In Prothonotary of Supreme Court of New South Wales v Yousif [2025] NSWCA 77 (23 April 2025), the NSW Court of Appeal addressed, and applied, the principles in relation to the discharge of onus pertaining to a lawyer – in this instance a solicitor – being a fit and proper person to remain on the Roll of Australian Lawyers. In exercising jurisdiction, the court found such jurisdiction existed in ss 23 and 264 of the Legal Profession Uniform Law (NSW). The analogue of s 264 is to be found in s 13 of the Legal Profession Act 2007 (Qld) which provides:
13 Inherent jurisdiction of Supreme Court
(1) The inherent jurisdiction and power of the Supreme Court in relation to the control and discipline of local lawyers and local legal practitioners is not affected by anything in this Act.
(2) The inherent jurisdiction and power—
(a) extends to an interstate legal practitioner as mentioned in section 78; and
(b) may be exercised by making—
- any order the committee may make under this Act; or
- any order or direction the tribunal may make under this Act or the QCAT Act.
The court acceded to the application by the applicant to remove the respondent’s name from the Roll of Australian Lawyers:
[1] This is an application by the Prothonotary for a declaration that Ms Alina Yousif is not a fit and proper person to remain on the Roll of Australian Lawyers and an order that her name be removed from that roll. The application follows Ms Yousif’s conviction on 2 March 2020 of the following offences:
(1) One charge of participating in a criminal group in contravention of s 93T(1) of the Crimes Act 1900 (NSW) [Count 1];
(2) One charge of using a false document with the intention of inducing a person to accept it as genuine and then to influence that person to exercise a public duty in contravention of s 254(b)(iii) of the Crimes Act 1900 (NSW) [Count 2];
(3) One charge of knowingly taking part in the supply of a prohibited drug, namely 55.5 grams of methylamphetamine in contravention of s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) [Count 3].
Background
[2] Ms Yousif was born in Iraq in 1991. She came to Australia with her family in 1995 as a refugee. Growing up, she had a difficult family life with an alcoholic father. After completing Year 12, she studied law and economics at the University of New South Wales. She graduated in 2015 and was admitted as a solicitor in February 2016. She then worked for approximately eight months with Galloways Solicitors, a firm in Potts Point, Sydney, that specialised in criminal law. Prior to her admission, she had worked there as a law clerk.
[3] While working for Galloways, Ms Yousif came into contact with Mr Clinton Parkinson, to whom she was introduced some time between February and October 2016, while she was a still a law clerk. Mr Parkinson, who had connections with the Bandidos Motorcycle Club, had been in custody for several years after being convicted of supplying the prohibited drug methylamphetamine in a commercial quantity and of two firearm related offences: see R v Parkinson [2010] NSWCCA 89. He had approached the firm to represent him on his application for parole, for which he became eligible on 8 June 2015. He was released on parole on 12 July 2016.
[4] After leaving Galloways, Ms Yousif moved to Griffith to work for the Aboriginal Legal Service (ALS) as a junior solicitor. She worked there for approximately one year until November 2017. Initially, she worked with a more senior ALS solicitor, but in her affidavit evidence she says that from early 2017 she was the only solicitor in the Griffith office. During that time, Ms Yousif says that she worked “very long and hard” hours, getting up at 5.00am on most days and not leaving the office until 11.00pm. She says that “[o]n mention days, it was common for me to mention up to 40 matters a day” and that on hearing days it was common for her to have four or five hearings scheduled for which she would have to prepare, even if they were adjourned. She said that she had no family, friends or support in Griffith.
[5] Before this Court Ms Yousif gave somewhat different evidence concerning her workload at ALS. She said this:
I was the only solicitor there. I was dealing with the only Griffith matters. I was juggling the whole mention list. I was dealing with 160 mentions a day, about five hearings on hearing days. In terms of Jonathan, he was in Griffith, but he was still travelling to Wagga. And the Griffith ALS solicitors don’t deal with Wagga matters. He was still finishing off with his Wagga matters. So to me, yes, I, I felt like I was the only solicitor there and I voiced that concern with Chris Day several — on several occasions because it was, was too much work.
