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

Lincoln v New Zealand Law Society [2018] NZHC 3050 (23 November 2018)

Last Updated: 27 November 2018

JUDGMENT OF DUNNINGHAM J

Introduction

[1] The applicant, Richard Lincoln, seeks to be admitted as a barrister and solicitor of the High Court of New Zealand. The New Zealand Law Society (the Law Society) opposes the application. It says Mr Lincoln cannot satisfy the Court that he is of good character and a fit and proper person.¹

[2] In April this year Mr Lincoln applied to the Canterbury-Westland branch of the Law Society for a certificate of character.² As a consequence of advertising the application to the profession through the Law Society’s website, a letter was received from a barrister identifying concerns about Mr Lincoln’s fitness to practice. The Law Society then made further enquiries, including interviewing Mr Lincoln.

¹ As required by s 55 Lawyers and Conveyancers Act 2006.

² Under r 5(1)(b) Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008.

LINCOLN v NEW ZEALAND LAW SOCIETY [2018] NZHC 3050 [23 November 2018]

Although those enquiries had not reached the point where the Law Society had made a decision to refuse a certificate of character, Mr Lincoln chose to file his originating application for admission in the High Court without one. That triggered the requirement for the Law Society to oppose the application, which the Law Society has duly done.³

[3] There is no dispute that Mr Lincoln has the qualifications for admission prescribed by the New Zealand Council of Legal Education and otherwise meets the statutory requirements of the Lawyers and Conveyancers Act 2006 (the Act). What is at issue is whether he is a fit and proper person to be admitted as a barrister and solicitor of the High Court as required by s 49(2)(b) of the Act.

Factual background

[4] Mr Lincoln is now 56 years of age. He has worked in a variety of occupations over his life, including in the automotive and hospitality industries. He also owned an information technology business in Palmerston North from 2001 to 2010. However, at a mature age, he embarked on a law degree, completing that over seven years, then completing his professional legal studies with the College of Law in early 2018. During his studies he has also worked as a process server and undertaken legal research work for barristers.

[5] Alongside Mr Lincoln’s passion for the law, he also has an interest in firearms. He has combined these interests by advocating on firearms policy and legislation, both in public forums and in the courts.

[6] One manifestation of his advocacy work is his role in establishing the National Shooters Association (NSA) in around 2009, which he explains was purposely set up to be “militant, acerbic and outspoken but always operating within the law”. He says the NSA was modelled on the approach taken by the National Rifle Association in the United States because it had achieved greater success than the moderate approaches by other gun lobby groups in jurisdictions such as the UK and

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

Australia. The NSA has a Facebook page to which Mr Lincoln and others are contributors.

[7] Another example of Mr Lincoln’s advocacy for firearms owners includes taking two cases to the High Court with the purpose of clarifying how the New Zealand firearms legislation should be applied.

[8] In Lincoln v Police, Mallon J made declarations which upheld Mr Lincoln’s submission that the police were erroneously categorising some firearms as having a “military pattern free-standing pistol grip” when they did not.⁴ In Lincoln v Commissioner of Police, Mr Lincoln sought a wide range of declarations on issues concerning procuring, importing, possessing and using military-style semi-automatic weapons under the Arms Act 1983.⁵ Panckhurst J declined to make some of the declarations sought for various reasons, including where the Judge considered the issue was better determined in the context of an actual, rather than hypothetical, fact scenario. However, the Court did make a declaration in Mr Lincoln’s favour stating that a permit to procure under s 35 of the Arms Act was not required where a person modifies an existing semi-automatic firearm to create a military semi-automatic firearm.

[9] Through his role with the NSA, and through the success he has had in obtaining declaratory judgments in the High Court over issues relating to the administration of the Arms Act, Mr Lincoln has developed a profile in the field of firearms advocacy. He is hoping to practice in this area if he is admitted as a barrister and solicitor.

[10] However, primarily as a result of events that have followed an incident which occurred in 2015, an objection was raised to Mr Lincoln’s application for admission. It is necessary to provide some detail about those events to give context to it as it forms the basis for the Law Society’s opposition.

⁴ Lincoln v Police HC Palmerston North CIV-2009-454-473, 1 March 2010.

⁵ Lincoln v Commissioner of Police [2013] NZHC 1813.

