New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39 (8 February 2006)

Last Updated: 23 February 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39


PARTIES: APPLICANT
Council of the New South Wales Bar Association
RESPONDENT
Marcel Victor Sahade



FILE NUMBERS: 032025

HEARING DATES: 25/11/2005

SUBMISSIONS CLOSED: 07/12/2005



DECISION DATE: 08/02/2006

BEFORE: Nader J QC - ADCJ (Deputy President)Norton S SC - Judicial MemberO'Neill A - Non Judicial Member





LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Legal Profession Act 1987

CASES CITED:

APPLICATION: Professional Misconduct - not of good fame and character

MATTER FOR DECISION: Penalty


APPLICANT REPRESENTATIVE: APPLICANT
S Robb, QC
C Wester, Barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
B Rayment, QC
G Heathcote, Barrister

ORDERS: 1.That the Barrister pay a fine of $10,000 and we publicly reprimand him
2.The Barrister is ordered to pay the costs of the Council of an incidental to these proceedings


Reasons for Decision:

REASONS FOR DECISION

1 This decision is consequential upon a decision in the same matter given on 13 July 2005 (the Reasons) following a hearing on 7 and 8 March 2005.

2 By that decision, Mr Marcel Victor Sahade, the Barrister, was found to be guilty of professional misconduct in respect of two grounds in an information lodged by the Council of the New South Wales Bar Association (the Council) on 5 November 2003.

3 It was agreed by the parties that the Tribunal should make a finding on the issue of guilt and then conduct a hearing as to what orders, if any, should be made as a consequence of that finding. That hearing took place on 24 November 2005. Evidence was admitted and oral and written submissions were made.

4 The conduct of the Barrister, which led to the finding that he was guilty of professional misconduct, involved deceptive representations made by him in order to ensure that he would acquire more shares in the second Telstra share issue than he might have been able to acquire without deception.

5 At the material times, professional misconduct, as a statutory offence, was defined by section 127(1)(b) of the Legal Profession Act 1987 (the Act) as follows:

(1) For the purposes of this Part, professional misconduct includes:
...
(b) 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 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, ...

6 In its decision of 13 July 2005, the Tribunal found that at the material times the Barrister was not of good fame and character, but deliberately refrained from finding that he was not a fit and proper person to remain on the roll of legal practitioners. The reason for refusing to make that finding was that it seemed to the Tribunal that a finding that the Barrister was not a fit and proper person to remain on the roll of legal practitioners would have pre-empted any hearing on the issue of what consequent orders should be made. The Tribunal when it made its finding on the issue of guilt was not satisfied that the name of the legal practitioner should be removed from the roll of legal practitioners and had not heard the parties on that issue.

7 Therefore the Tribunal came to the most recent hearing, more than four months after its earlier decision, in order to consider what orders if any should be made pursuant to sub-section 171C(1) of the Act. Being satisfied that the barrister is guilty of professional misconduct, the Tribunal may do any one or more of the matters referred to in that sub-section.

8 All of those matters apply, with two exceptions, to a finding of professional misconduct or to a finding of unsatisfactory professional conduct. Removal from the roll of legal practitioners is only available if the legal practitioner is guilty of professional misconduct. The maximum fine that can be imposed is different in cases of professional misconduct and unsatisfactory professional conduct.

9 In this case, by Section of 171C(1) of the Act the Tribunal may do any of the following:

(a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct,
(b) order that the legal practitioner’s practising certificate be cancelled,
(c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order,
(d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct,
(e) publicly reprimand a legal practitioner or, if there are special circumstances, privately reprimand the legal practitioner,
(f) order that the legal practitioner undertake and complete the course of further legal education specified in the order.

THE FACTS

10 The Tribunal relies upon the facts expressed in the Reasons and upon the evidence adduced at the hearing on 24 Nov 2005. The facts expressed in the reasons need not be repeated except when it is necessary to refer to them.

11 The evidence adduced that the hearing on 24 Nov 2005 consisted of short oral evidence and a considerable amount of evidence on affidavit.

THE COUNCIL’S SUBMISSIONS

12 The Council noted in its submissions [Outline 4] that in its reasons [117] the Tribunal said, "the Barrister was not, at the time of the conduct, a fit and proper person to remain on the roll of legal practitioners." It is important to note that that comment was deliberately restricted to the period of time during which the barrister was engaged in his deceitful activity. It was so expressed in order to leave open the possibility of a different finding with respect to a later time.

13 As noted in the submissions of the Council [Outline 7], the Tribunal found that the Barrister was guilty of professional misconduct under section 127(1)(b) of the Act. The Council's submissions correctly note that that decision was based on a finding that the barrister was not of good fame and character.

14 Section 127(1)(b) provides that professional misconduct, otherwise than in connection with the practice of law, occurs if the conduct would justify a finding that a legal practitioner "is not a good fame and character or is not a fit and proper person to remain on the roll of legal practitioners." As mentioned above, the Tribunal was not of then satisfied that the Barrister should not remain on the roll of legal practitioners and the therefore did not find that the Barrister was not a fit and proper person to remain on the roll of legal practitioners.

