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  4. In the matter of an application by Jashneel Prakash for admission to the Legal Profession - [2022] QCA 224

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In the matter of an application by Jashneel Prakash for admission to the Legal Profession[2022] QCA 224

In the matter of an application by Jashneel Prakash for admission to the Legal Profession[2022] QCA 224

SUPREME COURT OF QUEENSLAND

CITATION:

In the matter of an application by Jashneel Prakash for admission to the Legal Profession [2022] QCA 224

PARTIES:

IN THE MATTER OF THE LEGAL PROFESSION ACT 2007 (QLD) AND THE SUPREME COURT (ADMISSION) RULES 2004 (QLD)

and

IN THE MATTER OF AN APPLICATION BY JASHNEEL PRAKASH

(applicant)

FILE NO/S:

Appeal No 10875 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Application for Admission

DELIVERED ON:

15 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2022

JUDGES:

Bowskill CJ and Dalton JA and Boddice J

ORDER:

The application for admission to the legal profession is refused.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS – where the applicant applies for admission to the legal profession – where the applicant is eligible for admission but in the course of dealing with his application an issue arose as to his suitability for admission, as a result of failing to provide full and frank disclosure of the circumstances in which wounding offences were committed by him – whether the applicant could be admitted to the legal profession subject to conditions – whether the applicant is presently a fit and proper person to be admitted to the legal profession in Queensland

Legal Profession Act 2007 (Qld), s 6, s 24, s 34, s 35(2)(b), s 35(3), s 56

Supreme Court (Admission) Rules 2004 (Qld), r 11, r 13(2)(j), r 15

In the matter of an application for admission as a legal practitioner by JY [2016] QCA 324, cited

COUNSEL:

S J Keim SC for the applicant

H L Blattman for the respondent

SOLICITORS:

Legal Practitioners Admissions Board for the respondent

  1. [1]
    THE COURT:  The applicant applied under s 34 of the Legal Profession Act 2007 (Qld) (the Act) to be admitted to the legal profession.  He is eligible[1] for admission.  However, for the following reasons, in the course of dealing with his application, the Court has formed the view that he is not, at present, suitable[2] for admission to the legal profession.  His application for admission has therefore been refused, under s 35(2)(b) of the Act.
  2. [2]
    In support of his application for admission, the applicant made and filed an affidavit on 23 September 2022.  In that affidavit, and as required by rules 11 and 13(2)(j) of the Supreme Court (Admission) Rules 2004 (Qld) (the Rules), the applicant set out various matters relevant to his suitability.  They include a history of traffic infringements, SPER debts relating to various fines he has been ordered to pay by way of penalty for various offences, as well as a “victims of crime compensation payment”, a debt (now repaid) to Centrelink for overpayments and a criminal history including convictions for stealing, wilful damage, drug offences, breach of bail and trespass (committed when he was 17, 18 or 19) as well as wounding (committed when he was 18).  The applicant is now 34.
  3. [3]
    In paragraph 35 of the applicant’s affidavit, he described the wounding offence(s) as follows:

“In relation to the offence dated 11/5/2007 (Wounding x 2), this incident occurred when I was 18 years old.  I was at a party; a fight broke out and resulted in me stabbing another male.  I received a suspended sentence of 18 months after serving 3 months, and 3 years’ probation.  I have been very remorseful for my actions; I paid the victim over $20,000 in victims of crime compensation and wrote a letter of apology.  After being released from prison in 2008, I have never been charged with another crime.  I have dedicated my time to studying, working and family …”

