Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

Brown v New Zealand Law Society [2018] NZHC 1263 (31 May 2018)

Last Updated: 24 July 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 31 May 2018 at 3.00pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar. Date:.................................

BROWN v NEW ZEALAND LAW SOCIETY [2018] NZHC 1263

Introduction

[1] The applicant, Mr Brown, applied to the New Zealand Law Society (the Society) for a certificate of character to assist in his application to be admitted as a barrister and solicitor of this Court. The Society declined to issue the certificate.

[2] Mr Brown now applies to this Court for admission pursuant to s 49 of the Lawyers and Conveyancers Act 2006 (the Act). He does not have a certificate of character so the application is made pursuant to r 6(3) of the Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008 (the admission rules). Mr Brown seeks to persuade the Court that he is a fit and proper person to be admitted as a barrister and solicitor of this Court.

[3] Pursuant to r 6(4) of the admission rules, the Society opposes the application. It argues that Mr Brown is not a fit and proper person to be admitted as a barrister and solicitor of this Court.

Factual background

[4] Mr Brown is 27 years of age. When he was 19 years of age, he applied to join the New Zealand Police. He was accepted in late 2009 and he started training at the Police College in early 2010. He graduated as a police officer and later that year, he commenced duties as a probationary constable.

[5] In late November 2010, Mr Brown was informed by a senior police inspector that there had been a number of allegations of sexual impropriety made against him. Mr Brown was suspended from his police duties, pending both employment and criminal investigations.

[6] The criminal investigation ran its course. In the course of the investigation, Mr Brown was interviewed by a senior police officer. He was subsequently charged with the sexual violation and indecent assault of two female complainants. Mr Brown denied that he had had sexual contact with either of them. Separate jury trials were held, both in 2012. Mr Brown was acquitted of all charges against him.
[7] The police did not charge Mr Brown in respect of the allegations made by numerous other female complainants.

[8] The employment investigation was stayed while the criminal proceedings were ongoing. It was revived in late 2012 following the acquittals. There had been allegations of sexual impropriety made by 13 females, aged from 13 to 22 years, all in the period January 2010 to September 2010. Mr Brown was interviewed by the police for a second time in November 2012. He denied that the sexual relations alleged by some of the complainants had occurred at all and he maintained that the sexual relations alleged by other complainants were consensual.

[9] As part of their investigation, the police had obtained copies of text messages from Mr Brown’s cellphone. A number of the text messages Mr Brown had sent to the female complainants had a strong sexual content. Mr Brown accepted during his interview that those text messages were inappropriate. He said that he was not proud of them and he apologised for sending them.

[10] Some of the text messages with a strong sexual content had been sent by Mr Brown to a 13-year-old girl – complainant 3. Mr Brown told the police interviewers, both in the course of the criminal investigation and in the course of the employment investigation, that he believed at the time that complainant 3 was 16 years of age. He said that she had told him her age when they first met in a shopping mall, before the text messages were exchanged.

[11] Mr Brown had also exchanged text messages with a 16-year-old female – complainant 4 – who claimed that she had sexual relations with Mr Brown at his house. She made a statement to the police. She said that she was coerced into having sexual relations with Mr Brown, that she felt pressured and that she thought that the only way out for her was to do what Mr Brown wanted. In the course of making her statement, complainant 4 drew sketches showing the layout of Mr Brown’s house and bedroom. Mr Brown accepted in the interviews that he met with complainant 4 at a carpark after he finished work one day. He said that they talked for a while, but that they did not have sexual relations. Mr Brown said that complainant 4 had never visited his house. He could not explain how she had been able to draw sketches of his home. As an
aside, he said that even if he did have consensual sexual relations with complainant 4 when he was off duty, he had not breached the police code of conduct, and he observed that the police had not charged him with any of the allegations made by complainant 4.

[12] Following the employment investigation interview, Mr Brown was advised that the Assistant Commissioner considered that the allegations were capable of amounting to serious misconduct and that a disciplinary hearing would be convened. Mr Brown was told that he had until 4 February 2013 to elect whether to attend the disciplinary hearing, or waive the hearing and progress to the preliminary decision stage and make submissions.

[13] On 5 February 2013, Mr Brown resigned from the police with effect from 13 February 2013. He did not make any election. Rather, he entered into a settlement agreement with the police. The agreement recorded Mr Brown’s resignation and the police’s agreement to pay him a lump sum in lieu of notice. The agreement recorded that it was a full and final settlement of all matters arising out of the employment relationship. Mr Brown says that he thought that the settlement agreement was the end of the disciplinary process, and that no disciplinary decision could or would be made after his resignation.