15 The expression "good fame and character" is a term of art that has been used for many years to describe legal practitioners who have failed to live up to the standards required of them as legal practitioners.

16 As a logical proposition, it is possible to be of "good fame" but of "bad character". A barrister who is able to conceal his character defects from his colleagues and the general community might be just such a person.

17 For some reason best known to the Barrister and his advisers, no evidence was adduced on the issue of his guilt that gave any indication of his fame: such evidence was clearly admissible in view of the statutory definition of professional misconduct.

18 Because the composite expression "good fame and character" has always occurred in that form, and is a phrase picked up by section 127(1)(b) of the Act, we considered it in that form although we were only able to make a judgment of the Barrister's character: not of his "fame", good or otherwise.

19 But, what is most significant here is that the Tribunal deliberately did not find that the Barrister was not a fit and proper person to remain on the roll of legal practitioners. The intention was to leave that question in the open. An attempt had been made by the Tribunal to have the matter re-listed to resolve the difficulty created by these considerations but it was resisted by the parties who urged the Tribunal to give its decision on the issue of guilt before any further hearing on the issue of what orders should be made.

20 The fact that an adverse finding on the questions whether the Barrister was "not a fit and proper person etc." might remove any discretion with respect to what order should be made, and that it would have pre-empted any question as to whether the Barrister’s name should be removed from the roll, did not seem to be significant to the parties.

21 We emphasise that a finding that the Barrister was not a fit and proper person to remain on the roll of legal practitioners seemed to us to be a finding that would have pre-empted any question as to whether the barrister should be removed from the roll.

22 The Council submitted [Outline 14] that the barrister's conduct in relation to Telstra Two in 1999 and his continued adherence to and justification for it, demonstrate an absence of the qualities that are essential for the conduct of legal practice. Several authorities were quoted.

23 There is no doubt that if the Barrister had continued unequivocally to seek to justify his conduct throughout the Tribunal proceedings, one would be forced to conclude that he either lacked a fundamental sense of what conduct is appropriate or, understanding that is conduct was inappropriate, simply refused to admit it. However, we did not see the matter in quite that light. We will return to this point later in our reasons.

24 The Council's submission [Outline 17] referred to the fact that the Tribunal had concluded in its Reasons that nothing that emerged from the hearing led the Tribunal to believe that there had been any significant change in any material respect as to the Barrister's fitness. We have now had the benefit of a subsequent hearing where a large amount of evidence was presented relating to the Barrister's character. This included, amongst other things, the fact that a significant number of other members of the Bar, knowing the material facts, have readily accepted him as a colleague. The evidence presented at the subsequent hearing has enabled us better to understand the Barrister and his present attitude to his offences. Now having a more complete evidential view of all the relevant circumstances, we have reached a more favourable opinion of the Barrister as he is now. It was very much part of our reasons, correctly understood, that we were not able to find formally that the Barrister was not a fit and proper person to remain on the roll of legal practitioners. In pars 118 and 119 we noted that we could not then reject the submission that he was not a fit and proper person, etc. That question remained undecided and our reasons made it clear that that was the case. Later events have enabled us to make a definite finding.

THE RESPONDENT’S SUBMISSIONS

25 We accept the respondent's submission [Respondent 2] that the expression "such a finding" was a reference to a finding that the Barrister is "not now a fit and proper person to remain on the roll of legal practitioners". Although the distinction implicitly referred to in that submission is clear when the reasons are looked at as a whole, it is conceded by the Tribunal that the wording of paragraph 69 was not as clear as it might have been. It would have been preferable if we had used the words "the latter finding" instead of "such a finding".

26 The respondent submits [Respondent 5] that neither suspension or removal from the roll is appropriate in the circumstances of this case.

27 [Respondent 6] points out that the evidence shows that the Barrister’s conduct in the five or six years since then tends to show that the events of 1999 were "right out of character". Whether they were then right out of character is hard to judge, but we are satisfied that they would now be out of character.

28 Mr B. W. Rayment QC, who represented the Barrister at the November 2005 hearing, adduced a considerable amount of evidence including evidence of character. That evidence has persuaded us that we should not find that the Barrister is now not a fit and proper person to remain on the roll of legal practitioners. Therefore it behoves us to make reference to that evidence.

29 We refer first to the affidavit of the Barrister sworn 14 November 2005 and read at the hearing on 24 November 2005.

30 The Barrister said, "Because of my state of mind at the time that I applied for the shares (1999), I could not and would not admit in the Tribunal that I was a subjectively dishonest at the time I applied for the shares, and this was the only stumbling-block to my admitting the charges in the Tribunal."

31 The barrister also said in his affidavit that he is very sorry that he engaged in the misconduct of 1999. He said that he has regretted those actions for many years since the trial and that he wishes to put them behind him.

32 He said also that as bad as his actions were with respect to his application for shares in Telstra 2, those actions were based on a lack of objective judgment at the time. He says that he has been disgraced by those actions but that he takes some comfort in the fact that he has been forthright and honest in all other areas of his life and in all other matters concerning his professional career. He points out that he has no criminal record save for minor traffic infringements.

