The Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428 Hearing dates: 27 November 2014 Decision date: 12 December 2014 Before: Beazley P at [1]; Meagher JA at [2]; Leeming JA at [48] Decision: 1. Declare that Craig Andrew Franklin: (a) having pleaded guilty to or been found guilty of four serious criminal offences, including assault occasioning actual bodily harm and aggravated sexual assault, which were committed by him on 9 April 2007, and having been sentenced to an overall term of imprisonment for seven and a half years, with a non-parole period of four and a half years, for those offences and (b) having given evidence on oath in February and June 2009 at his trial and sentencing hearings that he did not commit any of the three offences of which he was found guilty, that evidence being false to his knowledge is not a fit and proper person to remain on the roll of lawyers of the Supreme Court of New South Wales. 2. Order that the name of Craig Andrew Franklin be removed from the roll of lawyers of the Supreme Court of New South Wales. 3. Order that the respondent pay the applicant Bar Council's costs of these proceedings. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LEGAL PRACTITIONERS - removal from roll of local lawyers - application to have lawyer's name removed from roll - where lawyer convicted of criminal offences including aggravated sexual assault - where lawyer denied that he committed the offences of which he was convicted, both at trial and at sentencing hearing - whether of good fame and character - whether guilty of professional misconduct - whether presently a fit and proper person - Legal Profession Act 2004 (NSW), s 32 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58 Crimes Act 1900 (NSW), ss 59(1), 578A Evidence Act 1995 (NSW), ss 140, 178 Legal Profession Act 1987 (NSW), ss 4, 27 Legal Profession Act 2004 (NSW), ss 5(b), 9, 25(1), 31, 32, 33(1), 61(2), 497(1), 590, Ch 7, Sch 9 cl 16 Cases Cited: A Solicitor v Council of the Law Society of NSW [2004] HCA 1; 216 CLR 253 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 Ex Parte Tziniolis; Re the Medical Practitioner's Act (1966) 67 SR (NSW) 448 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 In re Davis [1947] HCA 53; 75 CLR 409 New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 NSW Bar Association v Hamman [1999] NSWCA 404; 217 ALR 553 In re A Solicitor (John Royston Wishart); Ex parte the Incorporated Law Institute of NSW (Full Court of the Supreme Court (NSW), 4 September 1941, unrep) The Council of the New South Wales Bar Association v Franklin [2014] NSWCA 329 The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279 Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) Craig Andrew Franklin (Respondent) Representation: Counsel: Ms C A Webster SC (Applicant) No appearance (Respondent) Solicitors: Hicksons (Applicant) File Number(s): 2013/337442