do the same to others. The opponent agreed that this situation "continues to this very time". The opponent was driven by fears of such matters to practise in Newcastle rather than Sydney. They are factors which lead me to the conclusion, in addition to the other matters to which I have referred, that the opponent is not a fit and proper person to remain in practice as a barrister. ORDERS I would propose the following orders: 1. That the name of the opponent Ian Marshall Moore be removed from the Roll of Barristers of the Court; 2. That the opponent pay the claimant's costs, including any reserved costs, of these proceedings. Counsel for the Claimant: PR Garling Instructed by: Michael Rosser and Co Counsel for the Opponent: BR Tamberlin QC Instructed by: Marsdens