33 We quote verbatim paragraph 7 of the Barrister's affidavit.

"In respect of the concept of deceitful less permeating other areas of one is life and also in respect of trustworthiness, I say that:

(i) I have impressed other barristers who know me well in respect of my character, some of whom have given character evidence for me in respect of these proceedings and the proceedings on the appropriate orders.
(ii) I have frequently discussed ethical matters with other barristers including senior members of the Bar Council whenever difficult decisions need to be made in my professional work and I do not attempt to deal with difficult issues alone without some advice from other practitioners if I think that is required. I have also returned briefs to clients and to solicitors because of ethical matters, irrespective of the financial loss occasioned to me by doing so. Frequently clients in these circumstances do not appreciate, and may never appreciate the reasons why the brief is being returned but I have always considered my duty to the Court to be paramount.
(iii) I have always been frank and honest to my clients, my opponents and to the Court and I am open and frank in all matters concerning my professional work.
(iv) I am a loyal and faithful husband and a good father to my three young children currently aged 3, 2 and six months.
(v) I am trusted by barristers and other professional acquaintances who know me.
(vi) I have been a devout and practising member of my Church all my life and for the last six years I have attended Mass daily (with few exceptions). I have also studied metaphysics and epistemology at the Centre for Thomistic Studies and I study regularly the Summa Theologica of St Thomas Aquinas.
(vii) In the years since the investigation into my conduct began in 1999 I have disclosed, every year, this matter to each of my professional indemnity insurers when applying for insurance.
(viii) I have met at all times in the past, and to continue to meet, all my taxation obligations.
(ix) From the time that this matter came to the attention of the Bar Council I have continued to practise as a barrister without any further complaint."

34 The barrister says that since the adverse decision of this Tribunal was made against him, he has relocated his practice to Sydney Chambers at level 13, 130 Elizabeth Street.

35 The Barrister says that, before he joined Sydney Chambers, he disclosed the decision of the Tribunal against him to the secretary of the floor and directed him to the Bar Association web-page that provided a link to the decision. Sydney Chambers has approximately 20 barristers. The Barrister says that he considers it important to be in close and regular contact with other members of the profession.

36 The affidavit of Mr Desmond Anderson, one of her Majesty’s counsel, sworn on 14 November 2005, was read at the hearing.

37 Mr Anderson has known the Barrister since he (the Barrister) commenced his law studies in 1992. Mr Anderson met the Barrister while the jury was deliberating in a case in which Mr Anderson was appearing. The Barrister was in the public gallery observing the case for experience. Mr Anderson and the barrister commenced a conversation. The barrister told Mr Anderson of his studies as a law student and that he was observing cases to gain practical experience.

38 Mr Anderson maintained contact with the Barrister from that time. The Barrister showed an interest in attending cases and observing trials for further experience.

39 This continued for two years and throughout that time the Barrister discussed cases with Mr Anderson.

40 Mr Anderson formed the impression that the Barrister had energy and a real zest for the law. He also concluded that the Barrister had a brilliant mind.

41 Mr Anderson found the Barrister to be honest, open, frank and honourable.

42 Mr Anderson said that he felt honoured to be asked by the Barrister to move his admission as a legal practitioner in the Supreme Court. Because of a conflicting commitment, Mr Anderson was unable to move the Barrister's admission.

43 Mr Anderson said that that he was shocked when he learnt that the Barrister had been charged by ASIC. Mr Anderson represented him in the District Court, leading Mr Gregory Heathcote of counsel in the trial.

44 Mr Anderson makes some brief comments of the trial and points out that the Barrister was acquitted by the jury. That fact had emerged in the proceedings before the Tribunal. However, the Tribunal is not concerned with the criminal liability to the extent that the acquittal by the jury does not of itself have a bearing on the outcome of these proceedings. Of course, a conviction would have had a very direct bearing.

45 Mr Anderson said that the Barrister is certainly not a cheat or a person who practises deception. In Mr Anderson’s opinion he is trustworthy, frank and honest. Mr Anderson believes that he is an honourable person, husband and father and that he is an asset to the legal profession. Mr Heathcote of counsel and Mr Anderson have referred clients to the Barrister who has a represented them ethically and admirably.

46 Mr Anderson is aware of that the Barrister has represented impecunious persons as a barrister without charge.

47 Mr Anderson says that he has now known the Barrister for the past 13 years, firstly as a student-at-law and then in his professional capacity as a barrister. In Mr Anderson's opinion the Barrister is a fit and proper person to remain on the roll of legal practitioners. Mr Anderson says that he would not give this opinion lightly in respect of any person but that he gives it without reservation with respect to the Barrister. Mr Anderson said that he volunteered to give the evidence, which he now gives. Mr Anderson is of the opinion that the wrongful conduct in which the Barrister engaged was an aberration from his true character that, in Mr Anderson's opinion "shines through him today."