[14] The police continued the employment investigation, notwithstanding Mr Brown’s resignation. They upheld two of the allegations made against Mr Brown by one of the complainants. This occurred some two months after Mr Brown resigned. Mr Brown says that this outcome was reached without recourse to him, and that he was unaware of it when he first sought to obtain a certificate of character from the Society.

[15] Following his resignation from the police, Mr Brown studied to become a lawyer. He completed his law degree at the end of 2016 and joined the Public Defence Service as a graduate employee in January 2017. He completed his professional studies course in February 2017.
[16] Mr Brown initially applied to the Auckland branch of the Society for a certificate of character on 14 February 2017. The application was accompanied by a number of references.

[17] Given that Mr Brown had previously been employed in a regulated position, he was asked by the Society to obtain a certificate of standing from the police confirming that he had not been subject to any disciplinary processes. The police declined to issue a certificate of standing. This was when Mr Brown first became aware that two of the allegations which were, inter alia, the subject of the employment investigation had been upheld subsequent to his resignation. Mr Brown, through his counsel, attempted to have the police amend their records to remove reference to the two complaints being upheld, asserting that no disciplinary hearing had taken place. After correspondence, the police advised that Mr Brown’s record would be amended, but only to record that he had resigned during the disciplinary process.

[18] Mr Brown provided a detailed letter to the Society on 28 April 2017 setting out his position in relation to both the criminal and employment investigations. Inter alia, Mr Brown said that he had resigned from the police so that he could:

... move on with [his] life and look towards the future with confidence ...

confidence that he said he had lost in the police as a result of the prosecutions he had to face. He said that, in his view, during the employment investigation, he was:

... denied a fair opportunity to relay [his] side of the story, and that what [he] had said was not listened to openly, independently and objectively.

He said that he resigned:

... with the very clear understanding that no findings could or would be made given that he would no longer be an employee.

He also stated as follows:

I have maintained at all times, and I continue to maintain, that I have not committed any criminal offence and nor have I conducted myself in a way that could properly give rise to any finding of misconduct against me.

[19] On 1 May 2017, Mr Brown was asked by the Society to provide “information of the disciplinary matters you were charged with from the police department and the written outcome of your disciplinary matter”. Mr Brown responded on the same day by saying that he did not have any disciplinary matter with his former employers and that he was not disciplined by them. He went on to say that he was subject to an employment investigation as a result of allegations of sexual impropriety; he denied any wrongdoing and noted that he was acquitted on all criminal charges that were laid against him. He said that he chose to resign from the police thereafter, but prior to the conclusion of the employment investigation. Mr Brown concluded his reply by asking the Society to clearly specify “what further information it was seeking from him”.

[20] The Society followed this up by asking for full details of the employment investigation, any communications Mr Brown had had in relation to the investigation, a copy of any written findings and the outcome.

[21] Mr Brown had to obtain the information requested from the police. It was provided in early July 2017.

[22] Mr Brown’s application for a certificate of character was at this stage still with the Auckland branch of the Society. It decided to interview Mr Brown. The interview was conducted by two senior practitioners – Andrew Gilchrist and Rachel Reed QC – on 27 July 2017. After the interview, they requested further information including the text messages and the transcript of Mr Brown’s interview. It was provided. Following their consideration of this additional material, both Mr Gilchrist and Ms Reed provided reports to the Society in September 2017:

(a) Mr Gilchrist, by a “small margin”, was satisfied that Mr Brown is now of good character. He was prepared to give Mr Brown the benefit of the doubt. He considered that Mr Brown came across as genuinely remorseful and ashamed, and that he had done his “absolute best” to put his earlier behaviour behind him.

(b) Ms Reed, also by a “small margin”, was not so satisfied. She did not consider that Mr Brown had answered truthfully or fairly about his knowledge of the age of complainant 3, or that he answered honestly
and openly when denying sexual relations with complainant 4. She acknowledged Mr Brown’s relative youth at the time of the alleged conduct, and that time had passed, but nevertheless expressed the view that Mr Brown’s current honesty about his past conduct raises concern about his character.

[23] In light of Ms Reed’s report, the Auckland branch of the Society was not satisfied that it should provide a certificate of character to Mr Brown. Rather, it referred the matter to the Society’s national office. Senior staff at that office reviewed the application and it was then referred to the Society’s Practice Approval Committee.

[24] In October 2017, the Practice Approval Committee considered Mr Brown’s application by way of a telephone conference between members. The Committee declined to give Mr Brown a certificate of character. Its reasons were explained in a letter sent to Mr Brown dated 31 October 2017. Relevantly, the letter stated as follows:

The Committee is not satisfied that you understand and appreciate the seriousness of the complained of conduct in so far as you admit it occurred. You were faced with complaints from some 13 females, one as young as 13, another 16 years of age, several of whom you had texted sexual messages and several of whom you had sent a “20 question” survey about their personal and sexual habits or preferences. Some of this occurred while you were a probationary police officer.

