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Cases Admission Re Gillian Shepherd (center link overpayment) Facts

The misleading of Centrelink involved serious deception, and a level of dishonestly which would ordinarily be considered glaringly inimical to the honesty integral to fitness to practise as a legal practitioner. The explanation which is offered revolves about the personal circumstances of the applicant; an abusive relationship; alleged instances of rape within that relationship; termination of pregnancies, disastrous circumstances which had led to her voluntarily undergoing psychological and psychiatric treatment which is continuing. The psychologist's expectation is that the favourable resolution of the present application would do much to relieve her potential for distress; a potential which is highly relevant, of course, in the area in which she has been working, that is Family Law. Her application today is supported by comprehensive affidavits from persons in the firm Hopgood and Gamin and a consultant to that firm, a former Judge of the Family Court of Australia. There is no doubt that constitutes strongly persuasive support for her present application. The position taken by the Board is that the application should await the effluxation of the two year bond period imposed on the 8th of September 2006 following the applicant's pleas of guilty to the fraud offences. Borhani v Legal Practitioners Admissions Board 1. The Legal Practitioners Admissions Board opposes his admission on the grounds that he is not a fit and proper person due to his conduct in relation to his academic qualifications. Mr Borhani affirmed, “I completed a Bachelor of Laws degree with First Class Honours at the Queensland University of Technology in April 2010, ...”. He exhibited a copy of the degree issued by the Queensland University of Technology (“QUT”) which shows him to have been admitted to the degree of Bachelor of Laws with First Class Honours. Mr Borhani had applied to various law firms for employment, telling them that he had a GPA of 6 for his Bachelor of Laws course. When he saw the results and GPA of 4.73 displayed on QUT Virtual, he affirms: “I was concerned that such a transcript would mean that I had not been truthful to the people to whom I had made the Representations [as to his having a GPA of 6]”. He further affirms, “I decided that the

way out of my predicament was to get my academic transcript corrected back to what it was when I made the Representations”. Mr Borhani set about doing so. 16. Against the foregoing history, I am of the view that Mr Borhani is not a fit and proper person for admission to the legal profession at this time. As the Chief Justice stated in 1 Re AJG: “Legal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional commitments.” Frugtniet v Board of Examiners [2002] VSC 14

24 December 1954 Appellant born in Sri Lanka – now aged 50 years. Lived in England. 4 January 1978 Appeared in the Crown Court in Leeds and was convicted of 15 counts of handling stolen good, forgery, obtaining property by deception and theft. He pleaded guilty to the charges. He also requested the Court to take into account seven additional charges. He was sentenced to a total period of imprisonment of four years and he served two years. At that time he was aged 23 years. 1982 First came to Australia to be with his family. Remained for a short period and left. 1986 Returned to Australia. Stayed for a period and then left. 1988 Returned to Australia. Stayed for a period and then left. During periods in Australia he worked in travel. 27 December 1989 He was charged with an offence of obtaining property by deception, it being alleged that the credit card facilities at the State Bank of Victoria had been tampered with. The appellant stated that it was alleged he had in the course of his employment as a travel agent debited credit cards twice for the one transaction. He thought there were three to four charges. The charges were not proceeded with because a State Bank witness would not co-operate with the police and provide a statement and the magistrate discharged him at the committal. The

appellant informed this Court that there was a risk that he would be directly presented but that did not eventuate. He said he was concerned by this possibility. 1990 Returned to Australia as a migrant. 10 April 1990 Granted a certificate of Australian citizenship. 1990 Appellant married to Corine Gwendoline Frugtniet. Commenced working with wife in her travel agency known as Karina Travel at Melton. 21 May 1992 Application concerning wife’s Travel Agent’s Licence before Travel Agents Licensing Authority. Appellant called as witness. Stated that he had never been convicted of a criminal offence. Gave evidence on oath. The following day, 22 May, he was asked the question whether he had been convicted anywhere and his response was "I have not, no", and when asked whether in England or anywhere he stated, "Nowhere, no". Wife lost her licence and appealed to AAT. 20 November 1992 At hearing before Administrative Appeals Tribunal appellant gave evidence on oath and he was asked whether in fact he had been convicted of a number of charges in 1978 in England and his response to that was, "I totally reject that, sir". He was asked the question a number of times and continued to deny it. It was put to him that he was convicted of charges concerning handling stolen property and forgery and his response was: "I totally reject this. I think this is the most outrageous suggestion on your part and I ask you to produce a document, an official document which suggests that I was convicted of the things that you are now alleging. I really do, and I think this is a most scandalous allegation that you ever raised. I reject it out of hand." October 1996 Wife lost her licence as a travel agent. Appellant ceased work as a travel agent. The appellant commenced a migration agency business. Each year he was required to apply to the Migration Agents Registration Board ("MARA") for registration. 14 May 1997 Charged with five charges of dishonestly obtaining cash by selling invalid airline tickets through wife's agency.