48 A matter which we think is of significance was referred to by Mr Anderson in his affidavit (par 11) and augmented in his oral evidence. Mr Anderson said that the Barrister is now practising from Sydney Chambers, a floor of approximately 20 barristers whereas, at the time of the application for shares, to the best of Mr Anderson's recollection, the Barrister was practising in shared accommodation with only one other barrister. When Mr Anderson was asked whether the approximately 20 barristers referred to were aware of the barrister's activities with respect to Telstra shares, he said that they were aware and that notwithstanding that knowledge they were willing to have the barrister join their floor.

49 It has always been a consideration in cases of this kind that the person in question should be one whom his fellow barristers, with the knowledge of his wrongdoing, are prepared to accept as a colleague.

50 While dealing with Mr Anderson's evidence, we note that in his affidavit he expressed his willingness to act as a tutor to the Barrister and to supervise him for such period as the Tribunal might consider appropriate. Mr Anderson said that he had spoken to Mr Gregory Heathcote of counsel who also expressed willingness to act as a tutor to the Barrister for as long as the Tribunal may consider appropriate.

51 At the hearing on 24 November 2005, Mr Anderson gave a formal undertaking to exercise the supervision referred to if requested.

52 The affidavit of Mr John Comino, solicitor of Vaucluse, sworn 10 November 2005, was read.

53 Mr, Comino has been a solicitor practising in New South Wales for 31 years. He became a local government councillor in 1995 having been elected to Woollahra Municipal Council that year and re-elected as Councillor in the general elections held in 1999 and 2004. He held the office of Mayor of Woollahra Municipal Council from 2001 to 2004. He has known the Barrister for 13 years.

54 Mr Comino has dealt with the Barrister both on a professional and personal basis. He says that in all of his professional dealings with the Barrister he has found him to be a person of integrity with an astute and incisive legal mind. The Barrister demonstrates ability to think laterally, and to analyse quickly, the issues and solutions whether in a litigious dispute, a commercial issue or in a wide range of difficult legal problems and cases but always does so in an appropriate and ethical manner.

55 Mr Comino says that in all of his personal dealings with the Barrister, he has always found him to have high integrity demonstrating a commitment to family, friends, or associates, appropriate to the task at hand. He has always been willing to offer assistance whatever the task or problem.

56 Mr Comino is aware of that the Barrister was charged with criminal offences in relation to obtaining Telstra shares and that the charges were dismissed. He is also aware that this Tribunal has found the Barrister guilty of professional misconduct. Mr Comino has read of the Tribunal’s decision. Notwithstanding the criminal charges and the findings of this Tribunal, it is Mr Comino’s firm opinion that the Barrister is a fit and proper person to remain in practice as a barrister in the State of New South Wales and that he is a person of good fame and character.

57 Mr Steven George Prassas, a solicitor of Bondi Junction, made an affidavit on 10 November 2005 in which he says that he has been a solicitor since 1984 and that he has known the Barrister since he was a student studying science at the University of Sydney in 1992. Mr Prassas came to know the Barrister in his (the Barrister’s) professional practice through a conveyance in which he acted for the Barrister's brother.

58 Since meeting the Barrister, Mr Prassas has remained in regular contact with him. The Barrister often sought out unpaid work experience at Mr Prassas (then Randwick) office and Mr Prassas and his partner would often discuss legal issues with the Barrister. The Barrister became a regular face at Mr Prassas office. Mr Prassas watched him progress through his studies and become a barrister. Mr Prassas followed the barrister's examination results in the Sydney Morning Herald.

59 Mr Prassas says that the Barrister would tackle legal issues in an impartial and analytical way and that he, Mr Prassas, saw that the Barrister had a decisive mind and was knowledgeable in many legal matters. He had a good personality and was liked by all the solicitors in Mr Prassas’ office.

60 Mr Prassas says that throughout the years that he has known the Barrister he came to meet and know his mother and father as well as his sister. They are a close-knit and a loving family and Mr Prassas’ impressions were that his parents passed on to their children good ethics and family values. Mr Prassas says that he believes he came to know the Barrister's character very well.

61 Mr Prassas says that the Barrister has a fervent religious belief and that they have spent many hours discussing of the philosophy and metaphysics of Thomas Aquinas. Mr Prassas says that he knows that the Barrister's faith has helped him through these difficult times.

62 Mr Prassas says,

"My opinion of Marcel is that he is one who analyses and dissects issues in a very intellectual way. He always thinks before he acts, and more importantly, I see him as a ‘straight-shooter’. I have never known Marcel to knowingly engage in any wrongdoing or to think or contemplate doing anything by dishonest means in anything that he does. In fact I know that such a thing would be repulsive to him. Marcel is a reliable and trustworthy person and my legal firm trusts him implicitly. In the years and that I have known Marcel, I have had extensive social and professional contact with him and I know that doing the right and honourable thing is not only very important to Marcel, but is actually his way of life. I also knew Marcel before he met his wife, and my wife and I attended his wedding ceremony in December 2000. Since that time I have come to know his wife and his family of three children and I see Marcel instilling in his children the same basic morals and ethics that his family instilled in him.
...
When Marcel was charged by ASIC, I was the solicitor on the record in the criminal trial. The case proceeded before Judge Finnane for almost two weeks. The jury returned with an acquittal after two hours of deliberating with one of those hours being over lunch. Whilst Marcel had been accused of a serious dishonest offence, I believed in his innocence and in the defence that was presented at the trial."