You have not had any counselling regarding this behaviour and you have now entered a field of employment where inevitably there will be contact with young women some of whom will be very vulnerable, and again your contact will be from a relative position of power.

The Committee is also concerned about your apparent lack of candour and insight into your conduct, as reflected in what it considered to be a minimisation of events in your letter of explanation, and during the interview with the Auckland branch panel. It noted that at the interview when asked about particulars at least one of your answers was inconsistent with the facts, in that you said you did not know the 13 year old’s age despite the fact that there was a text from you referring to the 7 year age gap when you were 20 years of age at the time.

Unquestionable integrity, probity and trustworthiness are essential characteristics of an applicant at the time of applying to join the legal profession where standards of candour and honesty are high. The lapse of time since the complained of conduct and your youth at the time are not sufficient to address the Committee’s concerns, in the absence of a clear demonstration that your maturing has included a real understanding and change in your thinking.

For the above reasons the Committee did not feel it could accredit you to the Court, to the profession, or to the public, as a fit and proper person for the purposes of admission as a barrister and solicitor of the High Court. Accordingly, your application for a Certificate of Character has been declined.

The statutory regime

[25] The starting point is s 3 of the Act. Relevantly, it states as follows:

3. Purposes

(1) The purposes of this Act are—

(a) to maintain public confidence in the provision of legal services ...

(b) to protect the consumers of legal services ...

(c) to recognise the status of the legal profession ...

(2) To achieve those purposes, this Act, among other things,—

(a) reforms the law relating to lawyers:

(b) provides for a more responsive regulatory regime in relation to lawyers ...

...

(d) states the fundamental obligations with which, in the public interest, all lawyers ... must comply in providing regulated services:

...

[26] Section 4 of the Act sets out the fundamental obligations resting on lawyers referred to in s 3(2)(d):

4. Fundamental obligations of lawyers

Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:

(a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:

(b) the obligation to be independent in providing regulated services to his or her clients:

(c) the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:
(d) the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.

[27] Mr Collins, for the Society, submitted that any analysis of the status of a candidate for admission must occur in light of these overarching provisions. I agree. Those seeking to be admitted must be persons who can confidently be expected to adhere to the fundamental obligations of lawyers.

[28] Section 49 of the Act sets out three different categories of persons who can qualify for admission as a barrister and solicitor. Relevantly, it provides as follows:

49 Qualifications

(1) A person is qualified for admission as a barrister and solicitor if he or she is in at least 1 of the categories in this section.

(2) The first category is persons who—

(a) have all the qualifications for admission prescribed or required by the New Zealand Council of Legal Education; and

(b) are fit and proper persons to be admitted as barristers and solicitors of the High Court; and

(c) meet the criteria prescribed by rules made under section 54.

...

[29] Pursuant to s 49(2)(b) of the Act, and the admission rules, a person applying for admission as a barrister and solicitor (the candidate) will, in addition to applying to the New Zealand Council of Legal Education for a certificate confirming his or her completion of the educational requirements, apply to the Society for a certificate of character.¹ The candidate must satisfy the Society that he or she is a fit and proper person for admission.² If the Society is satisfied that the candidate is fit and proper, it will issue a certificate of character. That certificate is sufficient evidence of the

¹ Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008, r 5(1).

2. Re M [2005] 2 NZLR 544 (HC) at [16]; Singh v Auckland District Law Society [2002] 3 NZLR 392 (HC) at [26](a). I note that it has been observed that, while in theory, the rules under which only people who are suitably qualified, of sound character and able may practice law, are an important protection against incompetent or dishonest individuals practising law, in reality these limits may afford little protection – Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) at 141.

candidate’s status as a fit and proper person for admission, in the absence of proof to the contrary.³ If the Society is not so satisfied, and it refuses to issue a certificate of character, then the candidate can seek to satisfy this Court concerning his or her status as a fit and proper person.⁴

[30] A candidate seeking admission under s 49(2) of the Act must apply to this Court, and this Court must make an order admitting the candidate if it is satisfied that the candidate is qualified for admission and takes the prescribed oath.⁵

[31] Section 55 of the Act provides statutory guidance which may assist when determining whether a candidate is a fit and proper person to be admitted. Relevantly, it reads as follows:

55 Fit and proper person

(1) For the purpose of determining whether or not a person is a fit and proper person to be admitted as a barrister and solicitor of the High Court, the High Court or the New Zealand Law Society may take into account any matters it considers relevant and, in particular, may take into account any of the following matters:

(a) whether the person is of good character:

...