[6] The evidence given by Ms Yousif concerning her time at ALS appears to be exaggerated. According to a letter dated 18 September 2024 from Ms Nadine Miles, Principal Legal Officer of the ALS, that was admitted into evidence without objection, the practice leader in the Griffith office when Ms Yousif took up her position was Ms Zoe Alderton, who left in late April 2017 (Ms Yousif says that Ms Alderton left before then on leave). Ms Alderton was replaced by Mr Jonathan Wilcox who commenced on 5 June 2017 after transferring from the Wagga Wagga office. At about the same time, another solicitor joined the office in Griffith. Ms Yousif said in cross-examination in relation to this evidence that Mr Wilcox continued to work on files in the Wagga Wagga office and consequently was not able to assist her when he arrived and that she has no recollection of another solicitor working in the Griffith office, although she does not deny the information contained in Ms Miles’ letter. It is not plausible that Ms Yousif has no recollection of another solicitor working in the Griffith office for a period of approximately six months while she was there. As will become apparent, this is one of several instances where Ms Yousif gave evidence before this Court which cannot be accepted.
[7] Shortly after moving to Griffith, Ms Yousif started a relationship with Mr Parkinson, who had recently been released on parole and had moved to a place in Kooba Street in North Albury (the Kooba Street Property), which is approximately a three hour drive from Griffith. How that came about is not apparent from the evidence, although it is reasonable to infer that Mr Parkinson and Ms Yousif remained in contact after they were first introduced in connection with Mr Parkinson’s application to be released on parole. The relationship continued until 6 December 2017, when both were arrested in circumstances described below. Shortly before her arrest, Ms Yousif had left the ALS and started working for Legal Aid in Wagga Wagga.
[8] At first, Ms Yousif’s relationship with Mr Parkinson was harmonious. He came to stay with her in Griffith some days during the week and she would visit him in Albury over the weekend. For the majority of the time they were together, Ms Yousif paid the rent and bills for the Kooba Street Property. However, Ms Yousif says that after the first couple of months “[Mr Parkinson’s] true character started to appear” and that he became “mentally and physically abusive, controlling and manipulating”. She gives evidence of one occasion when he punched her repeatedly in the car while driving back to Albury from Victoria, with the result that it was necessary for her to go to Albury Hospital to have her injuries (two black eyes and a serious facial cut) attended to and subsequently to take a week off work. She gives inconsistent evidence about whether she drove herself to the hospital or whether Mr Parkinson took her. The inconsistency took on some significance because Ms Yousif explained that she did not tell the doctor she saw that she had been a victim of domestic violence because Mr Parkinson was present in the hospital room when the doctor asked her how she had sustained her injuries.
[9] On another occasion in late 2017, Ms Yousif says that Mr Parkinson withdrew most of Ms Yousif’s salary from her bank account. When she questioned him, he pushed her causing her to fall and hit the side of a bedside table leaving a cut to the back of her head.
[10] Several months after the relationship commenced, Mr Parkinson decided to join the Bandidos Motorcycle Club. Subsequently, Ms Yousif started receiving periodic visits from Bandidos members checking up on her. Ms Yousif says that from that time she was “constantly being followed and watched in Griffith during the week and on weekends in Albury”, that she was “under Clint’s control” and that he was “a very overpowering and controlling person”. Ms Yousif says that she was too afraid to leave Mr Parkinson and that “[t]he reasons why the offences were committed was because of Clint’s control over me at the time and my fear and intimidation of him”.
[11] By August 2017, NSW Police had commenced an investigation into Mr Parkinson and for the purposes of that investigation lawfully intercepted telephone calls and text messages for his mobile telephone services and installed surveillance devices in the Kooba Street Property. Much of the evidence against Ms Yousif at trial was obtained from those sources.