63 Mr Aldo Stephen Monzo, barrister, of Garfield Barwick Chambers, swore by his affidavit of 8 November 2005 that he had closely read the decision of the Tribunal of 13 July 2005 and that he remains of the view and that of the Barrister is of good character and a fit to remain on the roll of legal practitioners. This view, he says, is based on his personal experience and dealings with the Barrister.

64 Mr Monzo expresses no opinion on the decision of the Tribunal save to say that the conduct described in the decision is inconsistent with and not typical of the Barrister's conduct as exhibited to him since they first met in August 1995. Mr Monzo believes that the Barrister is committed to the ideals of honesty and integrity in all his dealings and is confident he will not digress or falter in his pursuance of both.

65 Mr Adam Babb, barrister, of 8-12 Chifley Square, Sydney, made an affidavit on 8 November 2005. He says that he is a Crown Prosecutor and currently the Director of the Criminal Law Review Division of the Attorney General's Department.

66 Mr Babb has read the decision of this Tribunal dated the 13th of July 2005.

67 He has known the Barrister for 10 years. The Barrister has demonstrated to Mr Babb knowledge of his obligations under the Bar Rules and has always displayed a concern to fulfil his ethical obligations as a barrister. Mr Babb speaks highly of the Barrister's professional ability.

68 At the time that the Barrister was a subject to the criminal proceedings already referred to, the Barrister expressed to Mr Babb his intention to tell the truth and to accept the consequences of his actions. Mr Babb said that it seemed to him that the Barrister handled what must have been an extremely stressful period of his life with a great deal of composure.

69 The affidavit of Kevin John Pierce, barrister, of 8/53 Martin Place, Sydney, sworn on 14 November 2005, was read.

70 He says that the Barrister freely told him of the complaints against him and, subsequently, of the decision of this Tribunal. Mr Pierce has read the decision of the Tribunal.

71 He says that the Barrister appeared to him to be suffering from a great sense of distress and embarrassment at what he had done and that he had shown terrible lack of judgment. From his experience of the Barrister, Mr Pierce was surprised at the finding that he in fact intended to be dishonest as distinct from pursuing what he misguidedly perceived as a loophole but which would not withstand scrutiny or proper objective examination to the applicable standard expected of a barrister.

72 Throughout Mr Pierce’s contact with the Barrister he had not observed him to engage in conduct contrary to his good fame and character as a barrister or as a responsible citizen generally. In Mr Pierce’s experience, the Barrister's conduct as found by the Tribunal is out of character and the conduct would not be expected to be repeated. In Mr Pierce’s opinion, the Barrister's application of, and adherence to, applicable standards would be expected to be appropriately mature. Mr Pierce says, "overall he is a good and honest person".

73 Mr Pierce points out that he does not seek to cavil with the decision of the Tribunal but only to record his experience of the Barrister for the Tribunal’s consideration.

74 The affidavit of David Percy Hipsley of Lisarow NSW sworn 8 November 2005 was read.

75 Mr Hipsley is a barrister who currently holds the position of lecturer in the Faculty of Law at the University of Technology, Sydney.

76 He has known the Barrister since 1996 when he moved into Chambers at 9th floor Garfield Barwick Chambers where the Barrister also occupied Chambers.

77 Mr Hipsley refers to a number of circumstances indicating that when the matter giving rise to these proceedings occurred he and the Barrister were very well acquainted.

78 Mr Hipsley says that he is acquainted with the facts that have brought the Barrister before the Tribunal and he has re-read the reasons for decision given on 13 July 2005.

79 Particularly from 1997 onwards, Mr Hipsley had increasing contact with the barrister and has come to regard him as a friend. Mr Hipsley was honoured to be asked to be the master of ceremonies at the Barrister's wedding. Mr Hipsley and his wife have dined at the Barrister's home on a number of occasions. Mr Hipsley feels that he knows the Barrister reasonably well both professionally and personally.

80 Mr Hipsley knows that the present proceedings have caused the Barrister to do a great deal of "soul searching" and have caused him a great deal of anguish.

81 Mr Hipsley shared an interest in the stock market with the Barrister but says that he does not condone the Barrister's actions in relation to the present matter.

82 Mr Hipsley observes that the Barrister has a love of the intellectual challenge of the profession of Law. He has been impressed with the logic and strategies that the Barrister has used on behalf of his clients and has never known him, intentionally or otherwise, to step outside of the bounds of what is ethically responsible in his practice as a barrister or otherwise.

83 The transactions giving rise to these proceedings did not come to Mr Hipsley’s attention at the time. Mr Hipsley says that had they done so he would have counselled him. Mr Hipsley was sorry that this did not occur.

84 Mr Hipsley makes no comment on the Barrister's state of mind at the time of the transactions. He says that he has not known him to do anything that he believed to be wrong or dishonest.

85 Notwithstanding the findings of the tribunals, Mr Hipsley continues to regard the Barrister as someone whom he can trust both socially and professionally.