  1. [4]
    The applicant included as exhibits to his affidavit a copy of his criminal history and the relevant Verdict and Judgment Records (VJRs) for the various offences.  But he did not include the sentencing remarks in relation to the most serious of the offences, the woundings.
  2. [5]
    On 4 October 2022 the Legal Practitioners Admissions Board (the Board) issued a qualified certificate, recording its recommendation (under r 15 of the Rules) that the applicant had complied with the Rules and that “he is a fit and proper person to be admitted, but subject to full disclosure being made to the Court”.
  3. [6]
    The application for admission was listed before the Court on 10 October 2022.  On 7 October 2022, the applicant and the Board were advised that the Court requested that a copy of the sentencing remarks in relation to the conviction for wounding be provided.
  4. [7]
    By the morning of 10 October 2022, as no response to that request had been received, the Court obtained a copy of the sentencing remarks, from the sentence hearing on 23 May 2008, from the Queensland Sentencing Information Service (QSIS).[3]
  5. [8]
    The sentencing remarks presented a significantly different picture of the events leading to the wounding offences than the applicant had described in paragraph 35 of his affidavit and from that in paragraph 12 of the written submissions of senior counsel for the applicant, which were dated 7 October 2022.
  6. [9]
    It is apparent from the sentencing remarks that there were two convictions of wounding, involving two separate victims.  The first was a man (SB), the second was his mother (LB).  SB was said to have suffered a broken back in 2001 and as a consequence had problems walking, used a walking stick and had difficulties getting around.  He lived with his parents.  There had been an incident a couple of weeks prior to the night when the offences were committed.  The applicant was not involved in that earlier incident, but it was a disagreement between SB and another person in the street in relation to a noisy party.
  7. [10]
    On the date of the offences, 11 May 2007, there was another party.  SB went to the door [presumably of his house] and made a comment about the noise, saying something along the lines of “how about keeping it down”.  A friend of the applicant’s (DP) made some kind of threat to SB, and threw a bottle of vodka at the window of SB’s house.  The applicant was outside with this friend at the time.  SB then went up the street, calling out for the persons who had smashed his window and for them to come out, using “blunt language”.  There was then a confrontation.  The sentencing judge recorded that:

“[i]t seems during the course of that confrontation at some stage you perceived yourself to have been the subject of racial comments…

The confrontation then proceeded with [DP] putting [SB] in a headlock.  A neighbour and other persons at the party pulled [DP] off the complainant and he was dragged onto the ground.  He – that’s [SB] – was trying to hold [DP] away from him.  Some witnesses it seems say that [DP] was kicking out with his legs towards [SB].  [SB’s] mother had attended.

You were present with a knife in your hand, which was a steak knife.  Your counsel, … says that that was a result of you being told that there was a man outside wanting to fight and you were handed that knife and took it with you when you went out to the confrontation.  You stabbed [SB] twice in the back and the third stab it seems deflected and hit his mother, [LB].

The injuries to [LB] were a 1 centimetre wound to the left forearm for which no sutures were required, so that wound is, of course, at the very lowest end of unlawful wounding.  However, the wounds involving [SB] were 2 wounds, each approximately 2 centimetres long in his upper back.  He had blood and air outside the lung and within the chest cavity.  He was bleeding at the scene and it was necessary to staunch that bleeding until the ambulance came and that seems to have been done by a neighbour…  It was also [that neighbour] who intervened at some stage in the confrontation, but had his back turned when [SB] was in fact stabbed.

You went inside and pretended to be asleep and you denied involvement in an interview.  So the situation facing the Court is that you must be sentenced in circumstances where you armed yourself with a knife, you took it to the confrontation.  During the course of the confrontation in which a man with a significant disability, who had a walking stick, was or had just immediately been grabbed in a headlock by [DP], you then intervened.  At some stage in that confrontation it would seem, at least on the recollection of a number of witnesses, that your intervention was after [DP] had in fact been pulled off and you stabbed [SB] twice in the back and stabbed his mother in the arm as she was seeking to protect him.  He was a 38 year old man at the time.  She was a 60 year old woman.

The circumstances then are extremely serious.  There are witnesses who report you saying that the complainant – that’s [SB] – had deserved it and that you were laughing and smiling after it happened.  It seems that there may have been some effect of alcohol on you at the time.”

