New South Wales Supreme Court CITATION : Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 HEARING DATE(S) : 24 October 2006, 25 October 2006, 26 October 2006, 8 November 2006 JUDGMENT DATE : 5 December 2006 JUDGMENT OF : Johnson J at 1 DECISION : Amended Summons dismissed. CATCHWORDS : LEGAL PRACTITIONERS - appeal to Supreme Court from refusal by Legal Practitioners Admission Board to declare Plaintiff to be of good fame and character and otherwise suitable for admission as a legal practitioner - appeal by way of de novo hearing - role of Board on hearing of appeal - earlier criminal proceedings against Plaintiff for two alleged offences of perverting the course of justice contrary to s.319 Crimes Act 1900 - Plaintiff acquitted on one count and (following appeal) Crown determines not to proceed further on second count - approach to resolution of disputed factual issues on appeal - onus and standard of proof - whether Plaintiff made false statutory declaration and gave false evidence in 1996 wrongly claiming that she was driver of motor vehicle at time of red-light traffic offence - meaning of "good fame and character" - duty of candour on application for admission - finding on appeal that Plaintiff gave glaringly improbable evidence - held Plaintiff not of good fame and character and otherwise suitable for admission as legal practitioner Legal Profession Act 1987 Legal Profession Act 2004 Evidence Act 1995 Crimes Act 1900 LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 Crimes (Sentencing Procedure) Act 1999 Listening Devices Act 1984 Justices Act 1902 Criminal Appeal Act 1912 Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51 Re B (1981) 2 NSWLR 372 A Solicitor v Council of Law Society of NSW [2004] 216 CLR 253 Morrissey v The New South Wales Bar Association [2006] NSWSC 323 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Veghelyi v Council of the Law Society of NSW (1989) 17 NSWLR 669 Doherty v Law Society of NSW [2003] NSWSC 105 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Frugtniet v Board of Examiners (No. 2) [2005] VSC 332 Board of Examiners v XY [2006] VSCA 190 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Wentworth v NSW Bar Association (1992) 176 CLR 239 Gersten v Law Society of NSW (2002) 56 NSWLR 16 Skerritt v Legal Practice Board of WA [2004] WASCA 28 Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported, BC9402256) Helton v Allen (1940) 63 CLR 691 Rejfek v McElroy (1965) 112 CLR 517 Bannister v Walton (1993) 30 NSWLR 699 Kriss v Legal Practitioners Admission Board [2002] NSWSC 967 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 Briginshaw v Briginshaw (1938) 60 CLR 336 B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 Stanoevski v Council of the Law Society of NSW [2005] NSWCA 428 In Re Davis (1947) 75 CLR 409 Melbourne v The Queen (1999) 198 CLR 1 CASES CITED : Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Barristers Board v Khan [2001] QCA 92 Re Hampton [2002] QCA 129 Thomas v Legal Practitioners Admission Board [2004] QCA 407 Re Bell [2005] QCA 151 Legal Practitioners Complaints Committee v Palumbo [2005] WASC 129 Barristers' Board v Darveniza (2000) 112 A Crim R 438 Frugtniet v Board of Examiners (No. 1) [2002] VSC 140 Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470 R v Subramaniam [2000] NSWCCA 441 R v Subramaniam [2002] NSWCCA 372 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Prothonotary of the Supreme Court of NSW v Del Castillo [2001] NSWCA 75 Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77 R v Murphy (1985) 4 NSWLR 42 R v Drummond and Domican (No. 2) (1990) 46 A Crim R 408 Prothonotary of the Supreme Court of NSW v Helen Maria Coughlan (Dowd J, 21 April 1998, unreported) R v Smith [2000] NSWCCA 202 Burns v The Queen (1975) 132 CLR 258 R v Green (2002) 4 VR 471 R v Pederick (NSW Court of Criminal Appeal, 21 May 1997, unreported, BC9701982) Mallard v The Queen (2005) 80 ALJR 160; [2005] HCA 68 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 Smith v NSW Bar Association (1992) 176 CLR 256 Thomas v Legal Practitioners Admission Board (2005) 1 QdR 331 Smith v NSW Bar Association (1992) 176 CLR 256 PARTIES : Kala Jackson (previously known as Kala Subramaniam) (Plaintiff) Legal Practitioners Admission Board (Defendant) FILE NUMBER(S) : SC 12670/2003 COUNSEL : Mr T Hall, Solicitor (Plaintiff) Ms TJ Anderson (Defendant) SOLICITORS : Hal Lawyers (Plaintiff) IV Knight, Crown Solicitor's Office (Defendant) LOWER COURT DATE OF DECISION : --- LOWER COURT MEDIUM NEUTRAL CITATION : --- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Johnson J 5 December 2006 12670/2003 Kala Jackson (previously known as Kala Subramaniam) v Legal Practitioners Admission Board JUDGMENT 1 JOHNSON J: The Plaintiff, Kala Jackson (previously known as Kala Subramaniam), appeals to this Court under s.14 Legal Profession Act 1987 ("the 1987 Act") against the refusal by the Defendant, the Legal Practitioners Admission Board ("the Board"), to declare that it was satisfied that she was of good fame and character and otherwise suitable for admission as a legal practitioner. 2 A number of the factual questions falling for determination in the present appeal have been considered in earlier criminal proceedings which reached the High Court of Australia: Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51. The Plaintiff does not stand convicted of any criminal offence. However, consideration of the question whether the Plaintiff is now of good fame and character and otherwise suitable for admission as a legal practitioner will involve a determination as to whether, in February 1996, she knowingly made a false statutory declaration and whether, in August 1996, she knowingly gave false evidence in related District Court proceedings concerning the identity of the driver of a motor vehicle which passed through a red traffic light in August 1995. The Board's Decision under the 1987 Act 3 On 19 August 2003, the Board resolved to refuse the Plaintiff's application for admission. In circumstances that will be explained later in this judgment, the Board was requested to consider further material in support of the Plaintiff's application. On 8 February 2005, the Board resolved not to alter its decision to refuse to the Plaintiff a declaration that she is of good fame and character and otherwise suitable for admission. 4 The present proceedings were commenced by Summons filed on 13 October 2003. By her Amended Summons filed 17 February 2004, the Plaintiff claims, inter alia, a declaration that she is of good fame and character and is otherwise suitable for admission as a legal practitioner to the Supreme Court of New South Wales. 5 The Legal Profession Act 2004 ("the 2004 Act") commenced on 1 October 2005. Clause 22 of Schedule 9 to the 2004 Act provides that an appeal that was pending under or in relation to any matter under the 1987 Act immediately before 1 October 2005 is to be dealt with as if the 2004 Act had not been enacted, except insofar as a direction of the Supreme Court under Clause 22 otherwise provides. It was common ground before me that the present appeal ought be determined under the 1987 Act. 6 With the commencement of the 2004 Act, the Board is now entitled the Legal Profession Admission Board: s.679(1); Clause 19(1) of Schedule 9, 2004 Act. Relevant Provisions in the 1987 Act 7 It is appropriate to refer to several provisions in the 1987 Act. Section 4 provides for admission by the Supreme Court of persons approved by the Board as suitable candidates for admission as legal practitioners. Section 4 provides: "4 Admission of legal practitioners (1) The Supreme Court may admit and enrol natural persons as legal practitioners in accordance with subsection (2). (2) The Supreme Court is, on any day appointed by the Supreme Court for the purpose, to hear and determine any application made for the admission as a legal practitioner of a person approved by the Admission Board as a suitable candidate for admission." 8 Section 17 revokes the inherent power or jurisdiction of the Supreme Court to admit barristers, solicitors or legal practitioners. Section 17 provides: "17 Miscellaneous provisions respecting admission (1) Persons cannot be admitted or enrolled as barristers or solicitors. (2) Any inherent power or jurisdiction of the Supreme Court to admit barristers and solicitors (or legal practitioners) is revoked. (3) The Supreme Court Charter remains revoked in New South Wales in so far as it relates to the admission of barristers, advocates, proctors, solicitors and attorneys." 9 The effect of s.17 of the 1987 Act was to remove the inherent power or jurisdiction of the Supreme Court to admit (or not admit) a person as a barrister, this power or jurisdiction having been considered and exercised in Re B (1981) 2 NSWLR 372; cf A Solicitor v Council of Law Society of NSW [2004] 216 CLR 253 at 260-261 [2]-[3]. 10 Division 2 of Part 2 of the 1987 Act provides for the constitution and membership of the Board (ss.9-10) and provides for the Board to make rules for or with respect to a number of matters, including the qualifications for admission as a legal practitioner (s.6). 11 Division 3 of Part 2 of the 1987 Act (ss.11-16) relates to the suitability of candidates for admission. As the provisions in this Division set out the functions of the Board exercised in this case and allow for appeal to this Court, it is appropriate to set them out: " Division 3 Suitability of candidate for admission 11 Character and suitability of candidates A candidate, however qualified in other respects, must not be admitted as a legal practitioner unless the Admission Board is satisfied that the candidate is of good fame and character and is otherwise suitable for admission. 12 Declaration on character and suitability (1) When the Admission Board considers an application for admission as a legal practitioner, it must consider whether it is satisfied that the candidate is of good fame and character and is otherwise suitable for admission. (2) Unless the Admission Board declares that it is satisfied that the candidate is of good fame and character and is otherwise suitable for admission, it must refuse to approve of the application for admission. (3) The Admission Board must notify the Bar Council and the Law Society Council in accordance with the admission rules of any application for admission (unless a declaration has been made under section 13 with respect to the applicant). 13 Early consideration of character and suitability (1) A person may apply to the Admission Board for a declaration that matters disclosed by the person will not, without more, adversely affect an assessment by the Board of his or her good fame or character or suitability for admission. (2) (Repealed) (3) The applicant must serve a copy of the application on the Bar Council and the Law Society Council in accordance with the admission rules. (4) The Admission Board is to consider each application under this section and make the declaration sought or refuse to do so. 13A Admission Board may refer certain matters to Supreme Court (1) The Admission Board may refer to the Supreme Court any application for admission as a legal practitioner if, in the opinion of the Admission Board, it would be more practical in the circumstances of the case for the Supreme Court to consider whether or not the candidate is of good fame and character or is otherwise suitable for admission. (2) The Supreme Court has the same powers as the Admission Board to deal with an application and its decision on an application is taken to be a decision of the Admission Board. (3) On a referral under this section, the Supreme Court may make such order or declaration as it thinks fit. (4) Nothing in this section affects the operation of section 17. 14 Appeals (1) If approval of an application for admission as a legal practitioner is refused by the Admission Board under section 12, the applicant may appeal to the Supreme Court against the refusal. (2) If a declaration sought under section 13 is refused, the applicant may appeal to the Supreme Court against the refusal of the declaration. (3) If a declaration is made under section 12 or 13, a Council may appeal to the Supreme Court against the making of the declaration. The applicant is entitled to be represented and to be heard on the appeal. (4) An appeal under this section is to be by way of rehearing and fresh evidence, or evidence in addition to or substitution for the evidence before the Admission Board, may be given on the appeal. (5) A Judge is disqualified from hearing an appeal under this section if the Judge was a member of the Admission Board when it made the decision to which the appeal relates. (6) On an appeal under this section, the Supreme Court may make such order or declaration as it thinks fit. 15 Binding effect of declaration A declaration made under section 13, or an order or declaration of the Supreme Court under section 13A or 14, is binding on the Admission Board unless the applicant failed to make a full and fair disclosure of all matters relevant to the declaration sought on the application or appeal. 16 Representation by Councils (1) A Council is entitled to be represented before, and to be heard by, the Supreme Court at an inquiry under section 13A or on an appeal under section 14. (2) A Council is entitled to be represented before, and to be heard by, the Admission Board at an inquiry into a matter under this Division. A Council may make representations in writing to the Admission Board on any such matter. (3) The applicant concerned in the matter before the Admission Board, or before the Supreme Court under section 13A, is also entitled to be represented and heard at the inquiry and to make representations." 12 It is clear from ss.11 and 12 that the Board must not approve an application for admission unless it declares that the candidate is of good fame and character and is otherwise suitable for admission. Section 13A of the 1987 Act provided a mechanism whereby the Board could refer to the Supreme Court an application for admission if the Board was of the opinion that it would be more practical in the circumstances of the case for the Court to consider whether or not the candidate is of good fame and character or is otherwise suitable for admission. I note that, in another case, the Board has utilised this referral power under s.27(1) of the 2004 Act, the equivalent to s.13A of the 1987 Act: Morrissey v The New South Wales Bar Association [2006] NSWSC 323. However, in the present case, the Board determined the Plaintiff's application by refusing it upon the basis that it was not satisfied of the Plaintiff's good fame and character and that she was otherwise suitable for admission. Nature of Appeal 13 An appeal under s.14(1) is an appeal from the decision of an administrative body to the Court. It is common ground before me that an appeal to this Court under s.14 of the 1987 Act proceeds by way of hearing de novo: s.14(4); Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621; cf Veghelyi v Council of the Law Society of NSW (1989) 17 NSWLR 669 at 673-674; Doherty v Law Society of NSW [2003] NSWSC 105 at [4]. On a s.14 appeal, the Court may make such order or declaration as it thinks fit: s.14(6). The power to make such order or declaration as the Court thinks fit indicates that the Court's appellate powers are not constrained by the need to find error on the part of the primary decision maker but, rather, that the Court is obliged to give its own decision on the evidence before it: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 204 [15]. The statutory scheme enacted by the 1987 Act created an avenue of appeal against a refusal of admission, such an appeal not having been open in earlier times: Re B at 396, 403. 14 On this appeal, the Court is not concerned with the question whether the Board has made any error of fact or law and the appeal does not depend upon showing any error at first instance: Frugtniet v Board of Examiners (No. 2) [2005] VSC 332 at [8]. 15 The issue on this appeal is whether, having regard to the evidence adduced at the hearing of the appeal, I am satisfied that the Plaintiff is of good fame and character and is otherwise suitable for admission as a legal practitioner. The Role of the Board on Appeal 16 The Plaintiff has commenced proceedings nominating the Board as the sole Defendant. The Council of the New South Wales Bar Association and the Council of the Law Society of New South Wales have a statutory entitlement to be represented before this Court on a s.14 appeal: s.16(1). The Plaintiff did not join either Council as a party to the proceedings and neither Council has sought to be added as a party. 17 At the commencement of the hearing before me, Ms Anderson, counsel for the Board, submitted that the Board's appearance in the appeal would be limited to assisting the Court in determining the question whether the Plaintiff is of good fame and character and is otherwise suitable for admission. The Board did not oppose the orders sought by the Plaintiff and it did not seek to participate in the proceedings as an ordinary litigant with a vested interest. In this respect, Ms Anderson relied upon the decision of the Victorian Court of Appeal in Board of Examiners v XY [2006] VSCA 190 and, in particular, the statements of Chernov JA (Nettle and Neave JJA agreeing) at [18]-[20] and [25]. 18 In Board of Examiners v XY, Chernov JA observed, at [25], that the Board of Examiners is a statutory body that performs a quasi-judicial function in the public interest and appears on an appeal brought against its decision, not as a protagonist, but only for the purpose of assisting the Court. I accept that the function of the Board in the present appeal is similar to that of the Board of Examiners in Victoria as characterised by Chernov JA in Board of Examiners v XY. 19 This is not a claim for prerogative relief where a possible outcome is that the matter may be remitted to the original decision maker for reconsideration. It is the Court which will now exercise its original jurisdiction, by way of de novo hearing, and determine for itself the question whether the Plaintiff is of good fame and character and is otherwise suitable for admission. Considerations of the type mentioned in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 do not arise in this case. 20 In Re B, Moffitt P observed at 374-375, that where the ultimate decision as to whether a person is of good character depends upon a determination of disputed factual questions, including questions of credit, the Court is better equipped to deal with those issues than a body constituted such as the Board. A Court is in a position to decide matters of fact which are open to question, and the consequential question of good fame and character, aided as it can be by the presentation of evidence, and cross-examination upon it by counsel, and by hearing their submissions. 21 In circumstances where the Plaintiff did not join the Council of the Bar Association or the Council of the Law Society and neither Council has sought to be added as a party to the proceedings, it is, in my view, appropriate for the Board to fulfil the function exercised by counsel appearing for it on this appeal. It is necessary that evidence adduced by the Plaintiff bearing upon her good fame and character be tested by cross-examination, and that other evidence bearing upon the same issue be adduced before this Court to enable it to fulfil the statutory function under a s.14 appeal. 22 If the Board had not taken the approach which it has, I would, in any event, have requested the Council of the Bar Association or the Council of the Law Society to participate in the hearing or, alternatively, requested the Attorney-General to appoint counsel to act as amicus curiae on the hearing of the appeal. In the result, this is the function which Ms Anderson has fulfilled on behalf of the Board at the hearing of the appeal. The involvement of the Board at the hearing has assisted the Court in the determination of the matters falling for determination which, as will be seen, involve the public interest and the protection of the public. Proceedings for Admission to the Legal Profession 23 The present proceedings seek the Plaintiff's admission to the legal profession. It has been said that admission proceedings are not ordinary legal proceedings directed to the resolution of a contest as to the private rights of the disputing parties. Admission proceedings are "sui generis". Protection of the public is a significant feature of admission proceedings. In Wentworth v NSW Bar Association (1992) 176 CLR 239, Deane, Dawson, Toohey and Gaudron JJ said at 250-251: "The nature of proceedings concerned with the admission and discipline of barristers tells decisively against the construction of s.51(b) advanced on behalf of Ms Wentworth. There are, of course, differences between admission and disciplinary proceedings. Those differences flow from the different issues involved. However, disciplinary and admission proceedings are alike in that they are not ordinary legal proceedings. Admission proceedings are not directed to the resolution of some contest as to the private rights of disputing parties, as is usually the case with civil proceedings. And as has often been said, disciplinary proceedings are not criminal proceedings [ Weaver v. Law Society of New South Wales (1979) 142 CLR 201, at p 207; Re Veron; Ex parte Law Society of N.S.W . (1966) 84 WN (Pt.1)(N.S.W.) 136, at p 141; Attorney-General of the Gambia v. N'Jie 1961 AC 617, at p 631]. Disciplinary proceedings and admission proceedings are 'sui generis' [Weaver v. Law Society of New South Wales (1979) 142 CLR 201 at p 207] , a case concerned with disciplinary proceedings. Disciplinary proceedings have been described as proceedings concerned with the protection of the public [ Clyne v. N.S.W. Bar Association (1960) 104 CLR 186, at pp 201-202; New South Wales Bar Association v. Evatt (1968) 117 CLR 177, at pp 183-184; Weaver v. Law Society of New South Wales (1979) 142 CLR, at p 207; Walter v. Council of Qld Law Society (1988) 62 ALJR 153, at p 157; 77 ALR 228, at p 235] . And it has been said that, because they have the protection of the public as one of their primary objects, they cannot necessarily be determined on the same basis as adversarial proceedings [ Walter v. Council of Qld Law Society (1988) 62 ALJR, at p 157; p 235 of ALR]. That is also true of admission proceedings, although that may be more obvious in cases concerned with readmission. In any event, the right to practise in the courts is such that, on an application for admission, the court concerned must ensure, so far as possible, that the public is protected [ Re B (1981) 2 NSWLR, at p 380 and see, in relation to readmission, Incorporated Law Institute of New South Wales v. Meagher (1909) 9 CLR 655, at p 661] from those who are not properly qualified and, to use the language of s.4(2) of the Act, from those who are not 'suitable ... for admission'." 24 The exercise of the power of the Supreme Court on appeal under s.14 of the 1987 Act to admit or not admit a person as a legal practitioner does not involve punishment, but a determination whether the Court is justified in holding out the person as a fit and proper person to be entrusted with the duties and responsibilities of a legal practitioner: A Solicitor v Council of the Law Society of NSW at 264 [12]. 25 The jurisdiction of the Court to admit legal practitioners, and to discipline them once admitted, is exercisable in the public interest and for the protection of the public: Gersten v Law Society of NSW (2002) 56 NSWLR 16 at 24 [53]. 26 Matters relevant to a person's fitness for admission include matters which might, as a matter of ordinary experience, put the Court or any interested person on notice that further enquiry as to the applicant's fitness to practice may be prudent: Skerritt v Legal Practice Board of WA [2004] WASCA 28 at [48]. Onus and Standard of Proof 27 It was common ground that, on the hearing of this appeal, the onus lies on the Plaintiff to satisfy the Court that she is of good fame and character and is otherwise suitable for admission as a legal practitioner: cf Re B at 403; Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported, BC9402256 at page 5). 28 The evidence reveals that the Plaintiff has satisfied the academic requirements for admission. Although, as will be seen, real issues arose concerning the Plaintiff's mental condition between 2001 and 2003, it appears that there is no current issue with respect to the Plaintiff's mental fitness. Through Ms Anderson, the Board has indicated that it has no present concern in this regard. The central factual issues in the appeal relate to the circumstances in which the Plaintiff made a statutory declaration and gave evidence in 1996, where a body of disputed evidence indicates that the Plaintiff did so falsely. 