The events of September 2015 and the aftermath

[11] Mr Lincoln holds a firearms licence with an E endorsement.⁶ In September 2015, he had arranged to deliver a Heckler & Koch SL8 firearm (the SL8) to a gunsmith in Christchurch to be worked on. While taking the SL8 to Christchurch from Timaru on 17 September 2015 he made two stops, one to purchase petrol and, later, to use a public toilet. Rather than leave the SL8 unattended in the locked car, he carried it with him on both occasions. Two witnesses were sufficiently alarmed by this that they contacted the police and provided Mr Lincoln’s car description and registration number.

[12] As Judge Maze noted in a subsequent judgment,⁷ once they received these reports, the police would inevitably have wanted to make enquiries to satisfy themselves that all was in accordance with the law and the interests of public safety, particularly given the recency with which an armed man had gone to the Ashburton offices of WINZ, where he shot three staff members, killing two of them.

[13] What happened next was described in the judgment of Judge Maze as follows:

[5] Senior Constable Manning aided by two other officers performed an “armed stop” of Mr Lincoln’s car just north of Dunsandel. Mr Lincoln is charged with obstruction of that officer. While this was happening, Sergeant Sutherland entered Mr Lincoln’s home in Timaru (the first search). Mr Lincoln was arrested at Dunsandel and taken to the Ashburton police station. He was examined by a mental health assessor and then interviewed by Constable O’Reilly. He was admitted to police bail at about 4 pm, with a condition he must surrender any firearms in his possession to the police. He was driven back to Dunsandel to collect his car. In the mean time Timaru police were asked by Ashburton police to again enter, and search, Mr Lincoln’s home (the second search).

[6] Mr Lincoln drove home to [address deleted]., Timaru, arriving about

6.30 pm. He met Sergeant Manson on arrival at his home. He informed her he would not surrender any firearms in his possession. She stated she considered he was mentally unfit to have possession of firearms at that time, and she would search and seize any firearms at the address under the Search and Surveillance Act (the third search). Mr Lincoln then discovered that someone had been into his home that day unlawfully. He complained he had been the subject of burglary. When asked to do so, he assisted the police to open the gun safe in the house, stating however his view their actions were unlawful. He started filming the police officers while they moved about his home.

6. An E endorsement allows Mr Lincoln to possess military-style semi-automatic weapons under certain conditions.

⁷ New Zealand Police v Lincoln [2017] NZDC 15411.

Sergeant Manson required him both to stop filming them and to remain quiet while she did certain things. He did as she required. Police seized a Hatsan shotgun (the Hatsan shotgun) and a Panther DPMS rifle (the DPMS rifle) in that third search.

[14] Mr Lincoln was subsequently charged with various offences, including obstruction of Senior Constable Manning while he was in the execution of his duty, unlawfully possessing and carrying the SL8 and unlawfully possessing military-style semi-automatic weapons (the Hatsan shotgun and the DPMS rifle).

[15] The charges went to hearing on 19 and 20 June 2017. The charges in relation to the SL8 were dismissed at the outset when the police offered no evidence to support them. In her subsequent judgment the Judge found against the police on the balance of the charges. She held the charge of obstruction was not proven beyond reasonable doubt and the other charges depended on inadmissible evidence and, in any event, the evidence which was to have been relied on would have been insufficient to prove the charges. In short, the prosecution was entirely unsuccessful.

[16] Furthermore, in her judgment on Mr Lincoln’s subsequent application for costs under the Costs in Criminal Cases Act 1967, the Judge was critical of the police.⁸ She said:⁹

This prosecution was pursued without proper consideration of all relevant matters because police had not properly complied with all duties. It is clear that Mr Lincoln did not bring the prosecution on his own head. He told the officers at the roadside in Dunsandel the basis for his defence to any charge of unlawful possession; they refused, from then to trial, to consider it. He plainly co-operated with the psychiatric assessments; it is just that police elected to ignore the outcome.

Judge Maze awarded Mr Lincoln costs totalling $11,255.38.

[17] That was not the end of the matter however. Mr Lincoln says that, following the events of September 2015, he was the subject of ongoing harassment from police in Timaru, saying they were “regularly sitting outside my property, following me around Timaru”.

⁸ Lincoln v New Zealand Police [2017] NZDC 23625.

⁹ At [14].

[18] In late 2017, following the dismissal of the charges against him, Mr Lincoln served proceedings on Senior Constable Manning at his home. Mr Lincoln arrived wearing what Senior Constable Manning understood was a black stab proof vest, although Mr Lincoln explained it was a vest with a built-in camera. Service of the documents was also filmed from a video camera set-up in Mr Lincoln’s car.