24 November 1997 Appeared at the Broadmeadows Magistrates’ Court on five charges of obtaining property by deception during the period 1994-1996. Four of the charges were withdrawn. He pleaded guilty to the fifth charge and was fined $1,000 without a conviction being recorded. The alleged offences concerned airline tickets acquired unlawfully in 1991 and sold by the appellant to clients of his wife’s agency during 1994 to 1996 for travel with Lufthansa and KLM. 1997 Charged with perjury – three counts of perjury, namely, the evidence given on 21 and 22 May 1992 before the Travel Agents Licensing Authority and 20 November 1992 in the proceeding at the AAT. 1997 Commenced studying law at Deakin University. May 1998 Perjury charges heard before His Honour Judge Jones and a jury in County Court. Issue arose in the trial as to the Rehabilitation of Offenders Act 1974 of the UK which provides that convictions recorded in the United Kingdom expired after ten years and became spent convictions for the purposes of the Act. It followed that the accused was to be treated as a person who had not committed or been charged with any of the offences. It appears also that the Act further provided that the convicted person could not be asked to admit the convictions. Division 3 of Part VII(c) of the Commonwealth Crimes Actalso deals with spent convictions. However it only applies to Commonwealth offences. It also applies to foreign convictions that are spent and the effect of that is that a person is not required in Australia to disclose to a Commonwealth authority the fact that he has been convicted of the offence. At trial Judge Jones ruled that neither Act applied in the State of Victoria to the Travel Agents Licensing Authority or the AAT. His Honour’s ruling was critical to the appellant’s defence and I find that he knew and understood what his Honour ruled and its effect. The fact was he could not rely on either Act in dealings with state authorities in this State. The appellant gave evidence that he honestly believed that the provisions of both Acts applied and the jury acquitted him of the charges. 1997 Appellant employed with ANZ Bank. March 1998

Appellant charged with six counts of theft and three of attempted theft. The allegations were that whilst working as an employee of the ANZ Bank he gave personal details of accounts to an accomplice who then proceeded to steal money from the accounts. Accomplice pleaded guilty and gave evidence against appellant. 23 March 2000 Appellant acquitted of the charges concerning the ANZ Bank theft. April 1998-July 2000 During this period after he was dismissed by the ANZ Bank, he continued studying law, worked in his migration agency and also had another job. It was alleged that during this period he obtained by deception money from Centrelink. He claimed a Job Search Allowance and Newstart allowance which he received from 6 March 1998 to 11 April 2002. I interpolate to note he made his first application for admission in August 2001. It is alleged he was working in the period from 27 April 1998 to 7 July 2000 earning $1,482 gross per fortnight. Mid 2001 Appellant made first application for admission to practise to Board of Examiners. 20 August 2001 Appellant filed letter of disclosure with Board and disclosed the conviction at Broadmeadows for obtaining property by deception. Did not disclose any other criminal matter. 24 August 2001 Graduated from Deakin University in Law. 28 August 2001 Appellant filed affidavit with Board deposing that there was nothing else to disclose. 22 October 2001 Board rejected his application. 5 November 2001 Appellant appealed to this Court. 9 January 2002 Board published its reasons, finding that he was not a fit and proper person. Marriage broke down. 1 May 2002 Pagone J dismissed the appeal. Pagone J held that the appellant had not proven that he was at that time a fit and proper person for admission. 15 April 2003

Appellant charged with defrauding the Commonwealth of Australia through Centrelink from March 1998 to November 2000. 7 May 2003 Appellant awarded Master of Laws by Deakin University. 11 May 2004 Centrelink charges were dismissed. 27 July 2004 Appellant’s new application for a Certificate of Admission. Appellant filed a number of documents in support of his application. 14 October 2004 Appearance before the Board. Appellant gave evidence on oath. He was cross-examined. 9 December 2004 Further hearing before Board. 11 February 2005 Letter rejecting the application by the Board. Reasons given. Appellant was not a fit and proper person to be admitted to practise. In his reasons for judgment, Pagone J said: "The evidence before me does not establish to my satisfaction that the applicant is now a fit and proper person for admission. The way in which details of the perjury charges, the ANZ charges and, more particularly, the UK convictions have come to light in this proceeding have not left me with sufficient confidence in the applicant. His obligation was to disclose matters that could inform a judgment about whether he was a fit and proper person for admission to practise. 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."[12] 29 Pagone J summarised the obligation in a passage with which I respectfully and fully agree. His Honour said: "The requirement for admission to practise law that the applicant be a fit and proper person, means that the applicant must have personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor. A legal practitioner, upon being admitted to practice, assumes duties to the courts, to fellow practitioners as well as to clients. At the heart of all those duties is a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self-interest or embarrassment. The entire administration of justice in any community which is governed by law depends upon the honest working of legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour. It is the legal practitioner

who is effectively the daily minister and executor in the administration of justice when advising clients, acting for clients, certifying documents, and making presentations to courts, governments, other professionals, and so on. The level and extent of trust placed in what legal practitioners say or do is necessarily high and the need for honesty is self-evident and essential."[14] (Emphasis added.)

