Deposing a False Affidavit or Giving False Evidence Mandates Barrister being Struck Off

In Legal Profession Conduct Commissioner v Freer [2024] SASCFC 5 (17 December 2024), the Court of Appeal of South Australia usefully addressed the law for a barrister or solicitor as a result of swearing of swearing a false affidavit. In addition to being found guilty of such falsehood, the practitioner in question was found guilty of dishonesty and misappropriation of trust moneys, but this note is directed to the former.

The court (President Livesey and Justices Bleby and Doyle) wrote:

[15] In addition, on 20 July 2017, the practitioner made a statutory declaration in which he admitted witnessing signatures on a loan agreement and associated documents without ever meeting with or speaking to the declarant. That conduct enabled a fraudulent loan transaction to be completed and a mortgage to be registered on the title of an innocent party. As a consequence of proceedings in the Supreme Court of Queensland, the mortgage and all associated loan and security documents witnessed by the practitioner were declared void and of no effect.2

…

[20] The ultimate question for this Court is whether at the time of this application the practitioner is fit to remain a member of the legal profession.3

[21] The law and the community require that legal practitioners exhibit honesty and integrity in connection with their dealings concerning trust accounts, trust monies and the affidavits or declarations which they are empowered to take. It is essential that the community be able to rely upon the honesty and trustworthiness of legal practitioners. That is essential to the professional practice of the law.

[22] A legal practitioner’s trust account has always been regarded as sacred. Where a client’s trust money is deliberately used by a legal practitioner for a purpose other than the purpose for which the client entrusted it to the legal practitioner, the legal practitioner is regarded as having acted dishonestly.4 Where a legal practitioner has been found guilty of serious offending involving dishonesty and the misappropriation of trust monies, that will usually demonstrate a fundamental defect in the practitioner’s character, rendering the practitioner unfit to practise.

[23] Where a legal practitioner is proved to have dishonestly misused trust monies for the practitioner’s own benefit, this Court will usually regard the breach of trust involved as especially serious, entailing a failure to adhere to the high standards expected of legal practitioners.5 Similarly, convictions for aggravated theft and perjury associated with the fraudulent misappropriation of trust monies have been regarded as demonstrating a gross breach of trust, requiring an order striking the practitioner’s name from the roll.6

[24] Where a legal practitioner has knowingly sworn a false affidavit, that will usually call into question the practitioner’s fitness to practise the profession of the law.7 Proof that a practitioner swore a false affidavit and took a false statutory declaration and, in addition, dishonestly misappropriated trust monies, will usually require striking-off.8

(emphasis added)

2 Tycho Pty Ltd v Trustworthy Nominees Pty Ltd [2021] QSC 95 .

3 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 , 297–298 (Kitto J).

4 In re A Practitioner [1941] SASR 48, 51 ; In re A Practitioner (1982) 30 SASR 27, 31(King CJ).

5 Legal Profession Conduct Cmr v Moore [2022] SASCFC 2 [44] (Livesey P, Doyle and David JJ); Legal Profession Conduct Cmr v Radin [2024] SASCFC 1 [50] –[51] (Livesey P, Bleby and David JJ).

6 Legal Profession Conduct Cmr v Thomas [2017] SASCFC 159 [35] –[37] (Kourakis CJ, Blue and Stanley JJ).

7 Coe v New South Wales Bar Association [2000] NSWCA 13 [10] (Mason P).

8 Barristers Board v Young [2001] QCA 556 [15] –[18] (de Jersey CJ with whom Davies JA agreed).

As appears above the court applied the decision of the Queensland Court of Appeal in Barristers’ Board v Young [2001] QCA 556. There de Jersey CJ, with whom Davies JA agreed, wrote:

[15] The notion of a barrister’s deliberately giving false evidence on oath is utterly repugnant to the essence of what goes to make up a barrister’s fitness to practise: such as to erode, if not destroy, the complete confidence which a client, a fellow practitioner, the courts and the public should be able, without hesitation, to assume. It is fanciful to think those persons would not be at least sceptical about the honesty, thence fitness and propriety, of a barrister who had so recently lied on oath on important matters before a significant Commission of Inquiry.

[16] Dixon J, as he then was, said in re Davis (1947) 75 CLR 409, 420:

“The Bar is no ordinary profession or occupation. The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of Judges.”

Kitto J put the matter in these terms in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR, 279,298:

“The Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.”

All of those views are as apposite today as when they were expressed.

[17] One would ordinarily expect a barrister who departed so markedly from an essential obligation to be regarded as lacking “the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibility of a legal practitioner” (Barristers’ Board v Darveniza [2000] QCA 253 para 37), such as to warrant nothing less than striking off. In such a case, if struck off, the former practitioner may subsequently apply for re-admission, and then seek to discharge the burden of establishing that over the intervening period, he or she has re-established fitness to be held out by the court as a proper person to practise (cf Ziems, supra, p286; re Morrison [1961] Qd R 343,348-9; re Thomas [1984] 2 Qd R 460, 466).

[18] The respondent’s default in giving false evidence is in this case to be seen in conjunction with her failure to acknowledge the significance of that default. That is to be drawn from her assertion to the Barristers’ Board that she had not “committed any wrongdoing”. It is extraordinary to contemplate that a barrister imbued with the requisite integrity would not immediately condemn any “tailoring” of evidence, or knowingly giving false evidence, as being entirely unacceptable. In what the respondent said to the Barristers’ Board, she displayed a lack of insight into the repugnancy of her conduct. As I have said, she has not, surprisingly, given this court the benefit of any evidence sworn by her for the purposes of this proceeding. There has accordingly been no ground for considering excusing the manner in which she approached the Barristers’ Board. The report of Dr Reddan, to which I will come, does not contain material which would warrant our doing so.

(emphasis added)

The link to the decision in Freer may be found here.

The link to the decision in Young may be found here.