(c) whether the person has been convicted of an offence in New Zealand ... and, if so,—

(i) the nature of the offence; and

(ii) the time that has elapsed since the offence was committed; and

(iii) the person’s age when the offence was committed:

...

(g) whether the person—

³ Lawyers and Conveyancers Act 2006, s 51.

⁴ Lawyers and Conveyancers Act (Lawyers: Admission) Rules, r 6(3).

⁵ Lawyers and Conveyancers Act, s 52(2).

(i) is a subject of current disciplinary action in another profession or occupation in New Zealand or a foreign country; or

(ii) has been the subject of disciplinary action of that kind that has involved a finding of guilty, however expressed:

...

(2) The High Court or the New Zealand Law Society may determine that a person is a fit and proper person to be admitted as a barrister and solicitor even though the person—

(a) is within any of the categories mentioned in any of the paragraphs of subsection (1); or

(b) does not satisfy all of the criteria prescribed by rules made under section 54.

(3) Subsection (1) does not limit—

(a) the grounds on which it may be determined that a candidate is not a fit and proper person for admission as a barrister and solicitor; or

(b) the criteria that may be prescribed by rules made under section 54.

[32] The rules referred to in s 49(2)(c) and in s 55(3)(b) are the admission rules. They were promulgated under s 54. They do not put in place any additional criteria.

Case law

[33] As I have noted, the onus to establish that he or she is a fit and proper person to be admitted as an officer of this Court falls on the candidate for admission. Where the Society declines to issue a certificate of character, a candidate is entitled to seek to satisfy the Court of his or her good character. In such cases, the absence of the certificate is relevant, and the Court should give weight to the Society’s decision to refuse to issue a certificate.⁶

[34] When considering whether a candidate is a fit and proper person, the Court can take into account the various matters set out in s 55(1) of the Act. It is clear that the

⁶ Singh v Auckland District Law Society, above n 2, at [26](d).

section is no more than a guide. The matters set out in s 55(1) are not expressed to be mandatory considerations, and the Court can determine that a candidate is a fit and proper person even though he or she falls within one or more of the categories set out in s 55(1). The section expressly records that its provisions do not limit the enquiry that must be made.

[35] The words “good character” used in s 55(1)(a) are distinct from the words “fit and proper” used in the introductory words to the section.⁷ The statute requires that a candidate be a fit and proper person. Whether the candidate is of good character is a matter which can be weighed in considering fitness and propriety. Good character goes to the candidate’s integrity, probity and trustworthiness; it is possible that a person could be of good character but not fit and proper for unrelated reasons.⁸

[36] There are several cases which discuss the high standards expected from candidates for admission to the legal profession. It suffices to quote from the decision of Panckhurst and Chisholm JJ in Re M:⁹

[17] The rationale for a stringent test of fitness to practise in the law has been authoritatively considered in a number of cases. We think it sufficient to quote from two. In Bolton v Law Society [1993] EWCA Civ 32; [1994] 2 All ER 486 the Master of the Rolls, Sir Thomas Bingham, identified the public interest in the maintenance of standards (at p 492) as:

“. . . the most fundamental [consideration] of all: to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession’s most valuable asset is its collective reputation and the confidence which that inspires.”

But there is a further underlying interest which must be protected and maintained: that of the Courts and of the profession generally.

[18] In our view that dimension was best captured in an Australian case:

Ziems v Prothonotary of the Supreme Court of New South Wales

⁷ Singh v Auckland District Law Society, above n 2, at [26](a).

⁸ Webb, Dalziel and Cook, above n 2, at 143.

⁹ Re M, above n 2.

[1957] HCA 46; (1957) 97 CLR 279. The issue was whether the conviction of a barrister for motor manslaughter while driving under the influence of alcohol required his disbarment. At pp 297 – 298 Kitto J observed:

“The issue is whether the appellant is shown not to be a fit and proper person . . . [T]he 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.”

Reflection upon the above passage, and like opinions in other cases, exposes the necessity to recognise that the test of suitability is necessarily an objective one, where sympathy for the person which a subjective approach might engender, has no place.

[37] The nature of the inquiry was succinctly articulated by the Court of Appeal in

Re Lundon:¹⁰

The relations between a solicitor and his client are so close and confidential, and the influence acquired over the client is so great, and so open to abuse, that the Court ought to be satisfied that the person applying for admission is possessed of such integrity and moral rectitude of character that he may be safely accredited by the Court to the public to be entrusted with their business and private affairs ...

[38] Counsel referred me to a large number of cases where the relevant principles have been applied.¹¹ In each case, the inquiry into the candidate’s fitness for admission was fact specific.

