Child exploitation material and professional misconduct

Legal Services Commissioner v CBD [2012] QCA 69

The practitioner pleaded guilty to viewing child pornography material when he “stumbled upon” it in relation to other lawful pornographic material, but failed to deal with it appropriately and stored it.

The Legal Services Commission appealed the decision of the Queensland Civil and Administrative Tribunal (QCAT) that the practitioner was otherwise a fit and proper person to practice. The practitioner was disciplined and fined. In relation to the substantive offence he was sentenced to imprisonment for 12 months, wholly suspended.

The appeal was dismissed on a number of grounds. In the context of the meaning of professional misconduct I draw your attention to the judgment of Muir JA with whom Margaret Wilson AJA and Applegarth J agreed.

Muir JA:

[19] Section 419 and s 456 of the Act[9] relevantly provide:

“419 Meaning of professional misconduct

(1) Professional misconduct includes—

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

  1. Decisions of tribunal about an Australian legal practitioner

(1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.

(2) The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate —

(a) an order recommending that the name of the Australian legal practitioner be removed from the local roll;

(b) an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;

(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period;

(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner;

(7) The tribunal may find a person has engaged in unsatisfactory professional conduct even though the discipline application alleged professional misconduct.”

[20] Section 419(2) does not require that regard be had to “suitability matters” in all circumstances in which it is being considered whether a legal practitioner is “a fit and proper person”. Nevertheless, a consideration of “suitability matters” will normally be relevant to such a determination and they were relevant to the Tribunal’s determination here. It is not the case that the Tribunal did not have regard to the suitability matters referred to by the appellant. The Tribunal was conscious of the existence of the suspended sentence. It was referred to early in the Tribunal’s reasons and also in the last section of the reasons when the question of penalty was discussed. It was observed there that the respondent had “served his suspended sentence, without default”. Counsel for the appellant tentatively submitted that this may have revealed an erroneous understanding by the Tribunal that the operational period of the suspended sentence had expired at the time of the hearing. I do not consider that this is the preferred construction of the Tribunal’s observations which, to my mind, were directed to the respondent’s behaviour whilst under sentence.

[21] The question of the respondent’s current “good fame and character” was considered in detail by the Tribunal. Relevant authorities were discussed, including Ziems v Prothonotary of Supreme (NSW);[10] A Solicitor v Council of Law Society of (NSW);[11] Barristers’ Board v Darveniza;[12] Legal Services Board v McGrath (No 1);[13] Legal Services Board v McGrath (No 2);[14] and Legal Services Commissioner v Quinn.[15] Careful consideration was given to the facts and circumstances of the offending conduct; the psychiatric evidence; the respondent’s conduct in relation to the criminal proceedings and, subsequently, in relation to his discontinuance of practice and cooperation with all relevant authorities; questions of remorse; insight into the offending conduct; and the prospects of the respondent’s reoffending.

[22] In considering the nature and significance of the offending conduct, the Tribunal considered and distinguished Legal Services Board v McGrath (No 2).[16]

[23] Counsel for the appellant accepted in the course of argument that there could be no inflexible principle that a person serving a suspended sentence was necessarily, by that fact alone, not “of good fame and character” and thus not a fit and proper person to engage in legal practice. He placed some reliance on Ziems v Prothonotary of Supreme Court (NSW),[17] but it does not support the appellant’s contentions. The first to thing to note about Ziems for present purposes is that it concerned the fitness to practise as a barrister. The particular role of counsel as an officer of the Court appearing before the Court was a relevant consideration.[18] The next matter to note is that the appellant barrister had been convicted of manslaughter in circumstances in which, as McTiernan J pointed out,[19] “…necessarily involves that the Crown made out its accusation that the appellant committed the offence by driving his motor car while he was drunk”. McTiernan J observed that to “drive a motor car in this condition is evil conduct; because calculated to cause bodily injury or death”.

[24] Nevertheless, despite the nature of the conviction, all members of the Court other than McTiernan J considered it necessary to go behind the conviction and sentence in order to determine whether the appellant should have been disbarred. By this process, despite the gravity of the offending conduct, the decision of the Full Court of the Supreme Court of New South Wales ordering that the appellant’s name be removed from the roll of barristers was overturned. In considering the matters to which a court should have regard in deciding whether to disbar a barrister, consequent upon his being convicted of a serious offence, Fullagar J observed:

In a case of this kind it is essential, in my opinion, to begin by defining the ground on which an order of disbarment is to be made. It is stated in general terms by saying that the person in question is not a fit and proper person to be permitted to practise at the Bar. The next question is — at what facts is it proper to look in order to see whether that conclusion is established? The answer must surely be that we must look at every fact which can throw any light on that question. But, descending to particularity, is it the conviction that is the vital thing, unchallengeable and conclusive of the ultimate issue? Or must we look beyond the conviction, and endeavour to ascertain, as best we can on the material before us, the facts and circumstances of the particular case? To my mind, there can be only one answer to these questions. The conviction is not irrelevant: it is admissible prima facie evidence bearing on the ultimate issue, and may be regarded as carrying a degree of disgrace itself. But, in the first place, its weight may be seriously affected by circumstances attending it, and it must be permissible to look at the conduct of the trial. And, in the second place, it is on what the man did that the case must ultimately be decided, and we are bound to ascertain, so far as we can on the material available, the real facts of the case. It is only when we have done this that we can be in a position to characterise the conduct in question, and to see whether we are really justified in saying that a man is disqualified from practising his profession.”[20]

[25] Fullagar J, although of the view that neither disbarment nor suspension should be ordered, was prepared to assent to an order of suspension during the appellant’s term of imprisonment, “[h]aving regard, however, to the incongruity [of holding out the respondent to members of the public as a fit and proper person to act for them in legal matters while serving a gaol sentence] and to the views of the Council of the Bar”.[21] Kitto J, although considering that suspension was inappropriate, was prepared to assent to such an order to permit it to be made as he thought that “it [could] do no harm”. In his view, if the appellant’s conviction and imprisonment were held not to disqualify the respondent “logically that should be the end of the case”. He added, “[t]here can be no question of imposing a punishment additional to the imprisonment, and as far as I can see there is no purpose to be served by adding a de jure suspension to the de facto suspension which the appellant’s incarceration produces while it lasts”.[22] Taylor J agreed that it was incongruous “…if the appellant, whilst in prison, is to be entitled to hold himself out as a person entitled to practise as a barrister”.[23]

[26] Counsel for the respondent made the point that although a sentence of imprisonment which is wholly suspended remains a sentence of imprisonment, the term of imprisonment is not actually served unless the prisoner offends during the operational period and an order is made under s 146 or s 147 of the Penalties and Sentences Act 1992 (Qld). Accordingly, there are fundamental differences between a term of imprisonment of 12 months and a term of imprisonment of 12 months wholly suspended with an operational period of two years.

[27] This ground was not made out.

Brisbane Barrister – David Cormack

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