[19] Mr Lincoln says that he then had a further visit from police to the campground where he lived on the rural outskirts of Christchurch. He says they started “banging on the side of [my] motorhome” and said that they wanted him to come out and talk. It seemed that they wanted to talk about him “serving papers on Jim Manning”. He locked himself in his vehicle and says they eventually left. It was following this incident that he placed a post on the NSA Facebook page. The text of the post read as follows:

The criminal offender, JAMES ANDREW MANNING who works for the NZ police gets a fraction of his comeuppance.

Normally these videos remain undisclosed because they are proof of service records only. But in this case the video is made public because James Andrew Manning is a violent and dishonest criminal offender who remains at large.

Manning’s offending includes assault and battery, kidnapping, perjury, attempting to pervert the course of justice and various offences under the Criminal Procedure Act.

The public need to be aware that this offender is at large in our community and in spite of his offending, remains a serving member of police.

He lives at [ ... ] and works at Lincoln police station. This is his Facebook page [ ... ].

and this is his wife’s Facebook page:

[ ... ]

The public are warned that this offender is dangerous, unpredictable and should not be approached. If engaging with him, make sure you have a camera recording.

(personal details contained in the original post are omitted)

[20] Underneath this commentary, Mr Lincoln provided a link to the video of him effecting service on Senior Constable Manning which he had uploaded to a public
video sharing website. The video was accompanied by a song by Ozzy Osbourne entitled “Dog, The Bounty Hunter”.

[21] At around the same time, Mr Lincoln also sent a message through the Facebook Messenger service to Senior Constable Manning’s wife. It read as follows:

When the for sale sign goes up on your house and the receivers come in, remember that your husband is the one to blame. While you’re struggling to make ends meet for your kids, he will probably be serving time in a nice cold prison cell for assault, kidnapping and perjury.

How did you ever wind up marrying a lowlife scumbag thug?

[22] Mr Lincoln says there was then a further visit to his motorhome from police during which they again called out to him saying that they wanted to speak to him and, according to Mr Lincoln, they stuck a screwdriver under the door of his motorhome breaking the weather seal on it. Mr Lincoln does not know who the police officers were as he remained inside his motorhome. The following morning he contacted the District Commander about the visits and he accepts that that appeared to be effective in stopping any further visits.

[23] The document served on Senior Constable Manning was an application to join him as a defendant to a civil claim Mr Lincoln was bringing against the Attorney-General, in relation to the events of September 2015. While joinder did not proceed, the civil claim that he proposed bringing against Senior Constable Manning was settled in May 2018 on a confidential basis.

[24] In June 2018, Mr Lincoln sent the following apology by email to Mrs Manning, via Mr Manning’s lawyer, Mr Tim Mackenzie:

With her consent, I want to apologise to Mrs Julie Manning. I used Mrs Manning instrumentally to achieve ends aimed at her husband. It was wrong of me to do so and I apologise. I would be grateful if you would communicate that.

The private prosecution of Senior Constable Manning

[25] However, that was not the end of the matter from Mr Lincoln’s perspective. Two months after resolving the civil claim, he filed seven charging documents against
Senior Constable Manning in the District Court at Christchurch. Five of the charges related to the events on 17 September 2015, being charges of aggravated assault, assault with a weapon, commission of a crime with a firearm, kidnapping, and wilfully attempting to obstruct, prevent, pervert, or defeat the course of justice. The sixth charge of wilfully attempting to obstruct, prevent, pervert, or defeat the course of justice related to the statement Senior Constable Manning made on 21 September 2015 about the 17 September events. The seventh charge, again of wilfully attempting to obstruct, prevent, pervert, or defeat the course of justice, related to the evidence Senior Constable Manning gave in the District Court at Timaru.

[26] As required by s 26 Criminal Procedure Act 2011, the District Court had to make a decision as to whether to accept the charging documents for filing. After an opportunity for both Mr Lincoln and the proposed defendant to file submissions on this issue, Judge Garland issued a decision directing that the charging documents not be accepted for filing.¹⁰ While the Judge acknowledged that, prima facie, there was sufficient evidence to justify a trial in relation to the charges, he accepted the submission of counsel for Senior Constable Manning that the motives of the prosecutor were tainted as Mr Lincoln was bringing the charges in an attempt to “humiliate, embarrass or otherwise extract revenge on Mr Manning”. He considered that the tenor of the Facebook message sent to Senior Constable Manning’s wife made it clear that Mr Lincoln was not the “disinterested prosecutor” required by the criminal justice system. Furthermore, the content of the service video, and the decision to share it online, indicated that Mr Lincoln had a desire to embarrass or humiliate Senior Constable Manning in the eyes of his family and the public. He also considered the material Mr Lincoln had posted on Facebook supported his view that Mr Lincoln was using the criminal justice system to extract revenge on those whom he believes have wronged him.

