New South Wales Bar Association v Bryson [2003] NSWADT 19 (29 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: New South Wales Bar Association v Bryson [2003] NSWADT 19

PARTIES: APPLICANT

Council of the New South Wales Bar Association

RESPONDENT

John Henry Bryson

FILE NUMBERS: 012022

HEARING DATES: 30/09/2002-01/10/2002

SUBMISSIONS CLOSED: 18/10/2002

DECISION DATE: 29/01/2003

BEFORE: Bennett AC SC- Judicial MemberDurbach A - Judicial MemberMahon D - Member

LEGISLATION CITED: Crimes (Mental Health) Procedure Act 1990

Crimes (Sentencing Procedure) Act 1999

Legal Profession Act 1987

CASES CITED: Ziems -v- The Prothonotary of the Supreme Court of New South Wales [1957] 97 CLR at 290

New South Wales Bar Association -v- Hamman [1999] NSWCA 404

Wentworth -v- The New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 250-251

Allinson -v- General Council of Medical Education and Registration [1894] 1 QB 75

Prothonotary of the Supreme Court of NSW -v- Costello [1984] 3 NSWLR 201 at 20

Mitry -v- Council of the New South Wales Bar Association [2001] NSWCA 27

APPLICATION: Professional Misconduct - not of good fame and character

MATTER FOR DECISION: Principal

APPLICANT REPRESENTATIVE: APPLICANT

A Blanch, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

N Potts, barrister

ORDERS: (1) Publicly reprimands the Barrister.

(2) The Barrister be fined the sum of $10,000.00.

(3) Orders that the Barrister undertake and complete a course of further legal education by practicing under the supervision of a barrister of at least seven years' standing approved b y the Bar Association for the period of 12 months, such supervising barrister being requested to report to the Bar Association as to the Barrister's ability to practice at the end of three months, six months and 12 months. That supervising barrister should be given a copy of these reasons.

Reasons for Decision:

The Information

1 By an information under s.167 of the Legal Profession Act 1987 ("the Act"), which was filed on 24 September 2001, the Council of the New South Wales Bar Association ("the Bar Association") claims that John Henry Bryson ("the Barrister") was guilty of professional misconduct on the following grounds:

1. On or about 3 November 1999 the said John Henry Bryson, a legal practitioner at Kings Cross conducted himself otherwise than in connection with the practice of the law, in a manner that justifies a finding that he is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners in that he did possess a loaded firearm, namely a silver coloured Smith and Wesson .357 magnum revolver, in a public place, namely the Bourbon and Beefsteak Bar in Darlinghurst Road.

2. On or about 3 November 1999 the said John Henry Bryson, a legal practitioner, at Kings Cross, conducted himself, otherwise than in connection with the practice of the law, in a manner that justifies a finding that he is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners in that he did possess a firearm, namely a Glock Model 19 pistol SN CLL 621, not being authorised to do so by a licence or permit.

3. On or about 3 November 1999 the said John Henry Bryson at Kings Cross conducted himself, otherwise than in connection with the practice of the law, in a manner that justifies the finding that he is not of good fame and character or that he is not a fit an proper person to remain on the roll of legal practitioners in that he did handle a firearm, namely a Smith and Wesson .357 revolver SN BHC 8731 whilst he was under the influence of alcohol."

The Barrister's History

2 The Barrister was admitted as a barrister of the Supreme Court of New South Wales on 22 December 1983. A first practising certificate was issued on 22 June 1988 and was renewed to 30 June 1990. The practising certificate was voluntarily surrendered to work as a solicitor on 10 November 1989. The Barrister recommenced work as a barrister with a practising certificate issued on 16 June 1990; this was renewed to 30 June 1993. On 19 June 1993, the Barrister renewed his practising certificate as in interstate barrister giving an address in Southport, Queensland. By letter dated 22 December 1993, the Barrister informed the Bar Association President that he had suspended practice. The Barrister renewed his practising certificate as an interstate barrister from 25 June 1994 to 30 June 1995. By letter dated 6 September 1994, the Barrister advised a change of address to chambers in Sydney. The Barrister informed the Bar Association that, on medical advice, his practice was suspended on 7 October 1994 and he renewed his practising certificate from 24 July 1995, still with a Sydney address. The practising certificate was then renewed as an interstate barrister from 7 June 1996 with a Southport, Queensland address. The Barrister continued to renew his practising certificate with different addresses in Queensland, until 30 June 2000. His current address is in Queensland, but he has not applied to renew his practising certificate after 30 June 2000.

3 The conduct complained of concerns actions of the Barrister on or about 3 November 1999.

The Events of 3 November 1999

4 The Barrister was charged with three offences arising out of an incident at the Bourbon & Beefsteak Bar in Darlinghurst Road, Kings Cross ("the Bourbon & Beefsteak") on 3 November 1999. Those charges are substantially reflected in the information. When the matter came before Mottley SM on 30 May 2000, the Barrister applied to have all three charged dismissed pursuant to s.32 of the Crimes (Mental Health) Procedure Act 1990. The application was refused and the Barrister then pleaded guilty to all of the charges.

