CITATION: Law Society of New South Wales -v- McKean [1999] NSWADT 55 DIVISION: Legal Services APPLICANT: Law Society of New South Wales RESPONDENT: David Andrew McKean FILE NUMBER: 982001 HEARING DATES: 04/30/1999 SUBMISSIONS CLOSED: 04/30/1999 DATE OF DECISION: 3 August 1999 S Hale Presiding Judicial Member BEFORE: G Foster - Judicial Member B Dyster - Member PRIMARY LEGISLATION: Legal Profession Act 1987 APPLICATION: Dishonest/infamous conduct not in connection with legal practice; Professional misconduct - solicitor - MATTER FOR DECISION: Principal matter Applicant: J Shevlin, solicitor for Law Society of New South Wales REPRESENTATION: Respondent: In person ORDERS: 1. That the name of David Andrew McKean be removed from the Roll of Legal Practitioners in New South Wales. 2. That there be no order as to costs. PROCEEDINGS: 1 The Law Society of New South Wales ("the Society") by information filed on 8th October, 1998, informed the Legal Services Tribunal ("the Tribunal") of a complaint of professional misconduct against David Andrew McKean ("the Solicitor") made on the ground that: "On 4th November, 1994, the Solicitor was convicted by Judge Shadbolt, sitting at the District Court, on each of two (2) counts of Maliciously Inflicting Grievous Bodily Harm with Intent". 2 Particulars of the Solicitor's professional misconduct were set out in the Schedule comprising part of the Information. Those particulars were as follows: 1. On 4th November, 1994, David Andrew McKean was convicted by Judge Shadbolt, sitting at the District Court of New South Wales, Criminal Jurisdiction, on each of two (2) counts of maliciously inflicting grievous bodily harm with intent. 2. The facts outlined in the Judgment of His Honour Judge Shadbolt are that on 28th September, 1992, the Legal Practitioner went to the house of his estranged defacto wife, in contravention of a Domestic Violence Order and following certain threatening telephone calls which he made. The Legal Practitioner broke in and stabbed the defacto and one of the children, a five year old girl. The latter received a chest wound which was one and a half inches long. The Judge found there was no provocation. 3.The Legal Practitioner was sentenced to imprisonment for three (3) years and one (1) day with an additional term of three (3) years, minus one day, making in all, six (6) years. 4. The Legal Practitioner was released on parole on 22nd April, 1996. 3 The Society sought the removal of the Solicitor's name from the Roll of Legal Practitioners. 4 The Society tendered a Certificate of Conviction, pursuant to Section 178 of the Evidence Act, 1995, dated 23rd April, 1999. That Certificate disclosed that the Solicitor, on 18th October, 1994, pleaded guilty to two (2) charges of Malicious Wounding with Intent to do Grievous Bodily Harm and that thereafter, on 4th November, 1994, the Solicitor was sentenced by His Honour Shadbolt DCJ at the Sydney District Court Downing Centre. 5 The Society tendered, without objection, the Affidavit of Raymond John Collins, filed 8th October, 1998. That Affidavit annexed the Sentencing of His Honour Shadbolt DCJ, together with a Transcript of a portion of proceedings before His Honour on 18th October, 1994, and 21st October, 1994. 6 During the course of the Solicitor's sentencing, His Honour Shadbolt DCJ said as follows: "The circumstances which surround the offence are that on 28th September, 1992, the prisoner went to the house of his estranged defacto wife in contravention of a Domestic Violence Order and following certain threatening telephone calls which he made. He broke in and stabbed her and one of her children, a little girl aged five (5). The girl was lucky to survive, receiving as she did a chest wound which was one and a half inches long. There is no provocation. Both victims were in an utterly defenceless position. He claimed to have some alcohol induced non-insane automatism at the time but when it became clear that the previous attacks on his wife and the escalating levels of violence, including the telephone calls, could be demonstrated before the jury to rebutt his defence, and that Dr. Barclay would certainly not support it, he dropped the only possible defence open to him and pleaded guilty. It is difficult to categorise the crimes without using epiteths which reflect equally upon the prisoner as upon the crime. The crime against the little girl, lying in her bed, was one of the worst examples of this type of crime to come into these Courts. The objective seriousness therefore is of a very high order and obviously deserving of a term of years of penal servitude. Two conclusions might be drawn, firstly that his violence is specific to this relationship, and secondly, to have managed for so long without incident indicates some capacity, albeit decreasing, to manage his life without coming into conflict with the criminal law. He has called in his case, Dr. Barclay, Dr. Phillips, Mr. Taylor and Dr. Ellis, and to put as shortly as possible the evidence which they gave, the prisoner is an alcoholic of long standing whose addiction has reached such proportions that Dr. Barclay regards him as suffering from Korsakoff's Syndrome, Dr. Phillips as somewhat less damaged than that but obviously brain damaged, particularly in his frontal lobes and Mr. Phillips that he now has an IQ of 87. For a Solicitor of the Supreme Court of Queensland and the Northern Territory, his fall from the top one percent of intelligence to his present condition is utterly tragic." 7 His Honour later said: "(The child) has however been seriously affected and possibly suffers from Post-Traumatic Stress Syndrome which might take some time to lift. There is no place for the prisoner there under any circumstances. He has, by his violence, forfeited any right to play a part in the upbringing of his daughter, which he had by Ms. Page. That chapter in his life must now be closed." 