New South Wales Court of Appeal CITATION : COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v A SOLICITOR [2002] NSWCA 62 revised - 12/03/2002 FILE NUMBER(S) : CA 40361/01 HEARING DATE(S) : 6th November 2001 JUDGMENT DATE : 12 March 2002 PARTIES : The Council of the Law Society of New South Wales - Claimant A Solicitor - Opponent JUDGMENT OF : Mason P at 1; Sheller JA at 2; Giles JA at 117 LOWER COURT JURISDICTION : N/A LOWER COURT - FILE NUMBER(S) : LOWER COURT - JUDICIAL OFFICER : COUNSEL : J E Griffiths SC - Claimant N E Abadee - Opponent SOLICITORS : Law Society of NSW - Claimant CATCHWORDS : LEGAL PRACTITIONERS - convictions of indecent assaults - obligation to inform - duty of candour - professional misconduct -"fit and proper person" - Legal Profession Act 1987, s48K(5) - removal from Roll of Legal Practitioners Children (Criminal Proceedings) Act 1987 LEGISLATION CITED : Crimes Act 1900 Legal Profession Act 1987 Briginshaw v Briginshaw (1938) 60 CLR 336 Ex parte Attorney General (Cth) re A Barrister and Solicitor (1972) 20 FLR 234 Ex parte Brounsall (1778) 2 Cowp 829; 98 ER 135 in In Re Weare; re the Solicitors Act 1888 [1893] 2 QB 439 In re a Practitioner (1984) 34 SASR 590 In re H (a Barrister) (1981) 1 WLR Johns v Law Society of New South Wales (1982) 2 NSWLR 1 Law Society of New South Wales v Foreman (1994) 34 NSWLR 404 New South Wales Bar Association v Cummins [2001] NSWCA 284 CASES CITED: New South Wales Bar Association v Evatt (1968) 117 CLR 177 New South Wales Bar Association v Hamman [1999] NSWCA 404 New South Wales Bar Association v Livesey (1982) 2 NSWLR 231 New South Wales Bar Association v Somosi [2001] NSWCA 285 Prothonotary of the Supreme Court of New South Wales v Chapman (unreported) 14 December 1992 Prothonotary of the Supreme Court of New South Wales v Del Castillo [2001] NSWCA 75 Prothonotary of the Supreme Court of New South Wales v Ritchard (unreported) Court of Appeal, 31 July 1987 Re a Solicitor (1956) 1 WLR 1312 Re Evatt ex parte New South Wales Bar Association (1967) 67 SR (NSW) 236 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 DECISION : 1 Declare that the opponent is guilty of professional misconduct in that; (a) the opponent engaged in conduct for which he was, on 20 February 1998, convicted by the Sutherland Local Court of four counts of aggravated indecent assault on person under the age of 16 years contrary to s61M of the Crimes Act 1900 (NSW); (b) prior to serving his affidavit sworn on 31 August 2001 in these proceedings the opponent failed to disclose to the claimant that he had been convicted on 7 November 2000 of further charges of aggravated indecent assault on a person under the age of 16 years contrary to s61M of the Crimes Act 1900 (NSW) notwithstanding that at the time of that conviction the opponent was aware that the claimant was actively considering whether disciplinary action should be taken against the opponent in respect of previous similar convictions as set out in the claimant's letter dated 9 October 2000; 2 Declare that in the light of the matters in para 1 above the opponent is not a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales; 3 Order that the name of the opponent be removed from the Roll of Legal Practitioners; 4 Order that the opponent pay the claimant's costs of these proceedings. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40361/01 MASON P SHELLER JA GILES JA THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v A SOLICITOR The Council of the Law Society sought declarations that the opponent, a solicitor, was guilty of professional misconduct and was not a fit and proper person to be a legal practitioner and, on the basis of the declarations, an order that the opponent be removed from the Roll of Legal Practitioners. On 20 February 1998, the solicitor was convicted under s61M of the Crimes Act 1900 of four counts of aggravated indecent assault. The convictions arose from occasions on which he had indecently assaulted the 10 and 12 year old daughters of his partner. On 7 November 2000, while the claimant was considering its response to these convictions, the opponent was convicted of further charges of aggravated indecent assault. The opponent did not disclose the later charges or convictions to the claimant. On appeal the opponent was acquitted of these further convictions. The claimant submitted that the conduct underlying the convictions manifested qualities of character incompatible with the conduct of legal practice. The claimant argued further that the solicitor's actions in seeking employment without revealing his convictions, contrary to the provisions of s48K(5) of the Legal Profession Act 1987 (the Act), suggested a fundamental lack of appreciation on his part of his duties as a practitioner. Finally, the claimant contended that the opponent's failure to disclose the further convictions indicated a breach of a duty of candour owed to the claimant in the circumstances. The opponent submitted that convictions of a sexual nature have not generally been thought to amount to professional misconduct, nor, in all the circumstances, did his conduct demonstrate that he was not a fit and proper person to be a legal practitioner. Evidence was introduced to show that, apart from the incidents giving rise to the convictions, the opponent was of good character and to demonstrate his contrition in relation to the offences. The opponent claimed that, as a matter of construction, there was no breach of s48K(5) of the Act. It was submitted that he had no obligation to inform the claimant of the later convictions because he knew the allegations were false and he had immediately lodged an all grounds appeal. HELD (per Sheller JA, Mason P and Giles JA agreeing): 1. The supervisory jurisdiction of the Court must be exercised to protect the community and to ensure that persons not fit to practise as solicitors are not held out by the Court to be so. There is no question of using the occasion to punish the opponent. The legal profession cannot permit the public to gain the impression that it condones or tolerates or belittles the committing by its members of serious crimes. 2. The claimant carries the civil onus of establishing the professional misconduct alleged against the opponent. In this case there was no dispute about the primary facts. The dispute was about how the opponent's behaviour should be characterised. Even so, the degree of satisfaction required reflects the gravity of the charges against him. 3. The opponent had breached s48K(5) of the Act. This provision requires that a person convicted of an indictable offence must not seek to become an associate of a barrister or solicitor unless the person first informs the practitioner of the conviction. This is regardless of the fact that the person may have a valid practising certificate. 4. The phrase "professional misconduct" may extend beyond acts closely connected with actual practice, even though not occurring in the course of such practice, to conduct outside the course of such practice which manifests the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice: see New South Wales Bar Association v Cummins [2001] NSWCA 284. 5. The opponent's submissions to the claimant on the issue of professional misconduct relied in part on the factual assertion that the 1997 offences were isolated offences. Not only did the opponent fail to disclose that he had been charged with further offences in 2000, but he deliberately gave the impression that his character was "without further circumstances showing defect of fame and character". His failure to disclose the further convictions was a breach of his duty of candour to the claimant. 6. There are a number of relevant differences between this case and Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279. There can be no doubt that the opponent was guilty of the four offences and was properly convicted. The offences, while not the most serious examples of indecent assaults, were still very serious and involved serious breaches of trust. For these reasons the offences for which the opponent was convicted are rightly regarded by the community as extremely serious. 7. The breaches of trust involved in the offences undermined the previous good character of the opponent. A solicitor is required to be faithful to the oath of office, the courts, fellow practitioners and clients, and as such considerable trust is placed in him or her. 8. Accordingly, the opponent was guilty of professional misconduct in respect of the conduct underlying the convictions, and the failure to disclose the further convictions to the claimant. In light of the opponent's ignorance of s48K(5), he was not guilty of professional misconduct as charged in seeking or obtaining employment as a solicitor without disclosing that he had been convicted of an indictable offence contrary to the provisions of s48K(5). 9. The opponent was not a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales. His name should be removed from the Roll of Legal Practitioners. Per Giles JA: 1. The opponent's acceptance in cross-examination that it would have been better to make disclosure of the convictions was not a subjective recognition of breach of an obligation of candour. 2. The November 2000 convictions were relevant to the claimant's decisions. The opponent's appeal did not take away the fact that he stood convicted until his appeals were successful. While the convictions stood he could not put himself forward as without further blemish on his fame and character. 3. Error of judgment does not mean unfitness to practice. However, the opponent's failure to disclose the later convictions was more than an error of judgment. He made a conscious decision not to disclose the convictions. The opponent succumbed to the temptation of keeping from the claimant something clearly relevant to its decisions because he feared that disclosure would be against his interests. This was misleading and incompatible with the necessary attributes of a legal practitioner. Legislation: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Legal Profession Act 1987 Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Ex parte Attorney General (Cth) re A Barrister and Solicitor (1972) 20 FLR 234 Ex parte Brounsall (1778) 2 Cowp 829; 98 ER 135 In Re Weare; re the Solicitors Act 1888 [1893] 2 QB 439 In re a Practitioner (1984) 34 SASR 590 In re H (a Barrister) (1981) 1 WLR Johns v Law Society of New South Wales (1982) 2 NSWLR 1 Law Society of New South Wales v Foreman (1994) 34 NSWLR 404 New South Wales Bar Association v Cummins [2001] NSWCA 284 New South Wales Bar Association v Evatt (1968) 117 CLR 177 New South Wales Bar Association v Hamman [1999] NSWCA 404 New South Wales Bar Association v Livesey (1982) 2 NSWLR 231 New South Wales Bar Association v Somosi [2001] NSWCA 285 Prothonotary of the Supreme Court of New South Wales v Chapman (unreported) 14 December 1992 Prothonotary of the Supreme Court of New South Wales v Del Castillo [2001] NSWCA 75 Prothonotary of the Supreme Court of New South Wales v Ritchard (unreported) Court of Appeal, 31 July 1987 Re a Solicitor (1956) 1 WLR 1312 Re Evatt ex parte New South Wales Bar Association (1967) 67 SR (NSW) 236 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 ORDERS 1. Declare that the opponent is guilty of professional misconduct in that: (a) the opponent engaged in conduct for which he was, on 20 February 1998, convicted by the Sutherland Local Court of four counts of aggravated indecent assault on person under the age of 16 years contrary to s61M of the Crimes Act 1900 (NSW); (b) prior to serving his affidavit sworn on 31 August 2001 in these proceedings the opponent failed to disclose to the claimant that he had been convicted on 7 November 2000 of further charges of aggravated indecent assault on a person under the age of 16 years contrary to s61M of the Crimes Act 1900 (NSW) notwithstanding that at the time of that conviction the opponent was aware that the claimant was actively considering whether disciplinary action should be taken against the opponent in respect of previous similar convictions as set out in the claimant's letter dated 9 October 2000. 2. Declare that in the light of the matters in para 1 above the opponent is not a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales. 3. Order that the name of the opponent be removed from the Roll of Legal Practitioners. 4. Order that the opponent pay the claimant's costs of these proceedings. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40361/01 MASON P SHELLER JA GILES JA Tuesday, 12 March 2002 THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v A SOLICITOR Judgment 1 MASON P: I agree with Sheller JA. 2 SHELLER JA Introduction On 19 June 1997 the solicitor, to whom I shall refer as the opponent, was charged with four counts of aggravated indecent assault under s61M of the Crimes Act 1900. The victims were under the age of 16 years. The opponent's name and the names of his family of whom two were the victims are not stated in these reasons for judgment to ensure compliance with s11 of the Children (Criminal Proceedings) Act 1987. Section 11, so far as presently material, provides: "(1) The name of any child - (a) who appears as a witness before a court in any criminal proceedings; (b) to whom any criminal proceedings relate; or (c) who is mentioned or otherwise involved in any criminal proceedings, shall not be published or broadcast, whether before or after the proceedings are disposed of. …. (5) For the purposes of this section, a reference to a child includes a reference to any information, picture or other material that identifies the child or is likely to lead to the identification of the child." 3 On 20 February 1998 the opponent pleaded guilty to all four charges and was sentenced to three months imprisonment. There were two victims to whom I shall refer as L and R. One of the assaults was on L and occurred between 2 and 9 May 1997, the other three assaults were on R. The first occurred between 1 and 30 April, the second on 2 May and the third on 7 May 1997. In each case the circumstances of aggravation were that at the time of the offence the victim was aged under the age of 16 years, L being 10 and R being 12 at the time of the assaults. The agreed statement of facts on which the opponent was sentenced on the four charges were as follows: "The defendant has been involved in a relationship with the victim's mother [B] for a period of about three years. The victims, [R] and [L], live with their sister [E] [a] 9 year old and brother [A] [a] 4 year old at the grandparents home at [omitted]. Between the 1 April 1997 and the 30 April 1997 the defendant entered [R's] bedroom and indecently assaulted her by rubbing her back and then rubbing her buttocks with his hands. On the 2 May 1997 the defendant entered [R's] bedroom and indecently assaulted her by pulling her track suit pants and underpants down. The defendant heard the mother and left the room. On the 7 May 1997 the defendant entered [R's] bedroom and indecently assaulted her by pulling her pyjama pants down and lifting her top up. The defendant touched the outside of the vagina and pulled up the victim's pants and left the room. Between the 2 and the 9 May 1997 the defendant entered [L's] bedroom which she shares with the victim [R]. The defendant sat on [L's] bed and placed his hands on her stomach. The defendant rubbed the victim's stomach for about 15 seconds and then pulled her pyjama pants down, but states he did not touch the victim. The victim told the defendant to go downstairs and he left the room. About 4.00 pm on Thursday 19 June 1997 the defendant attended Sutherland Police Station in the presence of his solicitor where he was interviewed electronically. The defendant made admissions to all offences however denied attempting to place his finger inside the victim [R's] vagina, stating he put his left hand on her left thigh and his index finger rested on her vagina. When the allegations were put to the defendant, he provided detailed admissions. At the conclusion of the interview the defendant explained his actions stating that he gave in to temptation and curiosity, finding it exciting and somewhat fascinating. The defendant was charged with the matters now before the court." 4 In a record of interview which took place on 19 June 1997, the opponent said that he knew he had done the wrong thing. He said: "I was very close to the children. I think I found some mysterious interest or excitement, or maybe it was just curiosity, and I gave in to a temptation, I think also because the children trusted me. Even that doesn't explain anything that was, there was some excitement or interest in it and I gave in. I didn't, I suppose, take it very seriously, at least when it started, certainly not that first time with [R]. I suppose I'm probably hiding from the fact that, or not wanting to admit the fact that, I found some fascination with it. I want to talk to someone about this, and I'd rather not say any more about it here." He agreed that his role at the time was one of a father to the children. 