5 In relation to the charges of handling a firearm under the influence of alcohol and of possession of a loaded firearm in a public place, the Magistrate found both offences proved but, without recording a conviction on either charge, dismissed them pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999 on the condition that the Barrister enter into a bond to be of good behaviour for 12 months. In relation to the charge of possession of the firearm without authorisation, the Magistrate dismissed the charge pursuant to s.10.

The History of the Proceedings

6 Before the Magistrate, Counsel for the Barrister stated clearly:

"My instructions are that it [the firearm] wasn't actually in his hand in the toilet, although it may well have been observed by somebody who was standing next to him at the urinal. But that's - I am instructed that that's the circumstances under which it may have been seen, but he had a coat on, the firearms weren't visible normally but of course doing what he was doing at the time, it may have been that the security gentleman made the observation that he did."

The Magistrate expressed the view that there was little to be served in convicting the Barrister in relation to the offences and that it was apparent that at the time of the commission of the offences, he was suffering from a depressive illness. The Magistrate also relied upon the potential impact of professional disciplinary proceedings.

7 The Director of Public Prosecutions appealed against the leniency of the sentences of 30 May 2000. The appeal was heard before his Honour Judge Blanch, Chief Judge of the District Court of New South Wales, on 31 August 2000. The Chief Judge allowed the appeal, convicted the Barrister in respect of each of the three matters, but deferred passing sentence on condition the Barrister enter into a bond to be of good behaviour for a period of 12 months.

8 Blanch CJ noted the "extremely serious" nature of the offences and that the fact that the premises at which the offences were committed were public premises at which members of the public could ordinarily be expected to be. The Barrister was "well and truly in breach of even the most beneficial interpretation of the licence that was issued to him in Queensland, and his possession of the firearms in the circumstances of this case was a flagrant abuse of that licence". Blanch CJ also referred to another matter of "major significance", being the effect of a conviction on the continued membership of the Bar (at that stage in Queensland). His Honour considered those matters in the context of whether the recording of a conviction would have a totally disproportionate impact on the Barrister in the circumstances and took the view that the offences themselves were so serious that a conviction should be recorded, taking into account the circumstances that were put, including the Barrister's character as to which his Honour observed, "so far as the respondent's [the Barrister] character is concerned he is to be regarded as a person of good character". Blanch CJ convicted the Barrister but deferred passing sentence on condition he entered into a bond for 12 months.

9 The Barrister has given his version of events on a number of occasions in correspondence with the Bar Association, by affidavit in evidence before this Tribunal and in submissions made on his behalf and on his instructions before the Local Court and the District Court.

10 The Bar Association resolved on 17 August 2000 to initiate a complaint pursuant to s.134(2)(A) of the Act.

11 The Bar Association, on 14 June 2001, resolved to refer the complaint to the Legal Services Division of the Administrative Decisions Tribunal.

The Events of 3 November 1999

12 Much evidence was put before the Tribunal as to what actually did take place on 3 November 1999 at the Bourbon & Beefsteak. Most of the facts are not in dispute and it is those facts that are relevant. The Barrister had in his possession a model 19 pistol SN CL621 ("the Glock") and the Smith and Wesson .357 magnum revolver ("the Smith and Wesson") together with a magazine for the Glock. The Smith & Wesson was loaded.

13 It is not in dispute that the Barrister was licensed with respect to each firearm but the licence authorised him to carry them only for the purpose of recreational shooting and otherwise, the firearms were to remain in secure storage.

14 At about 4.35 am on that night, Mr Mew, a security manager at the Bourbon & Beefsteak, went into the men's toilets of the main bar where he saw the Barrister. Mr Mew's version of events is that the Barrister was fumbling with something inside his suit jacket. He pulled out a firearm but was not pointing it at Mr Mew. The Barrister repeatedly tried to place the firearm back into the holster but seemed to have trouble doing so and then put the firearm into his belt, barrel first with the butt of the firearm visible above the belt and fastened his jacket. As the Barrister left the Bourbon & Beefsteak, the licensee, Mr Sbrana, removed the Smith & Wesson. Shortly afterwards, two police officers arrived outside the Bourbon & Beefsteak; they placed the Barrister onto the ground and removed the magazine and Glock. From the totality of Mr Mew's evidence, the evidence of another employee of the Bourbon & Beefsteak, Mr Skinner and the Barrister's own evidence, it is apparent that the Barrister was moderately affected by alcohol at that time.

15 In his response to the Bar Association on 17 September 2000, the Barrister asserted that the firearms were "hip holstered" and stated "at no time were the firearms exposed to any member of the public". He also stated, "I note that I make an unequivocal rejection of any allegation that the conduct concerned amounts to professional misconduct".

16 The Barrister, by letter dated 9 February 2001 to the Bar Association noted that the firearms, which were normally kept and used in Queensland, were in New South Wales at the relevant time for a lawful and legitimate purpose - namely, sporting and recreational shooting.