[27] Judge Garland also held that the charges were “excessive and duplicitous” and did not reflect the requirement that in the Solicitor-General’s prosecution guidelines that “the number and seriousness of charges should adequately reflect the criminality of the defendant’s conduct”. In his view, the number of charges, three of which all

¹⁰ Lincoln v Manning [2018] NZDC 20025.

related to the same factual occurrence, demonstrated that Mr Lincoln was making “a mountain out of a molehill”. He concluded that:

Mr Lincoln’s attempt to use the criminal law to extract revenge for the perceived wrongs he has suffered is misguided. It would tarnish the integrity of the Court to accept these charging documents for filing.

The application for admission

[28] When Mr Lincoln applied for admission as a barrister and a solicitor, these issues were brought to the attention of the Law Society by Mr Mackenzie, the solicitor acting for Senior Constable Manning. He identified that in making the disclosure he was guided by the fact that if Mr Lincoln was a practicing lawyer, he would be compelled to make a misconduct report.

[29] In addition, Mr Mackenzie identified that Mr Lincoln may have been using a misleading description of himself, suggesting that he had special expertise in areas of law contrary to s 22(2) and (3) of the Act. He referred in particular to an advertisement on the NSA Facebook page where Mr Lincoln’s photograph is headed by a quote attributed to “Abraham Lincoln (Lawyer 1809-1865)” which reads: “I may walk slowly but I never walk backwards” and below it Mr Lincoln offers the following services: “Firearms law advocacy, Employment, civil and criminal law”. His contact details include reference to “Otautahi Chambers”, where the barrister he proposes to work for is located.

[30] Because of the concerns raised by Mr Mackenzie, Mr Lincoln was interviewed by two senior Christchurch lawyers as part of the Law Society’s enquiry into his status as a fit and proper person to receive a certificate of character. A transcript of that interview was provided as part of the evidence before this Court, along with the report of the interviewers. They reached the following conclusions:

In the present case we again acknowledge that this is not a situation where the candidate has criminal convictions. However the conduct which concerns us is of such recency to his application for admission and, coupled with his responses to questions in relation to the Facebook posts, cannot be satisfied that the motivation for his conduct is “entirely spent” and might not re-occur if the applicant is tested again.

We did not feel able to recommend the issue of a certificate of character at this stage and recommend to the Council that the application be referred to the [Practice Approval Committee] for consideration.

[31] Although Mr Lincoln was given an opportunity to respond to the interviewers’ report, he declined that opportunity and, instead, elected to apply to this Court for admission without a certificate of character, under r 6 of the Lawyers and Conveyancers Act (Lawyers Admission) Rules 2008 (the Admission Rules).

[32] Mr Lincoln’s application was supported by his own affidavit which confirmed:

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

(b) he was a fit and proper person to be admitted as a barrister and solicitor of the High Court of New Zealand relying on:

(i) the absence of a criminal record;

(ii) attached references from four people who knew him, including a practicing barrister, Michael Starling (who proposes to employ Mr Lincoln), and David Wood, a retired barrister and solicitor; and

(iii) the absence of adverse matters arising in connection with his legal education.

[33] The application was made without the requisite certificate of character, although Mr Lincoln advised the Law Society that should it issue him with a certificate prior to the matter being heard in Court, an amended application, without notice, would be filed. However, the Law Society took the view that once the requirements under r 6(4) of the Admission Rules were triggered, the Law Society could not continue to process the application internally (where it was required to keep an open mind about it) but had to oppose the application.
[34] The affidavit filed by the regulatory solicitor of the Law Society’s Practice Approval Committee noted the following matters as relevant to the Law Society’s opposition to the application for admission:

(a) Mr Lincoln’s Facebook postings and his dealings with the police officer and his wife which were inappropriate for a person of a mature age seeking to be admitted to the legal profession;

(b) the impression that he did not appreciate that his conduct was inappropriate, or show any remorse or insight, despite being prompted by the interviewers to do so;

(c) his harassment of the police officer’s wife which showed a significant lack of judgement, and the impression that his explanations to the interviewers were unconvincing and implausible;

(d) the way in which he had promoted himself as providing legal services were thought to be misleading, suggesting to the public that he was a practicing member of barristers’ chambers, possibly breaching s 22 of the Act; and

(e) his character references were minimal in content and did not outweigh the legitimate concerns about his character, prompted by the material disclosed in Mr Mackenzie’s letter.

