1 On 12 March 2008 the Tribunal found that the respondent was guilty of professional misconduct (Council of the Bar Association of New South Wales v Punch [2008] NSWADT 78).

2 Two of the findings made by the Tribunal and published in its reasons for decision were:

58 The Tribunal is satisfied to the requisite standard that at the time of leading alibi evidence from Haddad and 4 supporting witnesses in June 1995, the respondent adduced evidence from each of those witnesses knowing that evidence to be untrue.

59 Misconduct of such gravity inevitably leads to a finding that the respondent is guilty of professional misconduct.

4 On 26 March 2008 the applicant filed written submissions and an affidavit sworn by Alan William Blanch dated 26 March 2008. The applicant submitted that the appropriate order was that the respondent’s name be removed from the roll of local lawyers.

5 On 11 April 2008 the respondent’s written submissions were received by the Registrar. Those submissions stated that the respondent did not wish to be further heard and did not seek to lead evidence on the question of what final orders should be made.

6 The affidavit of Mr Blanch discloses that:

(a) on 19 March 1997 the Legal Services Tribunal found that the respondent was guilty of unsatisfactory professional conduct in that he was briefed to appear in the Court of Criminal Appeal but did not do so when the appeal was called on for hearing on 2 February 1994. The Legal Services Tribunal made an order cancelling the respondent’s practising certificate for a period of 3 months; and

(b) on 23 October 2003 the Council of the New South Wales Bar Association reprimanded the respondent pursuant to section 155 (3)(a) of the Legal Profession Act 1987. That reprimand was made in respect of a complaint which alleged that the respondent was guilty of unsatisfactory professional conduct or professional misconduct in that he practised as a barrister in New South Wales in the period 1 – 4 July 2002, without being the holder of a current practising certificate as a barrister. The respondent consented to a reprimand in respect of that complaint.

(a) the respondent’s misconduct was such that no court could be confident that he would meet the basic standards that when appearing before it, he would not mislead it and that he would conduct himself in accordance with the law and discharge his duty even when not subject to scrutiny;

(b) notwithstanding the passage of time it was appropriate that the respondent’s name be removed from the local roll primarily because of the gravity of the professional misconduct;

(c) it was significant that the respondent had shown no contrition or recognition of wrongdoing. His consistent denial of wrongdoing, made through his counsel during the hearing, confirmed that he remained unfit to practice; and

(d) the two previous disciplinary sanctions imposed on the respondent (referred to above), are relevant.

(a) the events were now almost 13 years old. Since 1995 the respondent has been on the roll as a barrister and has practised virtually continuously. During that interval there has been no complaint or finding against the respondent of the kind the subject of the present proceedings;

(b) the two previous disciplinary sanctions should not have any bearing upon the orders to be made by the Tribunal. It was submitted that they do not go to the honesty and integrity of the respondent nor show an unfitness to practice;

(c) the respondent candidly admitted the 2002 complaint. The submissions made reference to the fact that the practising certificate could not be issued until the respondent’s insurance situation was rectified; and

(d) “It is noted from the Tribunal’s reasons for decision that the failure of the Respondent to give evidence in these proceedings led the Tribunal to take the view that he must have known that the evidence from Tony Haddad and his alibi witnesses (Christine Kondos, Ahmad Farhat, Nabil Haddad and Shouhra Haddad) was untrue. This basis of determining the matter should not be regarded as exacerbating the conduct.”

10 Because proceedings were instituted in the Tribunal prior to the coming into effect of the Legal Profession Act 2004, the power to make dispositive orders following a finding by the Tribunal, is contained in section 171C Legal Profession Act 1987, which relevantly provides:

(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following:
(a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct,

(b) order that the legal practitioner’s practising certificate be cancelled,

(c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order,

(d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct,

(e) make an order publicly reprimanding the legal practitioner or, if there are special circumstances, privately reprimanding the legal practitioner,

(f) order that the legal practitioner undertake and complete a course of further legal education specified in the order,

(i) make ancillary orders.

(a) the respondent’s name be removed from the roll of persons admitted as lawyers, which is maintained by the Supreme Court of New South Wales pursuant to section 32 of the Legal Profession Act 2004;

(b) the respondent’s practising certificate be cancelled;

(c) the respondent pay the applicant’s costs of the submissions on the dispositive orders as agreed or assessed; and

(d) the decision of the Tribunal be published.

12 By leading the alibi evidence the respondent misled the District Court. That evidence resulted in the acquittal of the respondent’s client on very serious charges of assault and armed robbery. Thus it can fairly be said that the respondent’s misconduct facilitated a grave miscarriage of justice.

The ultimate question

13 The ultimate question to be determined on the applicant’s submission that the respondent’s name be removed from the local roll, is the respondent’s fitness to remain a legal practitioner. That question is to be decided as at the present time – not as at 1995 when the respondent led the evidence (A Solicitor v Law Society of New South Wales (2003) 216 CLR 253 at [21] and [31]).

14 The onus lies upon the applicant to satisfy the Tribunal that the respondent is not fit at the present time.

15 The seriousness of the respondent’s misconduct in 1995 shows that he was not then fit to remain a legal practitioner. That misconduct showed, at the very least, that he could not be trusted by the courts or members of the legal profession to conduct himself as a barrister in accordance with his fundamental ethical obligations.

16 There is no evidence before the Tribunal that that situation has changed. The fact that since 1995 there has been no complaint or finding against the respondent of similar misconduct is not evidence that the respondent can now be trusted by the courts or members of the legal profession. Proof of misconduct of the type the subject of these proceedings, would only rarely be available.