…
Verdict and subsequent events
[36] Ms Yousif was found guilty on 2 March 2020. At her sentencing hearing, she tendered a report dated 10 June 2020 from Mr Sam Borenstein, a clinical psychologist. Ms Yousif had been referred to Mr Borenstein on 30 January 2018 by her general practitioner under a Mental Health Care Plan for symptoms of depression. Mr Borenstein said that, at that time, she presented “with severe symptoms of depressed mood and uncertainties with regards to her future”. She returned for treatment on 21 occasions between 6 February 2018 and 5 June 2020 (Mr Borenstein records that she had a further appointment scheduled for 12 June 2020). Mr Borenstein expressed the opinion that Ms Yousif had severe symptoms of depressed mood, extremely severe symptoms of anxiety and severe symptoms of stress as well as severe symptoms of post-traumatic stress disorder (PTSD) which became “severe and chronic [as a result] of her being regularly abused, physically, psychologically and emotionally in the relationship with Clinton Parkinson”. According to Mr Borenstein, Ms Yousif’s judgment and ability to make sound decisions was “severely compromised” because of her PTSD, her offending behaviour was “completely uncharacteristic” and was the result of her suffering from chronic and severe PTSD.
[37] The sentencing judge imposed an aggregate term of three years imprisonment commencing on 25 June 2020, to be served by way of an intensive correction order with the following conditions:
(1) Not to commit any offence.
(2) To be supervised by Community Corrections.
(3) To undergo programs and/or treatment.
(4) Not to consume illicit drugs.
(5) To perform 400 hours of community service work.
(6) To telephone the Fairfield Community Corrections Office within seven days.
[38] More than a year later, on 30 July 2021, Ms Yousif sought leave to appeal her conviction to the Court of Criminal Appeal identifying nine grounds of appeal. She subsequently discontinued the appeal on 1 September 2022, following receipt of the Crown’s submissions. She said in evidence before this Court that she did so against the advice “from senior counsel, junior counsel and my solicitor”, and that that was “the first time since being charged that I decided to finally accept full responsibility”.
[39] Ms Yousif stopped seeing Mr Borenstein in May 2021. However, she saw him again on 11 June 2024 for the purpose of obtaining a report from him to be used in these proceedings. Ms Yousif said when giving oral evidence in chief that she intended to resume her therapy with him. She had resisted doing so until recently because she thought that it might affect the Court’s attitude to the current application. However, she said that she accepted that she still needed help, and had come to learn recently that far from damaging her prospects on the current application, her willingness to continue her therapy with him was likely to assist them. In relation to the need for further treatment, she gave this evidence:
Q. Do you agree that you have regularly failed to meet the timetable set by this Court in relation to these proceedings?
A. Yes.
Q. Why?
A. I, I believe these are one of the things I need to discuss with Sam. When I’m under stress or under a lot of pressure, I, I sort of just walk away from it. Just put it to the back of my head. I don’t intentionally mean to do that, it’s not my intention to do that, it’s just something that’s just my coping mechanism at the present state.
Q. Is it fair to say that you go into a state of denial about what you have to do?
A. Yes.
Q. Is it fair to say that you, to use a colloquial expression, put your head in the sand?
A. Yes.
[40] Mr Borenstein expressed this opinion in his most recent report (dated 12 June 2024):
I have treated Ms Yousif over the years, and when assessed on 11 June 2024, I state with confidence she has developed significant insight into her past behaviour, and her struggles with symptoms of PTSD, anxiety, depression and panic.
Ms Yousif has greater awareness of the nature and cause of those symptoms, and is well placed and able to manage same, and importantly, she has heightened awareness when she might be placed in situations where her personal and psychological integrity could be threatened.
[41] On 11 February 2023, Ms Yousif completed her 400 hours of community service work. On 24 June 2023, her sentence expired.
Relevant legal principles
[42] The inherent power of this Court to order the removal of the name of a person from the Supreme Court roll is preserved by the Legal Profession Uniform Law (NSW) (the Uniform Law): ss 23(1), 264.
[43] The question to be determined in an application for removal from the roll is whether the practitioner is a fit and proper person to remain as a member of the profession: Re Davis (1947) 75 CLR 409 at 416; [1947] HCA 53 (Re Davis); Council of the Law Society of New South Wales v Green [2022] NSWCA 257 (Green) at [58]. The question must be determined at the time of the hearing: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [21]; Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [24]. It requires the Court to consider whether the practitioner is likely to be unfit for the indefinite future: Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 at [99]. “Indefinite” in this context is not the same as “permanent”. Rather, the requirement is that it not be apparent whether, and if so when, the practitioner might be suitable for reinstatement to the roll: Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [52] –[53]; Prothonotary of the Supreme Court of New South Wales v Hansen [2023] NSWCA 189 at [17] –[18]; Prothonotary of the Supreme Court of NSW v ‘A’ (a pseudonym) [2023] NSWCA 258 at [35] (where the requirement was expressed in terms of whether the unfitness was likely to continue for the “foreseeable future”). The jurisdiction is protective, not punitive. Its purpose is protection of the public and its confidence in the legal profession: Green at [58].