5 The opponent appealed against the severity of the sentence. His Honour Judge Luland heard the appeal, quashed the Magistrate's order imposing a prison sentence and in lieu thereof deferred passing sentence in each case on condition that the opponent enter into a recognizance to be of good behaviour for a period of three years and come up for sentence within that period if called upon. No conditions were imposed on the recognizances. His Honour said this in his reasons for judgment: "The factual circumstances are that he had a relationship with the two victims' mother during the period of the offences and indeed continues to have a relationship with her. At the time of the offences where I accept that his life was greatly disturbed by factors of employment being taken from him, due to a redundancy, and perhaps more stressing a very difficult period where his father was dying from a very awful disease. [The opponent] is 36 years of age and a solicitor by profession. In normal circumstances one would say a person whose character would expected to be exceptionally high, and he would be well aware of the seriousness of conduct such as that which he has committed. Now that is easily said of course but one does not know the frailty of human beings, particularly when they go through very stressful periods in their life. This conduct that he engaged in seems quite obviously totally out of character for the appellant. The assaults upon the children were not in my view the most serious examples of indecent assaults that one unfortunately sees all too often in these courts. They were in the main incidences [sic] of him pulling the children's pants down when they were in their bedroom. With the exception of one offence where he placed his hand on the stomach area of one of the children and his finger touched her vagina. To the police he recognised the seriousness of his conduct and readily accepted it. He also, perhaps understandably was unable to understand himself why he did what he did and that again is probably part and parcel of it being so out of character, because all of the evidence before me is that he is otherwise a very reputable person, and has always been considered so by the children's mother, her parents and also her children. The effect of his offending was readily admitted by him and indeed he brought two offences to light himself with the police officers, two of those for which he is now before the Court. He had pleaded guilty, and pleaded guilty from the first opportunity. Those matters in themselves show true contrition but what I believe shows even greater contrition and understanding by him, is his conduct after the events themselves, that is his ready involvement with counselling and assistance from Professor McConaghy [Professor Neil McConaghy, a specialist psychiatrist]. He has not denied the matters at any time. He has accepted the matters, and more so he has done all he can to place himself in a position where he ensures it does not happen again, that is to gain an understanding or attempt to gain an understanding of how and why this all happened. He obviously is forgiven by the children's mother, she is here today in support of him, as is her father. There is material before me where the children themselves seem to have suffered no psychological harm, although one readily says that recognising that sometimes events such as this in children's lives does have a belated impact upon them in time to come. One never knows what is likely in that regard and one cannot overlook the possibility of it, but on present material before me, the children do not seem to be psychologically disadvantaged as a result of this. In fact they, I'm told and I accept, want the continuance of [the opponent] in their life as the father figure that he was before this all occurred. Everybody seems to be supportive of him. The counsellors are supportive of him, the psychiatrists are supportive of him, and more importantly the family itself, who are after all the victims of this crime, continue to be supportive of him. Those subjective elements of this offence weigh very heavily in my mind that it is an exceptional case. I do take account of what is said by the Court of Criminal Appeal of course, as I must, that normally offences such as these, would carry and should carry a custodial sentence, but my hands are not completely tied in that regard and I do consider this to be one of those exceptional cases. It is not that [the opponent] is going unpunished. I accept that a punishment has already flowed in the sense that he's lost what was no doubt a very important part of his life, his involvement in the Army Reserve, that he no doubt put a lot of time and effort into to build up a career in that reserve. He has now lost that as a result of this matter. He of course carries the shame of his conduct and he has to carry that shame with him in the eyes of those upon whom he committed the offence. He will have to overcome that as best he can but they want him in their lives, and he wants to be in their lives, but it will be in his mind at all times that he has had to appear before this Court in respect of these matters. I do regard the offences as isolated, even though there were four offences. I regard them to be isolated offences, and I accept Professor McConaghy when he suggested there is a great likelihood that such behaviour would never occur again." Complaint and information in the Administrative Decisions Tribunal 6 On 2 July 1998 the Law Society of New South Wales, to which together with its Council, the complainant, I shall refer as the claimant, wrote to the opponent stating that it had resolved to institute a complaint against him pursuant to s135 of the Legal Profession Act 1987. The details of the complaint were that the opponent was convicted on 20 February 1998 on four counts of commit an act of aggravated indecency with a person under the age of 16 years. Attention was drawn to s127(1)(b) of the Legal Profession Act and a written response was called for. 7 On 14 July 1998 the opponent's solicitor wrote to the claimant making it clear, in the view of the claimant, that the opponent had not disclosed his convictions of indictable offences to a named firm of solicitors when he obtained employment with them. On 1 October 1998 the claimant referred to the earlier letter from the opponent's solicitor and drew attention to s48K(5) of the Legal Profession Act. The letter stated that it would be necessary for the Professional Conduct Committee to determine whether a prosecution under s54 of the Legal Profession Act should be instituted. After seeing this letter the opponent ceased locum work. He has not since worked as a solicitor. 8 On 14 October 1998 the opponent's solicitors, Stewart Cuddy & Mockler, wrote saying that their client was not aware of the provisions of s48K. The letter said: "My client raised this issue with counsel representing him in the criminal proceedings. Both junior and senior counsel stated that they were not aware of any obligation to inform potential employers of the convictions, unless specifically asked. It was my client's genuine belief that the only issue in relation to his continued practice of law was the question of his fitness to practice. I note that s48K was enacted subsequent to my client completing his practical legal training course at the College of Law and entering practice." The writer stated that the opponent would not take any steps in future which might be in breach of s48K and submitted that a prosecution was quite inappropriate. The solicitors also referred to s11 of the Children (Criminal Proceedings) Act . The letter expressed concerns about the privacy of the children who were the victims of the offences or relations of those victims. 9 On 25 January 1999 the claimant wrote again to the opponent's solicitor confirming that it had initiated a complaint against the opponent for failing to disclose to his then employer, a firm of solicitors, that he had been convicted of an indictable offence. There were thus two complaints on foot. Written submissions were called for and furnished by the opponent's solicitors in a letter of 23 September 1999. 10 On 4 November 1999 the claimant's Professional Conduct Committee resolved that the committee was satisfied there was a reasonable likelihood the opponent would be found guilty by the tribunal of professional misconduct and that proceedings be instituted in the tribunal pursuant to s155(2) of the Legal Profession Act. The professional misconduct was specified as the conviction of four counts of committing an aggravated act of indecency on a person under the age of 16 years and failure to inform his employer of the convictions. The order sought was that the opponent's name be removed from the Roll of Legal Practitioners. The opponent's solicitors were advised of this by a letter dated 11 November 1999. On 3 December 1999 the claimant laid an information in the Administrative Decisions Tribunal, Legal Services Division (ADT) alleging professional misconduct. 11 On 8 April 2000 the opponent married B, the mother of the victims of the four assaults. The four children went to live with them from 15 April 2000. On 12 May 2000 the opponent was arrested and charged with two counts of aggravated indecent assault on R. On 22 May 2000 the opponent was charged with two further counts of aggravated indecent assault on R. I shall refer to these four charges as "the later charges". All four assaults were alleged to have occurred between 9 and 9.30 am on 28 April 2000. 12 On 9 October 2000 the ADT decided that it had no jurisdiction to entertain the claimant's information or make any order including any costs order because of the claimant's failure to comply with the terms of s171J of the Legal Profession Act. Proceedings in the Court of Appeal 13 On 9 October 2000 the claimant wrote to the opponent referring to the ADT's decision and stating that the matter would be considered by the Professional Conduct Committee at its next meeting on 19 October 2000. The letter continued: "Arising from the complaints initiated against you on 9 July 1998 and 10 December 1998 please let me have by 5 pm on Wednesday 18 October 2000 any further comments or material by you in response to those complaints. Details of the complaints against you are as follows: 1. You were convicted on 4 counts of committing an aggravated act of indecency on a person under the age of 16 years. 2. You failed to inform your employer of the conviction. In considering the matter the Committee's attention will be drawn to the following material: 1. Certificate of conviction dated 25 November 1999. 2. Response filed 23 December 1999. 3. Letters from Stewart Cuddy & Mockler ('Cuddy') to Society dated 14 July 1998, 14 October 1998 and 23 September 1999. 4. Letter to Cuddy from Law Society dated 1 October 1998." 14 On 14 October 2000 the opponent responded seeking further time to make fresh submissions and raising concerns about a breach of s171P of the Legal Profession Act and asking what action would be taken to investigate this. On 17 October 2000 the claimant responded agreeing to the request for further time and stating that there had not been any breach of s171P by the Society. 15 On 23, 25 and 26 October 2000 the later charges were heard in the Sutherland Local Court. On 7 November 2000 the opponent was convicted and sentenced to imprisonment for two years. He immediately appealed to the District Court of New South Wales on all grounds. 16 In the meanwhile on 27 October 2000 the opponent wrote to the claimant as follows: "I do not take these matters lightly. I am deeply ashamed of my actions in 1997 and I take full responsibility for them. However, the reality is that removal of my name from the roll of practitioners will impact directly on my ability to support my family in the future, therefore I have no choice but to strongly argue my case before the committee. My previous solicitor, Mr Stewart Cuddy has previously provided you with a good deal of material relating to the circumstances surrounding the commission of four offences in April-May 1997, and in relation to my fame and character otherwise. I rely on this material. I would also point out that Luland DCJ found that the four offences were out of character and were of an isolated nature . The Professional Conduct Department of the Law Society contends that the mere fact of convictions alone will justify the Law Society proceedings under Part 10 of the Legal Profession Act. I hope to show in the following submissions that this is not correct and that in fact Part 10 does not apply at all to these circumstances." [My emphasis] Part 10 concerns "Complaints and discipline". 17 The opponent then put submissions under the headings "Professional Misconduct under LPA is narrower than at common law" (paras 4-6), " 'Personal' misconduct to be distinguished from conduct relating to the practice of law" (paras 7-9), "Conduct not relating to the practice of law to be judged differently" (paras 10-11), "Proof of convictions alone does not amount to professional misconduct" (paras 12-14), "Ziems – severe case" (paras 15-17), "Proper sanction for sexual offences is not usually removal from the roll" (paras 18-22), where reference was made to In re H (a Barrister) (1981) 1 WLR 1257 and Re a Solicitor (1956) 1 WLR 1312, and "Condon" (paras 23-24). Under the heading "Summary" (paras 25-27) the letter continued: "25 I submit that the cited authorities show that the facts in my case would not justify removal of a practitioner from the roll at common law. Much more severe criminal conduct would be required for this, or else ancillary evidence adverse to fame and character . Therefore, professional misconduct has not been shown within the meaning of the Legal Profession Act." (My emphasis) 18 The opponent made submissions about his failure to inform his employer of convictions and concluded: " Legal Professional Act not appropriate regime to deal with this case 1. I respectfully submit that the scheme under Part 10 of the Legal Profession Act is not appropriate to this case, because the four convictions, without further circumstances showing defect of fame and character and in light of considerable mitigating material on the issue of fame and character , do not justify removal from the roll of solicitors. The complaint of breaching section 48K(5) is also not valid for the reasons given. (My emphasis) 2. The appropriate regime is under the Law Society's powers at common law, whether by reprimand, restriction or limitation on practice or other sanction. Naturally I will cooperate with any reasonable requirement of the Law Society in this regard. 3. In the event that the committee agrees with this submission, I will wish to make certain submissions on the issue of my family's privacy." 19 On 1 November 2000 the opponent wrote: "I enclose (*) a letter containing further submissions dated 1 November 2000 [sic. The claimant agreed that the letter enclosed was the letter of 27 October 2000] and respectfully request that it be placed before the committee as the primary submission. 1. The notice of appeal served on me as part of the complaint; 2. Letters from Messrs Stewart Cuddy & Mockler Solicitors to the Law Society dated 14 July 1998, 14 October 1998 and 23 September 1999; 3. Letter from the Law Society to Messrs Stewart Cuddy & Mockler dated 1 October 1998; 4. My letter to the Law Society of New South Wales dated 1 November 2000; 5. Report of Professor Neil McConaghy. One further matter: Please note that it is still my contention that I am entitled to costs 'thrown away' as a result of the Law Society's wrongful decision to institute proceedings in the Administrative Decisions Tribunal in December 1999. The present situation is that the Tribunal has made no order in relation to those costs. In any future proceedings resulting from this matter, I will be submitting that I should be entitled to those costs as a matter of fairness." 20 On 6 November the claimant wrote to the opponent seeking an explanation of part of the letter of 1 November and asking for the identification of documents or notices of appeal served on the opponent. 21 On 15 November 2000 the claimant wrote indicating it was considering the making of complaints which focused on the opponent's conduct rather than his convictions (s137(1)(c) of the Legal Profession Act) and whether the claimant might make a complaint "out of time". On 17 November 2000 the opponent wrote as follows to the claimant: "I refer to your letter dated 6 November 2000. I have not been able to lay my hands on a copy of the relevant document. It is possibly still with my former solicitor. However, for your assistance I would respectfully point out that the Law Society notified me of the initial complaint by letter in about July 1998. As an enclosure to that letter, it sent a copy of a letter received from the Prothonotary. That letter in turn enclosed a copy of a Notice of Appeal from the District Court of New South Wales. The Notice of Appeal was dated May or June 1998. Please advise me if this information is insufficient for you to identify the relevant documents from your file. It is my respectful submission that that Notice of Appeal, together with the accompanying letter from the Prothonotary, constitute the substance of the complaint against me, at least as regards criminal convictions. You may also find the written annotations on one of the documents, indicating that a copy had been made and passed to the CEO of the Law Society, to be of some relevance to other matters in issue." 22 On 21 November 2000 the opponent wrote to the claimant stating that any new complaints would be vexatious and oppressive and continued: "3 I refer to my submissions to the Council dated 27 October 2000. In paragraphs 4-11 and 15-27 of that letter, I set out arguments that my conduct in 1997 is not Professional Misconduct within the meaning of section 127(1)(b) of the Act, because at common law the proper sanction is not removal from the roll but rather a range of other possible disciplinary measures. I respectfully submit that the same issues relate to whether a complaint should be accepted out of time, and regardless of whether the focus of the complaint is the convictions themselves or the conduct giving rise to the convictions." 23 In none of the correspondence from the opponent to the claimant did he mention that he was arrested on 12 May 2000 and on 22 May 2000 charged with the later charges for which he was convicted and sentenced. 