29 There has been debate as to the applicable standard of proof and the manner in which I should approach the task of fact finding in the proceedings. Does s.140 Evidence Act 1995 Apply ? 30 Admission proceedings are not automatically determined in accordance with rules and procedures applied in ordinary adversarial proceedings. In Wentworth v NSW Bar Association, Deane, Dawson, Toohey and Gaudron JJ observed (at 251) that this was a consequence of the protective nature of the jurisdiction: "And the consequence is that, as with disciplinary proceedings, admission proceedings are not automatically determined in accordance with rules and procedures applied in ordinary adversarial proceedings. Both the nature and purpose of admission and disciplinary proceedings indicate that, unless and save to the extent that specific procedures are laid down by statute or by rules of court, and subject, of course, to the requirements of procedural fairness, they may be conducted in whatever manner the court considers appropriate to the matter before it." 31 The Board is not appearing as an ordinary litigant on this appeal with a case to advance in the usual way in contested adversarial litigation. Rather, counsel for the Board is fulfilling the function of counsel assisting in placing relevant evidence before the Court and testing evidence adduced by the Plaintiff. 32 Ms Anderson submits that there is doubt that the Evidence Act 1995 applies to this appeal, given the peculiar and non-adversarial nature of an admission application: Wentworth v NSW Bar Association at 250-251. Ms Anderson submits that the question for determination on this appeal is the statutory question under ss.11 and 12 of the 1987 Act, namely whether I am satisfied that the Plaintiff is of good fame and character and is otherwise suitable for admission. 33 I agree with Ms Anderson's submission that the statute poses the question to be asked and answered by me on this appeal. Given that the question is being asked in curial proceedings, by way of statutory appeal, what level of satisfaction is required before an answer may be given in the Plaintiff's favour? 34 There is no provision in the 1987 Act which excludes the Evidence Act 1995 from application to a s.14 appeal. Section 4(1) Evidence Act 1995 provides that the Act applies in relation to all proceedings in a New South Wales court. Of course, the definition of "NSW court" in the Dictionary to the Act includes the Supreme Court. The term "civil proceeding" is defined in the Dictionary as meaning a proceeding other than a criminal proceeding. Prima facie, s.140(1) Evidence Act 1995 applies to the present proceedings. The Plaintiff bears the onus of proof, on the balance of probabilities, in these civil proceedings: s.140(1) Evidence Act 1995. The Board does not bear any onus of proof. 35 If these were disciplinary proceedings seeking the removal of the Plaintiff from the roll of legal practitioners, the onus of proof would lie upon the party seeking such an order and the standard of proof to be applied would be the civil standard, proof on the balance of probabilities, being qualified having regard to the gravity of the questions to be determined. The test has been said to be whether the issue has been proved to the reasonable satisfaction of the court or tribunal, such satisfaction not being produced by inexact proofs, indefinite testimony or indirect inferences: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 701; Rejfek v McElroy (1965) 112 CLR 517 at 521. The court or tribunal should be comfortably satisfied, on the balance of probabilities, before such a finding is made: Bannister v Walton (1993) 30 NSWLR 699 at 711-712. 36 If the Plaintiff had been struck off and was making application for readmission as a legal practitioner, the onus would lie upon her to satisfy the Court that she is now a person of good fame and character and is fit to be admitted as a legal practitioner: Kriss v Legal Practitioners Admission Board [2002] NSWSC 967 at [71]. On such an application, it has been said that the applicant must discharge the onus of proving to the satisfaction of the relevant tribunal his or her present fitness to practice on solid and substantial grounds: Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 98. 37 I approach the resolution of the present proceedings upon the basis that the Plaintiff bears the ultimate onus of proving, on the balance of probabilities, that she is of good fame and character and otherwise suitable for admission as a legal practitioner. Approach to Resolution of Disputed Factual Issues Where Impropriety Alleged Against the Plaintiff 38 There are significant areas of factual dispute to resolve on this appeal. The Plaintiff claims that she is of good fame and character. She denies that she made a false statutory declaration and gave false evidence in the District Court in 1996. There is evidence before the Court which indicates that the Plaintiff did act in this way. What approach should be taken to the resolution of these factual issues on this appeal? 39 Mr Hall, for the Plaintiff, submitted that I should not find that the Plaintiff made a false statutory declaration and/or gave false evidence in the District Court unless I was reasonably satisfied, on the balance of probabilities, that she had so acted in accordance with the Briginshaw principle. 40 In B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 at 460, McHugh JA (as his Honour then was) observed that, in Briginshaw, the High Court held that at common law only two standards of proof existed - the ordinary civil standard of proof upon a balance or preponderance of probabilities and the criminal standard of proof beyond reasonable doubt. McHugh J continued at 460: "However, although in Briginshaw their Honours held that only two standards of proof existed at common law, they recognised that satisfaction as to the civil standard of proof does not involve a mechanical weighing of probabilities. Thus while Dixon J said (at 362) that, except in a trial upon a criminal issue, the affirmative of an allegation only needs to be made out 'to the reasonable satisfaction of the tribunal', he went on to say that reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. This led Dixon J to declare (at 362) that reasonable satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences'. Rich J pointed out (at 350) that in a serious matter the satisfaction of 'a just and prudent mind' could not be produced by slender and exiguous proofs of circumstances pointing with a wavering finger to an affirmative conclusion." 41 McHugh JA said at 461: " Briginshaw decided that the standard of proof in a civil case was the balance of probability but it also decided that satisfaction as to whether that balance had been established depended upon the gravity of the allegation and its consequences. This distinction between quantum of proof and satisfaction as to proof may seem unsatisfactory to many minds. But it is a distinction which the law has long recognised." 42 The rationale for this approach was explained in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 (footnotes excluded): "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involved criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." 43 In Stanoevski v Council of the Law Society of NSW [2005] NSWCA 428, Mason P at [49] observed that the Briginshaw principle is a guide as to judicial method in resolving factual issues in professional disciplinary proceedings. 44 In The Matter of An Application by Deo [2005] NTSC 58, BR Martin CJ considered the approach to determination of an application for admission which was objected to by the Northern Territory Law Society, which participated at the hearing. The Chief Justice said at [4]: "The only questions in issue are whether the court should be satisfied that the application is of good fame and character and a fit and proper person to be admitted to practise. While the applicant's past conduct is relevant to a determination of these critical issues, and for that reason evidence as to past conduct is admissible, the question is not whether the applicant was in the past a fit and proper person to be admitted to practise but whether he is, today, of good fame and character and a fit and proper person to be admitted. The burden rests on the applicant to satisfy the Court of those matters, but where the Law Society has objected to the application and, in support of the objection, asserts the existence of facts adverse to the application, the burden rests upon the Law Society to satisfy the Court of the existence of those adverse facts." 45 It is accepted by the Plaintiff and the Board that the Plaintiff carries the onus of proof in these proceedings. In practical terms, what does that mean in the circumstances of this case? 46 The jurisdiction which I am exercising is not a punitive one. It is exercisable in the public interest and for the protection of the public: Wentworth v NSW Bar Association at 251. Subject to the requirements of procedural fairness, the proceedings may be conducted in whatever manner the court considers appropriate to the matter before it: Wentworth v NSW Bar Association at 251. 47 Where serious allegations of improper conduct are raised on an application for admission, and are disputed by the applicant, it is necessary to devise a mechanism for resolution of those disputed matters. The approach of BR Martin CJ in Deo (see paragraph 44 above) is of assistance to the present case. 48 The Board has tendered evidence, called witnesses and cross-examined the Plaintiff's witnesses on topics which bear upon the issues to be determined. Given the approach which I have allowed the Board to adopt on this appeal, the function performed by counsel for the Board is analogous to that of counsel assisting a Royal Commission or investigative tribunal. In the Final Report of the Royal Commission into the Building and Construction Industry, (Volume 2, February 2003, page 49), Commissioner Cole QC observed: "I do not regard the concept of the onus of proof as applicable in the context of a Royal Commission. That is because, in leading evidence during hearings of the Commission, Counsel Assisting were not putting a case. They were participants in an investigation. If, in accordance with the approach I have just outlined, I was reasonably satisfied that certain events had occurred, then I found that they had occurred. If I did not reach that level of satisfaction, I did not make that finding. That was, however, as a result of the application of the relevant standard of proof. It was not because Counsel Assisting had failed to discharge any onus." In approaching this fact-finding process, a Royal Commission or investigative tribunal will not make findings adverse to an individual unless satisfied in accordance with the principles in Briginshaw and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd . 49 Given the nature of the alleged misconduct raised in the evidence adduced by counsel for the Board, I will approach the fact-finding process on this appeal upon the basis that I should not find as a fact that the Plaintiff made a false statutory declaration in February 1996, or gave false evidence in the District Court in August 1996, unless I am reasonably satisfied, on the balance of probabilities, that the Plaintiff did act in such a way. If such findings of fact are made, they will bear directly upon the ultimate issue, namely whether the Plaintiff has satisfied me that she is of good fame and character and is otherwise suitable for admission as a legal practitioner. I am satisfied that this approach will accord with the requirements of procedural fairness (Wentworth v NSW Bar Association at 251) in the circumstances of this case. The Meaning of "Good Fame and Character" in the 1987 Act 50 It is a requirement for admission as a legal practitioner under the 1987 Act (ss.11-12), and the 2004 Act (s.9(1)(a)), that the Board be satisfied that a candidate is of good fame and character. This condition precedent is a long-standing and well-recognised one (s.9 Legal Practitioners Act 1898; Re B at 376). Fame and Character 51 The phrase "good fame and character" in ss.11-12 of the 1987 Act must be examined in the context of a statute concerned with the admission of candidates as member of the legal profession. A person may be of good fame (good reputation amongst those who then knew him or her), but intrinsic character is a different matter: In Re Davis (1947) 75 CLR 409 at 416 (Latham CJ). The phrase "good fame and character" describes the test of ethical fitness for admission to the legal profession: In Re Davis at 420 (Dixon J). 52 The distinction between fame (or reputation) and character was emphasised by Dixon J in In Re Davis at 426: "The second contention depends in part on the facts of the case and in part upon an argument that whether a man is of good fame and character is a question of his general reputation and not of his moral standards or qualities. This latter argument is quite wrong and comes from a confusion between the rule of criminal evidence allowing an accused to prove his 'good character' as part of his defence, and the question whether a man is fit to enter one of the four traditional professions. As to the facts, I hope that I have stated them in a way which brings out many considerations undeniably favourable to the appellant. He has shown industry, perseverance and courage amidst the most adverse circumstances, and has overcome many disadvantages and obstacles encountered particularly in his early years. His mental breakdown and even his descent into criminality will evoke much human sympathy. It is always so upon moral questions, particularly when a man, whose conduct or actions have been in many respects praiseworthy, mars his life by a crime. But, though concern for an individual who is overtaken by the consequences of past wrongdoing is a very proper human feeling, it is no reason whatever for impairing in his interests the standards of a profession which plays so indispensable a part in the administration of justice. … But a prerequisite, in any case, would be a complete realization by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted." 53 In Melbourne v The Queen (1999) 198 CLR 1, McHugh J contrasted character and reputation at 15 [33]: "In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called 'disposition - which is something more intrinsic to the individual in question.' [Preliminary paper 27, Evidence Law: Character and Credibility (1997), par 99] It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person [ Plato Films Ltd v Speidel [1961] AC 1090 at 1132, per Lord Denning ] ." 54 In Melbourne, Gummow J said at 24 [64]: "In the law, the notion of 'character' takes varying significance and shades of meaning from particular fields of discourse and the particular fact in issue. It may be said that 'character', that which marks out an individual, may not correspond with the reputation attributed to that person. However, as will appear, the law does not always clearly distinguish between the two, nor indicate the probative force to be attributed to whichever of them is to be established as a fact in issue, nor specify the evidentiary means, including permissible inference, by which that fact in issue may be proved." 55 Later in Melbourne, Gummow J at 25 [66] distinguished the use of the term "character" with respect to admission to a profession with the term as used in the criminal law and the law of defamation: "The issue in a proceeding may be whether an individual has the good character required for admission to pursue a particular profession or calling. Here the concern is not with disposition to perform particular acts with a requisite intention. Nor is the question simply one of the opinion others may have of the individual in question. In Ex parte Tziniolis ; Re The Medical Practitioners Act [(1966) 67 SR(NSW) 448 at 475-476] , Holmes JA said: 'The Act provides for the circumstances in which the name of a registered medical practitioner may be removed from the register and the expression 'infamous conduct in a professional respect' has been used to define such conduct. 'Good character' is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn.' His Honour emphasised that the court was not there dealing with good character in some particular sense developed by the criminal law or by the law of defamation." 56 Whilst there is a certain overlapping of the two terms "fame" and "character", there is a distinction. Fame involves being known, favourably, by a large section of the public, whilst character is directed to a more objective evaluation which might conflict with what the general public thinks: Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 at 29 (Miles CJ). Candour, Honesty and Integrity 57 High standards are expected of legal practitioners, so that members of the public, litigants, other practitioners and the courts themselves can have confidence in the integrity of those who enjoy special privileges as legal practitioners: Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 412C. This Court is the guardian of the maintenance of those standards: Law Society of NSW v Foreman at 412D. 58 Honesty and integrity are central prerequisites to a right to practice law: Legal Practitioners Complaints Committee v Palumbo [2005] WASC 129 at [23]-[24]. It has been observed, in the context of striking off proceedings, that the quality most likely to result in striking off is conduct which undermines the trustworthiness of a practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system in which he or she practices: Barristers' Board v Darveniza (2000) 112 A Crim R 438 at 445 [33]. 59 An applicant for admission as a legal practitioner must be candid and act with utmost good faith in making comprehensive disclosure of issues relevant to any matter which might reasonably be regarded as touching on the applicant's fitness to become a legal practitioner: Barristers Board v Khan [2001] QCA 92 at page 5; Re Hampton [2002] QCA 129 at [14], [26]-[29], [36]-[37]; Thomas v Legal Practitioners Admission Board [2004] QCA 407 at pages 8-10; Re Bell [2005] QCA 151. The obligation is closely related to the ethical duty of a legal practitioner, as an officer of the Court, not to mislead the Court: Re Bell at [5]. 60 The obligation of candour requires disclosure of convictions, even if the applicant believes in his or her own innocence and regards them as unjust, and hopes (or even expects) that they would be overturned on appeal: A Solicitor v Council of Law Society of NSW at 272 [30]. The obligation is not confined to disclosure of convictions for criminal offences, but requires the provision of information concerning criminal charges: Frugtniet v Board of Examiners (No. 2) at [14]. The obligation of candour requires disclosure irrespective of self interest or embarrassment: Frugtniet v Board of Examiners (No. 1) [2002] VSC 140 at [10], where Pagone J said at [11]: "His obligation was to disclose matters that could inform a judgment about whether he was a fit and proper person for admission to practice. It was not an obligation merely to list convictions or charges, but was an obligation to inform the decision maker of everything that could bear upon the judgment that needed to be made about him and his character. His task was not to select or edit from his life's experiences only some events that might be relevant to the question, but to disclose every matter that might fairly assist in deciding whether the applicant was a fit and proper person at the time of admission. Revealing more than might strictly be necessary counts in favour of an applicant; especially where the disclosure still carries embarrassment or discomfort. Revealing less than may be necessary distorts the proper assessment of the applicant and may itself show an inappropriate desire to distort by selection and screening of relevant facts." 61 The duty of an applicant for admission is one of full and frank disclosure. It is not for an applicant to decide what is or is not relevant to place before the Board or the Court. The duty is to put forward any matter that might reasonably be regarded by the Board or the Court as touching on the question of fitness to practice. However, in appropriate circumstances, an initial failure to make full disclosure may be remedied by the later provision of material: Morrissey v NSW Bar Association at [137]. 62 In Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470, McColl JA (Sheller and Beazley JJA agreeing) said at [50]-[51]: "Legal practitioners are under an obligation of candour to the Court: In re Davis [1947] HCA 53; (1947) 75 CLR 409 at 417 and 426. Lack of candour by a practitioner may lead to the conclusion that a practitioner is not a fit and proper person to remain on the roll. That obligation is essential to ensure that counsel may 'command the personal confidence ... of other members of the Bar and of judges': In re Davis , above, at 420 and so that the Court may hold out legal practitioners to members of the public as fit and proper persons to act for them: Ziems v Prothonotary of the Supreme Court of New South Wales , above, at 290; see also Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681; Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 at 625. The confidence a legal practitioner commands in judges and other members of the profession must be such that they can rely implicitly on the practitioner's word and behaviour: Barristers' Board v Young [2001] QCA 556 at [42] per Mackenzie J. The Court must be careful not to accredit as legal practitioners those in whom the public cannot have confidence that they will discharge the obligation of candour the Court requires of them, whether because of 'deliberate misleading or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice': Incorporated Law Institute of New South Wales v Meagher , above, at 681 per Isaacs J; see also Southern Law Society v Westbrook , above, at 625 cited in Law Society of NSW v Foreman (No 2 ) (1994) 34 NSWLR 408 by Kirby P at 412B-E and by Mahoney JA at 442E-G." 63 In Frugtniet v Board of Examiners (No. 2), Gillard J, at [27]-[28], emphasised the importance of honesty to membership of the legal profession: "All true professions are built on a solid foundation of honesty. The legal profession is no exception. Indeed, the demands of honesty and fair dealing are probably greater in the legal profession than any other profession. There must be honesty and fair dealing between lawyer and client, between lawyers when conducting litigation on behalf of a client, and dealings with any of the courts or tribunals in this State. There must be no hesitation on the part of any member of the legal profession when confronted with a situation which could involve dishonesty to immediately desist from any dishonest conduct. Indeed, the courts and tribunals in this State would not be able to function properly unless the presiding officer was able to rely upon the honesty and reputation of the persons appearing before them or who as solicitors are involved in conducting litigation." 64 These statements of principle concerning fame, character, candour, honesty and integrity shed light upon the requirements that an applicant for admission to the legal profession must satisfy, in order to demonstrate that he or she is of "good fame and character" and otherwise suitable for admission to the profession. Central Issues in Proceedings 65 The central issues in these proceedings concern the circumstances in which the Plaintiff is said to have made a false statutory declaration, and given false evidence before the District Court in 1996, with respect to the identity of the driver of a motor vehicle which disobeyed a red traffic light in August 1995. At her first criminal trial, in 1999, the Plaintiff denied on oath that she had made a false statutory declaration or given false evidence in the District Court. She maintained that position in evidence before me in these proceedings. She called evidence from other witnesses to support her case. 66 The Board placed before the Court evidence adverse to the Plaintiff on these issues, and called witnesses who were cross-examined by Mr Hall on behalf of the Plaintiff. The Plaintiff and the Criminal Proceedings Brought Against Her 67 The Plaintiff was born in Sydney in 1972. She completed a Bachelor of Science degree (majoring in psychology) at the University of New South Wales graduating in 1993. She commenced studying law at Macquarie University in 1994 with the degree of Bachelor of Legal Studies being conferred in 2002. 