Queensland Law Society

KMB v Legal Practitioners Admissions Board (Queensland) [2017] QCA 76

KMB v Legal Practitioners Admissions Board (Queensland) [2017] QCA 76

Catchwords

EARLY CONSIDERATION OF SUITABILITY FOR ADMISSION – FIT AND PROPER PERSONS – APPLICANT HAD PREVIOUS CRIMINAL CONVICTIONS – COURT WILL LOOK AT SURROUNDING CIRCUMSTANCES

Executive Summary

KMB (‘the Appellant’) appealed the decision of the Legal Practitioners Admissions Board (Queensland) (‘the Board’) to refuse the Appellant’s application for early consideration of suitability for admission to the legal profession.

The Supreme Court of Queensland (‘the Court’) allowed the appeal, and declared that the Appellant’s prior offences did not adversely affect an assessment as to whether the Appellant was a fit and proper person for admission to the legal profession.

The Court made the following orders:

  • appeal be allowed;
  • the Board’s decision be set aside; and
  • declaration be made that the matters contained in the Applicant’s application do not, without more, adversely affect an assessment as to whether the Appellant is a fit and proper person to be admitted to the legal profession.[1]

Background

In October 2016, the Appellant made an application under the Legal Profession Act 2007[2] for early assessment as to suitability for admission to the legal profession. The Board refused this application.[3]

The Appellant, now 34 years old,[4] had disclosed in this application his prior convictions. These convictions were comprised of two counts of unlawful sodomy and two counts of indecent treatment of a child under 16.[5]

At the time of the offences the Appellant was 24 years old and working as a male escort.[6] On two occasions the Appellant engaged in various sexual acts with a 15 year old boy who had contacted the Appellant.[7]

It was not challenged at trial that the Applicant believed the boy was 16 years of age, and that the Appellant had mistakenly believed this to be the legal age of consent in Queensland.[8]

After his arrest and conviction the Appellant never worked as a male escort again.[9]

Issue

An appeal against a decision of the Board is a rehearing where fresh evidence may be tendered.[10]

The Court thus had to decide if consideration of suitability matters could adversely affect an assessment of the Appellant’s suitability for admission to the legal profession, most relevantly:

  • whether the Appellant is currently of good fame and character; and
  • the Appellant’s prior convictions.[11]

Issue Discussed

The Court may consider a person to be a fit and proper person to be admitted to the legal profession under this Act despite a suitability matter because of the circumstances relating to the matter.[12]

Relevant to the Court’s consideration of these two suitability matters, the sentencing Magistrate had not recorded a conviction, having found the sentence for the Appellant to be mitigated by:

  • the Appellant saving the complainant the distress and pain of a trial by pleading guilty;
  • the Appellant’s lack of criminal history;
  • the Appellant’s high level of proficiency in tertiary studies of music;
  • the Appellant demonstrating genuine remorse;
  • the Appellant expressing concern for the complainant’s welfare; and
  • the Appellant undertaking ongoing psychological counselling.[13]

The Court also acknowledged that the Appellant had been “cooperative and candid” with authorities.[14]

The Appellant’s psychologist (‘Expert A’) attributed the Appellant’s “preparedness to engage in the occupation of male escort” to his “immaturity” at the time.[15]

Expert A opined that the Appellant is “highly unlikely to re-offend in the future”.[16]

The Appellant’s consultant forensic psychiatrist (‘Expert B’) stated that the Appellant was “very remorseful about his offending”, and has “learnt from [the] experience”.[17] This is demonstrated by the Appellant’s refraining from working as a male escort again, and by his “strong commitment to work, career and community activities, particularly over the last eight years”.[18]

The Court noted that:

  • it is 10 years since the offences were committed;
  • the Appellant did not engage in any further work as a male prostitute after he was charged;
  • he completed two degrees in music at Griffith University and a degree in law at Queensland University of Technology with first class honours;
  • he has worked extensively both on a paid and on a pro bono bases as a professional musician at a very high level; and
  • he has worked as a paralegal at a large Brisbane solicitors’ firm and as an assistant to a practising barrister.[19]

Expert B opined that the Appellant suffers no “major mental illness or psychological personality disorder” and “represents a negligible risk of any future sexual offending”.[20]

The Court found that these facts were not challenged during cross-examination of the Appellant.[21]

Thus, the Court found that the circumstances relating to the Appellant’s offences do not demonstrate such an “ongoing flaw in the Appellant’s character” that the Appellant could not be considered a fit and proper person to be admitted.[22]

 

Harry Lee

Ethics Clerk

As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics Centre



[1] KMB v Legal Practitioners Admissions Board (Queensland) [2017] QCA 76, [23].

[2] Legal Profession Act 2007 (Qld), s32(2).

[3] KMB v Legal Practitioners Admissions Board (Queensland) [2017] QCA 76, [1].

[4] Ibid [7].

[5] Ibid [5].

[6] Ibid [7].

[7] Ibid [8]-[9].

[8] Ibid [10].

[9] Ibid [14].

[10] Legal Profession Act 2007 (Qld), s33(2).

[11] Legal Profession Act 2007 (Qld), s9(1)(a), (c).

[12] Legal Profession Act 2007 (Qld), s31(3).

[13] KMB v Legal Practitioners Admissions Board (Queensland) [2017] QCA 76, [13].

[14] Ibid [12].

[15] Ibid [15].

[16] Ibid [15].

[17] Ibid [16].

[18] Ibid [17].

[19] Ibid [18]

[20] Ibid [16].

[21] Ibid [21].

[22] Ibid [22].