24 On 3 April 2001 her Honour Judge Tupman upheld the opponent's appeal and quashed the convictions and sentences of 7 November 2000. R gave evidence that the events, the subject of the later charges, were charged as having occurred between about 9 and 9.30 am on 28 April 2000. The evidence given by the opponent, his wife and one of R's sisters supported by telephone records and her Honour's acceptance from the evidence that the opponent took R to a public library at about 9 am on 28 April 2000 led her Honour to say that she could not be satisfied beyond reasonable doubt that the essential element of date in the context of the overall evidence had been made out by the Crown. Accordingly, she acquitted the opponent. The opponent asserts that the charges were false and this assertion is not inconsistent with the findings Judge Tupman made. 25 On 24 May 2001 the claimant began these proceedings by summons filed in this Court. The claims were: "1. A declaration that [the opponent] (the solicitor) is guilty of professional misconduct in that: (a) The solicitor engaged in conduct for which he was, on 20 February 1998, convicted by the Sutherland Local Court of four counts of aggravated indecent assault on persons under the age of 16 years contrary to s61M of the Crimes Act 1900 (NSW). (b) Subsequent to his conviction, the solicitor sought and obtained employment as a solicitor without disclosing that he had been convicted of an indictable offence contrary to the provisions of s48K(5) of the Legal Profession Act 1987. 2. Further or alternatively, in light of paragraphs 1(a) and (b) above a declaration that [the opponent] is not a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales. 3. An order that the name of [the opponent] be removed from the Roll of Legal Practitioners. 4. An order that [the opponent] pay the costs of these proceedings." By contrast with the complaint the basis of the information in the ADT, the charge was based on the "conduct" for which the opponent was convicted rather than the conviction itself. 26 On 31 August 2001 the opponent filed an affidavit in these proceedings part of which, paras 66-76 inclusive, was headed "The false allegations by [R] in May 2000". This set out the opponent's account of the circumstances surrounding those allegations up to the successful appeal to Judge Tupman. On 24 September 2001 an affidavit was filed by the Manager of the Professional Standards Department of the claimant in which he deposed that until receipt of the opponent's affidavit of 31 August 2001 the claimant was not aware of the opponent's conviction in the Sutherland Local Court and subsequent appeal to the District Court heard on 3 April 2001. The claimant sought and was granted leave to amend the summons to add claims 1(c) and 1A and amend claim 2 which, after further amendment of the date of the opponent's conviction made at the beginning of the hearing in this Court, were as follows: "(c) Prior to serving his Affidavit, sworn 31 August 2001, in these proceedings the solicitor failed to disclose to the Claimant that he had been convicted on 7 November 2000 of further charges of aggravated indecent assault on a person under the age of 16 years contrary to s61M of the Crimes Act 1900 (NSW) notwithstanding that at the time of that conviction the solicitor was aware that the Claimant was actively considering whether disciplinary action should be taken against the solicitor in respect of previous similar convictions as set out in the Claimant's letter dated 9 October 2000. 1A A declaration that in light of the matters in paragraph 1 above, the solicitor is not a person of good fame and character. 2 A declaration that in light of the matters in paragraphs 1 and 1A above, the solicitor is not a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales." History 27 The opponent abandoned an application made to the Court by notice of motion to have the summons dismissed. The material that he relied upon in answer to the declarations sought by the claimant was to be found for the most part in his affidavit of 31 August 2001 and the annexures thereto. 28 The opponent was born on 1 January 1962 in Sydney. In 1986 he graduated with Bachelor of Arts and Bachelor of Laws degrees. He was admitted a solicitor in this Court in 1987. He commenced work with a firm as an employed solicitor and specialised in civil litigation. In 1992 he became a senior associate. Meanwhile, in April 1980 he had enlisted into the Sydney University Regiment in the Australian Army Reserve. In June 1985 he was commissioned as a Second Lieutenant and about two years later, after a selection course testing his ability to exercise leadership and look after soldiers "in conditions of extreme hardship", he was posted to a Commando company as an officer where he served for three years. He was promoted to Captain in 1990 and served as an Instructor of Officer Cadets at a University regiment until July 1992 when he went overseas. At that time he left the firm of solicitors who had employed him. While overseas he continued reserve service with the Royal Marines Reserve in the United Kingdom. 29 When he returned to Australia in early 1993 he resumed service with the University regiment and soon moved to full-time service. He wrote a training package for officer cadets. In August 1993 he began employment with another firm of solicitors with whom he continued until April 1996. He worked in general litigation with an emphasis on commercial litigation. About this time he reverted to part-time service with the University regiment training for four weeks full-time each year with additional training one night per week and one or two weekends per month. He received a tax exempt income of about $100 per day from the Army Reserve. 30 In August 1993 the opponent met his wife B through their local church and mutual friends. They began dating in September 1993. In October he met her four children R (born on 6 July 1984), L (born on 13 August 1986), E (born on 30 March 1988) and A (born on 18 August 1992). They were living with B's parents. 31 In 1994 the opponent was posted as a Staff Officer on Brigade Headquarters followed by a twelve month posting to staff college. During this period B and he were seeing each other regularly and would go on outings with the children about once a week. The opponent would also see the children at B's place when he visited. They began to call him "Dad". Sometimes he stayed overnight at B's place. From 1994 on B would bring her four children to see him at work on one day in every school holidays. By the time he left the firm of solicitors all the partners, employed solicitors and support staff had met B and the children. 32 From the beginning of their relationship the opponent provided financial support to B and the children. He paid for outings with the children. Apart from presents he paid for items such as a new computer and a holiday to the snow. He assisted with school fees and educational software. After B and the children moved out of her parents' house in 1997 he paid for a new washing machine, refrigerator and household furniture. When the children went to bed he would often go into their rooms to say goodnight to them with or without B. Sometimes he would chat to them or read them something before saying goodnight and going to B's room. The children were very affectionate with him. 33 In 1996 in the Army Reserve he was graded "List 1" for promotion. This was the highest category and meant that he was to be promoted to Major as soon as a suitable position became available. Also in 1996 he was posted back to the Commando company as Executive Officer. He continued in this position until the end of 1997 when he resigned his commission as a result of the criminal convictions. In April 1996 he resigned from the firm of solicitors he had been with and commenced working with another firm as an associate solicitor. He worked mainly on commercial litigation with an emphasis on marine work. 34 In February 1997 his employer solicitors advised him that he and other associates would be made redundant. At about the same time his father was diagnosed with mesothelioma as a result of asbestos exposure whilst on active service with the second AIF in the Second World War. His condition deteriorated and he died in October 1997. The opponent was depressed as a result both of losing his job and by his father's illness. He ceased working for the solicitors in March 1997 and was unable to find comparable employment in the law. The army offered him employment as an instructor on special forces training courses which he accepted working long hours under difficult physical conditions. 35 The opponent gave the following account of the offences charged against him in 1997: "The first offence 21 One evening in about mid-April 1997 I went into the older girls' room to say goodnight. R and L shared a room. R was nearly 13 and L was 10 -1/2. R asked me to stop and talk. L was already asleep. I sat on R's bed. She asked me to rub her neck (as I had done before on occasion). I did so and we kept talking. I rubbed over her back and eventually rubbed her bottom. Her clothes were still on and she kept talking to me throughout. 22 Afterwards I was confused and concerned at my conduct. This was the first time that I had ever done anything improper with any of the children. I did not go into R's room to say goodnight for another week. However in late April I began to go again into her room to say goodnight, without any untoward incident or feelings. The second offence 23 At the end of April 1997 I went away for several days to take part in an amphibious exercise with the Army at Nelson's Bay. The final part of the exercise was a physically arduous 24-hour operation in small craft on the open sea. We had little sleep before or during the exercise. At the end, I returned home exhausted and went straight to B's place on or about 1 May 1997. I sat with B at the computer in her room. 24 Some time later I went into the girls' room. L was asleep so I sat on R's bed and talked to her. As best I recall, during the conversation I pulled her pyjama pants down and pushed up her top. We continued to talk. I heard B coming and replaced R's clothing. We continued to talk together after B came in. Then B and I went back to B's room and I fell asleep almost immediately. 25 The next day I reflected on my behaviour with great consternation. I was horrified at what I had done but I was not sure what to do. I believed that I could ensure that nothing further happened. I believed that if I sought help, it would automatically be reported to the police, therefore I did not seek any professional assistance. 26 I now believe that this was a gross error of judgment with appalling consequences for my stepdaughters, for my family and for myself. However, I found it difficult to think objectively at the time because I was so confused. Third Offence 27 On or about Saturday 3 May 1997, there was a dinner party at B's place. I went upstairs to the toilet and I saw L's light was on. I went in and she was reading. We talked and I touched the clothes over her stomach. We talked some more and then I drew her pyjama pants down. L said to me. 'You'd better go downstairs'. I looked down at the floor and said, 'Yes, I suppose I'd better' and she said, 'Yes'. I then went downstairs. Fourth Offence 28 On or about 7 May 1997, when I was at B's house in the evening, I left B and went in to the girls' room after they went to bed. L was asleep. I sat on R's bed and talked to her. She invited me to rub her back and I did so. Soon after, she turned over. I pulled her pyjama pants down and placed my hand on her belly and we talked. I then touched her thigh with my other hand and my finger rested against the outside of her vagina. We both stopped talking for a moment and then R said, 'That tickles'. I came to my senses, took my hand away and replaced her clothing. 29 I went straight out of the room and into B's room. I was devastated. I did not know what to do. I asked B out for coffee, after which I went home to my place. 30 After this incident, I stopped going into the girls' room at all after they had gone to bed. I was determined that nothing more would happen. I considered going to work in England. I raised this with B and she was very distressed as she did not understand the reason. 31 I cannot explain my behaviour. I had never done anything improper with any of B's children (or any other children) at any time before this four-week period in April-May 1997, nor since. I am horrified, embarrassed and ashamed about what happened and it will never happen again." 36 On or about 31 May 1997 B confronted him and said words to the effect: "Rebecca's mother spoke to me. She said I needed to talk to [R]. Has anything happened between you and her?" The opponent said that in the heat of the moment he denied that anything had happened. B seemed to accept what he had said but appeared concerned. She said that he should no longer go into the children's room at night unless she was present. He agreed and said he "felt very guilty and ashamed". 37 On 2 June 1997 he telephoned a friend and confessed what had happened and sought advice. She suggested he contact Professor McConaghy and seek treatment. A few days later he rang Professor McConaghy and made an appointment for 24 June 1997. 38 On or about 6 June 1997 two officers from the New South Wales Department of Community Services (DOCS) spoke to B. On 11 June 1997 they interviewed R and the other children at school with B and her father present. B told the opponent afterwards that R said that he had touched her twice. B said: "She doesn't seem worried at all by the whole thing, but she's crying because she thinks we don't believe her. All the children were frightened by the interviews and especially by the manner of the DOCS officer". On 12 June 1997 B said to the opponent: "L was not able to speak this morning. She communicated with me and mum using notes. L wants to see you. They all do, even R, but I can't allow that because DOCS have threatened to remove them if I let you see them". The opponent said that he was conscience-stricken that the children were being scared because of him and because of what he had done. 39 On 13 June 1997 he confessed to B that he had touched R and L. He said she was devastated. The next day, 14 June, he rang his solicitor at his home and instructed him to tell the police that he wished to confess. He said he did this because he was concerned at the children's distress, particularly R's distress that she was not being believed, and L's fear of the police and DOCS. On 19 June 1997 he attended Sutherland Police Station with his solicitor and made a statement confessing to three incidents of touching R and one of touching L. The police, so the opponent said, had no knowledge of two of these incidents before he gave the statement. He was then charged and granted bail conditional on not contacting anyone in the family. 40 At his first appearance in the criminal proceedings at Sutherland Local Court on 17 July he instructed his solicitor to inform the court that he would plead guilty to the charges. The Magistrate varied the bail conditions to allow contact between himself and the children under B's supervision. The Magistrate noted there would be a plea and adjourned the matter to allow for expert medical evidence to be obtained. According to the opponent, the Magistrate also made orders that the proceedings not be published, that the court henceforth be closed to the public and that his name not be published in the court lists. From then on in the Local Court proceedings the court was always closed to the public and his name was blacked out of the court lists. This was in order to protect the identity of the children. 41 By August 1997 instructor positions on courses with the Army Reserve had become less available and the opponent was able to find employment with the Law Society Locum Service. For three weeks in September 1997 he obtained work with a country solicitor and on his return obtained a locum position with a suburban solicitor. He declined a permanent position because of his concern about the outcome of the criminal proceedings. After his sentence in February 1998 and his appeal he was granted unconditional bail pending the hearing of the appeal and obtained further locum work until his appeal was heard in May. Throughout this period he maintained his relationship with B and worked to re-establish his relationship with the children. He began to suffer from depression. On 8 May 1998 he began again to look for work as a solicitor and said that he decided "at this time that I would not declare my convictions when applying for work". He gave his reasons as follows: "(a) I believed that the non-publication order made by the magistrate remained in force and I did not want to breach it by disclosing the convictions and thus, possibly, the identities of R and L; (b) B and the children expected to continue the practice of visiting me at work and I did not want them to be embarrassed; (c) I was not aware of any legal obligation on me to disclose those convictions, which were of a personal nature, and in my view not relevant to my capacity to work as a solicitor." 42 On 18 May 1998 he sent a letter to a partner of a firm solicitors. To that letter he attached a resume. The opponent wrote: "As you will note from the enclosed resume, I have over ten years experience in general and commercial litigation, with some specialised expertise in marine and international trade law (include marine insurance). I have just finalised my employment at [name omitted] and I would look forward to an interview with you." 43 The resume provided a summary of qualifications, employment history and, in more detail, his experience. At the end there was a short statement of what was described as other abilities followed by the names of three referees. No mention was made of his convictions. 