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High court case regarding admission of legal practitioners and the jurisdiction of courts over barristers

Samuel Wilton Davis was admitted to NSW Bar in 1946 following his completion of his legal studies

He was disbarred by Supreme Court of NSW in 1947 for a failure to disclose that in 1935 he had pled = guilty to B&E and stealing when 21

Gained two certificates from 2 separate solicitors to be admitted (didn't tell them of his history)

Struck off the roles due to failing to disclose

Attempted to be readmitted 4 times and was successful in 1978

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Wendy Bacon was a well-known political activist and journalist

Between 1970 and 1981, Bacon participated in a string of activist causes including:

1. Repeal of pornography laws;

2. Maintenance of the residential amenity in the Rocks area of Sydney

3. Whitlam’s dismissal;

4. The Export of uranium;

5. The treatment of prisoners (especially female prisoners in jail); -Police corruption; and

6. Fairly restrictive censorship laws

Bacon had ten convictions, but none related to dishonesty

The board was unsatisfied she was of “good fame and character” nor a “fit and proper” person.

Also, in relation to a bail bond paid by Bacon to bail SS, she claimed the money was lent to her by a friend, VA and she was unaware of its true origin. These were found to be untrue.

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Two students were found to have colluded on an assignment during university. OG (a lawyer) did not disclose the academic misconduct in his affidavit he admitted when he applied to the Board. The second student GL also applied to be admitted and did disclose the misconduct where OG was identified as being involved. The court found there was deliberate misrepresentation and he was later struck down form the Roll.

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What was the Court's decision in regard to admission?

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What was the Court's decision in regard to admission?

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Upheld decision of Supreme Court to disbar Davis

Latham CJ:"I am of opinion, for the reasons stated, that the Court was entitled, in exercising its jurisdiction with respect to removal, to consider the whole conduct and character of the appellant for the purpose of answering the question whether he was a fit and proper person to continue to be a barrister, and that the Court rightly held that he was not a fit and proper person to continue to be a barrister."

Starke J:"if the facts of the appellant's conviction had not been suppressed, have rejected his application for admission. Both the Board and the Court were misled and this in itself is a sufficient ground for disbarring the appellant and removing his name from the roll of barristers."

Owen J: "In those circumstances the conclusion that he is not a fit and proper person to be made a member of the Bar is confirmed.

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What was the Court's decision in regard to admission?

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What was the Court's decision in regard to admission?

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Revoke the order admitting OG to practice and striking his name off the court roll.

He was originally admitted as he said that his zero mark was due to his poor attendance. The Board later found out it was due to misconduct and the Supreme Court found he made a deliberate misrepresentation in his admission to the Board.

“It could not be doubted that the board of examiners would not have been granted OG a certificate if it had been aware of the misrepresentation. He should not be permitted to benefit from the fact that he managed to mislead them.”

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The deceased (Mr Del Castillo's friend who was engaged in an affair with Mr DC wife) had died as a result of a knife wound that occurred during an altercation between Mr Del Castillo and the deceased. The acquittal was explained by accident.

Mr Del Castillo was acquitted of the charge of murder in the Australian Capital Territory in 1992.

The applicant was admitted as a legal practitioner in New South Wales in July 1998 - failed to disclose in NSW application that he had been tried for murder and acquitted.

Upon seeking admission in the ACT the Legal Practitioners Admission Board of the Territory raised the issue of the applicant’s trial for murder

The Full Court refused his application for admission as a legal practitioner in the Territory and eventually the Prothonotary of the Supreme Court of New South Wales applied to have Mr Del Castillo’s name removed from the roll of New South Wales legal practitioners.

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Richardson, on advice from his lecturer and parents, who were both lawyers, did not disclose the finding of an academic misconduct. Crawford J did not find that this lack of disclosure made him unfit to practice and characterised it as an ‘error of judgment’.

Richardson's plagiarism was the sharing of a assignment with another student who then copied Richardson's work.

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What were the reasons for admission or refusal for admission

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What were the reasons for admission or refusal for admission

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The court emphasised that an applicant must disclose all instances of academic misconduct and deliberate failure to disclose instances of previous academic misconduct is fatal to admission.

