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Notification of serious offences and the presumption of innocence

It is a statutory condition of every solicitor’s practising certificate that the holder is required to notify Queensland Law Society if they are charged with a ‘serious offence’.1

A ‘serious offence’ is defined in Schedule 2 to the Legal Profession Act 2007 (Qld) (the Act) to include an indictable offence, whether or not the offence is dealt with summarily.

After receiving a notification, the action the Society takes next will depend on facts and circumstances of the matter. If the Society believes, on grounds that are reasonable in the circumstances, that the practitioner is no longer a fit and proper person to hold the practising certificate,2 then it must invoke the show cause procedure set out in the Act.3

That belief may be reached after taking account of whether the practitioner is currently of good fame and character,4 which requires consideration of not only the fact that the practitioner has been charged with a serious offence, but the facts and circumstances underlying the charge.

The Act, in the context of show cause notices, does not require ‘facts’ or ‘proof’ or ‘findings’. The only requirement is for a belief on grounds that are reasonable in the circumstances.5

In George v Rockett,6 the High Court reasoned as follows:

“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or existed: the assent of the belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of mind may, depending on the circumstances, leave something to surmise or conjecture.”7

That passage was quoted by Rares J in Tran v the Commonwealth8 as authority for the proposition that:

“When a statute prescribes that there must be reasonable grounds for a state of mind, including belief, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.”

The show cause process does not require QLS to determine whether or not the practitioner is guilty of the serious offence. That is the province of the criminal prosecution, where the Crown bears the onus and the accused may invoke their right to remain silent and put the prosecution to proof. The presumption of innocence operates until there is a verdict of guilty.

The Act, in the context of the show cause process, does not require the Society to presume that the practitioner is innocent of the serious offence which is the subject of the s57 notice. Instead, QLS must consider whether the facts and circumstances permit the formation of a belief, on grounds that are reasonable in the circumstances, that the practitioner is no longer a fit and proper person to hold a practising certificate. This is a value judgement about which reasonable minds may differ.9

If QLS forms the requisite belief and invokes the show cause process, the outcome may be that the practitioner’s certificate is amended, suspended or cancelled. However, none of those three outcomes is certain as QLS may consider the circumstances warrant a decision that the person is fit and proper to continue to hold a practising certificate.10

Although based on a different legislative framework,11 the question of whether a presumption of innocence exists in show cause proceedings was recently considered in XY v the Council of the Law Society of New South Wales.12

XY was charged with a serious offence against the Crimes Act 1900 (NSW). It was alleged that she made and used false claims assessment certificates (in personal injuries actions) to obtain advantage or cause disadvantage.13

When the Law Society of New South Wales (Law Society) became aware of the charges (from a source other than the practitioner), it asked her to provide further information about the charges and provide a submission (and supporting documents) as to why it should not take further action to amend, suspend or vary her practising certificate.14 The practitioner’s solicitor submitted that she ought to be permitted to practise until the charges were determined due to the presumption of innocence and her intention to plead not guilty to the charges.

The Law Society served a show cause notice on the practitioner proposing to suspend her certificate and requesting submissions as to why the proposed action should not be taken. The facts relating to the charges were derived from the Statement of Police Facts. The brief of evidence had not been served.

The practitioner’s solicitor responded to the show cause notice relying, inter alia, on the lack of evidence of guilt and entitlement to the presumption of innocence. She also submitted that, although the charges were serious, there was no evidence to support them and it was not in the public interest to suspend her certificate because there were no similar complaints and the reputation of the profession would not be adversely affected as there was a non-publication order in place.

The Law Society served a second show cause notice in relation to further conduct involving invoices. The practitioner’s solicitor responded that in the circumstances where criminal charges were anticipated the practitioner was not required to disclose the detail of her defence to the alleged conduct so as not to prejudice her position in any criminal proceedings.

The Law Society decided to suspend her practising certificate and appoint a manager to her law practice. The practitioner made an application to the Supreme Court of New South Wales to stay that decision.

At the hearing, the Law Society accepted that the court could not, at that stage, make findings on the basis of the material before it as to the practitioner’s conduct. However, it submitted that the evidence was sufficient to show that she posed a risk to the public and that the imposition of conditions on her certificate would not be sufficient to protect the public or the reputation of the profession.

