Law Society of New South Wales v Hill [2001] NSWADT 41

CITATION: Law Society of New South Wales v Hill [2001] NSWADT 41 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of NSW RESPONDENT Justin Birk Hill FILE NUMBER: 002006 HEARING DATES: 08/11/00 SUBMISSIONS CLOSED: 11/08/2000 DATE OF DECISION: 03/19/2001

BEFORE: Needham CA - (Deputy President); Clisdell RJ - Judicial Member; Costigan M - Member APPLICATION: Professional Misconduct - conviction for indictable offences MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 Council of the New South Wales Bar Association v Thomas Edward Harrison No 40 of 1996 CASES CITED: New South Wales Bar Association v Mitry [1999] NSWADT 75 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 APPLICANT REPRESENTATION: D Barton, solicitor RESPONDENT No Appearance ORDERS: 1. The Respondent's name be removed from the roll of Legal Practitioners.; 2. The Respondent pay the costs of the Law Society of and incidental to the proceedings, in an amount not exceeding $1000.00.

1 In this application the Council of the Law Society of News South Wales seeks an order that Justin Birk Hill, a person convicted of three indictable offences, be removed from the roll of legal practitioners. The Council also seeks an order for the costs of and incidental to these proceedings. 2 The application was heard on 8 November 2000. There was no appearance for Mr. Justin Birk Hill who was held on home detention in South Australia. In a letter dated 9 October 2000 from Mr Hill to the Tribunal, paragraph 4, Mr Hill stated: "I accept the likelihood of a successful application by the Law Society for an order for the removal of my name from the roll of legal practitioners. As such I do not oppose such an application." 3 By an Amended Information filed 8 November 2000 it is alleged that Justin Birk Hill was guilty of professional misconduct on the grounds that he: (i) Took part in the production of methylamphetamine contrary to section 32(1)(b) of the Controlled Substances Act, 1984 (SA) (ii) Conspired to produce a prohibited substance contrary to section 32(1)(a) of the Controlled Substances Act, 1984 (SA) and contrary to the Common Law. (iii) Knowingly made a false statement in an application for a passport contrary to section 10(1)(a) of the Passports Act, 1938. 4 Particulars of these grounds are contained in the first schedule to the Amended Information. They allege that Mr Hill was convicted of two offences corresponding to grounds (i) and (ii) and sentenced to 8 years' imprisonment by the Supreme Court of South Australia. The particulars further allege that Mr Hill was convicted and fined by the Magistrates Court of South Australia pursuant to a plea of guilty to an offence corresponding to ground (iii). The offence under the Passports Act was an indictable offence which was tried summarily. 5 In support of the Amended Information, the Council relied on the affidavits of Raymond John Collins filed 8 June 2000 and Jean Sayer filed 25 September 2000. 6 The affidavit of Mr. Collins shows that after one mistrial, Mr Hill was tried for the two drug offences which are described in the Amended Information in the Supreme Court of South Australia, commencing 24 June 1996. He was represented by Ms. A Vanstone QC and Mr. C Caldicott in the trial which lasted for 26 days. The jury returned majority verdicts of guilty on both counts. Mr Justice Prior in remarks on sentencing on 13 August 1996 said: "The evidence before the jury is that you first met the other persons named in the information in Queensland in February 1993. They were then involved in the production of amphetamine which was transferred to a property leased by you at Yarramalong in New South Wales. The proceeds from the production of amphetamine there were used to finance the purchase a property at Kersbrook where the amphetamine, the subject of the first charge was produced. You attended to the purchase of the property at Kersbrook, bought some of the materials used for the production of amphetamine there, and took away most of the cut amphetamine during the period of time referred to in the information… I accept that it is difficult to describe your role as minor. I agree with what the prosecution has put to me this morning, that I should proceed to sentence you more upon the basis that you were an equal partner in what was happening there than anything else… This was a large-scale illegal drug operation. The quantities of amphetamine produced were said to have yielded some $600,000. Parliament has imposed heavy penalties for offences of this kind. Offences are more serious when the quantity of drugs produced is large." 7 His Honour sentenced Mr Hill to 8 years' imprisonment with a non-parole period of 5 years and ordered forfeiture of two revolvers which His Honour found belonged to him and had been seized by police. A forfeiture order was also made in respect of the drugs found at the Kersbrook property. 8 An appeal by the Mr Hill against those convictions and sentence was dismissed by the Court of Criminal Appeal of South Australia on 24 December 1996. On 4 September 1997 the High Court refused special leave to appeal. 9 In relation to the alleged ground of professional misconduct concerning a passport application, the evidence shows that on 22 May 1997 Mr Hill was convicted by a Magistrate consequent upon a plea of guilty and fined $350.00 plus fees and costs. He was convicted upon an Information dated 21 April 1995 which alleged: "On about the 20th day of May 1993 at Gosford in the State of New South Wales [Justin Birk Hill] did knowingly make false statement in writing for the purpose of obtaining an Australian Passport; contrary to section 10(1)(a) of the Passports Act, 1938". 10 The particulars to the Information stated: "The Defendant completed an Australian Passport Application in the name of Robert Patrick Ryan which bore the photograph of the Defendant. He signed the Application in the name Robert Patrick Ryan declaring that the statements made in the said Application were true and correct:". 