44 The opponent began work with the firm of solicitors to whom he had not disclosed his convictions on 29 June 1998 and was dismissed on 8 July 1998 when he conceded in answer to a question from his employer that he had convictions. Thereafter he obtained further locum work with solicitors until he received the Law Society's letter of 1 October 1998 claiming that s48K(5) required disclosure and threatening injunctive relief. 45 In his affidavit of 30 October 2001 the opponent said that he held a current practising certificate from 1 July 1997 to 30 June 1998. In June 1998 he applied for and was issued a practising certificate covering the period 1 July 1998 to 30 June 1999. When undertaking locum work as a solicitor from July 1998 to 1 October 1998 he held a current practising certificate. He said that after being advised of the terms of s48K(5) of the Legal Profession Act on or after 1 October 1998 he ceased to practice as a solicitor. During the period of his employment as a locum with various solicitors from July 1998 to 2 October 1998 he said he was unaware of the provisions of s48K(5) of the Legal Profession Act and did not believe that he was under any obligation to inform employers of his convictions. 46 The opponent gave the following description of what he described as the false allegations made by R in May 2000: 67 On Thursday 11 May 2000, R wrote in a note to two school friends that I had touched her. R refused to report it to a teacher but the friends did. The police interviewed R on 12 May 2000, in the presence of the teacher. 68 The police arrested me at 5.15 pm that day for 'an assault on R', but gave no other details. I denied the allegation. I was charged with two counts of aggravated indecent assault alleged to have occurred 'between 14 April 2000 and 1 May 2000', and released on conditional bail at Parramatta the next day. 69 On 22 May 2000, the police interviewed R again. The police then charged me with a further two counts of aggravated indecent assault alleged to have occurred 'between 14 April 2000 and 1 May 2000'. 70 I received the police brief in July 2000. I then realised for the first time that the assaults were all alleged to have occurred on a particular day, 28 April 2000, between 9 am and 9.30 am. ….My solicitor interviewed E, L and B. …. ……. 73 Over my counsel's objections, the magistrate admitted evidence of my previous convictions. 74 The magistrate convicted me on all counts. On sentencing, my counsel tendered character references, copies of which are annexed hereto as follows: (a) A reference from my parents-in-law ……., as Annexure 'N'. (b) A reference from a manager of my employer, [….], as Annexure 'O'. (c) A reference from the pastor of our church, [….], as Annexure 'P'. 75 I appealed on all grounds to the District Court of New South Wales. On 3 April 2001, Tupman DCJ allowed my appeal and acquitted me on all charges…..." 47 The military police were notified of the 1997 charges. The opponent said that he sought advice and was told that he would be required to show cause why he should retain his commission as an officer and that, although he might succeed in showing cause, the process would lead to publicity for himself and his family. He considered that any publicity would lead to the identification of his family. Accordingly, he resigned his commission at the end of 1997 which was the conclusion of his two year posting as Executive Officer of the Commando unit. The loss of his career in the Army Reserve has been very costly. He said it was effectively his true career after he left school. He had devoted a good deal of time to it and in the normal run of events would have expected to serve until aged fifty-five or longer and reach a rank of at least Lieutenant-Colonel. The most serious impact on his family was the loss of his Army Reserve pay. At the time he resigned his commission he was earning over $100 per training day which would rise substantially on his expected promotion to Major. This was tax exempt. He usually trained for 70-100 days per year giving him an additional tax-free income of $7,000 to $10,000 per year. There were other benefits such as allowances and meals. 48 At the time of making his affidavit he was working as a casual call centre operator for the same company with which his wife worked. This job did not pay particularly well. He earned about $450 per week before tax. His wife earned about $500 per week before tax. She also received $500 per month by way of child support from her children's natural father but this at the time was two months in arrears. His wife received negligible family assistance. They supported the three children L, E and A. They received charitable assistance from family and friends in order to make ends meet. The opponent did own an investment unit at Bexley with an equity of approximately $50,000. He was forced to sell this in 2000 to raise funds to defend the criminal proceedings following R's allegations. He and his wife own no real estate nor do they have any other assets apart from household furniture and motor vehicles worth about $6,000 and $6,500 respectively. 49 The affidavit finished as follows: "91 If I am allowed to remain on the Roll of Solicitors, I hope to obtain employment and in time earn at a rate commensurate with or greater than my previous employment in the law. If I am not, I do not know how I will support my family. 92 I remain shocked at my actions in indecently assaulting my stepdaughters. I am confident that there will absolutely be no repetition of such behaviour, both because I am more knowledgeable about such behaviour and because I am determined that it will not occur. I do not intend to risk any damage to my relationships with my wife and children. 93 I have never committed a criminal offence either before or since my offences against my stepdaughters in April and May 1997. I am determined never to do so again. 94 I am aware of my duties and responsibilities as a solicitor, in particular the need for absolute trustworthiness. I believe that I am able to fulfil those duties and responsibilities." Failure to report later charges and convictions 50 In an affidavit of 26 October 2001 the opponent said that after receiving the police brief in about July 2000 in relation to the later charges he considered whether he should report the fact of the allegations and charges to the Law Society. "I decided that I did not need to do so because in my opinion these facts could not assist the Law Society in making a decision pursuant to s155(2) of the Legal Profession Act. I did not seek specialist legal advice on this issue because I expected that I would need all my funds to defend the criminal proceedings." The opponent said that in coming to this decision he considered, inter alia, the following factors: "(a) I knew that I was innocent of all the charges; (b) I was legally considered innocent until proven guilty; (c) The charges were based on an uncorroborated allegation by my step-daughter R; (d) Other witnesses including my wife….and step-daughters L and E and telephone records contradicted R's allegations; (e) I strongly denied the entirety of the allegations." 51 The opponent said that after he received the decision of the ADT of 9 October 2000 he assumed that the Law Society would once again exercise its decision-making power as required under s155(2) of the Act but this time would give reasons for its decision. The affidavit continued: "5 I therefore considered again whether I was obliged to inform the Law Society of the second criminal proceedings. After due consideration I remained of the view that the second criminal proceedings could not in any way assist the Law Society to decide whether there was a reasonable likelihood that I would be found guilty by the Tribunal of professional misconduct in relation to my offences in 1997. 6 In addition to the factors which I considered previously, I was also concerned that information on the second criminal proceedings was highly emotive and could have a prejudicial effect on the Law Society in making a decision pursuant to s155(2) of the Act." 52 The opponent referred to his letter of 27 October 2000 containing further submissions and said: "8 ……..I remained of the view that I was not obliged to inform the Law Society of the second criminal proceedings because: (a) nothing new had emerged at the hearing; (b) R's allegation remained uncorroborated; (c) my stepdaughter L and wife B had both given evidence contradicting R's allegations and the prosecutor had not sought leave to cross-examine them; (d) Telstra records had been admitted which contradicted R's allegations and supported the evidence of myself, B and L; (e) The prosecutor admitted in his summing up that the evidence of L and B (and myself) could not stand with that of R; (f) I had given evidence denying the allegations and had not been shaken on cross-examination; (g) Finally, I knew that I was innocent of all the charges and in law remained so until proven guilty. 9 For all these reasons I considered that there was no obligation on me to advise the Law Society of the second criminal proceedings. In writing this letter dated 27 October 2000 I had no intention of misleading the Law Society in any way. In particular I did not intend to give any positive indication that I had not been charged with criminal proceedings which remained unresolved." 53 After his conviction on 7 November 2000 he said: "11 After due consideration, I decided that I was not obliged to inform the Law Society of these convictions because they were under appeal and until the appeal was determined adversely to me, they could not be taken into account in exercising the Society's decision pursuant to s155(2) of the Crimes Act. In coming to this conclusion, I took the factors mentioned above into account." Expert evidence 54 Professor McConaghy is a professor of psychiatry who works with Australian Centre for Sexual Health. The opponent said and I accept that he is an internationally recognised authority on the treatment of sexual deviancy. The opponent saw him on 24 June, 1 July, 15 July and 12 August 1997 and thereafter at monthly intervals. On Professor McConaghy's suggestion the opponent attended the programme at the Child Abuse Prevention Service (CAPS) from July 1997 on a fortnightly basis. He continued to attend after his sentencing appeal was heard by Judge Luland. He completed the offender's programme at the end of which he did not feel in any danger of re-offending and considered that he had come to terms with the reasons for his previous behaviour. He ceased attending CAPS in about October 1998. 55 The opponent provided copies of Professor McConaghy's reports dated 2 September, 9 December 1997 and 24 August 2001. 56 In Professor McConaghy's experience men who offend heterosexually against children in the capacity of a father or father figure are least likely to re-offend. In the professor's opinion the opponent showed an excellent response to treatment and with his psychological stability and ethical values the professor considered the chance of his re-offending would be markedly lower than the average offender. In his report of 2 September 1997 Professor McConaghy said: "In relation to your specific questions, there seems a distinct difference between the paedophile who is exclusively sexually attracted to children and who does not form even social relationships with adults and men who are equally or predominantly sexually attracted to adults. As I said, the latter men, often without their knowledge are capable of being sexually aroused by children. In regard to the common assumption that victims must necessarily be damaged by this sort of behaviour, again, research indicates that up to 40% of women report no negative effect from child sexual activity with adults. It does seem that where force is used, where penetration has occurred and/or the offences are very frequent that the possibility of negative effects occurring is significantly higher. I do consider that [the opponent's] relationship with both daughters could be significantly impaired by the charges as they could feel some guilt that the charges have been made. Given that [the opponent] is prepared to undergo treatment and is responding well to it and is able to associate with the two daughters who can continue to be monitored by the child psychiatrist, maintenance of charges could seem only to have a negative consequence to his relationship with the daughters." 57 In his report of 9 December 1997 Professor McConaghy said: "I believe, as I indicated in my previous report that [the opponent] has developed full awareness of the situations which led to his inappropriate behaviour and in view of his contrition and the stability of his personality I consider the risk of his re-offending to be minimal." 58 In his report of 24 August 2001 Professor McConaghy referred to the later accusations made against the opponent by R noting that it was finally established to be "false". The professor said: "Understandably with this series of stresses, he has remained significantly depressed and has needed to continue to take Aropax 20mg daily. Over the period since September of 1997, I have seen B with [the opponent] on several occasions to help them in relation to their adjustment. Throughout my contact with [the opponent] I have found him to be totally honest and trustworthy. His contrition concerning his behaviours has always been very marked and has strongly motivated him to seek and maintain intensive treatment. As I indicated in the earlier report, I believe the possibility of his re-offending to be negligible. His inability to financially support his family adequately has been a significant source of distress, both to him and B and of course has markedly limited the opportunities of his children." 59 There were also tendered two reports from the Child Abuse Prevention Centre of 10 October 1997 and 16 December 1997. In the first of the CAPS reports the founder director, Ms Ginn, wrote of the opponent: " I have appreciated his qualities, his honesty and the shame that his offence has caused him and those close to him and he is obviously loved by those who are dependent on him. I have found consistently in my work that if a child is emotionally involved with and loves a person, the shame and guilt of the humiliation is transferred onto the child; the greater the guilt and shame, the greater the transfer onto the child. I am sure that [the opponent] is fully aware of this. As the Director of the type of Service implied by our name, I would want to avoid any further, unnecessary maltreatment of any child, for whatever the reason. Opinion In my experience, regressed offenders can outgrow the tendency of regress to activities with children when the tendencies and reasons leading them to this are properly and fully dealt with. [The opponent] has an excellent opportunity for continued treatment and improvement with Prof McConaghy and I would be happy to continue him in group therapy while this is occurring – if this is what the court wishes." 60 In the second of those reports Ms Ginn wrote: "The children now involved are aware that the defendant has: *Lost his employment *Foregone his rank of Captain and career in the Australian Army *Suffered rebuffs from his community eg church *Undergone physical stress as evidence from involuntary symptoms and they share this sorrow – and blame. I therefore pose a series of questions which I consider relevant, for consideration. Viz: 1. Is this man of basically good character? I believe so. 2. Is he a future risk to these children? I believe not. 3. Does their mother support him and consider him to be important to their future lives? I believe she does and that they need him. 4. Will these children suffer if his punishment is socially evident? I believe they will. 5. Will they lose or gain if their 'father figure' is removed? I believe they will lose. Though, sadly, this is not always the case, I believe that the outcome which yields most benefit for all FOUR children should be the main determinant for decision." Referees 61 The opponent tendered four affidavits by referees, three practising barristers, Robert Anthony Gray, Clifton Ralph Hoeben and William Smyth Veitch, and one a solicitor, Brett Boon. None was required for cross-examination. 62 At the date of his affidavit, 28 August 2001, Mr Gray had known the opponent for fourteen years. Between 1987 and 1998 he had received briefs from the opponent. In 1994 he had learnt of the opponent's extensive involvement with his church and was impressed by his commitment to the church. The opponent informed Mr Gray that he was considering marrying B and that he would not do so unless he got on well with her children and they accepted him. Mr Gray considered that the opponent had a maturity and an understanding well beyond his years. Mr Gray has read the police facts sheet and Professor McConaghy's report of 2 September 1997. He has also read the judgment of Judge Luland of 6 May 1998. Mr Gray agreed with the Judge's comment that the opponent's conduct seemed "quite obviously totally out of character for" the opponent. 63 Mr Gray said that the opponent in all matters in which he had briefed him conducted the litigation with the interest of his client paramount. The opponent was direct and forthright with his clients as to their prospects of success in their litigation. Mr Gray described him as a man of great compassion, feeling and understanding for both his clients and members of the community generally. As a solicitor he acted skilfully, competently and ethically. Mr Gray said "with the exception of the matters referred to above, he was to the best of my knowledge of good fame and character". Mr Gray concluded that he would have no hesitation in accepting a brief to appear in which the opponent instructed nor hesitation in recommending his services to potential clients. 