68 Over a period between 1993 and 1997, the Plaintiff was employed as a legal clerk with Leigh Johnson, solicitor, practising as Leigh Johnson Lawyers at 155A Palmer Street, East Sydney. Ms Johnson conducted a practice specialising in criminal law. 69 On or about 15 December 1996, summonses were served upon the Plaintiff, alleging two offences of perverting the course of justice under s.319 Crimes Act 1900. The first charge was that the Plaintiff "On 29 February 1996, made a statutory declaration knowing it to be false with intent to pervert the course of justice". The second charge was that "On 5 August 1996, [the Plaintiff] gave false evidence to the District Court with intent to pervert the course of justice". 70 Following committal proceedings extending over 15 days, the Plaintiff was committed for trial in the District Court on these charges by Dr E Elms, Magistrate, on 31 October 1997. 71 On 23 August 1999, the trial of the Plaintiff commenced before his Honour Judge Shillington QC and a jury in the Sydney District Court. The Plaintiff gave evidence at the trial. On 3 September 1999, the jury was discharged because it was unable to reach a verdict. 72 Thereafter, the Plaintiff's mental health deteriorated. On 11 April 2000, the Plaintiff applied for a permanent stay of the criminal proceedings. His Honour Judge Gibson QC refused the application. The Court of Criminal Appeal rejected an interlocutory appeal against the refusal of the stay of those proceedings: R v Subramaniam [2000] NSWCCA 441. 73 On 16 March 2001, following a hearing under s.11A Mental Health (Criminal Procedure) Act 1990, his Honour Acting Judge Stewart found the Plaintiff unfit to be tried. On 25 September 2001, the Mental Health Review Tribunal, acting pursuant to s.16 Mental Health (Criminal Procedure) Act 1990, formed the view that, because of the Plaintiff's moderate intellectual disability, she would not meet the criteria for fitness to be tried and that, on the balance of probabilities, this situation would continue and the Plaintiff would not become fit during the period of 12 months after the finding of unfitness. 74 On 28 November 2001, the Attorney General for New South Wales directed that a special hearing be conducted of the charges against the Plaintiff under s.19 Mental Health (Criminal Procedure) Act 1990. 75 On 24 April 2002, the special hearing under s.21 Mental Health (Criminal Procedure) Act 1990 commenced before his Honour Judge Luland QC and a jury. Before then, a further application for a permanent stay was made and refused. On 1 May 2002, the jury returned a verdict of not guilty on the second count (giving false evidence). On the first count (making a false statutory declaration), the jury was satisfied that, on the limited evidence available, the Plaintiff committed the offence charged: s.22(1)(c) Mental Health (Criminal Procedure) Act 1990. Such a verdict is a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the findings relates: s.22(3)(a). The verdict constitutes subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings: s.22(3)(c). Pursuant to s.9 Crimes (Sentencing Procedure) Act 1999, the trial judge directed that the Plaintiff enter into a good behaviour bond for a period of three years: s.23(2) Mental Health (Criminal Procedure) Act 1990. 76 On 25 November 2002, the Court of Criminal Appeal dismissed an appeal against the verdict returned on the first count at the special hearing: R v Subramaniam [2002] NSWCCA 372. 77 On 10 November 2004, the High Court of Australia allowed an appeal against the verdict on the first count of the special hearing, quashed the finding and directed that a new trial be held: Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51. The appeal was allowed upon the ground that the presiding Judge at the special hearing had failed to give the jury a sufficient direction to satisfy the mandatory requirements in s.21(4) Mental Health (Criminal Procedure) Act 1990 to explain the process and consequences of the special hearing( see 13-15 [42]-[48], 17 [61]). Other grounds of appeal against the verdict were rejected by the Court. 78 On 23 December 2004, the Director of Public Prosecutions informed the Plaintiff that no further proceedings were to be taken against her in relation to the s.319 Crimes Act 1900 count alleging the making of a false statutory declaration. The Plaintiff Applies to the Board for Admission 79 On 6 June 2003, the Plaintiff made application to the Board for admission as a legal practitioner expressing a preference, in the application form, for inclusion in the admission ceremony on 11 July 2003. The application was made after the Court of Criminal Appeal had dismissed the appeal (on 25 November 2002) and before special leave to appeal was granted by the High Court of Australia (on 14 November 2003). Following a query concerning an aspect of the application form, the Plaintiff lodged a further application with the Board on 16 June 2003. Included in the application was a declaration in paragraph 7.4 to the following effect: "I have not done anything likely to affect adversely my good fame and character, and am not aware of any circumstance that might affect my fitness to be admitted as a legal practitioner ( CROSS OUT the following words if you do not have anything to disclose ) unless the Board considers that my good name and character or my fitness may be affected adversely by the circumstances in the attached 'Disclosure' signed by me." 80 Attached to the application form was a document addressed to the Board which contained the following: "I was a victim of a horrendous unjustified District Court matter over a 'red light traffic offence'. It ran over many years, for political reasons, at the expense of my health and career. Despite this, I managed to complete my law degree. I have no conviction in law against me . Mr Charles Waterstreet, of Counsel will speak with you in relation to this issue if needed. He is my barrister and is available on 02 9267 4955. I am also available on the details provided. I very much look forward to practising within the profession. [Plaintiff's signature] I have NEVER been bankrupt or committed an act of bankruptcy or tax offence. [Plaintiff's signature] Stewart J 19/3/01-21/3/01 Luland J 22/4/02 - Special Hearing. [Plaintiff's signature] " 81 It is not clear, on the evidence, whether the Plaintiff provided the Board, at that time, with a copy of the judgment of the Court of Criminal Appeal of 25 November 2002. 82 By letter dated 2 July 2003, the Executive Officer of the Board informed the Plaintiff that her application had been considered at a meeting of the Board on 1 July 2003. It was stated that the Board had had an opportunity to consider the judgment of the Court of Criminal Appeal "but has not had any other material". It stated that "at the present time, the Board does not consider itself able to properly determine your application". The Plaintiff's attention was drawn to ss.11 and 12 of the 1987 Act. The letter continued: "While it may be correct that you have not been convicted of an offence, it would appear that after trial, a jury has found you guilty of certain conduct, which might be considered sufficient to throw doubt on your good fame and character and your suitability to practice. The Board has neither made nor refused a declaration of the type required by section 11. It does not consider that it has sufficient information from you about the matters you have disclosed and which are contained in the Court of Criminal Appeal judgment. You may wish to seek advice or assistance, but any evidence or submissions you wish to make should, at least, address the conduct that led to the charge, which was found proven. You may also wish to consider obtaining a psychiatric or other medical report dealing with the question of your fitness to practice as a legal practitioner having regard to the fact that there was evidence finding you unfit to stand trial at the time of the Special Hearing." 83 By letter dated 21 July 2003, the Plaintiff replied to the Board's letter. She stressed that the finding of the jury at the special hearing was not a conviction and pointed to the medical evidence. Further, she emphasised that she was not guilty of the charge and had not made a false statutory declaration. The Plaintiff provided medical reports to the Board. 84 On 20 August 2003, the Executive Officer of the Board informed the Plaintiff that, following consideration of the material supplied by her, the Board had resolved to refuse her application at a meeting on 19 August 2003. The Plaintiff's attention was drawn to the appeal provision contained in s.14 of the 1987 Act. 85 By Summons filed on 13 October 2003, the Plaintiff commenced the present proceedings. 86 By letter dated 3 February 2005, the Plaintiff's then solicitors informed the Board of the decision of the Director of Public Prosecutions not to proceed further in relation to the false statutory declaration count. At a meeting on 8 February 2005, the Board resolved not to alter its decision to refuse to the Plaintiff a declaration that she is of good fame and character and otherwise suitable for admission. The Present Proceedings 87 On 21 June 2005, the present proceedings were called on for hearing before Buddin J. It became apparent that the Plaintiff's case was not ready to proceed. Following submissions, his Honour granted the Plaintiff's application to adjourn the proceedings and ordered that the Plaintiff pay the Board's costs thrown away by reason of the adjournment. 88 The hearing of the appeal commenced before me on 24 October 2006. Mr Trevor Hall, solicitor, appeared for the Plaintiff. Mr Hall had been instructed only a week prior to the hearing. Ms Teresa Anderson, of counsel, appeared, instructed by the Crown Solicitor, for the Board. 89 A number of affidavits were read at the hearing and a range of documents were tendered. The Board tendered several documents which were exhibits in the criminal proceedings, together with parts of the transcripts of the committal proceedings, the first trial and the special hearing in the District Court. The judgments of the Court of Criminal Appeal and the High Court of Australia were provided to me by the Board. The following witnesses were cross-examined at the hearing: (a) Witnesses called by the Board - (i) Nicky Simone Halls; (ii) Ghassan Dib. (b) Witnesses called by the Plaintiff - (i) the Plaintiff; (ii) Leigh Diane Johnson; (iii) Mark Stephen Light. 90 I will return to the factual matters which were the subject of evidence shortly. Relevance of the Plaintiff's Acquittal on the Second Count and Discontinuance by the Crown of the First Count 91 It was accepted by the parties that the acquittal of the Plaintiff on the second count and the Crown's decision not to proceed with the first count had no effect on the ventilation of the factual matters underlying those prosecutions, for the purpose of my determining whether the Plaintiff is of good fame and character for the purposes of s.14 of the 1987 Act. 92 An acquittal by a jury turns upon failure to establish guilt beyond reasonable doubt, whereas the civil standard applies in the present proceedings: Zaidi v Health Care Complaints Commission at 86. There is no principle of double jeopardy applicable in professional disciplinary proceedings, or proceedings for admission as a legal practitioner, consequent upon an acquittal in criminal proceedings based on the same facts: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 636; Prothonotary of the Supreme Court of NSW v Del Castillo [2001] NSWCA 75 at [32]; Frugtniet v Board of Examiners (No. 2) at [20]-[22]. 93 If the Plaintiff had been convicted of either offence, public policy suggests that so long as the conviction stands, the facts necessarily established ought to be regarded as proved for the purpose of any civil proceedings: Zaidi v Health Care Complaints Commission at 86. A collateral attack upon a conviction in subsequent civil (disciplinary) proceedings ought not be allowed: Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77. Of course, the Plaintiff was acquitted on the second count and the adverse finding at the special hearing on the first count was quashed by the High Court of Australia. The Director of Public Prosecutions then determined not to proceed further on that count. Accordingly, no criminal finding adverse to the Plaintiff remains. 94 Although the criminal proceedings against the Plaintiff, and the evidence adduced at those proceedings, represent an important part of the history of the present application, and provide the source of substantial documentary evidence which is before the Court, the various findings made in those proceedings have no legal effect for the purpose of the issues to be determined by me. Factual Background to Present Proceedings 95 The factual background to the present proceedings may be obtained sufficiently, at least by way of introduction, from the judgment of Beazley JA in R v Subramaniam [2002] NSWCCA 372 at [5]-[15]: "The charges against the appellant had their genesis in a traffic breach on 21 August 1995, when a vehicle registered to a Ms Leigh Johnson was photographed by a red-light camera proceeding through a red traffic light. Ms Johnson is a solicitor practising as Leigh Johnson Lawyers at East Sydney. The appellant was her employee. A traffic infringement notice was issued to Ms Johnson on 31 August 1995. The traffic infringement notice advised Ms Johnson that under the Traffic Act (NSW), responsibility for the offence was placed on the registered owner. The notice also advised that there were three options available under the notice. First, if she was not the driver or the owner of the vehicle at the time of the offence she could fill in and return the statutory declaration which appeared on the reverse side of the notice, prior to the due date, which was nominated to be 28 September 1995. Secondly, she could pay the fine prior to the due date. Her third option was that if she wished to contest the matter before a magistrate, she was to complete the court election form on the reverse side of the form and a hearing would be arranged. Ms Johnson completed the court election form, signed it, dated it 8 September 1995 and returned it to the NSW Police Service. A hearing date was appointed for 10 January 1996. On 21 November 1995, Ms Johnson wrote a letter on her firm's letterhead directed to the Local Court advising that she would not be in Sydney on 10 January 1996 and requested an adjournment of the matter to a date after May 1996. It appears, however, that the matter remained listed for 10 January 1996, Ms Johnson did not appear and the court set the matter down for a defended hearing on 29 May 1996. The court by letter of the same date, that is 10 January 1996, wrote to Ms Johnson advising her the matter had been in the list on that day. Ms Johnson wrote to the Local Court advising that she did not receive any notification that the matter was listed and therefore had not attended the court. She advised that she had been informed by the Infringement Processing Bureau that she needed to lodge a s 100A [Justices Act 1902 (NSW)] application and requested that the court fax a copy of that application to her. Also on 10 January 1996, the clerk of the Local Court wrote to Ms Johnson advising that the matter had been adjourned until 29 May 1996 for plea. It is not apparent from the material available to the Court whether Ms Johnson received the court's letter prior to sending her letter of the same date, although nothing turns upon that for the purposes of the matters relevant to the appeal. On 29 February 1996, the appellant made a statutory declaration in the following terms: 'Re: Infringement Y 429792O I refer to the above infringement and confirm that after having viewed the photographs of the incident, I was driving the vehicle AAV 31Q at this time. Accordingly, I will take responsibility and finalise the amount outstanding.' The infringement notice referred to is the one issued to Ms Johnson in respect of the traffic light offence. The declaration was signed before a Mr Oliveri, a solicitor in Ms Johnson's office. Prior to that, on 30 January 1996, Ms Johnson's office had requested from the Camera Detection Unit of the Infringement Processing Bureau a copy of the photographs taken by the red-light camera. The photographs, although showing Ms Johnson's car clearly, were quite dark and no driver is visible. On 5 March 1996, Ms Johnson under cover of a letter on her firm's letterhead, forwarded the statutory declaration to the Infringement Processing Bureau. She requested that having regard to the contents of the statutory declaration 'this matter [be] withdrawn from the court list of 29 May 1996 and forward the notice to Ms Subramaniam'. It appears that the matter was listed in the Local Court on 1 May 1996. On that day, a Mr Sukkar, who was a legal clerk employed by Ms Johnson, was requested by Ms Johnson to attend court for the purposes of having the matter listed as a defended matter. On that day he also handed to the court the statutory declaration. It was the Crown case, accepted by the jury, that Ms Subramaniam was not the driver of the vehicle on the occasion in question but had agreed with Ms Johnson to make the false declaration that she was. The Crown case was based essentially upon the evidence of a Ms Coughlan, who at the time, had been a legal clerk in Ms Johnson's employ. Ms Coughlan alleged that she was present at a conversation between Ms Johnson and the appellant when this was agreed. She was subsequently 'wired' with a tape recorder and recorded a conversation with the appellant which, the Crown alleges, contains an admission by the appellant that this was the case. There was other evidence in the case which was corroborative of Ms Coughlan's evidence. In particular, there was the evidence of Ms Halls, who had been an office assistant employed by Ms Johnson at the time and the evidence of a Mr Dib, who was employed by Ms Johnson as a legal clerk. Notwithstanding the statutory declaration, Ms Johnson was convicted and fined in her absence by a magistrate on 2 July 1996. Ms Johnson appealed to the District Court against that conviction on 5 August 1996. Subject to one matter, the appellant gave sworn evidence on that day consistent with her statement in the statutory declaration. The 'matter' to which I have referred was that at the District Court hearing, the trial judge conducted the examination of the appellant without objection from the Crown or from Ms Johnson. In doing so he asked questions on the basis that the offence had occurred on the night of 29 February 1996 [sic] . In fact, the incident recorded by the red light camera occurred at 8.20am." Direct Evidence Adverse to the Plaintiff Admitted in the Present Proceedings 96 The evidence adverse to the Plaintiff in the present proceedings falls into four categories: (a) the evidence of Nicky Simone Halls of a conversation with the Plaintiff on about 7 September 1995 concerning the arrival of the camera infringement notice, in Ms Johnson's name, at Ms Johnson's office; (b) the evidence of Ghassan Dib concerning a conversation with the Plaintiff on 14 October 1996 in which he alleged that the Plaintiff made an admission that she had not been driving the vehicle when it passed through a red light on 21 August 1995; (c) evidence of a conversation covertly recorded under the Listening Devices Act 1984 , on 6 December 1996, between Maria Coughlan and the Plaintiff during which the Plaintiff makes a number of admissions that she was not the driver of Ms Johnson's motor vehicle at the time of the red-light camera offence, but had claimed that she was; (d) documentary evidence, including correspondence signed by the Plaintiff on Ms Johnson's letterhead, the statutory declaration signed by the Plaintiff on 29 February 1996 and the transcript of proceedings before his Honour Judge PJ Phelan in the Sydney District Court on 5 August 1996. The Evidence of Ms Halls 97 Ms Halls was employed in Ms Johnson's office as the officer junior and then as a legal secretary. She knew the Plaintiff who was, at relevant times in 1995 and 1996, Ms Johnson's personal assistant. 98 Ms Halls gave evidence of an occasion in 1995 when an infringement notice for Ms Johnson arrived in the mail. Ms Halls gave evidence to the following effect at the Plaintiff's first trial on 31 August 1999, and adhered to this evidence before me (T411, 31 August 1999): "Q. What was happening, what was she doing and what were you doing? A. Well I was coming up the stairs, I handed the mail to Kala [the Plaintiff] , she'd been sitting down on the computer and I sat behind her because there was four desks in the accounts room. She was sitting at the front left and I actually sat on the back left, not on a chair on the table and she was proceeding to open up the mail and she turned round and she said look what Leigh's got. I said what and she showed me the infringement notice and when we both had a look at it I said where would she be coming from, Harry's or John's because they live out that way, Maroubra, Botany way and Kala said I think she might be coming from John's. And then where's she going to get the money for this and what about the points she'll lose. I said I don't know and then I heard nothing about it. Kala said I'll get a photo to see where it was and then I didn't hear another thing about it until the police contacted me." 99 Ms Halls gave evidence to a similar effect at the special hearing on 30 April 2002 (Exhibit 1, Tab SS9, T45-46). 100 Ms Halls was cross-examined before me and it was suggested to her that no such conversation had taken place with the Plaintiff. Ms Halls maintained that such a conversation had taken place and that she had a good recollection of it (T40-42, 24 October 2006). When challenged in cross-examination about that part of the conversation concerning "where's she [Ms Johnson] going to get the money" ($184.00), Ms Halls said "there was a time when our wages were in question, so financial situations did come up" (T41.13). The Evidence of Mr Dib 101 Mr Dib worked as a legal clerk in Ms Johnson's office from about 25 September to 22 October 1996. He gave evidence in the criminal proceedings against the Plaintiff on 27 June 1997 (committal proceedings), 3 August 1999 (first trial) and 11 May 2002 (special hearing) and again in the present proceedings before me. 102 Mr Dib stated that, on 14 October 1996, he was giving the Plaintiff a lift home and they stopped at McDonalds in Oxford Street, Sydney to get a meal. Mr Dib gave evidence to the following effect at committal proceedings on 27 June 1997, to which he adhered in evidence before me (T12, 27 June 1997): "HOWARD: Q. Yes? A. Kala went inside the McDonald's restaurant and she got a meal for me and then she hopped in the car and I proceeded to driver [sic] her home. The lights went yellow. Q. Where were you travelling at this stage? A. Down at Oxford Street. Q. Continue? A. The lights went yellow and I braked and she said, 'Go, go, go', and I just looked at her and said, 'No, it's not worth it'. Then she looked at me and said to me, 'Leigh went through a red light once and there was some sort of investigation', and I asked her, 'What happened?' and she said, 'We denied it and we got away with it'. Q. And did she do anything after she said that? A. She just put on a laugh. Q. She put on a laugh? A. Yes, she laughed. Q. And did you then drive her home? A. Yeah, I dropped her off at Potts Point." 103 A strong challenge was made in cross-examination before me to the veracity and reliability of Mr Dib's evidence. It was suggested in cross-examination that he bore a grievance towards Ms Johnson. Mr Dib said that he complained to the Law Society about Ms Johnson's "abuse between employer and employee" which involved "shouting and screaming and intimidation" (T139, 25 October 2006). It was suggested to Mr Dib that he falsely alleged that the conversation with the Plaintiff had taken place on 14 October 2006 as a means of harming Ms Johnson (T143, T155-156). Mr Dib denied this and maintained that the conversation with the Plaintiff had, in fact, taken place. The Listening Device Conversation between Ms Coughlan and the Plaintiff 104 By 6 December 1996, it appears that a police investigation was on foot. A covert listening device was placed upon Ms Coughlan who then met the Plaintiff and had a conversation with her. The device was used pursuant to a warrant issued under the Listening Devices Act 1984. The complete conversation extends for just over an hour, the transcript of which occupies some 132 pages (Exhibit 1, Tab SS4). 