The court considered the four interrelated interests which fall within the public interest: “[T]he need for clients to be able to trust their lawyers; the need for fellow practitioners to be able to accept a practitioner’s words; the need for the judiciary to have confidence in practitioners who appear before them; and the overall need for the public to have confidence in the legal profession because of the central role it plays in the administration of justice.”15

With the public interest in mind, the court identified the limited role which the presumption of innocence played in the matter before it, explaining, that the “presumption applies only in criminal proceedings, where the accused person is presumed to be innocent of the charge unless and until the prosecution has proved the accused’s guilt of the charge beyond reasonable doubt.”16

“[T]here is no principle of general application that a person who has not been convicted of an offence has a right, for all purposes and in all circumstances, to be treated by everybody as innocent.”17

Adamson J said “although the plaintiff is presumed to be innocent in the criminal proceedings, she is not entitled to any similar presumption in disciplinary proceedings, or indeed in her every-day practice. Inferences can more comfortably be drawn from her failure to explain matters which could be expected to be within her own knowledge.”18

Her Honour noted that disciplinary proceedings have a different purpose from criminal proceedings, although the protection of the public is common to both.19 In disciplinary proceedings it is the underlying conduct, not the fact of a conviction, that is relevant.

Her Honour also commented:

“Further, a practitioner who admits guilt of criminal or unprofessional conduct does not necessarily pose a higher risk in a disciplinary context than a practitioner who proposes to defend pending charges.

“Admission of guilt can lead to an inference that the practitioner accepts that the conduct was wrong, is remorseful and will not repeat it. By contrast, a practitioner who denies wrongdoing might pose a continuing risk to the public by reason of lack of insight, remorse or contrition.

“Thus, in Clifton v The Council of the Law Society of New South Wales [2021] NSWSC 1048, Cavanagh J granted a stay of the defendant’s decision not to renew the plaintiff’s practising certificate in circumstances where NCAT had found him guilty of dishonest conduct (a finding which he accepted) and the time between the stay application and the final hearing of the summons was less than three weeks.”20

Ultimately, the court was not persuaded that the public could be protected by allowing the practitioner to continue to practise (with or without conditions), so dismissed the practitioner’s application to stay the Law Society’s decision to suspend her certificate and appoint a manager to her law practice.

Lauren FitzGerald is Queensland Law Society Regulation Manager and Principal Regulation Solicitor.

Footnotes
1 Legal Profession Act 2007 (Qld) (Act), s57.
2 Ibid ss9, 46(2).
3 Ibid s61.
4 Ibid s9(1)(a).
5 Ibid ss19(1), (2).
6 George v Rockett (1990) 170 CLR 104.
7 Ibid 116.
8 Tran v The Commonwealth [2010] FCAFC 80, 119.
9 Dixon v Legal Practice Board of Western Australia [2012] WASC 79, [20], citing Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 279-298 (Kitto J) and Clyne v New South Wales Bar Association (1960) 104 CLR 186, 189.
10 Act (n1) ss62(2), 46(3).
11 Legal Profession Uniform Law (NSW) (Uniform Law).
12 XY v the Council of the Law Society of New South Wales [2021] NSWSC 1263 (XY).
13 Contrary to Crimes Act 1900 (NSW) ss253(b)(ii), 254(b)(ii).
14 By invoking the show cause process, which is similar to the process in Queensland.
15 XY (n12) [89], citing New South Wales Bar Association v Cummins (2001) 52 NSWLR 179 (Spigelman CJ).
16 Ibid [90] citing Momcilovic v The Queen [2011] HCA 34, [53]-[54] (French CJ).
17 Ibid [90] citing ‘Presuming Innocence’, Chapter 26 of Advocacy and Judging: Selected Papers of Murray Gleeson.
18 Ibid [91].
19 Ibid [91] citing Weaver v Law Society (1979) 142 CLR 201, 207 (Mason J), McCarthy v Law Society of New South
Wales (1997) 43 NSWLR 42.
20 Ibid [92].

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