Legal Services Commissioner v CBD [2012] QCA 69 Solicitor pleaded guilty to possession of child exploitation material and sentenced to 12 months imprisonment wholly suspended with an operational period of 2 years – no prior criminal history and an unblemished professional record – offending occurred when he “stumbled upon” the offending material when looking for legal adult pornography – vast majority of offending material fell at lower end of the spectrum of offensiveness – the solicitor was said by a psychiatrist to have had an “avoidant personality disorder” – this resulted in the solicitor avoiding social interaction – the condition did not pose a threat to others – the solicitor gave a show cause notice after conviction – the Legal Services Commissioner (the Commissioner) applied to QCAT seeking disciplinary orders under s456 of the Legal Profession Act 2007 (the Act) – the Tribunal declined to find the solicitor was not a fit and proper person to resume practice – the Tribunal imposed no further sanctions other than costs – the Commissioner appealed – Counsel for the Commissioner before the Tribunal had accepted that the conduct in question constituted professional misconduct – Counsel for the solicitor acknowledged before the Tribunal that the subject offence was “very serious” – the matter before the Tribunal proceeded on the basis as to whether the solicitor at the time of hearing was a “fit and proper person” – the Commissioner argued that the Tribunal had failed to address the suitability matters set out in s9 of the Act – in particular the Tribunal failed to consider that at the time of the hearing, the operational period of the solicitor’s suspended sentence had not expired – further if this had been done the Tribunal could not have been satisfied that the solicitor was “currently of good fame and character” – the Court of Appeal referred to the decision of Warren CJ in Legal Services Board v McGrath (No2) – the Court noted that s419(2) of the Act 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” but the consideration of such matters would normally be relevant – the Court noted that there are fundamental differences between a term of imprisonment and a term of imprisonment wholly suspended – s420 of the Act demonstrates a legislative intention to “recognise the significance of convictions for serious offences in determining whether certain conduct amounts to “unsatisfactory professional conduct” or “professional misconduct” – a conviction for a “serious offence” may be taken by the Tribunal as an indication of the practitioner’s unwillingness to abide by the law – “fitness” must be considered in its statutory context by reference to s420 of the Act – the Court noted that depriving the solicitor of the ability to earn a living through the practice of law will harm the solicitor and do nothing to maintain public confidence in the legal profession – the solicitor has been severely punished – the imposition of further sanctions will impact heavily on the physical and mental health of the solicitor – every expectation that the solicitor will not reoffend and does not bear directly on the performance of the solicitor’s work or the relationship with clients – appeal dismissed with costs – the Court of Appeal noted the non-

publication order of the Tribunal of any information containing details of the subject offence and further ordered the deletion of all reference to the solicitor’s name.

Re AJG ( Academic Misconduct) While engaged in the Practical Legal Training Course at Griffith University, he copied the work of another student, M. The letter dated 2nd November 2003 from the Dean, Professor Hunter, shows that it was substantial copying and not just, as the applicant had asserted, of material available in the public forum. He was failed in the subject, resat and passed ‘The Solicitors Board has not opposed his admission because the incident appeared to be a one-off aberration and, significantly, because "the applicant was clearly experiencing significant external stressors of a financial and domestic nature at the time of the incident". It is inappropriate that we should, without pause, accept as fit to practise an applicant who responds to stress by acting dishonestly to ensure his personal advancement. Legal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional 3 commitments. Cheating in the academic course which leads to the qualification central to practice and at a time so close to the application for admission must preclude our presently being satisfied of this applicant's fitness. I would adjourn the application not to be relisted before the expiration of six months from today. I would dispense with the need for further advertisement. What was said in Re AJG [2004] QCA 88; SC No 2015 of 2004, 15 March 2004 – which concerned a one-off incident of plagiarism – bears repetition, especially the last paragraph of the following extract: Re Liveri [2006] QCA 152

1. “In December 2002 while a student at JCU studying my Undergraduate Degree in Law and Commerce, the JCU Law School found me guilty of three counts of academic misconduct in respect of essays I submitted in the following subjects: Law of Trusts, Administrative Law and Law of the Sea. I admit that I copied portions of the work and that I submitted those portions of the work as my own and I take full responsibility for those actions. While I was under external pressures at the time, I fully realise that these personal circumstances neither justify nor excuse this dishonest behaviour. 16. first application of 14 October 2005: “In December 2002 I was a student at JCU studying my Undergraduate Degree in Law and Commerce. At this time the JCU Law School leveled [sic] three instances of academic misconduct against me as a result of essays I submitted in the following subjects: Law of Trusts, Administrative Law and Law of the Sea.” Mr Daubney submitted the Court should conclude the applicant lacked insight into the unacceptability of her conduct and its serious consequences. He pointed among other things to the lack of explanation for her spare approach in the first application, in which her disclosure was completely inadequate. The findings against the respondent involve serious plagiarism, committed more than once. At relevant times, she was a person of mature years – 25 and 27 years old. Her unwillingness, subsequently, to acknowledge that misconduct, establishes a lack of genuine insight into its gravity and significance: for present purposes, where the Court is concerned with fitness to practise, that aspect is at least as significant as the academic dishonesty itself. It could not presently be concluded the applicant is fit for admission as a legal practitioner. She may be well advised to seek counselling from senior practitioners, who may eventually fin...