[39] Relevant to the present case, I glean the following from the authorities:

¹⁰ Re Lundon [1926] NZLR 656 (CA) at 658. See also S v New Zealand Law Society [1944] NZLR 351 (HC) at 356; L v Canterbury District Law Society [1999] 1 NZLR 467 (HC) at 474.

¹¹ Re Owen [2005] 2 NZLR 536 (HC); Pou v Waikato/Bay of Plenty District Law Society HC Rotorua CIV-2004-463-0511, 10 May 2005; Re Burgess [2011] NZHC 1548; [2011] NZAR 453 (HC); Ali v New Zealand Law Society [2014] NZHC 1111; Gibbs v New Zealand Law Society [2014] NZHC 1141; Re Donnelly HC Auckland CIV-2010-404-5943, 2 September 2011; Re Gazley HC Wellington CIV-2011-485- 1776, 26 October 2011; Sun v New Zealand Law Society [2014] NZHC 1318; Samuels v New Zealand Law Society [2014] NZHC 3026.

(a) The Court should not lightly limit the ability of a person to engage in an occupation for which they are qualified.¹²

(b) Refusal to admit a candidate has no punitive element. It is wholly protective. Refusal should be based on the risk of the candidate’s future misconduct or likely potential harm to the profession’s reputation.¹³

(c) The Court must be satisfied that the candidate is a person of integrity and moral rectitude of character, such that he or she can be safely accredited by the Court to the public as being a person who can properly and responsibly discharge his or her duties.¹⁴

(d) The concept of a fit and proper person incorporates standards of integrity.¹⁵

(e) Where a candidate has been involved in some past indiscretion, the Court must be satisfied that the “frailty or defect of character” indicated by the candidate’s earlier behaviour can be regarded as “entirely spent” or “safely ignored”.¹⁶

(f) The Court must look at the facts of the case “in the round”, and not seek to pay undue regard to the earlier wrongdoing.¹⁷

[40] The approach taken in the authorities is helpfully summarised by the learned authors of Ethics, Professional Responsibility and the Lawyer.¹⁸ They note that, while some leeway will be given for foolish acts of youth, there is little place for sympathy as to the consequences if there remains doubt about a candidate’s integrity.¹⁹ The fact

12. Harder v Auckland District Law Society [1983] NZLR 15 (CA) at 17; Singh v Auckland District Law Society, above n 2, at [62].
13. Webb, Dalziel and Cook, above n 2, at 144. See also Re M, above n 2, at [21]; Gibbs v New Zealand Law Society, above n 11, at [28].

¹⁴ Re Lundon, above n 10, at 658; Singh v Auckland District Law Society, above n 2, at [29].

15. Samuels v New Zealand Law Society, above n 11, at [10]; referring to New Zealand Law Society v Mitchell [2010] NZCA 498; [2011] NZAR 81 (CA) at [24]- [25] (a striking off case).
16. Re Owen, above n 11, at [34]-[35]; Re Burgess, above n 11, at [38]; Ali v New Zealand Law Society, above n 11, at [28].
17. Re M, above n 2, at [23]; Ali v New Zealand Law Society, above n 11, at [24]; Samuels v New Zealand Law Society, above n 11, at [32].

¹⁸ Webb, Dalziel and Cook, above n 2.

¹⁹ At 145-146.

that criminal convictions did not flow from past conduct does not mean the conduct is irrelevant to a consideration of character.²⁰ It is, however, inappropriate to refuse to admit a candidate solely on the basis of facts which were found to be not proved at a criminal trial.²¹ They also observe as follows:²²

... a Court could refuse admission on the basis that certain conduct, while not criminal, showed such character flaws as to be inconsistent with an order for admission. For example, cheating in university exams (or other dishonest conduct) may be enough to refuse admission. Certainly any such matters should be disclosed. A lack of frankness as regards any matters which might raise questions will be likely to strengthen suspicions of a lack of fitness ...

... Where a candidate is not forthright about earlier convictions or wrongdoing, this will count heavily against him or her. Where a candidate is frank, fully discloses all relevant matters, and recognises the gravity of those matters, it is indicative of a rehabilitation that is consistent with adherence to professional obligations, and therefore the Court is more likely to accept that the fit and proper test is met.

(Citations omitted)

Analysis

Submissions

[41] For Mr Brown, it was argued that his acknowledged inappropriate conduct when he was a youth/young man does not demonstrate defective character and unfitness to become a lawyer. It was submitted that Mr Brown has learned from his past mistakes and that he has not indulged in inappropriate behaviour over recent years. It was argued that the Court should look at matters in the round and in a forward looking way, and that it can be satisfied that Mr Brown is now a fit and proper person to be admitted as a barrister and solicitor of this Court.

