A Rockhampton principal is to be struck off after a finding that “nothing less than a recommendation that his name be removed from the roll will be sufficient to protect the community and the reputation of the profession”.
Douglas John Winning was found to be permanently unfit to practise by the Queensland Civil and Administrative Tribunal (QCAT) last week after it considered a disciplinary application made by the Legal Services Commission (LSC) in September 2023.
In his decision delivered on Friday, Justice Burns considered three charges laid by the LSC against Mr Winning, who had held an unrestricted principal practising certificate for almost 30 years until 2021, when it was cancelled by the Queensland Law Society.
Charge 1 related to the practitioner’s conviction in the District Court in 2020 of one count of official corruption contrary to Section 87(1)(b) of the Criminal Code Act 1899 (Qld).
In February 2019, Mr Winning offered $300 in cash to a police officer who had pulled him over and recorded a positive roadside breath test. He was found guilty of official corruption in October 2020, and an appeal was dismissed a year later.
Charge 2 related to conduct in December 2018, when Mr Winning appeared in the District Court at Rockhampton as solicitor advocate in defence of a client charged with rape. He advanced a case at trial which did not reflect, and was not based on, facts instructed by the client, who was eventually found guilty.
The client appealed to the Court of Appeal, which quashed his conviction and ordered he be retried upon indictment.
Charge 3 related to conduct in August 2020, when Mr Winning, representing a client in a criminal matter, sent an email to the associate of Justice Crow of the Supreme Court. The email which contained offensive and insulting language had been intended for the Office of the Director of Public Prosecution.
Mr Winning agreed with the LSC that his conduct which led to the three charges warranted his removal from the roll.
In assessing the charges, Justice Burns said it was necessary to outline Mr Winning’s disciplinary history.
The practitioner was found guilty of unsatisfactory professional conduct and professional misconduct in 2008 for using “language in written and verbal communications that was grossly offensive and insulting, displayed a lack of professional courtesy, and had the potential tendency to bring the legal profession into disrepute”.
In 2015, he was found to have committed professional misconduct for similar conduct.
In the current application, the LSC submitted the only appropriate order was a recommendation that Mr Winning’s name be removed from the local roll.
“In that regard, the tribunal requires little persuasion that the conduct underlying the respondent’s conviction for a criminal offence as serious as official corruption, without more, compels a finding of professional misconduct along with an order removing the respondent’s name from the local roll,” Justice Burns said.
“It is conduct which bespeaks not only a lack of trustworthiness and integrity but a preparedness to flout the law.
“The character of the respondent is so ‘indelibly marked’ by this conduct that he cannot be regarded as a fit and proper person to be on the roll.”
He said the conduct constituting Charge 2 also amounted to professional misconduct.
“Such a serious, and consequential, departure from the standards of competence and diligence required of a legal practitioner can never be tolerated,” he said.
“The respondent ignored his instructions and, instead, developed a case before the jury which actively misrepresented his client’s position. It deprived his client of a trial according to law. It also undermined the administration of criminal justice.”
Justice Burns said Charge 3 was at “a lower level of gravity” and amounted to unsatisfactory professional conduct.
“However, there can be no doubt the email went well beyond a lack of courtesy; it was both threatening and offensive,” he said.
“There is simply no place for communications of that kind in the practise of the law.
“It almost goes without saying that composing and then sending this email fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.”
The tribunal also ordered that Mr Winning pay the LSC’s court costs.
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