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Bahadur v Auckland District Law Society HC Auckland CRI 2007-404-130 [2007] NZHC 2027 (23 August 2007)

Last Updated: 30 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2007-404-130}

DAWUD MUKHTAR ALI BAHADUR

Appellant

v

AUCKLAND DISTRICT LAW SOCIETY

Respondent

Hearing: 16, 17 July 2007

Appearances: Appellant in Person

MJ Ruffin for Respondent

Judgment: 23 August 2007 at 4:30 pm

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on 23 August 2007 at 4:30 pm pursuant to Rule 540(4) of the High Court Rules

...............................................

Registrar/Deputy Registrar

...............................................

Date

Solicitors:

D Bahadur, PO Box 17 287 Greenlane Auckland

Meredith Connell, PO Box 2213 Auckland

BAHADUR V AUCKLAND DISTRICT LAW SOCIETY HC AK CRI 2007-404-130 23 August 2007

Introduction

[1] This judgment relates to an appeal from a decision of the District Court at Auckland, which convicted and discharged Dawud Mukhtar Ali Bahadur on two charges of acting as a barrister and solicitor without being the holder of a practising certificate in breach of s 56 of the Law Practitioners Act 1982.

[2] The hearing of the appeal took place on 17 July 2007. On the morning of the appeal Mr Bahadur had presented an affidavit from an airline executive in support of a claim he made that his travel would be restricted if he were convicted. The Auckland District Law Society (“the ADLS”) had not had an opportunity to respond to that affidavit and I gave the ADLS the opportunity to do so, adjourning that part of the appeal.

[3] The other part of the appeal related to name suppression. The further evidence did not relate to that and because there was a member of the media present it was necessary to deal with the matter at that stage. I therefore issued a judgment on that aspect of the appeal, declining to order name suppression.

[4] Since that hearing I have received further affidavit material from both the

ADLS and Mr Bahadur, and further written submissions.

[5] As I noted in my earlier judgment, the District Court decision was unfortunately not recorded, because of a failure of the recording machinery. The appeal has therefore proceeded before me on a de novo basis, and I have had to consider the issues afresh without the benefit of the District Court Judge’s reasons. I have been asked to determine the issues on the basis that this is a rehearing and I have taken that course, which I consider in the circumstances is appropriate.

Relevant facts

[6] Mr Bahadur was admitted as a barrister and solicitor of the High Court of New Zealand on 10 May 1996. He had a practising certificate as an employed barrister and solicitor since at least 19 August 1998. From 4 February 2004 he

practised as a barrister, a practising certificate to that effect having been issued in June 2004 and expiring on 21 January 2005. Mr Bahadur did not pay his practising fees for the year commencing 1 February 2005. After getting a warning from the ADLS, he was notified on 18 April 2005 that his practising certificate had not been renewed for the current year.

[7] In August 2006 the Law Practitioners Act 1982 governed the conduct of practitioners in New Zealand. It has now been replaced by the Lawyers and Conveyancers Act 2006. Section 56(1) of the Law Practitioners Act 1982 provided that a practitioner shall not practice without a current practising certificate. Section 56(4) stated that every practitioner who contravened the section committed an offence against the Act.

[8] On 14 August 2006 Mr Bahadur wrote to a finance company on a letterhead setting out his name and stating “Barrister and Solicitor”. In that letter he advised that his client wished to discharge a loan on the settlement of the sale of the relevant property and asked for a withdrawal of caveat and settlement figures. He stated:

We undertake not to release the caveat until all loan monies owed to you are fully repaid.

[9] The finance company immediately responded in writing requesting advice from Mr Bahadur as to whether he was holding a current practising certificate from the ADLS, so that they could rely on the undertaking. Mr Bahadur did not respond but arranged for another legal practitioner to act on the transaction.

[10] Shortly afterwards, on 25 August 2006, Mr Bahadur wrote to another finance company on behalf of a client, challenging a claim for money brought by that company against a couple whom he claimed were “his clients”. In that letter he threatened the issue of civil proceedings by his clients against the finance company and generally responded strongly over three paragraphs endeavouring to force a settlement. On this occasion on the letterhead he styled himself “Barrister”. Again he was questioned as to whether he was holding a practising certificate. Ultimately the ADLS received two separate complaints from each finance company that Mr Bahadur was acting as a barrister and solicitor without a practising certificate.