[44] Consistently with that purpose, where the relevant conduct involves serious dishonesty, it will normally be appropriate to order the legal practitioner’s name to be removed from the roll, since honesty goes to the heart of the professional responsibilities of a legal practitioner. As Spigelman CJ explained in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 (Mason P and Handley JA agreeing), a case involving a barrister who failed to lodge tax returns over many years:
[19] Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.
[20] There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
See also Prothonotary of the Supreme Court of New South Wales v Gregory [2017] NSWCA 101 at [27] –[28]; Council of the Law Society of New South Wales v Croke [2024] NSWCA 195 at [12].
[45] The applicant must prove in accordance with the civil standard that the practitioner is likely to be unfit to practise for the indefinite future: de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299 at [283] (Leeming JA dissenting in the result but not on the statement of law). However, where there is demonstrated misconduct and a claim of rehabilitation, the evidentiary onus shifts to the practitioner: Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [60].
Ms Yousif’s submissions
[46] Ms Yousif accepts that her criminal conduct in November 2017 meant that she was not a fit and proper person to remain on the roll at that time. However, she advanced three broad reasons for why her name should not be removed from the roll now. First, although she accepted the seriousness of the offences, she pointed to a number of matters that reduced their gravity. They occurred over a short period at a time when she was a young and relatively inexperienced solicitor practising in difficult circumstances. The offences did not occur in the conduct of her practice as a solicitor and they were not committed for personal gain. Second, there was strong evidence of extenuating circumstances because she was in an abusive relationship at the time and that abusive relationship was the primary reason she committed the offences. Third, the offences occurred over seven years ago. Since that time, Ms Yousif has taken major steps to rehabilitate herself. With the assistance of counselling, she has developed insight into why she engaged in the criminal conduct and developed strategies to ensure that she does not put herself in a similar position again. She has obtained employment where she has earned the respect and confidence of her employer. She has joined social groups and through those makes a significant contribution to the community. She has developed sufficient insight into her behaviour to realise that she continues to need some help and for that reason proposes to resume seeing Mr Borenstein as soon as possible.
Consideration
[47] We cannot accept those submissions.
[48] The offences cannot be looked at in isolation. They arose in circumstances where Ms Yousif chose to establish a close personal relationship with a known criminal. The two dishonesty offences involved a degree of planning. They were serious offences for a solicitor to commit because they involved a deliberate attempt to mislead a public official.
[49] We accept that Ms Yousif was in an abusive relationship with Mr Parkinson and in the context of that relationship Ms Yousif would want to appease Mr Parkinson in order to limit the amount of abuse she suffered. However, we cannot accept that that relationship was the primary reason she committed the offences. It seems plain from the language she used in the recorded conversations set out above and what actually happened that she was a willing participant in the events that constituted the offences. It is apparent from the conversation quoted in para [13] above that Ms Yousif was involved in planning the dishonesty offence. It was not a case where the plan was developed by Mr Parkinson and Mr Kearney and she was simply told what to do. When the plan began to go awry at the offices of Service NSW and Mr Kearney left the counter, she stayed and sought to persuade the employee to accept what she knew to be a false certificate.
[50] Similarly, in relation to the drug offence, it was Ms Yousif who offered to contribute money to the price of the drugs. Mr Parkinson did not ask for the money. Indeed, he declined her offer.
[51] Little weight can be put on the opinion expressed by Mr Borenstein concerning Ms Yousif’s PTSD and its relevance to the offences she committed, since the opinion is not directed at the specific conduct in question and is based entirely on Ms Yousif’s account of the events.