17 The Barrister again asserted, "the firearms were not in view of any member of the public nor were they at any time able to be seen by any such person". The Barrister also denied that he, at any time, waved the firearms around and that the firearms "were only detected in my possession upon my attempted departure from the premises".

18 In evidence before the Tribunal, the Barrister continued to dispute that he had waved the firearm around in any way. He did say that, before leaving the men's toilet, he took the Smith & Wesson from the holster and placed it into his belt. When asked why he pulled it out of the holster, his response was that he did it to tuck it into his trousers because it had been sighted by the security guard.

19 Where there are differences between the Barrister's evidence of the degree to which he handled the Smith & Wesson in the men's toilet and Mr Mew's evidence, the Tribunal accepts Mr Mew's version and notes the different versions given by the Barrister or on his behalf.

20 The Tribunal accepts the evidence of Mr Mew that the Barrister did more than simply transfer the firearm from the holster to his trousers. That is not, however, really the question to be considered. The fact is that the Barrister did have the firearms on his person, that Mr Mew did see the Smith & Wesson and that there was a conversation about that firearm. The Barrister concedes that it was a "huge blunder" on his part in taking the firearms to the Bourbon & Beefsteak and asserted that he had never done such a thing before and never would again. He did not, however, readily concede that it had been an overreaction on his part to take the firearms there.

21 The Barrister's evidence as to what he did with the firearm in the men's toilet was, to a degree, unsatisfactory. He readily conceded before the Tribunal that he handled the firearm by moving it from his holster to his belt. Indeed, that is why he said he pleaded guilty. This, however, conflicts with what his counsel said to the learned Magistrate, on instructions, that the firearm was not actually in the Barrister's hand. The Barrister's explanations for the discrepancy, which varied from stating that his instructions had always been the same and in accordance with his evidence before the Tribunal, to distinguishing the facts put to the Magistrate on the s.32 application from the actual facts, were generally unsatisfactory. It is important to note, however, that the Barrister did plead guilty to handling the firearm before the Magistrate.

22 The Barrister alleged that he had, on the day in question, received a death threat with respect to defamation matters which were current, which death threat he took seriously. He then catalogued a series of assertions as to the background of his behaviour on 3 November 1999 which, as he expressed it, "caused me to take my self preservation into my own hands". The Barrister asserted that it was the accumulation and combination of threats and pressures on him, together with the fact that he had to come to Sydney to deal with his father's imminent death, that caused him to act the way that he did.

23 From the Tribunal's observations, there can be little doubt that the Barrister seems to be vividly focussed on these events, particularly with respect to the defamation actions to which he is party.

24 The Barrister filed a reply in these proceedings in which he admits that he possessed the loaded firearms in a public place, but denies that, in conducting himself otherwise in connection with the practice of law, he conducted himself in a manner which otherwise justified a finding that he is not of good fame and character and not a fit and proper person to remain on the roll.

25 In an affidavit filed in the proceedings, the Barrister gave his professional history, pointing out that he suspended his practice in New South Wales in June 2000 and has not since practised in New South Wales, having resumed practice as a barrister in Queensland in approximately October 2001. He described his connection with firearms and recreational shooting and gave a history of the defamation proceedings and what he referred to as "death threats" - including one on 2 November 1999. Much of the material to which the Barrister deposed went to his state of mind on that day. He stated that he decided "on impulse" to arm himself because he believed that his life was in danger. The Barrister points out that the Smith & Wesson, though loaded, had an effective safety catch and that the Glock was not loaded because the safety catch is not as secure as that of the Smith & Wesson. Both firearms were placed in holsters; one on his left hip and one on his right. He did not mention the fact that he took one of the firearms out of the holster in Mr Mew's presence, but stated that Mr Mew observed the firearm and that there was a conversation about it before he left. The Barrister recognised and, indeed, relied upon his mental state at the time and the fact that his judgment was seriously impaired. He subsequently obtained medical assistance, both with respect to counselling and medication. He stated that he is currently well and considers himself fit to practice and that he experiences no difficulties with the demands of full-time practice as a barrister.

26 The Barrister has tendered and relies upon a number of supporting statements and affidavits from members of the Bar in New South Wales and Queensland and other members of the community.

27 The Barrister gave evidence before the Tribunal. He spoke with passion about his defamation proceedings. In summary, the Barrister is firmly convinced that a number of different parties, from individuals (including Government ministers) to corporations, were parties from whom he had something to fear. Much of that fear was not based upon particular asserted facts, but the Barrister's evidence was that his fear extended to a concern for his physical well being. He held those views in November 1999 and still holds them today. This is despite the fact that he has had no personal communication with a number of those parties. The defamation proceedings are still current. While he did not point to any particular matter, the Barrister said that he was of the view that there was the potential for him to suffer physical harm from a person's "associates" or "agents". The Barrister alleged that certain persons, about whom he held fear, mixed with "shady characters" or that they mixed with "quasi criminal people". He said that he had received a number of death threats throughout his career at the Bar but more since he commenced defamation proceedings and that he did not know who was responsible. The Barrister said that he treated the death threat that he received by telephone on 2 November 1999 with a degree of seriousness, on the basis of the tone of voice of the person at the other end of the telephone and his belief that it was not the first time that he had heard that voice.