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What were the reasons for admission or refusal for admission

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What were the reasons for admission or refusal for admission

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Failure to disclose criminal history of B&E and stealing

He was readmitted in 1979

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What was the Court's decision in regard to admission?

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What was the Court's decision in regard to admission?

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The court held that by attempting to deceive the court about the origin of the money, she cannot be

trusted. By creating false evidence to support her claims, she was deliberately misleading the court

and not of a fit and proper character. She was also once found to be in contempt of court.

Her actions shows that she would be willing to stretch the rules if they stand in the way of her cause.

Her past actions cast a shadow on her claims that her attitudes and intentions have changed

"the participation by the plaintiff in the bail matter and her untruthful evidence given in court in relation to it render her unfit to be a barrister."

"The plaintiff has not been shown to be and in fact is not a person fit and proper to be admitted to practise as a barrister."

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What were the reasons for admission or refusal for admission

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What were the reasons for admission or refusal for admission

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Evidence of past Convictions

1. exhibiting an obscene publication (committed on the basis or retribution) (1971 conviction)

2. 1 of the 3 editors, who wrote the university student publication

3. use of indecent language (1971 conviction)

4. 5 offences committed under the Summary Offences Act (1973, 1974, 1975, 1977, and 1978)

5. Wilfully marking building with paint with a political slogan (1975)

6. using unseemly words (1977)

7. disobeying a reasonable direction from a police officer (26/9/1980)

she lied about origin of bail money ($10,000)

"The findings in respect of the bail bond, of course, make it quite impossible to accept the plaintiff's claim in evidence that she has changed her past attitudes. This affair shows she has not. Further, her lack of credit deprives her claim of force."

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Do you agree with the decision of the Court?

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Do you agree with the decision of the Court?

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yes

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What was the Court's decision in regard to admission?

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What was the Court's decision in regard to admission?

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Richardson was granted admission and not barred from being admitted as a lawyer. This case contrasts the courts trend in relation to lack of honesty and admission.

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What were the reasons for admission or refusal for admission

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What were the reasons for admission or refusal for admission

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Court found that Scott Richard.son made an error of judgment, a mistake based largely on the advice of two experience practitioners who were also his parents – no justification for removing his name from the roll. His fitness to practice, his honesty, character and trustworthiness have not been adversely affected by his failure to make the relevant disclosure.

Mitigating factors: Scott did not believe he was doing anything wrong or committing academic misconduct when he gave his draft assignment and notes to the other student.

Scott had also lodged an appeal on the basis of a denial of natural justice by the Committee.

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Yes, the failure to disclose = lack of honesty

Why did he feel the need not to disclose?

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What were the reasons for admission or refusal for admission

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What were the reasons for admission or refusal for admission

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The applicant's file should have set out the circumstances giving rise to and surrounding the committal trial or provided a disclosure statement, and the evidence of character should have also reflected this

Each of the supporting deponents who wrote evidence of character swore that to the best of their knowledge, the applicant had never, in Australia or elsewhere, been prosecuted for and convicted of any offence or had an offence proven against him.

The applicant had told some untruths to police in the course of the investigation which led to his being charged with murder. Those untruths related to the knife which was the alleged murder weapon. Furthermore, the applicant had contemplated giving untrue instructions to his counsel in order to protect his wife from giving evidence at his trial. They are matters relevant to his application for admission to this Court

Experience shows that acquittal might be on non-meritorious grounds. [31] applicant has a duty of frankness.

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To some extent, Castillo should have received a punishment for being untruthful, and this was a very serious charge. But there was no conviction recorded so I believe that complete refusal of admission is possibly a bit extreme

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Do you agree with the decision of the Court?

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Do you agree with the decision of the Court?

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Do you agree with the decision of the Court?

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Do you agree with the decision of the Court?

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yes :)

The case sets a precedent for the implications of misconduct which I find very fair in the sense it highlights the serious nature of academic misconduct and the failure to disclose marks because it highlights values of dishonesty and poor academic practice.

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What was the Court's decision in regard to admission?

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What was the Court's decision in regard to admission?

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The application for admission as a legal practitioner to the Northern Territory was dismissed and he was removed as a legal practitioner from NSW

"Unless and until the applicant has made full disclosure in New South Wales and the outcome of that disclosure is made known, we are not prepared to make the positive finding that the applicant has shown that he is a person of good character."