Waiting For The Train
The Civil and Administrative Tribunal of New South Wales found that a Solicitor had engaged in professional misconduct.
The Solicitor was holding an open can of beer at the Strathfield railway station when approached by a Senior Constable and another police officer.
According to the charges he gave a false name and was arrested.
The Solicitor was asked his name. He gave the name “Matthew Fleming” and a middle name “Damien”;
When asked whether he had any identifying documents relating to his name, address and date of birth, he said he did not. In truth, he had a bank card, cab charge card, a Law Society solicitor member card and a Medicare card which each displayed his actual name;
When asked his address and date of birth, he gave the wrong birth year;
When it was ascertained that he had an Opal card, he was asked whether he had “tapped on” and the Solicitor replied that he had. Senior Constable Arapa checked that fact on a scanning machine and ascertained that he had not done so;
The Solicitor then pulled out a Law Society member identity card bearing his name and swore at the Senior Constable;
When informed that he would be having action taken against him for offensive language, the Solicitor responded threatening the Senior Constable with litigation. He continued to swear at the Senior Constable. In addition, the Solicitor threatened to ‘destroy’ him;The Solicitor was then arrested.
Then
As Ground 2 is concerned, the LSC submitted that the evidence in respect of this ground includes the particulars the subject of Ground 1. In addition, the particulars in this ground alleges that the Solicitor:
Knew or ought to have known that he did not have a lawful or a reasonable basis to leave police custody;
Knew or ought to have known that he did not have a lawful or a reasonable basis to resist arrest;
Knew or ought to have known that he did not have a reasonable basis to make certain statements and that the statements would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency, those statements to Senior Constable Arapa being as follows:
“You’re fucked you fat cunt, I’m a solicitor”;
“Go and get fucked you fat cunt”;
“I don’t give a fuck you cunt, you’re fucked you fat cunt, this worth $50,000 to me. I’ll have you sacked for this”;
“You are really fucked now. I’ll get $50,00 for this you cunt”; and
“You fat cunt, you are fucked for this, you will be sacked for this, say goodbye to your job, I will get $50,000 for this you cunt, I’m a solicitor, you are fucked you cunt”.
The Solicitor submitted a written statement claiming an alcoholic blackout and no memory of the encounter.
As to the proofs
We have considered whether the evidence of Senior Constable Arapa is mistaken in that what he thought he heard the Solicitor say was in fact not what the Solicitor said. The evidence relied upon by the LSC includes a statement dated by Senior Constable Arapa on 8 October 2014. There is no evidence that the words or conduct attributed to the Solicitor were inaccurately heard and recorded by Senior Constable Arapa. Indeed when challenged by Senior Constable Arapa that he had given a false name, the Solicitor did not deny it and instead said in effect “prove it”.
Sanction
we think it appropriate that these reasons be sent to the Solicitor and that he be given an opportunity to provide submissions and evidence relevant to “penalty” (i.e. what orders the Tribunal should make consequential upon our finding that the Solicitor has been guilty of professional misconduct). Should submissions and/or evidence be provided by the Solicitor, the LSC should have an opportunity to provide its submissions and evidence and if requested, an opportunity to cross-examine the Solicitor. If no response is received from the Solicitor, it is open to the Tribunal, based on the material currently before it, to draw adverse inferences against the Solicitor as to whether he is a fit and proper person to hold a practising certificate.
(Mike Frisch)