28 On the day in question, the Barrister made a conscious decision "not to let the death threat ruin my evening" and therefore took the firearms from the safe at the unit at which he was staying and carried them on his person to the Bourbon & Beefsteak. At the time that he decided to take the firearms with him, he did not think about whether he was about to breach the law at all; he had formed the view that if someone was to shoot at him, he was prepared the shoot back. When asked why he had taken two firearms with him, the Barrister gave a reasonably detailed description about the fact that he had decided that he would "go down fighting" and that having the two firearms - one loaded and one not loaded - would give him time to maximise his chances.

29 The Barrister spoke in extreme terms about "people in power" who were involved in what he described as a "set up". He not only held that view in November 1999, which view led to him, on his evidence, to take the firearms with him to combat what he perceived to be a threat to his safety, he also holds those views today. He spoke of those views and perceptions with vehemence, passion and conviction. While there was some evidence corroborating his assertion that he received a death threat on that day, that he reported the existence of that fact to Mr Featherstone at the time and there was some evidence of a threat previously having been made to him by a Ms Smith, there was no evidence to corroborate the reality of any ongoing or current threat by the "people in power" involved directly or indirectly in defamation proceedings, as to whom the Barrister alleged concern. For the purposes of these proceedings, it is not really a question of whether those threats are real or not, it is the fact that the Barrister vehemently believes that they are. This leads to a consideration of whether or not that current fear or concern will lead to him taking a course of action similar to that taken on 3 November 1999 and effectively to seek to take the law into his own hands. For any person to do that is wrong; for a barrister, an officer of the court, to take such action, is a cause for serious concern.

30 The Barrister gave evidence that he does now drink socially but not regularly to excess and that he is currently on medication as a treatment for depression. He does not seek therapy or counselling, as he does not believe that it is necessary. The Barrister attributes his emotional state at the time primarily to the imminence of his father's death. He does not presently own any firearm and cannot make an application to do so for a period of five years. The barrister's firearm's licence was suspended on 17 November 1999. The firearms were taken by the court in May 2000.

31 The Barrister is adamant that he still fears retribution or action from the various parties involved in his proceedings and believes that these will continue until the defamation actions are finally resolved. He distinguishes between the circumstances now and in 1999 and cites the constant media attention to which he was exposed between 1993 and 1995. He says that he presently deals with any more acute episodes of concern by taking time off and talking to his general practitioner.

32 A number of medical opinions were filed. Dr Bruce Westmore, who saw the Barrister in May 2002, found him difficult to interview and somewhat verbose or over inclusive, frequently talking off the point or around the point. Similar comments could be made of the Barrister's evidence before the Tribunal. Dr Westmore noted in his history that the Barrister is currently taking valium and the antidepressant, cipramil. Dr Westmore's provisional diagnosis was that the Barrister had previously suffered "an episode of major depression which is now in remission". Dr Westmore concluded that the Barrister had been in a state of psychological distress on 3 November 1999 and that he may have been over using valium and alcohol on that occasion. Dr Westmore was of the view that the Barrister is not suffering from a major depressive illness (as at the date of examination), nor does he have a psychotic illness; he remains on antidepressants and a small dose of valium. Dr Westmore's opinion is that, if the Barrister were to be allowed to practice law in New South Wales, he attend a psychiatrist at a frequency determined by the treating psychiatrist. He further recommends that a legal mentor be appointed. In that way, the Barrister's use of alcohol and prescription medicine can be monitored. Dr Westmore did say that, in his opinion, there are no current psychiatric reasons why the Barrister could not be considered fit and able to practice as a barrister.

33 Also before the Tribunal was a report dated 14 May 2000 by Dr Paul Read. Dr Read was of the opinion that the Barrister presented as having a partially-treated major depressive illness. Dr Read's opinion was that the Barrister's belief in the death threat that he received in November 1999 and his history was consistent with him functioning in a depressed state at that time. The doctor also noted that the Barrister recognised the need for treatment.

34 In his second opinion, Dr Read formed the view that the Barrister was suffering from an episode of major depression at the time of the firearm offences and that the fact that his father was terminally ill was critical. In the context of the offences, Dr Read observed that depression can seriously impair judgment. The Barrister had been partially treated for a major depressive illness and was engaging in ongoing treatment. Dr Read was of the view that the Barrister required a multi-modal approach to treatment, with ongoing monitoring and treatment of both his mood and drug and alcohol issues. Dr Read apparently continued to treat the Barrister in 2000.

35 The Tribunal notes that Dr Lever is of the view that the Barrister requires treatment for depression and that Dr Read advises continuation of therapeutic follow ups, but that the Barrister asserts that he considers himself well and that he has reduced his taking of medication and does not regularly seek medical or psychiatric assistance.