64 Mr Hoeben AM SC, in his affidavit of 29 August 2001 said he had known the opponent for over fifteen years, as an officer in the Army Reserve since the early 1980s, and as a result of receiving briefs from him. Mr Hoeben's position to express an opinion on the opponent's military service springs from his having recently completed 36 years in the Army Reserve and having retired with the rank of Major-General. The opponent was a very good officer whose strengths were in the areas of command and care for his soldiers. Mr Hoeben has had occasion to observe his performance in circumstances of considerable adversity where he displayed strong leadership and dedication to the task in hand. In 1997, just before the commission of the offences, he held the rank of Captain and had been classed as List 1 for promotion to Major. This meant that he was fully qualified for promotion to that rank and would be promoted as soon as a vacancy occurred within his corps. That would have occurred before the end of 1997. Mr Hoeben said that as a result of the offences and without being pressed by the army the opponent resigned from the Army Reserve after service for over 17 years. Mr Hoeben deposed: "It should be noted that it is extremely difficult to be selected for service as an officer in the Commando regiment. The course is most demanding, requiring participants to demonstrate stability, leadership and character in harsh physical conditions over an 8 week period. [The opponent] successfully completed that course in 1987." 65 He served in two training groups as an instructor of Officer Cadets for three years which required a high level of character, leadership and example. He was held in high regard and esteem with the Army Reserve and before his resignation had been identified as having the attributes and capacity for promotion to Lieutenant Colonel with a view to ultimately commanding an infantry battalion. 66 Between 1987 and 1992 the opponent briefed Mr Hoeben in personal injury matters and in a commercial matter. Mr Hoeben found him to be a competent and knowledgeable solicitor who always acted properly and ethically in the conduct of the matters with which he was involved. After being told by the opponent of the convictions, Mr Hoeben had read the police fact sheet, the report of Professor McConaghy of 2 September 1997 and Judge Luland's judgment of 6 May 1998. Mr Hoeben said that he was extremely surprised to hear of these matters and regarded them as being entirely out of character. They certainly did not accord with his observations and experience with the opponent over the years. He strongly agreed with the observations made by Judge Luland. Mr Hoeben said: "14 In my contacts with [the opponent], both militarily and professionally, I have always observed him to act with great probity, professionalism and honesty. He always displayed considerable sensitivity and understanding as to the needs of soldiers under his command, and as to the needs of the clients for whom he acted. 15 I have sympathy for the position in which [the opponent] now finds himself. As indicated above, I consider the conduct leading to the convictions to be quite contrary to my previous observations of him. I am sure that such conduct will not recur. 16 I would have no hesitation in taking instructions from [the opponent] in the future and in appearing in matters in which he was the instructing solicitor." 67 Mr Boon is a solicitor and was a partner in the Sydney firm for whom the opponent worked between 1993 and 1996. Mr Boon too had read the remarks on sentencing of Judge Luland, the report of Professor McConaghy of 2 September 1997 and the police fact sheet. Mr Boon said: "5 The work included litigious matters as well as administration for the firm. [The opponent] carried out his work as a solicitor with the firm professionally, competently and I regarded him as a capable and honest solicitor. I believe he was generally well regarded by other partners and staff in the firm. 6 I was obviously surprised when [the opponent] brought the charge matters to my attention particularly as he always appeared to me to be a person of great integrity and moral character and I was aware of his very significant contribution to the army reserve. 7 In summary I believed and still do believe that [the opponent] is a diligent, competent and ethical solicitor. 8 I have been asked as a solicitor as to whether I would be embarrassed to deal with [the opponent] on a professional basis in the future, albeit being fully informed as to his offences against his stepdaughters in 1997. I state without any equivocation that I would have no difficulty in dealing with [the opponent] and would not be embarrassed having been fully apprised of the facts. I note that his wife has continued in marriage with him and has supported him throughout what must have been a tremendous personal crisis and given his obvious remorse and contrition in relation to the matters my opinion of his professional integrity has not changed. I would have no hesitation in accepting his undertakings for example in matters should he appear opposite me in contested cases. 9 I hope this is of assistance in considering [the opponent's] situation." 68 Mr Veitch in his affidavit of 31 August 2001 said that various members of the opponent's family have been favourably known to him for over fifty years and the opponent since his late teens. Mr Veitch had been furnished with copies of the police fact sheet, the report of Professor McConaghy of 2 September 1997 and the judgment of Judge Luland of 6 May 1998 which he had read and considered. Mr Veitch deposed: "4 If it were not for the fact of being appraised of the foregoing I would never believe that the opponent could be capable of such conduct. He is a regular church-goer and a very fine young man. 5 It appears he has been forgiven by all concerned and undergone a course of treatment curing him of the aberrations to his nature and character which occurred more than four (4) years ago. 6 In my experience as counsel with the opponent as instructing solicitor in a number of cases over the years he has always exercised commendable skill and judgment in the true spirit of the profession and was always, without exception, of considerable help to me in the best interests of the client. 7 I say, and the fact is, that even if I had known of the offensive matters at the time this alone would not have deterred me, as counsel, from accepting briefs from the opponent." 69 Also included in the material before the Court was the letter from B's parents to the magistrate of the Sutherland Local Court tendered on sentencing for the later charges. I set out the body of that letter in full: "We have known [the opponent] for about seven years. In April of this year he became our son-in-law. We are aware of offences he committed three years ago. We can honestly say we've never known anyone to show such remorse. We are also aware of the current matters which bring him before the court. In relation to his character, we have found him to be trustworthy in his dealings with us, a very good husband to his wife and always thoughtful of the needs of his step-children. We have seen how the children in turn have loved and accepted him as their step-father. Several years ago when his brother was not expected to live because of leukaemia, he donated his bone marrow to him. Our daughter B has been supportive of him during this difficult time." 70 The next reference was that dated 20 November 2000 from the Location Manager of a funeral parlour, who was a fellow employee of the opponent for a period of about twenty months. He wrote: "I am and [sic] aware of the circumstances that bring [the opponent] in front of the court and have been since just after he was removed from the family home. Further, I am aware of the matters that previously had [the opponent] before the court. I believe I am in a suitable position to attest to his character in that his relationship with his spouse both prior to and subsequent to marriage has always been of a loving and caring nature which, I believe, had fostered some stability within the home. Also that in our working relationship there has been the highest degree of ethical and trustworthy dealings with [the opponent] through his somewhat responsible position of dealing with the inquiries of bereaved persons and his ability to delegate appropriately the ongoing tasks of funeral service. [The opponent] has always displayed a high degree of responsibility to his employer and other employees. Even when this current incident threatened to take him away from his family and disrupt his life, one of his first major concerns was his probable inability to be a reliable employee and the effect this would have not only on his employer but especially his family. In summary of this aspect of [the opponent's] character I would have to say that he is an employee in whom there has been much trust placed and, in my opinion, no cause for doubting his ability or performance. In essence, I would venture that the previous statement even relates to his relationship with B and the children as, whilst on limited earnings, it has been evident that he has endeavoured to assist them to maintain a reasonable existence and lifestyle. It is my opinion that overall, [the opponent] possesses a high moral and work ethic while displaying the traits of a selfless person actively caring and providing for his family." 71 The reference from the church Pastor was dated 19 November 2000. The Pastor has known the opponent since he began attending services at the church in 1998. He said: "I am aware of the charges which have been brought against [the opponent], and have been in constant contact with him since those charges were laid. I am also aware of a previous matter dealt with by the court. When he began attending this church, [the opponent] and B briefed me on the circumstances and outcome of that previous matter. I believe [the opponent] expressed genuine repentance at that time, and I observed a concerted effort on his part to be open and above reproach in his dealings with me. I have also observed that [the opponent] has been most circumspect in his contact with the young people in the church. Since I met [the opponent] in 1998, I have seen him struggle and come to terms with the loss of his previous career as a consequence of his earlier conviction, and I commend him on his diligence in securing and keeping alternative employment. I also commend him for his efforts to do the best for B and the children, even during the last few months in extremely difficult circumstances. Both prior to and subsequent to his marriage to B, I have noted a genuine and deepening affection between them. Prior to the laying of the current charge and the subsequent separation of the family, a growing affection on the part of B's children towards [the opponent] was also evident. I believe that [the opponent] has genuinely desired and worked towards providing a secure and loving home for B and the children. The enforced separation of recent months has been extremely painful for them." 72 None of the reference evidence was challenged by the claimant. Cross-examination of the opponent 73 The opponent was required to attend for cross-examination and was extensively cross-examined by the claimant's counsel. The opponent agreed that in many ways in April and May 1997 he had assumed the role of de facto father of the children R, L, E and A. In his view the children trusted him. He agreed that the conduct which led to his conviction for four offences committed in those months was a serious breach of trust. In his affidavit he had said he was very close to the children. Asked to explain why he saw fit to resign from the Army in order to avoid embarrassment to himself and his family and yet resisted being removed from the role of legal practitioners as a solicitor of the Court he said: "Well I'm resisting this because it relates to my ability to earn money to support my family. If the manner in which this was conducted was going to lead to unacceptable publicity for them, perhaps I'd need to take that [into] account but that has not been the case. I couldn't see any upside to continuing with my Army Reserve career in a situation where it would quickly become known. The Army is very tribal and our family's affairs would be known by all of my fellow officers at social events when we were together, it would be known. It seemed to me there was a good deal of disadvantage to our family in that." 74 The opponent did not disclose his convictions to any of the solicitors for whom he worked as a locum although he had turned his mind to what duties or obligations he had as a solicitor to make such a disclosure. He said: "Well, in the criminal proceedings before the Local Court my wife had said to the barrister representing me, if this is over, if we get a good result, is there any problem with him practising law? And she had said, no, not that I know of. I asked the same question of the barrister, Mr Stratten who represented me on the appeal and he said that he wasn't aware of any difficulty with me practising law after that. After the appeal was over – the criminal proceedings were over, I thought about – generally about that, whether I needed to tell anyone. I didn't believe that I had any legal obligation to tell them. I couldn't see that it was relevant to my ability as a solicitor. I was concerned that if I told a prospective employer about the convictions that the employer would certainly want to know more. They wouldn't be satisfied with that, they would want detail and I thought there was a strong possibility that it would become known to them that it was my daughters or my stepdaughters – de facto stepdaughters, that I had touched. That concerned me for two reasons. One was that there was the non-publication order and I might have to speak to several employers before I was offered a job and the other is the same thing of the general embarrassment of the family because they would then be relating socially in some way with those employers that I had told about what I'd done. Q. Do you agree with me that one of the reasons why you decided not to disclose the fact of your convictions was your concern that such disclosure would seriously jeopardise your prospects of getting employment as a solicitor? A. Well I was aware that that was the case. I did feel though that probably a number of the lawyers – going by my experience with a number of lawyers that I had practised with in the past, that their first reaction would probably be to ask a lot more about it. But certainly it would jeopardise – I've no doubt there are some practitioners who as soon as they learnt about that would say, we're not going to go any further with this or it's too much trouble for us." 75 The advice given was oral and given during the course of the criminal proceedings or shortly thereafter. He did not ask for considered advice or make any research himself about his duties and responsibilities in respect of such disclosure. Asked why he made no disclosure to prospective employers he said: "That was my belief at the time your Honour. The specific reason that [the named firm of solicitors] said they wouldn't have employed me was that they said there was a specific factor of a religious order they acted for and they admitted that I hadn't known about that. Now I hadn't – I mean, that was an eye-opener for me because I hadn't considered at that stage that it could cause a problem for a firm in areas like that. But at the time I applied to those firms I didn't consider that that would be something relevant to them, no, and I realise in retrospect that that's something that they may well wish to know about. Q. But you say you didn't know that at the time or appreciate it? A. I didn't appreciate it your Honour." 