The legal framework for admission as a barrister and solicitor

[35] Admission as a barrister and solicitor is governed by ss 48 to 55 of the Act, along with the Admission Rules. These provisions must be interpreted and applied in light of the purposes of the Act set out at s 3 of the Act. Relevantly, these include:

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

(b) to protect the consumers of legal services; and
(c) to recognise the status of the legal profession.

[36] Section 4 sets out the fundamental obligations of lawyers. These are:

(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; and

(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.

[37] Under the normal route to admission, found in s 49(2), a candidate for admission as a barrister and solicitor must:

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

(b) be a fit and proper person to be admitted as a barrister and solicitor of the High Court.

[38] The second requirement is usually satisfied by applying to the Law Society for a certificate of character.¹¹ That certificate is sufficient evidence of the candidate’s status as a fit and proper person for admission, in the absence of proof to the contrary.¹²

[39] Section 55 provides statutory guidance for determining whether a person is a fit and proper person to be admitted. Relevantly, it includes the following:

¹¹ Lawyers and Conveyancers Act (Lawyers: Admission) Rules, r 5(1)(b).

¹² Lawyers and Conveyancers Act, s 51.

(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:

(b) whether the person has, at any time, been declared bankrupt or been a director of a company that has been put into receivership or liquidation:

(c) whether the person has been convicted of an offence in New Zealand or a foreign country; 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:

...

(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.

[40] 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 applicant. In deciding whether the applicant is a fit and proper person, the various matters set out at s 55(1) are not expressed to be mandatory considerations, nor do they limit the enquiry that I can make.

[41] I was referred to a wide range of caselaw which articulated the standards of conduct expected from a barrister and solicitor and which guide my consideration of what constitutes a fit and proper person to be admitted as one. It is sufficient, in my

view, to cite Kitto J in Ziems v Prothonotary of Supreme Court of (NSW), where he said:¹³

[T]he Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretentions. 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.

[42] While that articulation of the standard required arose in the context of whether a lawyer should be disbarred, it is equally applicable to the question of admission.

[43] A recent statement of the relevant principles applying to the enquiry into a candidate’s fitness for admission can be found in Brown v New Zealand Law Society.¹⁴ In that case Wylie J summarised them as follows:

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

(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.

(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.

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

(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”.

(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 (footnotes excluded).

¹³ Ziems v Prothonotary of Supreme Court of (NSW) [1957] HCA 46; (1957) 97 CLR 279 at 298.

¹⁴ Brown v New Zealand Law Society [2018] NZHC 1263, [2018] NZAR 1192 at [39].

[44] In undertaking the assessment, I also bear in mind that this analysis involves a “forward looking” focus as I am assessing the candidate’s “worthiness and reliability for the future”.¹⁵

The Law Society’s submissions

[45] The Law Society focused on the Facebook post and messaging as being the more serious adverse indicators as to Mr Lincoln’s status as a fit and proper person. Mr Collins noted that the description, or mis-description, of Mr Lincoln’s vocational status in the advertisement posted on the NSA Facebook page did not, of itself, amount to disentitling behaviour. It simply showed a lack of judgment and a tendency to test the limits of legitimacy, rather than significant moral frailty.

[46] However, Mr Collins submitted that the Facebook post and messaging relating to the Manning family were inappropriately aggressive and intrusive, and were improper by any standard of decency or rectitude, but especially by the standard of a person wishing to attain the status of an admitted lawyer and officer of the Court. In particular, Mr Collins referred to the intemperate references to the police officer as a “violent and dishonest criminal offender who remains at large”, the publication of the police officer’s home address and the links to both his and his wife’s Facebook pages, the sensationalist posting of the video recording of the process serving operation, and the intimidating and distressing Facebook message to the police officer’s wife which ended with the comment “how did you ever wind up marrying a lowlife scumbag thug?”

[47] While not directly attributed to Mr Lincoln, Mr Collins also pointed out that other postings on the NSA Facebook page were objectionable and, to the extent Mr Lincoln was associated with them, they reflected poorly on him. These included a photograph of a named police officer depicted in a Nazi uniform with the words “I am a liar and should not be trusted” and another headshot photograph of a second police officer involved in the events of September 2015, which bore the inscription “bent cop” following the policeman’s name.