[11] Mr Bahadur said, in relation to the letter in which he gave the undertaking for his client, that he did the work for his client without receiving any fee and because she was unwilling to brief any solicitor. The client was a neighbour. In the second case the clients were his sister and brother-in-law and he was acting to help them out of a predicament they faced in a claim being made against them. Again, he said that he received no financial reward for his action. He pointed out that the ADLS not fined him or suspended him. He has in fact now been issued him now with a current practising certificate and he is practising as a barrister and solicitor. He referred to a difficult period that he has been going through, involving separation from his wife and three young children. He also pointed out that he has had financial difficulties, including having difficulty meeting mortgage obligations. He has admitted his error throughout, has no previous convictions and is of good character.

Principles to be applied for discharge without conviction

[12] The power to grant a discharge without conviction is in s 106 of the

Sentencing Act 2002. Section 107 states:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

The Court’s exercise, therefore, is to assess the gravity of the offence and then to assess the direct and indirect consequences of the conviction. The Court then needs to balance the gravity and consequences to achieve a proportionate result.

[13] Section 107 states the Court “must not” discharge an offender without conviction unless the Court is “satisfied” that the direct and indirect consequences of conviction would be out of proportion. The word “satisfied” does not place an onus on the party seeking the discharge. The word is used in the sense described in R v Leitch [1998] 1 NZLR 420 (CA) at 428:

The need to be “satisfied” calls for the exercise of judgment by the sentencing Court. It is inapt to import notions of the burden of proof and of setting a particular standard, eg beyond reasonable doubt. As this Court said in R v White (David) [1988] 1 NZLR 264 at p 268 with reference to s 75(2), “The phrase ‘is satisfied’ means simply ‘makes up its mind’ and is indicative

of a state where the Court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification . . .”.

[14] In adopting this approach I respectfully agree with the observation of Ronald Young J in BC v Police HC WN CRI-2003-485-101 2 June 2004 at [8] in that it is not helpful to approach the s 107 exercise from the perspective of there being any onus on any party. The proper course is for the Court to consider all the relevant and cogent evidence put before it and to decide whether or not it is satisfied that the s 107 test is met.

[15] Often a Court has to consider a discharge without conviction without having received formal evidence on the issue of proportionality. It was observed in Iosefa v Police HC CHCH CIV 2004-404-64 21 April 2005, Randerson J at [34], that it is sufficient if the Court is satisfied that there is a real and appreciable risk that the consequences asserted by an applicant to a discharge will occur. An application for a discharge will generally involve an applicant asserting that various consequences will flow from a conviction. A consideration of the submission involves the Court making an assessment of what would happen in the future on the basis of a hypothetical conviction which will become a reality if the application were denied. An insistence by a Court of proof of such future events on even a civil standard would be unrealistic. Nevertheless, the Courts must carefully examine any assertion by an applicant with proper caution and commonsense when reaching a conclusion as to likely consequences, and may require sworn evidence on matters of existing fact.

[16] In this application Mr Bahadur puts forward his claim for a discharge on two bases. First, he says that a conviction will severely affect his ability to practice. Secondly, he asserts that a conviction will impair his ability to travel freely. He submits that when these two factors are considered, a conviction is disproportionate to the gravity of the offending. He has filed affidavits in support.

The gravity of the offending

[17] Mr Bahadur points out that he only breached the Act on two occasions, on neither occasion receiving any reward. He made errors of judgment on occasions of

some pressure. Initially he submitted that the offending was trivial. He now accepts that such a categorisation is too extreme, but nevertheless submits that it was not serious offending.

[18] I accept that this offending is certainly not the most serious of its type. I accept Mr Bahadur’s explanation that he made errors of judgment under pressure, and was not carrying out any planned course of conduct in which he was seeking to deceive the public or the ADLS. This appears to have been accepted by the ADLS, which has allowed him to continue practising without penalty. Nevertheless, Mr Bahadur is right to now accept that the offences were not trivial. They were more than acts of carelessness. As I commented in my earlier decision in relation to suppression of name (Bahadur v Auckland District Law Society AK HC CRI 2007-

404-130, 17 July 2007) at [18]:

In both cases he was using the fact that he was a practising solicitor as a means of obtaining a benefit for the purported client. In both cases the recipients of the letters queried his status as a barrister and solicitor or barrister and made complaints to the Law Society. I do not regard such actions as trivial. While I would not necessarily describe them as “in the mid to serious range” if the full range of offending under s 56 is considered, they nevertheless involved deliberate misrepresentations as to his status as a practitioner. There may well be significant mitigating factors relating to these facts which I will be considering in due course in relation to the discharge without conviction. However, they are not in terms of the offending, trivial charges.