76 The opponent agreed that at no time before filing his affidavit of 31 August 2001 did he disclose to the Law Society the later charges or his convictions of 7 November 2000. Nor did he disclose the fact of his appeal or his ultimate acquittal. Asked about his letter of 27 October 2000 to the claimant, which was written the day after the completion of the three day hearing in the Magistrate's Court in respect to the later charges, he referred to the fact that his previous solicitor, Mr Cuddy, had provided the claimant with a good deal of material in relation to his fame and character apart from the circumstances surrounding the commission of the four offences in April/May 1997. On 27 October the opponent wrote that he relied on this material and pointed out that Judge Luland found that the four offences were out of character and were of an isolated nature. The following cross-examination took place: "Q. When you wrote that letter and asked the Law Society to have regard to material concerning your fame and character, did it not occur to you that you should have disclosed to the Law Society the fact that you had been charged with four separate – on four separate counts of indecent aggravated assault against one of the girls who was one of your earlier victims? A. No it did not. Q. Do you recall now whether you turned your mind at all to whether you should reveal the fact of those charges to the Law Society? A. Yes, I had thought about that. Q. Did you think about it at the time? A. Yes, yes. Q. Could you explain to the Court what your thought processes were? A. I had a number of reasons that I didn't think that I needed to disclose it to the Law Society. One was that it was subsequent to the matters which the Law Society – the Law Society was deciding whether to commence proceedings in relation to my offences in 1997 and an alleged breach of section 48K in 1998. This material was subsequent to it. I knew that the offences – the allegations and charges were not true. I knew that I had denied them and would continue to deny them at all times. There was no corroboration for them. I had not admitted to anything peripheral which was relevant. I didn't see any way that they could assist the Law Society in deciding whether it should institute professional misconduct proceedings in relation to the 1997 offences. I think that sums it up. It was a number of factors that I considered. Q. Did it not occur to you at the time sir that you should make disclosure of the fact that you had been charged of these further offences and put to the Law Society the additional matters that you've just put to this Court about your denial of the charges, your strong belief that you were innocent of the charges and the other matters that you've just put to their Honours? A. No, it did not, I didn't think it could assist the Law Society in deciding whether to commence those proceedings on the complaints that were before them. ….. Q When you wrote your letter on 22 [sic 27] October 2000 sir, it was your intention to persuade the Law Society that apart from the four offences in April, May 1997 you were of good fame and character, is that not correct? A. Yes, yes. Q. Did it not occur to you at the time that in making that submission that you were of good fame and character it was relevant for you to disclose to the Law Society the fact of the further charges? A. No, it didn't. Q. In writing your letter on 22 [sic 27] October 2000, you also wished did you not the Law Society-- SHELLER JA: This is 27 October isn't it? GRIFFITHS: What did you say, your Honour? SHELLER JA: You said the 22nd. GRIFFITHS: Thank you, I withdraw that. Q. In your letter of 27 October 2000 you also intended to persuade the Law Society that it should take no further action in respect of the earlier offences because they were out of character and were of an isolated nature as described by Judge Luland in the District Court, is that not the case? A. That's correct. Q. Did it not occur to you that in making that submission you should have disclosed to the Law Society the fact of the further charges? A. No. Q. Do you see anything now that is misleading about your letter of 27 October 2000? A. I certainly don't see anything misleading about it and I didn't intend anything of that sort. Q. You don't see anything misleading about keeping the Law Society in the dark at this time about the further charges? A. No." 77 A little later the following cross-examination took place: "Q. If you could just have a look at that, the first two letters for the moment please sir, 1 November 2000 and 6 November 2000. There's ongoing correspondence is there not between you and the Law Society in respect of what action to take about the earlier complaints? A. There is. Q. On 17 November, that's at page 44 of the documents that you see, you wrote to the Law Society again, do you see that? A. That's correct. Q. In response to their letter of 6 November, do you see that? A. I do. Q. This correspondence is in the context of what material is proper to go to the committee for it to make a decision as to what action if any it should take in respect of those earlier complaints, do you see that? A. That's correct. Q. Your letter of 17 November 2000 is written ten days after you had been convicted of the further charges? A. That's correct. Q. You make no disclosure of the fact of your conviction in your letter of 17 November 2000 or any other correspondence at around this time with the Law Society, is that the case? A. That's correct. Q. Can the Court take it that your reasons for not making that disclosure of the fact of your conviction are the same reasons as you've given to the Court before for your failure to disclose the fact that you'd been charged with the offences? A. That's true, plus the fact that I immediately appealed the magistrate's decision on all grounds and maintained as always my denial. Q. Did it not occur to your sir that you should have disclosed to the Law Society the fact of your convictions but put before the Law Society the fact that you had immediately appealed and that you were protesting your innocence of the charges which gave rise to the convictions? A. No, I didn't think that. Q. It just didn't cross your mind? A. I considered whether I should disclose to the Law Society and for the reasons I've given I decided that I shouldn't." 78 The opponent was asked the following questions by Mason P: "MASON P: Q. While we're on the letter of 1 November, if you go over to the second page of that, item number 5, you ask that there be placed before the committee Professor McConaghy's report? A. Yes. Q. What in your words was the purpose of doing that? A. That was material – my purpose in this letter was to ensure that everything that had gone to the committee the first time it had considered my case was there this time, so that was back in 1999. I wasn't clear from the correspondence earlier that all the material was going to go there. I wanted Professor McConaghy's report there, because it described the course of my treatment, it described my response to the treatment, my attitude, basically the fact that I'd owned up to what I'd done and was facing up to it and getting on with being a father to the family. Q. And that it represented a minimal risk of relapse? A. Certainly, yes, yes, that was a very important part in the report, his opinion on that basis. Q. And in that context, it still didn't occur to you to draw to the Law Society's attention that there was this other charge and a few days later conviction? A. My belief your Honour was that until that matter was determined – sorry, before the conviction, before the magistrate, it was my belief that I was presumed innocent until proven guilty and after the conviction, my appeal was all grounds. So I assumed that – assuming that appeal was upheld, which I was very confident of, that it could never be held against me, that that charge had been made." 79 The opponent agreed that he had decided not to make disclosure to the claimant after giving the matter due consideration. He said he certainly thought it through. He was asked: "Q. I put it to you that one of the reasons why you decided not to disclose these matters to the Law Society was your concern that such disclosure would jeopardise your chances of persuading the Law Society not to continue with its investigation of the complaints relating to the previous matters, is that correct? A. I was concerned – I did have a concern that the Law Society would give a wrong weight to it when deciding whether to institute proceedings or not. Q. You took it upon yourself did you not therefore to keep the Law Society in the dark about those – about the second proceedings? A. I didn't inform them about it, that's correct. MASON P: Q. ….weren't there two matters before the Law Society in late 2000, first whether a charge if brought would succeed and secondly, whether to extend the three year time period? They were two aspects of what the Law Society was considering doing at that stage? A. As best I can make out, yes. I had asked them to say whether these proposed new charges were in substitution for or in addition to and that was I think the late November letter. I told them that I didn't understand the reason and I gave them some ex tempore submissions on it which they'd asked me for but I basically wanted more information, because I didn't understand the basis of what they were saying. Q. Did it not occur to you – I'll put the question differently. Did you give any thought to the question whether disclosure might be relevant to the extension of time component? A. No I didn't, your Honour. GRIFFITHS: Q. Do you accept now in the light of what the presiding judge has put to you that that was a relevant matter? A. I can see that it may well be. I've had to think about a lot of things since I've had to go over it in these proceedings and I can see that it probably would have been better to disclose everything to the Law Society and just put everything before them. Q. Do you regret now as you sit in the witness box today not having disclosed those matters? A. Definitely, definitely." Case Law 80 The following relevant principles can be derived from the decided cases. 1. The Supreme Court has inherent jurisdiction to discipline legal practitioners. The nature of the jurisdiction, which is preserved by s171M(1) of the Legal Profession Act , is discussed by Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284 at paras 2-8. 2. The claimant carries the onus of establishing the charges alleged against the opponent. It is the civil onus; see Re Evatt ex parte New South Wales Bar Association (1967) 67 SR (NSW) 236. But in considering whether the facts alleged have been proved, the Court recognises the gravity of the allegations and the very serious consequence which the orders sought would have upon the opponent. The clarity of the proof required if so serious a matter as the misconduct here alleged is to be found, is an acknowledgment that the degree of satisfaction, which the civil standard of proof calls for, varies according to the gravity of the fact to be proved; s140 of the Evidence Act 1995 and see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Ex parte Attorney General (Cth) re A Barrister and Solicitor (1972) 20 FLR 234 at 246 and New South Wales Bar Association v Livesey [1982] 2 NSWLR 231 at 238 (reversed for other reasons (1983) 151 CLR 288). In this case there is no dispute about the primary facts. The dispute is about how the opponent's behaviour should be characterised. Even so the degree of satisfaction required reflects the gravity of the charges against him. 3. Some isolated or passing departure from proper professional standards may amount to something less than proved unfitness; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183. 4. In New South Wales Bar Association v Maddocks (unreported) Court of Appeal, 23 August 1988, a case concerning a barrister's alleged professional misconduct, Kirby P said that it was more likely that the Court would withhold disbarment or suspension where the practitioner had admitted guilt. His Honour said: "This is not simply because such admission may save time and avoid unnecessary controversy. It is because a barrister is more likely to be accepted by judges and fellow practitioners if, despite lapses, he or she acknowledges frankly a recognition of the errors that led to them. Denial which is not accepted, and contest which fails, may reinforce the conclusion of obtuseness or lack of self insight which require action by the Court to protect the public. The community deals with barristers as participants in its institutional arrangements for the administration of justice and the enforcement of the law. That is why very high standards are required by the law and enforced by the Court." 5. The first declaration sought was that the opponent was guilty of professional misconduct. The phrase "professional misconduct" may extend beyond acts closely connected with actual practice, even though not occurring in the course of such practice, to conduct outside the course of practice which manifests the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice; see New South Wales Bar Association v Cummins at para 56. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 404 at 441, Mahoney JA referred to Lord Mansfield LCJ's statement in Ex parte Brounsall (1778) 2 Cowp 830; 98 ER 1385 that the question to be determined by the court was whether the solicitor was "an unfit person to practise as an attorney" (at 830 and 1385). This was affirmed by the English Court of Appeal in In Re Weare; re the Solicitors Act 1888 [1893] 2 QB 439 at 446 where Lord Esher MR said that the court had come to the conclusion: "that this solicitor has been convicted of a criminal offence of such a disgraceful kind that he ought to be struck off the roll. The Court is not bound to strike him off the rolls unless it considers that the criminal offence of which he has been convicted is of such a personally disgraceful character that he ought not to remain a member of that strictly honourable profession." 6. The fact of conviction and sentence is not unchallengeable and conclusive of the ultimate issue. This was the opinion of two members of the majority, Fullagar and Taylor JJ, in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279. At 288 Fullagar J defined the ground on which an order, in that case of disbarment, was to be made by saying that the person in question was not a fit and proper person to be permitted to practise at the bar. "The conviction is not irrelevant: it is admissible prima facie evidence bearing on the ultimate issue, and may be regarded as carrying a degree of disgrace itself. But, in the first place, its weight may be seriously affected by circumstances attending it, and it must be permissible to look at the conduct of the trial. And, in the second place, it is on what the man did that the case must ultimately be decided, and we are bound to ascertain, so far as we can on the material available, the real facts of the case." Taylor J at 303 said: "The vital question, as I have already said and as these considerations show, is whether the conduct of the person concerned, whether it constitutes an offence against the law or not, has been such as to show that he is unfit to remain a member of the bar." The other member of the majority, Kitto J, accepted at 298-9 that the Supreme Court, in that case, was right in refusing to go behind the conviction. But earlier at 298 his Honour had said that it would 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." Of the conviction in that case of the barrister for manslaughter, his Honour said at 299: "The conviction relates to an isolated occasion, and, considered by itself as it must be on this appeal, it does not warrant any conclusion as to the man's general behaviour or inherent qualities. True, it is a conviction of a felony; but the fact that as a matter of technical classification it bears so ugly a name, ugly because the most infamous crimes are comprehended by it, ought to be disregarded, lest judgment be coloured and attention diverted from the true nature of the conviction. It is not a conviction of a pre-meditated crime. It does not indicate a tendency to vice or violence, or any lack of probity. It has neither connection with nor significance for any professional function. Such a conviction is not inconsistent with the previous possession of a deservedly high reputation, and, if the assumption be made that hitherto the barrister in question has been acceptable in the profession and of a character and conduct satisfying its requirements, I cannot think that, when he has undergone the punishment imposed upon him for the one deplorable lapse of which he has been found guilty, any real difficulty would be felt, by his fellow barristers or by judges, in meeting with him and co-operating with him in the life and work of the Bar." See also New South Wales Bar Association v Somosi [2001] NSWCA 285 at paras 74-75. 7. The supervisory jurisdiction of this Court is exercised to protect the community and to ensure that persons not fit to practise as solicitors are not held out by the Court to be so. There is no question of using the occasion to punish the opponent. It is important in a case such as the present, where the opponent has suffered considerably in his two careers and in his personal and family life as a result of his conduct, to bear in mind what the High Court said in New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-4. "The [Supreme] Court did regard certain matters as extenuating circumstances but none of them really bears upon the vital issue, viz. whether the findings of misconduct, which were made, proved the unfitness of the respondent to be a barrister. The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this court in Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-2. The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser." 8. The reputation and standing of the legal profession must be upheld. In New South Wales Bar Association v Hamman [1999] NSWCA 404 at para 87 Mason P said: "These mean little in themselves, but they are an important element in the effectiveness of legal practitioners in their role as ministers of justice. Certain practices send out messages (intended and unintended) about what is acceptable to lawyers and acceptable generally. The response to proven violations also sends out messages." His Honour quoted from an article "Income tax offences by lawyers: An ethical problem" (1972) ABAJ 842 at 845 by Sandford M Stoddard and Carl A Stutsman Jr as follows: "In its own interest, the organised Bar simply cannot permit the public to gain the impression that its members flout the revenue laws or that it condones or tolerates or belittles the seriousness of crimes against the revenue." The legal profession cannot permit the public to gain the impression that it condones or tolerates or belittles the committing by its members of any serious crime. The parties' submissions 81 The claimant submitted that the opponent's convictions and underlying conduct manifested qualities of character which were incompatible with the conduct of legal practice. In particular the conduct constituted a most serious breach of trust on the opponent's part given the paternal like role he had with the victims. The opponent's admission that he gave into temptation and curiosity and found his criminal conduct "exciting and somewhat fascinating" suggested a fundamentally flawed character. The opponent's conviction and underlying conduct were of such a personally disgraceful character as to constitute professional misconduct, deny him good fame and character and render him unfit to be a practitioner. 82 The claimant referred to the provisions of s48K of the Legal Profession Act and pointed out that the opponent now admitted that he made a deliberate and conscious decision not to declare his convictions when applying for employment as a solicitor. After being dismissed by the named firm of solicitors because of his convictions he obtained further locum work with other solicitors without disclosing his convictions. The claimant submitted that the opponent's stated reasons for not disclosing his convictions were unconvincing and suggested a fundamental lack of appreciation on his part of his legal duties as a practitioner. His failure to disclose was not isolated and he took up the untenable position that as a matter of law he was not required to disclose his convictions. 