86 Patricia Anne Conway of Rose Bay, barrister, made an affidavit on 5 October 2005.

87 Ms Conway has known at the Barrister since meeting him as a fellow student in 1993. She attended the first day of the hearing on 7 March 2005 and part of the second day. She has read the decision of the Tribunals of 13 July 2005 and, notwithstanding the finding contained in paragraph 122, she remains of the view that the Barrister is of good character and fit to remain on the roll of legal practitioners. This view is based on her personal experience and dealings with the Barrister over the past 12 years.

88 Ms Conway is of the view that the Barrister showed a lack of judgment in his share dealings but she does not believe that his conduct in that regard is sufficient to warrant him being removed from the roll of legal practitioners, particularly given that his conduct was unconnected with his work as a barrister.

89 Knowing the Barrister as well as she does, she believes his conduct may be attributable more to his youth, inexperience and impetuosity at the time rather then to any illicit motives.

90 Most Conway concluded by saying,

"I know Mr Sahade to be an honest and devout man who is strongly committed to his faith and his family. I also know Mr Sahade to be a highly competent advocate who has provided his services on a pro bono basis. Indeed, on the morning the Tribunal’s decision was handed down, Mr Sahade was appearing in the District Court of New South Wales representing an 82 year old man for no fee. Even once aware of the findings against him, Mr Sahade continued with the case preparing 11 pages of submissions on behalf of his client."

91 The affidavit of Robert John Webb, barrister, of Sydney Chambers, sworn 18 November 2005, was read at the hearing.

92 Mr Webb was admitted to practice in March 1994. He practices in criminal law. He first met the Barrister in about 1994. In the mid to late nineties Mr Webb saw the Barrister on a few occasions. He recalls speaking with him at a Christmas party of the St Thomas More Society in about 1998. He saw the Barrister two or three times in various lists at the Downing Centre over the years and they spoke to one another on those occasions.

93 In early September1995, Mr Webb received a call from the Barrister inquiring whether there was a room at Sydney Chambers for one more. Mr Webb said that there was a room and he told the barrister about Mr McCrudden's spare room. The Barrister said that he would like to look at the room but that there was something he needed to disclose. Mr Webb asked the Barrister if he would like to drop by some time. The Barrister called on Mr Webb either later on the same day or on the following day.

94 The Barrister informed Mr Webb that he had been found guilty of professional misconduct, that he was to be dealt with in November and that he might be struck off the roll. They spent about 1 1/2 hours in Mr Webb’s chambers while the Barrister told him about the matter. As a fellow practitioner, Mr Webb was concerned about his colleague. The Barrister asked Mr Webb what was the process by which he could fully disclose his situation. Mr Webb said to him that it would be okay to disclose it in writing to the floor secretary and to inform Rory (Mr McCrudden) in the event that the licensing project was able to proceed.

95 As a result of what the Barrister told Mr Webb and of Mr Webb's observations of him that afternoon, Mr Webb could see that the Barrister had been through a lot over a period of some six years. Mr Webb observed a sense of calm and humility in the Barrister that is sometimes seen amongst the sick, the despised and the outcast in his experience over the past in 11 years or so. "I was left with the impression that affliction had deepened him as a person, rather than made him bitter or angry. He was clearly deeply embarrassed by his position but was bluntly sincere in his disclosure of a serious error of judgement he had made many years ago." Mr Webb was very impressed by his candour. He remembers thinking how much suffering he must have been through over all the years of this matter, especially struggling with a young family. Mr Webb remembers thinking that he was a better man than he.

96 During the two months prior to making his affidavit, Mr Webb spent some time with the Barrister getting to know him better. He says that he is a person he respects and trusts. He has no doubt whatsoever that the Barrister is a fit and proper person to remain on the roll of legal practitioners as at the date of making his affidavit.

97 Mr Cavell Becher, retired barrister, of Bexley North, NSW, made an affidavit on 3 September 2005. He has known the Barrister since 1992 and has kept in contact with him since that time. He attended both days of the Tribunal’s hearing on the issue of guilt in this matter. Mr Becher concluded his affidavit in the following way:

"From my own knowledge and experience of Mr Sahade, I say that Mr Sahade is an honest person and that he is just and upright. In my opinion the conduct of Mr Sahade that a brought him before the Tribunal in the first place was really an aberration and is not genuinely reflective of his true personality or character. Through his maturity since the time of the conduct right up until the time of making this affidavit, I am convinced that he would not fall again as he once did six years ago. In my opinion Mr Sahade has a very good character and I would have no hesitation in saying that he is a fit and proper person to remain on the roll of legal practitioners."

98 Mr Peter Meldrum Biscoe of her Majesty's Counsel, Selbourne Chambers, made an affidavit on 14 November 2005, which was read.

99 Mr Biscoe says that the Barrister was his junior in a complex commercial case litigation and in the Supreme Court of New South Wales over several weeks (with interruptions) between alighted 2004 and later 2005. He demonstrated considerable ability, learning, intelligence and aptitude and it made a valuable contribution to the client’s case. His conduct was consistent with that of the barrister who was honest and who understood his ethical responsibilities.