[42] The key issue for the Society was Mr Brown’s perceived lack of integrity. Concern was expressed that Mr Brown has persistently denied that he knew that complainant 3 was 13 years old. It was argued that the evidence clearly shows that she told Mr Brown unequivocally, at a very early stage in the text message exchanges, that she was only 13 years of age. It was also put to me that Mr Brown’s denial of

²⁰ At 146.

²¹ At 146.

22. At 146-147. See also G E Dal Pont Lawyers’ Professional Responsibility (6th ed, Thomson Reuters, Sydney, 2017) at [2.55]-[2.135].

sexual relations with complainant 4, and his dismissal of her sketches of his home, its interior and the interior of his bedroom, suggest that Mr Brown has been less than honest in dealing with this matter. It was submitted that there are therefore doubts as to whether the frailties which Mr Brown acknowledges were apparent from his conduct in 2010 are in fact spent, and whether he even now genuinely appreciates the gravity of his actions at the time. It was argued that Mr Brown’s lack of candour and honesty in dealing with the Society raises doubts as to whether he is a fit and proper person to be admitted.

Mr Brown’s initial application

[43] At the outset, when he initially made application to the Society, Mr Brown filled out a certificate of character application form. Clause 9(d) in that application form read as follows:

Are you the subject of current disciplinary action in another profession or occupation in New Zealand or a foreign country, or have you ever been the subject of disciplinary action of that kind that has involved a finding of guilt, however expressed?

Mr Brown answered “no” to this question.

[44] I do not consider that the answer given by Mr Brown to this question has any bearing on whether or not he is a fit and proper person. On the evidence before me, Mr Brown did not know that the police had continued with the employment investigation and ultimately upheld two of the allegations made by one of the complainants after he resigned. Mr Brown had entered into the settlement agreement with the police. He thought that was the end of the matter. There was no acknowledgement of wrongdoing by him in the agreement or in any of the events which led up to it. There was nothing to contradict his evidence that he did not know of the findings against him, and I accept it.

[45] As an aside I note that the application form for a certificate of character does not advise candidates of the overarching need for candour and frankness. Rather, the form poses a number of specific questions and asks for a yes or no answer to each – eg. have you ever been convicted of any crime or offence in New Zealand or overseas. If a candidate answers yes to any of the questions, he or she is asked to provide detailed
information on a separate sheet. There is however no express invitation to a candidate to tell the Society of anything else that might be relevant to his or her application. This is an issue that the Society should consider.

Factors which favour Mr Brown

[46] There is nothing to suggest that Mr Brown has been involved in any further inappropriate behaviour. He has been involved in a mentoring programme offered by a major law firm, where he helped students in years below him. He has completed a miscarriage of justice project and he has continued as a dance instructor. He has been employed by the Public Defence Service since January 2017. He has provided affidavits in support from Lynn Hughes, who is the office public defender for the Manukau office of the Public Defence Service. Ms Hughes supports his application. He has also provided a letter of support from a director of the dance company where Mr Brown has worked as an instructor. No behavioural issues have arisen in that context.

[47] Mr Brown has filed a lengthy affidavit in support of his application. He annexes to that affidavit a copy of a letter from the barrister who acted for him through both the criminal and employment investigations – Mr Simmonds. Mr Simmonds is clearly aware of the fine detail of the allegations Mr Brown faced. He has continued to offer advice and support for Mr Brown, and has offered to act as his mentor on a regular basis if he is admitted as a barrister and solicitor.

[48] Mr Brown has obtained a supporting affidavit from Sabine Visser, a senior clinical psychologist, who carried out a psychological assessment of Mr Brown in June 2017. Ms Visser concluded from her assessment that Mr Brown’s personality profile does not elicit any points of concern “psychologically and characteriologically” that should prevent Mr Brown from being admitted as a barrister and solicitor, should he meet all other criteria. She considered that Mr Brown was open in his discussion of relevant events with her, and noted that he provided a large amount of documentation detailing the accusations against him. She advised that he did not seek to censor the information provided and she formed the view that Mr Brown had not sought to minimise the issues that were raised.
[49] Mr Brown has the support of his partner. She has confirmed that she has been with him throughout the entire process, including first the criminal investigation and then the employment investigation. She says that Mr Brown has been very open throughout and kept her fully “in the loop”. She confirms that she has read the inappropriate text messages and discussed them with Mr Brown.

[50] Mr Brown has produced an affidavit from his mother. She also confirms that she knows the full detail of the allegations, including the text messages. She states her belief that Mr Brown is now mature, honest and responsible, and that he has good morals.

[51] There are various other references referred to in Mr Brown’s application for a certificate of character, and in subsequent correspondence from his and his counsel. I have read those references where they are available on the Society’s file. As I have noted, many of the referees attest to Mr Brown’s honesty and integrity.