105 A variety of topics are discussed during the conversation between Ms Coughlan and the Plaintiff. I extract below portions of the conversation which appear to relate to the red-light camera offence, the Plaintiff's statutory declaration, her evidence in the District Court concerning that matter and the driving records of the Plaintiff and Ms Johnson (Exhibit 1, Tab SS4, pages 45ff) (my emphasis): "[Coughlan]: Your name was in the paper ... ... [Plaintiff]: That was over her parking ticket, her what do you call it. [Coughlan]: I know, I know. [Plaintiff]: Red light camera . [Coughlan]: Yeah. Yeah. So were you scared? [Plaintiff] No. [Coughlan]: Have no problem? [Plaintiff]: No. How did you know? [Coughlan]: Well I was there. Do you, do you remember when the, the thing came in. [Plaintiff]: Yeah. [Coughlan]: Remember I was working there then, when it all happened. [Plaintiff]: You were working here? [Coughlan]: Yeah. [Plaintiff]: Oh, yeah. [Coughlan]: It happened last year. Remember it took it so long to get to court? [Plaintiff]: Yeah, so long. [Coughlan]: Yeah. [Plaintiff]: I didn't remember anything. [Coughlan]: Yeah. Well do you remember I was in the, I was in the, do you remember, you know when we were in the room and she asked which one of us, you know, was going to take it. And I couldn't because of all my ... [Plaintiff]: Oh, I'd take it . [Coughlan]: … now. And you said you could, because of your perfect driving record. [Plaintiff]: Not that I could, but that ... [Coughlan]: You didn't want to.. [Plaintiff]: Yeah, I could ... [Coughlan]: .. because of your.. [Plaintiff]: .. not that I wanted to . [Coughlan]: Yeah, yeah. [Plaintiff]: But the thing is that they were out of time: they can't strip, they couldn't take any points off my licence anyway. So I've still got a clean record . [Coughlan]: Really? [Plaintiff]: Mm, they were out of time . [Coughlan]: So you, so you, so you were able to do that. Fantastic. [Plaintiff]: Yeah, so she didn't lose any points, neither did I . [Coughlan]: Yeah. [Plaintiff]: And no one got fined either . [Coughlan]: Yeah. [Plaintiff]: Yeah. [Coughlan]: Well that works out right then. So how did you manage that? Or did you just stall it? [Plaintiff]: I just said - well we didn't stall it. What happened was, they didn't inform us the first day. Right? By the time they had to re-list it, we had no documentation saying it was listed on that day. So no one turned up . [Coughlan]: Yeah. [Plaintiff]: Um, so by that time they relisted it … [Coughlan]: Yeah. [Plaintiff]: … it was out of time [Coughlan]: So what did they ask you in court? [Plaintiff]: Well, I just, I just sat in the witness box and had a nice conversation with the judge . [Coughlan]: So you weren't cross examined? [Plaintiff]: No, because, Leigh, Leigh thought she'd have to. Because she was, like, all ready to go . [Coughlan]: Yeah. [Plaintiff]: And he was just sitting there asking me questions, and I was just, like, sitting back enjoying myself . [Coughlan]: So she represented herself? [Plaintiff]: Yeah. [Coughlan]: And you were her witness? [Plaintiff]: Yeah. [Coughlan]: Oh right. [Plaintiff]: Yeah. [Coughlan]: You should have called me, I would have come down and watched. [Plaintiff]: (Laughs) It was so funny. [Coughlan]: Mm. [Plaintiff]: I mean it was over in like fifteen, twenty minutes. [Coughlan]: Mm. Now were you worried that they might - that like the prosecution might have done something and say, 'Yes, well, you know, you say you were driving, but..' [Plaintiff]: No because at the time .. [Coughlan]: '.. and these photographs are exhibit A..' (Laughs) [Plaintiff]: (Laughs) But the photos, the photos, the photos ,.. [Coughlan]: '..and showed her driving instead of you.' [Plaintiff]: The photos showed nothing. We ordered the photos . [Coughlan]: Right. [Plaintiff]: Mm. And they showed nothing. You couldn't tell who was driving . [Coughlan]: So, you weren't worried about .. [Plaintiff]: You couldn't, you couldn't even see [a] head . [Coughlan]: Right. [Plaintiff]: Because you know her - I think her seats are really low . [Coughlan]: ... apart from her being blonde and with you being like dark haired . [Plaintiff]: I know, I know, I know . [Coughlan]: Yeah, because when it came out in the paper I thought, 'Oh my God, she could have at least ..' [Plaintiff]: Yeah . [Coughlan]: '.. got someone blonde to say they were driving.' You know what I mean ? [Plaintiff]: ( Laughs ). [Coughlan]: The contrast with you . [Plaintiff]: I know, yeah I know. But we ordered the photos . [Coughlan]: Yeah. [Plaintiff]: You couldn't see a thing . [Coughlan]: Yeah. [Plaintiff]: So they could have said anything they wanted to, you couldn't see anything. I mean it would have been scary yeah, had they have said, you know. Then I would have said, 'Well I thought it was me.' Or, you know, you can ... [Coughlan]: So you had a contingency plan? [Plaintiff]: No we didn't. but I mean I, I would - if you know, if he was asking questions and he, and then he showed me the photos and said 'This isn't you.' Then I'd have said, 'Oh right. I do drive Leigh's car quite a bit, you know. I do drive on the odd occasion. And you know I've got (inaudible ) ..' ... [Coughlan]: Oh wow, so. Right so you, so you, it's definitely in the, in the clear. They can't get back at you or anything or, because it .. [Plaintiff]: No . [Coughlan]: So once you've been to court, it's all over. [Plaintiff]: Oh no, because he dropped - he, he dismissed it totally on that day . [Coughlan]: Right, so no one can appeal or? So if any, if, what do the photographs show? [Plaintiff]: The photographs show the back of the car . [Coughlan]: Right. [Plaintiff]: The number plate . [Coughlan]: Mm. [Plaintiff]: And as closely as you look … [Coughlan]: Yeah. [Plaintiff]: … you can't tell who's driving. It was totally, it was really dark . [Coughlan]: Yeah. [Plaintiff]: It was almost like there was no flash . [Coughlan]: Yeah. [Plaintiff]: Or the flash had died or something . [Coughlan]: Yeah. [Plaintiff]: It was really dark . [Coughlan]: Mm. [Plaintiff]: All you saw was the car and the number plate . [Coughlan]: And lucky for Leigh. Can you imagine? [Plaintiff]: So it was, it was the car that went through. But we ordered the photos earlier. Yeah so we knew anyway . [Coughlan]: Yeah. [Plaintiff]: Yeah. But, but if say they, they'd said 'Well we had another camera on the other side ..' [Coughlan]: Yeah. [Plaintiff]: '.. and here are the photos from that.' You know. Then I would have said, 'Oh well you know I thought I was ..' [Coughlan]: Yeah. [Plaintiff]: '.. from what I saw of the other photos I thought it was ..' [Coughlan]: Yeah. So how come, um, like you were so adamant that you weren't going to pretend you were driving ? [Plaintiff]: And then I did . [Coughlan]: And then, yeah. [Plaintiff]: Because she had no other choice. And the thing is that she would have lost her licence . [Coughlan]: (Inaudible) [Plaintiff]: She's got like, yeah, she's got like three points left. And she would have lost all three . [Coughlan]: Yeah, but, you still don't lose your licence. She still would have then kept her licence though. [Plaintiff]: But she's got no points . [Coughlan]: But next time - no, no if she had three and then she lost three, that mean's she's got none left to lose. So she still would have been able to keep her licence (pause). Or had she lost those three? [Plaintiff]: I'm not sure. See what - we actually rang, just anonymously - or I rang anonymously, and they said that if she loses three points .. [Coughlan]: Mm [Plaintiff]: … she's lost her licence. Maybe that means she's got two points left . [Coughlan]: Yeah all right, yeah. [Plaintiff]: Probably, yeah . [Coughlan]: And then she wouldn't be able to drive. Or she could hire a chauffeur. She can get … [Plaintiff]: Exactly, exactly. … [Coughlan]: ... So did she, did she like try and get anybody else to take it for her ?... I mean … [Plaintiff]: Well she didn't really have a choice did she . [Coughlan]: Somebody blonde? (Laughs) [Plaintiff]: I mean you've got to like trust that person too. Because, you know, if they like pull the rug, then, you know . [Coughlan]: Oh so she could be open to like, to blackmail? [Plaintiff]: Sorry? [Coughlan]: Well she could be open to blackmail. [Plaintiff]: Yeah, yeah, exactly and stuff like that. And you he [sic] didn't like - when she said 'Oh, they're out of time anyway, so you won't lose any points.' I said 'Oh, well, who cares then?' You know . [Coughlan]: Yeah. [Plaintiff]: I didn't want to lose any points, you know . [Coughlan]: Yeah. And you still got to keep your perfect driving record. [Plaintiff]: (Laughs) That's true . [Coughlan]: I've got a dreadful one. Well I haven't really, it's just parking. [Plaintiff]: I've got a lot of parking fines and stuff, but, you know, that's not a driving record. [Coughlan]: Do you what, um, happened to me? I didn't pay a parking fine, because you know how I moved from Croydon to Camperdown. [Plaintiff]: They cancelled your licence . [Coughlan]: Yeah, they cancelled my - how did you know? [Plaintiff]: That's what happened to Leigh a couple of years ago too . [Coughlan]: Ah right, so I've got to go down and ah … [Plaintiff]: Yeah. [Coughlan]: … and pay it. But, um, and get my licence back. But I can't drive anyway. They've taken my … [Plaintiff]: What you do is go down and pay and make a big noise. Because otherwise they'll make you pay to reinstate your licence. [Coughlan]: Yeah. [Plaintiff]: I mean Leigh had, Leigh went down there, like two or three years ago . [Coughlan]: Right. [Plaintiff]: It was also an unpaid parking fine. They cancelled her licence: just sent a letter saying they cancelled it. She went off her head. Oh my God she went off her head that day . [Coughlan]: Yeah. [Plaintiff]: I don't think you were at the office at that time were you? [Coughlan]: No, no, no, no. [Plaintiff]: You weren't working there. [Coughlan]: No. [Plaintiff]: Oh my Godfather. We went down to the RTA … [Coughlan]: Mm. [Plaintiff]: … and she made the biggest scene you've ever seen. [Coughlan]: Well, she's good at that." 106 In the judgments of the Court of Criminal Appeal and the High Court of Australia, it was observed that statements of the Plaintiff during this conversation were aptly described as admissions or confessions by her of the offences charged. 107 In the Court of Criminal Appeal, it was argued for the Plaintiff that the trial Judge had erred in refusing to exclude the tape recording and conversation. Beazley JA, at [43]-[45], outlined the bases for these objections: "On 6 December 1996, Ms Coughlan was fitted with a listening device for the purposes of recording a conversation with the appellant. There was no challenge to the validity of the recording, which followed the obtaining of a warrant under the Listening Devices Act 1984 (NSW). The appellant submitted that the record of the conversation should not have been admitted into evidence because the admissions obtained in the conversation were the result of a number of deceptions practised upon the appellant by Ms Coughlan and were also made following a series of leading questions. The deceptions said to have been practised upon the appellant included the pretence that Ms Coughlan was a friend of the appellant; that she had taken the day off; that she had run into the appellant unexpectedly and insisted that she go for coffee, taking the appellant away from her intended task of going to the bank; and complaint is also made about the continual degrading of Ms Johnson during the course of the conversation, including discussions of embarrassing sexual matters and alleged unethical behaviour with criminal clients, so as, in effect, to form a special clique or bond with the appellant against Ms Johnson. In my opinion, these 'pretences' were not of such a nature as to require the rejection of the material. The use of a listening device is almost invariably accompanied by some form of pretence. The appellant and Ms Coughlan had worked together for a period of time and there is nothing in the conversation to indicate that the appellant felt overborne, threatened or prevailed upon during the course of the conversation. Her only resistance to entering into the conversation is that she stated she wanted to complete her task of going to the bank before having a coffee but Ms Coughlan was able to persuade her otherwise. The second basis of the challenge to the admission of the tapes was that the admissions were obtained by a series of leading questions which 'virtually put the answers into the appellant's mouth'.' 108 After setting out portions of the recorded conversation, Beazley JA returned to the grounds of appeal at [46]-[49]: "The bolded portions of the conversation above could have been accepted by the jury, and by their verdict were accepted, as constituting admissions by the appellant that she had agreed with Ms Johnson to claim responsibility for driving the vehicle when in fact she had not been driving. The appellant submitted, however, that rather than being admissions as such, the conversation was pursued in such a way that it assumed the appellant's guilt but did not prove it. It was also submitted that it was unfair because the appellant was 'led into the conversation by the leading questions'. The questions marked above with an asterisk are examples upon which the appellant relies as demonstrating that Ms Coughlan suggested matters to the appellant. I do not consider that the questions leading into the conversation in this way did suggest the answer. Further, and more significantly, the appellant volunteered information which was additional to any of the matters raised by Ms Coughlan. Nor do I consider that in any of the questions or discussions of which complaint is made, the answer was embraced, or completely embraced by the question. It was also submitted that Ms Coughlan 'cross-examined' the appellant or suggested matters such as that the appellant and Ms Johnson had a 'contingency plan'. Again, the conversation as recorded does not bear out the submission. If anything, at this point of the conversation Ms Coughlan was encapsulating what the appellant appeared to be saying. In my opinion, none of the complaints which the appellant makes about the manner in which the conversation was pursued or the admissions obtained has been made out. Rather, it is more than apparent from the material portions of the tape relied upon by the Crown that the appellant was a willing participant in the conversation. It has not been demonstrated that the trial judge erred in the exercise of his discretion in admitting the transcript." 109 Beazley JA (Sully J agreeing) rejected all grounds of appeal raised by the Plaintiff in the Court of Criminal Appeal. Simpson J agreed with Beazley JA, with the exception of the appeal against the refusal to grant a stay of proceedings (a ground unrelated to the recorded conversation between the Plaintiff and Ms Coughlan). 110 As mentioned earlier in this judgment, the High Court of Australia allowed the Plaintiff's appeal with respect to a ground added during the course of the appeal to that Court, complaining of the failure of the trial Judge at the special hearing to comply with the requirements of s.21(4) Mental Health (Criminal Procedure) Act 1990. The High Court upheld this ground of appeal alone. With respect to a ground of appeal concerning the recorded conversation between Ms Coughlan and the Plaintiff, Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ said at 127 [49]-[51]: "The next ground relates to the directions of the trial judge with respect to the reception in evidence of the taped record of the conversation between Ms Coughlan and the appellant and the in-court evidence of the former. It is necessary first to say something about the true character of the taped evidence. In the Court of Criminal Appeal the appellant argued that the trial judge erred in admitting the evidence because it had been obtained as a result of a number of subterfuges and deceptions. Several were sought to be identified: that Ms Coughlan exploited her friendship with the appellant; that she claimed to the appellant to have accidentally encountered her and had insisted they take coffee together, and, that Ms Coughlan continually disparaged Ms Johnson to the appellant so as to encourage her to speak against Ms Johnson's interests. The answer to these submissions was correctly given by Beazley JA in the Court of Appeal: '... there is nothing in the conversation to indicate that the appellant felt overborne, threatened or prevailed upon during the course of the conversation.' The further, related submission advanced in the Court of Criminal Appeal, that the answers obtained from the appellant were the result of a series of leading questions designed to elicit certain answers, was sought to be repeated in this Court. It was rejected in the Court of Criminal Appeal by Beazley JA on the basis that the appellant was a 'willing participant in the conversation'. Indeed it can be said that in some respects the appellant was an enthusiastic participant in it. There is no evidence whatever in the conversation of any mental infirmity on the part of the appellant nor was any proved at that early stage. She was only too willing to volunteer details of her own involvement in the events the subject of the charges. The evidence was therefore properly characterized as confessional evidence. In this Court the appellant's ground was not directed to the admissibility of the taped evidence because special leave to argue such a ground was refused. Instead, the appellant sought to rely on a ground that the trial judge misdirected the jury as to the way in which they should deal with that evidence and the in-court oral evidence of Ms Coughlan. The argument in essence turned out to be little more than a complaint that the taped material contained irrelevant and scandalous matter. Although the appellant also contended that the trial judge ' [failed] to explain the tape' she did not develop the submission beyond that. Nonetheless we have examined what the trial judge said of the taped evidence and the in-court evidence of Ms Coughlan, which was not, we would point out, the subject of any request for redirections at the trial. The trial judge's comments regarding these bodies of evidence were entirely appropriate. His Honour drew attention to the greater worldliness of Ms Coughlan and to the possibility that, because of the leading nature of some of the questions she asked the appellant, the answers might not be reliable. He also referred to some inconsistencies between Ms Coughlan's evidence and some of the objective facts. Finally, he summarized uncritically the submissions made on each side with respect to Ms Coughlan. There is nothing in this ground and it must accordingly be rejected." The Evidence of the Plaintiff 111 The Plaintiff gave evidence at the first trial (on 31 August 1999), and again before me, in which she stated that she had been the driver of Ms Johnson's motor vehicle when it passed through a red light on 21 August 1995. She stated that the contents of her statutory declaration of 29 February 1996 and her evidence in the District Court on 5 August 1996 were true. 112 The Plaintiff said at the first trial (and again before me) that the comments made by her with respect to the red-light camera offence, her statutory declaration and evidence in the District Court during her conversation with Ms Coughlan on 6 December 1996 were "mindless garbage" (T440-442, 31 August 1999), "fantasy" and "fiction" (T444, 31 August 1999). 113 In the course of cross-examination in the District Court on 31 August 1999, the Plaintiff maintained that a number of the things which she said that she had done during her recorded conversation with Ms Coughlan, on 6 December 1996 were not, in fact, true. The Plaintiff attributed her admissions of these matters to a typical conversation with Ms Coughlan, which was said to involve "fantasy". 114 Some extracts from cross-examination of the Plaintiff at the first trial illustrate this approach, which the Plaintiff adhered to at the hearing before me. The Plaintiff was asked (T444, 31 August 1999): "Q. So this was all kind of fantasy land conversation, was it? A. Yes. That's just typical conversation with her. Q. Because she had no other choice and the thing is that she would have lost her licence. That was your belief at the time, wasn't it? A. No it wasn't. Q. But you went on to tell Maria that you had anonymously called the RTA- A. You can't do that. I never did that. Q. Why did you tell her that you did? A. It was a conversation between two acquaintance friends. I didn't think it was going to be used against me. Q. Perhaps you didn't know that it would be used against you, is that right? A. No. I didn't know and I didn't think so. I was just going on as if it were a friend having coffee. Q. But you see, you go on to say, in no uncertain terms I'd suggest, madam, that you anonymously rang and were told that she would lose her licence if she got- A. I am telling this Court now that I did not do that. Q. So you never made a phone call? A. No I didn't. Q. And you just decided to tell Maria for whatever reason? A. I told Maria whatever she wanted to hear, whatever was the conversation of the day. It was just whatever. The rest of the tape speaks for itself. It was literally all in the same line of, you know, garrulous laughing, two friends getting together over coffee. Q. Garrulous laughing and just a load of rubbish really. Is that what you're saying? A. Well, it's fantasy. A lot of it's fantasy, a lot of it's fiction." 115 Shortly after, the Plaintiff was asked (T445, 31 August 1999): "Q. I'd suggest to you that the answers, when you give answers in the course of this conversation, they seem to be responsive. In other words, you're not just talking about some totally different subject. When you respond to something she says in relation to what she had just said, doesn't it? A. At times. Q. I'd suggest throughout the conversation? A. No. Q. You don't agree with that? A. No I don't. At times it does. Q. What about this? Just tell me if this is fantasy and rubbish when you go on that same page 62 at line 7 and 8, you didn't like when she said, 'Oh, they're out of time anyway so you won't lose any points'. I said, 'Oh well, who cares then?'. A. But neither of us knew that they were out of time until it was before the District Court and Judge Phelan says right at the end that they were out of time. None of us knew prior to that. She was as surprised as I was. Q. You knew that statutory declaration was out of time, didn't you? A. No I did not. I'm telling this Court today that I did not know that. Q. I understand that's what you're telling this Court and I'm suggesting to you that you knew it was eight days outside of the six month period? A. I did not know that." 116 The cross-examination continued (T447, 31 August 1999): "Q. I'd suggest to you, madam, that you were entirely aware or it was your belief at the time that if Leigh Johnson took the place on that matter she would lose her licence? A. That's not correct. Q. But even though you said that in this transcript you say that's not correct? A. I said whatever came to mind to Maria. I mean, that's the sort of conversation you have with her. Nothing serious. Just completely frivolous mindless gossip. Q. You went into quite a lot of detail about how you'd ordered the photos and how it showed nothing. Remember that? At page 50? A. Fifty? Q. Yes. You ordered the photos and they showed nothing. You couldn't tell who was driving. You ever talk to Maria about that? A. Maria raised the issue of the photographs. Yes, I accept that I did speak about it". 117 The Plaintiff was asked (T448, 31 August 1999): "Q. Is there some strange force possessing you this day to say things when you didn't know what you were saying? A. I don't know. I can't recall that day. Q. You were acting, I'd suggest, and speaking of your own free will? A. I was speaking of my own free will but it was the sort of conversation that you had with Maria. Just meaningless, you know, joking, laughing. Q. Let's go on to this meaningless joking laughing bit of transcript here at page 52 at the top. 'I mean, it would have been scary. Yeah, had they had said, you know. Then I would have said, well, I thought it was me or you know, you can'. Why did you say it would have been scary? A. Why did I say any of what I said? I don't know. It was just chatter gossip between two friends over coffee. Q. You were going to be scared because you would have been caught out, isn't that right? A. No. Q. That's why you used the words scary? A. No. Q. And then you go on to say at about line 8, 'Then I'd have said, oh, right, I do drive Leigh's car quite a bit, you know. I do drive it on an odd occasion'. That was sort of a backup plan you had, wasn't it? A. I was just chatting with a friend. It was certainly not a pre-planned conspiracy or anything like that. I was chatting with a friend, a friend with whom you just tell her anything. It's just gossip." 