36 A number of barristers provided opinions of the Barrister. They attest to his reputation and character and the opinion that he is unlikely to re-offend.

37 Dr Lever, a medical practitioner in Queensland, provided a report dated 12 March 2002. Dr Lever has known the Barrister since 1995 in connection with assisting with a reducing regime of valium. As at March 2002, Dr Lever was of the view that the Barrister remains "chronically depressed as a result of circumstances. His level of depression requires treatment with an antidepressant". Further, Dr Lever says that, while on treatment, the Barrister's mood is "essentially normal". Dr Lever was of the view that the Barrister is capable of performing professional duties and that the medication does not seem to be affecting his judgment or ability to work.

38 Dr Read provided an updated report of 10 March 2002. It is apparent that Dr Read treated the Barrister during an eight-month period and that he ceased attending treatment sessions with Dr Read in October 2000. During the time that he was being treated by Dr Read, the Barrister continued to take an antidepressant, but reported to Dr Read that he stopped taking that medication in February 2001. Dr Read had observed that even on medication, the Barrister would experience brief episodes of depression relating to stress at the time. That was the reason why Dr Read felt that psychological treatment would be "pivotal in optimising symptom control". While Dr Read was of the view that the Barrister was not suffering a major depressive episode at the time of this report, he did feel that the Barrister described a low-grade depressed mood. At that stage, the Barrister attributed the stress to the existence of the disciplinary proceedings, but he did not feel that he was requiring antidepressants. Again, Dr Read noted the steps that were taken to control alcohol and valium abuse, but was of the opinion "that Mr Bryson would benefit from establishing a regular therapeutic relationship with a psychiatrist or other doctor specialising in psychological and pharmacological management of mood and substance misuse problems". Dr Read was of the view that the Barrister was not suffering from major depression, so that there could not be any impediment to his practice as a barrister in terms of having a major mental illness. While Dr Read acknowledged that the Barrister's personality would lead him to have some difficulty when under pressure, those personality traits would not, in his opinion, prevent the Barrister from practising professionally. Dr Read advised the Barrister to continue with therapeutic follow ups in order to minimise psychiatric vulnerability and distress but stated that there were no psychiatric reasons for him being unable to practice as a barrister.

39 The Barrister's own statement of his present medical state is that he is now in a situation where any use of prescription medication is significantly reduced "as to be almost nominal" and that he is currently well and considers himself fit to practice. The Barrister states the he is experiencing no difficulties with the demands of full-time practice as a barrister and has not heard from any fellow practitioner or member of the Bench about any difficulties. Certainly, none of the barristers or other persons with whom the Barrister has worked expressed any reservation about his current fitness to practice. In particular, Mr Griffin of the Queensland Bar, has worked professionally with the Barrister currently and attests to the fact that he is "a conscientious and competent barrister" and "honourable in his dealings with me and, as far as I am aware, with the solicitors parties and others involved in the matters in which he and I have been engaged together".

Submissions

40 Both Counsel gave detailed written submissions and, to the extent that time allowed, detailed oral submissions. In summarising those submissions, the Tribunal expresses its appreciation for the assistance given by both Counsel.

Submissions on Behalf of the Bar Association

41 Counsel for the Bar Association points to the fact that, while there was some dispute about the facts, by and large the Barrister accepted that his actions were wrong. The Bar Association submitted that there should be a finding of professional misconduct, but that that did not necessitate removal or cancellation of the Barrister's practising certificate. Counsel for the Bar Association pointed to the fact that the Barrister had taken the law into his own hands which, he submitted, went to the heart of the qualities expected of practising barristers. Fundamental to the rule of law is that a party should have recourse to the law and not thereby jeopardise public order and public safety by dangerous and illegal conduct. Counsel pointed out that, on the Barrister's version, on 3 November 1999 he was not affected and certainly not affected severely by the valium that he had taken much earlier that day and asserted that he was only moderately affected by alcohol. It was submitted that this must lessen the Barrister's reliance upon the fact that, at the time, he was dependent on valium and alcohol. On the Barrister's version, at the time that he made the decision to take the firearms with him, he was not affected by alcohol; he conceded that he was moderately affected by the time he saw Mr Mew in the toilet. The decision to arm himself was taken consciously and deliberately at a time when, on his own version of the evidence, the Barrister was not seriously incapacitated or suffering from a psychiatric disorder. The offences with which the Barrister was charged were of a serious nature and had exposed the Barrister, potentially, to a term of imprisonment of 10 years.

42 The Bar Association relies upon the matters set out in the information, as to which there are no facts in dispute, apart from a relatively minor dispute about the nature and extent of the Barrister's handling of the firearm and some difference as to the degree to which he was affected by alcohol. The Bar Association relies upon the fact that the professional misconduct as defined in s.127(1)(b) of the Act includes:

"conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that the legal practitioner is not of good fame or character or is not a fit and proper person to remain on the role of legal practitioners."