  1. [11]
    The applicant was originally charged with causing grievous bodily harm in relation to the stabbing of SB, but his plea to the alternative of wounding was accepted.
  2. [12]
    Taking into account the very serious nature of both the injuries suffered by SB and the way in which those injuries were inflicted, but balancing the “powerful factors in mitigation” (including the applicant’s young age at the time, plea of guilty and expression of remorse through a written apology), the sentencing judge imposed a sentence of 18 months’ imprisonment to be suspended after three months in actual custody for the more serious count of wounding (involving SB) and ordered that the applicant serve a period of three years’ probation for the second count (involving the mother, LB).
  3. [13]
    It is abundantly clear from the sentencing remarks that the applicant’s shorthand description of the offending, in paragraph 35 of his affidavit, was deficient and misleading in a number of important respects.
  4. [14]
    When the discrepancy was raised with senior counsel for the applicant at the first hearing on 10 October 2022, the explanation given was that the applicant was heavily intoxicated on the day of the offences and had little recollection of the circumstances.  The Court would be cautious about accepting such a statement.  Even assuming it to be true, it did not explain why he would not have recalled the details from the sentencing hearing.
  5. [15]
    As neither the Board nor the applicant had a copy of the sentencing remarks, they were provided with a copy by the Court and the application was adjourned for further hearing to 7 November 2022.  Directions were made to enable the applicant to file further affidavit material, and for the parties to file further submissions.  In that material, the applicant was invited to explain the circumstances of his offending, and explain why he was not full and frank in his disclosure about the offences in his first affidavit.
  6. [16]
    In a further affidavit of the applicant filed on 27 October 2022 he says that, on the morning of 10 October 2022 (the first date for hearing of the application) he was asked by his counsel to provide details of the wounding offences so that counsel could convey these to the Court if asked to do so.  He sets out what he told his counsel, which is a good deal more than he put in paragraph 35 of his affidavit, but still leaves out key facts which are apparent from the sentencing remarks.  As to why he had previously referred to one male victim, the applicant says he believed the charge relating to the mother, LB, had not been proceeded with, and that the two charges related to the two stab wounds to SB.  The applicant says that his recollection of the night is vague because he had consumed a significant quantity of alcohol.  As for the sentencing hearing, the applicant says his “memory of that event is blurred as I was very anxious, focussed on what penalty I was to receive, and it has been 14 years since being sentenced”.  He adds that, in the 14 years since he was convicted and sentenced, he has tried not to think about that part of his life because they are a source of shame and embarrassment.
  7. [17]
    The applicant’s further evidence also reveals that, in mid-September 2022 he had attempted to obtain a copy of the sentencing remarks, but did not ultimately do so because of the cost involved ($200-$400).  He says he would have obtained them, despite the cost, if the Board had asked him to.
  8. [18]
    The further material also includes an affidavit from the applicant’s father, who is a migration agent with his own business.  He has employed the applicant in that business since August 2022, following the applicant’s completion of a practical legal training course.  The applicant’s father says that the applicant’s “tasks include, liaising with clients, managing our CRM software, interpreting legislations to assist with client cases, assisting in submissions for appeals, and some bookkeeping”.  The father also says that he has been “enthusiastic about [the applicant] being admitted as a lawyer, as having a lawyer in my company will add a lot of value.  [He] will be able to handle certain appeals and appear in the tribunal/FCC/FC as a lawyer.  Previously I have had to outsource these cases to a lawyer/barrister”.
  9. [19]
    The applicant says his main ambition is to become a criminal lawyer.
  10. [20]
    There is also an affidavit from Mr Raniga, who is a solicitor.  He says he has been advised the applicant is working in an admin/law clerk position with [his father’s business] which requires some legal tasks.  Mr Raniga has agreed to mentor and supervise the applicant for “at least 1 hour each week”, supervising and mentoring him in accomplishing legal tasks, including legal letter writing, working with clients and ethical issues.  Mr Raniga is a family friend of the applicant’s, who represented the applicant in relation to the wounding offences in 2008.  He is an experienced solicitor operating his own law firm.[4]
  11. [21]
    In light of the issues raised by the Court, the sentencing remarks and the further evidence filed by the applicant, the Board is now not satisfied the applicant is suitable for admission at present, having regard to matters including:
  • the sentencing remarks indicate that the applicant’s offending in or around May 2007 was very serious and resulted in significant injuries to two people, one of whom was disabled and the other being an older mature-aged woman;