118 Shortly after, the Plaintiff was asked (T449, 31 August 1999): "You say you've gone along with it but you're the one who raises at line 10 on page 47, 'They were out of time. They couldn't take any points off my licence anyway so I've still got a clear record'. Was that just sort of going along with Maria, was it? A. Yes. The first I knew about it and the first Miss Johnson knew about it was in the District Court before Judge Phelan. Before that I had no idea." 119 The cross-examination continued and the point was reached where the Plaintiff could offer no explanation as to why she was making false statements to Ms Coughlan with respect to the red-light camera offence, the statutory declaration and her evidence in the District Court (T452, 31 August 1999): "Q. Well I'd suggest to you madam that the clear context of that conversation is that you are telling Maria Coughlan that when Leigh Johnson said those words to you you though oh well who cares then. That's the context of it isn't it? A. I honestly don't know, I don't recall. The fact of the matter is that the first that either she or I had heard about it was after the District Court hearing. Q. But you see that's not what you're telling Maria Coughlan is it? A. This entire transcript, the entire tape, I would not be relying on any of it to be truthful. Q. Well that's because- A. It was a conversation between two people over coffee. It was fantasy, it was fiction, it was gossip and that's the honest truth. Q. Fantasy and fiction. Now I suggest to you when you said those words at line 8 when you said oh they're out of time anyway so you won't lose any points, I suggest to you that there was such a conversation between you and Leigh Johnson? A. There was never any such conversation. Q. And I'd suggest that you knew as soon as you had such conversation with Leigh Johnson that the thing would be out of time? A. I did not know that and there was never any such conversation. Q. All right, well let's just assume for a moment that you didn't know that and there never was any such conversation, why did you say what you said to Maria Coughlan? A. I don't know why I said what I said. It was just a conversation between two people absolutely not - that's absolutely not true so - I mean I don't know." 120 The Plaintiff was asked (T453, 31 August 1999): "Q. Can you imagine any reason why you would then have said when she said 'Oh they're out of time anyway so you won't lose any points' and I said 'Oh well who cares then' - can you think of any reason why you said that? A. No other than that it was just frivolous chatter as was the rest of the conversation. Q. Madam, I suggest to you that the evidence you're giving in relation to this conversation and the fact of it all being just fantasy and rubbish is untrue? A. That's not true." 121 The Plaintiff acknowledged in cross-examination at the first trial that she had been, and remained, a close friend of Ms Johnson (T455, 31 August 1999). The Plaintiff confirmed that Ms Johnson had been present, from time to time, outside the Court during the first trial in August 1999 (T455, 31 August 1999). The Plaintiff acknowledged that she was aware that the listening device recording of the conversation between Ms Coughlan and the Plaintiff was not admissible in evidence at the committal proceedings against Ms Johnson (T457, 31 August 1999). 122 The Crown Prosecutor concluded cross-examination in the following way (T462, 31 August 1999): "Q. And I suggest to you that you're motivated to protect your own self and also someone very close to you, namely Leigh Johnson? A. That's not true and I don't appreciate that sort of insinuation." 123 It is appropriate to set out extracts from the Plaintiff's evidence before me to illustrate its content and flavour. 124 In her evidence on this appeal on 24 October 2006, the Plaintiff adhered to the view expressed in her application to the Board in June 2003 that she was "a victim of a horrendous unjustified District Court matter" which "ran over many years for political reasons" (T48, 24 October 2006). Under cross-examination before me, the Plaintiff was asked (T49): "ANDERSON: Q. What are the political reasons to which you referred? A. I don't recall now what I thought at the time but I certainly had no idea before entering law and wanting to become a lawyer that things like the red light court case, which I call it at the moment, could be perpetrated, that sort of an attack could be perpetrated on somebody who is telling the truth. I had no idea. I was completely shocked and I didn't realise that corruption like that existed in a western democracy. Q. To whom do you attribute the corruption? A. Well, the witnesses, the Law Society, the police. Q. And is that still your view today? A. Well, I think that the High Court certainly, you know, gave some justice to me and to the matter so no. It certainly was my view when it was happening. Q. Well, you seek to be admitted as a legal practitioner? A. Yes. Q. And to practice as a solicitor? A. Yes. Q. You realise that the body responsible for the professional conduct of solicitors is the Law Society? A. Yes. Q. Is it your view that the Law Society is a corrupt body? A. Well I think it was and I think that, you know, people make up the organisation. But I certainly would be striving for fairness and justice in the practice of law. Q. Apart from the Law Society, you attribute corruption to the witnesses? A. Yes, some of the witnesses, yes, and some of whom have actually said they were pressured by the police, for example." 125 With respect to the recorded conversation between Ms Coughlan and herself, the Plaintiff said that "conversations with Maria were just frivolous bantering, you know, two females gossiping about everything from here to the end of the earth" (T64.40, 24 October 2006). Repeatedly, the Plaintiff characterised the entire recorded conversation as being exaggeration, gossip, boastful and fantasy (T68.48, 70.18-21, 24 October 2006). The following extract exemplifies the Plaintiff's explanation for the conversation, including its damaging components (T92.25, 25 October 2006): "Q. Did you not have an appreciation in December 1996 that it is important that people have respect for the administration of justice and the courts and the results that are achieved in the courts? A. Absolutely. Q. Why would you tell lies about having successfully misled the court or your preparedness to do so? A. It was just a gossipy conversation. I've said this, I've said this before. HIS HONOUR: Q. What do you mean by 'a gossipy conversation'? A. Just carrying on about things that are irrelevant, nothing, mindless garbage really. I mean it's obviously embarrassing, you know, but that's the kind of friendship that we friendship acquaintanceship, whatever, that we had at the time so." 126 A further example of the Plaintiff's explanation may be found later in cross-examination (T95.27, 25 October 2006): "Q. Why then if you had that opinion of her would you have made highly defamatory statements about Ms Johnson and admissions of wrongdoing on your own part? A. It was foolish to engage in such ridiculous, gossipy banter with her. Q. Unless you wanted everybody else to know? A. Like I said, it was just ridiculous conversation and embarrassing, so I don't have people like that around me anymore." 127 With respect to the recorded conversation with Ms Coughlan, the Plaintiff was asked (T65.57, 24 October 2006): "Q. Why on earth would you think that you could be untruthful to Ms Coghlan [sic] with respect to a matter in relation to which you had sworn a statutory declaration and given evidence to a judge of the District Court? A. I am sorry to keep repeating myself, but this is the kind of friendship we had. Unfortunately, it was like that. This is the kind of person who she was. You just gossiped and laughed and joked and carried on about everything and nothing, so. Q. I am not asking you about Ms Coghlan [sic] , I am asking about your conduct. You understand that. Don't you? A. Yes, and that is why I said, I am sorry to say it was an unfortunate relationship that I had with her." 128 Ms Anderson asked the Plaintiff about part of the recorded conversation (T67.48, 24 October 2006): "Q. And then she says, 'Yeah.' And you say, 'I didn't remember anything.' Why would you have said that to her with respect to a matter you had sworn a statutory declaration about and told his Honour Judge Phelan that you did remember it? A. I don't know why I said that like I don't know why I said a lot of things in this particular conversation with her. Q. Is it the truth that you didn't remember it because you were not driving the vehicle? A. Absolutely not. Q. Is it correct that the reason that you didn't correct Judge Phelan putting to … you that this happened at night is because all you wanted to do was say it was you in order to take the responsibility for it? A. Absolutely not. I would never have done it if I didn't think I was the driver." 129 The Plaintiff was asked (T68.31, 24 October 2006): "Q. Why did you agree with her that there was such a conversation? A. I agreed with a lot of things she said in the transcript. I agreed with you know, marrying Kevin Costner and having Michael Jackson's baby, I just agreed with a lot of things. Q. But this was an important matter in relation to which you had given evidence in court and sworn [a] statutory declaration? A. I understand that. Q. This wasn't a fun matter, Michael Jackson -- A. No, but the setting or the situation that we were in, you know, we were just, you know, carrying on gossiping -- Q. To tell her lies about A. We were exaggerating and carrying on all of the way through the conversation." 130 The Plaintiff was asked about further aspects of her conversation with Ms Coughlan (T69.27, 24 October 2006): "Q. So it shows that you were making a statement relevant to the conversation you were having, and in fact boasting that, because they were out of time and they couldn't take any points off your licence? A. No, I was just carrying with it. I am telling you honestly, this is just one of those very weird ridiculous conversations that you have with somebody like Maria. I mean, that is the kinds of conversations that you would have with her Q. And she says, 'Really'-- A. The entire transcript. Q. And she says , 'Really?' And you saw , 'Mmm, they were out of time.' So again you are taking some pleasure and boasting that in fact they weren't able to do anything about it so far as your licence was concerned? A. I didn't know anything about time limitations or anything like that until Judge Phelan mentioned it, or at that time. Q. Well, you certainly knew it by the time you had the conversation with Ms Coghlan [sic] , didn't you? A. Yes, which is after, I think. Q. So Ms Coghlan [sic] A. But I was just really, it is absolutely the truth, just carrying on with her. Q. And Ms Coghlan [sic] prompts you by saying, 'So you saw are able to do that. Fantastic.' And you say, 'Yeah, so she didn't lose any points, neither did I.' Why did you say that? A. I have no idea just part of the rediculous [sic] conversation. We are going to cover this same ground, this is literally the type of conversation you are hearing. Q. Yes, I am going to take through each of the statement Ms Subramanian [sic] ? A. Yes. Q. Unless his Honour indicates he doesn't want me to. You see, why did you bring Ms Johnson into the conversation at that point? It was you that said -- A. I don't know. Q. "Yes, so she didn't lose any points. Neither did I." Is that not a boastful remark? A. It was just, it was all boastful and fantasy. Q. What was fantasy about it? A. Gossip you know. Q. Isn't it quite true that she didn't lose any points and neither did you? There is nothing that is fantasy about that, is there? A. But this is the conversation, the path of the conversation. Q. I am just putting to you, why would you say that part of the conversation is a fantasy? Because in fact it represents the true factual situation, doesn't it? A. It is part of the whole fantasy of the whole conversation. Q. This statement is not in any way fanciful. It represents the true factual situation, does it not? A. That may be the case. But it was just par [sic] of the whole gossip and banter that -- " 131 The Plaintiff was asked (T78.42, 25 October 2006): "Q. Now I want to return to that recording of the conversation that you had with Miss Couglan [sic] and that's to be found at the tab that is marked SS4 in that folder. Do you remember that I was asking you about the comment at the top of page 48, by you, being the words: 'And no-one got fined either', do you see that? A. Yes. Q. And I put it to you yesterday that was in fact truthful because no-one did get fined? A. I believe that is correct. Q. So that certainly was not fantasy? A. Well, in the context of the conversation I was just carrying on with her, but I don't recall, but I think that is true, that nobody did get fined. Q. It was a factual comment? A. It's - yeah, it is factual. Q. And if I take you to the last line on the previous point: 'Yes, so she didn't lose any points, neither did I'. Once again, that was a factual comment, wasn't it? A. I'm not sure about that. Q. You don't know that neither you nor Miss Johnson did not lose any points with respect to that traffic infringement? A. I don't recall. If I see the driving record I would be able to tell you. Q. You were present in the District Court when Judge Phelan upheld her appeal, weren't you? A. Yes. Q. Didn't that effectively mean that she had been found not to have committed that infringement? A. Yes, that is correct. Q. So therefore she could not have lost any points over it, could she? A. Well, I would assume that, yes. Q. So the statement, 'No-one lost any points' or 'she didn't lose any points, neither did I' is absolutely correct, from a factual point of view? A. Well, I can't remember if I didn't lose any points either. Q. Well, nobody took any action against you, did they? A. No, not after that, but I didn't check my record or anything like that so." 132 The Plaintiff was cross-examined as to why she would say to Ms Coughlan, in effect, that she was prepared to perjure herself in the District Court proceedings before Judge Phelan (T88.1, 25 October 2006): "Q. But why would you have said this to Miss Coughlan, because it is really, on its face, consistent with you being prepared to perjure yourself in the proceedings before Judge Phelan? A. Absolutely not. This was a garrulous fanciful conversation and, as I said yesterday, I did not know that I had to - I was bound to be telling her the truth about anything. Q. I can understand that you say that you were not under oath to tell her the truth. What I am seeking to find out from you is why you would make up a story for her that you were prepared to perjure yourself in proceedings before a Judge of the District Court? OBJECTION. HALL: The witness has answered the question. QUESTION ALLOWED ANDERSON: Q. What I am asking you is why you would have told Miss Coughlan that you were prepared to perjure yourself before a Judge of the District Court? A. I don't know, the same reason why I said that I was going to marry Kevin Costner. ANDERSON: Q. There's a huge distinction between talking about a movie star which I can readily understand is fantasy and talking about what you would have said in proceedings before the District Court when you had been involved in giving such evidence before the District Court some four months previously. A. It was part of this same tone of conversation, ridiculous, laughing, carrying on, you know." 133 The Plaintiff was asked why, in December 1996, she would make comments to Ms Coughlan which were damaging to Ms Johnson if the statements were not true (T93.1, 25 October 2006): "Q. Now Ms Johnson was your employer at the time? A. Yes. Q. You were on good terms with her? A. Oh yes. Q. As I understand it, you were close friends? A. Yeah, friends. Q. I know there were some other questions put to you in the District Court proceedings. I don't seek to go there. You had a friendship as well as a working relationship? A. Yes. Q. You knew that she was a solicitor of the Supreme Court of this state? A. Yes. Q. And you knew as such she was an officer of the court? A. Yes. Q. Why would you tell Ms Coughlan that a close friend of yours who was a solicitor and an officer of the court had been a party to misleading Judge Phelan, why would you have done that to your close friend, Ms Johnson? A. I know, it's just a ridiculous conversation, you know. What can I say? Stupid banter. Q. You realise it is highly defamatory to suggest that a solicitor would be involved in some sort of scheme to mislead the court? A. Absolutely and I have since apologised so -- Q. You realise that it is something that would possibly lead to proceedings for her removal from the roll, if not criminal proceedings? A. If that were true, but it's absolutely untrue. Q. But why would you tell somebody it was true? A. I don't know. It was just an embarrassing, ridiculous conversation. As I said, I don't have people like that around me anymore, so it doesn't matter. Q. I am just not sure how you blame Ms Coughlan for what you said? A. Well, because that's the kind of conversations that we had. I don't have those conversations with anyone anymore, not for a very long time." 134 Some parts of the evidence of the Plaintiff at the hearing before me were in sharp contrast with the evidence of Ms Johnson. In particular, the Plaintiff was asked (T58.24, 24 October 2006): "Q. When did you first see the camera infringement notice? A. The first time I saw it was, I'm not sure if it was the day it came in or some time thereafter when Miss Johnson was going through the mail and she pulled this out and was, I can't remember exactly what she said, but she was carrying on that it wasn't her who was driving the car, 'Who was driving the car? Who took the car?' Blah blah blah and at that time I couldn't remember, because I didn't, didn't know that I'd gone through a red light either, so she basically asked me to order the photos, which I did and that was the very first time that I had any knowledge of it, so." 135 It was the evidence of Ms Johnson (T111-112) (to which further reference will be made shortly) that it was in January 1996, some four months after the receipt of the camera infringement notice, that she learned for the first time that it was possible to obtain photographs from the police of a vehicle alleged to have travelled through a red light. 136 In cross-examination before me, the Plaintiff was asked (T59.40, 24 October 2006): "Q. You swore the statutory declaration after the photos had been obtained, didn't you? A. Yes, that's correct. Q. Is it the possibility that you needed to get the photographs before you could confidently swear the statutory declaration, or make the statutory declaration? A. No, absolutely not. I wanted to be sure that, you know, was it me or was it somebody else or was it Lee? We didn't know and only after I got it did it refresh my memory as to what I was doing on that particular morning. Q. Are you sure that you didn't want to see the photographs to see whether it was possible to tell who was driving before you swore an affidavit that said you were? A. Oh no, no, absolutely not." 137 The Plaintiff was asked whether she was maintaining her account of events in the present appeal because she realised that Ms Johnson may be in jeopardy of criminal or disciplinary proceedings in the event that the Plaintiff altered her account (T93.50, 25 October 2006): "Q. Now you have finished your legal studies? A. Yes. Q. And you are aware that Ms Johnson was not committed for trial? A. Yes. Q. Are you aware of the term 'double jeopardy' in terms of criminal proceedings? A. I am aware of that term, yes. Q. You realise that Ms Johnson has not been tried with respect to the matter that was the subject of the committal proceedings? A. Yes. Q. Accordingly, if there were fresh evidence available, then it would be open to the Crown to consider bringing criminal proceedings against her -- A. Yes. Q. -- because there has been no acquittal or any finding? You're aware of that? A. Yes. Q. You're also aware that if there were further evidence come to light, it would be possible for the Law Society to consider that new evidence in terms of Ms Johnson's entitlement to retain a practising certificate? A. Yes. Q. -- or to be on the roll of solicitors? A. Yes. Q. Are they reasons that in any way motivate you to be untruthful. A. Absolutely not. Q. -- in this matter? A. I've always maintained the truth from the beginning." 138 The Plaintiff maintained that she had not spoken to Ms Halls or Mr Dib in the manner alleged by each of them with respect to the red-light camera offence (T96-102, 25 October 2006). 139 The cross-examination of the Plaintiff concluded in the following way (T104.14, 25 October 2006): "Q. I'm obliged to put this to you, Ms Subramaniam, but is it the situation that your evidence is a concoction so as to seek to persuade the court that you should be admitted as a legal practitioner? A. It is absolutely not a concoction. It is the truth." 140 I have included these extensive extracts from the Plaintiff's evidence to assist an understanding of my later conclusions with respect to her evidence and my assessment of the Plaintiff as a witness. Evidence of Other Witnesses Called in the Present Proceedings 141 The Plaintiff called Ms Johnson and Mr Mark Light, a former police officer, to give evidence in her case. Evidence of Ms Johnson 142 Ms Johnson has given evidence in the present appeal, for the first time, concerning events surrounding the red-light camera offence of 21 August 1995 and subsequent events. She was not called as a witness by the Crown or the Defence in the Plaintiff's District Court trial in 1999 nor at the special hearing in 2002. In submissions, Mr Hall emphasised the significance of Ms Johnson's evidence to the resolution of the factual matters arising in these proceedings. 143 In her affidavit sworn 23 October 2006, Ms Johnson said that she was not driving her BMW motor vehicle through the intersection of Albion and Crown Streets, Sydney at 8.20 am on 21 August 1995. She stated that, when the camera infringement notice arrived in the mail (on about 7 September 1995), she had a recollection of having crossed an intersection at Crown Street, Sydney through an amber traffic light. She assumed that the camera infringement notice related to this incident and, as she had not driven through a red light, she signed the back of the notice requesting that the matter proceed by way of court hearing. 144 Ms Johnson stated that, after receiving the photographs of the incident (following a written request on 30 January 1996), she became aware that the photograph did not depict the particular intersection that she recalled traversing through an amber light. When she saw the photographs, she placed a yellow post-it note on them containing words to the effect "This was not me, check who was driving". The photographs bearing this note were forwarded to the Plaintiff, who was then employed by Ms Johnson as a legal clerk. Several hours later, the Plaintiff came to Ms Johnson and said, "I think that was me driving the car, because I had to go and pick up files". Having listed the matter for hearing by filling in the court hearing notice, Ms Johnson said to the Plaintiff, "You better get a stat dec and send it to the Infringement Bureau". Ms Johnson stated that she had no reason to believe that any person other than the Plaintiff was driving her BMW vehicle through the relevant intersection at 8.20 am on 21 August 1995. 145 Ms Johnson was cross-examined on her affidavit. I put to one side, for the moment, her non-responsive answers given from time to time despite exhortations from me to listen to and answer the question asked (T109-110, 115, 119-120, 130). She stated that she was "indignant" at receiving a camera infringement notice when, in her view, she had passed through an amber, and not a red light. Ms Johnson stated that she was unaware that it was possible to obtain photographs of alleged camera-recorded traffic light infringements and that she first learned of this in a conversation at the Downing Centre with a then serving police officer, Mark Light, some time after receipt of the camera infringement notice. It was at that time, she said, that written application was made for the photographs (on 30 January 1996). There was no mention of Mr Light in Ms Johnson's affidavit of 23 October 2006. 