Disciplinary tribunal can’t find misconduct by commission of crime

Legal Practitioners Conduct Board v Ardalich [2005] SASC 278

A solicitor suffered from what used to be known as “manic depression“. He had been charged with criminal offences of forgery but not convicted on mental grounds. The South Australian Legal Practitioners Disciplinary Tribunal heard charges that the solicitor was guilty of misconduct in having committed different crimes which had never been prosected. The Full Court of the Supreme Court of South Australia held that the Tribunal had over-reached itself in purporting to make findings about the commissions of crimes by the solicitor, but said that acts (admitted by the solicitor) that would be criminal unless met by the defence of insanity were enough to warrant a finding of unprofessional conduct, the purpose of which was not the punishment of the solicitor but the protection of society. So the Full Court struck him off the roll of practitioners. (See also the previous post).

“Unprofessional conduct” was defined to include:

“(a) an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law”.

An example of the charges proffered was:

“13. On 23 January 1998 the practitioner misappropriated or failed to deal properly with trust monies, the property of Bakar (the first instance).
Particulars of misconduct

13.1 On 23 January 1998 the practitioner fraudulently converted to his own use and benefit, or the use or benefit of another, the sum of $1000.00 by transfer from the money standing to the credit of Bakar in his trust account at the Commonwealth Bank to Michael Evans by cheque number 7879 in breach of section 184 of the Criminal Law Consolidation Act 1935.

13.2 By the same conduct referred to in paragraph 13.1 above, the practitioner, in breach of section 31(1) of the Act, withdrew trust money without the authorisation of Bakar, being the person entitled to the money.”

The Tribunal had heard psychiatric evidence and purported to come to a view as to whether the solicitor’s mental illness meant he was guilty of the crimes the commission of which was said to amount to unprofessional conduct. They found on the balance of probabilities he was guilty of the crimes and therefore was guilty of unprofessional conduct.

This was not an appeal against that decision, but an application to strike the solicitor off the roll of practitioners which was justified on the basis of the findings of unprofessional conduct.

South Australia’s Acting Chief Justice, with whom the other judges agreed, said:

“32. As for [the definition of unprofessional conduct], the fact that it refers to a criminal offence, does not mean that it is appropriate for the Tribunal to embark upon an inquiry directed towards determination of the question whether a criminal offence has been committed.

37. In my view, it was not appropriate for the Tribunal to embark upon some sort of quasi criminal trial, but adopting a lower standard of proof, and then to express conclusions as to mental competence which would be appropriate when, in the course of a trial being dealt with in a criminal court, a question of mental impairment falls to be dealt with under Part 8A of the CLCA.

38 If the Board charges the practitioner with unprofessional conduct constituted by the commission of a criminal offence, short of an admission by the practitioner, it is incumbent upon the Board to produce evidence of the conviction of the practitioner of the offence recorded in a court exercising criminal jurisdiction. In this context, I note that the powers of the Tribunal under the Act include the following [at s. 84(7)(b):

“In the course of an inquiry, the Tribunal may adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court that may be relevant to the proceedings.”]

39 That section would, for example, have enabled the Board to have tendered before the Tribunal a record of the findings made in the District Court in the course of the criminal charges dealt with in that court, including the order for release on licence.”

See also:

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