¹⁵ Re M [2005] 2 NZLR 544 at [21].

[48] Mr Collins also noted that the intemperate and aggressive attitude and language of these posts was similar to Mr Lincoln’s correspondence with the police some 24 years earlier. That correspondence was set out in a decision of Judge Pethig in the Nelson District Court in August 1994¹⁶ where the Judge upheld a decision to revoke Mr Lincoln’s firearms licence. By way of example, in a letter dated 29 July 1993 sent to Commissioner McDonald, concerning the District Commander, Mr Lincoln said:

This lunatic is your responsibility and it is in your authority to do something about it.

In another letter dated 12 August 1993 to Commissioner McDonald, Mr Lincoln said:

Some serious questions must be raised about [the District Commander’s] inane ramblings of my former partner having grounds for a non-molestation order, perhaps I should apply for special leave from the Ministry of Justice to obtain a non-molestation order against [him]?

[49] Mr Collins pointed out that the District Court Judge reached the view that the letters showed Mr Lincoln’s reaction to ordinary events was “grossly exaggerated”.

[50] Mr Collins submits that the totality of the evidence shows there is legitimate cause for concern about a frailty in Mr Lincoln’s character rendering him unfit for admission as a barrister and solicitor. In particular, the evidence calls into question:

(a) his capacity to deal reasonably and dispassionately with law enforcement agencies when he is under pressure, whether in relation to his own interests or, if he was a lawyer, the interests of a client;

(b) his capacity to treat others with respect and courtesy when under pressure; and

(c) the risk he poses to the public and to the legal profession, in bringing the profession into disrepute by engaging in threats, intimidation and menace, inappropriate in a lawyer.

¹⁶ While a copy of the decision was produced by the Law Society, it did not contain a Court file reference and enquiries of the District Court at Nelson have failed to provide a reference number for citation.

[51] This is not a case, in the Law Society’s submission, where Mr Lincoln can blame youthful or immature impulse for his actions as he was in his mid-fifties at the time of the Facebook post and message. Furthermore, it could not be said that his conduct resulted from a “rush of blood to the head” as the Facebook post required deliberation and forethought.

[52] In summary, the Law Society submits that the Facebook post and message indicate a serious frailty of character, particularly as they were the product of a mature personality and fully formed character who had almost completed his legal training at the time these events occurred. The frailty of character, involving unconstrained aggression, insult and threats, echo his dealings with police as long as ago as 1993. That tells against it being a one-off aberration. Furthermore, it illustrates a temperament which is ill-suited to the practice of law.

[53] The Law Society submits those concerns are sufficiently serious to justify the dismissal of his application.

Mr Lincoln’s submissions

[54] Mr Lincoln responded in detail to the matters raised in the Law Society’s affidavits. He filed four affidavits in these proceedings responding to the evidence adduced by the Law Society. I also had the transcript of his interview with the two delegates of the Law Society who interviewed him and he was cross-examined by Mr Collins at the outset of the hearing.

[55] I should say, at the outset, that Mr Lincoln impressed me as an intelligent, logical person. His submissions were thorough and well organised and he was poised and articulate in the courtroom. However, that simply reflects that he has some of the attributes required of a lawyer, which is undoubted.

[56] Mr Lincoln’s submissions referred to the affidavit evidence given in support of his application, noting that it demonstrates that he meets all of the considerations in s 55(1) including, in his submission, that he is of good character. In particular, he referred to the affidavit evidence from Mr Woods, a retired lawyer, and Mr Starling, a practicing lawyer, both of whom support his application for admission. He also
referred to the evidence of Mr Tippett, a former employer, who described Mr Lincoln as “dependable, supportive, resourceful and hard working”.

[57] In his interview with two Law Society representatives he denied responsibility for posting the advertisement in which he offered services in various fields of law, saying his niece had prepared it and it was “put up prematurely”. He said when it was drawn to his attention, he had it taken down. In cross-examination he denied responsibility for the other NSA Facebook posts which made derogatory comments about the police, including the post which described the South Canterbury team as “incompetent” and a specific member of that branch as a “bent cop”.

[58] Accepting that his Facebook post and message were the primary cause of the Society’s concern, Mr Lincoln acknowledged that they were “inappropriate” and demonstrated a “lapse of judgment”. However, he submitted that such conduct can only be elevated to evidence of a defect or frailty of character by a repeated pattern of similar behaviour which he says is not present in this case. Furthermore, the events occurred almost a year ago and have not been repeated despite what he described as “virtually identical provocation occurring less than two months after the original provocation” (by which he was referring to the second visit from police to his motorhome).