146 Ms Johnson was asked whether, to her knowledge, enquiries had been made of the staff working for her as to whether she had been in her office at 8.20 am on 21 August 1995. Ms Johnson was unable to point to any material or information obtained on her behalf, for the purpose of the committal proceedings in 1997, which supported her statement that she was in her office, and not driving her motor vehicle, at 8.20 am on 21 August 1995 (T114-118). 147 A significant issue arose during the cross-examination of Ms Johnson concerning her initial response on receipt of the camera infringement notice on about 7 or 8 September 1995 (T118.48): "Q. But in any event, when you first saw the infringement notice you believed that it applied to a situation where you had gone through an amber light? A. Yes, I do. Q. So there would have been absolutely no reason whatsoever for you upon seeing the infringement notice on the first occasion to have asked anybody the question 'who was driving the car?' A. That's right. Q. There would have been no reason for you to ask anybody 'who took the car?' A. That's right. Q. That suggestion would in fact be preposterous? A. Are you making that suggestion? Q. I'm saying if the suggestion was made that you'd said, 'Who was driving the car? Who took the car?' when you first saw the infringement notice, you would reject that suggestion out of hand, wouldn't you? A. It didn't happen. No, it didn't happen. Q. You continued to believe that you were dealing with a faulty traffic light up until the time that you gave the direction for the issue of the letter that is at SS24? A. Yes. Q. At that stage you still understood that the infringement notice referred to you having gone through an amber traffic light? A. Yes. Q. So during the period between you first seeing the infringement notice on 21 August 1995 and 30 January 1996 there was no reason for you to have said to anybody 'who was driving the car?' with respect to the infringement notice, was there? A. No. Q. Because you believed it was you? A. That's right. Q. There was no reason for you to have asked the question, 'who took the car?' in relation to the traffic infringement notice during the period between when you first saw the infringement notice and 10 January 19 -- A. Who said there was? Q. I beg your pardon? A. Who said there was? Q. I'm asking you whether there was any reason for you to have said that and you've indicated -- A. I didn't say that. Q. And you're more positive about that; you say you simply did not say that? A. Didn't say it. What; are you cross examining me from what Maria Coughlan said? HIS HONOUR: Ms Johnson -- WITNESS: Sorry, your Honour. HIS HONOUR: it's your function to answer the questions, not ask them. WITNESS: Sorry, your Honour. ANDERSON: Q. I will now ask you a question about what Ms Coughlan said during the recorded conversation between her and Ms Subramaniam. A. Ms Coughlan, the witness of no credit that you're not calling? Q. I regard her as unreliable too. HIS HONOUR: Ms Johnson -- WITNESS: I'm sorry, but I'm sorry, your Honour, but it's my understanding that I should not be cross examined on a witness to which Madam Crown believes is unreliable. HIS HONOUR: It's not Madam Crown, Ms Anderson is acting for the Legal Practitioners Admission Board. And to the extent that you make an inquiry, it's my understanding that the evidence that's before this court for the purpose that I am discharging under the Legal Profession Act is based essentially upon the transcript of what the plaintiff herself said. WITNESS: I see. HIS HONOUR: All right? Just for the purpose of keeping the proceedings moving I mention that to you. WITNESS: Okay." 148 As it happens, the foundation for this cross-examination was the evidence of the Plaintiff herself and not some account given by Ms Coughlan. The relevant evidence of the Plaintiff given on 24 October 2006 (T58) is set out at paragraph 134 of this judgment. In submissions, Ms Anderson pointed to this fundamental contradiction between the accounts given by the Plaintiff and Ms Johnson as being important to the fact-finding function which I must undertake. 149 Ms Johnson said that she had no independent recollection (as at 25 October 2006) as to whether she was in her office at 8.20 am on 21 August 1995 (T116.40) although she assumed that she would have been (T123.45). 150 Ms Johnson agreed that, between 7 or 8 September 1995 (when she signed the court election part of the camera infringement notice) and February 1996 (when the photographs ordered on 30 January 1996 arrived), she believed that she had been the driver of her motor vehicle at the time of the alleged offence on 21 August 1995 (T124-125). 151 Ms Johnson was cross-examined concerning the point in time at which the date and time of the alleged red-light offence became important to her (T127.6): "Q. You have said that during the period between 8 September 1995 and the first week or so of February 1996 you had not noted the date on the traffic infringement? A. That is right, it was not an important matter. Q. I understand that. So that the first time you became aware that it may be of some importance was in early February 1996? A. I am sorry. Q. The first time you became aware that the date may be of some importance was in early February 1996? A. I did not think the date was really of any importance. Q. At all? A. No. Q. Did you ever come to a different view as to whether the date was important? A. Well, I do now. Q. Yes. When did you come to that view that the date was important? Or particularly the time and the date of the alleged infringement? A. Well, right now it seems to be very important. Q. Was it not important? Has it not been important to you at any time before today? A. The date and the time? Q. Of the alleged infringement? A. Well, it was clear when the photos came that it was a different intersection and a different time of day. The date itself, I couldn't tell you the date I went through the orange light. Q. Right. A. So I don't know. But it was in the afternoon that I went through the orange light. Q. But prior to today have you considered both the time and date of the infringement to be of importance? A. I imagine I would have back when I was on criminal charges. Q. Yes. Because you understood that the allegation that was being made was that you in fact had been driving the car that went through that intersection at 8.20am on that date? A. Well, there were a lot of allegations made in court by spurious witnesses, yeah. I wasn't focusing on the date and time. And do you know what? Now that you say it here, it is possibly an obvious thing to do, but I was focusing on the insanity of the lies that these people were telling and I was in the middle of a breakdown. Q. Well, Ms Johnson -- A. I wasn't preparing a case for someone else. It's very different when you are preparing it for yourself. Q. Well, all that being said, Ms Johnson, if the date was not something that you were focusing on and if the traffic infringement was a matter of little moment at the time, how can you today be so adamant that you were in your office at the time of the alleged infringement? A. Only by retrospect. I mean, I have no clear recollection of sitting in my office at 8.20 on the, whatever date it was of August '95. I have no independent recollection right now of sitting there. Q. Do you know what day of the week 21 August 1995 was? A. No. Q. So it is no more than reconstruction and speculation on your part as to whether you were in fact in your office at that time of 8.20am? A. Right now? Q. On the 21st of August 1995? A. Right now? Q. Today? A. Today, yeah, that's right. Q. So your evidence to this court that you were there is no more than reconstruction and speculation? A. Today, yes. Q. And, in fact, you may have been elsewhere? A. Possibly. I remember at the time I turned my mind to the fact that Hector had, was deceased at that time because he drove the car a lot and I realised that he couldn't have been driving it. That's all. Q. Would you accept that from time to time you would have gone through that intersection driving the car yourself? A. Yes. Still do. Q. So in circumstances where you can't be sure as to the identity of the driver from the photograph and in circumstances where you can't be sure that you were in your office at the time of the infringement, how can you be sure that it was not you who was driving the vehicle? A. Just from reconstruction. I can be no more sure than you can be. From reconstruction at the time I went through this. Right now, it's God knows how many years ago, God knows how many tens of millions of dollars ago of taxpayers' money. Q. But in any event it was certainly not your purpose in seeking the photographs to ascertain the identity of the driver? A. No. Q. Is there any possibility that that was your joint purpose with Miss Subramaniam? A. No. Q. So that if it could be found that the driver could not be identified Ms Subramaniam could execute a statutory declaration to say that she was in fact the driver at the time of the infringement? A. No." 152 In one of her answers during this exchange (T128.24), Ms Johnson stated that the orange-light incident which she had assumed was the subject of the 21 August 1995 camera infringement notice occurred "in the afternoon". The camera infringement notice dated 31 August 1995, the back of which was signed by way of court election by Ms Johnson on 8 September 1995, bore the following clear entries on its face: "OFFENCE DATE: 21/08/95 at 08:20 AM OFFENCE: DISOBEY TRAFFIC LIGHT SIGNAL - CAMERA DETECTED OFFENCE PLACE: CROWN STREET (68) AND ALBION STREET SURRY HILLS This offence carries the loss of three demerit points." 153 Ms Anderson submitted that an important matter for my fact-finding function was an assessment of Ms Johnson's evidence that she had not looked closely at the notice and observed the time and date of the offence, but had assumed that the notice related to some other incident which had occurred on an afternoon and not a morning. 154 In re-examination, Ms Johnson was asked about concerns in her life in August 1995 and she referred to the death from cancer of her partner on 2 July 1995 (T133). From submissions made by Mr Hall, it appears that this evidence was led from Ms Johnson to support a submission that, as at August 1995, she had other distractions and concerns on her mind that would render it unlikely that she would give close consideration to a camera infringement notice, let alone embark upon a course of conduct leading to a false denial that she was the driver, and a false claim by the Plaintiff that she had been driving the car. However, this evidence may go to a further issue, namely the general reliability of Ms Johnson's account of events in August 1995 and following. 155 I will return to the evidence of Ms Johnson for the purpose of making findings which are relevant to the determination of this appeal. Evidence of Mr Light 156 Following the close of evidence on 25 October 2006 and after the hearing was adjourned for submissions to be made on the following day, the Plaintiff applied for leave to call Mark Stephen Light to give evidence. The Board did not oppose this course and leave was granted. Mr Light was mentioned, for the first time, in cross-examination of Ms Johnson on 25 October 2006. The evidence was led by the Plaintiff as corroboration of Ms Johnson's account that she had spoken to Mr Light concerning a camera infringement notice, and that he had suggested to her that photographs of the incident may be obtained from the Police Service. 157 A draft affidavit of Mr Light dated 26 October 2006 (Exhibit B) stated that Mr Light ceased his employment as a police officer in about 1998. Mr Light recalled "that on a day many years preceding today", he had "a conversation with Ms Johnson at the Downing Centre during which she mentioned 'I received a red light ticket and there is no way I went through it, so it must be faulty'" to which Mr Light replied "We had one like that at Redfern (Police), you can order the photo and that might show you the position of the car when it went past the camera". 158 In his draft affidavit (paragraph 4), Mr Light referred to Ms Johnson "whom I then knew to be a solicitor practising in criminal law". He repeated this description of Ms Johnson in his evidence in chief (T181.31-36). 159 Neither the draft affidavit nor the evidence in chief of Mr Light suggested that he had any friendship or other association with Ms Johnson apart from his knowledge of her as a solicitor practising in criminal law. However, his association with Ms Johnson was explored during cross-examination. He was asked by Ms Anderson how he had come to make the draft affidavit (T185.56): "Q. When were you contacted about making this affidavit? A. This morning. Q. Who contacted you? A. This gentleman, I believe. I spoke to somebody on the phone. Q. My learned friend Mr Hall? A. Yes. Q. Did he tell you how he knew how to find you? A. No. Q. Were you at work when you were contacted? A. Yes, I was. Q. What people know of where you work? A. Everybody. Q. When you say everybody? A. Everybody I know. Q. Everybody you know. What would be the link between Mr Hall knowing that fact and the people you know, to the best of your knowledge and belief? A. I do not know who Mr Hall knows, so I cannot answer that." 160 Soon after, Mr Light was asked about his association with Ms Johnson (T187.14): "Q. Are you a friend of Ms Johnson today? A. I think a friend is probably -- it depends how you quantify friend. HIS HONOUR: Q. How would you describe it? A. If you look at the circumstances that if I go to somebody's house and I have a barbecue and I know their family, they are friends. Ms Johnson and I used to live quite near each other. I lived in Zetland. I saw her in a hotel. I did not take her out or have dinner with her. I do not know whether she is married or not but she is an acquaintance, she is a person of interest, she is a nice person, so far as I am concerned. ANDERSON: Q. Do you still live in the same area as her, to the best of your knowledge? A. I do not know where she lives but I have moved from Zetland, I have moved to Pagewood. Q. When is the last time you saw her but for these proceedings? A. I think I bumped into her at the White Horse hotel with another lawyer. Q. How long ago was that? A. Six months ago. Q. Have you ever had any telephone conversations? A. When I ran into her she told me she had given this gentleman my telephone number. Q. When was that? A. Yesterday. Q. After you moved, how did she come to have your telephone number? A. As I have said, I have known for quite some time. It is not an unusual thing to hand out a business card and say: This is where I am at. Q. So it would be fair to say that you have given Ms Johnson a business card with your present position? A. Yes. Q. How long have you held that position? A. Four to five months. Q. So it must have been in the last 4-5 months? A. Yes, the White Horse Hotel in Crown Street. Q. You do not give a business card to every acquaintance, do you? A. I actually quite like Lee Johnson so I would always give her a business card of mine. Q. She is a little more than an acquaintance? A. As I said, if you want to quantify what a friend is in your mind and in the mind of the court. Lee is a nice person and I have had a lot of conversations with her over the years. Q. You say you have not taken her out and you have not had a meal, are you sure you have not had a meal with her over that period? A. Pretty sure. She used to have breakfast at Giotto with a gentleman, I believed to be her husband, but I do not consider that having a meal with her. Q. And you never shared meals with her at any other time of the day? A. No. Q. In terms of having a drink with her, you have had a drink with her? A. I have had a drink with a lot of people. Q. It is not a criticism of you? A. I am just trying to work out what you are getting at. Q. How often? A. Once or twice in a year. Q. How often has it been in the last six months? A. Once. Q. How often has she rung you in the last six months? A. Apart from yesterday I don't know, maybe once, one other time. Q. Has she discussed this matter with you? A. She discussed that she had given my phone number to the lawyer, yes." 161 The cross-examination of Mr Light concluded in the following way (T189.52): "Q. They are [sic] obliged to put this to you. Have you come along here today to tell, or to be untruthful, with respect to this conversation that you have deposed to in your affidavit in order to help Ms Johnson? A. Most certainly not. I do not see how it helps Ms Johnson. The matter is finalised so I do not understand the question. Q. Have you come here out of some loyalty to Ms Johnson in order to help Ms Subramaniam? A. No, I do not know Ms Subramaniam, to to [sic] you the truth, other than today I have seen her three or four times. HIS HONOUR: Q. when did you first reduce to writing your recollection of any conversation with Ms Johnson concerning mean [sic] red light camera? A. Today. Q. So between the time of the conversation and today there has been no written record? A. No, there was no reason to record the conversation. Why [sic] was not aware, I did not know it was happening." 162 Once again, I will return to Mr Light's evidence later in this judgment. Other Evidence in the Plaintiff's Case 163 In addition to evidence relating to disputed factual matters which are relevant to the application, the Plaintiff relies upon evidence relating to her reputation and character. Affidavits sworn by the following deponents were read in the Plaintiff's case and the deponents were not required for cross-examination: (a) Affidavit of Liliane Viselle sworn 23 October 2006 - Ms Viselle, a beauty therapist and designer, has know the Plaintiff for approximately three years in both a personal and professional capacity and describes the Plaintiff as "a proficient, intelligent, committed and dedicated young lady" who has always presented as "a steadfast, trustworthy person of the highest integrity" - Ms Viselle supports the Plaintiff's admission as a legal practitioner; (b) Affidavit of Richard Charles Rae sworn 17 June 2005 - Mr Rae is an advertising executive who has known the Plaintiff for a period of over five years - he is aware of prior criminal proceedings brought against the Plaintiff - he has found the Plaintiff honest and trustworthy in business dealings and considers her "a person of integrity, ability and … the highest ethical standards" - Mr Rae supports the Plaintiff's application for admission as a legal practitioner; (c) Affidavit of Michael Clowes sworn 17 June 2005 - Mr Clowes is a management consultant who has known the Plaintiff for over 10 years - he is aware of the prior criminal proceedings brought against the Plaintiff - he has had business dealings with the Plaintiff and has found her to be a person of the highest integrity, scrupulously honest and very professional - he is of the opinion that the Plaintiff is a fit and proper and person to be admitted as a legal practitioner; (d) Affidavit of Mary Elizabeth Barclay sworn 20 June 2005 - Ms Barclay is the head of drama at a secondary school, and has known the Plaintiff for about 10 years - she is aware of the prior criminal proceedings brought against the Plaintiff - Ms Barclay has known the Plaintiff in a social capacity and regards her as a friend - she describes the Plaintiff as a hard-working, trustworthy and reliable person who is impeccable in her honesty - she supports the Plaintiff's application for admission as a legal practitioner and expresses the opinion that the Plaintiff is a fit and proper person for that purpose. 164 In addition to these affidavits, the Plaintiff tendered a statement dated 23 October 2006 of Trang Doan Vu (Exhibit A). Mr Vu is a company director and has known the Plaintiff for about five years. He is aware of the criminal proceedings brought against the Plaintiff. Mr Vu speaks highly of the Plaintiff's intelligence, honesty and integrity. He recommends the Plaintiff as a fit and proper person to be admitted as a solicitor. 165 As mentioned earlier in this judgment (paragraphs 51 to 56), evidence of the type referred to in the preceding two paragraphs relates principally to the Plaintiff's reputation. However, it is relevant, in addition, to an assessment of the Plaintiff's character. The evidence constitutes unchallenged opinions of these persons concerning the Plaintiff's honesty and integrity in the various contexts in which they have had dealings with her. Evidence of this type may be relevant in this case, as in a criminal trial, to the question whether the Plaintiff is likely to have acted in the improper way alleged in some of the evidence before me and is also relevant to an assessment of the credibility of the Plaintiff in her denial of improper conduct: R v Murphy (1985) 4 NSWLR 42 at 54. Submissions Made by the Plaintiff and the Board The Plaintiff's Submissions 166 Mr Hall submits that the Court should be satisfied that the Plaintiff is of good fame and character and is otherwise suitable for admission as a member of the legal profession. He points to the unchallenged evidence concerning the Plaintiff's academic results and the affidavits of Ms Viselle, Mr Rae, Mr Clowes and Ms Barclay, together with the statement of Mr Vu, which testify to their opinions that the Plaintiff is a person of honesty and integrity and a fit and proper person to be admitted as a legal practitioner. 167 Mr Hall submits that the matters surrounding the statutory declaration made by the Plaintiff and evidence given by her in 1996 ought only operate to prevent a finding in her favour of good fame and character if the Court is reasonably satisfied in accordance with the Briginshaw principle that the Plaintiff misconducted herself in that way. 168 For reasons explained earlier in this judgment (paragraphs 38 to 49), I accept that a finding should not be made that the Plaintiff was not the driver of the motor vehicle which passed through the red traffic light on 21 August 1995, and that she had thereby made a false statutory declaration on 29 February 1996 and gave false evidence in the District Court on 5 August 1996, unless I am reasonably satisfied, on the balance of probabilities, in accordance with the Briginshaw principle, that the Plaintiff had so misconducted herself. 169 Mr Hall submits that no adverse findings should be made against the Plaintiff arising from the events of 1995 and 1996 and that, accordingly, the Court should be satisfied that she is of good fame and character and otherwise suitable for admission. 170 With respect to the various categories of evidence adverse to the Plaintiff, Mr Hall makes the following submissions. 171 The evidence of Ms Halls is unreliable insofar as it alleges that a conversation took place with the Plaintiff in early September 1995 following the receipt of the camera infringement notice in Ms Johnson's office. Mr Hall submits that the evidence of the Plaintiff should be preferred to that of Ms Halls on this question, although he does not submit that Ms Halls was giving deliberately false evidence in alleging the conversation referred to in her evidence. 172 Mr Hall submits that the evidence of Mr Dib that the Plaintiff made admissions to him in a conversation in October 1996 ought be rejected as being deliberately untruthful evidence. It was submitted that Mr Dib, who had complained to the Law Society about Ms Johnson's conduct, had a strong dislike for her and that Mr Dib was not an objective witness. There was no contemporary record made of the alleged conversation, with no complaint being made of it until Mr Dib was speaking to Law Society investigators. Although Mr Hall could not point to any reason for Mr Dib wishing to make a damaging allegation against the Plaintiff (as opposed to Ms Johnson) he submitted that the alleged conversation between Mr Dib and the Plaintiff ought be treated as an attempt by Mr Dib to harm Ms Johnson by alleging wrongdoing on her part. 173 With respect to the recorded conversation between the Plaintiff and Ms Coughlan on 6 December 1996, Mr Hall submits that the evidence of the Plaintiff characterising the entire conversation as "rubbish", "gossip" or "fantasy" ought be accepted. He emphasised the need to read the entire transcript of the conversation, which extended over more than one hour, to gauge the flavour of it. He submitted that it would be erroneous to treat the statements made by the Plaintiff concerning the red-light camera offence of 21 August 1995, her statutory declaration of 29 February 1996 and her evidence in the District Court on 5 August 1996 as being credible and reliable admissions of wrongdoing on her part. He pointed to parts of the conversation, including references to Hollywood actors and other items of personal gossip, as a reflection of the tenor and content of the entire conversation. 