43 Counsel submitted that, if the Barrister's personal misconduct was demonstrated by the events which occurred at the Bourbon & Beefsteak on the morning of 3 November 1999 and that conduct would reasonably be regarded as disgraceful and dishonourable by professional colleagues of good repute and competency, the claim of professional misconduct is made good. Further, that the Barrister's conduct exposed members of the public to risk of danger, that he was affected by alcohol and therefore not capable of properly controlling the firearms. Counsel for the Bar Association pointed to the fact that the Barrister's decision to arm himself demonstrated a preparedness to ignore the proper processes of the law and that he took illegal and dangerous steps to protect himself. This involved a determination that it was appropriate to take the law into his own hands rather than report to the police, or having resort to civil or criminal proceedings. It was submitted that, in acting outside the law in such a manner, the Barrister acted in a way which would probably be regarded by the community and by the legal profession as disgraceful. The Barrister's decision to "go down fighting" was, it was submitted, an inappropriate and improper overreaction and a complete abrogation of his duties to the law. The Barrister's actions were not those of a standard expected of legal practitioners, even in their personal lives, and jeopardised the reputation and standing of the legal profession and his own place in it. It also diminishes the ability of the legal profession to play a proper role.

44 Counsel for the Bar Association pointed to the fact that the Barrister knew at the time he made the decision to arm himself that it was wrong and, in summarising the Barrister's evidence, disputed the assertion that the Barrister's actions were "an almost irresistible result" of his father's illness and his depressive state. On the Barrister's own evidence, he was not affected by valium at the time, was less than moderately affected by alcohol at the time that he made the decision to arm himself and was moderately affected at the time of the events that occurred in the men's toilet at the Bourbon & Beefsteak. Accordingly, reliance is placed upon the fact that the decision by the Barrister to arm himself was taken consciously and deliberately. Counsel submitted that the Barrister had sought to obscure the issue about the extent to which he handled the firearm in the men's toilet, not only before the Magistrate but also in his responses to the Bar Association.

Submissions on Behalf of the Barrister on the Facts

45 Counsel for the Barrister pointed to the fact that the Barrister had been exposed to serious allegations over the previous years, none of which were proven, had stood trial and been acquitted in respect of some of those allegations and had received numerous death threats which he took seriously. The Barrister had been informed that his father had terminal cancer in an advanced stage and that he had to inform his father of that fact which he found distressing. In addition, the Barrister had, immediately prior to the conduct in question, received a further death threat which he took seriously and he was, at the time, affected by depression, which affected his judgment. Counsel for the Barrister concedes that the process of reasoning undertaken by the Barrister at the time "cannot now be rationally explained" but submitted that it was one episode of conduct, under considerable duress and depression, arising from an extraordinary saga and accumulation of events which do not demonstrate unfitness to practice. Counsel pointed to the fact that the Barrister had voluntarily suspended practice and had sought professional help to address the situation. He submitted that there would be no impediment to the judiciary or fellow barristers in the Barrister continuing to practice.

46 Counsel submitted that no significant issue of fact depends upon the credit of any witness. He points to the Barrister's circumstances as at November 1999 and the history of what he had been through, the fact that he was suffering an episode of major depression and the impact on him of his father's terminal illness. It was submitted that there is no reason not to believe the Barrister's statement that he took the firearms with him because he was in fear of his life and seriously affected by his depressive illness, accentuated by death threats. The Barrister does not base his case upon being affected by alcohol or benzodiazepine but on the fact that the soundness of his judgment was adversely affected by the above matters; he points to the fact that all of the evidence, including the medical evidence, lead to the conclusion that the conduct was a "one-off". Counsel also points out that there is no suggestion that, as a legal practitioner, the Barrister has done anything inappropriate; to the contrary.

47 Counsel for the Barrister points to a number of matters in response to the assertion that the Barrister was taking the law into his own hands: that it was extraordinary circumstances, it was in self defence which, proportionately, is not unlawful, the Barrister actually did nothing and conducted himself in an exemplary manner while at the Bourbon & Beefsteak and subsequently. Counsel submits that the actions of the Barrister do not demonstrate disregard for the proper processes of the law. The Tribunal observes that this seems to ignore the fact that, in saying that the Barrister "in fact did nothing and conducted himself in an exemplary manner", the Barrister armed himself and had the firearms in his possession, and handling the Smith & Wesson in Mr Mew's presence in the men's toilet of the Bourbon & Beefsteak. Counsel for the Barrister submitted that, while the decision demonstrated unsound judgment, it was only a single error which does not suggest anything about the Barrister's inherent qualities or fitness for practice, nor does it demonstrate that the Barrister lacks sound judgment generally.

48 Counsel submitted that there would be no jeopardising of the reputation and standing of the legal profession, as no member of the public "knowing all the circumstances" would think less of the legal profession because of the episode or of the Barrister. He points to a number of elements that are missing - such as dishonesty, fraud, personal benefit or gain, actual harm and the lack of connection with, or significance for, any professional function.