[59] He compared his “infraction” with that in Re Gazley, where Mr Gazley was found to have plagiarised in the course of his law studies, and suggested that that case was “arguably more serious” because it occurred in the context of the candidate’s law studies.¹⁷ He also submitted that his behaviour was less serious than that in a case discussed in LawTalk, where a practicing lawyer threw a file across a desk and swore at the prosecutor when the Registrar’s Court was in session and then had a further confrontation with Court staff where the lawyer swore at them and threatened to sue.¹⁸ In that case the lawyer was fined and censured. By comparison he says his behaviour is not sufficient to deny him admission, if comparable behaviour would not warrant striking off.

¹⁷ Re Gazley HC Wellington CIV-2011-485-1776, 26 October 2011.

¹⁸ “Rudeness to prosecutor and court staff” (2017) 906 LawTalk.

[60] He considers that his “lapse in judgement” should be characterised as a “significant, but not serious” lapse. He says he now realises that dealing with Senior Constable Manning in the way he did was ineffective and has now taken a different and “more moderate and responsible approach”. He has also resolved his proposed civil claim against Senior Constable Manning and offered an apology to Mrs Manning.

[61] For these reasons, he submits that the Court can be satisfied that there is no risk of future misconduct or potential harm to the profession’s reputation.

Discussion

[62] There is no doubt that the material which was brought to the Law Society’s attention displays a serious lack of judgement. Indeed, if he were a practising lawyer, I consider it would warrant referral to the Disciplinary Tribunal as misconduct which may risk striking off. The issue is whether, as Mr Lincoln suggests, it constitutes a one-off lapse of judgement, which cannot be categorised as so serious to warrant declining admission or, if it is, whether Mr Lincoln has sufficiently distanced himself from it that I can be confident it is behaviour which would not be repeated in practice.

[63] For several reasons I have not reached that threshold.

[64] The conduct was not, in my view, a one-off “complete brain meltdown” as Mr Lincoln sought to characterise it in cross-examination. Rather, the post relating to Senior Constable Manning was the consequence of considerable planning. It required planning to set up the filming of the service of documents. It required further planning to add a pointedly named soundtrack to the video. It required research to track down the personal information which was included about the Manning family in the Facebook post. Finally, it required planning to complete the Facebook post including a link to the uploaded video.

[65] His NSA Facebook post and subsequent message to Mrs Manning was clearly designed to threaten and intimidate. However, Mr Lincoln showed little, if any, appreciation of this. When questioned by the interviewing lawyers on behalf of the Law Society and asked what justification there was to publish the link to Mrs Manning’s Facebook page, Mr Lincoln accepted there was no justification for it,
but said “I don’t see it as having a go at her in any way”. He also denied that putting personal contact details for the Manning family on the Facebook post could be seen as an invitation to NSA members to engage in harassment of those people.

[66] Similarly, when asked whether the message to Mrs Manning was intended to inspire fear in her about the wellbeing of her children, he avoided answering that, simply saying “it was intended to convey to her the possible consequences of Mr Manning being imprisoned for his offending”. These answers demonstrated, in my view, either an inability, or an unwillingness, to acknowledge how his actions were perceived by others.

[67] It is telling, too, that Mr Lincoln only offered an apology to Mrs Manning, after he had been interviewed by the Law Society and when it was clear that his behaviour put his admission at risk. Had it truly been an isolated lapse of judgement in response to “exceptional circumstances”, as Mr Lincoln describes it, one would have expected an appropriate apology to have followed promptly, as soon as his senses returned. Instead it was offered in muted terms, more than half a year after the offending behaviour had occurred.

[68] I also take into account that the Facebook post was made at a time when Mr Lincoln had almost completed his legal studies. Indeed, he had already started his professionals course at that stage. The fact that he understood the responsibilities of an officer of the Court by then, and the high standards of independence and rectitude to be shown by lawyers, exacerbates the lapse of judgement illustrated by these actions. Furthermore, his assertions that Senior Constable Manning had committed a range of serious offences, without yet having been tried for them, were more egregious given his legal training than they would be coming from someone who was untrained. It is also behaviour that I suspect Mr Lincoln would be quick to condemn if he was the subject of it.