174 With respect to the documents which are in evidence before me, and which were in evidence in the criminal proceedings, Mr Hall submits that a finding that the Plaintiff acted improperly would require a finding of a type of conspiracy between the Plaintiff and Ms Johnson which was on foot from early September 1995 until August 1996. He submitted that this was farfetched. The appropriate conclusion, Mr Hall submitted, was that the correspondence emanating from Ms Johnson's office, some of which was signed by the Plaintiff, illustrated the relative unimportance of the red-light camera offence of 21 August 1995. To the extent that erroneous statements were contained in that correspondence, this served to emphasise the absence of a careful criminal plan. He submitted that the documents either taken alone, or in conjunction with the other evidence, ought not be treated as evidence of wrongdoing on the Plaintiff's part. 175 Mr Hall submits that the critical additional evidence on the present appeal (which had not been before the criminal courts) was the evidence of Ms Johnson and Mr Light. Although acknowledging that Ms Johnson had been, at times, an argumentative and troublesome witness, he submitted that this could be explained by the degree of bitterness or animosity on her part towards those who had caused her to be prosecuted for the events of 1995 and 1996 arising from the red-light camera offence. He submitted that Ms Johnson should be accepted as a credible witness who had given her evidence in a forthright manner. It was her sworn evidence, he submitted, that she had not been driving her BMW motor vehicle at 8.20 am on 21 August 1995 when it passed through a red light at the intersection of Crown and Albion Streets, Surry Hills. He submitted that her sworn denial to this effect, and her denial of an improper arrangement whereby the Plaintiff would take responsibility for this offence, ought lead to a finding in the Plaintiff's favour in these proceedings. Mr Hall sought to call in aid, with respect to Ms Johnson's evidence, statements by the Court of Criminal Appeal in R v Drummond and Domican (No. 2) (1990) 46 A Crim R 408 at 416-419 with respect to evidence given by Ms Johnson in that appeal. 176 He submitted that the evidence of Ms Johnson concerning her discovery, from a conversation with Mr Light, of the facility to obtain photographs of an alleged red-light camera offence was corroborated by the evidence of Mr Light called in these proceedings. Although Mr Light could not be specific as to when this conversation occurred (beyond the statement that it was many years before October 2006), Mr Light's evidence supports Ms Johnson in her claim that such a conversation took place. Further, he submitted that Mr Light's evidence under cross-examination of his association with Ms Johnson did not undermine the substance of his evidence that such a conversation had taken place with Ms Johnson. 177 Mr Hall submitted that, at worst, the Plaintiff had engaged in a reckless and unwise conversation with Ms Coughlan on 6 December 1996. He submitted, however, that none of the statements made by the Plaintiff in that conversation ought be treated as credible and reliable admissions of improper conduct on the part of the Plaintiff. He submitted that the Plaintiff's explanation of this conversation, and her expression of regret for having had such a conversation, ought be accepted by the Court. 178 In summary, Mr Hall submitted that the Court should not be reasonably satisfied that the Plaintiff had made a false statutory declaration on 29 February 1996 nor that she had give false evidence to the District Court on 5 August 1996 with respect to the red-light camera offence of 21 August 1995. 179 He submitted that the Plaintiff had disclosed the existence of the proceedings which had been brought against her in her application for admission in 2003, and that no basis existed for a conclusion that she had been less than candid in her disclosure to the Board. 180 Mr Hall submits that a finding should be made that the Court is satisfied that the Plaintiff is of good fame and character and otherwise suitable for admission as a member of the legal profession. The Board's Submissions 181 Consistent with the approach of the Board throughout the proceedings, Ms Anderson made submissions as to possible findings which may be open to the Court in the light of the evidence adduced at the hearing, but did not urge a particular outcome. As will be seen from the extracts from cross-examination referred to earlier in this judgment, the Plaintiff, Ms Johnson and Mr Light were tested on a number of issues and propositions were put to them for response. The Board's submissions were designed to assist the Court with possible ways of viewing the evidence, so that the Court could undertake its fact-finding function in aid of a jurisdiction being exercised principally to protect the public and the legal profession and in the public interest. 182 Ms Anderson submits that the Plaintiff was under a duty, as an applicant for admission, to make full and frank disclosure to the Board and that it was open to the Court to conclude that her disclosure was not adequate in a number of respects. 183 Ms Anderson submitted that it was open to the Court to conclude that the evidence of Ms Halls concerning her conversation with the Plaintiff concerning the camera infringement notice in early September 1995 was credible and reliable. There was no reason to doubt or question the evidence of Ms Halls given at the first trial in August 1999, and at the special hearing in April 2002. Significantly, it was Ms Halls evidence that the Plaintiff said to her during that conversation "I'll get a photo to see where it was". This evidence is fundamentally inconsistent with that of Ms Johnson. If the evidence of Ms Halls is accepted, it points to a recognition on the part of the Plaintiff, at a time well before January 1996, that it was possible to obtain a photograph of a red-light camera offence. 184 Ms Anderson submitted that it was open to the Court to accept the evidence of Mr Dib that a conversation took place in October 1996 in which the Plaintiff made admissions, in effect, of improper conduct on her part with respect to the red-light camera offence. Although Mr Hall had made a strong attack on Mr Dib with respect to a suggested grievance on his part towards Ms Johnson, Ms Anderson submitted that no basis had been identified in the evidence for Mr Dib to harbour any bias or grievance towards the Plaintiff. Mr Dib had given evidence of the conversation with the Plaintiff at the committal proceedings on 27 June 1997, a date not too remote from October 1996. Ms Anderson submitted that the Plaintiff agreed that Mr Dib had given her a lift home, but contended that the statement attributed to her by Mr Dib is a concoction. Insofar as there is conflict between the evidence of Mr Dib and the Plaintiff in this respect, Ms Anderson submits that the relevant question is which person is telling the truth. 185 With respect to the evidence of Ms Johnson, Ms Anderson notes that Ms Johnson had not been called in earlier criminal proceedings. She submits that it is open to the Court to infer that the Crown would have regarded Ms Johnson as an unreliable witness in the criminal proceedings against the Plaintiff, and that that Plaintiff's then legal representatives made a tactical decision not to call Ms Johnson at the first trial in 1999 or the special hearing in 2002. Cross-examination of the Plaintiff at the first trial revealed that Ms Johnson had been, to the knowledge of the Plaintiff, in the precincts of the Court during the first trial. 186 Ms Anderson submits that one of the difficulties for the Plaintiff in the present case is that there is significant inconsistency between the evidence of Ms Johnson and the Plaintiff. Ms Johnson's evidence is to the effect that when she first saw the camera infringement notice in her office, she believed that it applied to a situation where she had gone through an amber light and that there was no reason for her to have asked anybody the question "Who was driving the car?" or the question "Who took the car?". In this regard, Ms Johnson was emphatic in her evidence that she had not asked these questions (T118-119). The evidence of Ms Johnson on this issue stands in stark contrast to that of the Plaintiff. 187 Ms Anderson submits that this conflict is capable of reflecting upon the credibility and reliability of the Plaintiff, Ms Johnson or both of them. Ms Anderson posed as a question for consideration by the Court, whether Ms Johnson's personal circumstances in August/September 1995 were such that her memory with respect to events is unreliable. 188 Ms Anderson expanded upon this conflict between the evidence of the Plaintiff and Ms Johnson. It was Ms Johnson's evidence, with respect to the significant delay in requesting the photographs, that she did not know that such photographs could be obtained until after she had a conversation with Detective Light, leading to a letter being sent on 30 January 1996 seeking the photographs. It was submitted that this explanation by Ms Johnson (and the evidence of Mr Light), as to the reason for the delay in ordering the photographs, was inconsistent with the Plaintiff's evidence that on the first occasion that she (the Plaintiff) became aware of the matter (when Ms Johnson first saw the camera infringement notice on or before 8 September 1995), Ms Johnson "basically asked me to order the photos" (T58). 189 Ms Anderson submits that it is open to the Court to find that the Plaintiff's evidence was untruthful or unreliable, in circumstances where the Plaintiff claims that (although she can no longer remember exactly what was said by Ms Johnson) when Ms Johnson first saw the traffic infringement notice (no later than 8 September 1995), Ms Johnson was "carrying on that it wasn't her who was driving the car" and that "she basically asked me to order the photos, which I did and that was the very first time I had any knowledge of it" (T58). 190 Ms Anderson submits that there are aspects of the Plaintiff's evidence before his Honour Judge PJ Phelan in the District Court on 5 August 1996 which give rise to difficulties for her on the present appeal: (a) the Plaintiff agreed with the presiding Judge, on two occasions, when he put it to her that the red traffic light incident had occurred at night although it had, in fact, occurred at 8.20 am; (b) in these proceedings, the Plaintiff said she was a little flustered when giving her evidence before the District Court and that she "obviously didn't hear the night or day" and that it was "a mistake" on her part (T53-55) - this might be compared with the Plaintiff's statement to Ms Coughlan on 6 December 1996 that she was "just, like, sitting back enjoying myself" (Exhibit 1, Tab SS4, page 49) and her evidence (T84) that her statement to Ms Coughlan was not correct. 191 Ms Anderson submits that it is open to the Court to conclude that the Plaintiff signed a letter, on 10 January 1996, directed to the Local Court which contained inaccurate information. The Plaintiff signed the letter on the letterhead of Ms Johnson's firm, seeking to explain the failure of anyone from that firm to attend the Local Court on that day with respect to the proceedings for the red-light camera offence. The letter included the following statement: "I did not receive any notification that this matter was listed and therefore did not attend upon the Court." 192 The Plaintiff had, however, previously signed a letter dated 21 November 1995 to the Local Court (again on Ms Johnson's letterhead) stating, inter alia: "I refer to infringement number Y42979220 listed before the Court on 10 January 1996." 193 Insofar as these two letters are concerned, Ms Anderson points to the Plaintiff's evidence, on this appeal, that at the time that she signed both letters, she believed that their contents were factual (T83). 194 With respect to the recorded conversation between the Plaintiff and Ms Coughlan on 6 December 1996, Ms Anderson notes that, at that time, the Plaintiff had been studying law for approximately two years (T65). 195 Ms Anderson points to the characterisation in the judgment of the High Court (at 15 [50]) of this conversation as "confessional evidence" and that the Plaintiff "was only too willing to volunteer details of her own involvement in the events the subject of the charges". 196 Ms Anderson notes the explanations provided by the Plaintiff for her statements in the recorded conversation that they constituted gossip, exaggeration, boasting and fantasy. Ms Anderson submits, however, that some of the Plaintiff's statements in this conversation were entirely consistent with the facts, including the following: (a) no person was fined as a result of the red-light camera offence on 21 August 1995 (T78-79); (b) no person turned up for the hearing in the Local Court on 10 January 1996 (T79); (c) his Honour Judge PJ Phelan did uphold the appeal and dismiss the charge recorded against Ms Johnson in the Local Court "totally on that day" (T89); (d) the photographs did show the back of Ms Johnson's vehicle and the number plate, but it was not possible to tell who was driving the vehicle (T89-90). 197 Ms Anderson submits that, in all the circumstances, it is open to the Court to find that the Plaintiff's explanation for the admissions made to Ms Coughlan was glaringly improbable and that, in this regard, there continues to be a reason for the Plaintiff to be untruthful about the matter, being a desire for self-protection and protection of Ms Johnson (T93-94). Assessment of Submissions 198 The principal difficulty confronting the Plaintiff on the present application is the body of adverse evidence adduced before me, which tends to fit together, and serves to fortify a series of conclusions unfavourable to the Plaintiff. Evidence of Ms Halls 199 The evidence of Ms Halls, which I accept, points to a conversation involving the Plaintiff on about 7 September 1995 (just over two weeks after the red-light camera offence on 21 August 1995) in which the Plaintiff does not assert that she was driving the motor vehicle at the time in question. The Plaintiff and Ms Halls discuss the journey which Ms Johnson was undertaking at the time of the offence and potential difficulties for Ms Johnson by way of loss of demerit points and her financial ability to pay the fine. 200 The most important feature of the evidence of Ms Halls was the discussion in that conversation (well before January 1996) that a photograph of the red-light camera offence of 21 August 1995 was going to be obtained. This is entirely inconsistent with the account of Ms Johnson, but is consistent with the Plaintiff's evidence, at least on the present appeal. It is difficult to reconcile the evidence of Ms Johnson with this evidence. Evidence of Mr Dib 201 The evidence of Mr Dib was strongly challenged before me. It is appropriate to consider his evidence with some caution, given the adverse view which he had clearly formed of Ms Johnson at the time when he approached the Law Society of New South Wales. That said, the critical conversation is said to have taken place between Mr Dib and the Plaintiff, and not Ms Johnson. It has not been suggested that Mr Dib had any grievance towards the Plaintiff, or a desire to do her harm. 202 The conversation alleged by Mr Dib to have taken place was not recorded, nor was it the subject of any contemporaneous or near contemporaneous note. However, Mr Dib gave evidence of this conversation for the first time at the committal proceedings on 27 June 1997, an occasion not too remote from the events in question. 203 It is important to observe that some two months later (on 6 December 1996), the Plaintiff was speaking to Ms Coughlan in an open and uninhibited manner, making comments about the red-light camera offence which are similar to the comments alleged by Mr Dib to have been made by her, some two months earlier, on 14 October 1996. 204 For the purpose of assessing the credibility and reliability of the evidence of Mr Dib, it is appropriate to have regard to other evidence, including the undisputed fact that the Plaintiff was making similar comments to Ms Coughlan on 6 December 1996. I see no reason to disbelieve the substance of Mr Dib's evidence that the Plaintiff admitted improper conduct concerning the red-light camera offence during the conversation in October 1996. In approaching this issue, I have had regard to the probability of the Plaintiff making such a statement to Mr Dib in October 1996, a conclusion which is fortified by the undisputed fact that the Plaintiff was making similar comments to Ms Coughlan two months later. The Recorded Conversation of 6 December 1996 205 The evidence which is most damaging to the Plaintiff is the recorded conversation of 6 December 1996 between Ms Coughlan and herself. There is no dispute that such a conversation took place in which the Plaintiff made admissions. The Plaintiff maintains that her admissions were not true. 206 It is true that a range of topics were discussed during the conversation, some of them involving an element of humour and fantasy, in particular with reference to actors and matters of that sort. 207 That said, the Plaintiff's statements concerning the red-light camera offence, and actions taken by her thereafter with respect to the statutory declaration and the giving of evidence in the District Court, include admissions against interest. These topics were being discussed within months of their occurrence, and neither their content nor the context indicates that the Plaintiff is concocting the statements which she is making. 208 Evidence is often admitted, usually in criminal proceedings, of telephone or face-to-face conversations between persons which are covertly and lawfully recorded, and which are said to contain confessional evidence. It is not uncommon for alleged incriminating statements to be intermingled with conversation about a variety of other topics. That is the case with the conversation of 6 December 1996. On the face of it, there is nothing about the statements made by the Plaintiff in this conversation concerning the red-light camera offence of 21 August 1995, and its sequelae, which suggests that she is fabricating her account of events. 209 Mr Hall, for the Plaintiff, has submitted that Ms Coughlan was and is an entirely unreliable person. He points to the fact that she was dealt with for contempt of court for an incident occurring in the committal proceedings on 2 July 1997: Prothonotary of the Supreme Court of NSW v Helen Maria Coughlan (Dowd J, 21 April 1998, unreported). Ms Anderson does not challenge this characterisation of Ms Coughlan and provides it as an explanation for not calling her as a witness in these proceedings. 210 The significant question for me, however, is the conclusion to be reached with respect to the statements made by the Plaintiff during the conversation on 6 December 1996. The Plaintiff did not require the playing of the tape recording itself at this hearing. The Plaintiff was content to have the transcript of the conversation admitted into evidence. 211 A number of the Plaintiff's submissions were similar to those advanced to (and rejected by) the Court of Criminal Appeal and the High Court of Australia, with respect to the admissions made by the Plaintiff in the recorded conversation with Ms Coughlan. I must form my own conclusions and make findings of fact with respect to that conversation for the purpose of determining these proceedings. 212 However, I note the conclusions of the High Court of Australia (at 15 [50]), that the statements of the Plaintiff in the recorded conversation were "properly characterized as confessional evidence", that there was "no evidence whatever in the conversation of any mental infirmity" on the Plaintiff's part and that the Plaintiff "was only too willing to volunteer details of her own involvement in the events the subject of the charges". 213 With respect, I adopt these observations which are apt for the purpose of assessing the weight to be attached to the Plaintiff's admissions during the conversation. 214 From time to time, an accused in a criminal trial who is said to have made admissions during a covertly recorded conversation, will assert that what was said was "rubbish", and that some statements made in the conversation are inconsistent with other known facts. (See, for example, R v Smith [2000] NSWCCA 202 at [45], [140]-[151]). Where such an explanation is proffered for what otherwise would appear to be a confession of criminal conduct, it is necessary for the tribunal of fact, whether a jury or judge, to assess the evidence with the view to determining whether the confession is credible and reliable: Burns v The Queen (1975) 132 CLR 258 at 261; R v Green (2002) 4 VR 471 at 480-482. 215 It might be contended that the confessor has made a false confession for a number of reasons including self-aggrandisement, attention seeking, or because of some peculiar mental state: R v Pederick (NSW Court of Criminal Appeal, 21 May 1997, unreported, BC9701982 at pages 11-12); Mallard v The Queen (2005) 80 ALJR 160; [2005] HCA 68 at 168-169 [31]-[33], 170 [39]. In these circumstances, it is necessary for a Court to have regard to the circumstances in which the alleged confession was made, in the broader context of all the evidence admitted in the case. 216 The present proceedings are civil in nature. Nevertheless, I approach the present fact-finding function, assisted by authorities which outline the task of a criminal court in resolving such an issue. 217 I have read, and reread, the entire transcript of the recorded conversation. I have considered the admissions made by the Plaintiff in that conversation in the context of all the evidence adduced at the hearing before me. 218 I am satisfied that the Plaintiff made credible and reliable admissions to Ms Coughlan on 6 December 1996 to the effect that she had not been the driver of Ms Johnson's motor vehicle at 8.20 am on 21 August 1995 and that she had taken steps to mislead the relevant authorities, including the District Court, by means of a statutory declaration and evidence given by her which suggested that she was the driver of the motor vehicle at that time. The Documentary Evidence 219 The statements which I have found were made by the Plaintiff to Ms Halls (in September 1995), to Mr Dib (in October 1996) and to Ms Coughlan (in December 1996) are consistent with the sequence of events identified in the correspondence and other documents in evidence in these proceedings. 220 It is the fact that letters written on Ms Johnson's letterhead (two of which were signed by the Plaintiff), had the effect of delaying the hearing of Local Court proceedings against Ms Johnson for the traffic offence until after the expiration of six months from 21 August 1995. 221 The Plaintiff made a statutory declaration on 29 February 1996 in which she claimed, for the first time, that she was the driver of the vehicle on 21 August 1995 and that she accepted responsibility for the offence. By that time, the Plaintiff was safe from prosecution for the offence (s.56 Justices Act 1902), and no points could be deducted from her licence by the Roads and Traffic Authority. So much is borne out by the fact that the Plaintiff's driving record discloses no offences (Exhibit 1, Tab SS21). 222 On 5 August 1996, the Plaintiff gave evidence before his Honour Judge PJ Phelan in the Sydney District Court in support of Ms Johnson's appeal. At that time, the Plaintiff was safe from prosecution for the traffic offence. 223 In my view, the available documentation is consistent with the account alleged to have been given by the Plaintiff to Ms Halls, Mr Dib and Ms Coughlan in the various conversations to which reference has been made. The Plaintiff 224 I have set out, earlier in this judgment (paragraphs 114 to 139) extensive extracts from the Plaintiff's evidence to demonstrate her approach to giving evidence on critical factual issues. With respect to her conversation with Ms Coughlan on 6 December 1996, the Plaintiff invariably used a formulaic answer that the entire conversation was "rubbish", "gossip", "fantasy" or "fiction". The Plaintiff was closely cross-examined in 1999, and again in October 2006, concerning admissions made by her in that conversation that she had not been the driver of Ms Johnson's motor vehicle when it passed through a red traffic light on 21 August 1995 and that she had falsely claimed that she had been the driver in a statutory declaration made on 29 February 1996 and, again, in evidence before the District Court on 5 August 1996. I am satisfied that, in adopting this standard or stock response, the Plaintiff sought to deflect attention from her damaging admissions, together with statements damaging to Ms Johnson made in this conversation. 