Findings on the Facts

49 As both parties have submitted, there is no substantial disagreement on the facts. The three particulars of professional misconduct set out in paragraph 1 are all established. In summary, they are:

"The Council claims that the Barrister is guilty of professional misconduct in that:

1. On 3rd November 1999 he possessed a loaded firearm, namely a silver coloured Smith & Wesson .357 magnum revolver, in a public place, namely the Bourbon and Beefsteak in Darlinghurst Road;

2. That on 3rd November 1999 in the same place he possessed a Glock model 19 pistol, not being authorised to do so by a licence or permit; and

3. At the same place at the same time he handled the firearm, namely a Smith & Wesson .357 revolver whilst he was under the influence of alcohol."

50 There is little significance in the discrepancies in the versions of events in the toilet. The fact that the barrister was moderately affected by alcohol at the time significantly reduces their importance.

51 The relevant mitigating factors are, as submitted by the barrister, that he:

(a) had, over the last five years or so, been exposed to most serious allegations and adverse publicity, none of which allegations were ever proven;

(b) had stood trial (and been acquitted) in respect of some of those allegations;

(c) had received numerous death threats, which he took seriously, and in respect of which he had sought but not succeeded in gaining police assistance and, in one respect, sought and obtained a peace and good behaviour order;

(d) had, shortly prior to the conduct in question, been informed that his father had terminal cancer in an advanced stage, and had had to inform his father of that, which he found most distressing;

(e) had, immediately prior to the conduct in question, received a further death threat, which he took seriously;

(f) was affected by major depression, which affected his judgment.

52 Against these matters, the relevant aggravating factors are:

(a) a determination by the barrister that it was appropriate to take the law into his own hands and, if necessary, to "go down fighting";

(b) that he chose not to deal with the problem by recourse to the police or to civil or criminal proceedings;

(c) his conduct showed a disrespect for the law and a deliberate flouting of it, whereas a barrister should be rigorous in his observance of and respect for the law.

The Barrister's submission as to the consequences of professional misconduct

53 The Barrister made one submission in these proceedings which requires specific discussion. That submission is summarised in paragraph 1 of the Barrister's submissions in the following terms:

"The professional misconduct charged against the respondent in these proceedings is in respect of conduct otherwise than in connection with the practice of law. Accordingly, that conduct will amount to professional misconduct if and only if it is such as would justify a finding that the legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners [Legal Profession Act 1987, s.127(b)]. Since good fame and character is a pre-requisite for membership of the profession, it is implicit in this definition that for the conduct to amount to professional misconduct, it must be such as would require removal from the roll. There is no scope, in connection with conduct occurring otherwise than in connection with the practice of law, for the lesser penalties which might be appropriate to professional misconduct of the type described in Legal Profession Act, s.127("). To be professional misconduct, the conduct must be such as to justify a conclusion that the practitioner is not a fit and proper person to remain on the roll."

54 This is a novel submission which is inconsistent both with the legislative scheme established by Part X of the Legal Profession Act and by authority and practice. There is, of course, a logical tension between a finding that a person is not of good fame and character and an order short of removal from the roll. That apparent logical inconsistency, however, is eliminated when two additional factors are taken into account.

55 The first of those factors is that the phrase used in the relevant part of the definition at s.127(b) is that the conduct "would justify" a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners. The conduct may be such that it would justify such a finding although it does not lead to one. For example, it may be that conduct occurring twenty years ago would justify a finding that a legal practitioner was not of good fame and character (at the time) but such a finding would not necessarily lead to a finding of present incapacity.

56 The second reason why the submission must be rejected is that the concepts of "not of good fame and character" and "not a fit and proper person to remain on the roll of legal practitioners" are not only highly subjective but also part of a continuum. Conduct may clearly justify a finding that a legal practitioner is not of good fame and character. Other conduct may not justify such a finding. Conduct may justify such a finding by the narrowest of margins; other conduct may fall short of justifying such a finding by the narrowest of margins. There is no bright line between conduct which would justify a finding that a legal practitioner is not of good fame and character and conduct that would not and there is no bright line between conduct which would justify a finding that a practitioner is not a fit and proper person to remain on the roll of legal practitioners and conduct that would not. This means that a tribunal may quite properly find that conduct would justify such a finding but not make it, in much the same way as a trial judge in a damages claim may conclude that the evidence "would justify" a verdict in the range of $100,000.00-$120,000.00 but pronounce a verdict for, say $110,000.00.

57 To these propositions must be added the provisions of sub-section 171C(1) of the Legal Profession Act which provides for a range of possible orders ranging from removal from the roll to a private reprimand. All the orders referred to in that sub-section are orders which can be made if the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct. A suggestion that only one of the orders is available if a legal practitioner is guilty of professional misconduct is not open on a fair reading of the sub-section.