[52] The inappropriate conduct took place some years ago. Mr Brown was only 19- 20 years old at the time. He is entitled to say that recognition should be given to his youth at the time and to his relative immaturity. It is also relevant that he was acquitted of the criminal charges brought against him. He has, to his credit, completed a law degree and obtained employment in the Public Defence Service. He has performed well in that role.

Factors which tell against Mr Brown

[53] The Society expressed concern at aspects of Mr Brown’s letter to it dated 28 April 2017, parts of which I have summarised at [18] above. I share those concerns. In my view, Mr Brown was not particularly candid with the Society in that letter. In particular, his assertion that he did not conduct himself in a way that could properly give rise to any finding of misconduct against him suggests that he does not have any great insight into his actions in 2010.

[54] I have referred above at [19] to Mr Brown’s email response to the Society on 1 May 2017.
[55] Mr Brown’s response to the Society was raised by Mr Collins in cross- examination. It was put to him that his answer – that he did not have any disciplinary matter with the police – was untrue. Mr Brown did not accept this. He said that he was subject to the employment investigation and that he had separated the employment investigation from the disciplinary enquiry.

[56] I did not regard Mr Brown’s response as particularly satisfactory. In my judgment, Mr Brown was less than forthcoming in his response of 1 May 2017 to the Society’s reasonable enquiry.

[57] It also seems to me that Mr Brown has been less than candid in relation to his dealings with complainant 3. His dealings with complainant 3 were raised by police interviewers in the course of the interviews that Mr Brown gave, both in the course of the criminal investigation and in the course of the employment investigation. In both interviews, Mr Brown maintained that complainant 3 told him that she was 16 years old, that she looked that age, and that he believed her. He told the same thing to Ms Hughes at the Public Defence Service. Mr Brown has belatedly accepted that he must have known that complainant 3 was only 13 years old at the time that he was sending the inappropriate text messages to her. In Mr Brown’s affidavit filed in support of the present application, Mr Brown explained as follows:

These text messages were sent over 7 years ago so it is hard to remember exactly what was in my mind at the time. I thought she was 16 years of age at the time because she had told me that was her age and she looked over 13 years of age when I met her at the mall. I recall that the content of some of her texts to me were not what I would expect of someone who was only 13 years of age. I appreciate that the text messages suggest that I knew that she was 13 years of age but I don’t recall thinking that was her age at the time that we were sending these messages to each other. I didn’t give it as much thought as I should have at the time. If I could take those text messages back I would, and I am sorry for them.

[58] Mr Brown’s assertion that he thought complainant 3 was 16 years old is not supported by the text messages. Mr Brown had met the complainant earlier in the day at a shopping mall. The text messages commenced on 18 September 2010 at 18:25. In the course of the text messages, he asked her “... wats ur last nd age. Il ad u n our lst?”. The complainant immediately answered, providing her name and saying “and im 13 till March”. This plainly is inconsistent with complainant 3 having told
Mr Brown her age earlier when they met in the mall. He would not have needed to ask her age if he had been told earlier in the day that she was 16 years old. In any event, Mr Brown continued sending text messages to complainant 3 and they became increasingly inappropriate. In later text messages, Mr Brown said that he thought that complainant 3 was about 17 years old. She replied that she wished she was, but that she could not look that old. In a later text, complainant 3 asked Mr Brown whether he liked her. He replied that she was cute, but that she was seven years younger than him. He was 20 years old at the time. The text messages resumed the following morning on 19 September 2010. There were then various text messages of an openly sexual nature. The complainant repeated in the course of the text messages that she was 13 years old.

[59] It is only relatively recently that Mr Brown has made a more concessionary statement. In an affidavit filed on 15 February 2018, he said as follows:

I said to the interviewing panel of the NZLS that at the time of texting complainant 3 I believed she was 16 years of age. I also said that to the police in 2012 when I was interviewed in the course of the employment investigation.

My explanation was based on the recollection of what I thought at the time that the text messages were sent. I still don’t recall thinking that she was 13 years of age at the time as my recollection is that I thought she was older. I’ve explained the reasons for that in my previous affidavit. However, having read the text messages ... I believe I must have been aware at the time that she was 13 years of age.

I accept that the text messages were completely inappropriate and apologise for sending them. All I can say is that they were sent many years ago when I was young and immature. I can assure the Court that I’m a different person now and would not conduct myself in the same manner now or in the future.