225 I observed the Plaintiff closely whilst she gave evidence in the present proceedings. Her manner and demeanour in giving evidence along these lines was as unconvincing as the substance of the evidence itself. I am conscious that care must be taken in attaching weight, or excessive weight, to demeanour in the process of fact finding as a trial Judge. In making findings concerning the Plaintiff's evidence, it is necessary to take into account the probabilities and consistency with other relevant evidence: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 at [27]. In the present case, the Plaintiff's evidence constitutes an entirely unconvincing attempt to explain away admissions of impropriety made by her on an earlier occasion. The impression of the Plaintiff as a witness, and her demeanour, serves to reinforce the unconvincing nature of the explanations provided by her in evidence. 226 Undoubtedly, there are parts of the conversation between the two women on that day which may be regarded as gossipy and garrulous. However, in my view, the Plaintiff strains credulity in her attempt to characterise the entire conversation, including statements against interest made by her concerning the red-light camera offence and subsequent events, as "gossip" and "mindless garbage". I do not accept the Plaintiff's explanation in this regard. Her evidence in this respect is glaringly improbable. 227 Before reaching this conclusion, I have had regard to the totality of the evidence, including the evidence of the Plaintiff's reputation and character adduced on her behalf. Nevertheless, I am satisfied that the statements made by the Plaintiff in the conversation of 6 December 1996 constituted confessions by her that she was not the driver of Ms Johnson's motor vehicle on 21 August 1995, but that she had falsely claimed to the contrary in a statutory declaration and in evidence before the District Court. Evidence of Ms Johnson 228 I have given careful consideration to the evidence of Ms Johnson and the submissions made concerning her evidence. It is true that her evidence adds a new dimension to the evidence given in earlier criminal proceedings against the Plaintiff. 229 Ms Johnson's demeanour and manner of giving evidence were not impressive. At times, she was more of an advocate than a witness. At times, she used her answers as a vehicle for a submission or argument which she wished to make, rather than an answer to the question. 230 As I have mentioned, care must be taken in making demeanour findings: Goodrich Aerospace Pty Limited v Arsic at [16]ff. I have attempted to focus upon the content of Ms Johnson's evidence. It must be said, however, that the presentation of her evidence was unhelpful to the Plaintiff's case. In written submissions (page 22), Mr Hall acknowledged the "argumentative and troublesome way in which certain aspects" of Ms Johnson's evidence were "delivered", but submitted that her evidence was given in "a forthright manner". 231 Ms Johnson's evidence displayed a tendency to move from dogmatic statements concerning relevant events which, upon closer examination, appear to be based upon reconstruction and not recollection, mixed with non-responsive answers and the making of strong allegations against a range of persons. 232 There is a fundamental inconsistency between her account, and that of Ms Halls and the Plaintiff, as to when the obtaining of a photograph of the red-light camera offence of 21 August 1995 was first discussed. On this point, I accept the evidence of Ms Halls, supported as it is by the Plaintiff and do not accept the evidence of Ms Johnson. 233 Ms Johnson was not an impressive witness on this appeal. I have already made mention of her argumentative and non-responsive approach to the giving of evidence. More importantly, Ms Johnson's evidence is inconsistent in certain critical respects, with other evidence. Ms Johnson's account that she did not know of the ability to obtain photographs of red-light camera offences until January 1996 simply cannot stand with the evidence of Ms Halls and the Plaintiff. 234 There are troubling features about the evidence of Ms Johnson touching both the content of her evidence and her demeanour as a witness. I am left with the definite impression that Ms Johnson, as a witness, was an advocate in the Plaintiff's (and her own) cause. I am not assisted by the observations of Ms Johnson as a witness in other proceedings, and in an entirely different context, in R v Drummond and Domican (No. 2). All of these matters touch the reliability and credibility of her evidence in such a way that it is appropriate to look for corroboration before acting upon her evidence. 235 I accept that Ms Johnson proposed that photographs of the 21 August 1995 red-light camera offence be obtained as early as September 1995, when the camera infringement notice had been received in her office, and that the Plaintiff knew at that time that the photographs could and should be obtained. 236 It may be that Ms Johnson's conduct, including her recollection of events, is affected by personal pressure she was experiencing in and after July 1995. Such a conclusion, however, does not assist the Plaintiff with respect to any relevant fact finding in these proceedings. 237 I do not consider that Ms Johnson's denial that she was driving her motor vehicle at 8.20 am on 21 August 1995 ought be given any real weight on this appeal, having regard to the totality of evidence that is before the Court. Evidence of Mr Light 238 Ms Anderson submits that Mr Light's evidence should be approached with some caution. His association with Ms Johnson, including his contacts with her which served to explain how he came to be called as a witness in the Plaintiff's case emerged, in a developing way, in cross-examination. It was submitted that he is not a witness who is at arm's length from Ms Johnson and there is force in this submission. 239 I do not consider that Mr Light's late arrival to the case as a witness assists the Plaintiff. It may well be that there was a conversation between Ms Johnson and Mr Light concerning the facility of obtaining photographs of a red-light camera offence. At its highest, Mr Light's evidence points to a conversation with Ms Johnson concerning a traffic camera offence many years before October 2006. I do not accept that this conversation occurred in January 1996. A Finding of Conspiracy ? 240 Mr Hall submits strongly that findings adverse to the Plaintiff on these issues would involve a finding of a conspiracy between the Plaintiff and Ms Johnson to engage in an elaborate subterfuge for the purpose of defeating the prosecution of Ms Johnson (and saving her the loss of demerit points). 241 It is appropriate to observe that Ms Johnson's driving record revealed speeding offences committed on 14 January 1994 (Court determination on 2 August 1994 - four demerit points) and 29 April 1994 (Court determination on 10 February 1995 - three demerit points). The offence of 21 August 1995 would not have led directly to the cancellation of Ms Johnson's licence. However, a further traffic offence could place her licence in jeopardy, as demonstrated by the issue to Ms Johnson of a demerit points warning letter on 20 July 1996 by reference to the two 1994 speeding offences and the red-light camera offence of 21 August 1995 (Exhibit 1, Tab SS22). 242 It is also noteworthy that Ms Johnson's driving record reveals fine default cancellations of her licence on 3 April 1989, 25 March 1993 and 19 July 1994. Ms Johnson's reaction to fine default cancellation was a topic touched upon by the Plaintiff in the recorded conversation with Ms Coughlan on 6 December 1996. This is a further indication that the conversation, insofar as it related to driving offences and driver licence issues, related to actual events. 243 The Plaintiff's driving record discloses that an unrestricted licence issued to her on 12 July 1991 with no traffic offences recorded against her as at February 1997 (Exhibit 1, Tab SS21). Accordingly, the traffic records of the Plaintiff and Ms Johnson provide broad support for the admissions made by the Plaintiff to Ms Coughlan on 6 December 1996. 244 Although Ms Johnson has given evidence before me and I have made findings critical of her as a witness , she is not a party to the present proceedings. It is the Plaintiff who applies to this Court, seeking a finding that she is of good fame and character and is otherwise suitable for admission as a legal practitioner. For the purpose of this appeal, it is not necessary that I make a finding as to whether a conspiracy existed between the Plaintiff and Ms Johnson in 1995 and 1996. 245 What is necessary to be determined is whether, in 1996, the Plaintiff falsely stated in a statutory declaration, and in evidence before the District Court, that she was the driver of Ms Johnson's motor vehicle at 8.20 am on 21 August 1995 when, in fact, she was not. As in the criminal proceedings, there is a body of admissible evidence against the Plaintiff in support of a conclusion that the Plaintiff made false statements to that effect to assist Ms Johnson. 246 The criminal proceedings brought against Ms Johnson culminated in her discharge at committal proceedings in 1997. There is no more admissible evidence against Ms Johnson now than there was in 1997. 247 I approach my findings on this appeal upon the basis of admissible evidence against the Plaintiff which is capable of supporting, and does support, a finding to the relevant standard that she engaged in misconduct. Findings of Fact 248 I turn now to the findings of fact to be made having regard to the totality of evidence before the Court. The Plaintiff's False Statutory Declaration and False Evidence 249 With respect to the disputed issues concerning alleged impropriety on the Plaintiff's part, I record that I am reasonably satisfied, on the balance of probabilities (in accordance with the Briginshaw principle) of the following facts: (a) the Plaintiff was not the driver of Ms Johnson's BMW motor vehicle registered number AAV 31Q at 8.20 am on 21 August 1995, when that vehicle passed through a red traffic light at the intersection of Crown Street and Albion Street, Surry Hills; (b) the Plaintiff made a statutory declaration on 29 February 1996 in which she claimed, falsely and to her knowledge, that she had been the driver of this motor vehicle at that time and place; (c) the Plaintiff gave evidence before his Honour Judge PJ Phelan in the District Court on 5 August 1996 in which she again claimed, falsely and to her knowledge, that she had been the driver of this motor vehicle at that time and place; (d) the Plaintiff falsely stated that she had been the driver of Ms Johnson's motor vehicle on 21 August 1995 for the purpose of assisting Ms Johnson; (e) the Plaintiff delayed making her false admission that she was the driver of the motor vehicle until more than six months had passed from the date of the offence - in this way, the Plaintiff avoided prosecution for the offence and any loss of demerit points - at the time of making her statutory declaration, the Plaintiff was aware that it was too late for the Police or the Roads and Traffic Authority to proceed against her for the offence; (f) the Plaintiff made a credible and reliable admission with respect to this conduct in a conversation with Mr Dib on about 14 October 1996; (g) the Plaintiff made credible and reliable admissions concerning this conduct during a conversation with Ms Coughlan on 6 December 1996; (h) the Plaintiff's evidence in this Court on 24 and 25 October 2006, in an effort to explain away the admissions made by her in the conversation with Ms Coughlan on 6 December 1996, was glaringly improbable and did not constitute credible and reliable evidence. The Plaintiff's Disclosure to the Board 250 The Plaintiff continues to harbour a view, confirmed in her evidence in this Court on 24 October 2006, that she is a victim with respect to past proceedings brought against her concerning this subject matter. Having regard to the evidence against her and, in particular, her own admissions to Ms Coughlan on 6 December 1996, this stance is unrealistic and unhelpful to the Plaintiff in the present proceedings. 251 A number of observations are appropriate with respect to the nature and extent of disclosure by the Plaintiff in her application to the Board of June 2003. There are troubling features concerning the manner in which the Plaintiff purported to satisfy her duty of disclosure at that time, and to explain her approach in evidence on the present appeal. 252 The matters disclosed by the Plaintiff to the Board were set out earlier in this judgment (at paragraph 80). It is clear that a document, partly typed and partly written, was prepared by the Plaintiff for the express purpose of disclosure to the Board. 253 There is no evidence before me that the Plaintiff provided the Board with a copy of the judgment of the Court of Criminal Appeal delivered on 25 November 2002 in R v Subramaniam [2002] NSWCCA 372. Certainly, there is no reference to the judgment of the Court of Criminal Appeal in the typed and handwritten sheet prepared by the Plaintiff for provision to the Board. The evidence reveals that, by 1 July 2003, the Board had obtained and considered a copy of the judgment of the Court of Criminal Appeal, but the source of the judgment is not disclosed in the evidence. 254 The judgment of the Court of Criminal Appeal represented the latest and most complete statement of the findings made against the Plaintiff in criminal proceedings at the time of her application to the Board. Appropriate disclosure in accordance with the Plaintiff's obligations required, as a minimum, provision of this judgment to the Board. 255 The Plaintiff used the occasion of her application to the Board to advance a self-serving argument that she had been "a victim of a horrendous unjustified District Court matter over a 'red traffic light offence'" which "ran over many years, for political reasons, at the expense of my health and career". The Plaintiff stated "I have no conviction in law against me". 256 The finding which had been made against the Plaintiff, and upheld by the Court of Criminal Appeal, involved a verdict under s.22(1)(c) Mental Health (Criminal Procedure) Act 1990 that she had committed an offence under s.319 Crimes Act 1900 of making a statutory declaration, knowing it to be false, with intent to pervert the course of justice. It was technically correct that there was "no conviction in law" against the Plaintiff for this offence: s.22(3)(a) Mental Health (Criminal Procedure) Act 1990. However, such a finding constituted a "conviction" for the purpose of s.2(1) Criminal Appeal Act 1912. The Plaintiff had appealed under that Act to the Court of Criminal Appeal with respect to that finding. 257 Further, to characterise the prosecution of the Plaintiff for public justice offences under s.319 Crimes Act 1900 as being a "matter over a 'red traffic light offence'" tends to understate significantly the nature and seriousness of the charges which had been brought against her, one of which remained proved at the time of the Plaintiff's application to the Board. In the Court of Criminal Appeal, Simpson J (who dissented solely with respect to the refusal of a stay of proceedings in the District Court) said at [83]: "Here, it cannot be gainsaid that the crimes with which the appellant was charged were very serious ones, concerned with the administration of justice. There is a significant public interest in the finalisation of allegations such as were levelled against the appellant. In the ordinary course, a failed trial would not be a reason precluding the further prosecution of such allegations." With respect, Simpson J's characterisation of the prosecutions of the Plaintiff accurately reflects their seriousness. The Plaintiff's characterisation of the matter, as a type of traffic matter, in her disclosure to the Board fell short of the requirements for proper and full disclosure expected of a person applying for admission to the legal profession. 258 The provision of Mr Waterstreet's contact details as part of the disclosure was not a satisfactory procedure for the Plaintiff to discharge her obligation. 259 The making of incomplete and self-serving disclosures by an applicant has been the subject of critical comment, and has been found to be conduct capable of reflecting adversely upon fitness for admission. In Thomas v Legal Practitioners Admission Board (2005) 1 QdR 331, an applicant for admission provided an incomplete and self-serving statement with respect to a criminal offence. De Jersey CJ said at 334: "By making candid and comprehensive disclosure of relevant information an applicant demonstrates a proper perception of his or her duty and will thereby seek to demonstrate his or her good character. It is not a sufficient answer to say, as was said, that the Board ended up with all relevant information. The significant feature is that it was furnished only gradually and then only in response to express and repeated requests from the Board." In the same case, McMurdo P said at 335-336: "The difficulty for the appellant is that the disclosure he made to the Board of the details of these offences was incomplete. He was, to say the least, cavalier in that disclosure, referring to having pleaded guilty to a matter in 1995/1996, instead of 1998, and dismissing it as a 'debt charge' when it was a significant fraud committed on his employer involving $8,640.00. He did, however, rightly disclose that 'no conviction was recorded, no probation or community service was issued either'. He did not disclose that a significant fine was imposed. It made clear that he had been involved in criminal behaviour so that it was inevitable that the Board would investigate this matter fully before deciding whether to accede to his application to enter into Articles of Clerkship. This makes his lack of candour, though unfortunate, not nearly as serious as that in Re Hampton [2002] QCA 129. His lack of disclosure does, however, demonstrate a lack of insight into his serious past misconduct and a lack of understanding of his duty to make full and accurate disclosure to the Board." 260 It may be said, on the Plaintiff's behalf, that there was some disclosure of the prior criminal proceedings, together with the provision of Mr Waterstreet's particulars, and that this would have led to a fuller disclosure on her behalf. In my view, this is not a satisfactory answer to the criticisms which arise from the information included in, and omitted from, the Plaintiff's disclosure to the Board in June 2003. 261 The approach taken by the Plaintiff in that disclosure, including the claim of unfounded victimisation "for political reasons", is capable of bearing upon her current claim of fitness for admission to the legal profession. Likewise, the Plaintiff's evidence in October 2006 maintaining the belief that she had been the victim of unfounded proceedings against her. 262 A fundamental difficulty with the Plaintiff's approach is that the principal foundation of the case against her in the criminal proceedings, and again on the present appeal, is her own confession on 6 December 1996 to Ms Coughlan. 263 I am not concluding that admission of guilt by the Plaintiff is an essential prerequisite for admission: cf Zaidi v Health Care Complaints Commission at 100. Nevertheless, the Plaintiff's continuing vigorous claim of victimisation with respect to proceedings which were based principally upon her own confession, casts a shadow over her claim of current good fame and character and suitability for admission to the legal profession. 264 I am conscious of the consequences that flow from a finding that the Plaintiff has engaged in improper conduct, involving the making of a false statutory declaration and the giving of false evidence. A finding that the Plaintiff is not of good fame and character, and is otherwise not suitable for admission as a legal practitioner on those grounds, is capable of constituting a long-standing, if not permanent, impediment to the Plaintiff's admission to the legal profession. It is not a finding to be made lightly. I have given careful consideration to the evidence adduced and submissions made on this appeal. 265 However, the function which I am exercising touches the public interest, and the protection of the community and the legal profession. Admission of a person as a legal practitioner reposes in that person a significant degree of trust. Courts and fellow practitioners are entitled to rely upon legal practitioners, and honesty and integrity are essential preconditions to admission to the legal profession. 266 Being reasonably satisfied, on the balance of probabilities, I have made findings of fact of substantial impropriety against the Plaintiff. These factual findings do not depend upon inexact proofs, indefinite testimony or indirect inferences. The principal basis for the findings which I have made is confessional evidence emanating from the Plaintiff herself. Findings Concerning the Plaintiff's Evidence 267 In a number of areas, I have rejected the evidence of the Plaintiff. In particular, I have found that her attempts to explain away her admissions to Ms Coughlan on 6 December 1996 were glaringly improbable. 268 I have had the advantage of seeing the Plaintiff give evidence and I have considered carefully her evidence. For reasons given, I do not find the Plaintiff to be a witness whose evidence was frank and who faced the facts put before her or the implications of them: cf Law Society of NSW v Foreman at 449F. I have found portions of her evidence to be not credible. 269 This assessment of the Plaintiff's credibility bears upon two things: her character and what she is apt to do in the future. These are related issues. Findings as to credibility may be taken into account in arriving at findings as to the two other matters: Smith v NSW Bar Association (1992) 176 CLR 256 at 268-269; Bannister v Walton at 723-729; Law Society of NSW v Foreman at 450C-D. Current Good Fame and Character? 270 I am conscious that the events which have attracted the principal attention of the Court on this appeal occurred more than a decade ago. However, the making of a false statutory declaration and the giving of false evidence in a Court are matters which strike at the heart of the processes of justice. To act in such a way is entirely inconsistent with the requirements of integrity and honesty which are essential prerequisites for admission as a legal practitioner. The Plaintiff had commenced her legal studies by the time of relevant events in 1995 and 1996. Findings that the Plaintiff has acted in this way are inconsistent with the requirement that the Plaintiff be of good character. 271 It is clear that, had the question been asked in August 1996, the Plaintiff could not have satisfied a Court that she was then of good fame and character and otherwise suitable for admission as a legal practitioner. 272 The Plaintiff is not assisted by the passage of time since the events of 1995 and 1996. I have found that she has is not a credible witness, in particular in her glaringly improbable account attempting to explain away her admissions to Ms Coughlan on 6 December 1996: Law Society of NSW v Foreman at 450C-D. This was a central feature of her evidence. The Plaintiff persists in a claim that she is the victim of processes which were based, essentially, upon her own confessions. The Plaintiff's disclosure to the Board in June 2003 was incomplete and self-serving, and did not demonstrate a proper perception of her duty of candour. This does not assist the Plaintiff in the present application: Thomas v Legal Practitioners Admission Board at 334, 335-336. Conclusion 273 Having regard to the findings which I have made, I am not satisfied that the Plaintiff is of good fame and character and is otherwise suitable for admission as a legal practitioner. 274 The Amended Summons is dismissed. As agreed at the conclusion of the hearing, I will give the Plaintiff and the Board an opportunity to consider whether any application for costs is to be made. I stand the matter over until 9.30 am on 13 December 2006 to allow the Plaintiff and the Board an opportunity to consider my reasons for this purpose. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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