58 The submission by the barrister, however, goes further. If it were correct (which it is not), it would lead to the conclusion that the only order which can be made after a finding of professional misconduct under s.127(1)(b) was an order removing the name of the barrister from the roll. The barrister seeks to rely on the converse proposition that there cannot be a finding of professional misconduct unless the order the Tribunal makes is removal from the roll. Since the starting proposition is rejected, the converse proposition is likewise rejected.

Was the Barrister Guilty of Professional Misconduct?

59 Paragraph 127(1)(b) of the Legal Profession Act provides that "professional misconduct" includes:

"Conduct ... occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners".

This provision recognises the statement of Fullagar J in Ziems -v- The Prothonotary of the Supreme Court of New South Wales [1957] 97 CLR at 290 where his Honour said:

"It is said that 'the personal and the professional sides of his life cannot be disassociated'. If this is read literally, it goes, in my opinion, much too far. Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practice as a barrister ... but the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practice than the former".

60 In the present case the conduct complained of is, within the meaning of Fullagar J's dichotomy, personal rather than professional misconduct.

61 The question is whether the conduct would justify a finding that the barrister is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners.

62 The aggravating factors referred to above clearly fall within the ambit of conduct which would justify a finding that the barrister is not of good fame and character. In particular, the fact that he took with him a loaded weapon and a second weapon which could be loaded in a short time with a view, if the circumstances arose, to "going down fighting" and that he then permitted himself to achieve a degree of intoxication which must have increased the danger to members of the public in his vicinity is a very serious matter. When it is added to this the alternatives available to him and the duty of a barrister to uphold the law, the conduct readily falls into the relevant category.

63 The general principles applicable to an assessment of professional misconduct are not in dispute. The courts have considered those principles in connection with conduct otherwise than directly concerned with practice as a barrister. For example, in New South Wales Bar Association -v- Hamman [1999] NSWCA 404, Mason P said (at paragraph 21):

"The general principles are not in contest. Disciplinary proceedings against a legal practitioner are concerned with the protection of the public (Wentworth -v- The New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 250-251). Their object is not to punish the practitioner but to protect the public and to maintain proper standards in the legal profession. The fact that the misconduct is not directly involved with practice in the law makes no difference where, as is conceded in the present case, the practitioner's behaviour would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency (Allinson -v- General Council of Medical Education and Registration [1894] 1 QB 750; Prothonotary of the Supreme Court of NSW -v- Costello [1984] 3 NSWLR 201 at 203). The leading case is Ziems [Ziems -v- The Prothonotary of The Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279]".

64 Ziems case itself was concerned with conduct outside of professional practice. The High Court looked at the circumstances behind the conviction for manslaughter and considered whether Mr Ziems should remain a member of the Bar. The High Court, by majority, did not direct removal of the barrister's name from the Roll of Barristers, but substituted suspension from practice for the duration of imprisonment. As it was stated by Kitto J at 297-9:

"The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister in a system which treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal profession. It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.

Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task."

65 In Hamman Mason P cited a number of decision, including those decided in the Court of Appeal, in which professional misconduct was conceded, as was the case in Hamman. This did not lead inevitably to an order directing removal from the Roll. Indeed, it is apparent that the Court considered that, even though professional misconduct is established for conduct occurring otherwise than in connection with the practice of law, it is open to the Court (and this Tribunal) to consider which order, removal or an order short of removal, is appropriate.

66 In Mitry -v- Council of the New South Wales Bar Association [2001] NSWCA 273, Spigelman CJ, Powell and Giles JJA agreeing, observed that it was open to the Tribunal, after a finding of professional misconduct otherwise than in connection with the practice of law Ain the exercise of its discretion, to conclude that an order that the Appellant be struck off, was the appropriate order in the circumstances of the case" (paragraph 88).

67 The reasoning of the Court of Appeal in the above cases is inconsistent with and contrary to the submissions by Counsel for the Barrister.

68 The Bar Association does not submit that an order for removal is the appropriate order.

The Appropriate Orders

69 The question of what orders are appropriate must be addressed with regard to the mitigating and aggravating factors. The Tribunal also takes into account the effect of the Barrister's conduct as a member of the legal profession and the public perception of the profession.

70 For this purpose, they must be weighed against each other with a view to seeing what course the Tribunal should take.

71 Taking into account the substantially agreed facts, the mitigating circumstances and the aggravating features, the Tribunal is satisfied that the Barrister is guilty of professional misconduct within the meaning of s.127(1)(b) of the Act.

72 Taking those same matters into account, together with the medical opinions referred to herein, the Barrister's own evidence and the character references provided, the Tribunal makes the following orders pursuant to s.171C(1) of the Act:

(1) Publicly reprimands the Barrister.

(2) The Barrister be fined the sum of $10,000.00.

(3) Orders that the Barrister undertake and complete a course of further legal education by practicing under the supervision of a barrister of at least seven years' standing approved b y the Bar Association for the period of 12 months, such supervising barrister being requested to report to the Bar Association as to the Barrister's ability to practice at the end of three months, six months and 12 months. That supervising barrister should be given a copy of these reasons.