[52] Ms Yousif pleaded not guilty to the charges and actively defended them. In doing so, she gave evidence that she knew was false. Although because of the inconsistent evidence Ms Yousif gave before this Court, it is not possible to say with any degree of certainty what evidence Ms Yousif now accepts was false and what evidence she does not, it is clear that she gave false evidence when she said that she did not know that the letter purporting to be from the Indian consulate was a forgery and on occasions before this Court she accepted that that was the position. Although Ms Yousif did not accept it, it also seems clear that she must have known that the evidence she gave about how the forged letter came to be damaged was false. That is evident from the recorded conversation quoted in para [13] above. It is plain from that transcript that Mr Parkinson, Mr Kearney and Ms Yousif were not discussing what had actually happened to the letter, which is what Ms Yousif said at her trial, but were discussing what story should be given at the time that the letter was presented to Service NSW. It is not plausible that someone who participated in the concoction of a story about how the letter came to be damaged believed the story when giving evidence of it. Similarly, having regard to the conversation recorded at para [17] above, it is not plausible that Ms Yousif did not know that the money she was counting, and that she offered to supplement, was to be used to buy illicit drugs.
[53] Perhaps of even more significance in the context of the current application, we cannot accept that some of the evidence Ms Yousif gave before this Court was truthful. This was understood to be an issue during and following the first day of the hearing; it was expressly addressed in submissions on the second day. There is no constraint on the Court making its own findings as to her credit and relying upon those findings in disposing of the application before it: cf Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36.
[54] There is a question whether Ms Yousif gave truthful evidence before this Court about whether, at the time she attended the Service NSW office with Mr Kearney, she knew that she was not a JP so that when she told the Service NSW employee that she was she was lying. Ms Yousif’s evidence on this issue is at best confused if not contradictory. Moreover, it seems unlikely that a solicitor would not know the difference between a solicitor and a JP and that a person was not a JP by virtue of being a solicitor. However, it is not necessary to reach a concluded view on this issue, since there are two important respects in which it is clear that the evidence Ms Yousif gave before us was false.
[55] First, we cannot accept that Ms Yousif honestly believed the account she gave of how the forged Indian consulate letter came to be damaged. The account she gave before this Court was different from the account she gave at her trial. The account itself was implausible. It was implausible that Ms Yousif had only remembered the true facts when she gave evidence before this Court. And the account was implausible given her recorded discussion with Mr Parkinson and Mr Kearney.
[56] Similarly, in relation to count 3, we cannot accept Ms Yousif’s evidence before this Court that she did not know that the money she counted (and offered to supplement) was to be used for the purchase of a quantity of methylamphetamine. The evidence she gave on this subject was particularly evasive because, on several occasions, what she denied was knowing that the money was going to be used “for the supply of 55 grams of methamphetamines”. The introduction of a precise quantity in the answer to the question created an ambiguity because it became unclear whether Ms Yousif was denying that she knew the precise quantity of drugs to be purchased or whether she was denying that she knew that the money was being used to purchase any drugs. Ms Yousif came across as an intelligent person. The introduction of the ambiguity appeared to be deliberate. The only plausible reason for introducing the ambiguity was to avoid giving an honest answer to the question. Indeed, the ambiguity itself was implausible as there was no reason to doubt the recorded reference to “three ounces” as the amount being supplied.
[57] Nor do we think Ms Yousif has developed an adequate insight into her offending so that now she is suitable to remain on the roll. At the very least the answers she gave in cross-examination before this Court referred to above demonstrate that Ms Yousif has not fully accepted the respects in which her conduct involved the commission of serious criminal offences, including criminal offences going to her honesty. Although she now says that she accepts that she needs further psychological help, she refrained from obtaining that help because she thought it would damage her case before this Court. She has indicated that she now proposes to seek that help because she understands that it will assist her case. This and the other evidence we have referred to indicate that Ms Yousif remains a person who is willing to say and to do whatever will achieve her immediate goals without being overly concerned about what the right thing to do is. It demonstrates that she continues to be unfit to remain on the roll. It is not possible to say with any confidence if and when the position will change.
Orders
[58] Accordingly, the orders of the Court are:
(1) Declare that Alina Yousif is not a fit and proper person to remain on the Roll of Australian Lawyers maintained by the Court under s 22 of the Legal Profession Uniform Law (NSW) (the Roll).
(2) Order that the name Alina Yousif be removed from the Roll.
(3) Order that Alina Yousif pay the applicant’s costs of, and incidental to, these proceedings.
(emphasis added)
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