83 Finally, the claimant contended that the opponent owed a duty of candour to the claimant in the particular circumstances of his being charged and then convicted on the later charges and he breached that duty by not disclosing to the claimant those convictions. The particular circumstances which gave rise to the duty of candour were that the claimant, by its letter of 9 October 2000, advised the opponent that the Professional Conduct Committee would be considering what action, if any, should be taken against him in respect of the complaints made against him, that by his letter of 14 October 2000 he said he did not wish to make further submissions and that by his letter of 27 October 2000 he made a detailed written submission in which he argued that the claimant should take no disciplinary action in respect of the matters the subject of the complaint. He referred to the fact that Judge Luland found that the four offences were out of character and were of an isolated nature. The opponent deliberately withheld from the claimant the fact of his conviction of further similar offences to those which, as he well knew, active consideration was being given by the claimant. The seriousness of his conduct was compounded by his seeking to persuade the claimant not to take any disciplinary action in respect of his earlier convictions because of Judge Luland's finding that the offences were isolated. Breach of duty of candour and the insight it provided into the opponent's character were not affected by his ultimate acquittal on appeal. During all the period until that time and indeed thereafter until he filed his affidavit on 31 August 2001, the opponent saw fit to keep the claimant entirely in the dark about these relevant matters. 84 The opponent submitted that the matters referred to in sub-paras (a) – (c) of the amended summons did not either together or individually constitute professional misconduct at common law. Further it was submitted that if the Court found the opponent had been guilty of professional misconduct in all the circumstances of the case it was not one for the making of a striking off order. 85 On the question of misconduct the opponent relied on In re a Solicitor [1956] 1 WLR 1312. In that case, on an appeal to the Queen's Bench Division, an order by the Disciplinary Committee striking the appellant's name off the Roll of Solicitors was set aside and a suspension for two years substituted. The ground for striking him off was conviction and imprisonment for three months on two charges of indecent assault on a "young soldier". In giving the judgment of the Court Lord Goddard CJ said at 1314: "Any case of indecent assault on a male person by another male person is of course a detestable and serious matter. The court would merely observe in this case, having cognisance of these cases from Assizes and in the Court of Criminal Appeal, that so far as this class of case can be regarded as not serious, these were not serious cases, nothing like as serious as many we have before us." 86 In In re H (a Barrister) [1981] 1 WLR 1257 a barrister had been convicted of persistently importuning in a public place for immoral purposes and fined. The disciplinary tribunal suspended him for three months and he appealed to the Visitors of his Inn of Court. At 1260 Latey J observed that the sentence which the Divisional Court imposed in 1956 in what was described as the pre Wolfenden era would in the ordinary run of cases be inappropriate in the changed climate of the post Wolfenden era. The visitors allowed the appeal, set aside the sentence and substituted for it a reprimand without publication. 87 With due respect I think these cases throw little light by comparison or otherwise on the situation where a legal practitioner has been convicted of indecent assault on four occasions on children to whom he stood in the position of father. Nor do I think there is anything to be gained from the remark made in this Court in Prothonotary of the Supreme Court of New South Wales v Chapman (unreported) 14 December 1992 that a conviction of a solicitor for being the keeper of a brothel alone might not be sufficient to warrant a striking off order. 88 The opponent referred to Prothonotary of the Supreme Court of New South Wales v Ritchard (unreported) Court of Appeal, 31 July 1987 in which McHugh JA stated at 8: "The jurisdiction of the court to remove a practitioner from the roll is entirely protective…..an order for the involuntary removal of the name of a practitioner from the roll of solicitors is made only because the probability is that the solicitor is permanently unfit to practise. Unless the court is persuaded that the probability exists, the proper order to make will usually be one of suspension or fine instead of removal." 89 In In re a Practitioner (1984) 36 SASR 590 at 591 King CJ said: "The proper use of suspension is ……for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner." 90 The opponent pointed out that the Court had other options such as administering a reprimand or making a declaration that the solicitor was guilty of unprofessional conduct without taking further action. 91 The opponent relied upon Judge Luland's findings that at the time of the offences the opponent's life was greatly disturbed by his redundancy and the fact that his father was dying of mesothelioma, that his conduct was totally out of character, that the offences were not the most serious examples of indecent assaults, that he brought two of the offences to light himself, that he pleaded guilty from the first opportunity, that he showed great contrition and understanding, that he had been forgiven by the children's mother, who was in court with her father, that the family of the victims, the counsellors and the psychiatrist were all supportive of him and that the offences were isolated and there was "great likelihood" that the behaviour would never occur again. His Honour stated that the case was "exceptional". 92 As to the conduct which led to the convictions, the opponent submitted that the offences were an aberration and totally out of character, committed while he was greatly disturbed, and that he had displayed extreme contrition. He made prompt and full confession to the police because he was concerned at the distress of the children, particularly R's distress at not being believed and L's fear of the police and the Department of Community Services. He relied upon the fact that he sought advice and saw and continued to see Professor McConaghy. He relied upon Professor McConaghy's reports and his opinion that the risk of his re-offending was minimal and that the opponent was a totally honest and trustworthy person showing marked contrition and strong motivation to maintain intensive treatment. It was submitted that the opponent was aware of his duties and responsibilities as a solicitor, in particular the need for absolute trustworthiness. He believed he was able to fulfil those duties. It was submitted that his conduct, reprehensible as it was, did not fall within that category of personal conduct which might be regarded as professional misconduct. Particular emphasis was placed on the statement made by the grand-parents of the two victims, by his fellow employee at the funeral parlour and by each of the professional referees. It was submitted that striking off the solicitor was not necessary for the protection of the public and that such severe action would be purely punitive. 93 The opponent submitted that as a matter of construction there had been no breach of subs 48K(5) of the Legal Profession Act. So far as presently relevant, s48K of the Legal Profession Act provides as follows: "(1) It is professional misconduct if a barrister or solicitor has an associate whom the barrister or solicitor knows to be: (a) a disqualified person, or (b) a person who has been convicted of an indictable offence and does not hold a current practising certificate. (2) Subsection (1) does not apply to an associate approved by: (a) in the case of a disqualified person who is an associate of a barrister – the Bar Council, or (b) in the case of a disqualified person who is an associate of a solicitor – the Law Society Council, (c) in the case of a person who has been convicted of an indictable offence – the Tribunal, or (d) in any case – an Appeal Panel of the Tribunal on an appeal under subsection (3). ….. (5) A disqualified person, or a person convicted of an indictable offence, must not seek to become an associate of a barrister or solicitor unless the person first informs the barrister or solicitor of the disqualification or conviction. Maximum penalty: 10 penalty units. … (7) In this section: associate of a solicitor or barrister means: (a) a person (not being a legal practitioner or interstate legal practitioner) who is a partner of the solicitor or barrister in a business that includes the barrister's or solicitor's practice, or (b) a person (not being a legal practitioner or interstate legal practitioner) who shares the receipts of the barrister's or solicitor's practice, or (c) a person who is employed or paid in connection with the barrister's or solicitor's practice. disqualified person means a person (other than a person who has been convicted of an indictable offence): (a) whose name has, otherwise than at his or her own request, been removed from the roll of legal practitioners in the Supreme Court, or…" 94 Section 48K(1) of the Legal Professional Act seems anomalous. "Associate" is defined to include a person who is employed or paid in connection with the barrister's or solicitor's practice and therefore to include persons employed as secretaries or messengers. It would be curious if it were professional misconduct for a solicitor to have a secretary or messenger whom the solicitor knew to be a person who had been convicted of an indictable offence because that person did not hold a practising certificate, but not professional misconduct for the solicitor to have a partner who held a current practising certificate although the solicitor knew the partner had been convicted of an indictable offence. Founded on that apparent anomaly the opponent submitted that the meaning of subs (5) should be read contrary to its terms so as to enable a person like the opponent convicted of an indictable offence who held a current practising certificate to become an associate of a solicitor without informing the solicitor of the conviction. If the opponent had not held a current practising certificate, he would have been liable to penalty for failing to inform the prospective employer of his conviction. 95 Alternatively, the opponent submitted that if there was a breach of subs (5) that breach did not constitute professional misconduct at common law. The opponent relied on three matters: (i) that he believed that the non-publication order made by the Magistrate remained in force and he did not wish to breach it by disclosing the convictions and thus possibly the identities of the two victims; (ii) he expected that his girlfriend, the victims' mother, and the children would continue their practice of visiting him at work and he did not wish them to be embarrassed; and (iii) he was not aware of any legal obligation to disclose the convictions, which in his view were not relevant to his capacity to work as a solicitor. 96 The opponent submitted that his candour in disclosing to this Court the circumstances surrounding his conviction on 7 November 2000 of four counts of aggravated indecent assault and his acquittal by the District Court on 3 April 2001 is a factor which should weigh heavily in his favour in these proceedings. It was submitted that even when a person seeks admission as a practitioner it is not always the case that the application should disclose the fact of a charge and acquittal; see Prothonotary of the Supreme Court of New South Wales v Del Castillo [2001] NSWCA 75. In that case Heydon JA said that it was not necessary or desirable to consider the principles determining when applicants for admission should disclose charges of which they had been acquitted. He noted that in general the prudent and desirable course for persons in the position of the opponent in that case in future would be to disclose at least the fact of the charge and the acquittal and to offer to supply any further details required. In his submissions the opponent denied that he breached any alleged duty of candour to the claimant by not disclosing the charges and convictions in 2000 and the acquittal in April 2001. 97 This is a curious submission since in cross-examination when asked whether he accepted that in the light of what had been put to him in cross-examination his conviction in 2000 was a relevant matter he said that he could see that it may well have been. "I can see that it probably would have been better to disclose everything to the Law Society and just put everything before them". Asked if he regretted as he sat in the witness box not having disclosed these matters he answered: "Definitely, definitely". 98 In the written submissions the opponent acknowledged the obligation to inform and assist imposed upon him as the subject of a disciplinary inquiry; see Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6 but submitted that he fully discharged that obligation in relation to the investigation by the claimant into the first and second complaints against him. He submitted that there was no obligation upon him to disclose his convictions on 7 November 2000 following the allegations made by his stepdaughter in circumstances where he knew those allegations were false and he had immediately lodged an all grounds appeal. Professional misconduct – conduct of which opponent convicted in 1998 99 In Ziems, part of the difficulty explained by Fullagar and Taylor JJ arose from the unsatisfactory nature of the trial on which the barrister was convicted and the doubt expressed by Fullagar J at 291 and explained by a reasonably probable version of the whole episode which led his Honour to say at 296: "Then, when one looks at the evidence apart from the verdict, it seems to me impossible to say that it justifies a finding that the appellant is not a fit and proper person to practice at the bar." 100 The present case is distinguishable from Ziems for several reasons. The opponent pleaded guilty to four charges. He was properly and justifiably convicted for all four of them. His conduct is accurately described by the nature of the offences for which he was charged which, while they were not the most serious examples of indecent assaults, were still very serious and involved as the opponent conceded in cross-examination serious breaches of trust. The breach of trust has two sides to it. A child relies on the integrity and trustworthiness of the adult who stands in the place of a father. Naturally that trust is absolute and unquestioning and was encouraged by the opponent who sought the affection of the children. On the other hand, the opponent standing in the place of a father assumed the obligation and responsibility of respecting and honouring that trust. In such a situation the child is by reason of her age and experience in life unprotected and vulnerable. By contrast the opponent's power was very great. For these reasons the offences for which the opponent was convicted are rightly regarded by the community as extremely serious and, as Judge Luland pointed out, usually punishable by a custodial sentence. 