[19] The recipients of his two letters would have both been misled if they had not been alert. If the first finance company had acted on the basis of the undertaking, the consequences of the misrepresentation were notionally severe. Mr Bahadur not being a practising solicitor was not subject to any immediate sanctions arising from malpractice, and the benefit of the fidelity fund under s 169 of the Act was not available to those who might suffer loss.

[20] Mr Bahadur is a mature man who has been in practise for some years. While I accept his explanations for each breach, neither is a justification for his lapse. The request of a needy neighbour or relative is not a mitigating factor that excuses it. It happened twice. However, the fact that he received no reward makes the breaches less serious than if done for financial reward.

The effect on Mr Bahadur’s ability to practice

[21] Mr Bahadur has presented quite a lot of material on the effect of a conviction on his ability to practice, including a letter from a prospective employer stating it decided to terminate Mr Bahadur’s prospective employment when it learned of the pending prosecution. Mr Bahadur is presently practising on his own account. I accept that a conviction may cause him some professional damage among his colleagues, possible employers and clients. However, I do not consider that the fact of a conviction will have a terminal effect on Mr Bahadur’s career. It is something that with hard work he can put behind him.

[22] There is public interest in members of Mr Bahadur’s profession and prospective clients knowing about practitioners who have breached the Act in a way that is less than trivial. There is nothing disproportionate about that.

The effect on travel

[23] I received further evidence in relation to this issue. Mr Bahadur points out that he is a Muslim. He is not a New Zealand resident, having been born in Fiji. He wishes to travel and points out that a visa application to the United States requires a statement as to whether an applicant has been arrested or convicted. He has filed an affidavit from an airline manager asserting that most countries he is aware of including Saudi Arabia, which Mr Bahadur may wish to visit on a pilgrimage, require declarations of convictions. Both this witness and Mr Bahadur emphasise the prejudice that Muslims suffer when they travel, which they say has become severe since the September 11 attacks.

[24] I accept that as a Muslim with a fully-grown beard, Mr Bahadur may suffer particular difficulties on arrival at foreign countries, although I would observe that these are less likely to arise in the predominantly Muslim countries that Mr Bahadur indicated he wishes to visit. However, I do not have before me any evidence which satisfies me that a conviction, in respect of which there is no penalty or a minor penalty, will give rise to particular added difficulties in travel for Mr Bahadur. While he would have to declare a conviction on arrival at the United States on the

basis of a current immigration form, there is no evidence that any particular prejudice will arise as a consequence of that. The material filed by the Crown indicates that he would still be able to enter the United States. In any event the United States is not Mr Bahadur’s primary object of travel.

[25] The Crown has provided evidence that offences, where the maximum penalty is not more than one year’s imprisonment and where a sentence of six months’ imprisonment or less has been imposed, are not a barrier to entry unless there are multiple convictions. Evidence provided by the Crown, although prepared in 2003, shows that in most countries in the world with the possible exception of China minor convictions will not affect entry. The Crown has not, of course, proven these assertions which are derived from information from third parties, just as Mr Bahadur has not proven any specific detriment to his ability to travel.

[26] It is necessary to make the best assessment possible in the circumstances recognising that this is not an area where absolute proof if possible. It is my assessment that it is unlikely that Mr Bahadur will suffer any actual detriment in his travel as a consequence of a conviction. I am not unsympathetic to his claim that as a Muslim he may suffer particular travel difficulties, but he has not shown that a conviction for a relatively minor offence of the type that would be involved in this case will add to them.

Conclusion on whether there should be a discharge

[27] I do not consider that the effects of a conviction would be disproportionate to the gravity of the offending. There is no evidence that the fact of a conviction will cause Mr Bahadur specific travel detriment. It may mean some disadvantage to him on occasions in his practice, but that is a proper consequence of his actions and is proportionate. A conviction and modest fine of up to $200 would have been appropriate. The learned District Court Judge, when he heard the matter, entered a conviction and discharge with Mr Bahadur being ordered to pay Court costs of $130 and $250 towards the cost of prosecution on each charge. He did not impose a fine. This was lenient but within the range. Indeed, I consider it the most lenient sentence that could have been imposed. I have carried out my own process of reasoning

because of the absence of a record of reasons resulting from the transcription failure, and I consider it appropriate that the lowest sentence be imposed that is available in the sentencing range. That is a conviction and discharge, with an order for costs.

[28] Therefore, having carried out my own assessment of the correct sentencing response, given the unfortunate unavailability of the District Court Judge’s reasons for his decision, I do not allow the appeal. The conviction entered by the District Court Judge was the proportionate response. The discharge with some payment towards costs was a lenient penalty, at the bottom of the sentencing range.

Result

[29] The appeal against sentence is dismissed.

................................. Asher J