17 The Tribunal doubts that the two disciplinary sanctions imposed on the respondent are relevant to the question whether he is fit to practice and it therefore does not take them into account.

18 The Tribunal has difficulty in understanding the submission set out in paragraph 8(d) above. Perhaps that submission is directed to the passage from the judgment of Tobias JA in New South Wales Bar Association v Meakes [2006] NSWCA 340, which the Tribunal quoted in paragraph 52 of its reasons for decision dated 12 March 2008. Or it might simply be a submission that the failure of the respondent to give evidence should not be regarded as exacerbating the misconduct. Whatever is intended, the Tribunal is not, in this decision, which it is making now, taking any matter into account as exacerbating the misconduct.

19 The respondent has not placed before the Tribunal any evidence as to the circumstances, which motivated him to lead the evidence in 1995. He has not acknowledged that he acted improperly. He has not shown any contrition. He has not led any evidence of rehabilitation. Evidence on each of these matters would to a greater or lesser extent, be relevant to the question of the respondent’s fitness to practice at the present time (cf A Solicitor v The Law Society of New South Wales (2003) 216 CLR 253 at [37]).

20 The respondent’s misconduct in 1995 shows that at that time he lacked the qualities of character and trustworthiness which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner (cf In re A Practitioner [1984] 36 SASR 590 at 593 per King CJ).

21 Reformations of character and behaviour do occur but one cannot assume that a reformation has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred (cf Ex parte Tziniolis; re the Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461 per Walsh JA).

22 There is no evidence before the Tribunal that there has been a change of character or trustworthiness. When the Tribunal has regard to that fact and the respondent’s failure to place before the Tribunal evidence on any of the four matters referred to in paragraph 18 above, it is of the view that, on the evidence available to the Tribunal, the applicant has discharged the onus to establish that the respondent is not fit to remain a legal practitioner.

Postponement or stay of the order

23 Disciplinary proceedings against a legal practitioner are primarily directed towards the protection of the public and not the punishment of the legal practitioner (Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270 per Deane J).

24 In New South Wales Bar Association v Stevens [2003] NSWCA 95 at [91] Spigelman CJ said in relation to cases involving professional persons that the relevant authorities indicated that the protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree. In Cahill v The Law Society of New South Wales (NSWCA 17 December 1987, BC8700825), Kirby P at page 5, said on an application for a stay of a striking off order that the Court’s duty was to ensure that a person is not held out to the public as a member of the legal profession whose conduct does not meet the very high standards required of legal practitioners. The primary question for the Court was whether if a stay were granted, the public would be adequately protected pending the disposal of the appeal.

25 In Stevens’ case Spigelman CJ said that the overriding principle to apply when determining an application for a stay was to ask what the interests of justice require [83] and that the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight [104].

26 True it is that the conduct the subject of those two cases occurred over a period of time. In Cahill’s case it was the falsification of mortgages over some years and in Stevens’ case it was the abrogation of income tax responsibilities for in excess of twenty years. Here the Tribunal is dealing with a single incident but having regard to the finding made by the Tribunal in paragraph 21 above, and the failure of the respondent to proffer any undertakings referred to in paragraph 27 below, the Tribunal is of the view that the public remains at risk if the respondent is permitted to continue to practice until the end of May 2008 (cf Nikolaidis v Legal Services Commissioner [2007] NSWSC 1491).

27 The Tribunal is of the view that the order of the Tribunal should take effect immediately. That may or may not result in some inconvenience to the respondent’s clients. Although the written submissions of counsel for the respondent stated that the respondent had commitments to a number of existing clients that extend through to the end of May, no details of those commitments were set out in the submissions nor was any evidence filed to prove what those commitments were.

28 No undertakings have been proffered by the respondent directed to ensuring that the courts before which the cases would be heard, the lawyers appearing in those cases and the respondent’s clients, would be informed of the details of the Tribunal’s reasons for decision dated 12 March 2008 and these reasons.

29 No information was placed before the Tribunal that the respondent’s clients would suffer inconvenience.

30 In acting as a barrister, the respondent has duties not only to his clients but also to the courts and other legal practitioners. The evidence shows that the respondent lacks the qualities to fulfil his obligations to the courts and other legal practitioners.

31 The Tribunal is of the view that having regard to: the above matters; the need for the protection of the public; the public confidence in the integrity of the disciplinary process itself; and the reputation of the profession (cf Robb and Rees v Law Society of the Australian Capital Territory (1996) 72 FCR 225 at [101]) it is appropriate that the order take effect immediately.

Costs

32 The respondent has not made a submission that an order should not be made that he pay the applicant’s costs associated with the submissions on the dispositive orders. The Tribunal is of the view that such an order should be made as the making of those submissions was part of the application brought by the applicant against the respondent.

Cancellation of the respondent’s practising certificate

33 Although the applicant’s written submissions did not include a submission that an order should be made that the respondent’s practising certificate should be cancelled, the information filed by the applicant did seek such further or other order as the Tribunal thought fit pursuant to section 171C (1) of the Legal Profession Act 1987. As the Tribunal is of the view that an order should be made that the respondent’s name be removed from the roll, it is also of the view that the respondent’s practising certificate should be cancelled.

Orders

The Tribunal makes the following orders:

1. The name of the respondent John Patrick Punch be removed from the roll of persons admitted as lawyers, which is maintained by the Supreme Court of New South Wales pursuant to section 32 of the Legal Profession Act 2004

2. The respondent’s practising certificate be cancelled

3. The respondent to pay the applicant’s costs of the submissions on the dispositive orders as agreed or assessed

4. The decision of this Tribunal to be published.