  • based on the instructions given by the applicant to his counsel (as sworn in his affidavit of 21 October 2022), it seems prior to the hearing on 10 October 2022, the applicant was able to recall considerably more details of the events surrounding his offending in May 2007 than disclosed by him in his application for admission, and it was not until the Court confronted him with the sentencing remarks that he provided additional details of those events;
  • the applicant has not complied with his duty to the Court to provide full and frank disclosure of his offending in May 2007, and his disclosure of his offending, as detailed at paragraph 35 of his [first] affidavit does not provide adequate detail of the circumstances surrounding, and seriousness of, the offending at that time; and
  • the applicant has still not provided a satisfactory explanation as to why he did not make full and frank disclosure of his offending in May 2007 as part of his application for admission.
  1. [22]
    In light of the further evidence, from the applicant’s father and Mr Raniga, the Board says it considered whether it would be appropriate for the applicant to be admitted to the legal profession, subject to conditions (s 35(3) of the Act).  However, the Board ultimately was not satisfied that would be appropriate, as it is not satisfied the applicant is suitable for admission at this time (for the reasons referred to above); s 56 of the Act already imposes a statutory condition, requiring a person holding a local practising certificate for a solicitor to engage in a period of supervised legal practice (of 18 months or two years, depending on the circumstances); in light of that provision it is not apparent what purpose would be served by imposing a further condition requiring supervision; and it is not apparent that the applicant’s failure to comply with his obligation of disclosure would be satisfactorily addressed by post-admission mentoring.  The Board submitted that the preferable course would be for the applicant’s application to be adjourned for not less than six months, for the applicant to undertake the contemplated mentoring with Mr Raniga, and for his application to be reconsidered after that period of time, with the benefit of evidence from Mr Raniga.
  2. [23]
    The applicant pressed for his application to be heard and determined favourably to him.  On his behalf, counsel conceded that the failure to pay to obtain the sentencing remarks, so that they could be annexed to his first affidavit, was a serious error of judgment on the part of the applicant.  Counsel for the applicant also conceded that the sentence imposed on the applicant, as an 18 year old, for the wounding offences, together with the order to pay more than $20,000 in criminal compensation “was a serious matter for the respondent Board’s and the Court’s consideration” but submitted that “[i]n this regard, the nature of the circumstances involved in and surrounding the event were less likely to impact upon the Court’s assessment of the matter than in a less serious matter such as, for example, a finding of academic plagiarism as a student where the details of the conduct and the surrounding circumstances can significantly impact the Court’s view of the seriousness or otherwise of the conduct”.
  3. [24]
    The Court understood that submission to mean that it mattered less that the applicant failed to disclose the details of the offending, because it could be inferred from the sentence imposed that it must have been a very serious offence indeed.  That is a surprising submission for senior counsel to have made.  It is the very fact that the offences appeared to the Court to have been serious – an inference drawn from the imposition of a sentence involving actual custody on an 18 year old offender – that alerted the Court to the possibility that what appeared in paragraph 35 of the applicant’s first affidavit may not have been a full and frank account.  That was confirmed upon reading the sentencing remarks.
  4. [25]
    The applicant pressed for his application for admission to be granted, unconditionally, on the basis that the Court could be satisfied he will be supervised and mentored by his father, and Mr Raniga for one hour a week.  However, it was submitted that if the Court considered conditions were required, he could be admitted subject to a condition that he be subject of mentoring or supervision by an as yet unidentified future employer.
  5. [26]
    As this Court observed in In the matter of an application for admission as a legal practitioner by JY [2016] QCA 324 at [20], “[t]he Court’s role in determining who should be admitted is not punitive; it is to protect the public interest and the interests of the profession”.[5]  The Court must be satisfied the person is suitable to be put before the public as a fit and proper person to be a legal practitioner.
  6. [27]
    As counsel for the applicant correctly apprehended, it is the failure to make full and frank disclosure that is of concern to the Court, in determining the applicant’s suitability for admission, as opposed to the inherent seriousness of the offences.  The offences were undoubtedly extremely serious.  However, given the passage of time since the convictions, and the fact that there has been no further offending, those convictions would not, but for the questions that have now been raised about the applicant’s suitability, stand in the way of his admission as a lawyer.  The manner in which the applicant has approached his initial application, and the further hearing following the adjournment on 10 October 2022, has left the Court with a concern about his level of insight and lack of judgment.
  7. [28]
    As the Court in JY also said, at [25]:

“An applicant for admission must approach the Board and, in turn, the Court,

‘with the utmost good faith and candour, comprehensively disclosing any matter which may reasonably be taken to bear on an assessment of fitness for practice’.[6]

Notwithstanding that a person guilty of a serious offence may demonstrate a change in character, a pre-requisite for admission remains

‘a complete realization by the party concerned of his obligation of candour to the court in which he desires to serve as an agent of justice’.[7]”

  1. [29]
    The applicant’s failure to fully and frankly disclose the circumstances reveals a lack of appreciation for the importance of the high standards expected of a legal practitioner.  It may be accepted that he is ashamed of his past actions and would rather forget them.  But in order to persuade the Court as to his suitability for admission the applicant needed to demonstrate a complete realisation of his obligation of candour, which he has, at this stage, failed to do.
  2. [30]
    A person who is admitted to the legal profession by this Court becomes an “Australian lawyer” within the meaning of s 5 of the Act.  However, in order to lawfully engage in legal practice (that is, to work as a lawyer) the person must hold a current (local or interstate) practising certificate.[8]  The Act provides for various conditions on local practising certificates.  Relevantly, s 56 provides:

“56 Statutory condition regarding practice as solicitor

  1. (1)
    It is a statutory condition of a local practising certificate for a solicitor that the certificate holder must engage in supervised legal practice[9] only, until the certificate holder has completed —
  1. (a)
    if the certificate holder completed supervised legal training to qualify for admission to the legal profession in this or another jurisdiction – a period or periods equivalent to 18 months supervised legal practice, worked out under a regulation, after the day the holder’s first practising certificate was granted; or
  1. (b)
    if the holder completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction – a period or periods equivalent to 2 years supervised legal practice, worked out under a regulation, after the day the holder’s first practising certificate was granted.
  1. (2)
    Subsection (1) has effect subject to any other conditions that relate to engaging in supervised legal practice as a solicitor after a period or periods mentioned in that subsection.
  1. (3)
    The law society may exempt a person or class of persons from the requirement for supervised legal practice under subsection (1) or may reduce a period mentioned in that subsection for a person or class of persons, if satisfied the person or persons do not need to be supervised or need to be supervised only for a shorter period, having regard to –
  1. (a)
    the length and nature of any legal practice previously engaged in by the person or persons; and
  1. (b)
    the length and nature of any legal practice engaged in by the supervisors, if any, who previously supervised the legal practice engaged in by the person or persons.
  1. (4)
    An exemption under subsection (3) may be given unconditionally or subject to conditions the law society considers appropriate.
  1. (5)
    In this section—

supervised legal training means practical legal training principally under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise.”