100 Mr Biscoe had read at the reasons for decision of the tribunals where the Barrister was found guilty of professional misconduct. The Barrister's conduct, as found in the reasons for decision, seem to Mr Biscoe to be out of character when compared with the probity which he demonstrated over a period of about a year as Mr Biscoe’s junior in the case to which reference was made.

101 Mr Paul Kenny, solicitor, of Paul Kenny and associates, made an affidavit on 21 November 2005.

102 He first met the Barrister in early 2004. Mr Kenny had received instructions from the mother of a young man who had been charged with a very serious sexual assault, and the young man's mother separately retained the Barrister. Mr Kenny did not know the Barrister prior to that time. Mr Kenny found the Barrister to be extremely professional and dedicated. He observed the Barrister as he painstakingly prepared the extremely serious matter and was particularly impressed with the empathy, which he showed to the young man, to his devastated mother and to the rest of the young man's extended family. Mr Kenny instructed the Barrister at the Sydney district Court when the young man was sentenced, and again, Mr Kenny was extremely impressed with the most professional and ethical way in which the Barrister presented at the young man's case.

103 Since instructing the Barrister in the matter, Mr Kenny has had the opportunity to observe him with his family. He appears to Mr Kenny to be a completely devoted family man and a doting father. Mr Kenny says him as a person of extremely reserved disposition.

104 Mr Kenny is aware of the criminal trial referred to earlier in these reasons. He is aware of the proceedings now before this Tribunal. From Mr Kenny's observations, both sets of proceedings have had a devastating effect on the Barrister and have seriously affected his health.

105 Mr Kenny added that the Barrister did not solicit the affidavit made by him, rather, Mr Kenny approached the Barrister in Phillip Street after having read the decision in the current matter and he offered him his support at this most difficult time of his life. Mr Kenny said that in his usual style, when he offered to assist him in any way he could in these proceedings the Barrister was most embarrassed to the point where he was reluctant to seek any assistance. Mr Kenny had to insist that he provide the Barrister with the testimonial.

106 Notwithstanding the findings in these current proceedings, Mr Kenny believes, from his observations of the Barrister from time to time that he is worthy of consideration to be able to continue to practise as a barrister. Mr Kenny believes that, given the opportunity, the Barrister can continue to make a great contribution to the community.

107 Myfanwy Gwenneth Sahade, medical practitioner, made an affidavit on 14 November 2005, read at the hearing.

108 Dr Sahade holds the degrees of Bachelor of Medicine, Bachelor of Surgery (Hons) and Bachelor of Medical Science (Hons) from the University of Sydney. She is a Fellow of the Royal Australian College of General Practitioners.

109 She was married to the Barrister on 3 December 2000. Prior to their marriage, when Dr Sahade would discuss the pending charges against the Barrister, he always maintained that he believed that he acted honestly within the rules of the float by using a loophole he found when he applied for Telstra shares. Dr Sahade believed -- as she still does -- that he considered at the time that he was acting honestly. Dr Sahade says that if she thought that he did not consider that he was acting honestly she would not have married him.

110 Shortly after the Barrister was acquitted, Dr Sahade noticed a distinct change in him with respect to how he viewed his conduct in making those applications. She recalls that he said that he had changed his mind and that he should not have done what he did and that what he did was wrong, even though he had believed that the time that it was open to him to do it. He said to her words to the effect of, "what an idiot I was when I applied for those shares". She says that this state of mind continued to the time of making her affidavit so that whenever she saw the Barrister lost in thought and asked him about what was on his mind, he usually said to her words to the effect of, "just thinking about what an idiot I was when I applied for those shares. I should not have done it."

111 Dr Sahade believes that she knows her husband very well and, in her opinion, his change of mind came after deep reflection and is genuine. She does not believe that he will do anything of a like nature in the future.

112 Dr Sahade says that the Barrister is a good husband to her and a good father to their children. She says that honesty and integrity are part of who he is and they define him as a person. He is reliable and trustworthy and she has never had occasion or reason to doubt him.

113 Dr Sahade says that the Barrister has been under intense pressure ever since he was charged by ASIC. She says that his misjudgement at the time in applying for shares is not typical of his character. She says that he is thoughtful and honest and kind and sensitive to the needs and wants of others; that he is not a cheat and is not deceitful. He is not a dishonest person and she trusts him implicitly.

114 The foregoing evidence is of great significance in this case - most of it coming from legal practitioners of some standing. There can be no better referees for a legal practitioner than colleagues of integrity who know him well and in cases such as this, who know with particularity the wrongdoing perpetrated by him.

115 The fact that some twenty members of the Bar, members of Sydney Chambers, having had disclosed to them fully by the Barrister himself the wrongdoing which brought him to the District Court and to this Tribunal, have accepted him as a colleague on their own floor is very much in his favour. There can be little doubt that barristers have an important role to play in judging the fitness of their fellows to serve the community. As a group, with few exceptions, they maintain high standards and would not readily accept as a colleague a person whom they do not expect to maintained similar standards.