11 The Affidavit of Ms. Sayer annexes copies of documents received by her from the New South Wales Crime Commission. They include a passport application and proof of identity declaration which appear to correspond with those described in the Information and Particulars to the Information. The proof of identity declaration is made by Justin Birk Hill, declaring that he has known the applicant for the passport, Robert Patrick Ryan, for 10 years. Mr Hill also, it appears from those documents, signed the reverse of the photograph attached to the Passport application stating that it was a true photograph of Robert Patrick Ryan. 12 Mr. Barton for the Law Society submits that Robert Patrick Ryan is a false name for Mr Hill and that the photograph attached to the passport application is a photograph of Mr Hill. The evidence filed on the application did not go this far. Mr Barton indicated from the bar table that oral evidence was available to be given to establish that the photograph depicted Mr Hill. In light of the opinion we formed based on the two drug offences, the Tribunal did not consider it was necessary to receive this further evidence. 13 Mr Hill had filed a Reply under cover of his letter of 9 October 2000 to which reference is made above. The Reply was in answer to the Council's Information filed 8 June 2000. After that Information was amended to include further particulars, no further Reply was filed by the legal practitioner. The Tribunal considers that it is appropriate to treats his Reply as a Reply to the Amended Information also. With the consent of the Council, in view of Mr Hill's probable inability to attend the hearing in person, the Tribunal has taken Mr Hill's letter into account in considering this application. 14 In his Reply Mr Hill says that he ceased practice as a full time solicitor in about 1989/1990 and has not practised as a solicitor since about 1992. Paragraph 7 says, apparently referring to the two drug offences: "I acknowledge the criminality and stupidity of my behavior and the manner in which such behavior has brought the legal profession into disrepute. I apologise unreservedly to the Tribunal, the profession and the Community." 15 The Reply states that Mr Hill pleaded not guilty to the charges of drug offences because he disputed the majority of the evidence of the prosecution witnesses and he continues to dispute that evidence. He says however "by stating this I do not resile from what I have states in paragraph 7, nor the fact I was found guilty." 16 In relation to the cancellation of his practising certificate the Reply states: "I accepted that it was both correct and in the best interests of the legal profession and the Community to refrain from any pursuit of employment as a solicitor." 17 The Reply pleads that the offences for which Mr Hill was imprisoned were unrelated to his practice as a solicitor. Mr Hill alleges that he was not in practice at that time and did not misuse his position as a solicitor as a factor in the commission of the offences. 18 The remainder of the Reply asserts that Mr Hill has been a "model prisoner", has undertaken courses of study whilst in prison and has made a considerable change in the direction in his life. He requests that no order for costs be made against him in view of his impecuniosity. 19 The assertions in the Reply are not sworn statements, however for the purpose of determining this application, the Tribunal has assumed that the contents of the letter and Reply, to the extent they contain matters of fact, are true. 20 Section 127(1)(b) of the Legal Profession Act 1987 defines professional misconduct to include: "conduct ... occurring otherwise than in connection with the practice of law which, if established, would justify a finding that the legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners." 21 This provision and relevant authorities in which it has been considered are referred to in Council of the New South Wales Bar Association v Thomas Edward Harrison No 40 of 1996 in the Legal Services Tribunal of New South Wales. That was a case where the barrister had failed to lodge successive tax returns. 22 Clearly a breach of the criminal law committed by a legal practitioner will usually be a matter of serious concern. The question is whether the offence is such as to show that the practitioner is not of good fame and character, or is not a fit and proper person to remain a member of the legal profession. The mere fact of conviction may be sufficient to show professional misconduct, although the circumstances in which the offence was committed are relevant. Where a practitioner who has been convicted after a plea of guilty disputes that the offence was committed, the Tribunal may consider the circumstances to satisfy itself that the plea was properly entered: New South Wales Bar Association v Mitry [1999] NSWADT 75. 23 In Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Kitto J at page 298 said: "It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstrations of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar and the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar, and to draw the dividing line is by no means always an easy task." 24 In the present case Mr Hill was well and truly over the line. 25 It is, to say the least, highly regrettable that a legal practitioner should become involved in criminal activities of this kind, involving the production of drugs on a large scale. Criminal conduct by a member of the legal profession reflects not only upon the offender, but has the potential to prejudice the reputation of the profession as a whole. Although Mr Hill says he accepts that his conduct was wrong, we have seen no evidence of genuine contrition. His criminal conduct shows that he is not of good character and has removed his good reputation among those who would know him. His misconduct also shows that he is not a fit and proper person to remain on the roll of legal practitioners. 26 The Tribunal readily accedes to the Council's application on the basis of the drug related offences quite irrespective of the other conviction. 27 The Tribunal is satisfied that Mr Hill should be removed from the roll of legal practitioners. 28 The Tribunal does not accede to the Respondent's request that no costs order be made. The practitioner has filed no evidence demonstrating his financial impecuniosity. However the concessions made by the Mr Hill and his failure to contest this application have perhaps produced some efficiencies in the hearing of the complaint against him. We are of the view that the respondent should pay the costs of the Council not acceding an amount of $1000.00. 29 Accordingly we make the following orders. 1. The Respondent's name be removed from the roll of Legal Practitioners. 2. The Respondent pay the costs of the Law Society of and incidental to the proceedings, in an amount not exceeding $1000.00.