[69] I consider Mr Lincoln’s zealous pursuit of the constables involved in the 2015 incident also reflects a lack of independence and judgement. While I acknowledge that fearlessness is an admirable attribute in a lawyer, particularly in a criminal lawyer, that quality must be tempered by objectivity and judgement. Here, however,
Mr Lincoln was not content to be vindicated by Judge Maze in the District Court, nor was he content when his civil proceedings against Senior Constable Manning were settled. He then commenced criminal prosecutions against two of the officers involved in the prosecution against him. He has now had one of these sets of prosecutions struck out as an abuse of process, and, as a consequence, he has accepted that he cannot proceed with the other.

[70] Reprehensible as this conduct is, particularly given Mr Lincoln’s maturity and legal training, the case would be more finely balanced if I could be sure Mr Lincoln had never behaved this way before and it truly was an isolated period of behaviour triggered by the events of 2015. However, the 1994 judgment of Judge Pethig cites correspondence which shows a remarkable similarity to the intemperate and threatening nature of the more recent Facebook post and message.

[71] The judgment involved an appeal of the decision of the District Commander of the Nelson Police District to revoke Mr Lincoln’s firearms licence. The decision stemmed from allegations of family violence and volatility of Mr Lincoln’s character. As the allegations of family violence were never the subject of convictions, I ignore them entirely for the purpose of this decision. What I do not ignore is the content of letters which Mr Lincoln wrote in relation to the revocation decision. Judge Pethig described it as “extraordinary correspondence” and, having read the extracts in the judgment, I agree. Two extracts are cited in [48] above. The correspondence culminated in a letter of 12 August sent directly to the District Commander which included the following extract:

Sending Detectives to my home, enquiring about the Stoke watch-house fire, is insulting, derogatory and totally misconceived – however, probably exactly what could be expected from you. I am not amused.

You started with a false allegation that I ripped a t-shirt, then you progress to assault on a female with a knife, threatening to do grievous bodily harm with a firearm, unlawful possession of a firearm, and child abuse. Now it’s torching a police station... what next?, perhaps the Buxton Square murder?

I wish you would settle on some climax of your almost daily attempts at harassment and intimidation, it is tiring having to continually revise upward, and re-draft the claim in respect to damages.

For the next week or so, I will be in Christchurch, so in the meantime if someone again expresses the general community feeling toward the police in Nelson, don’t blame me!

The first sign of mental unsoundness (having one eye closed) is obviously effecting (sic) you. You are a sick man Mr Davies – you need help.

[72] As the Judge explains, there was an arson attempt on the Stoke police station and Mr Lincoln was one of those interviewed about where he had been at the time. While that was the only enquiry made of him, Mr Lincoln took umbrage and regarded it as further evidence of Superintendent Davies’ malice. Judge Pethig drew a conclusion which seems to me apt to describe Mr Lincoln’s response to the recent events leading to the NSA Facebook post. He said:

I have given the flavour of the letters to show the reaction of Mr Lincoln to what seemed to be ordinary events, albeit ones which he considered reflected on him. His view of all of these is grossly exaggerated in its approach.

[73] The totality of this evidence leads me to conclude that Mr Lincoln has an enduring frailty of character which has not altered with age or legal training and he is not someone who will always deal responsibly and dispassionately with those whom he considers have wronged him.

[74] Finally, I consider it is of particular concern that his intemperate behaviour has been directed at representatives of an important arm of the rule of law: the police force. While Mr Lincoln will complain that his response was prompted by equally, if not more, intemperate behaviour by members of the police, that is not the point. As a potential officer of the Court, he should be entrusted to challenge such behaviour by individual officers through the appropriate channels. He should not resort to bullying, threats or intimidation.

[75] In my view the public history of his dealings with the police would reflect poorly on the legal profession as a whole if he were admitted into practice. Indeed, I accept the Law Society’s submission that the admission of someone who has behaved in this way would risk undermining public confidence in the legal profession.

Conclusion

[76] Given the frailty of character that has been identified, which I cannot dismiss as either a one-off incident, or so far in the past that it can be discounted, I am not satisfied that Mr Lincoln is a fit and proper person to be admitted as a barrister and solicitor of this Court.

[77] Accordingly, his application for admission is declined.

Costs

[78] The issue of costs is reserved. Should the Law Society seek costs:

(a) it must file a memorandum setting out the costs/disbursements it seeks within 10 working days of the date of release of this judgment;

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

[79] Costs will then be dealt with on the papers unless I decide I need to hear from the parties.

Solicitors:

Paul Collins, Barrister, Auckland Copy to: Mr Lincoln