116 The sheer number of referees and the force with which they express their opinions cannot be ignored.

117 It was very obvious that when he testified at the most recent hearing, the barrister was a changed person. He conceded his wrongdoing without qualification. He had the appearance of a man who had been suffering extreme anxiety for a long time.

118 Another matter of significance is the fact that now, in 2006, we are considering the conduct of a man in the 1999: some six or seven years ago. These are years in the barrister's twenties when one would expect some maturing of his attitudes to what is right and what is wrong.

119 In so far as one that can be confident about the future behaviour of any human being, we are confident that the Barrister will not offend against the ethics of his profession again. It appears that the experience has tempered the character of the barrister in such a way that he now has a better understanding of the conduct required by the profession.

120 It is well established that orders made under subsection 171C(1) are not intended to punish offenders. The sole purpose of orders under the subsection is the protection of the public, including other legal practitioners.

121 Some orders under subsection 171C(1) are the kinds of orders that be might be made by criminal court imposing a penalty upon an offender. One would expect that to be so, because a large component of a penal order made by a criminal court is not for punishment, as such, but is crafted for the protection of the community by such means as the rehabilitation of the offender, the deterrence of others from committing like offences, the deterrence of the offender himself from committing like offences again.

122 This is clear when one considers the longstanding practice of the criminal courts and the recent codification of that practice by section 3A of the Crimes (Sentencing Procedure) Act 1999. The matters to which I have just referred are all included in that section.

123 It seems to me that if orders made by this Tribunal were made for the purposes to which I have just referred, although they may be perceived by the offender to be punitive, they play a role in protecting the community, including the community of legal practitioners.

124 A monetary fine would normally be regarded as a penalty or punishment. Indeed, in years past a fine was one of the few alternatives to a sentence of imprisonment. Although subsection 171C(1) of the Act makes the imposition of a fine available to the Tribunal, but as a means of deterring the offender from backsliding, it is also a warning to others not to commit like offences. If a fine operates to deter an offender from offending again, or to deter a like-minded person not to offend for fear of being fined, it may fairly be looked at, not as punitive, but for the protection of the public and therefore as being consistent with the purpose of the jurisdiction of the Tribunal. Indeed, this must be the case, otherwise there could be no justification for subsection 171C(1) including a power to fine.

125 The same reasoning may be applied to a public reprimand under paragraph (e) of subsection 171C(1). A public reprimand may operate as a warning to the offender and also to others who may be contemplating similar wrongful conduct.

126 The significance of these considerations in this case is that they lead to the conclusion that it is possible that a person who is no longer an unacceptable risk to the community may nevertheless be required to pay a fine and/or be subjected to a reprimand, for the deterrence of others.

127 Therefore it may be appropriate in a particular case that a legal practitioner who has offended seriously but is no longer a risk to society may be fined and/or reprimanded, not as a punishment but for the purpose of deterring others.

128 A difference between a ‘public reprimand’ and a ‘private reprimand’ is that the former, being published, can act as a warning to others not to offend in a similar way. A reprimand that remains private can really act only as a personal deterrent. Therefore, in the case of a legal practitioner who himself requires no deterrence, one factor that might determine whether a reprimand should be public would be whether there is any reasonable possibility that one or more other legal practitioners might act in the same way as the legal practitioner under consideration. If there is no such likelihood, one reason for imposing a public reprimand would be absent.

129 As we have already said, we have regard to the opinions that the Barrister’s supporting witnesses have expressed about him, and we give those opinions considerable weight.

130 We have regard to the practitioner’s current character and the support he has received from colleagues, friends and family, which will mean it, is unlikely that he will offend again.

131 We have regard to the six years of legal practice, since the actions giving rise to these proceedings, without any allegation of fault coming to notice.

132 We are influenced by the implicit judgment of his peers in accepting him as a colleague in chambers, and otherwise, with full knowledge of his misconduct.

133 We also take into account the prolonged and painfully anxious period of some years in his life when, as a man in his twenties, the Barrister should have been able to enjoy his life. This was a self-inflicted punishment, but must act as a real deterrent.

134 We are reassured by the generous offer of Mr Anderson QC who has undertaken to supervise the Barrister in all respects of his legal practice and in any respect that may affect his fitness to practise law. We accept that undertaking with thanks and invite Mr Anderson, when he thinks that the Barrister can no longer benefit from his oversight, to apply to the Tribunal to be relieved of that duty. This may be done informally.

135 In all of these circumstances we are of the opinion that that Barrister no longer presents any risk to the public. Indeed, we think that the signs are, and it is very likely, that from now on his services will be of benefit to them.

136 Therefore, we reject the urgings of the Council to remove the Barrister from the roll of legal practitioners.

137 It remains that what the Barrister did in 1999 was seriously wrong. Most fully informed ordinary people with knowledge of all the material facts would expect the Tribunal to reflect that fact in its orders. We would agree.

138 Therefore, we order that the Barrister pay a fine of $10,000 and we publicly reprimand him.

139 The Barrister is ordered to pay the costs of the Council of an incidental to these proceedings.