[60] There is force in Mr Collins’ submission that this is a last-minute change of mind. In my view, the text message exchanges do not permit any uncertainty or confusion about the complainant’s age. She clearly stated that she was 13 years old and more than once. The text messages are inconsistent with Mr Brown’s version of events that the complainant had earlier told him that she was 16 years old. Mr Brown’s insistence that he thought that complainant 3 was 16 years old, in the face of text messages clearly indicating to the contrary, suggest that he was dishonest in the answers he gave to the police interviewers, and in the information he gave to both his employer and, at least initially, to the Society. It is noteworthy that Mr Brown has still
not told Ms Hughes that he must have known complainant 3 was only 13 years of age. These matters raise a concern as to whether Mr Brown is a fit and proper person to be admitted.

[61] Similar concerns about Mr Brown’s honesty also arise in relation to the allegations made by complainant 4. The text message exchanges between Mr Brown and this complainant occurred mainly over the period 4 July 2010 to 7 August 2010, although Mr Brown persisted with text messages to complainant 4 until 22 August 2010. The key texting exchanges occurred between 11pm on 9 July and 2am on 10 July. It is clear from the text messages exchanged at the time that Mr Brown was seeking to rendezvous with complainant 4 for a casual sexual encounter. Mr Brown accepted in cross-examination that the text messages “look[ed] that way”. He nevertheless denied that he had taken her back to his home, had sexual relations with her, and then returned her to her home the following morning. As noted above at [11], complainant 4 gave a statement to the police. In the course of that statement, she drew sketches showing the layout of Mr Brown’s home and his bedroom. Mr Brown could not explain how complainant 4 could have drawn those sketches if, as he claims, she has never been to his house. His response, when it was put to him that the sketches suggest that he was being less than honest when he denied taking complainant 4 back to his house, was that the sketches:

... [do] not correctly show the position of the front door. There was a side door that led into a separate laundry area and then into the kitchen.

When he was cross-examined about this issue, Mr Brown accepted that there were similarities, but nevertheless asserted that the sketches did not depict exactly the floor plan of his house.

[62] Again, there is reason for concern about Mr Brown’s candour in discussing the allegations made by complainant 4. It seems inherently unlikely that complainant 4 could have drawn the sketches unless she had been to Mr Brown’s home.

Conclusion

[63] The key point of this analysis is, of course, the enquiry into Mr Brown’s status as a fit and proper person for admission as a barrister and solicitor.
[64] In my judgment, there are justifiable concerns in this regard. I note the following:

(a) Mr Brown has sought to downplay his prior inappropriate conduct, eg. in his letter of 28 April 2017 and in his email of 1 May 2017. This suggests a lack of insight by him.

(b) Mr Brown has sought to deflect attention from his own conduct, eg. he asserted that during the employment investigation he was denied a fair opportunity to put his side of the story.²³ By way of further example, when Mr Brown became aware that two of the allegations made against him in the course of the employment investigation had been upheld, his immediate reaction was to seek to get the record corrected on the basis that no disciplinary hearing had been held.

(c) Mr Brown has not been as candid as he should have been with the Society.

(d) A reasonable conclusion can be drawn from the text messages exchanged with complainant 3 that Mr Brown has been less than honest about his knowledge of complainant 3’s age to his employer, to the police in the two interviews, and to the Society in his affidavit of 19 December 2017.

(e) Similar concerns about his lack of candour arise in relation to complainant 4.

[65] A candidate for admission must be a person of integrity and trustworthiness, in his or her dealings with the public, with clients and with the institutions of the law, including this Court.

²³ It is clear from reading the transcript of the interview that Mr Brown was given every opportunity to put his version of events. He was accompanied during the interview by his counsel, Mr Simmonds.

[66] Had Mr Brown been more open in his disclosures to his employer, the police and the Society, I would have been prepared to accept that his character has reformed and that he has put the frailties of his past behind him. However, I am not persuaded that Mr Brown has been as candid as he should have been in his disclosures, or that even yet he fully appreciates how inappropriate his conduct was in 2010. In my judgment, Mr Brown has sought to minimise the events of 2010. There is reason to doubt whether he has fully reformed and whether his earlier frailties in his dealings with young women are yet spent.

[67] Mr Brown has not satisfied me that he is a fit and proper person to be admitted as a barrister and solicitor of this Court. His application for admission is declined.

Costs

[68] I do not know whether the Society seeks costs and/or disbursements. If it does, I make the following directions:

(a) The Society is to file a memorandum setting out the costs/disbursements it seeks within 10 working days of the date of release of this judgment.

(b) Mr Brown is to file a response within a further 10 working days.

(c) Memoranda are not to exceed five pages.

I will then deal with the issue of costs and/or disbursements on the papers, unless I require the assistance of counsel.








Wylie J

Solicitors/counsel:

Steindle Williams Legal Ltd/P Davey, Auckland

Senior Solicitor Regulatory, New Zealand Law Society/P Collins, Auckland