101 The opponent had the benefit of leniency and mercy on re-sentencing, I do not suggest inappropriately. But the breach of such a trust on four separate occasions entirely undermines what might otherwise have seemed to that point of time to be the good character of the opponent. I do not think that one can, as Kitto J felt he could in Ziems, say that the convictions and the conduct they reflect do not warrant any conclusion as to the opponent's general behaviour or inherent qualities. Nor can it be said that it is conduct that does not reflect upon the professional duty of a solicitor. As has been said many times, the solicitor is in a privileged position. The solicitor's duty is to be faithful to the oath of office, to the courts, to fellow practitioners and most importantly to the clients who may on occasion also be people who are vulnerable and unprotected and who should be able confidently to expect that the solicitor will honour the obligation and responsibility imposed by the relationship of solicitor and client. The sworn duty is a public duty. The administration of justice depends in large measure on the trust the courts and the public place in those who practise the law. 102 The opponent was convicted of four offences, one in mid-April 1997, one at the end of April 1997, one on 3 May 1997 and one on 7 May 1997. After the first of these offences the opponent said he was confused and concerned at his conduct. His reaction was not to go to R's room "for a week". To the police on 19 June 1997 the opponent said he found "some mysterious interest or excitement, or maybe it was just curiosity" in what he did. He did not take it seriously, at least when it started "certainly not that first time with" [R]. On the day after the second offence the opponent reflected on his behaviour with great consternation. He was horrified at what he had done but was not sure what to do. He said he believed that he could ensure that nothing further happened. "I believed that if I sought help, it would automatically be reported to the police, therefore I did not seek any professional assistance." He gave no account of his reaction after the third offence but about four days later he committed the fourth offence. He said he was devastated and did not know what to do. He stopped going into the girls' room at all after they had gone to bed. He was determined that nothing more would happen. He was horrified, embarrassed and ashamed about what had happened and said "it will never happen again." In fact he did nothing else until after 31 May 1997 when B confronted him. Two days later he confessed to a friend and sought help. 103 This is not the case of an isolated offence followed by the taking of steps to ensure it would not be repeated. Despite repeated demonstration that the opponent was unable to control his behaviour he did nothing until B confronted him. Even at that point he denied her allegation. In my opinion, his conduct in 1997 as charged must be regarded as professional misconduct. Professional misconduct – seeking employment from solicitors without disclosing convictions 104 The opponent submitted that s48K(5) must be read with subs (1). Subsection (1) which replaced s121(1) of the Legal Profession Act in force until repealed by the 1993 amendments of the Act, provides that it is professional misconduct if a barrister or solicitor has an associate whom the barrister or solicitor knows to be "a person who has been convicted of an indictable offence and does not hold a current practising certificate". Accordingly, the reference in subs (5) to "a person convicted of an indictable offence", must, it was submitted, also be read as a reference to a person convicted of an indictable offence who does not hold a current practising certificate. This was said to be consistent with subs (2)(c) which in terms referred only to "a person who has been convicted of an indictable offence" but which clearly it was said must be read with subs (1)(b) as referring to "a person who has been convicted of an indictable offence and does not hold a current practising certificate". It was said that the intention of subs (1) was to create two classes of persons in relation to whom approval must be sought before they become an associate of a barrister or a solicitor. The first class was a disqualified person as defined. The second class was a person who had two characteristics, first he or she had been convicted of an indictable offence. Second, he or she did not hold a current practising certificate. 105 The language of subs (5) is clear and achieves a sensible legislative purpose. It is not professional misconduct under subs (1) to employ an associate who has been convicted of an indictable offence but holds a current practising certificate or, if not holding a practising certificate has been approved under subs (2). But quite separately, and for obvious reasons, the barrister or solicitor should know if any person seeking to become an associate has been convicted of an indictable offence. There is no breach of subs (1), it seems, if the associate so employed holds a current practising certificate or is approved. But this is no reason for reading the clear language of subs (5) so as to frustrate the obvious purpose of the subsection. I would reject this part of the opponent's submission. 106 It was submitted that the breach was entirely inadvertent. I do not find these submissions very convincing. Indeed, they verge on special pleading. I do not accept that a solicitor alive to that profession's responsibilities to the court, to clients, and to professional colleagues would not think it inappropriate that someone convicted of an indictable offence should be admitted to work in a solicitor's office as an associate, as defined, without the employer solicitor being informed about the convictions. Clearly enough as the cross-examination revealed, the opponent was anxious to be employed by the various solicitors whom he approached. I have no doubt that he realised that by revealing his conviction he diminished the chances of employment, particularly bearing in mind the seriousness of the charges on which he was convicted. Although I am not persuaded that the opponent was aware of the terms of s48K(5) when he applied for such work, I am quite satisfied that in a general sense he knew that he should have informed the various solicitors of his convictions. However I do not think, in light of the opponent's ignorance of s48K(5), he was guilty of professional misconduct as charged in seeking or obtaining employment as a solicitor without disclosing that he had been convicted of an indictable offence contrary to the provisions of s48K(5). Professional misconduct – failure to disclose November 2000 convictions 107 The opponent's submissions to the claimant, particularly in the correspondence which began on 27 October 2000, relied in part on the factual assertion that the 1997 offences were isolated offences. In that letter in the passages that I have emphasised, he said that he relied on material about his fame and character which Mr Cuddy had previously provided. He contended that the scheme of Pt 10 of the Legal Profession Act was not appropriate because the four convictions "without further circumstances showing defect of fame and character" and in light of mitigating material did not justify removal from the roll of solicitors. Quite plainly, not only did the opponent fail to disclose that he had been charged with four serious offences but he deliberately gave the impression that his character was as had earlier been submitted. This meant that the claimant would be deciding what course should be taken about the complaints against the opponent without reference to the later charges. Thus the opponent failed to reveal to the claimant material, obviously relevant, to enable the claimant to perform its function. 108 In his letter of 21 November 2000 written after his conviction the opponent referred back to and relied upon what had been written on 27 October without indicating that in terms of his fame and character significant and serious additional material had been omitted. As his cross-examination revealed, this material was deliberately omitted. In cross-examination the opponent said that it did not occur to him that the charges, conviction and sentencing to a term of imprisonment were relevant to his submission to the claimant that he was of good fame and character. Later in cross-examination he said that one of the reasons he decided not to disclose these matters to the claimant was a concern he had that the claimant would give a wrong weight to it when deciding whether to institute proceedings or not. This indicated that the claimant knew that the charges, conviction and sentence were relevant to his submission and even so chose not to disclose them. 109 No practising solicitor conscious of the duty of candour would suppose that the claimant could properly judge the solicitor's fame and character without reference to a recent conviction on four charges of serious indictable offences with a sentence of imprisonment imposed. I say nothing of a practitioner's obligation to bring such matters to the attention of the claimant whether under investigation or not. The opponent denied that he breached the duty of candour. That denial in itself indicates a failure to comprehend the duty of candour required of a solicitor when dealing with an investigation by the claimant into the complaints that had been made against him. Decision 110 I am comfortably satisfied that the opponent was guilty of professional misconduct in that (a) he engaged in conduct for which he was, on 20 February 1998, convicted by the Sutherland Local Court of four counts of aggravated indecent assault on persons under the age of sixteen years contrary to s61M of the Crimes Act 1900, and (c) prior to serving his affidavit sworn 31 August 2001 in these proceedings he failed to disclose to the claimant that he had been convicted on 7 November 2000 of further charges of aggravated indecent assault on a person under the age of sixteen years contrary to s61M of the Crimes Act 1900, notwithstanding that at the time of that conviction the solicitor was aware that the claimant was actively considering whether disciplinary action should be taken against him in respect of previous similar convictions as set out in the claimant's letter dated 9 October 2000. 111 I am not persuaded that the opponent was guilty of professional misconduct in, subsequent to his conviction on 20 February 1998, seeking and obtaining employment as a solicitor without disclosing that he had been convicted of an indictable offence contrary to the provisions of s48K(5) of the Legal Profession Act, because I accept his evidence that he was unaware of the terms of that subsection at the time he sought and obtained such employment. 112 I have taken account of all the material favourable to the opponent in the evidence before us which I have summarised above. In particular I take account of his contrition, the evidence that the four offences for which he was convicted in 1998 should be treated as an aberrant episode which was out of character, that his character until that time was unblemished and that he is still regarded by those members of the profession who gave evidence as a person with whom they would be prepared to work professionally. I have regard to the expert opinion that the chance of any recurrence of this conduct is slight. Even so in light of the findings of conduct and non-disclosure, I am comfortably satisfied that the opponent is not a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales. 113 Not only has the opponent fallen below the high standards to be expected of such a practitioner but he has demonstrated a lack of the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner by engaging in the conduct in 1997 for which he was convicted and in failing to disclose his convictions in 2000 to the claimant; compare what was said by King CJ in In re a Practitioner at 591. Accordingly, I do not think that suspension or any other form of order but removal from the roll is appropriate. 114 In my opinion his professional misconduct requires that an order should be made that his name be removed from the Roll of Legal Practitioners. Costs 115 The opponent filed written submissions on costs arguing that in the circumstances of the case the claimant should not be entitled to its costs, even though successful in these proceedings because it had conducted the disciplinary action against the opponent in such a manner as to result in unnecessary litigation and expense. In particular, the opponent refers to the abortive proceedings in the Tribunal where no order was made for costs. The opponent has failed in the proceedings before this Court. That being so, in principle, I see no reason why his liability to pay the claimant's costs of the proceedings should be any the less because the claimant failed in proceedings before the Tribunal. No reason has been advanced that persuades me that the fact that costs were incurred by the opponent in the proceedings before the Tribunal is relevant to the question whether he should be ordered to pay the claimant's costs of these proceedings. In my opinion the opponent should pay the claimant's costs of these proceedings. Orders 116 I propose the following declarations and orders: 1. Declare that the opponent is guilty of professional misconduct in that: (a) the opponent engaged in conduct for which he was, on 20 February 1998, convicted by the Sutherland Local Court of four counts of aggravated indecent assault on person under the age of 16 years contrary to s61M of the Crimes Act 1900 (NSW); (b) prior to serving his affidavit sworn on 31 August 2001 in these proceedings the opponent failed to disclose to the claimant that he had been convicted on 7 November 2000 of further charges of aggravated indecent assault on a person under the age of 16 years contrary to s61M of the Crimes Act 1900 (NSW) notwithstanding that at the time of that conviction the opponent was aware that the claimant was actively considering whether disciplinary action should be taken against the opponent in respect of previous similar convictions as set out in the claimant's letter dated 9 October 2000. 2. Declare that in the light of the matters in para 1 above the opponent is not a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales. 3. Order that the name of the opponent be removed from the Roll of Legal Practitioners. 4. Order that the opponent pay the claimant's costs of these proceedings. 117 GILES JA: Subject to the following remarks, I am in general agreement with the reasons of Sheller JA. His Honour's detailed account, which I have had the advantage of reading in draft, enables me to state my conclusions with brevity. 118 I agree with Sheller JA that the opponent's conduct for which he was convicted in February 1998 should be found to have been professional misconduct. For the reasons given by his Honour, the nature and circumstances of the conduct, although not in the practice of the opponent's profession, were incompatible with the qualities of character and trustworthiness required of a member of his profession. 119 I agree with Sheller JA that the opponent's failure to disclose the February 1998 convictions when seeking employment should not be found to have been professional misconduct. For the reasons given by his Honour, s 48K(5) of the Legal Profession Act 1987 required that the opponent inform the solicitors from whom he sought employment of his convictions. But the opponent's ignorance of that provision means that the professional misconduct as charged has not been made out, notwithstanding that the opponent believed that disclosure could jeopardise his prospects of employment and so must have appreciated that it was likely to be material to a prospective employer. 120 My reasoning in relation to the opponent's failure to disclose the November 2000 convictions to the claimant differs slightly from that of Sheller JA. 121 I do not attribute to the opponent's acceptance in cross-examination that it would have been better to make disclosure of the convictions, and his regret that he had not done so, subjective recognition of breach of an obligation of candour. In my opinion, in both respects the opponent intended to acknowledge the unhappy situation to which non-disclosure of the convictions had led rather than breach of obligation. 122 The opponent thought about his obligations, and for the reasons he gave concluded that disclosure was not required. A prudent and desirable course have been to disclose the convictions even if disclosure was not required. But the question is whether disclosure was required, and whether in taking the course he did the opponent departed from the standards of honesty and candour required of a member of his profession and misled the claimant. 123 Important to this is what the opponent was addressing in his correspondence with the claimant in October-November 2000. On my reading of the relevant correspondence, he was addressing whether the conduct for which he was convicted in February 1998 warranted his removal from the Roll. In that connection, he put himself forward as a man who had not otherwise offended. For our purposes, and as borne out by the fate of the later charges, that was correct. 124 But the November 2000 convictions were relevant to the claimant's decisions in relation to the conduct for which the opponent was convicted in February 1998. Had the opponent not been appealing, it could not have been said that the fact of the convictions was not material to the claimant's decisions, because the convictions bore upon his reputation and his character no matter how much he protested his innocence. In fact he was appealing. But it was not for him to pre-empt for the claimant the result of the appeals. At the least the convictions were relevant to the claimant's decisions in that the claimant might have deferred its decision until the result of the appeals was known. Beyond that, the fact that the opponent was appealing and was confident of the result did not take away that he stood convicted unless and until his appeals were successful, and could not at that time put himself forward as without further blemish on his fame and character. 125 Error of judgment does not mean unfitness to practise. I have not found the categorisation easy, but I have concluded that the opponent's failure to disclose the November 2000 convictions was more than an error of judgment. He made a conscious decision not to disclose the convictions. In his evidence before us he gave a number of reasons for his decision, one of which was that he was concerned that disclosure could have a prejudicial effect in the claimant's decision-making. That it could do so was obvious, and in my opinion the opponent succumbed to the temptation of keeping from the claimant something clearly relevant to its decisions because he feared that disclosure would be against his interests. That was not simply an error of judgment. It was misleading, and incompatible with "the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner": in re a Practitioner (1984) 36 SASR 590 at 591. It was professional misconduct. It may be observed that this aspect of the opponent's conduct was not covered by the evidence of the referees. 126 In the result, therefore, the opponent's conduct in 1997 did not meet the high standards required of a member of his profession; nor did his conduct in October-November 2000; and at each time there was breach of a trust reposed in the opponent, by the children to whom he was in the position of a father and by the claimant as his governing body. In combination, in my view, the separate episodes show that, in the public interest, the opponent should be found to be unfit to engage in legal practice. 127 I agree with Sheller JA that the solicitor's professional misconduct requires an order that he be removed from the Roll. I also agree with what his Honour says in relation to costs. The declarations and orders proposed by his Honour should be made. ***** 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.