  1. [31]
    The Court’s concerns about the suitability of the applicant for admission at this time are compounded by the evidence of his father, as to the nature of the work that he presently undertakes and his father’s enthusiasm about the applicant “adding value” as an admitted lawyer.  The applicant could not lawfully “add value” to the business as a lawyer, by doing the things his father would like him to do.  He can only lawfully engage in legal practice if he holds a local practising certificate; and then can only initially engage in supervised legal practice for a period of two years.  He cannot do that working in his father’s company.
  2. [32]
    Importantly, before the Court can make an order admitting the applicant to the legal profession as a lawyer, the Court must be satisfied the applicant is now a fit and proper person to be admitted (s 35).  We are not so satisfied.  A person cannot be admitted as a lawyer and then subsequently work on developing the appropriate level of insight and judgment to discharge the stringent duties of a legal practitioner.  The point of the “fit and proper person” requirement is that an applicant must be able to demonstrate it at the time of admission.
  3. [33]
    The offer to engage with Mr Raniga for mentoring for one hour each week, in circumstances where the applicant should not be undertaking legal work, is wholly inadequate to address the concerns that have been raised by the application.
  4. [34]
    As the Court is not satisfied the applicant is, presently, a fit and proper person to be admitted to the legal profession, the application for admission is refused.
  5. [35]
    The refusal of the application is of course without prejudice to the applicant’s ability to make a fresh application at a later time.  We do not consider that the mere passage of time will be sufficient to allow the applicant to be admitted on a subsequent application.  In our view, he needs to undertake work experience as a law clerk, under the daily supervision of an experienced legal practitioner, for a period of time, and to have the benefit of mentoring and supervision by that legal practitioner in that context – that is, in the context of undertaking legal work.  There are two important aspects to this: the development of insight and understanding of the expectations of a legal practitioner by the applicant; and the availability of informed evidence from the supervisor to support a finding by the Court as to the applicant’s suitability.  His subsequent application can then be supported by evidence from that legal practitioner who hopefully will be able to express a view that the Court can rely upon in relation to his insight and judgment, and his understanding of the standards expected of a legal practitioner.  We are not persuaded that a further adjournment of the present application is appropriate in the circumstances.

Footnotes

[1]  See s 30(1) of the Act.

[2]  See s 31 of the Act.

[3]  See exhibit 1.

[4]  See the Certificate of Suitability, exhibit C to the applicant’s affidavit filed 23 September 2022.

[5]  Referring to Wentworth v NSW Bar Association (1992) 176 CLR 239 at 251 and Gregory v Queensland Law Society Incorporated [2002] 2 Qd R 583 at 587.

[6]  Referring to Re Hampton [2002] QCA 129 at [26].

[7]  Referring to In re Davis (1947) 75 CLR 409 at 426.

[8]  See s 6 (definition of ‘Australian legal practitioner’ as an Australian lawyer who holds a current (local or interstate) practising certificate) and s 24 (prohibition on engaging in legal practice unless the person is an Australian legal practitioner).

[9]  See the definition of “supervised legal practice” in schedule 2 to the Act, which involves engaging in legal practice under the supervision of an Australian legal practitioner who holds an unrestricted practising certificate.

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Editorial Notes

  • Published Case Name:

    In the matter of an application by Jashneel Prakash for admission to the Legal Profession

  • Shortened Case Name:

    In the matter of an application by Jashneel Prakash for admission to the Legal Profession

  • MNC:

    [2022] QCA 224

  • Court:

    QCA

  • Judge(s):

    Bowskill CJ, Dalton JA, Boddice J

  • Date:

    15 Nov 2022

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
QCA Original Jurisdiction[2022] QCA 22415 Nov 2022-

Appeal Status

No Status

Cases Cited

Case NameFull CitationFrequency
Greg Gregory v QLS Inc[2002] 2 Qd R 583; [2001] QCA 499
1 citation
Jump To
Cite 1 - [2002] 2 Qd R 583
In Re Davis (1947) 75 CLR 409
1 citation
Jump To
Cite 1 - (1947) 75 CLR 409
Re Hampton [2002] QCA 129
1 citation
Jump To
Cite 1 - [2002] QCA 129
Re JY [2016] QCA 324
2 citations
Jump To
Cite 1 - [2016] QCA 324
Cite 2 - [2016] QCA 324
Wentworth v NSW Bar Association (1992) 176 CLR 239
1 citation
Jump To
Cite 1 - (1992) 176 CLR 239

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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