8 The Solicitor, who represented himself, shortly cross-examined Mr. Collins in relation to the conduct of the investigation by the Society, particularly, as to the delay by the Society, in commencing proceedings before the Tribunal. It is the view of the Tribunal that nothing turns upon that aspect of the matter. 9 Following conclusion of the Society's case, the Solicitor gave evidence which in the view of the Tribunal was frank and open in relation to the circumstances of the offence and his subsequent imprisonment, together with the course of his subsequent treatment and attempts at rehabilitation. 10 The Solicitor tendered no evidence by way of documentary evidence which may have assisted the Tribunal in relation to his past or present medical condition, particularly, his psychiatric condition. During the course of his evidence, the Solicitor referred to long-term and ongoing treatment by a psychiatrist, Dr. Wallace. In the Tribunal's determination, it is significant that the Solicitor did not tender any material from that doctor. 11 The Solicitor conceded that the conduct, which comprised the offences for which he was convicted, constituted professional misconduct. The Solicitor also conceded the proposition that, should the Tribunal make an Order adverse to him remaining on the role, he was aware that at some future date, he could make Application for re-admission. 12 The question for the Tribunal is whether the Solicitor is fit to be held out as a member of the Legal Profession, having regard to his conduct which constituted the offences for which he was convicted. 13 Kenneth Gifford (K. Gifford Legal Profession - Law & Practice in Victoria), has succinctly summarised the position: "A breach of the Criminal Law committed by a Practitioner must usually be regarded as a matter of serious concern., and, dependent upon the circumstances, such conduct may result in the Practitioner being fined, suspended or struck off the Roll. It has been said that "it is misconduct for a Solicitor to fail to comply with a Statute the contravention of which is a criminal offence" (Re: W., a Solicitor) (unreported 16th December, 1948, Supreme Court of Victoria, Herring CJ))....the true position is that it is not every offence against the law which exposes the Practitioner to the operation of the disciplinary process, and the question in every case is whether the offence concerned "is such an offence as makes it unfit that he should remain a member of this strictly honourable profession." (Re Weare [1893] 2QB439 at 445." 14 A similar question was dealt with by the High Court of Australia in Ziems -v- The Prothonotary of The Supreme Court of New South Wales (1957) 97CLR279. In that decision, Kitto J. made the following statement (at Page 298): "Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions or some kinds of offences, instant demonstration 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 workings 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." 15 The Tribunal stresses that it is not simply the evidence of the conviction upon which it relies. It is the view of the Tribunal that it is the nature of the conduct which comprised the offence for which the Solicitor was convicted that is the cogent and forceful ground upon which this Tribunal must make its determination. In Ziems -v- The Prothonotary of The Supreme Court of New South Wales (Supra) at Page 289, Fullagar J. said: "It appears to have been thought by the Supreme Court that it was not permissible to look behind "the plain facts that a member of the Bar was convicted of manslaughter by a jury and was sentenced to a term of imprisonment." I have already stated my inability to accept this view. It is not in accord with that which was expressed by Jordan CJ speaking for himself and Halse Rogers J. and Roper J. (as he then was) in the unreported case of in Re Wishart......Jordan CJ said: "It must be remembered that in the present proceedings, there is no question of punishing the Respondent. He has been convicted and what was regarded as the appropriate punishment has already been inflicted. The question for this Court is whether he is fit to remain on the Roll of Solicitors. The fact that he has been convicted is of secondary importance. We are more concerned with the facts of the particular case." 16 And again, in the same decision at Page 302, Taylor J. stated: "I find it impossible to ascent to the proposition that proof of the fact of the Appellant's conviction and sentence, without more, made it inevitable that an Order should be made directing that his name be removed from the Roll of Barristers., the vital question in my opinion, in such cases, is not whether a Practitioner has been convicted of an offence against the Criminal Law, but whether his conduct has been such as to show that he is unfit to remain a member of his profession." 17 Section 127(1)(b) of the Legal Profession Act 1987 states as follows: (1) For the purposes of this part, professional misconduct includes:...... (b)conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a 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,..... 18 As has been previously stated, the question for the Tribunal is whether the Solicitor is fit to be held out as a member of the Legal Profession. We have reached the firm conclusion that he is not. The Tribunal must order that his name be removed from the Roll. 19 THE TRIBUNAL ORDERS: 1.That the name of DAVID ANDREW McKEAN be removed from the Roll of Legal Practitioners in New South Wales. 2.That there be no Order as to Costs. Last Updated: 08/05/1999 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.